Government officials, Republicans and Democrats, are calling last weekend’s mass shooting in El Paso domestic terrorism. This is correct; according to FBI officials, more U.S. deaths have been caused by domestic terrorists than international ones in recent years, and the majority of the bureau’s domestic terrorism investigations involve white-supremacist ideology. So many of these attacks, from Charleston to Pittsburgh to Poway, make clear that American civilians face threats beyond Islamist terrorism.
As it happens, America has ample experience fighting terrorism; we’ve been at it since the days after Sept. 11, 2001, when President George W. Bush called on foreign leaders to help the United States defeat al-Qaeda. The “global war on terror” he proposed wasn’t just a military campaign; it was also a terrorism prevention campaign, mobilizing law enforcement and the intelligence community to protect the homeland from future attacks. Although some of its tactics rightly have been criticized and even struck down by the courts, much of the counterterrorism infrastructure remains in place and continues to be remarkably successful in preventing attacks here by Islamist extremists.
What can we learn from the “war on terror”? Prevention of international terrorist acts in the United States is based on aggressive law enforcement techniques such as undercover online personas and sting operations, information sharing between Washington and foreign intelligence outfits, and certain surveillance tools that are unique to the U.S. search for foreign intelligence (and generally could not be used against domestic threats). If we want to fight terrorism in the homeland, there are plenty of lessons to apply.
Undercover operatives, working online, have helped to combat a range of crimes, from child sexual exploitation to public corruption to drug smuggling to terrorism. To fight terrorism, officials pose as aspiring jihadists on social media and in chat rooms to identify people who may be plotting an attack. The purpose is prevention — ensuring that a would-be bomber is thwarted by agents who, masquerading as co-conspirators, might set up a fake rendezvous where the suspect expects to detonate the bomb — rather than arresting and prosecuting perpetrators after the harm is done.
These techniques, though, are limited when it comes to preventing domestic terrorist attacks. FBI guidelines forbid agents from deploying them solely on the basis of First Amendment-protected activity; a white nationalist has a constitutional right to espouse hate and to join with others — in the online world or the physical world — who agree with him. Instead, agents must have reason to believe that a crime is being, or may be, committed. That makes it important for the government to ensure that the set of possible crimes is broad enough to cover what it is trying to prevent.
Consider the most common international terrorism charge: material support to a foreign terrorist organization, which accounts for nearly half the federal terrorism-related prosecutions since 9/11. It criminalizes providing “material support or resources” — including money, equipment and one’s self as the perpetrator of an attack — to a State Department-designated foreign terrorist organization. It is the basis for disrupting terrorist plots in the United States that advance the work of groups like al-Qaeda or the Islamic State. Charges of “material support” to a terrorist organization are not available to prevent domestic attacks, because the United States does not designate American groups as terrorist organizations. None of the 68 entries on the State Department’s list is a white-supremacist group.
Although the First Amendment’s protections of speech and assembly would make it difficult to label white-nationalist groups here this way, there is no bar to designating foreign white-supremacist groups as terrorist organizations, which would make it a crime for Americans to provide help to them. The criteria for such designations are ideologically neutral: The organization must be foreign, it must engage in terrorist activity or have the capability or intent to engage in terrorist activity, and it must threaten U.S. national security. Foreign neo-Nazi groups such as the Nordic Resistance Movement, Combat 18 and Jobbik, just to name a few, have waged terrorist violence. (The web of white supremacists inciting and motivating one another internationally has strong parallels to the global jihadist movement. The man accused of killing 51 people at two mosques in Christchurch, New Zealand, in March cited white-supremacist terrorist attacks from around the world as his inspiration. Likewise, an online screed linked to the suspect in the El Paso shooting began by praising the Christchurch attacker.) If the State Department put any of these groups on the list, the FBI could deploy undercover agents to chat with their members online, and would-be domestic terrorists in the United States would have to think twice about engaging with them.
Another gap in our law is that domestic terrorism is not a federal crime. Of the many terrorism statutes in the U.S. Code, none apply to the most common type of domestic-terrorist attack: using firearms to shoot large numbers of people. The same mass shooting, if committed by someone who announced allegiance to the Islamic State, would be prosecuted as an attempt to provide material support to a foreign terrorist organization, among other terrorism crimes. This doesn’t mean domestic terrorism goes unpunished: Murder is a crime in all 50 states, and white-supremacist killings often violate federal hate-crime laws. But from a prevention standpoint, those crimes don’t give the FBI the tools it needs to treat potential white-nationalist killers like the Islamist terrorists whom investigators have spent their careers studying.
The federal definition of “international terrorism” is a crime of violence, regardless of ideology, intended to intimidate or coerce people, or influence government policy through intimidation or coercion. If Congress passed a law criminalizing domestic attacks along these lines, law enforcement agencies could more readily use the tools that have disrupted Islamist terrorism in the United States. This also would enshrine a moral equivalency in our laws: Killing innocents to try to end immigration and create a white ethno-state is no different than killing innocents because they are thought to be enemies of Islam.
The FBI’s successful tactics would be of little value without the information-sharing established after 9/11. Not only did the wall come down between domestic law enforcement and the intelligence community, providing agents with foreign reports that helped them prioritize resources, but a whole new apparatus for distributing intelligence was built; we now exchange information about terrorists with other countries battling the same threat. White supremacy, like Islamist jihad, is a global problem. It deserves the same global approach.
The National Counterterrorism Center (NCTC), created after 9/11, has a mission to “lead and integrate the national counterterrorism (CT) effort by fusing foreign and domestic CT information, providing terrorism analysis, sharing information with partners across the CT enterprise, and driving whole-of-government action to secure our national CT objectives.” Its work has aided military success abroad and terrorism prevention here at home.
But its mission could be expanded to include domestic terrorism. Indeed, the NCTC’s leadership has concluded that it can do just that, according to a report in the Daily Beast, and it will presumably begin doing so. This is smart, and consistent with the National Strategy for Counterterrorism, which recognizes the threat to the homeland from domestic terrorism. The NCTC’s involvement will lead to better awareness of key online radicalizers and operatives, the transnational links and networks they use, and tactics being pursued by aspiring domestic killers.
Some of the techniques of the “global war on terror” — torture, renditions, warrantless mass surveillance — should never be repeated. But if we want to treat white-nationalist shooters like the terrorists they are, and still abide by the rule of law, there’s a template right before us.