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Expert Brief

New Domestic Terrorism Laws Are Unnecessary for Fighting White Nationalists

The federal government has all the tools it needs to combat white nationalist violence. It just has to get its priorities straight.

Published: October 2, 2019

In the past, incid­ents of white nation­al­ist viol­ence haven’t garnered the atten­tion they deserve from Congress or federal law enforce­ment. But after the August 2019 El Paso shoot­ing by a young white suprem­acist, Reps. Adam Schiff (D-CA) and Randy K. Weber Sr. (R-TX) intro­duced two separ­ate bills that would create a new crime of domestic terror­ism, citing lethal white nation­al­ist crimes as the justi­fic­a­tion.

While it’s reas­sur­ing, and long over­due, for members of Congress to take the threat of white nation­al­ist viol­ence seri­ously, such legis­la­tion is both unne­ces­sary and creates seri­ous risks of abuse.

The federal govern­ment does­n’t need new terror­ism author­it­ies

The FBI already has all the author­ity it needs to invest­ig­ate and prosec­ute perpet­rat­ors of white nation­al­ist viol­ence. Congress has enacted 51 federal crimes of terror­ism that apply to entirely domestic acts and further prohib­ited mater­ial support toward the commis­sion of these viol­ent crimes. The bureau’s array of legal author­it­ies do not end there, however. Congress has also passed five federal hate crime laws that target bias-motiv­ated viol­ence as well as organ­ized crime and conspir­acy stat­utes that are often used to prosec­ute viol­ent white suprem­acist groups.

By creat­ing a new crime of domestic terror­ism, the proposed bills would give the Justice Depart­ment and FBI access to broad addi­tional charges that could be used to target minor­it­ies and activ­ists.

Through­out its history, the FBI has used its author­it­ies to invest­ig­ate and monitor polit­ical protest­ers and civil rights activ­ists. Since 9/11, the FBI has used its coun­terter­ror­ism author­it­ies to target Muslims, Arabs, and people from the Middle East and Asia, as well as people who dissent from the status quo. In 2005, the FBI named “eco-terror­ism,” which hasn’t produced a single fatal­ity in this coun­try, the number one domestic terror­ism threat. In August 2017, the FBI concocted a “black iden­tity extrem­ist move­ment” out of a hand­ful of unre­lated acts of viol­ence and warned law enforce­ment agen­cies across the coun­try that black activ­ists protest­ing police viol­ence posed a threat to them. And this year, Pres­id­ent Trump tweeted that he was consid­er­ing desig­nat­ing anti-fascists a terror­ist organ­iz­a­tion.

Schiff’s proposal is so broad that it would empower the attor­ney general to lay terror­ism charges against anyone who commit­ted an assault, damaged prop­erty, or threatened such an act if he determ­ined it was inten­ded to intim­id­ate a civil­ian popu­la­tion or influ­ence govern­ment policy. Given the Justice Depart­ment’s track record and Trump’s rhet­oric, it isn’t at all unreas­on­able to fear the federal govern­ment will use these powers against protest­ers and polit­ical oppon­ents. After all, the Justice Depart­ment charged more than 200 anti-Trump protest­ers with felon­ies after someone broke some store windows on Inaug­ur­a­tion Day in 2017.

Members of Congress, the FBI, and other federal law enforce­ment agen­cies should also refrain from rehab­il­it­at­ing a coun­terter­ror­ism frame­work known as coun­ter­ing viol­ent extrem­ism (CVE). There is no evid­ence the program prevents viol­ence, but it has been used by state, local, and federal law enforce­ment to cultiv­ate inform­ants and spy on law-abid­ing groups and indi­vidu­als, over­whelm­ingly Muslim, who are engaged in First Amend­ment-protec­ted activ­it­ies. CVE programs, which are based on discred­ited theor­ies of terror­ist radic­al­iz­a­tion, are unlikely to be useful in redu­cing white suprem­acist viol­ence.

How to combat white nation­al­ist viol­ence the right way

Instead of giving the FBI new domestic terror­ism author­it­ies it does­n’t need, members of Congress can ensure that the bureau alloc­ates its resources appro­pri­ately to prop­erly address white nation­al­ist viol­ence. For too long, the Justice Depart­ment and FBI have failed to track crit­ical data, includ­ing the number of white suprem­acist attacks and the number of fatal­it­ies they produce. The Justice Depart­ment also contin­ues to mask the number of federal invest­ig­a­tions, prosec­u­tions, and convic­tions of viol­ent white nation­al­ism.

