Legal Constraints Hobble FBI’s Fight Against Domestic Terror (#GotBitcoin?)
Mass shootings prompt demands for more action by federal law enforcement. Legal Constraints Hobble FBI’s Fight Against Domestic Terror (#GotBitcoin?)
In the weeks leading up to a 2017 white-nationalist rally in Charlottesville, Va., Federal Bureau of Investigation analysts pored over online forums frequented by white supremacists and other far-right extremists, concerned a planned “Unite the Right” rally had a potential for violence.
Investigators sifted for hateful rhetoric from people who said they planned to attend and shared what intelligence they could with state and local authorities, a person familiar with the investigation said.
But that didn’t stop violence at the rally. An avowed white supremacist drove into a crowd of counterprotesters, killing a woman and injuring many others, and more people were hurt in other clashes.
Demands for federal law enforcement to do more to guard against domestic terrorism—particularly mass-casualty attacks inspired by white supremacy or white-nationalist ideologies—have grown since the recent shootings in Texas, Ohio and California. But the Charlottesville case highlights the limits of the FBI’s ability to be proactive. Without evidence of a planned violent act or other crime, it can do little to intervene.
U.S. authorities can robustly monitor international terrorists with the goal of disrupting plots before they occur. But severe legal constraints limit what the FBI can do at home. And anything that would allow more rigorous intelligence-gathering on purely domestic threats could run aground in the courts and prompt criticism in Congress from those who have opposed expansion of surveillance authority.
In addition, domestic terrorism isn’t a federal crime in itself, though there are proposals in Congress to change that. Many believe criminalizing domestic terrorism could lead to more successful cases even if the law doesn’t include broader investigative authority. Currently, prosecutors sometimes have to reach to make other statutes fit the crimes. Many acts of mass violence are also charged at the state level.
America has experienced bouts of domestic radical violence before, including attacks on civil-right activists in the 1950s and ‘60s, antigovernment bombings during the 1970s and activity by militia groups in the 1990s.
After the Sept. 11, 2001, terrorist attacks, much of the FBI’s focus shifted to threats from the Middle East. Thousands of special agents were reassigned. The bureau essentially remains on that footing, identifying global terrorism as its priority.
Yet FBI officials now say that right-wing domestic terrorism poses just as serious a threat. In the fiscal year that ended in September, the bureau made about 100 international-terrorism arrests and 115 arrests related to domestic terror.
Far-right ideologies encompass a range of views, including white nationalism, white supremacy, neo-Nazism, as well as other antigovernment or anti-immigrant views. Not all groups or individuals affiliated with those ideologies espouse violence. Nonviolent expressions of any ideology are broadly protected under the Constitution. There are also concerns, including from President Trump, about left-wing self-described antifascist groups.
The nonpartisan centrist think tank New America estimates that Islamic extremists have killed 104 people inside the U.S. since the Sept. 11 attacks, while people inspired by far-right ideologies have killed 109.
Data compiled by New Jersey authorities found that 25 out of the 46 domestic-terrorism suspects nationwide in 2018 appeared to be motivated by white supremacy, eclipsing other motivations and ideologies. FBI Director Christopher Wray said before Congress last month that many domestic-terrorism arrests involved white supremacy.
The FBI and other law-enforcement agencies have for years warned of the rising threat of white supremacists. Bureau officials within the last year started developing strategies for addressing the domestic threat by analyzing how they successfully targeted international terrorists through undercover work and sting operations, a senior counterterrorism official recently said.
It directed more manpower and support toward domestic threats, though still only about 20% of the counterterrorism division’s resources.
The FBI also this year formed what it calls a domestic terrorism-hate crimes “fusion cell” designed to bring together agents assigned to civil-rights cases and counterterrorism to better coordinate information-sharing and intelligence-gathering.
Yet, the agency’s ability to open an investigation solely based on hateful speech or affiliation with known domestic extremists is severely curtailed. Americans’ rights to speak, organize in groups and even stockpile firearms are largely protected by the Constitution. As a result, the law-enforcement response to domestic terrorism has been largely reactive—investigating and helping prosecute attacks after they occur.
Lawmakers from both parties have pitched proposals in recent years to make domestic terrorism a crime. Sen. Martha McSally (R., Ariz.) and Rep. Adam Schiff (D., Calif.) introduced separate proposals last week for a new domestic-terrorism crime.
Drafts of a domestic-terrorism statute have been floated around the Justice Department for years, but none has gained much traction with department leadership, said people involved in the discussions.
That is in part because most of the measures debated would do little to give law-enforcement agents more authority to disrupt plots. And stronger tools might draw sharp political opposition—liberal Democrats and libertarian Republicans have traditionally been skeptical of greater domestic surveillance, while Republicans have rejected most proposals to restrict firearms.
“I always advocated for it and think it would be very helpful from an investigative standpoint,” said Michael Mullaney, who served as the department’s counterterrorism chief during the Bush, Obama and Trump administrations. “Nonetheless, it’s not an easy problem to solve because it would bump up against the First and Second Amendment.”
Other officials say other approaches could be used without passing new laws that many critics say could threaten free-speech rights.
