There is a kind of gap in federal criminal law that allows the activities of homegrown domestic terrorists to escape the full attention of federal law enforcement, particularly the FBI. A hearing yesterday in the House drew intense focus on that reality.
“There are holes, there are gaps here—not through your fault, or any one specific person’s fault—it could be our fault, as Congress,” said Rep. Alexandria Ocasio-Cortez of New York as she queried the FBI’s Michael McGarrity. “But could you see how one could see how the way that we are pursuing and charging white supremacy … can you see how people would say that these are being treated differently?”
The hearing, titled “Confronting White Supremacy: Adequacy of the Federal Response,” featured testimony from McGarrity, who is the assistant director of the FBI’s Counterterrorism Division, as well as Calvin Shivers of the FBI’s Criminal Investigative Division and Elizabeth Neumann of Department of Homeland Security’s Threat Prevention section, along with experts from the Southern Poverty Law Center, Life After Hate, Arizona State University, and the Texas Department of Public Safety.
McGarrity’s halting response to Ocasio-Cortez underscored the point that kept rising to the surface during the hearing: namely, that while domestic terrorism has been defined in federal criminal statutes, there are no penalties attached to it. So while the FBI may even designate an investigation as domestic terrorism, the Justice Department cannot actually charge anyone with the crime.
There is a legitimate debate within civil-liberties circles over whether or not Congress should act to fill that gap. Georgetown law professor Mary McCord has been making a compelling case for doing so for several years. At the same time, Michael German, a renowned expert with deep FBI background, has made a similarly compelling argument that these federal agencies already have all the tools needed to deal appropriately with the problem, and new laws could threaten many others’ civil liberties as well.
However, as Trevor Aronson at The Intercept has explained in depth, those tools in reality are inadequate for the breadth of the threat we now face. For instance, the “material support” regime that German and others recommend requires the use of a bomb or radiological device, or the targeting of federal property to properly be applied. Mass shootings like the Christchurch and Pittsburgh massacres would not qualify, nor would James Fields’ car attack in Charlottesville.
Moreover, as domestic-terrorism expert Daryl Johnson explained to Daily Kos, any FBI investigation is necessarily focused on criminal activity, so any monitoring of white-nationalist and neo-Nazi extremists before they act is out of their purview. This is why the Trump administration’s decision to completely eliminate its unit devoted to specifically examining homegrown extremist terrorism is so counterproductive, because it means there will be no one monitoring these groups until they commit some kind of criminal act. Meanwhile, broader threats—such as increased animus directed at a minority religious or ethnic community—will likely go unnoticed.
There’s little question, as every official at Tuesday’s hearing remarked, that we are faced with a powerful rising tide of white-nationalist domestic terrorism. And a ruling this weekend by a federal judge in California, which threw out the prosecution of a gang of white supremacists for planning to engage in rioting as unconstitutional, shows American courts and law enforcement are struggling to even begin coping with the scope of the problem.
This is not a new problem. As Ocasio-Cortez attempted to point out, the FBI struggled to even designate Dylann Roof’s massacre of nine black parishioners at a church in Charleston, South Carolina, in 2015 an act of domestic terrorism, and eventually only charged him with a federal hate crime, precisely because of this gap. And despite McGarrity’s attempts to demur on this point, it remains a fact that then-FBI director James Comey declined to tell reporters that this was a case of domestic terror, in part because the FBI for years has relied on a definition of terrorism that insisted on organizational ties before any designation could be made.
That confusion has much to do with how poorly federal law enforcement has prioritized right-wing domestic terrorism for the past decade. As a study I authored explained in 2017, both the data and the records demonstrate that these twisted priorities have helped skew the outcome in the real world: In contrast to the heavy emphasis on Islamist terrorism, far-right domestic terrorists have committed nearly twice as many acts on American soil in the past decade and longer.
Yet the FBI often will point to the fact that, as the statutes are currently written, terrorism charges require a connection to an overseas terrorist organization, which is the chief reason the Justice Department doesn’t file charges against non-Muslims. And though they adamantly deny this affects whether or not a case is investigated as terrorism, the record strongly shows this often is not the case. Ocasio-Cortez smartly called this out, too.
“Is white supremacy not a global issue?” she asked McGarrity.
“It is a global issue,” McGarrity concurred.
“So then why are they not charged with foreign terrorism?”
“Because the United States Congress doesn’t have a statute for us for domestic terrorism like we do for a foreign terrorist organization, like ISIS, al-Qaida, Al-Shabbab,” he replied.
Also worthy of note at this hearing: Only one Republican, Rep. Chip Roy of Texas, asked any questions of any of the witnesses.