Domestic Terrorism

Treating Right-Wing Violence as Terrorism: What If Deeds Match Rhetoric?

By Daniel Byman
Tuesday, October 17, 2017, 7:30 AM

Note: This essay draws on a longer piece on the same subject I have written for Foreign Affairs. A previous essay looks at whether right-wing violence should be labeled “terrorism.”

Words matter, but deeds matter more. As I noted in a longer essay, a lot of right-wing violence clearly qualifies as terrorism even if the legal framework and political discourse haven’t caught up to that reality. But even if we were consistent in our use of the terrorism label, what would this mean in practice? In other words, what if our laws and associated U.S. government policy went beyond rhetoric and truly treated right and left-wing groups that use violence as it treats Americans suspected of being involved with jihadist organizations like ISIS?

Consider, notionally, an individual suspected of ties to ISIS and one suspected of ties to the Ku Klux Klan (or, turn a molehill group into a mountainous one, substitute Antifa). A lot of what the United States does against ISIS happens abroad, but at home, law enforcement is very aggressive. First, any suspect would be monitored and there would often be some sort of initial intervention: A confidential government informant might befriend the suspect and gather evidence, for example. Local law enforcement, coordinating with federal officials, might knock on the suspect’s door to assess the situation and, perhaps, reach out to relatives and community leaders to try to get the person off the path to jihad.

Second, the anti-jihadist effort is well-resourced. Billions of dollars in funding goes to intelligence, including electronic surveillance, human sources, and other means. In contrast, of the small slice of the FBI budget that goes to counterterrorism, only a tiny portion specifically goes to investigating right-wing extremist organizations.

Third, the government would be quick to act at even the hint of violence. If a suspect got a gun or tried to acquire bomb-making materials, law enforcement officials would swoop in. Imagine a group of legally armed protesters marching through a town chanting slogans extolling the virtues of shari’a and the government pleading that it can’t stop them due to the First and Second Amendment. Can’t imagine it? Neither can I—even though it seems similar to a group of legally armed protesters shouting out anti-Semitic and racist slogans.

Fourth, the law is used broadly to target ISIS-linked terrorism. The statutes about providing material support for terrorism are incredibly powerful, enabling prosecutors to nab suspected terrorists for even limited support, including simply joining a group (and thus giving one’s own person to the cause). According to the Center on National Security at Fordham Law, in 2016, 80 percent of ISIS-related prosecutions involved a material support charge. And when the material support case proves too challenging, suspected jihadists are often convicted of lesser charges to get them off the streets.

For terrorists without a foreign link, the rules are different. Fewer law enforcement resources coupled with a cautious government response out of fear of violating First, Second and Fourth Amendment rights offers domestic terrorist groups more space to operate, organize and preach without heavy surveillance or government interference. The law is applied to these suspects more carefully than to suspected jihadists. The FBI and other government organizations do try to preempt right-wing and jihadist attacks at home, of course. But for ISIS, however, a few tweets may be enough to get the FBI to act; the bar for non-jihadist organizations is much higher.

If right-wing and the smaller left-wing groups received similar attention as jihadists, the halls of the FBI and DHS would be bursting with new employees. Intelligence penetration of the right-wing community (and any relevant left-wing groups) would soar. The array of tactics would include: monitoring phones and electronic communications of individuals with possible links to terrorists; planting informers in right-wing radical groups; regular police check-ins with leaders of legitimate right-wing causes to encourage them to provide information on potentially violent members; and trying to “turn” current group members to inform on their associates. The public social media accounts of potential radicals would also be scrutinized. Affected communities would hate the treatment. American Muslims believe that many U.S. counterterrorism programs single out Muslims unfairly, and expanding the use of informants and surveillance against right-wing communities would expand the numbers under the microscope.

Because of the greater intelligence coverage—and lower regard for the privacy of the affected citizens—the amount of information on right-wing groups and individuals would skyrocket. Using link-analysis software, metadata and greater information gathering, the government would know not only suspected right-wing terrorists, but also their friends, family members and other parts of their network. The volume of analysis of groups, causes and individuals would also grow exponentially. The expansion would seek to uncover heretofore-unknown connections and otherwise anticipate and disrupt threats before they manifest.