By treating domestic hate groups as “criminal enterprises,” the FBI can pursue federal racketeering, conspiracy or hate-crimes charges that carry steep penalties, said Adam Lee, a former high-ranking FBI official who oversaw hate-crimes cases and led the Richmond field office during the 2017 Charlottesville rally.
The leader of a white-supremacist conspiracy to rob and kill a silver-and-coin dealer in Richmond hoping to finance a race war was sentenced to more than 17 years in prison in 2016, even though he wasn’t charged under terrorism laws. The Charlottesville attacker was sentenced to life in prison on 29 counts of hate-crimes charges.
But Barbara McQuade, a former federal prosecutor who now teaches law at the University of Michigan, says a domestic-terrorism law could help. She recalled working on a 2010 case against Michigan militia members who allegedly threatened to kill police officers. The government charged them with “seditious conspiracy,” via a little-used post-Civil War law.
The judge, in dismissing the conspiracy-related charges, wrote that “offensive speech and a conspiracy to do something other than forcibly resist a positive show of authority by the federal government is not enough to sustain a charge of seditious conspiracy.”
“Without a domestic terrorism statute,” Ms. McQuade said, “it’s difficult.” Legal Constraints Hobble FBI’s,Legal Constraints Hobble FBI’s,Legal Constraints Hobble FBI’s
FBI’s Use of Foreign-Surveillance Tool Violated Americans’ Privacy Rights, Court Found
U.S. discloses ruling last year by Foreign Intelligence Surveillance Court that FBI’s data queries of U.S. citizens were unconstitutional.
Some of the Federal Bureau of Investigation’s electronic surveillance activities violated the constitutional privacy rights of Americans swept up in a controversial foreign intelligence program, a secretive surveillance court has ruled.
The ruling deals a rare rebuke to U.S. spying activities that have generally withstood legal challenge or review.
The intelligence community disclosed Tuesday that the Foreign Intelligence Surveillance Court last year found that the FBI’s pursuit of data about Americans ensnared in a warrantless internet-surveillance program intended to target foreign suspects may have violated the law authorizing the program, as well as the Constitution’s Fourth Amendment protections against unreasonable searches.
The court concluded that the FBI had been improperly searching a database of raw intelligence for information on Americans—raising concerns about oversight of the program, which as a spy program operates in near total secrecy.
The court ruling identifies tens of thousands of improper searches of raw intelligence databases by the bureau in 2017 and 2018 that it deemed improper in part because they involved data related to tens of thousands of emails or telephone numbers—in one case, suggesting that the FBI was using the intelligence information to vet its personnel and cooperating sources. Federal law requires that the database only be searched by the FBI as part of seeking evidence of a crime or for foreign intelligence information.
In other cases, the court ruling reveals improper use of the database by individuals. In one case, an FBI contractor ran a query of an intelligence database—searching information on himself, other FBI personnel and his relatives, the court revealed.
The Trump administration failed to make a persuasive argument that modifying the program to better protect the privacy of Americans would hinder the FBI’s ability to address national-security threats, wrote U.S. District Judge James Boasberg, who serves on the FISA Court, in the partially redacted 167-page opinion released Tuesday.
“The court accordingly finds that the FBI’s querying procedures and minimization procedures are not consistent with the requirements of the Fourth Amendment,” Mr. Boasberg concluded.
A Domestic Terrorism Law Is Debated Anew After Capitol Riot
Addressing violent extremism is a Biden priority, but whether the U.S. needs a specific new law is up for debate.
As a candidate, President Biden promised to make tackling domestic violent extremism—a long-simmering issue in the U.S.—a priority.
The threat has taken on fresh urgency after the Jan. 6 attack on the U.S. Capitol, which involved several far-right groups like the Oath Keepers and Proud Boys.
The matter is fraught: Addressing terrorism involving U.S. citizens is complicated by constitutional, political and cultural concerns, homeland-security officials and other experts say.
One long-debated issue is whether the U.S. needs a generic federal domestic terrorism offense with which to charge violent extremists. Mr. Biden’s campaign website said he would make a priority of passing a law against domestic terrorism “that respects free speech and civil liberties,” though it is unclear if that would entail creating a broad statute. The Biden administration has yet to make any recommendations and is considering civil-rights concerns, a senior administration official said earlier in February.
What Is The Argument For A Domestic Terrorism Law?
The Federal Bureau of Investigation can robustly monitor international terrorists with the goal of disrupting plots before they occur. But there are legal constraints on what the bureau can do at home.
Its ability to open an investigation solely based on hateful speech or affiliation with known domestic extremists is severely curtailed by the First Amendment and other constitutional provisions, which protect Americans’ rights to speak, organize in groups and even stockpile firearms. The law-enforcement response to domestic terrorism has been largely reactive—investigating and helping prosecute attacks after they occur.
“Domestic terrorism within law enforcement has historically not been given the importance” of its foreign counterpart, said Tom O’Connor, a former FBI special agent who worked on domestic terrorism cases for 23 years.
By law, U.S. officials have limited ability to monitor communications between people on American soil who may be intent on violence, lacking the sweeping surveillance powers against U.S. citizens that they can use overseas.
