Why Far-Right Attackers Aren't Charged as Domestic Terrorists

By Luke Barnes, ThinkProgress

23 March 19

Despite the rise in right-wing violence, attackers rarely — if ever — face terrorism charges. Experts explain why.

hristopher Hasson’s alleged intentions were clear from the start.

Hasson, 49, a Coast Guard lieutenant, was arrested by federal agents in late February on gun and drug charges. But the guns alone weren’t the reason prosecutors were concerned.

Instead, they were troubled by the fact that Hasson had allegedly amassed an arsenal in preparation for a lone wolf attack inspired by the far right, and had compiled an alleged hit list of prominent Democrats and journalists, which included CNN’s Don Lemon, Sen. Elizabeth Warren (D-MA), and Rep. Alexandria Ocasio-Cortez (D-NY).

“The defendant intends to murder innocent civilians on a scale rarely seen in this country,” the detention motion read. “The defendant is a domestic terrorist, bent on committing acts dangerous to human life.”

Despite this, and prosecutors’ own description of him as a “domestic terrorist,” Hasson has not yet been charged with terrorism. On March 11, he pleaded not guilty to illegal possession of firearm silencers, possession of firearms by a drug addict, and possession of a controlled substance. He faces up to 31 years in prison.

The Hasson case underscores two important points, the first of which was made clearer in the wake of a mass shooting in Christchurch, New Zealand, last week. First, far-right extremism is on the rise. And second, there’s little authorities can do to prosecute those extremists as “terrorists.”

According the Anti-Defamation League, far-right extremists were responsible for every extremist-related murder in the United States in 2018, bar one. A November report by the Center for Strategic & International Studies noted that far-right terrorist attacks in the United States have increased from less than five per year between 2007 and 2011, to 31 in 2017. Europe has seen a similar resurgence, with security services in Sweden, Germany, and the U.K. all foiling separate plots over the last year alone.

This increase in far-right extremism, paired with a lack of terror charges, has exposed the gray areas within the U.S. legal system. While authorities have been amply equipped since 9/11 to deal with cases involving international terrorist groups, they lack the ability to prosecute right-wing extremists as domestic terrorists due to a loophole in existing laws.

In 2015, after white supremacist Dylann Roof shot nine black worshippers at a church in Charleston, South Carolina, for instance, he was indicted on 33 counts, some of them hate crimes, but no domestic terrorism charges, despite then-Attorney General Loretta Lynch describing the hate crimes as “the original domestic terrorism.” Roof was later sentenced to death in federal court on all 33 counts.

In 2017, James Alex Fields was also indicted on federal hate crime charges and found guilty of murder in the state of Virginia after he drove his car into a group of counter-protesters at a white nationalist rally in Charlottesville, killing one woman. Attorney General Jeff Sessions described the act as “domestic terrorism,” but Fields was never indicted on terrorism charges.

Even Timothy McVeigh, who was responsible for the 1995 Oklahoma City bombing, considered the worst act of domestic terrorism in U.S. history, never faced domestic terrorism charges.

According to Dr. Erroll Southers, a former FBI Special Agent and professor at the University of Southern California, there’s an unfortunate reason for that.

“We don’t charge people with terror offenses unless they’re connected with a foreign country or ideology,” Southers told ThinkProgress. “While a hate crime charge can still send a person to prison for life, there’s something unique about being labeled a terrorist. It’s a very pejorative term and it’s used with care.”

However, he said there was no question about the links between attacks like the Pulse nightclub shooting in Orlando in June 2016 and the Charleston attack. Both, he suggested, were undeniable acts of terror.

“If you look at what [Pulse nightclub shooter] Omar Mateen did, the fact that he said ‘I swear allegiance to ISIS’ was good enough for everyone. Everyone agreed he was inspired by ISIS,” Southers added. “There should be no question about other instances where people have espoused beliefs in written documents […] about what their ideological background is. Why, then, would Dylann Roof, with a significant digital and physical presence, be charged or designated any differently than Mateen?”

Some analysts and attorneys have argued that a new domestic terrorism statute is needed, because while the U.S. legal code defines domestic terrorism, it currently carries no specific penalties.

In January 2018, the Justice Department’s domestic terrorism counsel Thomas Brzozowski noted that federal prosecutors have “fewer tools” for prosecuting such cases, partly because homegrown extremist groups like the KKK enjoy wide protections under the First Amendment. That in turn makes it impossible to charge any affiliated extremist with providing material support to a “terror” organization.

In February this year, Thomas Cullen, the U.S. attorney for the Western District of Virginia, made a similar argument, writing in a New York Times op-ed that a new federal level domestic terror law would “help the police and prosecutors address this growing threat.”

