On a narrow street in Charlottesville, Virginia, James Alex Fields Jr. pressed the accelerator of his gray Dodge Challenger. Dozens of people were walking in front of him. They had come to protest Fields and hundreds of other white supremacists who’d descended on this pleasant Southern college town for the “Unite the Right” rally in August 2017.
“Our streets!” the protesters chanted in response to the white supremacists. “Our streets!”
When some protesters realized the gray car wasn’t stopping, they screamed. Then came the scrapes and thuds and finally a crash as Fields barreled into the crowd, sending people into the air and diving for safety, before the Dodge slammed into the back of another car.
“Holy shit!” one of the protesters said. “That Nazi just drove into people. Oh my God! We need paramedics right now!”
Fields then shifted the car into reverse and backed out toward the main road, the front bumper scraping the pavement and the engine squealing.
Heather Heyer, a 32-year-old Charlottesville resident, was killed in the attack. At least 19 others were hurt.
Fields, a 20-year-old from Ohio who had been open about his racist views since high school, had marched in Virginia with the white supremacist group Vanguard America. He was charged in Virginia state court with murder and in federal court with hate crimes. He was not charged as a terrorist, despite then-Attorney General Jeff Sessions having initially described the Charlottesville attack as meeting “the definition of domestic terrorism.”
In announcing Fields’s federal indictment 10 months later, however, Sessions avoided using the word “terrorism” altogether, saying instead that the Justice Department remains “resolute that hateful ideologies will not have the last word and that their adherents will not get away with violent crimes against those they target.”
An Intercept analysis of federal prosecutions since 9/11 found that the Justice Department has routinely declined to bring terrorism charges against right-wing extremists even when their alleged crimes meet 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.
If Fields had been a Muslim aligned with an international terrorist group, the Justice Department almost certainly would have handled his case differently. According to The Intercept’s review, 268 right-wing extremists prosecuted in federal court since 9/11 were allegedly involved in crimes that appear to meet 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 FBI has acknowledged that federal prosecutors charge many violent domestic extremists with crimes other than terrorism, saying that simpler charges are often more effective in such cases. But the consequences of treating domestic and international terrorism differently are broad and deep. Terrorism charges carry stiffer penalties and often serve as an official statement about the severity of the offense.
“Terrorism is considered the most important kind of crime,” said Jesse Norris, a criminal justice professor at the State University of New York at Fredonia. “It’s not a crime against some; it’s a crime against all. When you put people and crimes in that category, it places more importance on them. People take these crimes more seriously. That’s why it’s a problem that we have this double standard in classifying international terrorism violence as terrorism and domestic terrorism violence as not terrorism.”
Take the case of Sayfullo Saipov, an Uzbek immigrant, who drove a rented Home Depot truck through a bike lane in Lower Manhattan nearly three months after the Charlottesville attack, killing eight people. Saipov, who was injured in the assault, was so proud of his militant allegiances that he asked federal agents if he could display the Islamic State’s black flag in his hospital room.
Saipov’s crime was almost identical to Fields’s, but Sessions called his attack “a calculated act of terrorism in the heart of one of our great cities.” He was charged in federal court with murder and providing material support to ISIS.
Both Saipov and Fields grabbed the nation’s attention. Both were extremists who allegedly turned vehicles into deadly weapons. But because one was motivated by a foreign extremist ideology and the other by a domestic one, federal prosecutors treated one as a terrorist and the other as a crazy white guy filled with rage.
As a string of deadly attacks and plots by alleged domestic terrorists have made headlines in recent months, there is some evidence that federal prosecutors and law enforcement may be changing their approach. Officials have repeatedly used the term “domestic terrorist” to describe Christopher Hasson, a Coast Guard lieutenant and self-described white nationalist arrested last month for allegedly plotting to kill politicians and journalists, though they have yet to charge him with a terrorism offense. And current and former Justice Department officials have begun talking more openly about domestic terrorism as a pressing concern.
