Domestic Terrorism Should Be a Crime: Fighting White Supremacist Violence like Congress Fought “Animal Enterprise Terrorism”

I. Introduction

On August 3, 2019, a twenty-one-year-old white man killed twenty-two people and wounded over twenty-five more after driving eleven hours to El Paso, Texas and opening fire in a Walmart.^[1] Shortly before the attack, the assailant posted a racist manifesto, expressing contempt for the “Hispanic invasion of Texas” on a website popular with white supremacists.^[2] Federal investigators confirmed the following day that the massacre was being investigated as an act of domestic terrorism.^[3] The FBI’s declaration was warmly welcomed by the public, after much criticism pointed to the unequal treatment by the media and law enforcement of murders committed by white nationalists as opposed to crimes committed by, for instance, Muslim men.^[4]

While classifying the attack as domestic terrorism may carry political weight, the legal effect is nil: domestic terrorism is not a punishable federal crime.^[5] Some scholars argue that the designation of domestic terrorism by law enforcement can still be effective, even without an added federal charge;^[6] others say there is already enough statutory authority for federal prosecutors to charge crimes of domestic terrorism.^[7] It may be that calling the violent acts committed by white U.S. citizens “terrorism” is largely symbolic of public denouncement and equal concern for threats posed at home rather than abroad. This does little to deter the increasingly frequent mass killings perpetrated by white supremacists and other extremists. After all, we assume that any mass murderer will be prosecuted, and we assume that the murderer is aware of these consequences before he acts. The El Paso shooter himself said in his pre-attack post, “I’m probably going to die today.”^[8] Counterterrorism efforts are thus necessarily about identifying threats of ideologically motivated violence and stifling their influence from the public domain in order to suppress support for the threats of violence.^[9]

This Comment argues that, because of these reasons, for an effective approach to treating white supremacist violence as terrorism, federal law enforcement must receive the proper authority to conduct adequate intelligence operations and investigations to prevent further ideologically motivated attacks perpetrated domestically by U.S. citizens.^[10] Possibly the most commonly cited obstacle to investigating domestic terrorism similarly to foreign terrorism is fear of jeopardizing the civil liberties afforded to U.S. citizens.^[11] But investigating and surveilling citizens to prosecute domestic crimes is widely authorized by statute and does not spark the same civil-liberties controversy.^[12] Trying to force a domestic criminal component into an internationally-focused terrorism statutory scheme could perhaps be the only perceived complication to properly prosecuting the dissemination of violent ideas by white supremacist extremists.

This Comment suggests a new approach to appropriately combat the growing threat of domestic terrorism: passing an entirely new criminal statute outside of the existing federal terrorism framework. Previous legislative efforts to combat other specific motives for violence, like the Animal Enterprise Terrorism Act (AETA),^[13] prove that the type of conduct by white supremacists is not outside federal jurisdiction, nor will this type of legislation pose serious civil-liberties concerns.^[14]

Part II of this Comment makes the case for needing a statute to criminalize domestic terrorism, looking to the growing crisis of white supremacist extremist violence and the fact that the acts of domestic terrorism are not specifically criminalized at the federal level. Part III provides a comparative framework for a domestic terrorism statute by exploring the AETA and how it has been applied to criminalize and deter a particular form of domestic terrorism. Unpacking the scope of this criminal statute, particularly as applied in United States v. Fullmer, is a sobering answer to those who express concern for the constitutional viability of such a statute. Part IV explores applying this type of framework to the modern threat of white supremacist extremists by using a hypothetical example. Part V outlines the most important considerations that Congress must address when drafting a domestic terrorism statute.

II. Making the Case for a Domestic Terrorism Statute

A. The Crisis of White Supremacist Violence

White supremacist extremists have grown in numbers and strength in recent years due to a variety of factors.^[15] The National Consortium for the Study of Terrorism and Responses to Terrorism published a report in November 2016 that found right-wing extremists to be “the deadliest form of extremism in the US since 9/11,” having “killed more Americans on US soil than jihadi extremists by almost two-to-one.”^[16] The Anti-Defamation League publishes an annual report tracking extremist murders, and a review of 2018 found that fifty lives were taken by extremists in the United States in that year alone.^[17] Since 1970, the second and third deadliest years by domestic terrorism were 2016 and 2015 respectively (the deadliest being 1995, due to the Oklahoma City bombing).^[18] Notably, the Anti-Defamation League’s report found that “[t]he extremist-related murders in 2018 were overwhelmingly linked to right-wing extremists,” with white supremacists “responsible for the great majority of the killings.”^[19] A Joint Intelligence Bulletin published by the FBI and the Department of Homeland Security (DHS) in 2017 found that white supremacist extremists “were responsible for 49 homicides in 26 attacks from 2000 to 2016 . . . more than any other domestic extremist movement,” with most murders committed by firearms.^[20]

