The United States has not fully reckoned with RESPONDINGthe legacy TO of white WHITE supremacy SUPREMACIST and other forms VIOLENCE A securitized community’s perspective on domestic terrorism

January 2021

White supremacist violence is a resurgent threat Confronting the Legacy of Racial Terror in communities across the United States. This threat is not a new one, and is in fact rooted in of injustice and exclusion rooted deep within its the deepest, darkest chapters of our nation’s past. Indeed, the current resurgence of white history. From Oak Creek to El Paso to the supremacist violence has ample historical violent insurrection in our nation’s capital on antecedents, including and other January 6th, 2021, and communities in between, the United States has in recent years immeasurable atrocities that remain largely experienced an increase of white supremacist unacknowledged. A little over a century ago, in violence, particularly mass shootings and other October 1919, a white mob consisting of forms of mass violence. As policymakers, civil soldiers, law enforcement officials, plantation rights advocates, and impacted communities owners, and other vigilantes set upon Black work to confront this threat, we must ensure sharecropper families in the Mississippi delta that civil rights perspectives remain front and town of Elaine, . What ensued was a center, lest we jeopardize the rights and weeklong violent reign of terror that left liberties of the very communities we are trying hundreds of Black Americans dead.2 to protect. The stated justification for the This issue brief ties the resurgence of white was to suppress an “insurrection” of Black supremacist violence to the “legacy of racial sharecroppers attempting to organize for better terror,”1 considers the importance of centering working conditions.3 Less than two years later, the protection of civil rights in the response to in Tulsa, Oklahoma, a violent white mob white supremacist violence, highlights issues descended upon the city’s wealthy Black arising from the enhancement and expansion of business district and murdered up to three federal counterterrorism authorities since the hundred people and destroyed more than two 9/11 terrorist attacks, and clarifies some thousand homes.4 The 1921 Tulsa Race misconceptions about the distinctions between Massacre is believed to be the single worst “domestic” and “international” terrorism. The incident of racial violence in U.S. history.5 final section of this issue brief features a series of recommendations for effectively responding The details of both cases were suppressed in to white supremacist violence while protecting order to obscure the nature and extent of the civil rights and civil liberties. bloodshed.6 That we have yet to bring closure to these atrocities—and the many more that occurred before and after them— should be an indication that our country has not fully

Arab American Institute www.aaiusa.org 1 confronted and acknowledged what has been described as the legacy of racial terror.7 As White supremacist violence, along with other Americans, we must work to address the forms of bias-motivated violence against deepest, darkest moments of our nation’s protected characteristics like race or ethnicity, history. At the same time, we must also contend religion, sexual orientation, gender, disability, with a resurgent threat of white supremacist and gender identity, is fundamentally a civil violence. rights issue. But in recent years, the debate over how to address these threats has increasingly In the last decade, white supremacists have adopted the language of national security.11 To targeted communities and government be sure, in the effort to address, prevent, and institutions with devastating acts of violence. respond to white supremacist violence, the Since 2015, annual statistics from the Federal incorporation of national security perspectives Bureau of Investigation have shown an elevated might be helpful, if not appropriate. But merely level of reported hate crime incidents, including doubling down on flawed national security a consistent increase in the number of reported frameworks will only further jeopardize civil violent hate crime offenses.8 2019 was the rights and civil liberties with little positive deadliest year on record for the second year in impact on public safety. Further, we cannot a row .Given the legacy of racial terror in the effectively address white supremacist violence United States, it is painfully unsurprising that and other forms of bias-motivated violence anti-Black hate crime has accounted for a without also confronting the broader civil rights majority of reported hate crime incidents challenges and systemic inequities to which motivated by race and a plurality of reported they are tied. hate crimes overall since the FBI began producing statistics in 1992.9 The inclusion of racial justice perspectives is critical. The present debate over the policy and The Risk of Increased Securitization and the legal response to acts of white supremacist Exclusion of Civil Rights Voices violence, which depending on the specific circumstances might also fall within the The present threat of white supremacist definition of hate crime, domestic terrorism, violence is not without precedent. In the last international terrorism, or targeted violence, is decade, however, the policy and legal debate not only complicated but also delicate. These over how to address this threat has changed. are complex issues, made exceedingly sensitive Historically, the federal government has by the fact that Americans’ constitutional rights combatted white supremacist violence through hang in the balance. the paradigm of civil rights enforcement. In fact, the oldest federal hate crime statute, Section From the incarceration of Japanese Americans 241 of Title 18, United States Code, is derived during World War II to the Trump from the Enforcement Act of 1870, which was Administration’s efforts to reduce refugee the first of three bills passed during the admissions, target asylum seekers, and bar the to protect Black Americans entry of people from several Muslim-majority from acts of violence and intimidation at the countries,12 the federal government has justified hands of organizations like the .10 sweeping constraints on civil rights, civil The Enforcement Acts empowered the federal liberties, and human rights in the name of government to intervene when states failed to national security.13 The last two decades of U.S. the protect the civil rights of their residents, counterterrorism policy are rife with examples of thereby setting an example for federal civil this trend. rights statutes to come.