Nevertheless, a significant disparity remains in how these two types of ideologically motivated violence are handled, one rooted in the highly politicized way that U.S. laws and Justice Department officials define acts of terrorism. Terrorism has always been a political construct — there’s even a cliché for this — but its legal definition in the United States dates back only to 1986, when the Omnibus Diplomatic Security and Antiterrorism Act made terrorist attacks against U.S. diplomats or citizens traveling abroad a crime.
In the 1990s, the Biological Weapons Anti-Terrorism Act and the Antiterrorism and Effective Death Penalty Act made acts of terrorism committed within the United States, including those inspired by domestic ideologies, federal offenses. Before these laws, there was no crime of terrorism under the U.S. penal code, and it was only after the 9/11 attacks that anti-terrorism laws came to be widely used in federal criminal prosecutions. Such laws have raised critical questions among legal scholars and civil libertarians about whether the inherent difficulty in defining terrorism essentially guarantees prosecutorial abuse.
Domestic terrorism suspects enjoy basic legal protections denied to those accused of ties to international terrorism.
The U.S. State Department provides a broad framework — and the political cover that goes with it — for federal prosecutors to bring charges against alleged international terrorists. In those cases, charging someone with terrorism is relatively simple. The State Department administers a list of designated foreign terrorist organizations; anyone caught supporting one of these groups can be charged with terrorism-related crimes.
Domestic terrorism suspects enjoy basic legal protections denied to those accused of ties to international terrorism. Because of First Amendment concerns that a list of domestic terrorist groups would unconstitutionally criminalize unpopular ideas and ideologies, there is no such list, making the abusive types of prosecutions used to target alleged international terrorists more difficult to pursue against domestic actors. But prosecutors still have plenty of legal tools at their disposal to go after alleged domestic extremists.
Among them is an expansive law against providing material support to terrorists, which has two provisions. One outlaws nearly any kind of support to organizations on the list of State Department-designated foreign terrorist groups, and has been widely and controversially used by prosecutors to tar even nonviolent political or charitable activity with the international terrorism brush.
“The material support regime as a general matter is extremely broad, and we have concerns about its overbreadth and vagueness,” said Hina Shamsi, director of the American Civil Liberties Union’s National Security Project. “A disturbingly high number of material support prosecutions, including abusive sting operations, are against people who don’t actually have a tie to a terrorist or extremist group or haven’t actually committed a violent act or even attempted to commit a violent act.”
But the other provision of the material support law allows the Justice Department to prosecute suspects for their role in supporting about 50 proscribed offenses, including bombing government buildings, murdering government employees, using weapons of mass destruction, and hostage taking. The material support law does have some practical limitations concerning domestic extremists. Attacks not involving a bomb or radiological device — such as Dylann Roof’s mass shooting in South Carolina or Fields’s car attack in Virginia — require the killing or attempted killing of a U.S. government employee or the destruction of U.S. government property for the material support law to be applicable. There are no such legal requirements under material support when the attacker is affiliated with or inspired by an international terrorist organization.
Terrorism by the Numbers
Hundreds of prosecutions of Muslims on terrorism charges in the wake of the 9/11 attacks have created the perception that international terrorism is a significantly graver and more persistent threat in the United States than right-wing domestic extremism. But whether one is more serious than the other is the subject of ongoing debate. Some studies by academics, think tanks, civil rights groups, and news organizations have suggested that right-wing terrorism poses the greater threat. A 2017 report from the U.S. Government Accountability Office on terrorist violence from September 12, 2001 through December 31, 2016 found that while slightly more people have been killed by Muslim extremists than by their right-wing counterparts, right-wing extremists were responsible for three times as many violent acts. Research by the Anti-Defamation League on 573 “extremist-related fatalities” from 2002 to 2018 found that 80 percent of the victims were killed by right-wing extremists.
“It all depends on how you count,” Norris said.
