Statement of

Patrick G. Eddington
Senior Fellow
Cato Institute

to the

United States House of Representatives

Select Committee to Investigate the January 6th Attack on the United States Capitol

on

“Lessons Learned and Caveats for the Future: The January 6, 2021, Attempted Insurrection”

Submitted on May 19, 2022

 Chairman Thompson, Vice Chair Cheney, members of the Select Committee, I appreciate
the opportunity to offer my views on the events leading up to and after the January 6, 2021,
attempt to prevent the peaceful transfer of power between Administrations. Let me state at the
outset that the views I express herein are mine alone and do not necessarily represent the views of
the Cato Institute, its management, or board of directors.

In the nearly 18 months since the attempted insurrection, many have searched for answers
as to why the Federal Bureau of Investigation (FBI) and the Department of Homeland Security
(DHS) failed to anticipate the attempted insurrection. Today, I'll convey two overarching themes
in that regard. The first has to do with organizational culture and bureaucratic incentives and
mindset that have often led law enforcement organizations, and particularly the FBI, to target
individuals or groups absent a demonstrable criminal predicate. The second has to do with the
nature of the current domestic political threat, the likes of which our country has not seen since
the period immediately before the outbreak of the Civil War.

While much of the media coverage on the attempted insurrection has focused on the
Federal Bureau of Investigation (FBI) and the Department of Homeland Security (DHS), my
remarks today will be confined to the FBI's performance, as under existing federal law and
historical precedent it is the FBI that has had a de facto domestic security investigative mandate
for over a century.

To help illustrate the problems, my statement is structured in to five sections:

• A brief historical background on the American experience with politically motivated

surveillance, repression, and violence--by individuals and groups, as well as that
perpetrated by the federal government itself.

• An examination of the history and uses of the Attorney General Guidelines for Domestic
FBI Investigations, and the risks the Guidelines and FBI implementing regulations pose to
constitutional rights.

• Cato's own findings, based on Freedom of Information Act (FOIA) requests and litigation,
regarding FBI domestic surveillance abuses targeting domestic civil society organizations
over roughly the last 15 years, and the potential dire consequences for American's
constitutional rights and our basic domestic tranquility of a failure to reexamine FBI
investigative practices and policies.

• Reasons for concern about the viability of pre-emptively detecting alleged or actual
planned violent activity, as well as legitimate concerns about extremist penetration of law
enforcement organizations.

• The need to focus on governmental and process protections beyond reforms regarding law
enforcement or Defense Support to Civilian Authorities (DSCA) response to another
attempted coup.

In brief, I believe Congress avoid any expansion of domestic terrorism bureaucracies, much less
legal authorities, in response to the events of January 6, 2021. To help you understand why I
counsel caution, let me provide some very relevant history.

1
Political Extremism and Government Repression: An American Tradition

Individuals or groups holding and seeking to act on what prevailing government

authorities view as extreme political views is a phenomenon that has been a part of the American
experience since pre-Revolutionary times. Sam Adams and his "Sons of Liberty"--famous for tar-
and-feathering British Crown officials in Massachusetts--were viewed by British colonial
authorities as traitors and terrorists.1 Most Americans today view them as the ultimate patriots,
men who helped lead 13 separate colonies in a successful war for independence and in doing so
created a nation unlike any other in history.

Yet less than a decade after the ratification of the Constitution, the new central
government of the United States would itself, under the control of the Federalist Party, conduct a
campaign of de facto political terror against its opponents via the infamous Alien and Sedition
Acts.2 Critically, the use of federal government power against other groups viewed unfavorably or
as potential threats (real or manufactured) did not end with the repeal or expiration of the Alien
and Sedition Acts during President Jefferson's time in office.

Under intense pressure from then-President Andrew Jackson, the Congress in late May
1830 passed legislation authorizing the forcible removal of Native Americans from the
southeastern United States.3 The infamous "Trail of Tears" episodes remains one of the most
disgraceful in U.S. history.

After the defeat of the Confederacy in 1865, the rise of the Ku Klux Klan sparked an era of
de facto state-sponsored murder, terrorism, and political repression against recently freed slaves
across the South, with state and local officials giving covert or even open support to Klan activities
or serving in the Klan. Ultimately, then-President Grant employed the Secret Service as a domestic
counterterrorism force against the KKK. The then-head of the Secret Service, Hiram Whitley, used
threats of summary executions and other forms of torture on KKK members or sympathizers in
order to extract confessions from them and ultimately effectively destroy the organization for a
period of time.4

In the roughly 150 years since the Secret Service's campaign against the KKK, there have
been other cycles of violence and repression involving domestic groups and the federal
government. Among the more prominent examples:

• The 1903 Anarchist Exclusion Act, passed in response to the assassination of President
McKinley by an anarchist adherent, was complemented by an aggressive effort at the
federal, state, and local levels to identify and persecute anarchists regardless of whether
they had committed violent acts.

