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Why New Laws Aren’t Needed to Take Domestic Terrorism More Seriously

The government already has plenty of tools to address far-right violence, but not the right priorities.

December 14, 2018

Cross-posted from Just Secur­ity.

Over at Lawfare last week, former Justice Depart­ment offi­cial Mary McCord used the Octo­ber attack on the Tree of Life synagogue in Pitt­s­burgh to reprise her argu­ment that we need a new law to tackle domestic terror­ism. She and other DOJ offi­cials have long respon­ded to public concerns about the federal govern­ment’s lackluster response to racist, nativ­ist, homo­phobic, Islamo­phobic, and anti-Semitic viol­ence from the far-right by call­ing on Congress to pass a new domestic terror­ism law. But the claim that exist­ing terror­ism stat­utes are insuf­fi­cient is false, and the Justice Depart­ment’s insist­ence on new powers deserves scru­tiny given its penchant for using terror­ism author­it­ies to suppress protests.

Congress has given the federal govern­ment substan­tial tools to address far-right viol­ence. McCord’s claim that a new stat­ute is neces­sary to fulfill a “moral urgency” to call far-right viol­ence “terror­ism” ignores that Congress already gave federal prosec­utors the author­ity to use this term when it codi­fied a defin­i­tion of “domestic terror­ism” in federal crim­inal law in 2001. Her argu­ment that defend­ants might complain about prosec­utors refer­en­cing this stat­ute to label their crimes, is specious. When an act of far-right viol­ence meets the stat­utory defin­i­tion, govern­ment offi­cials should not hesit­ate to use the term and prior­it­ize the case appro­pri­ately. The truth is that the Justice Depart­ment’s inat­ten­tion to far-right viol­ence is a matter of long­stand­ing policy and prac­tice, not a lack of author­ity, as we at the Bren­nan Center for Justice at NYU Law School wrote in our recent study, “Wrong Prior­it­ies in Fight­ing Terror­ism.”

Indeed, FBI policy instructs agents to open a paral­lel “domestic terror­ism” invest­ig­a­tion whenever a suspect in a hate crimes invest­ig­a­tion “has a nexus to any type of white suprem­acist extrem­ist group.” This policy should have applied to its invest­ig­a­tions of alleged Pitt­s­burgh synagogue shooter Robert Bowers and James Alex Fields, the Neo Nazi who killed Heather Heyer in Char­lottes­ville, Va. McCord refer­ences both of these cases as examples of where the law is insuf­fi­cient. Not only does the law allow DOJ offi­cials to call these crimes acts of domestic terror­ism, FBI policy demands they be invest­ig­ated as such. Perhaps that is why then-Attor­ney General Jeff Sessions appro­pri­ately labeled Fields’ Char­lottes­ville attack an act of “domestic terror­ism” at the time.

McCord and her former colleagues making similar argu­ments are correct in saying that the stat­ute defin­ing “domestic terror­ism” (codi­fied at 18 U.S.C. § 2331(5)) does not impose penal­ties. Defin­i­tion sections of stat­utes rarely do. Section § 2331(1), which defines “inter­na­tional terror­ism,” like­wise does not impose penal­ties, so this is hardly an argu­ment for a new law. To that point, McCord uses the phrase “inter­na­tional terror­ism offense” repeatedly in her Lawfare piece, even though tech­nic­ally there is no such offense, just as there is no “domestic terror­ism offense.” While a hand­ful of federal stat­utes apply only to foreign terror­ist organ­iz­a­tions and acts of transna­tional terror­ism, the govern­ment needs no new author­ity to prop­erly respond to domestic terror­ism. Congress has already provided power­ful tools that give prosec­utors multiple options.

For example, 18 U.S.C. § 2332A prohib­its mater­ial support for acts of terror­ism in both domestic and inter­na­tional cases. Contrary to McCord’s argu­ment, it is a domestic terror­ism stat­ute. It further refer­ences 57 differ­ent federal crim­inal stat­utes that the code calls “federal crimes of terror­ism.” Fifty-one of them apply to cases the federal govern­ment desig­nates “domestic terror­ism.” Suggest­ing that these 51 “federal crimes of terror­ism” are not suffi­cient because they don’t expli­citly use the word “domestic” in their titles hardly justi­fies passing a new law that would expand the govern­ment’s already-broad prosec­utorial powers. It is hard to see how a 52nd domestic terror­ism law would make the differ­ence McCord suggests.

