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 stabbed, shot, 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.