For years, the federal government has avoided calling domestic terrorists what they are. Federal law doesn’t treat domestic terrorism as a stand-alone crime. And federal prosecutors are trained to avoid labeling people as terrorists unless they’re facing terrorism-related charges.
Now there are signs the government wants that to change. Recently, an organization of FBI agents began lobbying Congress to pass a law that would make it easier to charge domestic extremists as terrorists. One of the nation’s top federal prosecutors agrees. And Democrats, who recently won control of the House of Representatives for the first time in eight years, are turning a critical eye toward the federal government’s disparate treatment of domestic and international terrorism.
House legislators are planning hearings addressing domestic terrorism. And this week, Sen. Dick Durbin (D-Ill.) and Rep. Brad Schneider (D-Ill) are reintroducing the Domestic Terrorism Prevention Act, which would require the Department of Justice, the FBI and the Department of Homeland Security to issue joint annual reports on the threat of domestic terrorism. “I’m sure that the American people don’t fully understand the extent of the risk,” Schneider told HuffPost.
But a new law broadly criminalizing domestic terrorism would be a stretch politically. President Donald Trump claims white supremacy isn’t a big problem. And even those who recognize the threat from far-right extremists are split over whether a domestic terrorism law would help address it. Some civil liberties advocates warn that a domestic terrorism law modeled after the statutes that apply to international terrorism would violate First Amendment protections and could be used to go after groups like Black Lives Matter, antifascist organizations, or environmental organizations.
Prosecutors already have plenty of ways to put domestic terrorists behind bars, opponents of a new law argue. For example, the federal government never brought federal terrorism charges against Dylann Roof (the white supremacist who slaughtered nine black churchgoers in Charleston in 2015), James Alex Fields (the neo-Nazi who mowed down anti-fascist protesters in Charlottesville and killed Heather Heyer in 2017), or Robert Bowers (who killed 11 people inside the Tree of Life Synagogue in Pittsburgh in 2018). That didn’t stop prosecutors from bringing federal charges that already have or likely will send those men to federal prison for the rest of their lives.
Supporters of a domestic terror statute say those cases illustrate how non-Muslims escape the terrorist label even when they commit violence intended to terrify and provoke political change. People like Roof, Fields and Bowers, the thinking goes, should be placed in the same moral category as members of ISIS or al Qaeda.
Some of this is a philosophical debate about which sorts of attacks are terrorism and which aren’t. But there are more practical considerations as well, as illustrated by the recent case of Coast Guard lieutenant Christopher Hasson, whom the feds say stockpiled weapons, wrote about killing people to establish a white ethnostate, and drafted a list of left-leaning politicians and media figures to kill. Federal prosecutors, in a memo arguing for Hasson’s detention, labeled him a “domestic terrorist, bent on committing acts dangerous to human life that are intended to affect governmental conduct.”
Labeling Hasson a “domestic terrorist” was an unusual step. But he isn’t facing any terrorism-related charges, although he was charged with other crimes. And the current lack of a statute is part of the reason why.
Federal Law Makes It Difficult to Charge White Supremacist Terrorists As Terrorists
Domestic terrorism is already defined under federal law — there just aren’t any criminal penalties associated with the definition. Federal law defines domestic terrorism as actions dangerous to human life that:
violate federal or state criminal law
appear intended to intimidate or coerce civilians; to influence government policy by intimidation or coercion; or to impact government conduct by mass destruction, assassination, or kidnapping, and
occur within the U.S.
There are cases in which domestic extremists can face federal terrorism charges. Michael German, who infiltrated extremist groups as a former FBI agent, wrote a report last year identifying 51 terrorism charges that could apply to both international and domestic acts. But most of those charges relate to hyper-specific scenarios — things like destroying an airplane, producing the smallpox virus, taking a hostage, making a threat involving weapons of mass destruction, or attacking a mass transportation system.
Because of the government’s broad definition of a “weapon of mass destruction,” several extremist plots involving bombs have been prosecuted as acts of terror. Three right-wing extremists who were recorded by an FBI informant plotting to use a bomb to kill Muslim refugees in Kansas were convicted on terrorism-related charges last year. Later that year, the feds accused Cesar Sayoc — the Trump enthusiast charged in connection with mailing bombs to Democratic politicians and members of the media — of organizing a “domestic terrorist attack” because his poorly made improvised explosive devices qualified as weapons of mass destruction.
And because of the language related to attacking a mass transport system, prosecutors were able to use domestic terrorism charges against Taylor Michael Wilson, a neo-Nazi who disabled an Amtrak train, declared himself the conductor, and claimed he was “trying to save the train from black people.” Wilson was sentenced last year to 14 years in prison.
But cases like Sayoc’s and Wilson’s are exceptions, and the most commonly charged terrorism-related statutes are more applicable to Islamic State supporters than to violent neo-Nazis. It’s against federal law, for example, to provide support or resources to any group the U.S. government designates as a foreign terrorist organization. Law enforcement officials claim this charge has helped thwart attacks within the U.S. and abroad from groups like al Qaeda and ISIS and that it deters people from joining extremist groups.
The law has also incentivized the FBI to orchestrate intricate sting operations that critics say border on entrapment. In 2016, for example, a Muslim American police officer named Nicholas Young was arrested on material support charges after an FBI informant befriended him, pretended to join ISIS and begged him for money. Young sent him a $245 gift card. He was sentenced to 15 years in prison.
