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