Arab American Institute www.aaiusa.org 2 Enhanced Counterterrorism Authorities in the information related to domestic terrorism, Post-9/11 Era federal law enforcement agencies have not been particularly forthcoming.21 Since the 9/11 terrorist attacks, Congress and successive administrations have significantly What little public information exists suggests enhanced and expanded the federal that current federal domestic terrorism government’s counterterrorism authorities to authorities are open to broad interpretation, if the detriment of individual rights and liberties.14 not subject to outright abuse. A DOJ Inspector In the aftermath of the attacks, Congress passed General report published in 2010 criticized the the USA Patriot Act, which among other things FBI for opening domestic terrorism enacted several terrorism-related criminal investigations into political advocacy statutes, amended existing criminal statutes, organizations based on the constitutionally and considerably augmented the federal protected activities of their members.22 The list government’s surveillance authorities.15 of targeted organizations included anti-war activists, environmentalists, and nonviolent The USA Patriot Act also codified a federal animal rights protestors.23 definition of “domestic terrorism,” which is defined as activities that involve acts that are In 2017, the FBI again attracted criticism dangerous to human life, violate criminal laws, following revelations that federal investigators and “appear to be intended (1) to intimidate or were treating the nonexistent phenomenon of coerce a civilian population; (2) to influence the “Black Identity Extremism” as a domestic terror policy of a government by intimidation or threat.24 Critics viewed the new classification as coercion; or (3) to affect the conduct of a a false predicate for targeting Black racial justice government by mass destruction, assassination, activists, and the FBI reportedly abandoned the or kidnapping.”16 term “Black Identity Extremism” in favor of a classification that comprised various forms of Federal law enforcement agencies have “Racially Motivated Violent Extremism.”25 This asserted expansive authorities under this development only led to further consternation definition without commensurate oversight or because, according to critics, aggregating cases transparency.17 On the investigative end, the into a broader classification has the effect of FBI has not published a report on federal “obfuscat[ing] the white supremacist threat.”26 domestic terrorism cases since 2005.18 And when it comes to domestic terrorism Complicating matters further, leaked prosecutions, the National Security Division of documents revealed that, despite the new the U.S. Department of Justice (DOJ) has never classification of “racially motivated violent published a domestic equivalent to its chart on extremism,” the FBI has continued to collect public or unsealed international terrorism and data on domestic terrorism investigations terrorism-related convictions.19 according to the previously undisclosed subclassifications of “White Racially Motivated This scarcity of public data, which, crucially, Violent Extremism” and “Black Racially does not stem from a lack of relevant Motivated Violent Extremism.”27 In response to authorities, has contributed to confusion among questions about the revised classification policymakers, journalists, and impacted system, FBI Director Christopher Wray has communities about the nature and extent of repeatedly stated that the new terminology is domestic terrorism and the federal intended to demonstrate the FBI’s focus on government’s enforcement efforts.20 Even when investigating violence, not ideology.28 members of Congress have pressed for more

Arab American Institute www.aaiusa.org 3 The FBI’s intentions notwithstanding, and enforcement has contributed to the especially given the lack of communication securitization and criminalization of American regarding the investigative subclassifications, Muslims, Arab Americans, Black Americans, the revised classification system makes it more South Asian Americans, and other difficult to assess not only the FBI’s response to communities.35 Despite the already expansive white supremacist violence, but also the extent counterterrorism powers of the federal to which the FBI has abandoned the “Black government, some have argued that additional Identity Extremism” label and whether the authorities are needed to effectively respond to underlying premises of that label continue to the resurgence of white supremacist violence. inform the federal government’s enforcement This argument not only overlooks past mistakes efforts. Providing further cause for concern, related to U.S. counterterrorism policy, but also according to recent news reports, the FBI has tends to operate on misconceptions about the also opened domestic terrorism investigations relationship between “domestic” and into activists protesting U.S. immigration policy “international” terrorism. through nonviolent civil disobedience.29 Significant Misconceptions About “Domestic” Congress and successive administrations have and “International” Terrorism enhanced federal counterterrorism authorities over the last two decades in other ways as well. The policy debate over responding to white This includes legislation that expanded the supremacist violence is part of a larger federal government’s warrantless surveillance conversation about how we conceptualize and program,30 a series of revisions to federal criminalize different forms of violence in investigative guidelines and procedures that American society. In the last half-decade, a loosened important criteria for protecting series of high-profile incidents appear to have constitutional rights,31 and the establishment of exposed racial, ethnic, and religious fault lines misguided “countering violent extremism” in the federal government’s treatment of (CVE) programs.32 These programs are designed violence as terrorism. Research on media to supplement traditional counterterrorism coverage of terrorism-related incidents indicates strategies like surveillance, investigations, and that stereotypes and false narratives influence prosecutions with “soft” prevention methods to popular understandings of terrorism,36 which are counter “radicalization” in “at-risk” reinforced by the federal government’s communities, but have proven to be excessive targeting of American Muslims, Arab ineffective.33 Moreover, CVE programs are Americans, South Asian Americans, and other harmful in that they have perpetuated communities. Unfortunately, this debate has stereotypes about the communities most often narrowed significantly to the question of targeted through these programs, particularly whether legal distinctions between “domestic” American Muslims, have led to greater distrust and “international” terrorism are to blame for of law enforcement within those communities, these disparities. and have infringed upon individual rights and liberties.34 As with many of these developments, At the center of this debate is the question of CVE programs are another example of whether Congress should enact a new federal increased securitization in the post 9/11 era. criminal statute of “domestic terrorism.”37 Arguments for a new criminal statute often rely This section does not provide an exhaustive on the notion that a lack of authorities and reading of the federal government’s resources applicable to domestic terrorism has counterterrorism authorities, nor does it fully constrained the federal government’s response consider how federal counterterrorism to white supremacist violence.38 Proponents