B. The Executive Branch Is Not Solving the Problem

The federal government’s acknowledgment of the threat of white supremacist violence came after public discourse shifted to criticize the government for not labeling extremist attacks as terrorism and for the Trump Administration’s apparent ambivalence toward the growth of white supremacy.^[21] Indeed, the House Committee on Oversight and Reform held a hearing entitled “Confronting White Supremacy (Part I): The Consequences of Inaction” just a week after the Joint Intelligence Bulletin was published.^[22] The public sentiment was also fueled by President Trump’s response to the Charlottesville attack by a white supremacist upon peaceful counter-protesters at a “Unite the Right” rally.^[23] After a car plowed through the counter-protesters, killing one and injuring twenty-eight, the President commented that there were “very fine people on both sides.”^[24] The comment sparked controversy among congressmembers of both parties and the media, accusing Trump of encouraging and endorsing white supremacists, while right-wing extremists emphatically supported his stance on the perceived threat of left-wing extremists, like Antifa.^[25] The outrage drove Congress to pass a joint resolution to condemn hate speech and hate groups, “urg[ing] the President and his administration to speak out against hate groups that espouse racism, extremism, xenophobia, anti-Semitism, and White supremacy; and use all resources available to the President and the President’s Cabinet to address the growing prevalence of those hate groups in the United States.”^[26]

Regardless of the resolution and other policy statements, the Trump administration seemed to back off prioritizing the broader threat of domestic terrorism posed by white supremacists.^[27] From discontinuing federal grants for preventive action and community outreach to drastically reducing the budget of an intelligence unit of DHS, the Office of Terrorism Prevention Partnerships,^[28] the Trump administration continued to name “radical Islamist terrorist groups” as the most serious terroristic threat.^[29] While pouring more money into DHS, funding priorities in the budget request of $51.7 billion for fiscal year 2020 did not refer to any homeland protection from our own citizens’ terrorism.^[30]

DHS policies are notoriously opaque; even Congress is uncertain of all DHS operations within its web of offices and task forces.^[31] But, to the Trump Administration’s credit, there were several publicized white supremacist terrorist plots thwarted by proactive federal law enforcement, such as an attack on a Colorado synagogue,^[32] a U.S. Coast Guard lieutenant planning mass murder,^[33] and more.^[34] However, most of these arrests never actually amounted to a domestic terrorism charge; prosecutors typically find gun or drug charges to stop the terrorist plots before they can occur.^[35]

C. The Gap in the Law Against Domestic Terrorism

Current law against terrorism is not adequate to address the crisis of white supremacist violence because it does not encompass the crimes one of these domestic terrorists may commit. Before reaching this conclusion, it is impossible to discuss counterterrorism without acknowledging the critical role the September 11th attacks played in creating the current landscape.^[36] The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, or the USA PATRIOT Act,^[37] was signed into law just six weeks after the attacks, and Title VIII of the Act served to “strengthen[] the criminal laws against terrorism.”^[38] The title added a definition for domestic terrorism to the existing terrorism definitions statute: the term refers to acts occurring primarily within the United States that are “dangerous to human life,” that are a violation of U.S. law, and that “appear to be intended . . . (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping.”^[39] Title VIII also increased penalties for several acts of terrorism and terrorist conspiracies in the criminal code.^[40]

While the USA PATRIOT Act defined domestic terrorism and expanded the scope under which law enforcement can prosecute terroristic crimes, both the statutory authority and enforcement policies fail to prosecute acts of domestic terrorism.^[41] The addition of the domestic terrorism definition did not extend domestic terrorism to the criminal penalties statute,^[42] and the rest of the terrorism crimes in the criminal code leave only specific circumstances under which a domestic terrorist could be prosecuted as such.^[43] Essentially, acts of domestic terrorism that can be prosecuted under the current terrorism statutory framework include: the use of weapons of mass destruction (chemical, biological, nuclear, or explosive weapons), attacks at airports or upon government buildings or agents, acts of genocide, the taking of hostages, destruction of certain types of property, or the recruitment of child soldiers.^[44] Thus, the El Paso shooter could not be prosecuted as a domestic terrorist under the current framework, although his acts certainly seem to fit within the definition of an act of domestic terrorism.^[45]

