WASHINGTON ― Every time a white man tries to kill Americans en masse, people ask law enforcement officers, politicians and journalists the same question: Why isn’t this terrorism?
The question came up last year when a young neo-Nazi in a muscle car mowed down a crowd of anti-racist demonstrators. It was asked after after an abusive young white man decked out in tactical gear killed 26 churchgoers, and when a white supremacist stabbed two men to death because they intervened as he berated a woman in a hijab. People wondered about the answer when a left-wing zealot who railed against Republicans opened fire on GOP congressmen practicing softball, and when a wealthy white man unloaded an arsenal on an outdoor concert, slaughtering 58 and injuring more than 500.
All of the attacks certainly looked like acts of terrorism. Most of them even meet the federal definition of domestic terrorism. So why wouldn’t federal law enforcement officials use that term? Where are the federal terrorism charges against the suspects who survived?
“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 gentleman, we’re revealing domestic terrorism here.’”
Thomas Brzozowski is well aware of the criticism. The former judge advocate general officer and FBI lawyer is now the Justice Department’s counsel for domestic terrorism matters, a counterterrorism position created within the DOJ’s National Security Division in 2015.
Americans who are wondering why federal law enforcement officials seem so hesitant to call attacks by domestic extremists terrorism should take a look at the law, Brzozowski says. Although the U.S. code defines domestic terrorism as dangerous acts that appear intended to intimidate civilians, influence the government, or affect the conduct of government, there’s no broad criminal statute that outlaws those acts.
“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 gentleman, we’re revealing domestic terrorism here,’” Brzozowski said this week, speaking at an event hosted by George Washington University’s Program on Extremism.
“The department is going to be somewhat reluctant to come out in front during litigation in these types of cases and name someone as a domestic terrorist,” Brzozowski added, explaining that the statutes federal prosecutors often use against domestic terrorists don’t include the word terrorism.
“The notion that the government takes Islamic extremism more seriously than domestic terrorism is, frankly, not true,” Brzozowski argued. But federal prosecutors have “fewer tools” for charging domestic terrorists with criminal conduct than they have for terrorists affiliated with or inspired by foreign terrorist organizations like the Islamic State group who might commit the very same act, he added, though he noted there are a variety of other federal statutes not explicitly terrorism-related that might be applicable.
Federal prosecutors have wide latitude to go after individuals who affiliate with designated foreign terrorist organizations, a list mostly filled with radical Islamic groups. Pretty much any behavior in support of a designated foreign terrorist organization ― included retweeting tweets or reblogging GIFs on Tumblr ― can count as “material support” and trigger a federal terrorism charge.
On the other hand, domestic extremists ― radical militias, neo-Nazis, white supremacists, etc. ― enjoy wide protection under the First Amendment and can face federal terrorism charges only if they engage in particular kinds of activity, e.g., hijacking an airplane, seizing control of an Amtrak train or using a weapon of mass destruction. There are plenty of violent acts ― including mass shootings and running down people with a car ― that aren’t specifically covered under federal anti-terrorism laws.
Here’s how that plays out. The neo-Nazi who killed Heather Heyer with his Dodge Challenger in Charlottesville, Virginia, in August does not (and likely never will) face federal terrorism charges, even though Attorney General Jeff Sessions called the attack an act of domestic terrorism. In contrast, the Islamic State sympathizer who murdered eight people by plowing a truck through a bike lane in New York last year is facing federal terrorism charges, with the murders considered a form of “material support” for the Islamic State. (Additionally, the feds got a bit creative with federal law in his case: They convinced a federal grand jury to indict the ISIS supporter with murder in aid of racketeering ― a charge typically used against mobsters and gangs ― by labeling ISIS an enterprise engaged in organized crime.)
In many cases, the lack of a domestic terrorism law limits the ability of federal prosecutors to charge white supremacists, neo-Nazis and other extremists who commit acts of violence against Americans with a federal terrorism-related crime. Often, states have a stronger case to bring than the feds.
But even when federal prosecutors do find a way to go after domestic terrorists with other federal statutes, the current structure of the law makes prosecutors hesitant to call terrorism what it is. If they’re not using a terrorism statute to charge a domestic terrorist, using the term “terrorism” could damage their prosecution. A judge might find such statements prejudicial.