Arab American Institute www.aaiusa.org 4 highlight a presumed gap in the legal applicable to both domestic and international framework between domestic and international conduct. This might come as a surprise, given terrorism as justification for the enactment of a that commentators, analysts, and journalists new federal criminal statute.39 A gap exists, to often focus on the lack of a federal crime of be sure, but a new criminal statute of domestic “domestic terrorism,” which might lead some to terrorism would not make up for it,40 nor is it assume the presence of an international necessarily the case that congressional action is equivalent in federal criminal code. There is no required to close the gap with respect to white federal crime of “domestic terrorism,” but supremacist violence. neither is there a federal crime of “international terrorism.” Any confusion about this likely stems In fact, a new criminal statute would be from another federal criminal statute, “Acts of duplicative, misguided, and exacerbate existing Terrorism Transcending National Boundaries,”46 disparities within U.S. counterterrorism which prohibits acts of violence and other acts enforcement and the criminal legal system.41 that create a substantial risk of bodily injury Indeed when discussing disparities within the involving conduct occurring within and outside criminal legal system, one need not look further the United States. Commentators, analysts, and than the excessive, violent, and militarized journalists have cited this statute as if it were the response to peaceful racial justice protesters in international counterpart to a prospective the summer of 2020 compared to the response federal criminal statute of “domestic of law enforcement to the violent insurrection terrorism.”47 on our nation’s Capitol Building in January 2021.Despite the good intentions of many of its For example, following the August 2019 El Paso proponents, a new federal criminal statute of shooting, in which the author of a white domestic terrorism is unnecessary and could supremacist manifesto that railed against a harm some of the very communities we are “Hispanic invasion of Texas” shot to death trying to protect. twenty-two people and wounded twenty-four others, reported: Federal law enforcement already has expansive domestic terrorism authorities to effectively “Acts of terrorism transcending national investigate and prosecute white supremacist boundaries” is a federal crime, giving the F.B.I. violence. As research has shown, the federal and federal prosecutors jurisdiction to take the government’s deficient response to white lead. There is no equivalent crime of domestic supremacist violence is more an issue of terrorism, so law enforcement officials deal with priorities than one of authorities or resources.42 such offenses using other laws that do not have Congress has defined fifty-seven federal “terrorism” in their labels, like the state-level criminal statutes as “federal crime[s] of crime of murder.48 terrorism” when calculated to influence or retaliate against government conduct.43 All but Based on this reporting, one might be six of those statutes are applicable to both surprised to learn that, according to the domestic and international terrorism.44 National Security Division’s chart of public or Congress has also enacted five federal hate unsealed international terrorism and terrorism- crime statutes, the oldest tracing back to the related convictions, federal prosecutors brought Enforcement Act of 1870, to strengthen the charges under this statute in only nine of almost federal response to white supremacist six hundred reported cases between September violence.45 A federal criminal statute of 11, 2001, and December 31, 2017.49 There is no “international terrorism” is not among the six federal criminal statute of international federal crimes of terrorism that are not terrorism, and specious arguments pointing to