D. Criticism of the Statutory Gap and Proposed Remedial Measures

Many legislators and members of the community have advocated for a domestic terrorism bill to respond to the growing crisis within the United States posed by white supremacists. On February 2, 2018, several House representatives introduced a bill entitled “Domestic Terrorism Prevention Act of 2018,” with the purpose of creating “dedicated domestic terrorism offices within the Department of Homeland Security, the Department of Justice, and the Federal Bureau of Investigation” to help prevent future attacks.^[46] The proposed bill names “white supremacists and other right-wing extremists” as “the most significant domestic terrorism threat facing the United States.”^[47] The bill calls for offices within the named departments, and calls for an annual report on domestic terrorism to be released to the public.^[48] It refers to the definition of domestic terrorism as defined by the USA PATRIOT Act, but does not call for new criminal laws to prosecute domestic terrorists.^[49] The bill was referred to several House committees, and no further action has been taken since February 14, 2018.^[50]

A similar course of action has been taken by the Senate. Almost identical to the House bill, Senator Durbin of Illinois introduced a Senate bill on March 27, 2019, along with several co-sponsoring senators, called the “Domestic Terrorism Prevention Act of 2019.”^[51] Also, like the House bill, there were no added federal crimes of domestic terrorism, and there has been no further action taken in Congress to pass this bill since it was introduced on the Senate floor.^[52]

Former Justice Department official Mary McCord is a leading advocate for enacting a criminal statute for domestic terrorism.^[53] McCord calls for Congress to hold a hearing addressing the weight of the threat with accurate metrics that are only currently housed outside of the federal government.^[54] She proposes making domestic terrorism a crime roughly equivalent to the acts that amount to terrorism in the extraterritorial context.^[55] McCord also recommends naming domestic terrorist organizations similarly to how the government currently lists foreign terrorist organizations and argues that these groups could be added to the “material support to terrorists” statute.^[56] These changes, she argues, would place domestic terrorism “on the same moral plane as international terrorism,” and provide more resources and data reporting for law enforcement to utilize in preventing future attacks.^[57]

III. A Comparative Statutory Framework: The AETA & United States v. Fullmer^[58]

Because previous legislative efforts to address domestic terrorism have failed, studying an outlier statute aimed at a particular type of domestic terrorism that passed easily in Congress in 2006 can provide useful guidance to Congress for making a domestic terrorism statute aimed at white supremacist violence. The Animal Enterprise Terrorism Act of 2006 (AETA) amended the Animal Enterprise Protection Act of 1992 (AEPA), with the purpose of “provid[ing] the Department of Justice the necessary authority to apprehend, prosecute, and convict individuals committing animal enterprise terror.”^[59] The amendment substantially broadened the 1992 legislation to criminalize protests and actions targeted at affiliates of “animal enterprises” and employees’ families, and ratcheted up the penalties associated with the crime.^[60] It also eliminated any requirement for actual damages to occur.^[61] The legislation passed easily, with unanimous consent in the Senate^[62] and a voice vote in the House^[63] amidst escalating attacks by animal-rights groups against corporations engaging in testing on animal subjects and their affiliates.^[64] The statute reads, in pertinent part:

Whoever travels in interstate or foreign commerce, or uses or causes to be used the mail or any facility of interstate or foreign commerce – (1) for the purpose of damaging or interfering with the operations of an animal enterprise; and (2) in connection with such purpose – (A) intentionally damages or causes the loss of any real or personal property (including animals or records) used by an animal enterprise, or any real or personal property of a person or entity having a connection to, relationship with, or transactions with an animal enterprise; (B) intentionally places a person in reasonable fear of the death of, or serious bodily injury to that person, a member of the immediate family (as defined in section 115) of that person, or a spouse or intimate partner of that person by a course of conduct involving threats, acts of vandalism, property damage, criminal trespass, harassment, or intimidation; or (C) conspires or attempts to do so; shall be punished. . . .^[65]

