Why New Laws Against White Supremacist Violence Are the Wrong Response to El Paso

Police keep watch outside Walmart near the scene of a mass shooting on Aug. 3, 2019 in El Paso, Texas.

The recent white supremacist mass shooting in El Paso, Texas, and the Justice Department’s new willingness to label this kind of attack domestic terrorism have prompted renewed calls for the creation of more powerful anti-terrorism laws to investigate and prosecute right-wing domestic extremists.

The FBI Agents Association urged Congress to “to make domestic terrorism a federal crime.” Rod Rosenstein, the former U.S. deputy attorney general, suggested to the New York Times that domestic terrorism investigations in the United States should be modeled on the way the FBI has pursued would-be attackers who sympathize with Al Qaeda, the Islamic State, and other foreign terrorist groups — using informants, surveillance, and stings to cultivate a snitch culture. “In the same way that honorable members of mosques report people who express violent designs, so, too, should people report violent white nationalists to the police,” Rosenstein told the Times.

But recent media reports claiming there are no federal domestic terrorism laws inhabit a world of alternative facts, where repeating something often enough makes it appear true.

“It may seem appealing to provide new authorities for domestic terrorism, but the reality is that the FBI has all the authorities it needs to investigate and prosecute white supremacist violence effectively,” said Hina Shamsi, director of the American Civil Liberties Union’s National Security Project. “The notion that there are inadequate authorities is a myth.”

The logic behind that myth goes something like this: Domestic terrorism is not a crime per se, so there is no domestic terrorism law. But this ignores the fact that international terrorism is not a crime per se, either.

Terrorism prosecutions since 9/11 have never been about a lack of laws. Indeed, terrorism laws, including those that can be applied against domestic extremists, were expanded in the USA Patriot Act of 2001. Terrorism prosecutions are a decadeslong story of arbitrary application, which has created a lasting perception that these laws are applicable only to international terrorism defendants.

That’s simply false. A host of anti-terrorism laws are available to federal prosecutors whether the accused terrorist is an ISIS sympathizer or a white nationalist. These include laws that bar, and classify as terrorism, the use or attempted use of weapons of mass destruction, attacks on mass transit systems, and hostage-taking, among others.

Just this week, for example, Donald Trump superfan Cesar Sayoc, who mailed pipe bombs to Democratic Party politicians and critics of the presidents, was sentenced to 20 years in prison. Federal prosecutors described him in court filings as a domestic terrorist. Among the litany of charges against him was attempting to use weapons of mass destruction, an anti-terrorism law that bans the use of explosives like the homemade pipe bombs Sayoc had mailed.

Calling Out Domestic Terrorism

Sayoc’s case signaled a recent shift within the Justice Department, which has long resisted describing white nationalist and other right-wing attacks as domestic terrorism. In 2015, then-U.S. Attorney General Loretta Lynch and then-FBI Director James Comey both declined to describe Dylann Roof’s massacre of 9 black people at a South Carolina church as an act of domestic terrorism. Before attacking the congregation, Roof wrote a white nationalist manifesto.

Like Roof, El Paso shooter Patrick Crusius wrote a racist manifesto before storming into a Walmart armed with an AK-47, killing 22 and injuring 24. In it, Crusius described his view that Hispanic immigration was responsible for America “rotting from the inside out” and diluting the political power of white citizens. He echoed President Trump’s long-running xenophobic rhetoric, referring twice to Hispanic immigration as an “invasion.”

The day after the El Paso attack, Josh F. Bash, the United States attorney for the Western District of Texas, said at a press conference that the shooting was being investigated as a domestic terrorism case and that the alleged crime met the legal definition of domestic terrorism: ideologically motivated acts that are harmful to human life and intended to intimidate civilians, influence policy, or change government conduct. A few days later, the FBI disclosed that it was also treating the investigation of Santino William Legan, who allegedly killed three people, including two children, in a mass shooting at the Gilroy Garlic Festival in California on July 28, as domestic terrorism.

A recent Intercept review of federal terrorism prosecutions since 9/11 demonstrates the significance of this change inside the Justice Department. The analysis found that 268 right-wing extremists prosecuted in federal court since 9/11 were allegedly involved in crimes that appear to have met the legal definition of domestic terrorism. Yet the Justice Department applied anti-terrorism laws against only 34 of them, compared to more than 500 alleged international terrorists.