Arab American Institute www.aaiusa.org 5 the federal crime of “Acts of Terrorism explain the momentum behind a new federal Transcending Boundaries” in support of a new domestic terrorism statute, but rewarding the domestic terrorism statute collapse in the face federal government with even more of data.50 Further, prosecution under the counterterrorism authorities is exactly the wrong “transcending national boundaries” statute approach. A new federal criminal statute would does not require a political or social motive and be duplicative, misguided, and potentially could be viable in certain cases interpreted as exacerbate existing inequities within U.S. domestic terrorism.51 counterterrorism enforcement and the criminal legal system. As for the six federal crimes of terrorism that are not applicable to both domestic and To effectively respond to white supremacist international terrorism, three criminalize certain violence, Congress must exercise its oversight forms of conduct—including killing U.S. and legislative authorities to bolster civil rights nationals, committing acts of torture, and enforcement, reform and realign domestic receiving training from foreign terrorist counterterrorism frameworks, and reject efforts organizations— occurring outside the United that further entrench a system that has States,52 one criminalizes conspiring to commit undermined civil rights and civil liberties. an act of violence abroad,53 and another criminalizes the provision of drug proceeds to The federal government has expansive support foreign terrorist groups.54 The authorities to investigate and prosecute white remaining statute, codified at section 2339B of supremacist violence. New authorities in the Title 18, U.S. Code, criminalizes the provision of form of criminal statutes are unnecessary; if not “material support or resources” to designated duplicative of existing laws, then overbroad so foreign terrorist organizations. At least in a as to raise significant First Amendment federal criminal law context, these six statutes concerns.56 Given that misconceptions about constitute the gap in the legal framework the relevant legal framework underpin the most between domestic and international terrorism. persuasive arguments for a new criminal statute Critically, although these statutes are not of domestic terrorism, those arguments are also applicable to domestic terrorism, they could misguided. Lastly, although most arguments for apply to certain forms of white supremacist a new criminal statute are well-intentioned, the violence without congressional action. For enactment of such a statute could backfire, example, while the federal government’s list of harming some of the very communities under designated foreign terrorist organizations does threat of resurgent white supremacist violence. not include any foreign groups engaged in The federal government has justified white supremacist violence, such groups counterterrorism and other law enforcement certainly exist, and some appear to meet the practices in the name of “national security” that designation criteria.55 undermined individual rights and liberties. Arab Americans, American Muslims, and South Asian Serious Risks of a New Federal Criminal Statute Americans have faced the brunt of these of “Domestic Terrorism” enforcement efforts.57

Given the resurgence of white supremacist Many proponents of a new federal criminal violence and the overwhelming impression that statute of domestic terrorism have noted the federal agencies have failed to sufficiently double standards and other inequities inherent address such violence, it is understandable that to U.S. counterterrorism enforcement. To many Americans feel the need for a muscular reduce those inequities and sharpen the federal response from Congress. This impulse might response to white supremacist violence will take

Arab American Institute www.aaiusa.org 6 reform. Congress should also pass legislation more than simply doubling down on a flawed that would promote transparency and system with the expectation of better results. accountability within U.S. counterterrorism enforcement, such as the Domestic and Recommendations International Terrorism DATA Act (H.R. 3106) and the Domestic Terrorism Prevention Act (S. In the United States, the threat of white 3190|H.R. 5602), and encourage law supremacist violence is by no means enforcement agencies to improve federal hate unprecedented. It is rooted deep in a past rife crime statistics, through the Khalid Jabara and with injustice and exclusion. To effectively Heather Heyer NO HATE Act (S. 2043|H.R. respond to this threat, we must confront not 3545). only the legacy of racial terror, but also the historical challenges and systemic inequities Second, federal departments and agencies that have produced rampant inequality in this charged with investigating and prosecuting country, and we must do so in a manner that bias-motivated criminal conduct must prioritize does not further infringe upon individual rights efforts to address, prevent, and respond to and liberties. white supremacist violence while tightening safeguards that were loosened in the aftermath Instead of doubling down on a flawed system of 9/11. After the 9/11 terrorist attacks, the FBI through the expansion of counterterrorism shifted its priorities toward a greater focus on authorities that are duplicative, misguided, and national security. This reprioritization had an harmful, we should advance solutions that impact on the agency’s organizational structure, promote public safety while protecting civil staffing and resource allocation, and rights and civil liberties. Federal, state, and local enforcement efforts.58 The DOJ also loosened governments all have important roles to play in important safeguards that were implemented in this effort. response to the FBI’s abuse of surveillance and investigative authorities during the civil rights First, Congress must exercise its oversight and and anti-war eras.59 Today, the FBI lists its top legislative authorities. In the first session of the priority as “protect[ing] the United States from 116th Congress, committees in both the Senate terrorist attack,” while “protect[ing] civil rights” and the House of Representatives held hearings is ranked fifth out of nine.60 According the on the federal government’s response to white DOJ’s Strategic Plan for Fiscal Years 2018-2022, supremacist violence. Most of these hearings the department’s principal strategic goal is to addressed the issue from the perspectives of “enhance national security and counter the national security and counterterrorism with a threat of terrorism.”61 The strategic plan barely limited attention to civil rights. In the 117th mentions hate crime and civil rights Congress, the relevant House and Senate enforcement. The FBI and DOJ should assess committees should investigate the state of their current priorities and make sure that federal civil rights enforcement with respect to resources and attention are sufficiently allocated white supremacist violence and hate crime, toward protecting civil rights and countering the including whether the DOJ has sufficiently resurgence of white supremacist violence. prioritized efforts to investigate and prosecute Further, the FBI and DOJ should revise federal civil rights violations such as hate crimes, as well investigative guidelines to ensure more robust as whether the federal hate crime reporting and protections for privacy, civil rights, and civil data collection system, which also involves liberties. state, tribal, and local partners, is in need of