The bill faced opposition by many civil rights activists, including the American Civil Liberties Union (ACLU), who submitted a letter to Congress finding, among other concerns: “The AETA criminalizes First Amendment activities such as demonstrations, leafleting, undercover investigations, and boycotts. The bill is overly broad, vague, and unnecessary because federal criminal laws already provide a wide range of punishments for unlawful activities targeting animal enterprises.”^[66]

Indeed, the “course of conduct” language, defined in the statute as “a pattern of conduct composed of two or more acts, evidencing a continuity of purpose,”^[67] leads to a logical conclusion that two lawful acts, perhaps even acts protected by the First Amendment, performed in conjunction with the requisite intent can lead to a criminal prosecution under this legislation. The ACLU’s second critique of its duplicative nature is also true: damage to property, harassment, criminal trespass, vandalism, and threats causing a reasonable fear of harm are already punishable, making the statute redundant in the context of the entire criminal code.^[68] But Congress found that even with the predecessor Animal Enterprise Protection Act, “extremist elements among the animal rights groups are taking advantage of the fact that the animal enterprise laws do not cover affiliates and associates by using threats, harassment, intimidation and fear and other extreme tactics to pressure them into severing their activities with such enterprises.”^[69] The ACLU letter also points out how the statute expands the crime to be covered by the authorization for wiretap statute, allowing law enforcement to intercept communications in order to investigate violations of the crime.^[70] It warned that this could further the “chilling effect” on individuals who wish to participate in protected free speech.^[71] But, again, Congress found that the interests in protecting the affiliates of animal enterprises outweighed concerns of First Amendment protections, and ensured protected speech by adding a clause to the statute stating that any protected First Amendment activity shall remain protected and be free from prosecution.^[72]

A. The Scope of Conduct Covered by the AETA

The broad statute criminalizing acts of “animal enterprise” terrorism was put to the test in the Court of Appeals for the Third Circuit in 2009.^[73] Six individuals and the organization Stop Huntingdon Animal Cruelty (SHAC) were charged and indicted in 2004 with conspiring to violate the AEPA, among other counts of interstate stalking and conspiring to use telecommunications to abuse, threaten, and harass.^[74] The charges were based on many different demonstrations put on by animal rights activists in protest of Huntingdon Life Sciences,^[75] a company exposed for its cruel treatment of animals.^[76] The activity expanded to protest several companies and many employees of companies that had financial or business relationships with Huntingdon.^[77] Some of the defendants gathered personal information of employees and published them on the SHAC website to facilitate targeted protesting.^[78] Two defendants participated in some of the protests and posted descriptions of the activities online, which sometimes involved electronic civil disobedience, harassment, threats, or vandalism, and in one case, placing a “stink bomb” in an office.^[79] One defendant merely designed and maintained various websites for SHAC, and another’s conduct was described as giving speeches and publishing online statements praising the “militant tactics” of the group.^[80]

B. Conspiratorial Liability

The Third Circuit’s holding on conspiracy liability under the AEPA was expansive, providing much room for prosecutors to find white supremacist extremists liable before they commit a massacre. The court held that conspiracy to violate the AEPA “did not require an overt act,” and that the District Court should not have inferred the requirement of one to prove conspiracy.^[81] The court found that while the defendants could not “be convicted solely because of their associations,” the government must only establish that the conspiring group itself had “unlawful goals” and that the individuals intended to further the illegal goals.^[82] Further, the court held that there need not be direct evidence that the defendants “expressly agreed to participate in the conspiracy”; circumstantial evidence may suffice.^[83]

The conspiracy provision is applied broadly enough to cover a wide range of white supremacist extremist conduct that could occur prior to an attack. Because the defendants in Fullmer could not be prosecuted based on their association alone, the facts surrounding the defendants’ communication and common goals were enough to find conspiratorial liability.^[84] This is particularly helpful to cover terrorists that act as “lone wolves,” discussed infra at Part V.A.

