At first (or even second) glance, there wouldn’t appear to be much difference between small groups of foreign Muslims discussing ways to intimidate and scare Americans by spreading and encouraging ideologically-based violence, through You-Tube videos, clandestine meetings, “dark” websites using encrypted communications, weapons training and “teaching sessions” about tactics—and small groups of white American males doing pretty much the same thing from the comfort of their own garages and Home Depot--improved attics:
Imagine hordes of young men descending on city streets waving flags with mystical symbols, chanting angry slogans, and spouting vicious conspiracy theories about Jews dominating the world. These young militants adhere to an absolutist ideology that invokes a mythic past when their tribe reigned supreme, untainted by corruption and foreign impurity. You might think I’m describing a scene from somewhere in the Middle East. But last year, it was Charlottesville, Virginia.
And there is no doubt that had the same acts of violence in Charlottesville been committed by Muslims, Trump—and law enforcement-- would have immediately labelled such actions as terrorism.
Why then, are white supremacists in this country not treated the same under the law as Islamic terrorists? While the phrase “domestic terrorism” has received more and more credence over the past year—even being employed occasionally by those in this Administration—the criminal penalties associated with these two types of “terror groups” are wholly divergent. While foreign --read “Islamic”-- terror groups are routinely charged with terrorism under Federal terrorism statutes, domestic haters such as the types of people who instigated the violence in Charlottesville—if they are charged at all—are typically prosecuted for weapons violations, or at the most, for “hate crimes.”
The reason is that under Federal Law, “domestic terrorism” is not a crime:
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.
Federal prosecutors have a wide array of legal tools to charge foreign terrorists—as noted by Ryan Reilly, writing for Huffington Post (one of the two source articles here), practically any act that furthers the interest of the terrorist group--from providing material support to simply retweeting their propaganda—can open up a person to a Federal terrorism charge. Domestic terrorists such as violence-embracing white supremacists can only face such charges if they take one of relatively few specific actions such as hijacking an airplane, train, or employing a “mass destruction” weapon like nerve gas. Other actions, such as online exhortations or expressions of support, are generally protected by the First Amendment, even if they end up motivating others to kill. Reilly says that in many cases the lack of a federal domestic terrorism law often hampers the ability of law enforcement to bring charges.
In 2016, for example three militia members from Kansas calling themselves” the Crusaders” hatched a plot to kill Somali immigrants by bombing a mosque and an apartment complex (two of them had posted Pro-Trump messages on social media). By any stretch of the imagination these people, had they been foreigners, would have been subject to terrorism charges. But their convictions were for conspiracy to use a weapon of mass destruction and conspiracy against civil rights.
Wajahat Ali, in an excellent article for the New York Review of Books that traces the modern propagation the “white supremacy” movement, addresses the practical impact of the discrepancy between the way American law treats foreign and domestic terrorism. He quotes Heidi Beirich, head of the Intelligence section at the Southern Poverty Law Center, who explains what we would be seeing in this country if the laws applied equally:
What would happen if the law more accurately reflected the domestic terrorism threat and were applied consistently? “There would be stories about white supremacist terror plots every month and a half in this country,” predicted the SPLC’s Beirich.
There are legitimate drawbacks and concerns about making “domestic terrorism” a federal crime. Notably, the accusation of “terrorism” is highly charged and can be levied by anyone against anyone—as opportunistically as the phrase “fake news” is now routinely employed by the world’s worst human specimens. Even the ACLU has warned that such a law might end up casting a criminal shadow over ideology and even theology. And while there was previously some support in the Justice Department for changing the law, its passage through a Congress in which Republicans hold sway is unlikely, particularly in an environment where the Party’s leader routinely provides comfort and tacit encouragement to such groups.
One of those who supports such a move is Mary McCord, formerly acting Head of the Justice Department’s National Security Division. McCord sees an equivalence between domestic terror and foreign terror that should not be ignored:
“To my mind, with domestic terrorists, there should at least be the option of prosecuting them for domestic terrorism, and putting it on that sort of moral equivalence to international terrorism,” McCord said. “Because that’s what it is ― it’s an act of violence that is done with the intent to intimidate or coerce the population, influence government policy or the conduct of government ― and that’s what international terrorists are also trying to do.”