However, critics warn that any rush to pass new domestic terror legislation misses the point — the statutes on the book already provide plenty of options. According to the Brennan Center for Justice, of the 57 predicate offenses which constitute federal crimes of terrorism, 51 can be used independently to prosecute domestic extremists.

The problem, experts argue, is a lack of political will to pursue domestic extremists, as well as bias against certain minority communities, which means any sort of legislative response inevitably impacts them to a greater extent.

After a gunman who had expressed numerous anti-Semitic and far-right views opened fire on a Pittsburgh synagogue in November 2018, killing 11, for instance, the Trump administration shuttered the Department of Homeland Security’s (DHS) Countering Violent Extremism program, which provided grants to specifically combat far-right extremism. Years earlier, in 2009, DHS published a report warning that the political and economic climate was creating a ripe recruitment environment for right-wing extremism, but it was scuttled after Republican outrage.

By contrast, just prior to the deadly white nationalist rally in Charlottesville, the FBI published an intelligence assessment warning, ironically enough, of the threats of “black identity extremists,” citing the rise of civil rights groups like Black Lives Matter, though it was not directly named in the report.

“There’s a politicized agenda depending on the attacker,” Southers said. “With a ‘non-jihadist,’ for instance, the first conversation is about mental health, and it will usually stop there — no discussion about terror, radicalization. All those key phrases are noticeably missing. If I don’t hear that person’s ethnicity, nationality or religion [immediately] I know it’s not a Muslim.”

Any proposed domestic terrorism legislation could also concentrate more power in the hands of law enforcement, which has routinely chosen to target communities of color.

Attorney Nana Gyamfi, a human rights expert and co-founder of Justice Warriors 4 Black Lives, outlined U.S. law enforcement’s long history of targeting black activists as “terrorists” in a recent interview with ThinkProgress. Past efforts have ranged from labeling abolitionist Harriet Tubman as an extremist, to the FBI’s COINTELPRO program to infiltrate and discredit civil rights organizations, to the ongoing “both sides” rhetoric that equates Black Lives Matter activists with far-right domestic terrorists.

In May last year, activist Rakem Balogun was accused by the FBI of being a “domestic terrorist” because he had criticized police and was part of two groups advocating for black gun owners. Balogun was believed to be one of the first people prosecuted as a “black identity extremist,” individuals the FBI believes are engaged in extremism or violence in retaliation for perceived racism or injustice.

“I would be concerned because that type of [domestic terrorism] legislation, no matter who it’s supposed to, ends up targeting black people,” she said. “That’s what ends up happening. What doesn’t happen is that the people marching with tiki torches, those people don’t end up being viewed as domestic terrorists.”

Additionally, Gyamfi and Southers both noted, law enforcement departments have been repeatedly infiltrated by the far right in the past. Last July, four officers from a police department in Jasper, Alabama, were suspended for flashing a white power hand sign in a post-arrest photo – the same symbol the suspected New Zealand shooter flashed in his first court appearance.

And in September, HuffPost reported that a police officer in rural Georgia was suspended after repeatedly liking Facebook posts related to the KKK. This March, a school resource officer in Virginia was also suspended after it was revealed he was part of the white nationalist group Identity Evropa.

“As we see from Charlottesville, and as we see from several demonstrations from white nationalists in California, the police did not intervene or they assisted them by hobbling counter-protests in ways that allowed white supremacists to engage in violent acts,” Gyamfi said. “At a 2016 rally in Sacramento, [white nationalists] stabbed people and the police targeted the people who were being stabbed.”

Southers cited the Charlottesville rally, where white nationalists infiltrated counter-protest planning in order to provide police with information on them. “It’s common for [law enforcement] meet with both sides before a rally, to identify who’s in charge – there’s a playbook that everyone agrees on,” he said. “But one group forwarding information about another group – there’s a clear comfort level there.”

Instead of crafting new legislation to address those problems, Gyamfi echoed the recommendations of the Brennan Center in re-focusing the laws already on the books to crack down on domestic extremists, as well as improving data collection so that federal law enforcement can more accurately establish where there is an upswing of far-right violence. There is no overarching statute for hate crimes in the United States, and many localities under-report them, leading to an incomplete data set for understanding the state of hate in America.

“There are laws on the books that can be used right now against domestic terrorists,” Gyamfi said. “…They can and do cover the acts we’re talking about that are being perpetrated by white nationalists.”

Southers urged a renewed focus on far-right extremism, which he and other terrorism analysts have watched metastasize into an increasingly dangerous threat.

“I share the sentiments of my colleagues — we are very worried and saw this coming more than a year ago,” he said. “We don’t have to look to New Zealand as an example, these things are going to continue to happen in the United States. We have normalized many behaviors associated with extremist violence and we’re gonna pay for that.”