Wrong Priorities on Fighting Terrorism By Michael German and Sara Robinson Introduction After the al Qaeda attacks of September 11, 2001, the statutory authority to prosecute white supremacists and U.S. Department of Justice named terrorism prevention others as domestic terrorists. As a result, Justice Depart- its number-one mission.1 But it does not treat all terror- ment officials have called for a new statute that would ism with the same urgency. For many Americans, this create a domestic terrorism offense, perhaps modeled disparity became evident when Dylann Roof assassinated on the international terrorism statutory regime. But this Reverend Clementa Pickney and eight members of his approach is misguided. Mother Emanuel African Methodist Episcopal Church in Charleston, South Carolina, in June 2015. This is the first in a series of white papers exploring the federal government’s problematic responses and non- In interviews, then-FBI Director James Comey refused responses to domestic terrorism. In this paper, we show to call the attack an act of terrorism, aggravating long- that existing statutes have long provided substantial standing complaints that the Justice Department did not authority for the federal government to investigate and view domestic terrorism involving racist, Islamophobic, prosecute acts of domestic terrorism. anti-Semitic, homophobic, and anti-immigrant violence from the far right as a national security problem on par One of the co-authors of this paper has personal ex- with terrorist acts committed by Muslims.2 perience investigating violent white supremacists and anti-government militia members as an FBI undercover These concerns grew more pronounced as Donald agent in the 1990s. That work demonstrates that tradi- Trump’s bigoted campaign rhetoric inspired rallies around tional law enforcement tools provide ample authority to the country in which neo-Nazis, white nationalists, proactively prevent acts of domestic terrorism through proto-fascists, and far-right militias openly engaged in criminal investigation and prosecution. violence. This included beatings, stabbings, and shootings of counter-protesters and journalists, with little interfer- Data produced by the federal government, supplemented ence from law enforcement at the time and just a handful with research from academic institutions and advocacy or- of belated federal prosecutions.3 ganizations, shows that far-right violence, sometimes cate- gorized as hate crimes or civil rights violations, is severely Many in federal law enforcement blamed their inade- under-addressed as a matter of Justice Department policy quate response to rising far-right violence on a lack of and practice, rather than a lack of statutory authority. COMBATING DOMESTIC TERRORISM | 1 Moreover, there is reason to fear that new laws expand- protesters and political dissidents instead of terrorists, ing the Justice Department’s counterterrorism powers Congress should intensify its oversight of federal counter- will not make Americans safer from terrorist violence. terrorism and civil rights programs to ensure that security Instead, they may further entrench existing disparities in resources are directed toward the deadliest threats and communities the government targets with its most ag- all Americans receive equal protection under the law. gressive tactics, with serious implications for Americans’ Congress must require that counterterrorism resource de- free speech, association, and equal protection rights. cisions be based on objective evaluations of the physical harm different groups pose to human life, rather than on This paper argues that rather than expanding counter- political considerations that prioritize the safety of some terrorism powers that could be further abused to target communities over others. Arbitrary Distinctions Between Terrorism Based on Race, Ethnicity, and Ideology Since 9/11, the Justice Department has prioritized “in- was the last year figures were published.7 Together, these ternational terrorism” investigations, which in practice numbers suggest that the FBI assigns significantly more primarily target Muslims, over “domestic terrorism” agents to international terrorism probes than it does to investigations, which do not.4 International terrorism domestic ones. investigations often involve aggressive monitoring and infiltration of Muslim, Arab, Middle Eastern, South Further, within the field of domestic terrorism, the Justice Asian, and African American communities throughout Department has a history of minimizing far-right violence the United States. while aggressively targeting minority activists and far-left protest movements. The latter group has engaged in civil The rationale is to preemptively identify and selectively disobedience and vandalism but statistically has present- prosecute “radicalized” individuals who might express ed a much lower danger to human life, which is a key opposition to United States foreign policies or support element of the federal definition of terrorism. In 2005, for for groups that the United States designates as foreign example, the FBI declared ecoterrorists the number-one terrorist organizations but that have not attempted to domestic threat, despite not a single fatal attack in the commit violent acts.5 The federal government’s “do- United States attributable to protest groups that the gov- mestic terrorism” efforts, on the other hand, investigate ernment deems “environmental extremists.”8 and prosecute only a small percentage of the violent acts committed by racists, white nationalists, and other far- A 2010 Justice Department Inspector General report right militants. criticized a number of FBI Joint Terrorism Task Force investigations of animal rights, peace, and social justice In fact, as discussed further below, the distinctions the advocates for treating trespassing, nonviolent civil disobe- government makes between international and domestic dience, and vandalism as “acts of terrorism.”9 Likewise, terrorism are often arbitrary, based on misunderstandings in the weeks before the deadly Charlottesville, Virginia, of terrorist motivations and behaviors, and have little to “Unite the Right” rally, the FBI’s Domestic Terrorism do with objective assessments of the physical threats the Analysis Unit warned law enforcement that “Black Identi- different groups pose to Americans. Yet the Justice De- ty Extremists” posed a deadly threat, despite the fact that partment devotes far more resources to cases it describes no such movement exists.10 The Justice Department hes- as “international” terrorism than “domestic” terrorism. itated to bring federal charges after a series of violent far- right riots around the country, in Sacramento, Anaheim, The FBI ranked counterterrorism as its number-one and Seattle before Charlottesville, left counter-protesters priority after the 9/11 attacks, and by 2004, 3,255 of its stabbed, beaten, and shot.11 field agents worked counterterrorism, which included both international and domestic terrorism.6 The FBI does By contrast, federal prosecutors aggressively pursued not reveal how many agents it assigns to international more than 200 felony conspiracy cases against activ- terrorism investigations. But according to a 2010 Justice ists and journalists who attended a January 20, 2017, Department Inspector General audit, the number of FBI anti-Trump protest, where some in the crowd broke store field agents assigned to domestic terrorism investigations windows and set a limousine on fire.12 After two trials averaged less than 330 from 2005 through 2009, which of the first dozen activists ended with acquittals and a COMBATING DOMESTIC TERRORISM | 2 judge ruled prosecutors illegally withheld evidence from or whether they crossed United States or international defense attorneys, the Justice Department dropped the borders to commit it. remaining cases.13 Treating civil disobedience and prop- erty crimes as “terrorism” diverts resources from more The FBI characterizes domestic terrorism as violent acts serious and deadly crimes, chills political activism, and perpetrated “by individuals and/or groups inspired by undermines public confidence in apolitical and equitable or associated with primarily U.S.-based movements that law enforcement.14 espouse extremist ideologies of a political, religious, social, racial, or environmental nature.”20 More simply, it has 1. Statutory Terrorism Definitions suggested domestic terrorism is “Americans attacking Are Being Ignored Americans based on U.S.-based extremist ideologies.”21 In Both international and domestic terrorism are defined in contrast, it defines international terrorism as acts perpe- federal law. Statute 18 U.S.C § 2331(5) defines domestic trated by those affiliated “with designated foreign terrorist terrorism as activities that “involve acts dangerous to organizations or nations (state-sponsored).”22 human life that are a violation of the criminal laws of the United States or of any State, appear to be intended to The Justice Department similarly identified domes- intimidate or coerce a civilian population; to influence the tic terrorist threats as those emanating from particular policy of a government by intimidation or coercion; or to ideological viewpoints, such as “animal rights extremists, affect the conduct of a government by mass destruction, ecoterrorists, anarchists, antigovernment extremists such assassination, or kidnapping, and occur primarily within as ‘sovereign citizens’ and unauthorized militias, black the territorial