Terry H. Schwadron
Aug. 9, 2019
Much has been made since last weekend’s twinned mass shootings about calling them “domestic terrorism,” a label meant to make domestic hate violence the target for serious investigation and prosecution. A combination of state laws and federal hate statutes leave the surviving gunman in El Paso facing charges that can carry the death penalty.
Distinct from the wide number of issues involving guns, gun sales, and gun controls, one real issue identified anew this week has been the growth of white supremacist or white nationalist groups and acts of hate. The Southern Poverty Law Center, which closely follows such things, says we topped more than 1,020 white supremacist groups in 2017, in a time when recorded acts of hate violence are up 30 percent. The FBI seems to agree, with less specificity, and notes that 80% of terrorism agents are devoted to international work.
But under current federal law, there is no “domestic terrorism” statute that grants the kind of powers to the FBI and Homeland Security to launch investigations that they can undertake against foreign targets under the Patriot Act. That law allows the feds to disrupt foreign terrorist plots, by preventive actions based on wiretapping or using undercover online agents to talk anonymously in internet chat rooms or go after bank accounts of sponsoring outfits.
Individuals considered domestic terrorists are charged under laws governing hate crimes, guns and conspiracy, not terrorism.
So, that leaves us with some clear questions: What would a domestic terrorism law look like? Apart from whether it would pass Congress and gain a presidential signature, would it raise undue civil rights issues? Would we know how to aim such a law as domestic terrorism is following the international model and broadening to small cells or individuals rather than big groups?
Here’s a link to what terrorism laws allow. It’s dense, but pretty clearly rules out moving preventively against individuals without substantial cause. After all, the First Amendment protects individuals’ rights to engage in hateful speech, and the internet shows how it is difficult to separate word — like a posted manifesto attacking an ethnic group or immigrants — from incitement.
The New York Times had a good article examining the silliness of blaming video games and the internet alone for the rising number of mass murders, even noting that there is no particular scientific evidence to link all such incidents to mental health problems in the individual gunmen involved. There is more scientific basis to look at guns themselves, of course. It is unclear whether “red flag” laws to take guns from those with identified mental health issues would be effective, and, in any case, the government is busy daily cutting health benefits, not adding to them (to say nothing of privacy laws and medical records).
People like Rod Rosenstein, the just retired deputy attorney general, want people to step up and report what they see as dangerous. “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,” he said.
Harry Litman, a former federal prosecutor, wrote in a Washington Post op-ed that if you apply the language of the current terrorism laws within the United States, it might be easier to see the El Paso manifesto, post just 20 minutes before the attack in a Walmart’s, as reflecting an intent to “intimidate a civilian population or to influence the policy of government, as opposed to particular animus against Hispanics. And ‘immigrant status’ per se is not a protected class under the hate crimes statute.”
Litman argues that domestic terrorism is its own evil, and it is fitting for the legislature to recognize the threat and injury that terrorism occasions, and, in fact, to put it on relative equal footing with international terrorism.
Passage of a domestic terrorism law would have important substantive effects as well, he argues. It would also bring such crimes under “predicate offenses,” allowing prosecution for providing material support to terrorists, for example, including weapons, money, camps and training, communications and other means of support.
Though the top-down hierarchies of hate may be giving way to more independent, “lone-wolf” operators, there are still plenty of organized hate groups. Designated internet sites themselves are, in effect, serving as training grounds for would-be terrorists. Currently, the internet service providers are proving unable to reliably recognize these instances to step in — until the next manifesto is posted and found after the next shooting.
Think about all those white nationalist militias who insist on Constitutional protection on the one hand and resist U.S. law enforcement on the other.
Presumably, passing the law would also provide additional personnel for the FBI to carry it out.
That America is a democracy protects hateful speech, but not actions of hate. Curiously, a domestic terrorism bill would allow more government surveillance exactly of the sort that Republicans in Congress and Atty. Gen. William P. Barr are questioning in the Robert S. Mueller III investigation.
Let’s not forget that we need that despite the hurdles and questions, we need to enact such a domestic terrorism law if we believe that racial hate can never be translated into violence.