Applying 9/11 laws to domestic terrorism could hurt minorities more than white supremacists
In the wake of the mass shooting that targeted Mexicans in El Paso, Texas, national security officials are aggressively pushing new laws to treat white nationalist violence the way we have treated international terrorism since 9/11. Applying the “terrorism” label to white nationalist violence is appropriate: It acknowledges the systemic and political nature of the threat and the need for a concerted response.
Even so, proposals to expand federal law enforcement powers are misguided and dangerous. Moreover, if history is any guide, activists of color and marginalized communities might bear the brunt of that expansion, instead of the white supremacists who prompted it.
As a national security law scholar and former civil rights lawyer, I’ve seen how flawed our approach to terrorism has been. Expanding our terrorism laws would only entrench an unfair and unaccountable legal regime.
Government targets Muslims
Since 9/11, the government has intensively surveilled and policed American Muslim communities. Through a vast network of informants, the FBI singles out individuals deemed susceptible to “radicalization” — including vulnerable individuals with mental health problems — and prods them to commit crimes. The government then charges people with material support to terrorism, including on the basis of speech. Sentences are severe even for individuals who have not attempted violence.
In El Paso, Texas, on Aug. 8, 2019. (Photo: Paul Ratje/AFP/Getty Images)
We are only beginning to reckon with the human cost of these policies. In July in California, a Muslim-American man imprisoned for 14 years was released after a federal court vacated his conviction for material support to terrorism. Like other cases, Hamid Hayat’s prosecution involved a paid informant motivated to find or invent a terrorist and inflammatory evidence designed to prejudice jurors.
As a civil rights lawyer at the time of Hayat’s investigation, I saw how the FBI treated the local Muslim community where he lived: Agents followed people in the streets, interrogated them at their workplaces, and circled a mosque while civil rights lawyers spoke to community members inside. This “anticipatory prosecution” model — which cast a wide net of suspicion in an aggressive search for future threats — is not a model we should apply to people of any race, religion or ideology.
Winning cases with existing law
Faced with a growing domestic terrorism threat, it’s politically attractive for law enforcement agencies to say they have lacked the power to address it. But federal authorities have long had the power they need to fight domestic terrorism.
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First, while there is no federal charge that covers all domestic terrorism, federal authorities already have numerous criminal laws available to prosecute domestic extremists. In fact, the U.S. criminal code already defines dozens of these crimes as “federal crimes of terrorism” when committed with an intent to influence government conduct.
Federal authorities can also prosecute white supremacists using gun laws, hate crimes charges or numerous other statutes — and have successfully done so in cases ranging from the church shooting in Charleston, South Carolina, that killed nine parishioners to the car ramming that killed one and injured dozens in Charlottesville, Virginia.
In addition, FBI guidelines already provide wide latitude to investigate potential threats from white nationalists and other “domestic” extremists. For instance, under their authority to conduct “assessments” of possible criminal activity, FBI agents can search databases, conduct interviews of people, and send confidential informants to investigate a person without any factual predicate for suspicion. These powers demand more oversight, not less.
Other tools can address this violence
It’s true that the law doesn’t ban all material support to domestic terrorist organizations, as we do with foreign terrorist groups. But that’s for good reason. The existing ban already curtails the speech rights of U.S. citizens, enables politically motivated designations, and makes it exceedingly difficult for groups to challenge their inclusion on the government’s list. No administration should wield even greater power to blacklist organizations.
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Despite all this, we can and must do more to address white nationalist violence. To begin, political leaders and the public must hold accountable the president and his allies for rhetoric that dehumanizes immigrants and emboldens white supremacists. Second, federal gun control legislation — including universal background checks and a renewed assault weapons ban — could reduce the lethality of mass shootings, regardless of motivation. Third, law enforcement agencies and the military should do more to address white supremacist recruitment within their ranks. And internet companies must strengthen efforts to curtail incitement and threats on their platforms.
There are no easy solutions to a problem as grave as white supremacist violence. But we can’t start from the premise that our existing approach to terrorism provides a model to replicate. That model needs reformation, not expansion.
Shirin Sinnar is professor of law and the John A. Wilson Faculty Scholar at Stanford Law School.
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