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Application of Legislation, Criminal Cases, Court Rulings

	Application of Legislation, Criminal Cases, Court Rulings

In October 2018, President Donald Trump released the United States National Counterterrorism Strategy, which largely continued many of B. Obama's strategies to prevent and combat the terrorist threat. It was followed by the Strategic Framework for Countering Terrorism and Targeted Violence, which was released in September 2019. The main conclusions of this new strategy are as follows:

  • It moved away from the widely criticized Countering Violent Extremism (CVE) program;
  • Finally, it includes domestic terrorism and all forms of non-ideologically motivated targeted violence along with violence inspired by ISIS and Al Qaeda.

In a departure from Obama's policies, Trump signed a new rule on counterterrorism operations in October 2017 that relaxed previous restrictions on counterterrorism operations involving drones and commandos. While Obama-era rules required "near certainty" that the intended target was in the strike zone, Trump's new rules reduce the required level of certainty to "reasonable certainty." "Moreover, where Obama administration policy required high-level individual screening, the new rules instead allow for a 'persistent direct action campaign' in countries where Islamic militants are active, without a specific review of each strike.

Although the U.S. government does not have the legal tools to prosecute far-right extremists as domestic terrorists, it can rely on existing law to label white supremacists and other far-right extremist groups as foreign terrorist organizations when they qualify as such and pose a threat to the United States. Thus, for the first time, the State Department has designated a far-right organization, the Russian Imperial Movement (which attempted to recruit paramilitaries in the United States), as a global terrorist organization.

Recently, there have been a number of high-profile incidents involving far-right extremists in which the accused are members of the military or veterans. The National Defense Authorization Act (FY2020) (P.L. 116-92) includes a provision requiring the Pentagon to include in relevant interviews whether any service members have witnessed and reported extremist activity in the workplace. It also requires the Secretary of Defense to examine the feasibility of screening individuals who seek to join the military for extremist and gang-related activities.

In August 2020, the Department of Justice's (DoJ) issued a comprehensive "Law Enforcement Roundtable Report on Hate Crimes" setting forth key recommendations and action steps to combat hate crime, highlighting the results of a problem-solving and action planning session by representatives of diverse law enforcement agencies, national policing organizations, and federal government leaders held in October 2018, and incorporating stakeholder feedback received from 2017 to 2020.

In 2020, the DoJ's Community Relations Service (CRS) also continued supporting college campus-related community groups as they work to prevent and respond to bias incidents and hate crimes on campuses and in cities throughout the country. In particular, CRS facilitated a virtual dialogue and planning session with Asian and Pacific Islander (API) student group leaders from California to address concerns about the rise of anti-Asian bias-related incidents. On 21 July 2020, a virtual conference was organized including a panel on government agency programs and responses to hate and bias incidents and concerns related to workplace discrimination, community safety, and bullying both in classrooms and online. Participants included representatives from the White House Initiative on Asian Americans and Pacific Islanders, Federal Bureau of Investigation, U.S. Attorney’s Office for the Eastern District of California, U.S. Equal Employment Opportunity Commission, and U.S. Department of Education. Nearly 500 people attended the virtual event.

As of 1 October 2020, the Federal Bureau of Investigation (FBI) elevated hate crimes to its highest-level national threat priority, which will increase the resources for hate crimes prevention and investigations and makes hate crimes a focus for all 56 of the Bureau’s field offices. Between June and September 2021 the FBI further held regional two-day conferences with over 100 law enforcement agencies in Denver, Louisville, San Francisco, and Philadelphia, with additional conferences scheduled before the end of the year. These conferences help local police agencies better understand federal civil rights and hate crimes laws; encourage reporting; strengthen relationships between law enforcement and local civil rights organizations; and build trust within the diverse communities they serve.

In summer 2021, the FBI deployed the Hate Crimes Data Explorer (CDE), a new tool that improves the transparency of the nation's hate crimes data. The FBI's Crime Data Explorer is a data analysis and visualization tool that aims to provide transparency, create easier access, and expand awareness of criminal, and noncriminal, law enforcement data sharing; improve accountability for law enforcement; and provide a foundation to help shape public policy with the result of a safer nation. The CDE allows users to discover available data through visualizations, download data in .csv format, and other large data files. The CDE includes hate crimes statistics going back to 1991 and allows users to view the statistics by state or by individual law enforcement agency. The CDE also has a feature that compiles and displays tables and charts for a one-year, two-year, five-year or ten-year period. Finally, on June 30, 2021, the FBI launched a National Anti-hate Crimes Campaign involving all 56 FBI field offices to encourage reporting. The campaign includes outdoor advertising, billboards, and radio streaming in addition to social media.