Arab American Institute www.aaiusa.org 7 Third, state and local governments must focus Conclusion on improving the response to white supremacist violence including bias-motivated violence. Over the course of the last decade, the United Criminal statutes prohibiting bias-motivated States has experienced an increase of white criminal conduct should extend protections to supremacist violence. The present threat is tied an inclusive set of characteristics, including race to a history of injustice, exclusion, and violence or ethnicity, religion, sexual orientation, gender, against Black Americans and other disability, and gender identity. Additionally, communities. To confront the threat of white state and local governments should track the supremacist violence, we must also confront the use of these statutes to ensure against their legacy of racial terror and the persistence of abuse.62 Law enforcement agencies should dramatic inequality in this country. We cannot submit data on the incidence of hate crime do that if we come at the issue exclusively from within their jurisdictions and the relevant state the perspective of national security. Increased government agencies should publish regular securitization and criminalization, particularly in statistics on these data. To ensure that law the form of new federal criminal statutes, will enforcement and the criminal legal system are jeopardize the individual rights and liberties of responsive to the needs and concerns of hate some of the very communities in need of crime victims and their communities, law protection. enforcement training academies and police departments should require that officers and White supremacist violence is fundamentally a other personnel receive comprehensive training civil rights issue, and while the incorporation of on identifying, reporting, and responding to national security perspectives may be hate crime. appropriate in some respects, we cannot lose sight of that fact.

1 See generally , in America: Confronting the Legacy of Racial Terror (3rd ed. 2017), https://lynchinginamerica.eji.org/report.

2 Nan Elizabeth Woodruff, Opinion, The Forgotten History of America’s Worst Racial Massacre, N.Y. Times (Sept. 30, 2019), https://www.nytimes.com/2019/09/30/opinion/elaine-massacre-1919-arkansas.html.

3 Francine Uenuma, The Massacre of Black Sharecroppers That Led the Supreme Court to Curb the Racial Disparities of the Justice System, Smithsonian Magazine (Aug. 2, 2018), https://www.smithsonianmag.com/history/death-hundreds-elainemassacre-led-supreme-court-take-major-step- toward-equal-justice-african-americans-180969863.

4 Mihir Zaveri, A White Mob Once Destroyed a Black Neighborhood in Tulsa. The City Wants to Find the Graves. N.Y. Times (Oct. 4, 2018), https://www.nytimes.com/2018/10/04/us/mass-graves-tulsa-race-massacre.html.

5 Scott Ellsworth, , Encyclopedia of Oklahoma History and Culture (last visited Dec. 4, 2019), https://www.okhistory.org/publications/enc/entry.php?entry=TU013.

6 Jerome Karabel, The Ghosts of Elaine, Arkansas, 1919, New York Review of Books (Sept. 30, 2019), https://www. nybooks.com/daily/2019/09/30/the-ghosts-of-elaine-arkansas-1919. In 2019, the Oklahoma Archaeological Survey conducted an investigation using ground-penetrating radar technology to detect the presence of mass graves related to the 1921 massacre. Gabrielle Sorto, Tulsa Searches for Mass Graves from 1921 Tulsa Race Massacre, CNN (Oct. 8, 2019), https://www.cnn.com/2019/10/08/us/tulsa-mass-graves-search-race-massacre- trnd/index.html.

7 See Equal Justice Initiative, supra note 1 (“The trauma and anguish that lynching and racial violence created in this country continues to haunt us and to contaminate race relations and our criminal justice system in too many places across this country.”).

8 Rachel Treisman, FBI Reports Dip in Hate Crimes, But Rise in Violence, NPR (Nov. 12, 2019), https://www.npr. org/2019/11/12/778542614/fbi- reports-dip-in-hate-crimes-but-rise-in-violence. See also Press Release, Arab American Institute, 2018 Hate Crime Data Show Deadliest Year on Record, Most Violent Since 9/11-Backlash (Nov. 12, 2019), https://www.aaiusa.org/2018_hate_crime_data.

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9 Janell Ross, In Every Tally of Hate Crimes, Blacks Are the Most Frequent Victims, NBC News (Nov. 21, 2018), https:// www.nbcnews.com/news/nbcblk/every-tally-hate-crimes-blacks-are-most-frequent-victims-n938541.

10 The Enforcement Act of 1870, 2 ch. 114, 16 Stat. 140 (1870). Gregory L. Padgett, Racially Motivated Violence and Intimidation: Inadequate State Enforcement and Civil Rights Remedies, 75 J. Crim. L. & Criminology 103, 120 n. 124 (1984), https://pdfs.semanticscholar.org/ebd7/d3149c67d92518e4bdc76fedd70c64ab4fe9.pdf.

11 See, e.g., John R. Allen & Brett McGurk, Opinion, We Worked to Defeat the Islamic State. White Nationalist Terrorism Is an Equal Threat. Wash. Post (Aug. 6, 2019), https://www.washingtonpost.com/opinions/we-worked-to-defeat-the-islamic-state-white-nationalist-terrorism-is-an-equal- threat/2019/08/06/e50c90e8-b87d-11e9-bad6-609f75bfd97f_story.Html.

12 Michelle Chen, Trump’s Assault on Refugees Is Even Worse Than It Looks, Nation (Oct. 14, 2019), https://www.thenation.com/article/refugee-cap.

