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Wrong Priorities on Fighting Terrorism

Summary: Many in federal law enforcement have blamed their inadequate response to rising far-right violence on a lack of statutory authority to prosecute white supremacists and others as domestic terrorists. This paper argues that they already have everything they need to do so.

Published: October 31, 2018

Some in the Justice Depart­ment are call­ing for new laws to fight domestic terror­ism. But exist­ing laws provide plenty of author­ity to prevent, invest­ig­ate, and prosec­ute attacks. And passing new ones could worsen exist­ing racial and reli­gious dispar­it­ies in who the govern­ment targets. Instead, we need a smarter approach that ensures resources are direc­ted toward the dead­li­est terror­ist threats. And we need to eval­u­ate those threats based on object­ive eval­u­ations of poten­tial harm, not polit­ical consid­er­a­tions that prior­it­ize some communit­ies over others.

INTRO­DUC­TION

After the al Qaeda attacks of Septem­ber 11, 2001, the U.S. Depart­ment of Justice named terror­ism preven­tion its number-one mission. But it does not treat all terror­ism with the same urgency. For many Amer­ic­ans, this dispar­ity became evid­ent when Dylann Roof assas­sin­ated Rever­end Clem­enta Pick­ney and eight members of his Mother Emanuel African Meth­od­ist Epis­copal Church in Char­le­ston, South Caro­lina, in June 2015.

In inter­views, then-FBI Director James Comey refused to call the attack an act of terror­ism, aggrav­at­ing long­stand­ing complaints that the Justice Depart­ment did not view domestic terror­ism involving racist, Islamo­phobic, anti-Semitic, homo­phobic, and anti-immig­rant viol­ence from the far right as a national secur­ity prob­lem on par with terror­ist acts commit­ted by Muslims.

These concerns grew more pronounced as Donald Trump’s bigoted campaign rhet­oric inspired rallies around the coun­try in which neo-Nazis, white nation­al­ists, proto-fascists, and far-right mili­tias openly engaged in viol­ence. This included beat­ings, stabbings, and shoot­ings of counter-protest­ers and journ­al­ists, with little inter­fer­ence from law enforce­ment at the time and just a hand­ful of belated federal prosec­u­tions.

Many in federal law enforce­ment blamed their inad­equate response to rising far-right viol­ence on a lack of stat­utory author­ity to prosec­ute white suprem­acists and others as domestic terror­ists. As a result, Justice Depart­ment offi­cials have called for a new stat­ute that would create a domestic terror­ism offense, perhaps modeled on the inter­na­tional terror­ism stat­utory regime. But this approach is misguided.

This is the first in a series of white papers explor­ing the federal govern­ment’s prob­lem­atic responses and non-responses to domestic terror­ism. In this paper, we show that exist­ing stat­utes have long provided substan­tial author­ity for the federal govern­ment to invest­ig­ate and prosec­ute acts of domestic terror­ism.

One of the co-authors of this paper has personal exper­i­ence invest­ig­at­ing viol­ent white suprem­acists and anti-govern­ment mili­tia members as an FBI under­cover agent in the 1990s. That work demon­strates that tradi­tional law enforce­ment tools provide ample author­ity to proact­ively prevent acts of domestic terror­ism through crim­inal invest­ig­a­tion and prosec­u­tion.

Data produced by the federal govern­ment, supple­men­ted with research from academic insti­tu­tions and advocacy organ­iz­a­tions, shows that far-right viol­ence, some­times categor­ized as hate crimes or civil rights viol­a­tions, is severely under-addressed as a matter of Justice Depart­ment policy and prac­tice, rather than a lack of stat­utory author­ity.

Moreover, there is reason to fear that new laws expand­ing the Justice Depart­ment’s coun­terter­ror­ism powers will not make Amer­ic­ans safer from terror­ist viol­ence. Instead, they may further entrench exist­ing dispar­it­ies in communit­ies the govern­ment targets with its most aggress­ive tactics, with seri­ous implic­a­tions for Amer­ic­ans’ free speech, asso­ci­ation, and equal protec­tion rights.

This paper argues that rather than expand­ing coun­terter­ror­ism powers that could be further abused to target protest­ers and polit­ical dissid­ents instead of terror­ists, Congress should intensify its over­sight of federal coun­terter­ror­ism and civil rights programs to ensure that secur­ity resources are direc­ted toward the dead­li­est threats and all Amer­ic­ans receive equal protec­tion under the law. Congress must require that coun­terter­ror­ism resource decisions be based on object­ive eval­u­ations of the phys­ical harm differ­ent groups pose to human life, rather than on polit­ical consid­er­a­tions that prior­it­ize the safety of some communit­ies over others.