C. Constitutional Concerns Quelled

After a jury convicted all defendants on all counts in 2006, the defendants challenged the constitutionality of the law, first arguing that it was overly vague in violation of the First Amendment and the Due Process Clause.^[85] The defendants contended that because the statute is vague, it would have a “chilling effect” on protected First Amendment activities because it was not clear what the law proscribes.^[86] The Third Circuit quickly dismissed the defendants’ argument on numerous grounds: (1) “the statute provides an exception that exempts legal protest activity”; (2) the SHAC website postings showed that the defendants were aware that some of the protest activity was illegal, so they were on notice; and (3) the mens rea of “intent” required by the statute “alleviates vagueness concerns.”^[87]

The defendants’ second constitutional challenge argued that “their actions constituted political speech, and that the SHAC website neither incited violence nor constituted a true threat.”^[88] The court confronted the issue of whether the content on SHAC’s website was protected by the First Amendment by first using the Supreme Court’s incitement test: if “the speech (1) invited imminent lawlessness and (2) that the imminent lawlessness was likely to occur,” then the provocative political speech is not protected.^[89] The court found that much of the speech on the website did not amount to incitement but found that publishing links and directions to participate in unlawful electronic civil disobedience did cross the line of intending to incite imminent, lawless conduct.^[90] Importantly, the court attributed third-party individuals’ illegal conduct to the defendants because “the individual Defendants held up the successes of the illegal campaigns as an example to other companies they targeted, in furtherance of their conspiracy to violate the AEPA.”^[91] For the defendant that simply gave speeches endorsing militant action and visited a site of a protest without doing anything illegal, the court even then found that while his political speeches were protected by the First Amendment, “his conduct . . . [did] provide circumstantial evidence from which a jury could have reasonably inferred that . . . [he] was involved in a conspiracy to violate the AEPA.”^[92]

In deciding whether the SHAC website content constituted a “true threat,” “a court should consider the totality of the circumstances and not just the words in isolation, whether the threat is ‘conditional,’ and the reaction of the listeners.”^[93] The Third Circuit held that because the defendants “used past incidents to instill fear in future targets,” their conduct constituted “true threats” when viewed in context of the protests, speeches, and other online posts.^[94]

The court’s dismissal of First Amendment issues is significant, given the extremely high bar the Supreme Court has set for statutes that restrict First Amendment-protected activities.^[95] Given the AETA’s broad scope (or “course”) of conduct covered, along with expansive conspiracy liability and potential criminalization of free-speech activities if performed in a certain manner, the Fullmer case provides a compelling example for Congress and law enforcement to model in response to the white supremacist domestic terrorism epidemic.

IV. Applying Fullmer to White Supremacists Online

Using the AETA as guidance to create a specific criminal statute toward a specific type of terrorism, Congress can confidently exercise its authority to criminalize certain activities that are intended to terrorize specific entities or individuals. In particular, a “course of conduct” framework would allow prosecutors to simply find two or more specific acts^[96] that further the illegal goal of committing racially motivated or identity-based terrorism in order to charge individuals with the crime.

To demonstrate how a similar statutory framework to the AETA could be applied to white supremacists, we may consider a hypothetical, that is disturbingly inspired by real online content.^[97] Suppose an online forum, little known to the broader online community and mainly used by fringe interest groups, contains a subforum in which many participants praise the Christchurch shooter who killed over fifty people at two mosques while live-streaming the massacre. All participants are anonymous. One says, “I’m glad to see my brothers take action. Keep fighting the good fight.” Another says, “I wish he’d killed them all.” A series of memes contains the message, “What have you done for the white race today?”^[98]

Many reports of other xenophobic-inspired killings are discussed on the subforum. One forum-user, who posted about his intent to go shoot congregants at a mosque, failed to kill anyone before he was stopped. The thread he started received many responses mocking the failed attempt. “What a disappointment,” one response read. Other threads in the subforum discuss firearms at length, with many users posting photos of their guns and ammunition arsenals with Nazi and other extremist insignia displayed in the background.^[99]

Unpaid moderators are responsible for monitoring the content posted on the forum and have been known to remove content that criticizes former President Donald Trump but retain threads like these, espousing white supremacist ideologies and conspiracy theories.^[100] After a racist manifesto is posted on the subforum shortly before a mass shooting targets Hispanics, the site is temporarily shut down.^[101] Instructions are posted elsewhere online to find a relocated forum on the “dark web,” which requires users to mask their computer identifications before accessing the content by using special software.^[102]

Are the moderators culpable? The other anonymous posters in the group? The Communications Decency Act precludes holding the web host liable, so the website itself and any hosting services may not be prosecuted for criminal activity that takes place on the forum.^[103] But the individuals actively monitoring and posting the content could be culpable if there were an AETA analog for identity-based domestic terrorism.