13 See generally Eric K. Yakamoto & Rachel Oyama, Masquerading Behind a Façade of National Security, 128 Yale L.J. 688 (2019), https://www.yalelawjournal.org/forum/masquerading-behind-a-facade-of-national-security.

14 American Civil Liberties Union, Unleashed and Unaccountable: The FBI’s Unchecked Abuse of Authority, ii (Sept. 2013), https://www.aclu.org/sites/default/files/assets/unleashed-and-unaccountable-fbi-report.pdf.

15 Dara Lind, Everyone’s Heard of the Patriot Act. Here’s What it Actually Does. Vox (Jun. 2, 2015), https://www.vox.com/2015/6/2/8701499/patriot- act-explain.

16 USA Patriot Act § 802, 18 U.S.C. § 2331(5) (2018).

17 Hina Shamsi, White Supremacist Violence Is On the Rise. Expanding the FBI’s Powers Isn’t the Answer. American Civil Liberties Union (Sept. 25, 2019), https://www.aclu.org/blog/national-security/discriminatory-profiling/white-suprem- acist-violence-rise-expanding-fbis. See also Countering Domestic Terrorism: Examining the Evolving Threat: Hearing before the S. Comm. on Homeland Security & Governmental Affairs, U.S. Senate, 116th Cong. 2 (2019) (written statement for the record of American Civil Liberties Union), available at https://www.aclu.org/hearing-statement/aclu-written- statement-record-emerging-domestic-terrorism-threat.

18 Kai Wiggins, Finding the Federal Data on Domestic Terrorism, Just Security (May 31, 2019), https://www.justsecurity.org/64323/finding-the-federal- data-on-domestic-terrorism.

19 Id.

20 See, e.g., Fritz Zimmerman, The FBI Told Congress That Domestic Terrorism Investigations Led to 90 Recent Arrests. It Wouldn’t Show Us Records of Even One. ProPublica (Aug. 9, 2019), https://www.propublica.org/article/fbi-domestic-terrorism-arrest-data.

21 Jordain Carney, Senators Renew Request for Domestic Threats Documents from FBI, DOJ After Shootings, The Hill (Aug. 5, 2019), https://thehill.com/homenews/senate/456284-senators-renew-request-for-domestic-threats-documents-fromfbi-doj-after. 22 Andrew Cohen, OIG: FBI Inappropriately Tracked Domestic Advocacy Groups, Atlantic (Sept. 20, 2010), https://www.theatlantic.com/national/archive/2010/09/oig-fbi-inappropriately-tracked-domestic-advocacy-groups/63276.

23 Office of the Inspector General, U.S. Dep’t of Justice, A Review of the FBI’s Investigations of Certain Domestic Advocacy Groups, 1-2 (2010), https://oig.justice.gov/special/s1009r.pdf. 24 Jana Winter & Sharon Weinberger, The FBI’s New U.S. Terrorist Threat: ‘Black Identity Extremists.’ Foreign Policy (Oct. 6, 2019), https://foreignpolicy.com/2017/10/06/the-fbi-has-identified-a-new-domestic-terrorist-threat-and-itsblack-identity-extremists.

25 Byron Tau, FBI Abandons Use of the Term ‘Black Identity Extremism,’ Wall St. J. (Jul. 23, 2019), https://www.wsj.com/articles/fbi-abandons-use-of- terms-black-identity-extremism-11563921355.

26 Felicia Sonmez, Democrats Accuse Trump Administration of Trying to ‘Obfuscate the White Supremacist Threat with New Categories for Domestic Terrorism, Wash. Post (May 2, 2019), https://www.washingtonpost.com/politics/democrats-accuse-trump-administration-of-trying-to-obfuscate-the- white-supremacist-threat-with-new-categories-for-domestic-terrorism/2019/05/02/831cf86e-6d23-11e9-a66d-a82d3f3d96d5_story.html.

27 Maya Berry & Kai Wiggins, Leaked Documents Contain Major Revelations About the FBI’s Terrorism Classifications, Just Security (Sept. 11, 2019), https://www.justsecurity.org/66124/leaked-documents-contain-major-revelations-about-the-fbis-terrorism-classifications.

28 Morgan Chalfant, FBI’s Wray Says Most Domestic Terrorism Arrests This Year Involve White Supremacy, The Hill (Jul. 23, 2019), https://www.thehill.com/homenews/administration/454338-fbis-wray-says-majority-of-domestic-terrorism-ar- rests-this-year. See also Hannah Allam, FBI Announces That Racist Violence Is Now Equal Priority to Foreign Terrorism, NPR (Feb. 10, 2020), https://www.npr.org/2020/02/10/804616715/fbi- announces-that-racist-violence-is-now-equal-priority-to-foreign-terrorism.

29 Jana Winter & Hunter Walker, Document Reveals the FBI Is Tracking Border Protest Groups As Extremist Organizations, Yahoo News (Sept. 5, 2019), https://news.yahoo.com/exclusive-document-reveals-the-fbi-is-tracking-border-protest-groups-as-extremist-organizations-170050594.html.

