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“Domestic Terrorism” Bills Create More Problems Than They Solve

A new domestic terrorism law won’t fix the FBI’s attention deficit toward white supremacist violence. Only concerted pressure from Congress and the public to properly target violent white supremacists will force the FBI to do its job.

The follow­ing origin­ally appeared in Just Secur­ity 

A mass shoot­ing by a white suprem­acist in El Paso that killed 22 people has renewed calls to enlarge the govern­ment’s powers to prosec­ute “domestic terror­ism.” Two similar bills intro­duced by Sen. Martha McSally (R – AZ) and Rep. Adam Schiff (D – CA) would allow federal prosec­utors to charge a “domestic terror­ism” offense for murders, assaults and prop­erty crimes carried out with the intent to intim­id­ate or coerce civil­ian popu­la­tions or influ­ence govern­ment policy. It would also crim­in­al­ize provid­ing support – such as money, trans­port­a­tion, equip­ment, or train­ing – to these crimes. While these propos­als may be well-inten­tioned, they are likely to be inef­fect­ive because they misdia­gnose the under­ly­ing prob­lem. There is no lack of legal author­ity to invest­ig­ate or prosec­ute perpet­rat­ors, but rather a lack of will and focus to do so. Moreover, these propos­als would danger­ously expand the defin­i­tion of “terror­ism” to include crimes that involve prop­erty destruc­tion and threats, which could, espe­cially in the current enforce­ment climate, harm polit­ical protests and advocacy protec­ted by the First Amend­ment.

Proponents of these propos­als, many of whom are former law enforce­ment offi­cials, make two main argu­ments: that a new domestic terror­ism stat­ute would allow the Federal Bureau of Invest­ig­a­tion (FBI) to catch perpet­rat­ors before they are able to carry out an attack, and that formal charges of “domestic terror­ism” would demon­strate that the govern­ment treats white suprem­acists with the same seri­ous­ness that it treats those asso­ci­ated with ISIS or other groups over­seas. Neither is convin­cing.

First, as laid out in a Bren­nan Center report on the Depart­ment of Justice (DOJ)’s Attor­ney General Guidelines for Domestic Invest­ig­a­tions, the FBI can already open invest­ig­a­tions based on next to noth­ing. FBI agents, without even a super­visor’s sign off, are author­ized to conduct “assess­ments” without suspi­cion of crim­inal activ­ity. As part of an assess­ment, agents can recruit covert inform­ants, track a person’s public move­ments, and search private and commer­cial data­bases for inform­a­tion. The only constraint is that they must have an “author­ized purpose” and a “clearly defined object­ive,” a require­ment that has been inter­preted broadly (in our view, too broadly) in invest­ig­at­ing Muslims, but surely also covers proact­ively stop­ping planned killings of African Amer­ic­ans, Jews, and Lati­nos. The FBI can go further if it receives an alleg­a­tion that a crime is being planned, open­ing a “prelim­in­ary invest­ig­a­tion” to trace phone numbers, use grand jury subpoenas to get finan­cial and inter­net records, conduct under­cover oper­a­tions and monitor private conver­sa­tions with the inform­ant’s consent. No new domestic terror­ism stat­ute is needed for the FBI to use these author­it­ies, and there are indic­a­tions that it has star­ted doing so in cases involving white suprem­acists, as recent arrests illus­trate.

Moreover, as set out in another Bren­nan Center report, Wrong Prior­it­ies on Fight­ing Terror­ism, a multi­tude of exist­ing laws already allow the federal govern­ment to form­ally invest­ig­ate white suprem­acist attacks as domestic terror­ism, even if those crimes are even­tu­ally prosec­uted as murders, hate crimes or some­thing else. Indeed, FBI policy requires it to open a domestic terror­ism invest­ig­a­tion in hate crime cases where a subject is linked to a white suprem­acist group. The choice of label is import­ant because it affects how the FBI alloc­ates resources, includ­ing how it staffs agents: the FBI treats coun­ter­ing terror­ism as its top prior­ity, yet civil rights viol­a­tions like hate crimes only rank fifth out of eight mission prior­it­ies.

In many cases, the FBI has simply chosen to treat white suprem­acist viol­ence as a hate crime even when it fits the defin­i­tion of domestic terror­ism. For example, both Dylann Roof’s murder of nine African Amer­ic­ans in a South Caro­lina church and James Field­s’s killing of Heather Heyer at a white suprem­acist rally in Char­lottes­ville, Virginia were invest­ig­ated as civil rights matters rather than as terror­ism, even though both were aimed at intim­id­at­ing a civil­ian popu­la­tion. On the civil rights front – where prosec­u­tions are likely to take the form of hate crimes charges – the Justice Depart­ment has an anemic record. Victim surveys indic­ate that about 250,000 hate crimes happen yearly, but stud­ies estim­ate that the federal govern­ment prosec­uted less than 40 of them a year between 2009 and 2016.

