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Why the El Paso shooter isn’t being charged with terrorism

How the law defines terrorism, and what that means for the fight against white nationalist terror, explained.

The Mexican and US flags fly at a makeshift memorial honoring victims outside Walmart, near the scene of a mass shooting which left at least 22 people dead, on August 7, 2019, in El Paso, Texas.
Mario Tama/Getty Images

It’s no wonder that the US attorney for the Western District of Texas said Sunday that the man who drove 600 miles to kill 22 people in the ethnically diverse city of El Paso, Texas, was being treated as a domestic terrorist. But it’s a largely hollow statement: The shooter won’t be charged as a domestic terrorist.

For many reasons, domestic terrorism in the United States — largely committed by people ideologically tied to white nationalism and white supremacy — is viewed differently from the international variety and has no specific penalties under the law. This fact has been the source of anger on the left for years — after the Oklahoma City bombings, for example — but some prominent conservatives have now coalesced around the same thought.

Even President Donald Trump described the El Paso shootings as terror, saying, “We have asked the FBI to identify all further resources they need to investigate and disrupt hate crimes and domestic terrorism, whatever they need.” And commentators across the political spectrum seem more willing than ever to view white nationalist terrorism as what it is.

As Townhall political editor Guy Benson wrote of the shooter, “He is the latest in a string of mostly young white men who have become radicalized by extremist communities, often online, then unleash their poisonous anger on innocents. They maim and kill in the name of a twisted ethno-political agenda. This is, by definition, terrorism. It must be treated as such by law enforcement at every level of government.”

But the public outcry is clashing with how the FBI actually handles violence motivated by white nationalism. Unlike disrupting foreign terrorist plots — an effort the bureau has actively funded and focused on since the 9/11 terror attacks — potential domestic threats have received far fewer resources. And the diffuse nature of the white nationalist movement in the United States has made it even more challenging for those efforts that do exist — as do the constitutional protections available to every American, including white nationalists.

For his part, FBI Director Christopher Wray has responded to the criticism by threading a careful line: noting the approximately 100 arrests law enforcement has made this year centered on domestic terror, but also making clear that agents “don’t investigate ideology, no matter how repugnant.”

There is a certain irony to the FBI and Justice Department’s claims that either organization avoids “investigating ideology,” given their collective history. But their argument nonetheless shows that if critics of the FBI’s efforts to stop white nationalist terror want real change, it’ll take more than words. And the results might be more constitutionally and practically fraught than observers expect.

Critics to the FBI: it’s time to take action on white nationalist terror

2020 Democrats and many others have called for the FBI to do more to combat the threat of white nationalist terror.

Washington Gov. Jay Inslee, for example, released a 10-point plan on Tuesday that called for “a whole-of-government strategy to confront white supremacy as a distinct and discrete terrorist threat to America,” and noted that a lack of resources was preventing the US government from doing what it can to “identify, track, and publicly report on white nationalist activity.” And South Bend, Indiana, Mayor Pete Buttigieg released his plan on Monday, which says he would “empower law enforcement — including the FBI, state and local authorities — with greater resources for preventing domestic terrorist attacks before they occur.”

It’s true that resources to fight white nationalist extremism appear to have dwindled since the 1990s, in reaction to the 9/11 terrorist attacks (which caused intelligence agencies to refocus on international terror). The shift may also be because of an outcry from conservatives over a 2009 Department of Homeland Security report on “right-wing extremism.” Then-House Minority Leader John Boehner decried the report’s use of “terrorist,” saying it had been applied to “American citizens who disagree with the direction Washington Democrats are taking our nation.”

Amy Spitalnick, the executive director of Integrity First for America, the group supporting lawsuits filed against the organizers of the deadly Unite the Right rally in 2017, told me that the funding cuts under Trump to stop domestic terror attacks had also included cuts to programs aimed at rehabilitating white nationalists.

“Department of Justice civil rights investigations are down 60 percent over the last few years,” she said. “The Department of Homeland Security’s domestic terror intelligence unit was cut; and just before Charlottesville, DHS cut funding for anti-extremism programs like Life After Hate.”

Funding difficulties are just part of the problem. David Gomez, who worked in the FBI for more than 25 years and managed several joint terrorism task forces in the Pacific Northwest, told me that while agencies work to prevent international terrorism, “domestic terrorism cases are handled in a primarily reactive manner, i.e., after the crime occurs.” For example, the mass shooting at the Gilroy Garlic Festival in California is now under a domestic terrorism investigation, an announcement made weeks after the shooting took place and claimed the lives of three people, including two children.

Then there’s the problem of how white nationalist terror is classified by the government. Michael German, a fellow at the Brennan Center for Justice and a former FBI special agent who focused on domestic terrorism, said part of the problem is that white nationalists who commit violent acts are often charged under statutes that govern gangs and organized crime. Those crimes receive severe penalties, but “the charges aren’t what matters,” German said. “What matters is that terrorism is the FBI’s No. 1 priority and violent crimes or gang crimes are the sixth priority. So these cases receive less resources.”

He added that the violent acts associated with white nationalist terrorists aren’t counted in statistics kept on terror, obscuring, in German’s view, the “scope of white supremacist violence and criminal activity” in America.

The FBI says it’s not so simple

But the FBI has argued that the offenders who tend to commit acts of terror linked to white nationalism are especially difficult to track before they strike. While attacks by specific terrorist organizations are often coordinated within groups that could be infiltrated by informants, white nationalist attacks are largely taken upon by individuals who don’t coordinate their actions.

As FBI Assistant Director Michael McGarrity told the House Homeland Security Committee in May, “We are most concerned about lone offenders, primarily using firearms, as these lone offenders represent the dominant trend for lethal domestic terrorists. Frequently, these individuals act without a clear group affiliation or guidance, making them challenging to identify, investigate and disrupt.”