The way the Justice Department has applied the controversial material support law, which criminalizes providing assistance to terrorists, is a good example of the double standard officials apply to right-wing extremists compared to extremists with international ideologies. Since 9/11, the Justice Department has used the material support law only once against a right-wing extremist — an engineer who built a remote control for a white supremacist’s radiological weapon. By contrast, during that same period, federal prosecutors charged more than 400 terrorists with international ideologies with material support, in some cases for offenses involving nothing more than talk and driving to an airport.

What’s more, some of the most intrusive investigative powers available to federal law enforcement are not limited to targets of international terrorism investigations. So-called assessments, which allow the FBI to investigate and surveil someone without probable cause, can be used to determine whether a white nationalist poses a threat to public safety. Although the law doesn’t establish a time limit for assessments, FBI policy generally provides only 72 hours. If there’s a gap in who’s being investigated in these assessments, it’s not because there are too few laws but rather because the FBI since 2001 has been focused on alleged international terrorists at the expense of identifying and investigating violent domestic extremists.

“The FBI can and should look at wrongful conduct and it has the authority to do that,” the ACLU’s Shamsi said. “It has claimed so much authority in the post-9/11 era, in fact, that it has overstepped, especially where communities of color, Muslims, and activists and those who dissent are concerned. The FBI’s investigation guide allows it to use intrusive investigative techniques, including physical surveillance, informants, and other methods without even an articulable, factual basis for opening that investigation.”

Claims that the U.S. government does not have adequate laws to investigate and prosecute domestic terrorism are not new in the wake of the El Paso attack, but they concern Michael German, a former FBI agent who is now with the Brennan Center for Justice.

“I do worry that the disinformation being spread by current and former Justice Department officials is an attempt to use these tragedies to claim new authorities that will continue to be used disproportionately against people of color and political opponents of the president,” German said. “The amplification of far-right talking points framing anti-fascist and anti-racist protesters as terrorists by the president and members of Congress indicates how politicized counterterrorism has become.”

A Page From the Post-9/11 Playbook

The other argument in the wake of the El Paso attack is that federal law enforcement officials should investigate white supremacists and other right-wing terrorists by employing the same tools used against Muslim extremists since 9/11: mass surveillance, informants, and sting operations.

“This will allow our law-enforcement agencies access to the full suite of monitoring tools and our prosecutors the ability to bring meaningful charges for aiding domestic terrorism,” Ali H. Soufan, a former FBI agent who now runs a security and intelligence company, argued in an August 5 opinion piece in the Times.

But this argument ignores how problematic investigations of Al Qaeda, ISIS, and other alleged foreign terrorist sympathizers in the United States have been. Few of the international terrorism defendants prosecuted by the Justice Department since 9/11 had actual links to terrorist groups. Even fewer had the means of committing an act of terrorism. In point of fact, 68 percent of all of international terrorism prosecutions in the United States involved an FBI sting, in which an undercover agent or informant, posing as an international terrorist operative, provided the weapons, and sometimes the idea, needed for a supposed plot. A 2014 Human Rights Watch report found that these practices “alienated the very communities that can help prevent terrorist crimes.”

Since 9/11, stopping would-be terrorists has been the FBI’s top priority. For nearly two decades, counterterrorism has been the single largest expense at the bureau, with $3.6 billion of the FBI’s $8.9 billion in this year’s budget dedicated to it. Like other law enforcement agencies, the FBI measures success by tangible metrics, such as arrests made. The large amount of counterterrorism funding and the drive for arrests have created a culture inside the FBI in which Americans have been targeted based on unpopular beliefs, and agents and informants have consistently been caught on tape pushing investigative targets toward violent acts — raising questions about whether the FBI engineered or exaggerated the threats.

“The way our government has gone after suspected Muslim terrorists over the past 18 years has been largely flawed and targeted speech over action,” said Khurrum Wahid, a lawyer who has represented terrorism defendants in cases in New York and Florida, including a case in which Soufan posed as an Al Qaeda member during a sting. “We have sought to use informants who have a high incentive — money or immigration — to create a case where, without the informant, there would be no harm to Americans.”

While Wahid acknowledged the growing threat of violent white supremacists, he is concerned that in a push for quick answers, lawmakers and Justice Department officials will repeat the mistakes of our post-9/11 era.

“Our laws must separate those who have an ideological perspective we do not agree with from those who actually act to harm our fellow citizens,” he said. “We cannot fall into the same trap of creating crimes by pulling those whose speech we disagree with into a plot of our own making.”