A new domestic terror­ism law won’t fix this atten­tion defi­cit. Only concer­ted pres­sure from Congress and the public to prop­erly target viol­ent white suprem­acists will force the FBI to do its job.

But a new domestic terror­ism stat­ute will undoubtedly magnify the impact of exist­ing enforce­ment dispar­it­ies, rais­ing seri­ous civil rights and liber­ties concerns. While members of Congress may be think­ing about target­ing white suprem­acists with these new bills, the FBI’s enforce­ment prior­it­ies will drive who actu­ally gets invest­ig­ated and prosec­uted. Less than 15 years ago, the FBI called “ecoter­ror­ists” – who haven’t killed anyone in the United States – the fore­most domestic prob­lem. Most recently, it has focused atten­tion on the ficti­tious threat of “black iden­tity extrem­ists,” as a means of target­ing people protest­ing police viol­ence against minor­ity communit­ies.

The Schiff proposal tries to safe­guard against such manip­u­la­tion, but its require­ments are far too weak.  For example, it would require the Attor­ney General to sign off on these prosec­u­tions, which provides little reas­sur­ance given the increas­ing politi­ciz­a­tion of the Justice Depart­ment. (Schiff himself has called Attor­ney General Bill Barr the “second-most danger­ous man in the coun­try.”) The Schiff bill would also require the Privacy and Civil Liber­ties Over­sight Board, an exec­ut­ive branch watch­dog, to consult with Congress and issue a report to the public on civil liber­ties issues stem­ming from invest­ig­a­tions and prosec­u­tion under a new law. But it would­n’t be due until four years – a whole pres­id­en­tial term – after the law took effect. Moreover, if there’s anything we can be sure about, it’s that new laws to fight terror­ism are tough to roll back once they’re on the books, even if they’re later found to be inef­fect­ive or consti­tu­tion­ally prob­lem­atic.

The proposed laws also would danger­ously broaden the defin­i­tion of terror­ism. The intent require­ment – “seek­ing to intim­id­ate or coerce civil­ian popu­la­tions” – can easily be twis­ted to cover protest­ors or activ­ists, espe­cially when it comes to prop­erty damage. In the wake of El Paso, prom­in­ent U.S. Senat­ors and the pres­id­ent have already sought to deflect atten­tion from white suprem­acists by brand­ing anti-fascist protest­ors as domestic terror­ists. During protests follow­ing the 2017 pres­id­en­tial inaug­ur­a­tion, the DOJ tried to use anti-riot­ing laws to prosec­ute over 200 people who were near places where cars were damaged and windows were shattered. The new bills would risk brand­ing such protest­ors as terror­ists.

Instead of a new law, what we need is a more robust account­ing of white suprem­acist viol­ence, and an appro­pri­ate focus on it. While the McSally proposal requires the DOJ, the FBI, and the Depart­ment of Home­land Secur­ity to give Congress and the public more inform­a­tion about domestic terror­ism invest­ig­a­tions and prosec­u­tions, it does not go far enough. The bill requires a look­back report from 1995 to the present on the number of domestic terror­ism incid­ents and the deaths and injur­ies result­ing from them, but it does­n’t require details about the perpet­rat­ors or organ­iz­a­tions involved, prevent­ing an account­ing of white suprem­acist viol­ence. Since the FBI has long labeled most white suprem­acist viol­ence as hate crimes or gang crimes rather than domestic terror­ism, this histor­ical data will present a skewed picture. Dylann Roof’s rampage and Heather Heyer’s murder, for example, would likely be excluded from such an account­ing. The bill does a little better with annual forward-look­ing reports, which must also contain “a detailed explan­a­tion of each [domestic terror­ism] incid­ent.” But it does­n’t require the disclos­ure of the policy decisions that inform enforce­ment prior­it­ies or any inform­a­tion on how the FBI categor­izes and clas­si­fies cases, which is crit­ical to under­stand­ing who the FBI is target­ing under its substan­tial counter-terror­ism author­it­ies. In contrast, the Domestic Terror­ism DATA Act intro­duced by Rep. Bennie Thompson (D- MS) contains far more gran­u­lar report­ing provi­sions, which would actu­ally give Congress more of the tools it needs to formu­late effect­ive and rights-respect­ing policies to address white suprem­acist viol­ence.

Every first-year lawyer is told that hard cases make bad law. We agree that our nation’s law enforce­ment community needs to make address­ing white suprem­acist viol­ence a prior­ity, and that Congress should ensure that happens.  However, we need to avoid going down a path that will not make minor­ity communit­ies any safer, but instead further open the door to discrim­in­at­ory target­ing.