Holding the Line on a New Domestic Terrorism Bill
The insurrection on January 6 has re-ignited policy debates on Domestic Terrorism. Those debates which began in the mid 90s in OKC after bombing of Alfred Murrah Federal Building were exacerbated in 2019 after a series of white supremacist terrorist attacks in Poway, Pittsburgh, Austin, and Christchurch, among other places. As national attention turned to the Democratic primary and then, eventually, to the spread of COVID-19, those policy debates stalled. After the insurrection, however, President-Elect Joe Biden committed to a policy position that had been staked out back in 2019: passage of a federal crime of domestic terrorism. Biden also went further, intimating his intention to create a White House post overseeing the fight against ideologically inspired violent extremists and increasing funding to combat them.
Back in 2019, MPAC decided to engage in these policy debates. We knew the American Muslim community stands to be impacted, one way or another, by the government approach to domestic terrorism: either the government response will maintain the law enforcement apparatus that disproportionately targets our community, or it will combat an ideology that targets our community. In 2019, we wrote a policy paper on “The White Supremacist Threat to America,” hosted the House Judiciary Committee Chairman at a community forum, and engaged Homeland Security on a plan to protect houses of worship.
The legislative landscape has shifted since then, however. Momentum is trending toward passage of legislation on the very serious issue of domestic terrorism and white supremacy. In this context, it is more important than ever to hold true to our principles on these issues and ensure that our Congressional response neither threatens civil liberties nor avoids present problems in our law enforcement apparatus.
Importantly, the policy debate is currently being framed by government officials. Over the last four years, agency officials, and former officials now in the private sector, have argued that law enforcement institutions lack the authorities needed to investigate, prosecute, and ultimately charge domestic terrorists, which, according to the statutory definition codified as part of the USA Patriot Act in section 2331 of title 18 in the U.S. Code are people who perform an activity “within the territorial jurisdiction of the United States that is “dangerous to human life” and is “a violation of the criminal laws of the United States”, while appearing to be intended either “to affect the conduct of a government by mass destruction, assassination, or kidnapping” or “to intimidate or coerce” either “a civilian population” or “the policy of a government.”
In a House Financial Services Committee hearing on two pieces of legislation designed to address the financial transaction networks of domestic terrorists, Mary B. McCord, a Georgetown law professor and a former high-ranking official in the DOJ, has called for a domestic terrorism statute that would allow the DOJ to coordinate and approve record-keeping and data analysis through its National Security Division, direct more resources toward the pressing threat of domestic terrorism, and consolidate its statutory permissions and investigative tactics (such as “online undercover personas and sting operations”) under all of its counter-terror operations, not just those against “international” terrorism (which covers so-called “jihadi”-inspired terrorism), all while being subject to public oversight and the review from the Privacy and Civil Liberties Oversight Board (PCLOB) within the Executive branch.
Of course, law enforcement has significant authority to address the recent rise in domestic terrorism. The Justice Department has 57 “federal crimes of terrorism” which, according to analysis from the Brennan Center, include 51 that are applicable to domestic terrorism. They also have the 5 separate hate crimes bills which Congress passed between 1968 and 2009, all of which give them broad authority to prosecute actors whose actions may be classified as domestic terrorism. The DOJ also has at its disposal the Racketeering Influenced and Corrupt Organization Act (better known as RICO), which criminalizes 35 offenses broadly understood as supporting threats or acts of violence which affect interstate or foreign commerce. Law enforcement could also invoke some of the other investigatorial licenses, such as FISA law, material support charges, and the issuance of National Security Letters (NSLs) through developing better internal policies to govern their treatment of both ‘international’ and ‘domestic’ terrorism. The relevant question is whether these authorities are sufficient for the growing threat.
To that end, we should seek greater transparency as to the internal policies governing our law enforcement agencies’ approach to white supremacist terrorism. To this point, it has been a demonstrative failure. Of course, there is not much evidence as to the scope of their investigations and understandings of organized white supremacy. One of the reasons for that is that the FBI employs an ambiguous domestic terrorism classification system on which they do not offer detailed public reports.
In April of 2019, the FBI replaced their old classification system, which had 11 different categories including one specific grouping for white supremacists. Their new system only employs four categories:
- “racially motivated violent extremism”
- “anti-government and anti-authority extremism”
- “animal rights and environmental extremism”
- “abortion extremism”
By referring to white supremacist terrorism as “domestic terrorism,” then, the federal government is exclusively referring to the “racially motivated violent extremism” (RMVE) category.