But one thing is clear: By almost exclusively charging international extremists as terrorists, the Justice Department inflates the perceived threat of those actors, compared to those with right-wing domestic ideologies. The press has reinforced this notion; a recent University of Alabama study found that terrorist attacks by Muslim extremists receive 357 percent more media coverage than attacks committed by non-Muslims.
The double standard has had powerful consequences for how the FBI allocates counterterrorism resources, leading invariably to international threats being prioritized over domestic ones.
This double standard has had powerful consequences for how the FBI and other law enforcement agencies allocate counterterrorism resources, leading invariably to international threats being prioritized over domestic ones. While no public government report quantifies the number of domestic extremists arrested by federal, state, and local authorities, Justice Department officials have fastidiously maintained a list of international terrorism prosecutions since 9/11. That list has been released periodically, in 2010, 2014, and 2015, and the data is often used to bolster political initiatives, as happened last year when the Trump administration apparently manipulated it in an attempt to justify its so-called Muslim ban.
So who are the right-wing domestic terrorists in the United States? The current system has left that to individual federal prosecutors to decide. After a Donald Trump supporter sent pipe bombs to Democratic Party leaders and critics of the president in October, and in the wake of the deadliest anti-Semitic attack in U.S. history, these charging decisions seem more critical than ever.
“We clearly have domestic terrorist groups in the United States. We just don’t call them terrorist groups,” said Brendan R. McGuire, a former prosecutor who served as the terrorism chief for the U.S. Attorney’s Office for the Southern District of New York. “Generally speaking, there continue to be challenges within the government to applying the terrorism label to purely domestic conduct. We’re just much more experienced and comfortable with exporting that label, with seeing terrorism as something that comes only from the outside.”
Vague Guidelines, Underused Laws
What makes a white supremacist’s attack on a group of minorities terrorism, rather than, say, a hate crime? When an anti-abortion zealot plants a bomb at a women’s clinic, should he be charged with using weapons of mass destruction or with a lesser explosives charge?
Terrorism is subjective. In the eyes of federal prosecutors, an American-born ISIS sympathizer who has never met another ISIS supporter, for example, is a terrorist as long as he commits an act of violence and credits the terrorist organization. A white supremacist who consorts with other white supremacists and bombs a mosque could be a terrorist, but more often is only charged with possessing and using explosives. That accusation may describe the facts of the alleged crime, but it doesn’t instantly conjure the sense of collective peril implied by a charge of attempting to use weapons of mass destruction.
“Like so much of the counterterrorism discourse, it’s based on these feelings that we have about how things happen, rather than data,” said Michael German, a former FBI agent who is now a fellow at the Brennan Center for Justice at New York University Law School. “Back in the ’90s, terrorism was usually used as a rhetorical device. If I wanted to say this kind of violence was extremely bad, I’d say it’s terrorism. But it had no meaning in the courtroom, where we’re charging murder or conspiracy or whatever we’re charging. By bringing a pejorative term like ‘terrorism’ into the court, you’re politicizing the prosecution.”
“By bringing a pejorative term like ‘terrorism’ into the court, you’re politicizing the prosecution.”
Internal Justice Department guidelines are so vague that prosecutors often come up with their own criteria to determine whether to file a terrorism-related charge in domestic extremism cases, former federal prosecutor Henry E. Hockeimer Jr. said. While Hockeimer was at the Justice Department, he and his colleagues developed their own set of rules to determine when to charge a suspect with a terrorism offense, basing decisions in part on who and how many people were targeted in an attack, even though the law doesn’t contain specific references to either. “You have to ask yourself: Is the attack aimed at causing a high-volume loss of life? Or is it targeting a particular area in order to kill one or two people?” Hockeimer said. “You have to look at what the ultimate result of it was.”
FBI and Justice Department officials have used the recent resurgence of far-right extremism to make the case for a new domestic terrorism law, in an echo of what occurred after the 9/11 attacks, when members of Congress demanded new laws to combat Al Qaeda and approved the Patriot Act, which created and expanded a host of anti-terrorism laws and government surveillance powers. But is an aggressive new law needed, when prosecutors already have powerful and controversial anti-terrorism laws at their disposal – laws that they have only rarely chosen to use against right-wing extremists?