1
See Les Standiford, Desperate Sons: Samuel Adams, Patrick Henry, John Hancock, and the Secret Bands of Radicals Who Led
the Colonies to War (New York: HarperCollins, 2012).
2
See Wendell Bird, Criminal Dissent: Prosecutions Under the Alien and Sedition Acts of 1798 (Cambridge: Harvard
University Press, 2020).
3
See Claudio Saunt, Unworthy Republic: The Dispossession of Native Americans and the Road to Indian Territory (New
York: W.W. Norton & Co., 2020), pp. 68-83.
4
See Charles Lane, Freedom's Detective: The Secret Service, the Ku Klux Klan, and the Man Who Masterminded America's
First War on Terror (Toronto: Hanover Square Press, 2019), pp. 83-84.

2
 • The passage of the Espionage Act, Food and Fuel Control Act, and the Sedition Act during
WW I saw the Secret Service and Bureau of Investigation (the name change to FBI would
not happen until 1935) targeting German Americans, socialists, and others deemed threats
to national security with little or no basis.

• In the months after the Pearl Harbor attack, plans put in place years earlier to detain more
than 100,000 Japanese Americans were unleashed via President Franklin Roosevelt's
infamous Executive Order 9066, despite the fact that federal authorities had already
determined that the overwhelming majority of Japanese Americans were loyal to the
United States.

• The Cold War would see congressional committees--the House Un-American Activities
Committee (HUAC) and the Senate Internal Security Subcommittee (SISS)--compete with
the FBI and other federal law enforcement and intelligence services in the hunt for
domestic "subversives"--a term never defined in law. The professional and personal lives
of thousands of Americans were destroyed at the hands of HUAC and SISS during their
existence.

• From 1956 to 1971, the FBI's Counterintelligence Program (COINTELPRO) became the
most infamous civil society surveillance and subversion scheme in American history.
Among those targeted were the Reverend Martin Luther King, Jr. and the Southern
Christian Leadership Conference, among many others.

• Between 1945 and 1975, the NSA's SHAMROCK and MINARET swept up the international
cable traffic of specifically targeted Americans absent any criminal predicate.

The legislative reforms enacted during and after the Church Committee era--the passage
of the Foreign Intelligence Surveillance Act (FISA), the Inspector General Act, and the creation of
the House and Senate Intelligence Committees--were designed to help preclude a repeat of such
domestic surveillance abuses and related political repression. But as the subsequent Senate
Intelligence Committee investigation of the FBI's predicate-free targeting of the Committee in
Solidarity with the People of El Salvador (CISPES) in the 1980s demonstrated, the failure to
pursue an aggressive reform agenda regarding the FBI in the Church Committee era all but
ensured a repeat of past Bureau domestic surveillance abuses.5

Yet even as the FBI continued to pursue some domestic groups with international
connections, a new surge in the formation of domestic white supremacists or vocally anti-
government groups did not escape the Bureau's attention.

Aryan Nations, The Order, the American Nazi Party, and other groups and individuals with
racially repellant and often virulently anti-government views emerged from the mid-1960s
onward. The FBI investigated or otherwise monitored such groups. Armed confrontations
between federal agents and armed anti-government activists at Ruby Ridge, Idaho in 1992 and the
Branch Davidian compound near Waco, Texas in 1993 served as rallying cries for further attacks
against federal targets by those in the anti-government movement. Two anti-government

5
See The FBI and CISPES: Report of the Select Committee on Intelligence, United States Senate together with Additional
Views. 101st Congress (1st Session), Committee Print 101-46, July 1989.

3
extremists and former U.S. Army members--Timothy McVeigh and Terry Nichols--would conspire
to perpetrate the deadliest single act of domestic terrorism in the nation's history: the April 19,
1995, truck bombing of the Alfred P. Murrah Federal Building in Oklahoma City.

In the six years after the Murrah Federal Building bombing, the rise of the Salafist terrorist
group Al Qaeda shifted the attention of senior federal officials back to international terrorism. The
attacks on American embassies in Kenya and Tanzania in August 1998, the attack on the USS Cole
in Aden, Yemen in October 2000, and finally the 9/11 attacks themselves would lead to the final
transformation of the FBI from a law enforcement agency with intelligence components to a
massive intelligence agency with law enforcement functions. From an organizational culture and
practices perspective, the nature and consequences of that transformation can be traced to the
evolution of the Attorney General Guidelines for Domestic FBI Investigations over a three-decade
period.

The Attorney General Guidelines for Domestic FBI Investigations and the creation of
"Assessments"

As noted earlier, one proposed legislative reform of the Church Committee era never
materialized: an actual statutory charter governing the FBI's domestic investigations and
authorities. That legislative effort was preempted by then-Attorney General Edward Levi, who on
April 6, 1976, introduced the Domestic Security Investigation Guidelines.6 The guidelines stated
that FBI domestic "internal security" investigations could only be opened on the basis of "specific
and articulable facts giving reason to believe that an individual or group is or may be engaged in
activities which involve the use of force or violence."7 That standard would be eliminated during
the Reagan administration, a fact that contributed directly to the unjustified targeting of CISPES,
referenced above.