Just this year, the FBI elim­in­ated the terror­ism category used to track white nation­al­ist attacks and invest­ig­a­tions and replaced it with a new category, “racially motiv­ated viol­ent extrem­ism.” This move grouped persist­ent levels of white nation­al­ist viol­ence with the imagin­ary threat of so-called black iden­tity extrem­ists. Beyond the false equi­val­ence between a very real threat and a manu­fac­tured one, the new category also obscures from members of Congress and the Amer­ican people the precise scope of white nation­al­ist viol­ence and the extent to which the FBI is invest­ig­at­ing them.

Rather than manip­u­lat­ing categor­ies to hide the breadth of the white nation­al­ist threat, the Justice Depart­ment should develop and release a strategy to combat white nation­al­ist viol­ence. The strategy should indic­ate how this type of viol­ence ranks in the FBI’s list of prior­it­ies and the resources alloc­ated to combat­ing it. Currently, while fight­ing terror­ism ranks as the FBI’s top prior­ity, hate crime and gang crime invest­ig­a­tions — which are commonly used to target white nation­al­ists — are the bureau’s fifth and sixth prior­it­ies, respect­ively. How these crimes are categor­ized determ­ines the amount of resources devoted to these invest­ig­a­tions.

Members of Congress have respon­ded to these prob­lems. The Domestic and Inter­na­tional Terror­ism Data Act, intro­duced by Rep. Bennie Thompson (D-MS) and passed by the House of Repres­ent­at­ives, includes provi­sions that would mandate the Justice Depart­ment, FBI, and Depart­ment of Home­land Secur­ity provide Congress specific inform­a­tion on domestic terror­ism invest­ig­a­tions.

Also Rep. Donald Beyer Jr. (D-VA) and Sen. Richard Blumenthal (D-CT) have intro­duced the Khalid Jabara and Heather Heyer No Hate Act into both cham­bers, which would improve data collec­tion under the Hate Crimes Stat­ist­ics Act and help Congress and law enforce­ment get a better grasp on the extent of white nation­al­ist viol­ence.

Vulner­able communit­ies also need police reform

Another factor complic­at­ing the govern­ment’s fight against white nation­al­ist viol­ence is law enforce­ment itself. Sadly, the communit­ies targeted by white suprem­acists — African Amer­ic­ans, LGBTQ, and undoc­u­mented people — are also the same communit­ies who exper­i­ence dispro­por­tion­ate amounts of police viol­ence and abuse. Justice Depart­ment crime victim surveys indic­ate that more than half of hate crime victims refuse to report to police, citing a lack of trust.

In June, Buzzfeed in collab­or­a­tion with Injustice Watch, a nonprofit news­room, published a report docu­ment­ing how thou­sands of officers around the coun­try posted offens­ive and racist mater­ial on Face­book. Then in July, ProP­ub­lica repor­ted on a secret Border Patrol Face­book group where members exchanged xeno­phobic, racist, and sexist memes and joked about the deaths of undoc­u­mented immig­rants.

While root­ing out racism and bigotry in law enforce­ment is no small task, Congress isn’t power­less. For starters, members of Congress should pass the End Racial and Reli­gious Profil­ing Act, intro­duced by Sen. Ben Cardin (D-MD). The legis­la­tion prohib­its racial profil­ing by federal, state, and local law enforce­ment agen­cies; mandates federal law enforce­ment to main­tain adequate policies to elim­in­ate racial profil­ing; and requires state and local law enforce­ment to main­tain adequate policies to elim­in­ate racial profil­ing in return for federal grants.

In the face of tragedies like El Paso, the natural inclin­a­tion is to give the govern­ment more power in the name of public safety. This would be a mistake. Instead, Congress should compel the Justice Depart­ment and FBI to prior­it­ize the invest­ig­a­tion and prosec­u­tion of white nation­al­ist viol­ence, track its spread, and use the power­ful invest­ig­at­ive tools it already has to combat this persist­ent prob­lem.