McCord is correct that the Justice Depart­ment rarely uses § 2332A to prosec­ute domestic terror­ists, but this is because there are a number of other crim­inal stat­utes prosec­utors can use to punish the same activ­it­ies. Just as federal prosec­utors some­times charge indi­vidu­als they believe are inter­na­tional terror­ists with immig­ra­tion viol­a­tions or other crimes that are not among the 57 “federal crimes of terror­ism,” it is often the case that it is easier to charge domestic terror­ists using a vari­ety of other federal laws. These include the Rack­et­eer­ing Influ­enced and Corrupt Organ­iz­a­tion Act (better known as RICO), which crim­in­al­izes a broad range of conduct by anyone in an organ­iz­a­tion that supports or is suppor­ted by threats or acts of viol­ence. It was designed for use against Mafia famil­ies but has also been used to prosec­ute white suprem­acist groups like the Aryan Broth­er­hood.

The Justice Depart­ment also uses conspir­acy stat­utes, which have been called “the prosec­utor’s darling” for their wide applic­a­tion in punish­ing those who support or parti­cip­ate in the commis­sion of federal crimes. The Justice Depart­ment often uses these laws to prosec­ute domestic terror­ists, perhaps instead of § 2332A, because they are more famil­iar to judges, juries, and appel­late courts, and easier to apply in prac­tice. They allow prosec­utors to keep polit­ical argu­ments about what can and should consti­tute “terror­ism” outside the courtroom, while simpli­fy­ing prosec­utors’ argu­ments before judges and juries. On top of these, federal prosec­utors also use civil rights laws, like the hate crimes stat­utes the Pitt­s­burgh shooter is charged under, to prosec­ute far-right viol­ence that fits the defin­i­tion of domestic terror­ism.

Here is where Justice Depart­ment policy choices are shown to be the real prob­lem. Congress provided the federal govern­ment robust author­it­ies to police far-right viol­ence by passing five separ­ate federal hate crimes laws from 1968 through 2009. These stat­utes give DOJ juris­dic­tion to prosec­ute viol­ence and intim­id­a­tion inten­ded to deprive people of their consti­tu­tional rights because of their race, reli­gion, national origin, gender, sexual orient­a­tion, gender iden­tity, or disab­il­ity. In an expres­sion of its heightened concern over this type of viol­ence, Congress mandated severe penal­ties for hate crimes viol­a­tions, up to and includ­ing the death penalty.

Though many hate crimes fit the defin­i­tion of domestic terror­ism under federal law — viol­ence or threats inten­ded to intim­id­ate or coerce a civil­ian popu­la­tion — and can prop­erly be labeled as such, the FBI, as a matter of policy, regards them as lesser crimes. The FBI listed prevent­ing terror­ism as its top prior­ity, but only ranked enfor­cing civil rights viol­a­tions like hate crimes fifth on its list of eight distinct missions. This decision isn’t based on an object­ive assess­ment of the relat­ive threats. A 2017 crime victim survey conduc­ted by the DOJ Bureau of Justice Stat­ist­ics estim­ated there were 250,000 hate crimes each year from 2004 to 2015. Yet the Justice Depart­ment only prosec­utes about two dozen defend­ants in hate crimes cases each year. Its policy, in appar­ent contra­dic­tion to the intent of Congress, is to let state and local law enforce­ment author­it­ies take the lead in invest­ig­at­ing and prosec­ut­ing hate crimes. The prob­lem is that not all states have hate crimes on the books, and only around one-tenth of state and local law enforce­ment agen­cies around the coun­try report any hate crimes prosec­u­tions within their juris­dic­tions, aver­aging around 5,000 to 7,000 cases each year.