Among the relatively few right-wing defendants to face weapons of mass destruction charges since 9/11 was anti-government extremist Jerry Drake Varnell. An FBI agent posing as a fellow anti-government extremist provided Varnell with a van loaded with a fake bomb. Varnell then tried to detonate the bomb next to a bank in Oklahoma City. He was charged with and convicted of several offenses, including attempting to use weapons of mass destruction — a charge that is almost universally applied to Muslims caught in counterterrorism stings similar to his.
But Varnell is one of only 24 right-wing extremists since 9/11 to face a weapons of mass destruction charge. Prosecutors more often bring less serious charges against violent right-wing actors like Thaddeus Cheyenne Murphy, who bombed an NAACP office in Colorado and was charged with firearms violations and being a felon in possession of firearms, or, more recently, Paul M. Rosenfeld, who was convicted of an explosives charge for plotting to detonate a homemade bomb on the National Mall on Election Day 2018 to raise awareness about “sortition,” a political theory that advocates the random selection of government officials over their election.
The infrequent and lower-profile use of anti-terrorism laws in right-wing cases has set the stage for claims that new laws are needed to combat domestic terrorists. Thomas E. Brzozowski, a former FBI official who is now the Justice Department’s Domestic Terrorism Counsel, has argued that current laws limit prosecutors’ ability to charge and describe domestic terrorists. “In many instances, the government is going to be constrained, to a certain degree, from stepping in front of a podium and saying, ‘Ladies and gentlemen, we’re revealing domestic terrorism here,” Brzozowski said at an event hosted by George Washington University’s Program on Extremism in January.
Brzozowski has been joined by a chorus of current and former Justice Department and FBI officials. Last month, Thomas T. Cullen, the U.S. attorney for the Western District of Virginia who is prosecuting Fields, the Charlottesville attacker, wrote an opinion piece in the New York Times calling for a domestic terrorism law. In 2017, Thomas F. O’Connor, a counterterrorism agent in Washington, D.C., who is also the president of the FBI Agents Association, the union that represents the bureau’s more than 13,000 agents, made a similar case in The Hill. Because there are no penalties attached to the legal definition of domestic terrorism, O’Connor reasoned, “‘domestic terrorism’ is not a crime in and of itself under federal law.”
“The answer is that a new law is not necessary to take on the scourge of white supremacist violence. The government already has the tools necessary to take on this threat.”
But Cullen’s and O’Connor’s arguments are flawed. The crime of “international terrorism” doesn’t exist either, yet hundreds of people with alleged links to foreign groups have been charged under anti-terrorism laws. In addition to material support — which the Patriot Act expanded and for which it increased the maximum punishment from 10 years to 15 years, or life in prison if the crime results in death — statutes available to prosecute domestic and international terrorists include a law that prohibits the use of “weapons of mass destruction” — including everything from a nuclear weapon to a pressure-cooker explosive or a pipe bomb — and another that defines attacks on mass transit systems as terrorism.
Even when prosecutors decline to charge defendants with terrorism-related offenses, they have an opportunity to ask for a so-called terrorism adjustment at sentencing that results in longer prison terms if a judge agrees that the crime meets the definition of domestic terrorism. But prosecutors have only asked for such enhancements in a handful of right-wing cases, according to The Intercept’s analysis. One was the case of Wayde Lynn Kurt, a white supremacist in Washington state who was convicted by a jury in 2011 of firearms violations. Recordings he had made indicated that he was planning a terrorist attack called the “final solution,” which included a plot to kill then-President Barack Obama.
“It’s important to emphasize that whenever you see a terrorism-related legislative proposal, you have to ask, ‘Is it necessary? How will it be used against the very minority groups that we need and want to protect and who have historically and wrongly been FBI targets and still largely are?’” said Shamsi of the ACLU. “The answer is that a new law is not necessary to take on the scourge of white supremacist violence. The government already has the tools necessary to take on this threat.”