During the 1980s and 1990s, the Guidelines were revised downwards vis a vis protection
against unwarranted or unjustified investigations. In the wake of the Oklahoma City bombing,
then-Director Louis Freeh reinterpreted the Guidelines to, in the words of the September 2005
DoJ IG report, "justify the investigation of domestic groups that advocate violence provided that
they have the ability to carry out violent acts that may violate federal law."8

In the post-9/11 era, the Guidelines underwent their biggest revision in decades during
then-Attorney General Michael Mukasey's last few months in office in 2008. The version of the
AG Guidelines he issued in December 2008 created a new, proto-investigative category called
"Assessments." The change was revolutionary in that FBI agents could open an Assessment on an
individual or group with no criminal predicate—only an "authorized purpose" was required. And
it was the FBI--through its Domestic Investigations and Operations Guide (DIOG), the multi-
hundred page implementing regulations for the AG Guidelines--that ultimately decided whether
something amounted to an "authorized purpose" as a basis for opening an Assessment.

6
The Federal Bureau of Investigation's Compliance with the Attorney General's Investigative Guidelines (redacted). Special
Report, Office of the Inspector General, Department of Justice, September 2005, footnote 53. Available online at
https://oig.justice.gov/sites/default/files/archive/special/0509/chapter2.htm#54.
7
Ibid., footnote 56.
8
Ibid., footnote 148.

4
 In spite of the low threshold for opening an assessment, the FBI is allowed to deploy
intrusive investigative means including physical surveillance and tasking confidential human
sources. Bureau agents can also search both commercial and classified databases for information
on the subject of an Assessment and gather data from other law enforcement partners at the
federal, state, and local level for the same purpose.

In March 2011, the New York Times announced, via a FOIA lawsuit, that it had discovered
that just between December 2008 and March 2009, “the F.B.I. initiated 11,667 Assessments of
people and groups. Of those, 8,605 were completed. And based on the information developed in
those low-level inquiries, agents opened 427 more intensive investigations…”9 And by August
2011, the Times had obtained further data showing that between March 2009 and March 2011, the
FBI had opened over 82,000 Assessments on people and groups. Few of these Assessments ever
lead to an actual predicated investigation resulting in criminal charges. In other words,
thousands of such Assessments were opened on innocent Americans.10

Cato's FOIA Campaign: Exposing Questionable Federal Surveillance of Domestic Groups

In an effort to build off of the prior work by the New York Times and the Brennan Center for
Justice regarding the FBI's use--or misuse--of Assessments and related investigative methods,11 in
April 2019 Cato initiated a wide-ranging FOIA campaign designed to determine whether, and at
what scale, the FBI was engaged in domestic surveillance or other forms of monitoring of
domestic civil society groups absent a legitimate criminal predicate. This FOIA effort spans a
diverse range of groups and organizations--from Arab- and Muslim Americans to those groups
working on women's rights, the Israeli-Palestinian conflict, immigration and refugee issues and
case work, professional academic societies, religious organizations, think tanks, gun rights
groups, charitable foundations, and more.

Cato also has FOIA activity and litigation underway aimed at other federal agencies and
departments suspected or known to be engaged in such surveillance or monitoring, including
components of the Departments of Homeland Security, Commerce, Defense, and the Postal
Service, among others. However, the scope of the FBI's investigative mandates, as well as its well-
documented history of engaging in such surveillance activities, make it the principal agency of
concern with respect to potential or actual violations of the constitutional rights of Americans. It
is thus the primary focus of Cato's FOIA work in the Bill of Rights context.

I should note that in the FBI context, committee staff requested that I address the issue of
social media exploitation (or SOMEX) as an investigative tool. Let me address that issue first.

Clearly, anyone who records and posts to social media sites their efforts to unlawfully
invalidate a free and fair election, attack and injure Capitol Police or other law enforcement
officers protecting the Capitol, threaten House or Senate members or staff with death or bodily
harm, or willfully cause destruction of federal property, enjoy no First or Fourth Amendment

9
Charlie Savage, “F.B.I. Casts Wide Net Under Relaxed Rules for Terror Inquiries, Data Show”, New York Times, March
26, 2011 (online edition).
10
Charlie Savage, “F.B.I. Focusing on Security Over Ordinary Crime”, New York Times, August 23, 2011 (digital edition).
11
See "Community Outreach or Intelligence Gathering?" by the Brennan Center for Justice, New York University,
January 29, 2015. Available online at https://www.brennancenter.org/our-work/research-reports/community-
outreach-or-intelligence-gathering.

5
protections for such unlawful acts and should be prosecuted under all relevant federal and local
statutes.

As for whether FBI (or any other law enforcement) agents should be permitted to scour
the internet or social media sites--at will and in an unlimited fashion, whether manually or
through the use of e-discovery tools--my answer is no. The potential for both needless First
Amendment violations and the waste of time by law enforcement argue against such an
approach.

Law enforcement investigations should be based on credible threats to violate federal laws
or credible reports that such violations have already occurred. Members of the public who believe
they have a valid tip for the FBI can use the FBI's tip line or report the tip through the FBI website.
Social media companies have generally been very cooperative with federal, state, and local law
enforcement in passing along what appear to be credible threats of violence posted on their
platforms. I also believe that the 1968 Supreme Court decision in Brandenburg v. Ohio, which I will
discuss in more detail later in this statement, is yet another reason why caution in this area is
warranted.

Let me turn now to Cato's FOIA program, its purpose, and some of our most significant
findings to date with respect to FBI domestic surveillance activities.