The U.S. also has no federal terrorism laws “that apply to the most common method of committing a terrorist attack—a mass shooting—where there is no tie to a foreign terrorist organization,” Mary McCord, a former federal prosecutor, has said.
In recent years, most ideologically motivated killings in the U.S. have been tied to far-right extremists such as white supremacists, according to researchers, the FBI and the Department of Homeland Security.
Some federal prosecutors, FBI officials and experts tracking American extremism have called for a new law for years, particularly after a string of deadly attacks committed by white supremacists. For example, the man responsible for killing 11 people in 2018’s Tree of Life synagogue shooting in Pittsburgh was hit with 44 charges, including federal hate crimes, but faced no terrorism offenses.
“Enacting a federal crime of domestic terrorism would place it on the same moral plane as international terrorism,” Ms. McCord and Jason Blazakis, a professor at Middlebury Institute of International Studies, argued in a 2019 article in Lawfare.
Mr. Blazakis said in a Feb. 11 interview that a statute could result in additional jail time for violent offenders, though such a law would require government oversight to ensure that U.S. authorities don’t infringe on civil rights.
The FBI Agents Association has said it supports creating a law.
Are There Any Bills In Congress That Would Address Domestic Terrorism?
Various bills have been floated in Congress in recent years. Among them, the Domestic Terrorism Penalties Act of 2019, introduced in the House after El Paso, Texas, and Dayton, Ohio, shootings that year, is expected to be reintroduced in the House.
Under the bill, domestic terrorists convicted of homicide could face the death penalty. The bill also provides penalties for kidnapping, assaults and destroying property. A bipartisan trio of Texas congressmen who backed the bill said they wanted to replicate penalties that exist for international terrorism.
The act garnered support from the FBI Agents Association, which said at the time that the bill would help “ensure that FBI agents and prosecutors have the best tools to fight domestic terrorism.” The organization’s position hasn’t changed, a spokesman said.
Several House lawmakers also recently reintroduced the bipartisan Domestic Terrorism Prevention Act. That proposal would direct DHS, the Justice Department and the FBI to devote more resources to addressing the threat, including by reporting to Congress twice a year, according to Rep. Brad Schneider (D., Ill.), the bill’s sponsor.
Who Is Against Creating A Law?
Civil-liberties groups have voiced concerns, arguing that the government already has the necessary laws.
“Decades of experience have shown how law enforcement uses broad terrorism-related authorities to target and surveil Black and brown people, including those engaged in protest,” said the American Civil Liberties Union’s senior legislative and advocacy counsel, Manar Waheed.
Some experts on domestic terrorism prefer tweaking existing policies and statutes instead.
“The FBI ultimately cracked the Ku Klux Klan without a domestic-terrorism statute,” Brian Jenkins, a senior official at the Rand Corp., said in recent written congressional testimony.
“We need a tune up, not a new, untested vehicle,” said Brian Levin, director of the Center for the Study of Hate & Extremism at California State University, San Bernardino. Reforms would “pose less of a threat to civil liberties.”
How Does The Biden White House Plan To Tackle Domestic Terrorism?
The White House has commissioned a threat assessment on the scope of domestic violent extremism from the Office of the Director of National Intelligence, the senior administration official said. That assessment, expected in roughly three months, will shape the Biden administration’s policy making, the official said.
Meanwhile, the White House’s National Security Council is focusing on the issue, signaling a shift from the administration of former President Donald Trump. The White House is also reviewing whether the FBI’s field offices need more resources and whether the agency’s joint terrorism task forces are properly structured, the official said.
One concern is that any approach taken by Democrats has the potential of alienating or radicalizing supporters of Mr. Trump, according to some experts on extremism and others involved in shaping Mr. Biden’s strategy. Already, some conservative news outlets have told viewers that Democrats view Mr. Trump’s backers as terrorists.
The Biden official said the White House plans to target violence regardless of ideology, “whether the far right, the far left, or from a growing number of individuals who do not fall neatly along the ideological spectrum.”
What About Designating U.S. Extremist Groups As Terrorists?
Canada recently designated the far-right Proud Boys as a terrorist organization. But the issue is debated in the U.S.
Rep. Elissa Slotkin, (D., Mich.), who chairs the Intelligence and Counterterrorism panel of the House Committee on Homeland Security, urged caution before following Canada’s lead. Civil-rights groups are generally against doing so.
And Mr. Jenkins, the official at Rand, has urged the U.S. to tap the brakes, citing the complexities of defining which groups would qualify.
“There are hundreds of extremist groups on both ends of the political spectrum,” Mr. Jenkins said in written congressional testimony. “Organization in the domestic context is a slippery term. Some organizations are definable groups. Others are mind-sets.”
This week, Rep. Adriano Espaillat (D., N.Y.) introduced a resolution declaring that “the Proud Boys have engaged in acts of domestic terrorism” after members took part in the U.S. Capitol riot. The resolution doesn’t carry legal weight, he said, though the resolution encourages the Justice Department and state and local law enforcement to intensify efforts against the Proud Boys. Proud Boys leader Enrique Tarrio didn’t respond to a request for comment.
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