If James Alex Fields had shouted something about ISIS or al-Qaida as he was pulled from his car after he plowed into counter-protesters in Charlottesville, Virginia, there would be little doubt about the charges. He would be a terrorist. However, no matter how much Fields may have sworn allegiance to the KKK, white nationalism, or fascist extremism, the results are very different.
According to the Justice Department and legal analysts, it's simply not possible for the government to file charges of domestic terrorism, because no such criminal law exists.
The term “domestic terrorism” gets widely used, but in terms of the law, there’s no such charge. Which gives these groups a decided advantage.
But U.S. law enforcement officials, who enjoy sweeping powers to investigate and prosecute suspected foreign terrorists on U.S. soil, face obstacles to charging the man, James Alex Fields Jr., as a terrorist. The Justice Department's civil rights division is currently focused on whether Fields committed a hate crime.
Nazism certainly didn’t get its start in the U.S. White nationalists share a cause, materials, and leadership groups in Europe. But violent extremists associated with these groups are not considered to have connections to foreign groups. On the other hand, anyone who claims to act in the name of ISIS or other Muslim group is treated as a terrorist, even if they’ve never had any contact with foreign elements of that group.
Which certainly suggests that the problem goes beyond the people directly causing the violence.
To a large extent, it’s understandable that violence created in the name of domestic politics might be treated separately from acts driven through association with overseas groups. But the line that’s being drawn now seems extremely artificial.
U.S. officials are severely limited in their ability to crack down on domestic extremist groups—even those who spew hate-filled rhetoric, acquire arms and advocate violence.
The revived white nationalist movement in the United States has certainly benefited from the election of Donald Trump (just as Trump benefited from the growing white nationalist movement). However, that growth hasn’t come in isolation. All across Europe, nationalist movements have threatened to upend traditional politics. The British departure from the European Union was certainly driven, at least in part, by similar sentiments, and while France pushed away from white nationalism in their election, that hasn’t been true everywhere. Poland, where Trump recently traveled to make a speech, has installed a nationalist, anti-immigrant government that has rolled back many democratic protections.
Radical white supremacy isn’t a uniquely domestic affliction, and leaders from other nations have frequently appeared at gatherings in the U.S. to address followers. And still …
The State Department has a list of nearly 60 groups, all foreign, that are identified as terrorist organizations. The vast majority are radical Islamists. And the government can charge a person — American or foreign — with terrorism on behalf of these international groups.
That list of groups is here. In addition to Islamic groups, it contains groups of communist guerrillas, such as FARC, along with some remnant factions of the IRA. The last time a group was added that wasn’t an Islamic group was 2004. The list contains no white supremacist groups. Not the fascist New European Order. Or ESM. None.
So even though white supremacist groups may represent the greatest terror threat to Americans … they don’t count as terrorists when they get to court.
The government has historically used the term "terrorism" as a general description for a range of violent acts, including those by right-wing extremists, as well as environmental, anti-abortion and far-left groups. But the specific criminal charge is never domestic terrorism.
No one wants the FBI or any other law enforcement group to have blanket permission to go after political groups inside the United States. Many of the reforms of the 1960s and 1970s were meant to address abuses that had happened in just this area. But the way the law differentiates between murderers who claim a connection to Islamic groups, no matter if they’ve ever had any actual contact, compared with white nationalists who may have shared meetings, materials, and resources with European groups illustrates that even terrorism laws have an implicit racism.