Over the course of the last three years, Cato has obtained via FOIA requests or litigation
specific examples of the FBI wrongfully targeting domestic civil society groups for Assessments or
other forms of investigation:

• In December 2020, Cato received an FBI FOIA response seeking information on the League
of Women Voters that revealed that in November 2011, the FBI Albany Field Office
contacted the local League of Women Voters chapter as part of a “Public Corruption” Type
3 Assessment for which there was no criminal predicate. Indeed, as the document shows,
the Albany LWV chapter initially had no idea why the FBI was contacting LWV, as the
chapter had no information alleging corruption by any member of the New York state
legislature. After a subsequent meeting with LWV officials, the FBI agents memorialized
the conversation with the LWV chapter members, describing constitutionally protected
activities by not only LWV but other civil society organizations in New York state.12

• In April 2021, Cato made public FBI documents showing that the Bureau is surveilling First
Amendment protected public protests and educational activities, including a University of
Oregon coordinated “kayak field trip,” organized by groups opposing the Jordan Cove
liquified natural gas (LNG) terminal project in Coos Bay, Oregon. The FBI monitoring took
place despite the fact that there is no physical LNG infrastructure in place yet.13

FBI Albany Field Office FD-542 Type 3 Assessment, November 8, 2011. Obtained via FOIA by the Cato Institute.
12

Jordan Cove Pipeline Protests: Is the FBI Still Spying on Activists, CATO Institute (Apr. 29, 2021) (online at
13

www.cato.org/commentary/jordan-cove-pipeline-protests-fbi-still-spying-activists).

6
 • In July 2021, Cato received an FBI "charity Assessment" from July 2016 that targeted
Concerned Women for America (CWA) in the absence of any criminal predicate.14 I note
that CWA is a strong "right to life" focused organization. That the FBI would target an
openly religiously focused nonprofit organization is a throwback to the worst abuses of
the COINTELPRO era.

• Additional documents obtained by Cato via FOIA during the 2020-2021 period also show
FBI has opened assessments to surveil domestic political and religious organizations
serving Muslim communities, such as the Massachusetts-based Muslim Justice League
and the Denver, Colorado, chapter of the International Rescue Committee, allegedly to
assist these groups in identifying potential terrorists in their communities.15

I should further note that Cato has received FBI FOIA responses confirming the targeting
of other domestic civil society groups with Assessments, apparently absent a criminal predicate.
When Cato receives such responses, our policy is to reach out to the affected group to determine
whether they would prefer that Cato publish or not publish that material. When asked not to
publish, Cato abides by the request out of respect for a group's concern about potential
reputational impact. This form of "chilling effect" is another pernicious aspect of FBI's domestic
surveillance activities.

Some might suggest that while the incidents described above are disturbing, they may
only represent outliers of investigative overreach. The FBI's own internal audits show otherwise.

Cato's concerns about the scope of FBI targeting of domestic persons or groups engaged in
First Amendment protected activity have only been heightened by revelations from another of our
FOIA lawsuits against FBI, Cato v. FBI, 21-CV-2434, which seeks FBI records regarding "significant
DIOG noncompliance incidents" from October 1, 2008, through September 14, 2020. In March
2022, Cato shared some of the initial FBI Inspection Division (INSD) DIOG noncompliance audit
reports we had obtained via the litigation with the Washington Times.

In a story published on March 11, 2022, the Times noted that "FBI agents violated agency
rules at least 747 times in 18 months while conducting investigations involving politicians,
candidates, religious groups, news media and others." The violations "included agents’ failure to
obtain approval from senior FBI officials to start an investigation, failure to document a necessary
legal review before opening an investigation and failure to tell prosecutors what they were
doing."16 Those revelations caused several House members to subsequently question the veracity
of FBI Director Chris Wray's prior assurances to the House Judiciary Committee that FBI
investigations were conducted “with proper predication” and did not target domestic civil society
groups on the basis of their First Amendment protected activities.17

14
Patrick Eddington, “The FBI’s unjustified targeting of Concerned Women for America”, The Orange County Register
(July 14, 2021). https://www.ocregister.com/2021/07/14/the-fbis-unjustified-targeting-of-concerned-women-for-
america/
15
FBI “Assessments”: Cato FOIA Lawsuit Edition, Cato Institute (Apr. 16, 2021) (online at www.cato.org/blog/fbi-
assessments-cato-foia-lawsuit-edition).
16
Ryan Lovelace, "EXCLUSIVE: Audit reveals FBI rule-breaking in probes involving politicians, religious groups,
media," Washington Times, March 11, 2022 (online edition).
17
Ryan Lovelace, "Lawmakers question if FBI director misled Congress after audit revealed agents' rule-breaking,
Washington Times, March 22, 2022 (online edition).

7
 Of particular note is the FBI's policy of sharing closed Assessments, including closed
"Sensitive Investigative Matter" (SIM) Assessments (discussed in more detail below), with
entities outside of the FBI.

