Domestic v. international terrorism

Law enforcement officials have floated the idea of a new law that would make it easier to prosecute domestic actors as terrorists for years. But the idea has gained traction recently in response to several high-profile attacks from white supremacists who were not prosecuted as terrorists

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Recently, an organization of FBI agents began lobbying Congress to pass a law that would make it easier to charge domestic extremists as terrorists. [...] And Democrats, who recently won control of the House of Representatives for the first time in eight years, are turning a critical eye toward the federal government’s disparate treatment of domestic and international terrorism.

House legislators are planning hearings addressing domestic terrorism. And this week, Sen. Dick Durbin (D-Ill.) and Rep. Brad Schneider (D-Ill) are reintroducing the Domestic Terrorism Prevention Act, which would require the Department of Justice, the FBI and the Department of Homeland Security to issue joint annual reports on the threat of domestic terrorism.

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But a new law broadly criminalizing domestic terrorism would be a stretch politically. President Donald Trump claims white supremacy isn’t a big problem. And even those who recognize the threat from far-right extremists are split over whether a domestic terrorism law would help address it. Some civil liberties advocates warn that a domestic terrorism law modeled after the statutes that apply to international terrorism would violate First Amendment protections and could be used to go after groups like Black Lives Matter, antifascist organizations, or environmental organizations.

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Because of freedom of speech and association protections under the First Amendment, it would be “fairly disastrous” to start designating domestic groups as terrorist organizations, Ken White, a First Amendment expert and a lawyer at Brown White & Osborn, said in an interview. “For everyone who wants to put the Ku Klux Klan on the list, someone wants to put Black Lives Matter on the list,” he said.

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[T]he federal government never brought federal terrorism charges against Dylann Roof (the white supremacist who slaughtered nine black churchgoers in Charleston in 2015), James Alex Fields (the neo-Nazi who mowed down anti-fascist protesters in Charlottesville and killed Heather Heyer in 2017), or Robert Bowers (who killed 11 people inside the Tree of Life Synagogue in Pittsburgh in 2018). That didn’t stop prosecutors from bringing federal charges that already have or likely will send those men to federal prison for the rest of their lives.

Supporters of a domestic terror statute say those cases illustrate how non-Muslims escape the terrorist label even when they commit violence intended to terrify and provoke political change. People like Roof, Fields and Bowers, the thinking goes, should be placed in the same moral category as members of ISIS or al Qaeda.

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But there are more practical considerations as well, as illustrated by the recent case of Coast Guard lieutenant Christopher Hasson, whom the feds say stockpiled weapons, wrote about killing people to establish a white ethnostate, and drafted a list of left-leaning politicians and media figures to kill. Federal prosecutors, in a memo arguing for Hasson’s detention, labeled him a “domestic terrorist, bent on committing acts dangerous to human life that are intended to affect governmental conduct.”

Labeling Hasson a “domestic terrorist” was an unusual step. But he isn’t facing any terrorism-related charges, although he was charged with other crimes. And the current lack of a statute is part of the reason why.

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Hasson [...] faces only a drug possession charge and an obscure, rarely used gun charge: possessing a firearm while using or being addicted to a controlled substance. Jeffrey Clark, a D.C.-based neo-Nazi who marched in white nationalist rallies and predicted that pipe bombs being sent to prominent Democrats was a “dry run for things to come,” is facing the same controversial gun charge.

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There are cases in which domestic extremists can face federal terrorism charges. Michael German, who infiltrated extremist groups as a former FBI agent, wrote a report last year identifying 51 terrorism charges that could apply to both international and domestic acts. But most of those charges relate to hyper-specific scenarios — things like destroying an airplane, producing the smallpox virus, taking a hostage, making a threat involving weapons of mass destruction, or attacking a mass transportation system.

Because of the government’s broad definition of a “weapon of mass destruction,” several extremist plots involving bombs have been prosecuted as acts of terror. Three right-wing extremists who were recorded by an FBI informant plotting to use a bomb to kill Muslim refugees in Kansas were convicted on terrorism-related charges last year. Later that year, the feds accused Cesar Sayoc — the Trump enthusiast charged in connection with mailing bombs to Democratic politicians and members of the media — of organizing a “domestic terrorist attack” because his poorly made improvised explosive devices qualified as weapons of mass destruction.

And because of the language related to attacking a mass transport system, prosecutors were able to use domestic terrorism charges against Taylor Michael Wilson, a neo-Nazi who disabled an Amtrak train, declared himself the conductor, and claimed he was “trying to save the train from black people.” Wilson was sentenced last year to 14 years in prison.

But cases like Sayoc’s and Wilson’s are exceptions, and the most commonly charged terrorism-related statutes are more applicable to Islamic State supporters than to violent neo-Nazis.

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The law has also incentivized the FBI to orchestrate intricate sting operations that critics say border on entrapment. In 2016, for example, a Muslim American police officer named Nicholas Young was arrested on material support charges after an FBI informant befriended him, pretended to join ISIS and begged him for money. Young sent him a $245 gift card. He was sentenced to 15 years in prison.

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[T]the idea of relying on congressional oversight ― which failed to rein in law enforcement’s use of international terrorism laws to profile and target Muslims ― to prevent abuse of a new law doesn’t inspire much confidence among critics.

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The U.S. has a long history of using law enforcement to suppress political movements, and modern-day fears that the federal government might use a domestic terrorism law to crack down on political speech aren’t unwarranted. In 2017, the government charged more than 200 people arrested at Trump’s inauguration with felonies, arguing they were part of a rioting conspiracy. After striking out at two trials, the government dropped charges against all remaining defendants.

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About 900 of the FBI’s 5,000 open terrorism investigations are focused on domestic terrorism, according to statistics the FBI shared with HuffPost and other media outlets. In both the 2017 and 2018 fiscal years, more of the individuals identified by the FBI as domestic terrorism suspects were arrested than those the FBI identified as international terrorism suspects: about 270 domestic terrorism suspects over two years compared to about 210 international terrorism suspects.

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“Generally speaking, people who commit acts of terrorism do get punished,” he said. “The problem is that the message that you want sent by that punishment gets lost in the confusion over whether or not they’re being treated the same at other terrorists.”

  HuffPo