J.M. Berger, a violent ideologies researcher and the author of Extremism, told me, “The diffuse nature of the movement presents a big challenge. While there are some clusters of activity, such as Atomwaffen Division, the attacks we’ve seen over the last year don’t appear to emanate from a specific organization.”

Because so much radicalizing activity takes place online, where many different sources can easily share material and propaganda with thousands of people, clamping down on specific networks or individuals to prevent attacks is particularly difficult. “Several recent attacks have had an online locus to 8chan,” Berger said. “But the nature of the anonymous posting structure and extreme culture there makes (or made) it pretty a challenging space for investigative or preventative work.”

Then there’s the question of what the FBI says it is legally allowed to do.

Unlike the fight to stop international terror — the terrorist group ISIS, for example — law enforcement in the United States faces specific constraints when battling white nationalist terror domestically.

It’s not against federal law to join a white supremacist or white nationalist organization, or to espouse white nationalist viewpoints. Constitutionally, the right to associate freely with white nationalist individuals or groups in either physical or online spaces is protected. David Gomez told me, “In the FBI, no domestic terrorism case can be opened based solely on constitutionally protected free speech.”

As BuzzFeed News reporter Zoe Tillman points out, laws that bar American citizens from assisting foreign terrorist organizations don’t exist to prevent American citizens from donating money or supplies to domestic terror groups. And the conduits to white nationalist radicalization — from books like The Turner Diaries and The Great Replacement to white nationalist propaganda once circulated via newsletters and now shared online — are constitutionally protected.

The FBI’s history cuts both ways

The FBI and Department of Justice have lengthy histories of battling white nationalist terror groups and organizations, using informants and surveillance to monitor white nationalist organizations and try to stop attacks before they take place. It was, after all, a paid FBI informant who stopped a planned attempt to bomb a Kansas apartment complex that was home to hundreds of Somali refugees in 2016, and it was an undercover FBI agent who may have prevented an attack on a South Carolina synagogue in 2017.

But the history of the FBI makes Director Wray’s point regarding “policing ideology” all the more poignant, because the agency and the Department of Justice itself have historically been all too happy to do just that.

Under the 1956 to 1971 COINTELPRO program, the FBI and DOJ used heavy-handed tactics to battle the 1960s iteration of the Ku Klux Klan and other white supremacist groups like the American Nazi Party. Those included everything from hiring mob enforcers to sending thousands of postcards to suspected Klan members with messages like “KLANSMAN! Trying to hide your identity under your sheet? You received this. SOMEONE knows who you are.”

Those practices helped to break the grip of the Klan and other white nationalist and white supremacist groups, but those same practices were used against civil rights luminaries and antiwar activists, as shown by the 1976 findings of the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, also known as the Church Committee.

Resurrecting that level of ideology policing is a fraught prospect, even for those asking the FBI to do more today.

As National Review editor Rich Lowry notes, “Of course, the contemporary FBI obviously isn’t going to take over the alt-right, nor should we want it to. The abuses of the COINTELPRO programs — the FBI also targeted civil-rights groups and the New Left, among others — became notorious when they were exposed in the 1970s.”

There’s a debate over whether domestic terror needs its own statute

That’s why some experts oppose calls to create a statute that would make domestic terrorism a specific crime.

Michael German, the former FBI special agent, said a domestic terrorism statute would be duplicative because the acts committed by white nationalist terrorists are generally already crimes. For example, the men behind the Oklahoma City bombing weren’t charged with domestic terrorism, but with charges centered on conspiracy to use a weapon of mass destruction and malicious destruction of property. In a brutal attack committed by white supremacists in Jackson, Mississippi, in 2011, those involved were charged with federal hate crimes, assault, and murder and were ultimately sent to prison.

“There are already 52 federal crimes of terrorism that apply to entirely domestic acts, five federal hate crimes statutes that address the bias crimes often committed by white supremacists commit ... and dozens of other statutes that can and have been used to prosecute domestic terrorists,” he said. “The Justice Department’s failure to prioritize the investigation and prosecution of white supremacists results from a policy choice, not a lack of authority.”

German added that any statute aimed at white nationalist violence would likely be used against nonviolent political activism of all kinds. He said that under current statutes governing domestic terror, the Department of Justice is “most aggressively targeting groups like Black Lives Matter activists (which the FBI labeled as black identity extremists), Standing Rock water protectors, environmental activists, and anti-Trump protesters, who are far less violent than white supremacists and far-right militia groups that are consistently committing violent.”

“As in earlier eras, the FBI has been targeting these activists using their nonviolent civil disobedience as justification for opening terrorism cases against them.” It’s DOJ’s “intentional lack of attention” to crimes committed by white nationalists that’s the problem, German said, not a lack of laws governing domestic terror.

But David Gomez, the former terrorism task force coordinator, disagrees, telling me that what’s needed is “expanded legal jurisdiction in the form of new laws allowing proactive investigation” into white nationalist terror.

Spitalnick concurred, saying that addressing the role of online platforms in radicalizing white nationalists is necessary, along with other efforts. Those include improving the existing domestic terror statute, investing in counter-extremism measures on the federal, state, and local level, and passing legislation like the Domestic Terrorism Prevention Act, a bill that would codify an interagency domestic terror task force into law. In short, she said, “domestic terrorism must be treated with the same weight as global terrorism.”

What took place in El Paso was an act of domestic terrorism, as law enforcement, commentators and millions of Americans have agreed. But what that means rhetorically is different from what it means legally. We’re finally ready to call white nationalist terrorism “terrorism,” but law enforcement, for many reasons, isn’t bringing charges under that name. And, perhaps, it shouldn’t.

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