Since stepping down shortly after Trump’s inauguration, Mary B. McCord, a former top official in the Justice Department’s National Security Division, has been making a public argument similar to those of Brzozowski, Cullen, and O’Connor. McCord has written that while state and federal laws can provide significant punishment for domestic terrorists — including life sentences and the death penalty — “they fail to equate it under federal law, as it deserves to be equated, with the actions of ISIS-inspired terrorists who engage in violence in pursuit of their equally insidious goals.”
Asked why she supports the creation of a new domestic terrorism law when prosecutors could use laws already on the books, such as the one that prohibits providing material support to terrorists, McCord, who as head of the National Security Division was responsible for authorizing terrorism charges nationwide, told The Intercept during a phone interview that the material support law requires “an international component.”
In fact, the material support provision that is focused on terrorists generally, and includes the approximately 50 proscribed offenses, has been used against domestic extremists — but only three times. In the only such case since 9/11, Eric J. Feight, a New York man, was charged with and convicted of material support for helping a white supremacist build a radiological “death ray” for use against Muslims.
The material support charge against Feight was approved when McCord was second-in-command at the National Security Division. When asked about it, she said the case “was tied to international terrorism.” Told that this was untrue, McCord asked for 15 minutes to review Feight’s prosecution, then called back to acknowledge that she had been mistaken. In hindsight, she said, maybe the Justice Department could use the material support law more aggressively against domestic extremists. “Certainly, if I were still at the Department of Justice, and I saw a person who was contributing material support to one of these enumerated offenses, I would definitely approve charging that,” McCord said, “including in situations that have no nexus to international terrorism.”
Although a small case history exists of prosecuting domestic extremists under material support and other anti-terrorism laws, officials at the Justice Department wring their hands over whether to use such laws in cases of domestic terrorism and generally avoid public discussions about the use of anti-terrorism laws against domestic extremists, more than a dozen current and former prosecutors told The Intercept. Instead, they suggest that new and even more powerful laws are needed to pursue right-wing extremists.
A Lack of Transparency
The U.S. government does not track acts of domestic terrorism or related federal prosecutions in any systematic way, leaving the Justice Department with few tools to determine whether domestic extremist threats are on the rise at a time when white supremacists have been emboldened by Trump’s nationalistic, anti-immigrant rhetoric.
FBI Director Christopher Wray told the Senate Homeland Security and Governmental Affairs Committee last October that “domestic extremist movements collectively pose a steady threat of violence and economic harm to the United States.” A year earlier, before the Senate Intelligence Committee, Wray described the threat of domestic terrorism as “very, very serious” and “something that we spend a lot of our time focused on.” He has declined in congressional testimony to say how many agents are working on the problem but mentioned in 2017 that “about 1,000 open domestic terrorism investigations as we speak.” The FBI also declined requests from The Intercept to provide the number of agents assigned to such cases, stating, “While we cannot comment specifically on this breakdown, the FBI’s top priority remains protecting the United States from terrorist attacks — both international and domestic.”
Yet in fiscal year 2009, the most recent year for which such data has been made public, just 335 of the bureau’s more than 13,000 agents were assigned to domestic terrorism. By contrast, international terrorism is the FBI’s top priority, with thousands of agents devoted to it.
One man’s nutjob can be a federal prosecutor’s domestic terrorist. The Justice Department’s internal case management system reveals how subjective, and sometimes ridiculous, it can be to try to define acts of terrorism.
Federal prosecutors nationwide use an internal system called the Legal Information Office Network System, or LIONS, which stores data about cases. The data is only released publicly in the aggregate, but as part of its review of federal prosecutions, The Intercept, working with another database maintained by federal court administrators, unmasked 752 cases that prosecutors have designated as involving an alleged domestic terrorist, accounting for approximately half the cases in LIONS that were coded as domestic terrorism.