Using Fullmer as guidance, we can look to how the court treated the conduct of two defendants: one who simply endorsed the “militant” actions of the activists^[104] and another who maintained and designed the SHAC website, publicizing some of the plans for illegal protesting.^[105]

A. Imposing Liability for Endorsing Illegal Activity

For the public celebrant of the illegal protesting, the court held that the “constellation of evidence,” including “enthusiastically discuss[ing] recent events in the SHAC campaign and future strategies” with a co-defendant, speeches that explained how to send “black faxes” (part of the illegal electronic disobedience tactics), and saying “I think that it’s appropriate to have a militant response,” was enough for a jury to infer conspiracy to violate the AEPA.^[106] Applied to the hypothetical, the users who posted support for previous shooters could be found guilty of conspiracy if they committed that act in conjunction with another act, “evidencing a continuity of purpose.”^[107] So, for example, if a supporter had written an enthusiastic post in support of the Christchurch shooter, and on another occasion engaged in a discussion about types of firearms that could be used during a mass shooting, he could be charged for conspiracy for his course of conduct that evidenced a purpose, or intent, of furthering the illegal aims of committing violence under the specific statute.

B. Liability for Content Moderators

For the defendant who maintained and designed the websites in Fullmer, the court found that he agreed to participate in the conspiracy because he was responsible for the websites that were the “primary tools of the campaign” and because he posted “information regarding when and how SHAC supporters could participate in illegal campaign activities.”^[108] Applying these facts to our hypothetical statute, a forum moderator who is responsible for the content on a website that facilitates the radicalization of white supremacists, and also posts some type of content that evidences a purpose of creating a safe haven for violent extremists to discuss their intent and support for violence, could be prosecuted for conspiracy to violate the statute.

In Fullmer, the SHAC website content included a statement that read, “We operate within the boundaries of the law, but recognize and support those who choose to operate outside the confines of the legal system.”^[109] This was apparently not enough to relieve the SHAC website manager from liability for illegal activity in which he himself did not engage.^[110] Applying this type of broad liability for conspiracy would encompass a wide range of participants in the online world of white supremacists, and would have the type of “chilling effect” that we wish to see: hesitance to support identity-based violence.

V. Guidance to Congress: Legislative Musts

If Congress can gather the initiative or the votes to pass a domestic terrorism statute, it is necessary that it be effective in order for law enforcement to stop mass shootings by white supremacist extremists before they occur. The AETA does provide helpful guidance, but lawmakers must prioritize criminalizing the acts of domestic terrorists that the statute should deter, and make sure that the constitutional analysis toward such a statute does not come out the opposite way than it did in Fullmer. Further, the statute must hold federal agencies accountable to prioritizing the kinds of criminals that pose the most dangerous threat.^[111]

First, it is important to distinguish that the AETA outlaws actions against a particular class of victims, while a domestic terrorism statute pointed at white supremacists would instead target a particular class of perpetrators. To satisfy equal protection concerns, it is then best to identify the motive behind the violence in the statute rather than the identity of the terrorists.^[112] While white supremacist extremists often target victims by race, defining domestic terrorism as racially-motivated could leave out anti-Semitic acts of terrorism or attacks based on nationality or religion. This is why “identity-based” domestic terrorism is a sound way to target the type of terrorism which threatens Americans most. These motives can be spelled out in a domestic terrorism criminal statute, while still leaving the scope of the crime open to prosecute any potential mass shooter or attacker.

To return to the definition of domestic terrorism in current law, the expansive language can help draw the scope of a domestic terrorism statute: acts of violence that are in violation of U.S. criminal law, primarily occurring within the United States, and “appear[ing] to be intended to intimidate or coerce a civilian population” or influence government policies by intimidation or coercion could be the baseline of the crime in the domestic terrorism statute.^[113] A critical component of an effective statute would also include a conspiracy and attempt element, like that of the AETA.^[114] While the FBI can currently only stop domestic terrorism plots by prosecuting other charges like for guns or drugs, a conspiracy charge to a felony like the proposed domestic terrorism crime would be a serious deterrent for future shooters.^[115] Convictions for terrorism would also help label individuals as national security threats and allow police to maintain supervision of their activities, while a lone gun charge could lose track of a potential domestic terrorist among the counterterrorism intelligence community. Criminal penalties would be enhanced as more serious than the underlying crimes without the intimidation or coercion intent.^[116]