Because of freedom of speech and association protections under the First Amendment, it would be “fairly disastrous” to start designating domestic groups as terrorist organizations, Ken White, a First Amendment expert and a lawyer at Brown White & Osborn, said in an interview. “For everyone who wants to put the Ku Klux Klan on the list, someone wants to put Black Lives Matter on the list,” he said.
When domestic extremists are arrested before they kill anyone, they don’t face the same type of charges that they would if they were Islamic extremists. They tend to face lighter punishments.
There’s a much higher bar for prosecuting a domestic extremist than there would be for prosecuting a fan of ISIS.
Hasson, the Coast Guard lieutenant prosecutors called a “domestic terrorist,” faces only a drug possession charge and an obscure, rarely used gun charge: possessing a firearm while using or being addicted to a controlled substance. Jeffrey Clark, a D.C.-based neo-Nazi who marched in white nationalist rallies and predicted that pipe bombs being sent to prominent Democrats was a “dry run for things to come,” is facing the same controversial gun charge.
And in 2017, when a white supremacist named Benjamin McDowell told an undercover FBI agent he wanted to commit a “fucking big-scale” attack “in the spirit of Dylann Roof,” he was sentenced to less than three years in prison after copping a plea on a single count of being a felon in possession of a firearm.
The gap between laws the feds can use against Islamic radicals and those they can use against domestic extremists affects the types of investigations they launch. There’s a much higher bar for prosecuting a domestic extremist than there would be for prosecuting a fan of ISIS, for example.
“If you’re an FBI agent and you pull a material support for terrorism case and you bring it to fruition, that’s looked very highly upon within the bureau and within DOJ,” said Seamus Hughes, a former government counterterrorism official who now closely tracks terrorism cases as deputy director of George Washington University’s Program on Extremism. “It’s not going to have the same level of importance if you charge someone with a gun charge who’s a white supremacist.”
The Push For A New Law — And Resistance From Civil Liberties Experts
Law enforcement officials have floated the idea of a new law that would make it easier to prosecute domestic actors as terrorists for years. But the idea has gained traction recently in response to several high-profile attacks from white supremacists who were not prosecuted as terrorists.
Former DOJ official Mary McCord and former State Department official Jason Blazakis mapped out one proposal for this new law in February. They suggested making it a federal crime to commit acts of violence with any of the intentions laid out in the definition of domestic terrorism: intimidating civilians, influencing government policy, or influencing government conduct.
Under this proposed law, Hasson, the white supremacist Coast Guard lieutenant, could have been charged with providing material support to terrorists because he was stockpiling weapons with the intention of committing domestic terrorism, McCord and Blazakis wrote.
As it stands, McCord told HuffPost, terrorism laws on the books “don’t apply to most acts of domestic terrorism that involve a gun or a vehicle, which are the popular means right now of committing these types of offenses.”
McCord said any new law could be passed alongside oversight measures to ensure that the tools weren’t being used improperly, including yearly reports on the types of cases the FBI was investigating and DOJ prosecuting under the law.
We don’t need the government going into everybody’s private journal and seeing what they were imagining they might do.”
Former FBI agent Michael German
But the idea of relying on congressional oversight ― which failed to rein in law enforcement’s use of international terrorism laws to profile and target Muslims ― to prevent abuse of a new law doesn’t inspire much confidence among critics.
It is already illegal to attempt or conspire to commit violence. “Appropriately, there aren’t statutes against thinking about committing a crime,” said German, the former FBI agent. “We don’t need the government going into everybody’s private journal and seeing what they were imagining they might do.”
The U.S. has a long history of using law enforcement to suppress political movements, and modern-day fears that the federal government might use a domestic terrorism law to crack down on political speech aren’t unwarranted. In 2017, the government charged more than 200 people arrested at Trump’s inauguration with felonies, arguing they were part of a rioting conspiracy. After striking out at two trials, the government dropped charges against all remaining defendants.
It’s understandable that people want the weighty terrorism label that has long been reserved primarily for Muslim actors to be applied more broadly, Hina Shamsi, the director of the ACLU’s National Security Project, said in an interview. “But we shouldn’t be using tools that law enforcement has long used to suppress and oppress minorities to address the scourge of white supremacy,” she argued.
Law enforcement already has the tools to go after white supremacists, German said. Officials just need to prioritize going after them.
The FBI says it’s doing just that. About 900 of the FBI’s 5,000 open terrorism investigations are focused on domestic terrorism, according to statistics the FBI shared with HuffPost and other media outlets. In both the 2017 and 2018 fiscal years, more of the individuals identified by the FBI as domestic terrorism suspects were arrested than those the FBI identified as international terrorism suspects: about 270 domestic terrorism suspects over two years compared to about 210 international terrorism suspects.
But it’s still difficult for the public to know what the bureau is doing on the issue, said Josh Zive, outside counsel for the FBI Agents Association, which has been pushing Congress to pass a domestic terrorism law.
Creating a new domestic terrorism law would do a lot to convince the public that FBI agents are taking the matter seriously, Zive argued.
“Generally speaking, people who commit acts of terrorism do get punished,” he said. “The problem is that the message that you want sent by that punishment gets lost in the confusion over whether or not they’re being treated the same at other terrorists.”