The data suggests that, while the Justice Department follows a very narrow definition of domestic terrorism publicly and when bringing criminal charges, prosecutors take an expansive and at times comically inconsistent view of it internally, labeling hundreds of cases as involving domestic terrorism even when the facts do not support the designation.
While the Justice Department follows a very narrow definition of domestic terrorism publicly, prosecutors take an expansive and at times comically inconsistent view of it internally.
Of those cases, only 15 appeared to meet the federal statutory definition of domestic terrorism, which requires that violence be motivated by a domestic ideology. A handful of cases involved violent acts that may have met the definition of domestic terrorism, but nothing in the case files suggested an ideological motivation. Others related to international terrorism, involving defendants accused of supporting Hamas, the Colombian guerrilla group FARC, ISIS, and others.
But the vast majority — more than 700 cases — involved incidents that don’t appear to match the legal definition of terrorism at all, such as a Connecticut man making menacing phone calls and sending a threatening letter to ESPN sportscasters over a personal grievance. Prosecutors designated an Alabama man’s case as domestic terrorism after he fired rifle rounds into an energy facility, even though there was no indication that the shooting was ideologically motivated. In another case marked as domestic terrorism, a West Virginia man firebombed a mobile home using a Molotov cocktail in exchange for $400 and some Oxycontin.
The Growing Threat
The FBI logged 176 domestic terrorism arrests between September 2016 and September 2017, according to Wray’s 2017 Senate testimony. That number is significantly higher than media reports and Justice Department and local police announcements during that period suggest. When The Intercept asked under the Freedom of Information Act for any documents or communications to support Wray’s number, the FBI responded that it could find no records to support the director’s statement. Then, earlier this month, law enforcement sources provided “approximate” numbers to the Washington Post, suggesting that in 2017 and 2018, the FBI conducted more investigations of domestic terrorists than international ones. The claim appeared to signal a reversal of priorities at the FBI, but could not be vetted, as the source material for the number wasn’t provided to the Post.
It’s impossible to know from publicly available information and the leaked aggregate numbers that the Post reported how effective the FBI and other law enforcement agencies have been at thwarting right-wing extremists before they transform their hate into violence. But what is clear is that a significant number of violent extremists are slipping through the FBI’s dragnet.
Among the domestic terrorists the FBI recently missed was a 56-year-old strip club DJ who wore a “Make America Great Again” hat and once posted a video selfie from a Trump rally in Florida. A prolific Twitter user, Cesar Sayoc posted far-right conspiracy theories and sent threatening messages to Trump’s opponents, including one to former Vice President Joe Biden with a photo of an alligator that had eaten a man.
The FBI was unaware of Sayoc until October 2018, when more than a dozen pipe bombs began to arrive at the homes and offices of Democratic Party leaders and Trump critics. Two of the bombs, one addressed to former CIA Director John Brennan and the other to former Director of National Intelligence James Clapper, were mailed to CNN. None detonated, though all contained explosive material and in some cases shards of glass to maximize injury. A fingerprint on an envelope matched one Sayoc had provided following an earlier arrest in Florida, where, over the previous two decades, he’d been charged with theft and threatening to bomb the local power company in an attack that he said would be “worse than September 11.”
Sayoc was initially charged in U.S. District Court with mailing explosives, making threats, and assaulting federal officers. He was not charged as a terrorist, though his alleged crimes appeared to meet the U.S. statutory definition of domestic terrorism. Sessions, then the attorney general, instead referred to Sayoc as “a partisan” who had committed “political violence.”
But soon after prosecutors filed the indictment, amid unprecedented media coverage and public debate about the scourge of right-wing domestic terrorism, the Justice Department’s language began to change. In a filing supporting Sayoc’s extradition from Florida to New York, where he faces criminal charges, federal prosecutors described his offenses as “a domestic terrorist attack targeting at least 15 victims” waged as part of a “terror campaign.”
* This article was automatically syndicated and expanded from The Intercept.