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30 FISA Amendments Act of 2008, Pub. L. No. 110-261, §403, 122 Stat. 2463 (2008). Brett LoGiurato, Here’s the Law the Obama Administration Is Using As Legal Justification for Broad Surveillance, Business Insider (Jun. 7, 2013), https://www.businessinsider.com/fisa-amendments-act-how-prism- nsa-phone-collection-is-it-legal-2013-6.

31 See, e.g., Eric Lichtblau, New Guidelines Would Give FBI Broader Powers, N.Y. Times (Aug. 20, 2008), https://www.nytimes.com/2008/08/21/washington/21fbi.html.

32 Why Countering Violent Extremism Programs Are Bad Policy, Brennan Center for Justice (Sept. 9, 2019), https:// www.brennancenter.org/our- work/research-reports/why-countering-violent-extremism-programs-are-bad-policy.

33 Faiza Patel & Megan Koushik, Brennan Center for Justice, Countering Violent Extremism, 2 (2017), https://www.brennancenter.org/sites/default/files/publications/Brennan%20Center%20CVE%20Report.pdf.

34 The Problem With “Countering Violent Extremism” Programs, American Civil Liberties Union (last visited Dec. 5, 2019), https://www.aclu.org/other/problem-countering-violent-extremism-programs.

35 Roy L. Austin Jr. & Kristen Clarke, Opinion, Creating a ‘Domestic Terrorism’ Charge Would Actually Hurt Communities of Color, Wash. Post (Aug. 26, 2019), https://www.washingtonpost.com/opinions/domestic-terrorism-doesnt-needto-be-a-chargeable-offense-we-already-have-powerful-hate- crime-laws/2019/08/26/14c6f354-c4eb-11e9-b72f-b31dfaa77212_story.html.

36 See Connor Huff & Joshua D. Kertzer, How the Public Defines Terrorism, 62 Am. J. Pol. Sci. 1, 55-71 (2017) (finding that media coverage, perhaps more than formal legal definitions, affects the likelihood that the public classifies inci- dents as terrorism); Erin Kearns et al., Why Do Some Terrorist Attacks Receive More Media Coverage than Others? Justice Quarterly 6, 885-1022 (2019) (highlighting disparities in media coverage of terrorism and the potential impact on public perception); Caroline Mala Corbin, Essay, Terrorists Are Always Muslim but Never White: At the Inter- section of Critical Race Theory and Propaganda, 86 Fordham L. Rev. 455 (2017) (examining how false narratives about the racial, ethnic, and religious identities of terrorists reinforce propaganda such as racial stereotypes).

37 Charlie Savage, What Would a Domestic Terrorism Law Do?, N.Y. Times (Aug. 7, 2019), https://www.nytimes. com/2019/08/07/us/domestic-terror- law.html. The article contains a misleading suggestion that the federal crime of “Acts of Terrorism Transcending National Boundaries” (18 U.S.C. § 2332b) is the international equivalent to a wouldbe domestic terrorism statute. See also Robert Chesney, Should We Create a Federal Crime of ‘Domestic Terrorism?,’ Lawfare (Aug. 9, 2019), https://www.lawfareblog.com/should-we-create-federal-crime-domestic-terrorism.

38 See generally Mary McCord, The George Washington University Program on Extremism, Filling the Gap in Our Terrorism Statutes (2019), https://extremism.gwu.edu/sites/g/files/zaxdzs2191/f/Filling%20The%20Gap%20in%20Our%20Terrorism%20Statutes.pdf.

39 See, e.g., Stefanie Dazio & Eric Tucker, Experts Push for Domestic Terrorism Laws After Attacks, AP News (Aug. 8, 2019), https://apnews.com/1ec915794dba475bad0fc2a6f1df889a.

40 Although there is no stand-alone federal criminal statute of “domestic terrorism,” neither is there an international equivalent. Congress has defined fifty-seven federal criminal statutes as “federal crime[s] of terrorism” when calculated to influence or retaliate against government conduct. These predicate offenses are delineated at 18 U.S.C. § 2339A, “Providing Material Support to Terrorists.” In addition to 18 U.S.C. § 2339A, fifty-one of the fifty-seven predicate offenses are applicable to both domestic and international terrorism. Within the context of authorities in the form of criminal statutes, the remaining six predicate offenses constitute the gap in the legal framework. Among those statutes is 18 U.S.C. § 2339B, “Providing Material Support or Resources to Designated Foreign Terrorist Organizations.” See Shirin Sinnar, Separate and Unequal: The Law of “Domestic” and “International” Terrorism, 117 Mich. L. Rev. 1333, 1354- 1357 (2019).

41 Letter from Brennan Center for Justice et al. to Sen. Lindsey Graham, Chairman, S. Comm. on the Judiciary, et al. (Sept. 4, 2019), available at https://www.brennancenter.org/our-work/research-reports/brennan-center-and-allies-urge-members-congress-appropriately-address.

42 See generally Michael German & Sara Robinson, Brennan Center for Justice, Wrong Priorities on Fighting Terrorism (Oct. 31, 2018), https://www.brennancenter.org/sites/default/files/2019-08/Report_Wrong_Priorities_ Terrorism.pdf.