Critics of the AETA say it resembles a type of “ag-gag” law, which is a type of law aimed at specially protecting the agriculture industry from oversight,^[117] and one animal rights activist said it was “bought and paid for[] by the pharmaceutical industry.”^[118] No such high-dollar lobbying and call for homeland protectionism exists for fighting white supremacy. However, if Congress can gather enough support to stop the surging influence of white-supremacist extremism, there are viable options for legislation to stop the domestic terrorism efforts where they begin and this necessarily means implementation online.^[119]

A. Lone Wolves Are Welcome

In order to stop further mass violence by white supremacists, the law must address terrorists who do not strongly identify or associate with a unified group. In recent history, white supremacists including members of the Ku Klux Klan and the neo-Nazi group, the National Socialist Movement (NSM), have encouraged a “leaderless resistance” movement to avoid law enforcement and the “terrorist label.”^[120] Many of the domestic terrorism attacks by white supremacists have been labeled as “lone wolves,”^[121] or in other words, individuals who attack based on ideologies with no specific ties to an organization.^[122] Domestic lone wolf terrorist attacks are on the rise, “increasing from thirty attacks in the 1970s to seventy-three in the 2000s, a growth of 143 percent.”^[123] The lone wolf terrorist epidemic is coupled with the notion that lone wolves are undetectable because of their lack of both association and distinct profile, and therefore, law enforcement had no way to preemptively respond to the threat.^[124] The sentiment toward these types of attacks has in turn become that there is nothing we can do to stop them.^[125]

With a domestic terrorism statute as this Comment proposes, no group association would be necessary to detect and prosecute lone wolf terrorists planning to attack. Contrary to McCord’s recommendations,^[126] identifying white supremacist groups for the government to monitor would have little effect on identifying the actual terroristic threats because a minority of lone terrorists since the early 2000s are active in an organized group.^[127] Instead, the statute would look to a “course of conduct,” evidencing a “continuity of purpose” of the lone wolf’s preparations for an attack that would qualify as domestic terrorism.^[128] A crackdown on the Internet culture of white supremacist violence by prosecuting conspiracy to commit acts of domestic terrorism would help curb the slippery slope toward radicalization, which is typically what creates lone wolf terrorists.^[129]

B. Providing Clear Standards for Law Enforcement

For law enforcement to prosecute individuals for conspiring to violate a domestic terrorism statute, Fullmer confirms that no overt act is necessary to find conspiracy, as long as the statute does not specifically require it.^[130] With specific statutory authority, federal law enforcement could feel secure prosecuting individuals who have displayed two or more acts, evidencing a continuity of purpose to commit domestic terrorism.^[131] Currently, by simply monitoring hate speech online, law enforcement must determine when a potential domestic terrorist crosses the line from protected speech into a “true threat”^[132] or “incitement to imminent lawless action.”^[133] While speech must still be protected to the utmost extent by First Amendment doctrine, the statute could provide specific examples of conduct that would support prosecution, eliminating the need for law enforcement to wait for a more overt or direct threat or action. The “course of conduct” language in the statute would allow prosecutors to compile evidence against the defendant until a continuity of purpose is shown.

The mens rea of intent is already included in the definition of domestic terrorism and would then necessarily be required for this proposed criminal statute.^[134] The actus reus requirement of a “course of conduct” involving two or more acts evidencing a continuity of purpose would greatly aid law enforcement in recognizing a terrorist and prosecuting him before it is too late. Further, to mirror the AEPA as applied in Fullmer, the conspiracy element could only require circumstantial evidence rather than an overt act.^[135] Support for other mass shootings, for example, along with other conduct that evidences a conspiracy to violate the domestic terrorism statute would be punishable in the proposed framework.

C. Protecting Civil Liberties and Incorporating a “Savings Clause”

Strengthening federal law enforcement’s authority to convict suspects based on their speech comes with a higher threshold to pass constitutionality if challenged in court, and Congress would be wise to address the constitutional concerns head-on. Proposals for a domestic terrorism statute have already been challenged by civil liberties groups, namely the ACLU, for providing more tools to law enforcement to target the minority groups that Congress seeks to protect.^[136] The organization’s main civil liberties concerns stem from existing inequities arising in terrorism enforcement, stating that “[l]aw enforcement agencies’ use of the existing domestic terrorism frameworks undermines and has violated equal protection, due process, and First Amendment rights.”^[137] Thus, it seems that the ACLU does not find the terrorism statute to necessarily lead to violations of civil liberties, but rather that it would work within a structure that unjustly collects data on minority groups for surveillance.^[138]

The AETA contains a “savings clause,” which specifies that the statute is not to be construed to criminalize any legal protesting activity.^[139] This led the Third Circuit in Fullmer to dismiss objections of the statute on the grounds of constitutional concerns (primarily for First Amendment-protected activity).^[140] A similar “savings clause,” along with reporting requirements and specific oversight, should help assure that a domestic terrorism crime would only apply to legitimately illegal conduct that is not constitutionally protected.