Informants would play a particularly large role. With suspected jihadists, the FBI often employs undercover agents and informants who claim to be members of a foreign terrorist organization. They engage individuals they feel have radical ideas and encourage them to take prosecutable actions. Sting operations are used on right-wing groups, but far less frequently. If we treated right-wing radicals as we do jihadists, government officials would scan Facebook for individuals posting messages embracing violence against Jews or African-Americans and then sell them fake bombs to prosecute them. Social media sites contain a staggering number of anti-Semitic and racist threats, and the FBI would have its hands full. Given the politicized nature of America today, if an administration focused largely on right or left-wing groups, it would be accused of suppressing opposition, not fighting terrorism.

Past experience is useful. In the early 1990s, the FBI conducted a program called PATCON (or Patriot Conspiracy). FBI agents posed as members of a fictional right-wing extremist group and collected information on real like-minded groups by attending conventions and other gatherings as well as reporting on private conversations. Analyst J.M. Berger found that the investigation produced little that could be used for criminal prosecution because it did not meet a high standard of evidence, but it did provoke paranoia in the groups being monitored, with some members being removed as suspected spies. It’s hard to feel sorry for these individuals, but the result—that individuals not guilty of any crime found it harder to exercise freedom of assembly and speech—should trouble everyone.

The counterterrorism microscope would also reveal numerous minor but prosecutable offenses not related to terrorism. As investor guru Warren Buffett noted, “If a cop follows you for 500 miles, you’re going to get a ticket.” Credit card fraud, drug use and other minor crimes would serve as justification to arrest and disrupt suspected terrorists and as leverage to convince them to cooperate in investigations of their associates. Indeed, the government at times does not pursue criminal charges if the offense is deemed minor or resources are needed elsewhere, but this would be far less likely if there was a perceived terrorism link. For example, Virginia allows its residents to openly carry a firearm. However, the law stipulates that a non-Virginian from a state where open carry is illegal cannot carry a firearm— a seemingly obscure technicality. Police, however, did not check to make sure all the marchers in Charlottesville—many of whom were from other states—met this criterion. (Last week, a lawsuit was filed to prevent armed groups from again marching in Charlottesville.) If law enforcement perceived the marchers to  have potential ties to designated terrorist groups, then law enforcement would likely take extra precautions to ensure they abide by the law—and to have more firepower at hand. Using such a standard would allow protest, but it would make it harder for at least some participants to protest while armed.

Another change would be that government lawyers would use the material support laws to go after domestic terrorists. Causes linked to domestic terrorist groups would have to eliminate any ambiguity in their actions for fear it could result in their arrest or be used against them in court. White supremacist groups, for example, would be far more careful about how their money is spent or whether violent individuals use any of their facilities, as it might later be argued that this facilitated terrorism.

For those linked to a group but not convicted of any crime, the consequences could still be dire and concerning. In 2011, the FBI designated all Juggalos, the fans of the hip-hop group Insane Clown Posse, which has both violent and nonviolent members, as a criminal street gang. That means that some Juggalos and Juggalettes (female fans) have lost custody battles, jobs and otherwise suffered as their employers and the courts treated them as gang members. Juggalos staged several protests against the FBI designation and many describe its effects as discrimination.

Treating right-wing violence as terrorism would affect the broader community that might sympathize with the cause but not the violence. Doing business with a declared terrorist organization would create legal liability and would damage a firm’s reputation, which every financial institution would seek to avoid. An American bank, for example, held up money going from a legitimate U.S. charity to provide supplies for hospitals in Syria in order to ensure that the money did not end up the hands of terrorists. One can imagine legitimate charities operating in poor areas with a large Klan or Sovereign Citizen presence facing financial problems because banks fear that the money could end up in the wrong hands.

The government would also try to shut down the virtual presence of suspected terrorists. Although tech companies already take steps to mitigate extremism—Facebook recently announced an initiative to use more artificial intelligence to screen content for extremist material—they would have to apply those steps to the specific needs of right- and left-wing extremism if there was a change to the law. Suspected domestic terrorists would be treated similarly to suspected child pornographers: If companies had any doubt, they would err toward shunning the group. After the Charlottesville protests and attack , some private technology companies have already taken the lead on this by suspending domain services for neo-Nazi and white supremacist websites like the Daily Stormer and Stormfront, forcing them to find new webhosting services.

Counter-messaging programs—analogous to messages like “just say no to jihad”—would be far more robust, targeting the community in the hopes of reducing support for radicals within it. The Obama administration funded these poorly, and under the Trump administration, the program has focused almost wholly on jihadism. But similar programs to target non-jihadist domestic extremism would logically follow a change to the laws although, of course, it remains politically easier to focus on jihadists, which both the right and left agree are dangerous, than extremists on either end of the U.S. political spectrum.