The FBI INSD DIOG noncompliance audit from October 2018 (obtained via the FOIA
litigation described above) revealed the following on pp. 5-6:

Moreover, any FBI employee who shares information outside the FBI from such a closed
Assessment file must ensure the following caveat is included in the dissemination: "This
person [or group] was identified during an Assessment but no information was developed
at that time that warranted further investigation of the person [or group]."18

The audit noted that "closed Assessments were missing the required caveat language."19 Thus, any
closed Assessments shared with entities outside FBI that lacked the caveat language would give
the receiving entity the impression that the person or group targeted in the Assessment was still a
subject of active FBI investigation.

In theory, after an integration of the FBI's SENTINEL case management system with
another, unidentified FBI database or program (redacted in the 2018 INSD audit) in July 2017, the
caveat language in question was purportedly automatically added to case files as they were
closed.20 Even so, other law enforcement and intelligence organizations--whether at the federal,
state, or local level--who receive closed Assessments with the caveat language will likely be under
the impression, based on the FBI's status and reputation, that Bureau agents would not have
opened an Assessment on a particular person or group absent a belief the person or group
represented a threat at some level.

At present, Cato is engaged in FOIA litigation against FBI (Cato v. FBI, 21-CV-1054) seeking
copies of all Type 1/2 and Type 3 Assessments, especially those involving FBI SIMs, which are
defined in Section 10 of the DIOG as

an investigative matter involving the activities of a domestic public official or

domestic political candidate (involving corruption or a threat to the national
security), a religious or domestic political organization or individual prominent in
such an organization, or the news media ; an investigative matter having an
academic nexus ; or any other matter which, in the judgment of the official
authorizing the investigation, should be brought to the attention of FBI
Headquarters (FBIHQ) and other DOJ officials. (Attorney General's Guidelines for
Domestic FBI Operations (AGG Dom), Part VII.N.) As a matter of FBI policy,
"judgment" means that the decision of the authorizing official is discretionary.21

18
FBI Inspection Division, External Audit and Compliance Section, Compliance and Mitigation Unit: 2018 Domestic
Investigations and Operations Guide Audit, 10/10/2018--10/19/2018, pp. 5-6. Obtained via FOIA litigation in Cato v. FBI,
21-CV-2434.
19
Ibid., p. 6.
20
Ibid.
21
FBI Domestic Investigations and Operations Guide (DIOG), Section 10.1.2.1, p. 10-1, version dated September 2016.

8
The Justice Department's March 18, 2022, motion for summary judgment in our case admits that
the FBI has identified nearly 76,000 Assessments that may be responsive to Cato's FOIA request--
an absolutely staggering figure.22 The Justice Department has yet to reveal to Cato or the court
exactly how many of these Assessments involve SIMs.

So far as I am aware, the abandonment of the traditional 4th Amendment probable cause
standard in connection with the creation and use of Assessments has done nothing to detect
actual plots or prevent violence, even as it has led to FBI monitoring individuals and groups with
politically repellant views while missing real plots unfold (i.e., the "Underwear Bomber," the
Pulse night club shooter, etc.). Indeed, based on the tiny number of Assessments that are
converted to Preliminary or Full investigations, I believe the FBI's use of Assessments has likely
contributed to a bureaucratic "paper chase" that makes it more difficult to focus in on real,
potentially lethal threats, in addition to causing the FBI to collect data on individuals and groups
who are engaged in First Amendment protected activities. Accordingly, Congress should consider
legislation that would mandate a pure, constitutional, probable cause-based standard for any
investigation initiated by any federal law enforcement agency.

Detecting Real Threats: The Challenges

The public's desire to see all potential threats, particularly terrorist threats, thwarted
before lives are lost is natural and understandable. Unfortunately, past experience and existing
published, peer-reviewed research tells us that this a goal is unattainable. A key reason is that, as
the FBI itself has acknowledged in an internal study in 2012, there is no way to predict who will
become the next Mohamed Atta or Timothy McVeigh.23

Also of note is an October 5, 2021, Council on Criminal Justice (CCJ) report on major
criminal justice trends, based on CCJ's analysis of the FBI's aggregated annual crime information
reported by law enforcement agencies nationwide. As CCJ observed, the homicide clearance rate
has declined from a high of 82% in 1976 to 50% by 2020.24

The fact that half of murders go unsolved should be a warning sign that the notion that
the FBI or any other law enforcement agency can, with any consistency or precision, predict,
much less preempt, potential violent acts is a public policy version of magical thinking. Even so,
the FBI has attempted to predict and preempt would-be domestic terrorists, in spite of the
findings of its own internal study on radicalization showing such efforts to be essentially futile.

Indeed, FBI reports obtained by Cato via FOIA on multiple white-supremacist or militia
groups, some of which have been the subject of FBI investigation in connection with the events on
January 6, 2021, clearly show active FBI use of Assessments or even regular Preliminary or Full
Investigations to monitor the activities of such groups for over a decade before the U.S. Capitol
was stormed.

22
Declaration of Michael G. Seidel, Section Chief, Record/Information Dissemination Section, Information
Management Division, Federal Bureau of Investigation in Cato v. FBI, 21-CV-1054, p. 10.
23
Murtaza Hussain and Cora Currier, ""U.S. Military Operations Are Biggest Motivation for Homegrown Terrorists,
FBI Study Finds," The Intercept, October 11, 2016.
24
Homicide Trends: What You Need to Know, Council on Criminal Justice, October 5, 2021. Available online at
https://counciloncj.org/homicide-trends-report/.