Realistically, the hypothetical identity-based domestic terrorism statute would inevitably be criticized for prohibiting speech and other conduct protected by the First Amendment,^[141] or for unfairly targeting a class of individuals by race, which is prohibited by the Equal Protection Clause of the Fourteenth Amendment.^[142]

1. First Amendment.

Without saying in so many words, the Trump administration seemed to have a blanket rejection of domestic terrorism legislation for perceived threats to First Amendment-protected free speech activities. For example, in a September 2019 DHS report on countering terrorism and targeted violence, the former DHS Secretary wrote:

As we operate in an evolving terrorism landscape, our initiatives must be grounded in respect for individuals’ privacy, rights, and liberties. We must remember that freedom of speech is—and always should be—protected as one of our foundational values. This is critical as we address the potential threat of new and emerging technologies, particularly those used to facilitate online radicalization to violent extremism.^[143]

In another example, the NCTC, FBI and DHS released a booklet to help communities identify warning signs of potential homegrown violent extremists (HVEs), aimed at ISIS and jihadist recruitment within the United States.^[144] Appearing as a type of disclaimer, the booklet states that “many of the indicators described herein may involve constitutionally protected activities,” but “when observed in combination with other suspicious behaviors, these indicators may raise suspicion in a reasonable person and constitute a basis for reporting.”^[145] It seems from these two examples that the administration was more willing to set aside First Amendment protection when Islamic terrorist groups are the targets.

However serious the civil liberties concerns may be for a chilling effect on protected First Amendment speech and protest activities,^[146] the expansive protections afforded by Supreme Court precedent should give civil rights advocates security to know that any content-based regulation or chilling of free speech will almost always be invalidated.^[147] Incorporating a savings clause as mentioned above would also ensure that protected speech remains protected. KKK meetings and cross-burnings could continue;^[148] white supremacists could continue to post “political hyperboles” (i.e., racist speech) online.^[149] But identifying potential terrorists who are plotting to commit mass murders should be easy to distinguish from this protected speech, and the statute would make it then easier to prosecute the suspect meaningfully.

2. Equal Protection.

A major difference between the AETA and the proposed domestic terrorism legislation is that the AETA is about terrorism aimed at a specific category of subjects, while the domestic terrorism statute would instead be about the ideology motivating the terrorism. Especially if the FBI and DHS announce a policy to focus on white supremacist threats, as they should to accurately respond to the present danger,^[150] concerns of equal protection under the Fourteenth Amendment may surface because white supremacists are necessarily white and would thus in part be classified by race.

For these reasons, somewhat ironically, the right-wing would likely oppose the legislation for fear of being unfairly targeted, while the real threat is more than likely towards members of minority groups.^[151] For these legitimate concerns, congressional and administrative oversight would be crucial to the successful implementation of such a law.^[152] Requiring transparency of investigations through unclassified reporting of investigations and prosecutions, like the reporting called for in the House and Senate Domestic Terrorism Prevention Acts,^[153] would help hold the DOJ and DHS accountable for fairly applying the law and only investigating legitimate threats. An ombudsman could be mandated by statute to receive complaints of abuse as well, like what is currently mandated within DHS for Citizenship and Immigration Services.^[154]

VI. Conclusion

Current federal law and policies do not adequately address the growing threat of domestic terrorism attacks posed by right-wing extremists like white supremacists. Congress has previously outlawed specific acts of terrorism, and federal courts have upheld the expansive scope of finding conspirators criminally liable for furthering a specific terroristic purpose. Congress could and should pass a similar statute that criminalizes domestic terrorism in the form prevalent among the current extremist environment. While civil liberties concerns are legitimate, the statute could create accountability measures for the federal government to follow in order to justly prosecute potential terrorists. White supremacy and far-right ideologies must not be endorsed through silence by the government any longer; it is time to act.

Corynn Wilson