Nonviolent groups that share part of the radicals’ agenda would also be viewed differently. Many Sovereign Citizens share the NRA’s pro-gun agenda; eco-terrorists’ goals overlap with those of the Sierra Club. Today, such nonviolent political mobilization is not just protected under the First Amendment: It is considered vital to a functioning democracy, which requires citizens to express their views in the marketplace of ideas and to inform their elected officials. But with a change to the treatment of domestic terrorists, peaceful organizations might become considered “feeders” of the violent organizations. At the very least, they would be suspected of creating a conducive environment to radicalism. Saudi Arabia, for example, funds an array of extremist mosques, textbooks and preachers for Muslim communities around the world and is often blamed when young men take up arms in the service of these ideas. Domestic nonviolent groups would have an incentive to distance themselves from violent individuals, with the added benefit of helping to ensure that extremists do not slip through the cracks by hiding among a more moderate cohort. The result would be  a chilling effect on organizations, as many potential supporters would avoid links to individuals who might have links to violence, however defined.

Any terrorist seizure of territory, meanwhile, would be viewed as particularly dangerous. When terrorists control territory, they can create training camps that indoctrinate new recruits and provide training on bomb-making, document forgery, assassination and other dangerous tactics. In addition, controlling territory gives a group legitimacy and undermines the authority of the state. Even small safe houses are dangerous. In 2016, Ammon Bundy and several followers seized control of the headquarters building in the Malheur National Wildlife Refuge in Oregon, claiming that federal land should be turned over to the states to manage. The result was a siege that lasted more than a month, with the participants eventually being arrested—and one killed when he resisted. Under the new system, the radicals would still be given a chance to surrender, and if the police and FBI could arrest them without risk, they would do so. But the situation would not be allowed to persist for days, let alone weeks. In addition, if officials deemed the danger to be high, then taking domestic terrorists out with snipers, drones, or other standoff means would be considered acceptable.


Proceed With Caution

This thought exercise shows how profoundly things might change if the United States used the terrorism label more broadly—and that’s probably why we should do so cautiously. As Susan Hennessey contends, many of the current measures to fight domestic terrorists, such as arrests, work well. In addition, most Americans probably don’t want their government to be treating legitimate political movements with suspicion or making banks or Internet companies suppress free speech.

U.S. law enforcement, intelligence, and counter-messaging professionals should apply the law aggressively to prevent and disrupt violent activity while leaving individuals espousing the same ideas to protest in peace. History professor and former senior government official Philip Zelikow calls for shutting down groups that seek to create private militias—that is, the ones that are not “well-regulated” by the states. The Charlottesville marchers, for example, are more like an organized rival to the state than individuals acting on their own because they involve organizations with membership rolls, leaders and even uniforms responding to a common call. This approach balances public safety concerns and First Amendment protections. As Mary McCord argues, “they are not speech but, instead, violent acts.”  This standard also works well for domestic Islamist groups, even if they champion ideas most Americans find objectionable.

If the non-jihadist terrorism problem continues to grow, the United States should also consider having a carefully worded domestic terrorism statute at the federal level along with an associated list of designated organizations. This would enable the federal government to step in more effectively and use its resources and legal power if a group becomes a greater danger. Many of the measures described above would represent too much of a change, and any legislation should consider what counterterrorism measures we don’t want as well as ones we do. Suspicion of authority is at a high point, and even the perception that the government might abuse new powers could worsen this distrust even more. The language should be tightly worded and subject to regular legislative oversight—the definition of a foreign terrorist organization is broad, and any domestic terrorism legislation should focus heavily on the threat or use of violence and be regularly reviewed and updated to respond to changes in group behavior.

Even without such a legislative change, the government must allocate an appropriate level of funding and manpower to domestic terrorism. The right-wing threat in particular is comparable to that of jihadist violence at home, and similar resources should be allocated to addressing it. The FBI and DHS should create larger offices dedicated to domestic groups and otherwise develop their intelligence presence for targeting such groups. Some of the resources used for jihadist violence could be transferred with little loss.

Finally, Americans should recognize the responsibilities of nonviolent organizations that contain radical members or that cross paths with them. Just as Muslim-Americans are a vital source of information on suspected Islamic State supporters, so too should other mainstream communities and organizations feel a moral obligation to point out the few troublemakers in their midst. Nonviolent pro-life advocacy groups should, for example, monitor comment threads on forums for indicators of violent activity. We want the line between violence and nonviolence to be bright, but that desire puts an onus on legitimate groups to police themselves rather than shrug off violence as the work of a few bad actors.