9
 A November 27, 2013, Charlotte FBI Field Office (FO) FD-1057 (Electronic Communication,
or EC) obtained by Cato via FOIA indicates that the website associated with the "Modern Militia
Movement" (https://modernmilitiamovement.com/) had been the subject of a Full Investigation
since at least March 5, 2007.25 The same EC gave specific information on the structure and most
recent activities of the Oath Keepers, including the launch of so-called "Civilization Preservation"
teams, modeled on the U.S. Army Special Forces "A-Teams"--12-man elements designed to be
"inserted into a community to train and lead the community in resistance to oppressive
regimes."26

As the full FBI EC was not released to Cato, it's unclear the extent to which the directive,
issued by Oath Keeper founder and leader Stewart Rhodes, was carried out. The data in the
portion of the EC released to Cato was obtained by the FBI via unclassified public website
searches, as well as searches of the FBI's own SENTINEL case management system. The released
portion of the report revealed no actual or alleged violations of federal law by either the
modernmilitiamovement.com or the Oath Keepers during the period in question.

Several months before Charlotte FO published its report, the Atlanta FO issued an EC on
Oath Keeper activity in the Hinesville and Savannah, Georgia areas. The July 31, 2013, Atlanta EC
on "Militia Extremists" noted a tip from a Savannah area source (redacted in the document)
claiming that Oath Keeper billboards in Hinesville and Savannah were "an effort by the Oath
Keepers to recruit U.S. Army soldiers...."27 Despite the document being designated
"Unclassified/For Official Use Only (U/FOUO)," the FBI redacted nearly all of the document under
FOIA's b7 "law enforcement" exemption. Nothing in the released portions of the document
indicated any unlawful actions by Oath Keeper elements in Georgia, as paying for billboard space
is clearly a First Amendment protected activity.

A Jacksonville FO EC of January 9, 2014, clearly part of a case designated as "Domestic

Terrorism-Sovereign Citizen Extremists," described Oath Keeper elements in or near Alachua
County, Florida attempting to recruit Alachua County Sheriff's Office personnel to join the group.
The unidentified Alachua County Sheriff's Office deputy who reported the attempted recruitment
by the Oath Keeper to the Jacksonville FBI FO noted that "a Levy County Sheriff's Office Deputy as
well as members of the Alachua County and Gainesville Fire Rescue departments were part of the
group" as well.28 The Jacksonville FO EC also noted that database and records checks on the Oath
Keeper member engaged in recruitment activity "met with negative results"--meaning that the
Oath Keeper member in question had no prior criminal record or other derogatory information in
FBI databases at the time the report was written.29

However, that same Jacksonville FO EC contained considerable data on Rhodes, the Oath
Keeper organization, and two specific, relatively recent incidents of Oath Keeper members
arrested or charged with felonious activity. An Oklahoma Oath Keeper member was charged in
January 2010 with possessing a stolen grenade launcher, while in May 2010 a George Oath Keeper
member was arrested in Tennessee "with an assault rifle...enroute to execute 24 citizens’ arrest

25
FBI Charlotte FO FD-1057 Electronic Communication (EC) of November 27, 2013, p. 6. Obtained by Cato via FOIA.
26
Ibid., p. 7.
27
FBI Atlanta FO FD-1057 EC of July 31, 2013, p. 1. Obtained by Cato via FOIA.
28
FBI Jacksonville FO FD-1057 EC of January 9, 2014, p. 2. Obtained by Cato via FOIA.
29
Ibid.

10
warrants for government officials."30 The remainder of the Jacksonville FO EC is, like many others
received by Cato, heavily redacted via FOIA b3 (the "other applicable statute" exemption, not
identified in this case) and b7, despite being designated "U/FOUO" (i.e., unclassified).

Even so, it is clear that the FBI faced no real impediments to investigating OK associated
individuals and sharing data and assisting local law enforcement with the apprehension and
charging of OK members clearly guilty of felonious--but not seditious--activity.

The FBI's investigative interest in white supremacists or militia groups has extended well
beyond the Oath Keepers, to entities such as the Traditionalist Workers Party (TWP), Patriot
Front, the Three Percenters, Patriot Prayer, Rise Above Movement, and many others. The FBI is
also receiving information from civil society groups hostile to white supremacist or militia
organizations, including information on First Amendment protected activity.

On or about May 31, 2016, the FBI Los Angeles FO received a tip from the Anti-Defamation
League (ADL) that the TWP was, according to the LA FO EC,

planning a white nationalist rally at an undisclosed location in Sacramento, California, on

6/26/2016....The time and location of the is apparently being withheld to maintain secrecy
and operational security for the event. Attendees have been encouraged not to mention
the rally prior to the event in order to ensure everyone's safety."31

TWP's efforts to keep the location and time of the rally failed.