DOJ’s policy of defer­ring to state and local law enforce­ment on hate crimes prosec­u­tions leaves an enorm­ous gap between the number of crimes that victims are report­ing and those that receive law enforce­ment atten­tion — at the local or federal level. McCord argues that giving the Justice Depart­ment another domestic terror­ism stat­ute will allow it to better docu­ment such viol­ent acts. But, here again, Congress has already done its part, passing the Hate Crimes Stat­ist­ics Act in 1990, which required DOJ to collect and report the number of bias-motiv­ated crimes each year. But DOJ’s meth­od­o­logy, which relies entirely on volun­tary report­ing by state and local law enforce­ment agen­cies, severely under­counts this viol­ence. Noth­ing prevents the Depart­ment from adopt­ing more effect­ive meth­ods to assess the scope of far-right viol­ence, it has simply chosen not to do so.

The Justice Depart­ment could have reversed these policies and prac­tices anytime over the last several years when McCord and her DOJ colleagues were instead push­ing for a new domestic terror­ism law. It could have instruc­ted its invest­ig­at­ors and prosec­utors to label all hate crimes meet­ing the federal defin­i­tion of domestic terror­ism as such, and to prior­it­ize these cases appro­pri­ately. It could have collec­ted accur­ate data about the number of viol­ent hate crimes that occur around the coun­try, partic­u­larly in states that do not have hate crimes laws, as instruc­ted by Congress more than two decades ago. This data could be used to embar­rass those state and local juris­dic­tions that do not address these crimes appro­pri­ately, or to increase federal prosec­u­tions, as the law allows. More simply, the FBI could treat hate crimes that meet the defin­i­tion of domestic terror­ism as a top prior­ity. That the Justice Depart­ment took none of these steps, despite the mandates of Congress, suggests it may use any new domestic terror­ism author­it­ies against a differ­ent set of targets.

In fact, the FBI claimed for several years that far-right viol­ence, though the most lethal, was not the top domestic terror­ism threat. From 2004 through 2008, the FBI desig­nated “eco-terror­ism” the number one threat within the United States, despite not a single fatal­ity attrib­uted to envir­on­mental activ­ists. The FBI still devotes substan­tial coun­terter­ror­ism resources to track­ing polit­ical activ­ists protest­ing oil and gas pipelines at Stand­ing Rock and else­where, and even harass­ing the lawyers that assist them. In 2017, FBI agents raided two animal sanc­tu­ar­ies as part of a multi-state invest­ig­a­tion to locate two piglets rescued from a fact­ory farm, reportedly cutting off a piece of one piglet’s ear to obtain DNA samples for test­ing. This seems a ques­tion­able use of resources, partic­u­larly when thou­sands of viol­ent hate crimes against human beings are going unad­dressed.

In another instance of taking its eye off the ball, weeks before the deadly white nation­al­ist riot at Char­lottes­ville, the FBI issued an assess­ment warn­ing police that black activ­ists protest­ing police viol­ence posed a threat to them. It even inven­ted a term for it — the “Black Iden­tity Extrem­ist” move­ment — to justify increas­ing scru­tiny. Its first attemp­ted prosec­u­tion of a prom­in­ent member of the Huey P. Newton Gun Club, an armed black self-defense group in Dallas, Texas, failed. The FBI contin­ues to monitor and harass Black Lives Matter activ­ists, visit­ing their homes in advance of protests, poten­tially chilling their parti­cip­a­tion.

And in stark contrast to the hand­ful of federal charges coming out of viol­ent far-right riots taking place all across the coun­try (in which counter-protest­ers were stabbedshot, and beaten), the Justice Depart­ment went all out in its attempt to prosec­ute more than 200 activ­ists protest­ing Trump’s inaug­ur­a­tion. After the latter resul­ted in several acquit­tals after two separ­ate trials, and a judge expressed concerns about prosec­utorial miscon­duct, the Justice Depart­ment finally dismissed the bulk of the remain­ing cases in July 2018.

While Justice Depart­ment offi­cials have used notori­ous incid­ents of white suprem­acist viol­ence to push for a new domestic terror­ism stat­ute, the Depart­ment itself contin­ues to de-prior­it­ize far-right viol­ence and focus its most aggress­ive tactics instead against envir­on­ment­al­ists, polit­ical protest­ers, and communit­ies of color. It isn’t hard to guess who would likely be targeted with new domestic terror­ism laws.

Congress has given DOJ offi­cials plenty of tools to attack far-right viol­ence. They just require the will to use them.

(Image: Chip Somod­ev­illa/Getty)