43 18 U.S.C. § 2332b(g)(5).

44 Michael German, Why New Laws Aren’t Needed to Take Domestic Terrorism More Seriously, Just Security (Dec. 14, 2018), https://www.justsecurity.org/61876/laws-needed-domestic-terrorism.

45 18 U.S.C. §§ 241, 245, 247, 249; 42 U.S.C. § 3631. Hate Crime Laws, Civil Rights Div., U.S. Dep’t of Justice (updat- ed Mar. 7, 2019), https://www.justice.gov/crt/hate-crime-laws.

46 18 U.S.C. § 2332b (2018).

47 See, e.g., Mary McCord, It’s Time for Congress to Make Domestic Terrorism A Federal Crime, Lawfare (Dec. 5, 2018), https://www.lawfareblog.com/its-time-congress-make-domestic-terrorism-federal-crime(“[H]ad the San Bernardino shooters Syed Farook and Tashfeen Malik survived their pledge of “bayat,” or allegiance, to the leader of the Islamic State before using assault rifles to kill 14 people and injure many others, they likely would have faced charges for a panoply of international terrorism offenses—including providing material support to a designated FTO resulting in death and the aptly named ‘act of terrorism transcending national boundaries.’”).

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48 Charlie Savage, What Would a Domestic Terrorism Law Do?, N.Y. Times (Aug. 7, 2019), supra note 37.

49 Nat’l Sec. Div., U.S. Dep’t of Justice, Introduction to the National Security Division’s Chart of Public/ Unsealed International Terrorism and Terrorism-Related Convictions from 9/11/01 to 12/31/17 (2018), avail- able at https://www.muckrock.com/foi/united-states-of-america-10/doj- national-security-divisions-international-terrorism-and-terrorism-related-statistics-chart-56128/#file-204494.

50 For an example of these arguments, see Harry Litman, Opinion, A Domestic Terrorism Statute Doesn’t Exist. Congress Must Pass One – Now. Wash. Post (Aug. 5, 2019), https://www.washingtonpost.com/opinions/2019/08/05/domesticterrorism-statute-doesnt-exist-congress-must-pass-one- now.

51 See Michael German & Sara Robinson, Brennan Center for Justice, Wrong Priorities on Fighting Terrorism (Oct. 31, 2018), supra note 42, at 8.

52 18 U.S.C. §§ 2332, 2339D, 2340A.

53 18 U.S.C. § 956(a)(1). This statute could potentially apply to conduct that fits within the federal definition of domestic terrorism codified at 18 U.S.C. § 2331, but it does not appear that prosecutors have brought charges under this statute in domestic terrorism cases. At the very least, this statute could apply to individuals in the United States con- spiring to commit white supremacist violence abroad or to join foreign white supremacist paramilitary organizations.

54 21 U.S.C. § 960a.

55 See Letter from Rep. Max Rose, Chairman, H. Homeland Security Subcomm. on Intelligence & Counterterrorism, et al. to Michael Pompeo, Secretary of State, U.S. Dep’t of State (Oct. 16, 2019), https://maxrose.house.gov/uploadedfiles/2019.10.16_rose_fto_letter_to_state.pdf.

56 Charlie Savage, What Would a Domestic Terrorism Law Do?, N.Y. Times (Aug. 7, 2019), supra note 37 (quote attributed to David Cole, Legal Director, American Civil Liberties Union).

57 See, e.g., Columbia Law School Human Rights Institute & Human Rights Watch, Illusion of Justice: Human Rights Abuses in U.S. Terrorism Prosecutions (2014), https://www.law.columbia.edu/sites/default/files/microsites/human-rights-institute/files/final_report_-_illusion_of_justice.pdf.

58 Oversight of the Federal Bureau of Investigation: Hearing before the H. Subcomm. on Science, the Departments of State, Justice, and Commerce, and Related Agencies, 109th Cong. (Sept. 14, 2006) (written statement of Robert S. Mueller III, Director, Fed. Bureau of Investigation), available at https://archives.fbi.gov/archives/news/testimony/the-fbi-transformation-since-2001.

59 Hina Shamsi, White Supremacist Violence Is On the Rise. Expanding the FBI’s Powers Isn’t the Answer. American Civil Liberties Union (Sept. 25, 2019), supra note 17.

60 Mission & Priorities, Fed. Bureau of Investigation (accessed Dec. 17, 2019), https://www.fbi.gov/about/mission.

61 U.S. Dep’t of Justice, Strategic Plan for Fiscal Years 2018-2022 (2017), https://www.justice.gov/jmd/page/file/1071066/download.

62 Such data could be used to ensure that the enforcement of hate crime statutes, which often authorize some form of penalty enhancement, do not exacerbate existing disparities within the criminal legal system. See Kai Wiggins, The Dangers of Prosecuting Hate Crime In an Unjust System, American Constitution Society (Aug. 5, 2019), https://www.acslaw.org/expertforum/the-dangers-of-prosecuting-hate-crimes-in-an-unjust-system.

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