George Granada, public information officer for the California Highway Patrol’s Capitol
Protection Section, told the Los Angeles Times that that counter-protesters swarmed toward them
(i.e., the TWP contingent) and a fight ensued.32 Fourteen people were stabbed or otherwise
injured. Three Antifa activists pled guilty to counts of unlawful assembly and were given 90 days
community service. One TWP member received a four-year prison term.33

Also of note from this episode is that the California Highway Patrol officer charged with
investigating the violence at the rally, Donovan Ayers, admitted in court proceedings that while
he investigated the political affiliations and related activities of the Antifa counter-protesters
arrested at the event, he did no such thing regarding the TWP and related white supremacist
elements.34

Such bias in law enforcement and with intelligence officials at the federal, state, and local
levels should be among the very top concerns of Members as you consider legislative and
regulatory reforms based on the Select Committee's work and findings. The aforementioned
account of OK elements in Georgia actively attempting to recruit local law enforcement and even
active duty servicemembers into the organization is clearly a concern, though white supremacist

30
Ibid., p. 3.
31
FBI Los Angeles FO EC, May 31, 2016. Obtained by Cato via FOIA.
32
Jazmine, Ulloa, John Myers, Emily Alpert Reyes, and Victoria Kim, "7 stabbed at neo-Nazi event outside Capitol in
Sacramento," Los Angeles Times, June 26, 2016 (online edition).
33
Don Thompson, "3 in melee with white supremacists plead to lesser charges," Associated Press, November 15, 2019.
34
Sam Levin, ""How a California officer protected neo-Nazis and targeted their victims," The Guardian, January 25,
2019 (online edition).

11
organizations engage in such recruitment activity as well. These recruitment activities raise a host
of fundamental questions.

Should hiring practices for law enforcement and intelligence personnel be modified to
automatically include investigations to determine whether an applicant has been or is now a
member of an "extremist" organization?

Should checks for such affiliations be added to the list of suitability screening criteria
currently used by federal law enforcement or intelligence agencies?

Should federal funding for state and local law enforcement organizations be tied to the
implementation of such screening mechanisms?

What are the constitutional implications of the implementation of such policies for job
applicants or existing federal law enforcement or intelligence personnel?

In answering at least some of these questions, our own history is a reliable guide about
how not to approach these questions.

During WW II and the Cold War, the United States implemented a federal employee
"loyalty program" that sought to ferret out Nazis/fascists and Communists or their sympathizers.
Job applicants and existing federal employees were subject to the program, which contained no
judicial or even administrative appeal process for those wrongly accused of such associations or
who had only tenuous connections with groups that were alleged or actual Soviet front
organizations. In many cases, all it took was an allegation from a co-worker or neighbor to trigger
such an investigation. Thousands of otherwise loyal employees were separated from government
service in this way.

And it was not just federal agencies and departments that engaged in such investigations.
HUAC and SISS also conducted extensive hearings and investigations into federal employee
loyalty, and of course the late Senator Joseph McCarthy (R-WI) was most infamous for his
attempts to run out of government workers he claimed (invariably falsely) were Communists or
Soviet agents.

Existing federal government employee or applicant suitability screening criteria, codified

at 5 C.F.R. § 731.202, steer clear of any overt references to political activities and associations.
However, in this connection, criteria (7) is potentially relevant and states as follows: "(7) Knowing
and willful engagement in acts or activities designed to overthrow the U.S. Government by
force."35 Also relevant are criteria (2) (criminal or dishonest conduct) and (3) (material,
intentional false statement, or deception or fraud in examination or appointment).36

There is also a critical federal court case that may have implications for any attempt to
modify suitability criteria to include reference to political ideologies viewed as extremist or even
violent in character. In its landmark 1968 decision in Brandenburg v. Ohio, the Supreme Court

35
5 CFR § 731.202 - Criteria for making suitability determinations. Viewable online at
https://www.law.cornell.edu/cfr/text/5/731.202.
36
Ibid.

12
drew a clear distinction between speech that is offensive or even hateful and speech that is
designed to incite imminent violence.

Clarence Brandenburg, a Ku Klux Klan leader in Ohio, was convicted under an Ohio
statute for “advocat[ing] … the duty, necessity, or propriety of crime, sabotage, violence, or
unlawful methods of terrorism as a means of accomplishing industrial or political reform.” When
the case ultimately made its way to the Supreme Court, the justices ruled that “Freedoms of
speech and press do not permit a State to forbid advocacy of the use of force or of law violation
except where such advocacy is directed to inciting or producing imminent lawless action and is
likely to incite or produce such action.”37

Clearly, belonging to what most people in society would consider to be an extremist,

morally repellant organization and protesting on the streets is one thing. Being an active member
of such an organization while simultaneously serving in a law enforcement capacity with the
responsibility to enforce the law--fairly and impartially regardless of race, ethnicity, religion,
gender, sexual orientation, etc.--is another.

In the case of existing law enforcement officers, regular, periodic reviews of their records--
the investigations they open, their quality, how impartial they are in obtaining and reviewing
testimony, evidence, and related facts, etc.--can provide a fairly clear indicator of whether an
officer is biased. There is nothing preventing Congress from enacting legislation to mandate such
reviews by an independent body outside of the control or influence of the leadership or rank-and-
file of a given federal law enforcement agency.