“The department is very judicious about deploying the term in the first instance, and typically will only do so in the backend of litigation when the facts and circumstances are going to be clear,” Brzozowski said.
As an example, Brzozowski used the case of a white supremacist named Kevin Harpham, who was sentenced to 32 years in federal prison for attempting to bomb a Martin Luther King Jr. Day unity march in Spokane, Washington, in 2011. Harpham pleaded guilty to two federal counts: attempted use of a weapon of mass destruction and a hate crime charge. Brzozowski noted that the hate crime charge essentially determined how the public understood the crime.
“The Harpham case was typically construed in terms of hate. This is a hate crime. That is how the public took it up, that is how pundits referred to it, that is how folks outside of government viewed it. It was viewed through the prism of hate,” Brzozowski said. “Folks seize on that and view this almost exclusively in terms of hate. What they miss is the fact that his underlying criminal activity clearly meets the statutory definition of domestic terrorism ... without a doubt.”
Brzozowski noted that the government petitioned the court for a terrorism enhancement during sentencing, and they got it. But that’s only at the tail end of a prosecution, when the public view has already been shaped. When domestic terrorism cases first unfold, the DOJ very rarely deploys the term “terrorism” unless it is citing a specific statute.
“In the main, you’re not going to see the word ‘terrorism’ associated with it right up front, which is different from your ISIL folks or your al Qaeda folks that are picked up at the airport,” Brzozowski said. “On its face, the charging document says terrorism. On its face. As a result, there’s no question that this dude is an international terrorist.”
But “because the charging determinations are so diffuse” in domestic terrorism cases, Brzozowski said, it often isn’t as clear up front.
“The last thing you want to do is use that word ‘terrorism’ in an inappropriate fashion to paint somebody as something that they are not, because it has a potent force associated with it.”
“As a consequence, our ability to really get out in front and say ‘This is terrorism’ is a little bit constrained,” Brzozowski said. “The broader idea ― in terms of whether it’s domestic terrorism or not ― sometimes isn’t communicated to the public for a very valid reason.”
The term “terrorist” has “very real significance,” Brzozowski added, and as a result the government has to be very careful about deploying a term that itself is political.
“The last thing you want to do is use that word ‘terrorism’ in an inappropriate fashion to paint somebody as something that they are not, because it has a potent force associated with it,” Brzozowski said. “The term has political connotations, and can be deployed politically, perhaps to ends that are not appropriate. It can be used as a cudgel to bludgeon a political opponent, characterizing or casting them as a terrorist when the facts don’t necessarily measure up.”
As HuffPost reported after the attack in Charlottesville in August, the Justice Department has had ongoing discussions about pushing Congress to pass a statute that would make all acts of domestic terrorism a federal crime. Although there would no doubt be constitutional considerations to keep in mind if Congress drafted such a statute, the effort has gained the support of people such as former DOJ National Security Division chief Mary McCord and the president of the FBI Agents Association. The group’s president wrote in an op-ed that Congress should “unite around this common threat to our citizenry and move quickly to attach criminal penalties to the definition of domestic terrorism in the U.S. Code.”
Brzozowski acknowledged the internal debate at DOJ, but said he couldn’t take a public position on the issue because of the nature of his role. “We are continuing to look at that very closely. As you might imagine, it’s an involved process which involves input from multiple agencies,” he said.
Brzozowski avoided weighing in on more recent domestic terrorism cases that are still making their way through the judicial system, including the terrorism case unsealed last week against an armed white supremacist who allegedly broke into a secured part of an Amtrak train and activated the emergency brake. As HuffPost reported, the Justice Department never notified reporters about the case, which only became public after a local reporter found it in online federal court records.
But more broadly, Brzozowski pushed back on suggestions that the federal government doesn’t take domestic terrorism seriously, pointing to comments from FBI Director Chris Wray back in September in which he indicated the bureau was investigating about 1,000 domestic terrorism cases.
“This notion that domestic terrorists are getting a pass, somehow, is not true,” Brzozowski said.
Ryan Reilly is HuffPost’s senior justice reporter, covering criminal justice, federal law enforcement and legal affairs. Have a tip? Reach him at email@example.com or on Signal at 202-527-9261.