After assuming his office in March 2021, Attorney General Merrick B. Garland's issued a directive on a 30-day expedited internal review to determine how DoJ could deploy all the tools at its disposal to counter the recent rise in hate crimes and hate incidents. In May 2021, the Attorney General issued a comprehensive memorandum on improving DoJ’s efforts to combat hate crimes and hate incidents. The Attorney General ordered DoJ to take several steps to combat unlawful acts of hate by (1) improving incident reporting; (2) increasing law enforcement training and coordination at all levels of government; and (3) prioritizing community outreach. The Attorney General appointed a Hate Crimes Coordinator to centralize the efforts of Department attorneys, law enforcement partners, community organizations, and other stakeholders. The Coordinator oversees efforts to: establish online reporting of hate crimes; increase identification and classification of hate crimes in the National Incident-Based Reporting System (NIBRS); provide financial support for local programs that will prevent, address, or otherwise respond to hate crimes; and issue guidance aimed at raising awareness of hate crimes during the COVID-19 pandemic. Still, in May 2021, DoJ released the solicitation for a $2 million grant program to provide resources to communities to support projects devoted to promoting awareness, healing, and reconciliation, as well as service access and resource development. And this Fall, the Department will award grants of up to $300,000 to state, local, and tribal law enforcement and prosecution agencies, working with community-based partners, to conduct outreach, education, investigations, and the prosecution of hate crimes. DoJ will also award grants to law enforcement and prosecution agencies of up to $750,000 to support collaborative efforts to target hate crimes in their communities. In addition, grants under the COVID-19 Hate Crimes Act/Jabara-Heyer NO HATE Act tackle non-reporting head on by prioritizing grants for underreporting large agencies - especially those that have not reported any hate crimes in the last three years.

As a result of the George Floyd death in May, 2020 and the country-wide protests that followed, U.S. President Donald J. Trump signed an executive order on “Safe Policing for Safe Communities.” It is hoped the order will lead to comprehensive police reforms that will make the eligibility of the police for federal grants dependent on a rigorous process that will involve training regarding use of force and de-escalation techniques; performance management tools, such as early warning systems that help to identify officers who may require intervention; and best practices regarding community engagement. It is hoped that an information sharing database that will track information related to use of excessive force, including such information as the termination or decertification of law enforcement officers, criminal convictions of law enforcement officers, and instances in which an officer under investigation related to the use of force resigns or retires, will also come into being. Additionally, it is hoped that these reforms will include strategies to incorporate social workers and mental health professionals when responding to certain situations.

On 26 January 2021, the U.S. President issued a Memorandum addressing intolerance, including hate crime, against Asian American and Pacific Islander (AAPI) persons, families, communities, and businesses, in relation to the COVID-19 pandemic. The Memorandum strongly condemned any forms of such intolerance and encouraged the relevant state agencies to adopt all possible measures to address it. In March 2021, the U.S. Congress passed the "COVID-19 Hate Crimes Act" [Public Law No: 117-13 (05/20/2021), 34 U.S.C. 10101 Note]. The bill requires a designated officer or employee of the Department of Justice (DOJ) to facilitate the expedited review of hate crimes and reports of hate crimes. DoJ shall also issue guidance for state, local, and tribal law enforcement agencies on establishing online hate crime reporting processes, collecting data disaggregated by protected characteristics (e.g., race or national origin), and expanding education campaigns. Additionally, DoJ and the Department of Health and Human Services shall issue guidance aimed at raising awareness of hate crimes during the COVID-19 pandemic. The bill establishes grants for states to create state-run hate crimes reporting hotlines and authorizes grants for states and local governments to implement the National Incident-Based Reporting System and to conduct law enforcement activities or crime reduction programs to prevent, address, or respond to hate crimes. Finally, in the case of an individual convicted of a hate crime offense and placed on supervised release, the bill allows a court to order that the individual participate in educational classes or community service as a condition of supervised release.

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