Given the ability of the human resources and investigative elements of federal agencies
and departments to avail themselves of both commercial and government databases, interviews
with co-workers, family, friends, etc. in the interview process, I believe the existing, codified
suitability criteria to be more than adequate for most cases of applicant or employee vetting.
Outside of my suggestion above, I believe Congress should approach any changes to the existing
standards with an extreme degree of caution.

Preserving The Republic: A Mission Beyond Law Enforcement's Ability

I have spent much of this statement describing the history of past domestic surveillance
abuses by the FBI and why a return to traditional Fourth Amendment-based standards in police
work are vital to prevent such abuses in the future. I have also noted the past violent acts and
potential peril to public safety and the integrity of law enforcement organizations posed by
certain types of politically extreme groups in our country. Unfortunately, these kinds of groups
have been with us in one form or another for over 150 years.

The most notorious and murderous of those groups is, of course, the Ku Klux Klan. But
even at the height of the revived Klan's power in the early 1920s, it was never able to actually
formally seize the reins of governmental power--even though many inside the federal government
were sympathetic to the Klan's twisted world view. The same was true of other extremist groups
that surfaced in the succeeding decades: the Silver Shirts, the American Nazi Party, the John Birch
Society, Aryan Nations, The Order, and so on. These groups or individuals affiliated with them

37
Brandenburg v. Ohio, 395 U.S. 444 (1969).

13
engaged in criminal conduct, including murder, but they never represented an actual threat to the
political integrity of the Republic because they never enjoyed overt, political support from existing
elected leaders.

Between November 3, 2020, and January 6, 2021, that dynamic changed.

I need not go into detail about the hundreds of investigations the FBI has underway into
that terrible day. However, there is one recent revelation that does bear mentioning. It concerns
the May 4, 2022, Department of Justice Statement of Offense in U.S. v. Williams, 22-cr-00152-
APM, in which former North Carolina Oath Keeper chapter leader William Todd Wilson admits, in
relevant part, as follows:

At the Phoenix Hotel, Rhodes gathered Wilson and other co-conspirators inside of a
private suite. Rhodes then called an individual over speaker phone. Wilson heard Rhodes
repeatedly implore the individual to tell President Trump to call upon groups like the Oath
Keepers to forcibly oppose the transfer of power. This individual denied Rhodes's request
to speak directly with President Trump. After the call ended, Rhodes stated to the group, "I
just want to fight."38

Beyond chilling. To the best of my knowledge, nothing like it has happened in American history.

A full-on, armed insurrection by Rhodes and his fellow Oath Keepers was averted—this
time. But even if ongoing and future prosecutions have the effect of destroying the Oath Keeper
organization, others may well arise in its place. The challenge for law enforcement at all levels
then will be separating those engaged in loud, offensive, but otherwise First Amendment
protected activities from those moving from simply talking about revolution to taking active steps
to foment one.

It's worth noting that the FBI does great harm to itself and the fair administration of
justice when its own agents attempt to further alleged plots that could not move forward absent
direct technical or related FBI support to the alleged plotters. The recent Wolverine Watchmen
case in Michigan is a prime example of this kind of failure, and why strict adherence to both the
Constitution and truly sound law enforcement practices is essential in such investigations.39

There are also deep reasons for alarm about how federal agencies and departments could
still potentially be suborned into committing massive violations of constitutional rights.

I'm familiar with published reports that the defeated President Trump tried, in turn, to get
the Departments of Homeland Security, Justice, and Defense to seize voting machines.40 What if
there is a next time, involving a future president who installs--with or without Senate advice and
consent--absolute loyalists in every key federal agency and department with surveillance and
coercive police powers?

38
Statement of Offense, U.S. v. William Todd Wilson, 22-cr-00152, p. 11 at 44.
39
Edward Helmore, "Michigan governor kidnap case: hardened terrorists or FBI dupes?" The Guardian, March 19,
2022 (online edition).
40
Alan Feuer, Maggie Habberman, Michael S. Schmidt, and Luke Broadwater, "Trump Had Role in Weighing
Proposals to Seize Voting Machines," New York Times, January 31, 2022 (online edition).

14
 The Attorney General Guidelines on domestic investigations could be altered to allow the
FBI to use even more intrusive investigative and surveillance techniques than currently allowed
under Assessments, absent a criminal predicate.

Could the Drug Enforcement Administration once again be used to target protestors, as
was authorized by then-Attorney General Barr in the wake of the murder of George Floyd in
2020?41

The Department of Defense could be directed to expand domestic surveillance of anti-war

or similar protestors, as it did with the infamous Counterintelligence Field Activity (CIFA) during
the Bush 43 presidency.42

The potential scenarios I've described are based on past incidents of abuse of federal
surveillance and law enforcement powers. Unless the Congress reviews--and where necessary
and possible, rescinds--on an urgent, expedited basis these and many other such authorities, the
possibility of the creation of a turn-key tyranny will loom over the nation like the proverbial
Sword of Damocles.

I thank the Select Committee for its invitation to submit my views.

41
Jason Leopold and Anthony Cormier, ""The DEA Has Been Given Permission To Investigate People Protesting
George Floyd’s Death," Buzzfeed News, June 2, 2020 (online edition).
42
Nate Anderson, ""US to shutter DoD TALON database as it works on replacement," Ars Technica, August 21, 2007
(online edition).

15