Frank Figliuzzi  White nationalist domestic terrorism is rising — rethinking how we label it can help the FBI stop it

It’s time to dismantle the artificial legal wall between domestic and international terrorism and treat all violent ideologies the same .
Image: US-SHOOTING-EL PASO
Law enforcement agencies respond to an active shooter at a Wal-Mart near Cielo Vista Mall in El Paso, Texas on Aug. 3, 2019.Joel Angel Juarez / AFP - Getty Images
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By Frank Figliuzzi, former FBI assistant director for counterintelligence and NBC News/MSNBC analyst

It’s time to rethink how we label terrorism. In congressional testimony two weeks ago, Christopher Wray, the Trump-appointed director of our FBI, explained that the threat of white nationalist violence appears to be rising. Between October and June, there were about 100 arrests of domestic terrorism suspects — and if that trend continues, the total for 2019 will exceed the previous year, when there were about 120 cases. Wray added, “We, the FBI, don’t investigate ideology, no matter how repugnant… When it turns to violence, we’re all over it.”

When it does “turn to violence,” as it did in El Paso, often all that’s left for the FBI to do is clean up the carnage. But what if there was a way to better deter and even prevent deaths, not just investigate them after the fact?

What if there was a way to better deter and even prevent deaths, not just investigate them after the fact?

Currently, the FBI lacks the laws and investigative tools necessary to tackle this threat from within. Following the mass shootings in El Paso, Gilroy and Dayton, the FBI Agents Association, representing over 14,000 active and former special agents, called on Congress to make domestic terrorism a federal crime. Most Americans may assume this is already the case. But oddly, while the U.S. government defines domestic terrorism under the law, it doesn’t single it out as a specific crime.

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The USA Patriot Act, enacted after the 9/11 terrorism attacks, defined domestic terrorism (think white supremacy, violent militias and the Oklahoma City bomber) as activities that appear to be intended to intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by mass destruction, assassination, or kidnapping; and occur primarily within the territorial jurisdiction of the U.S. Yet, international terrorism (think Al Qaeda and ISIS), limited to “acts of terrorism transcending international boundaries,” is a federal crime. Its domestic counterpart is not. So why isn’t it? And is creating a separate and distinct new domestic terrorism law the solution?

Hate-based, racially driven violence is nothing new in America; in fact, it is woven through the most disturbing fragments of our history. But this threat is now growing due to at least two driving factors. First, the internet makes it easier than ever for like-minded extremists to find, encourage and abet one another. In fact, the internet not only facilitates radicalization, it exponentially speeds the path from hate to violence. Second, never has our nation had a president who served as a kind of radicalizer-in-chief. As I noted in a recent New York Times editorial predicting imminent racial violence, it matters not whether President Donald Trump is a genuine racist or merely playing one on TV. Nor, does it matter that Trump’s angry and hate-filled rhetoric typically falls just short of calling for violence.

As multiple examples show, that subtle distinction is lost on unstable minds seeking to belong to a cause greater than themselves. Importantly, the radicalization process that is playing out across our nation, including peer group affirmation and a compelling leader figure, looks eerily like the same process that pushes young extremist Muslims to violent jihad.

But this brings me back to the broader point about the legal definition of terrorism. If the radicalization process, the violent consequences and investigative skill sets needed to prevent them are virtually indistinguishable, why do we place domestic and international terrorism in two different buckets? And why are we talking about formalizing those buckets by creating a distinct law against domestic terror?

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If the El Paso murderer were Islamic, and his hateful online screed full of mentions of Allah, law enforcement would have the legal resources needed to address the ideological motivation for his violence in an enhanced fashion. More importantly, though, had the terrorist have been identified as a follower of Islam, it’s possible the FBI could have prevented the horror of El Paso because the law for international terrorism allows counterterrorism officials to monitor the racist and violence-enabling chat rooms where terrorists gather.

Violent ideology that’s headed toward violent action and facilitated by websites, blogs, chat rooms, or other forums needs to be addressed regardless of its origins.

Many are now calling for enactment of a new law that criminalizes domestic terror much like its international cousin. Although that call is understandable, it’s also unnecessarily fraught with confusion and hand wringing over free speech and privacy. I’m a champion of free speech and privacy and have dedicated my 25-year FBI career to defending our right to say what we please. But, as the Supreme Court ruled in 1969 in Brandenburg v. Ohio, speech is protected under the First Amendment unless the speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” We seem to fully understand this when it comes to extremist Muslims planning an attack. Yet, we break out in a sweat when we suggest merely monitoring confirmed white supremacists on a social media site who pretend to be Christians and talk about shooting brown “invaders.”

It’s time to dismantle the artificial legal wall between domestic and international terrorism. Violent ideology that’s headed toward violent action and facilitated by websites, blogs, chat rooms, or other forums needs to be addressed regardless of its origins in racism, hate, religion and left or right-wing extremism. Let’s have one law that treats all violent ideologies the same and makes acting on those ideologies a crime.

Rigorous regulations and oversight would be required to mitigate the risk of civil liberties incursions and potential privacy abuses, but we can do this, and we have done it with international terrorism policies. It’s time to permit law enforcement the same investigative tools for domestic terror that they currently use to prevent international terrorism. Such a law should be blind to skin color, religion and politics and focus squarely on the kind of violent intentions that resulted in last weekend’s horror in El Paso.

Many will say that we already have underlying laws that can address domestic terrorism. It’s true that the El Paso shooter has already admitted to murder and likely will be charged with a hate crime; he may well be executed for those crimes. But the longer we continue to treat violent, ideology driven slaughter as just another crime, the longer we ignore the fact that the people adhering to those ideologies pose a much greater, more organized threat to our nation and what it stands for than a homicide during a robbery at the local convenience store.