This is problematic for a number of reasons. For one, RMVE includes other forms of activity which are fundamentally different from that of white supremacist terrorism. The dubious “black identity extremist” (BIE) category, for instance, falls under the RMVE category. There is, of course, no such thing as a movement of black identity extremists, while organized white supremacy is a real movement. More importantly, BIE and white supremacists have two fundamentally different relationships with law enforcement. As part of their broader strategy, white supremacists have attempted to infiltrate law enforcement agencies. In 2006, the FBI created an internal intelligence memo detailing this exact threat. BIE, on the other hand, was created to refer to the black organizers who began protesting police brutality after the string of police killings of unarmed black teenagers in 2014. Any classification system which pairs them together is a failed system.understands white supremacist terrorism as a form of domestic terrorism for the simple fact that its perpetrators are white.
The FBI employs an ambiguous and potentially racialized domestic terrorism classification system. This is made clear by the fact that similar activities carried out by Muslim perpetrators are understood as “jihadi”-inspired, and therefore categorized as ‘homegrown violent extremism’ and then investigated and prosecuted as ‘international terrorism.’ To this day, no adequate explanation has been offered for this systemic problem in counter-terror investigations.
Of course, organized white supremacy does not only manifest in acts of domestic terrorism. In “The White Supremacist Threat to America,” we detailed the international scope and coordination of the organized white supremacist movement. In some cases, organized white supremacy should be understood, investigated, and prosecuted as a form of international terrorism.
In her extensive writings on the white supremacist movement, historian Kathleen Belew points out the international connections between different white supremacist groups. Starting as far back as the 1980s, groups like the Aryan Nations began convening gatherings of white supremacist groups from around the world. They distributed propagandic materials to activists and organizations in countries like Australia and New Zealand, and formulated the early stages of the “leaderless resistance” strategy which is still in effect today. The globally interconnected nature of American white supremacist groups has also been pointed out in the Brennan Center by Michael German, a leading expert on counter-terrorism.
This global scope necessitates a more robust communication network. As Belew brings to light, white supremacist organizing has a decades-long history on social media, dating all the way back to the 1980s. Starting in 1983, white power movements began formulating “an anti-government social movement” on message boards such as LibertyNet. Belew calls white supremacists “pioneers of these strategies that have proven incredibly effective at radicalizing people and bringing about social change in all kinds of different registers around the world.” They deliberately plotted and organized “cell-style terrorism” and sought “to recruit a highly dedicated cadre of totally committed activists” in order to achieve their vision of “a racial nation that would be transnational in scope and … based on the idea that white people are the chosen people.” The strategies implemented by white supremacist movements in the white supremacist message boards during the ’80s and ’90s “included not only assassination lists and ideological content; they also included things like personal ads and religious information.”
Through these message boards, white supremacist organizers skirted U.S. laws designed to prohibit the international distribution of hate literature. They also planned the very protest which led to the insurrection on the Capitol building last week. These networks can be better understood, mapped, and investigated under the current list of criminal statutes. H.R.5132, the Gun Violence Prevention Through Financial Intelligence Act introduced by Rep. Jennifer Wexton, would go a long way toward this end, though the bill must be improved upon.
Of course, domestic terrorism investigations are not the only means of countering white supremacist terrorism. Oftentimes, the actions taken by white supremacists can be sufficiently investigated and prosecuted in accordance with existing laws against hate crimes. However, the current system for reporting and recording hate crimes across local, state, and federal governments is woefully insufficient, as we covered in our white paper: “Communities Under Assault.” We can and will work to pass a new law to streamline our hate crimes reporting and data collection process across our government bodies.
We can work to ensure that law enforcement practices are augmented with more stringent guidelines, such as those proposed by Massachusetts Senator Stephen Lynch [D-MS] in 2013. We can also ensure that counter-terror investigations are subject to greater oversight, as they would be upon passage of Senator Dick Durbin’s [D-IL], Domestic Terrorism Prevention Act.
All of these options, and more, can be explored prior to passing a new federal crime of domestic terrorism.
Over the years, the FBI and DOJ focused a disproportionate amount of their agencies’ attention on “homegrown violent extremist” terrorism despite a global rise in white supremacist terrorist violence. Under the guise of HVE investigations, the FBI initiated investigations into many Muslims they also presumed guilty. They deployed a network of informants and provocateurs whose sole job was to infiltrate American Muslim communities, gain trust, and deliver information to the FBI and its satellites. As American Muslims, we know the impact such practices have on communities. We must work toward end abusive practices everywhere, not just in our communities.
In this context, it makes sense to point the finger and ask for equal treatment. But equal treatment in what sense? We should not allow law enforcement to repeat the same mistake they made with ‘homegrown violent extremism’. A shared burden of presumed guilt is easy; the more difficult work is to ensure collective responsibility. We can work to ensure that the general public has greater oversight of counter-terror investigations and that no person becomes suspect without the legal and rigorous pretense for suspicion in the first place. We can work to keep our communities safe by doing the same for all communities.