- I. Introduction
- II. The Rise of a Global Terror Movement
- A. The Characteristics of a Movement
- B. History of White Supremacist Terror in the United States
- C. The Export of U.S. White Extremist Ideology
- D. The Role of Digital Media in Radicalizing and Connecting Extremist Networks
- E. White Supremacist Manifestoes Galvanize Further Attacks
- F. Homegrown Extremism to Global Movement
- III. The Multiple Crises of 2020 Accelerate the Movement
- IV. Al Qaeda- and ISIS-Associated Terrorism vs. White Supremacist Terrorism
- V. U.S. Law: A Tale of Two Terror Regimes
- VI. International Counterterror Approaches and Challenges
- A. The United Nations Counterterrorism Framework
- B. Counterterrorism Approaches in Western States Have Enhanced Discrimination Against Muslim Communities and Fomented Greater White Extremism
- C. Digital Platforms Facilitate Radicalization and Present Regulatory Challenges
- D. The Political Constituency Problem
- VII. Confronting White Supremacist Extremism as Global Terrorism
- A. Disrupting White Supremacist Terror Networks on Digital Media
- B. Developing Coordinated Strategies to Address White Supremacist Terrorism at the Global and Domestic Level
- C. Designating White Supremacist Entities as Foreign Terrorist Organizations
- D. Imposing U.N. Sanctions on White Supremacist Terror Groups and Actors
- E. Strengthening Existing Terrorism Legal Authorities
- VIII. Conclusion
In recent years, the United States and several Western countries have seen a spate of violent, deadly terror attacks committed by white supremacists. The January 2021 insurrection at the U.S. Capitol, and mass shootings at a Black church in South Carolina, synagogues in Pittsburgh and San Diego, a Walmart frequented by the Latino community in El Paso, and mosques in Canada and New Zealand were all committed by white supremacist terrorists. Such incidents have been dismissed by some as horrific but isolated incidents committed by disturbed individuals. However, these attacks are not isolated. Rather, they are attacks committed by members of a growing global white supremacist terror movement made up of individuals located around the planet, who ascribe to a similar set of white supremacist ideologies and whose attacks are encouraged and amplified by their common transnational network. For the purposes of this Article, “white supremacist terrorism” is an umbrella term encompassing terrorists and terror groups that define themselves by their white identity and that espouse white supremacist, white nationalist, neo-Nazi, xenophobic, anti‑Muslim, and anti-Semitic ideologies. Collectively, the global white supremacist terror movement today is causing more casualties in Western states than other forms of terrorism, and it must be understood as a cohesive, coordinated global threat in order to ensure the proper counterterror response. This Article seeks to further that popular understanding.
Prior legal scholarship has noted the disparate treatment of Muslim and white supremacist terror suspects under U.S. law, but there has been no legal scholarship to date assessing the global interconnectedness and significant destructive capacity of white supremacist terrorism, and the need for a more robust national security response confronting white supremacist terrorism as a transnational phenomenon. This Article seeks to fill that gap in the literature. The Article asserts that white supremacist terrorism now comprises a unified global movement whose destructive capacity has surpassed that of Al Qaeda- and ISIS‑associated terrorism in Western states. The treatment of white supremacist attacks as isolated, lone-wolf domestic incidents has obscured the coordinated manner in which white supremacist terrorists operate around the globe. The formation of this global movement has been facilitated by digital platforms that have connected white supremacists around the globe and enabled them to amplify their extremist ideologies and their violent attacks. The failure to view the terrorist attacks committed by violent white supremacists as a unified and cohesive movement has prevented U.S. and global actors from responding to white supremacist terrorism in the comprehensive, focused, and robust manner that the movement warrants. Because of this lack of clarity, U.S. legal constructs and counterterrorism efforts at the national and international level have failed to sufficiently address the full scope of the threat. This Article seeks to further the popular understanding that white supremacist terror attacks operate as part of a unified global movement and offers legal and policy recommendations on how this challenge can be addressed.
In order to establish whether a new global terror regime exists, it is necessary to first define the term “terrorism.” Defining the word terrorism, or an entity as a terrorist group, has always had political implications. For example, colonizing states often referred to colonized domestic groups fighting for self‑determination as terrorists, just as those same domestic groups referred to colonizing powers as terror regimes. Each group sought to legitimize its use of violence against the other by delegitimizing the other party as a terrorist. This political dynamic has largely prevented the international community from settling upon a universal definition of terrorism under international law. As a result, the thirteen U.N. treaties that address terrorism do not define the term “terrorism” itself; they instead define specific acts as terrorist acts. The United States, however, has defined both domestic and international terrorism under its domestic law.
A U.S. statute that authorizes the State Department to compile annual country reports on terrorism defines terrorism as “premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents.” A federal criminal statute defines international terrorism as activities that:
(A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, . . . (B) 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; and (C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum . . .
The USA PATRIOT Act, passed in response to 9/11, adopts a similar definition for domestic terrorism, with the distinction that the domestic terrorist acts occur primarily within the United States. As the Article will elucidate, notwithstanding these legal definitions, whether a violent act is treated as international or domestic terrorism is often based upon the identity of the actors, rather than an exacting application of the statutory factors. As this Article argues, this identity-based application of these statutory frameworks has resulted in national security institutions’ failure to fully appreciate the transnational nature of white supremacist terror attacks in the United States and to fully utilize the available prescriptive and punitive legal authorities.
Drawing from social science typologies on movement formation, Part II of this Article applies social science typologies to substantiate that a global white supremacist terror movement exists that has been facilitated by digital platforms, undergirded by white supremacist ideologies, and furthered by global terror attacks. Part III discusses how the multiple crises of 2020 accelerated the rise of the white supremacist terror movement. Part IV compares global white supremacist terrorism to transnational Al Qaeda- and ISIS-associated terrorism. Part V assesses the disparate treatment of domestic terror suspects and international terror suspects under U.S. law and how this legal dichotomy has limited the domestic response to white supremacist terror. Part VI discusses how international counterterrorism mandates have been implemented in a manner that undermines the human rights of marginalized communities, thereby emboldening white supremacist terrorism. It also defines the political constituency problem and how it has stifled counterterror responses to white supremacist terrorism in many states. Part VII offers recommendations for how the United States and global community should view and respond to the white supremacist terror movement. Part VIII concludes.
II. The Rise of a Global Terror Movement
In recent years, the United States has seen a significant increase in terror attacks committed within its borders. The years 2015, 2016, and 2018 saw the most combined U.S. deaths resulting from domestic terror attacks committed in the United States since the Oklahoma City bombing in 1995 and since the FBI began maintaining these statistics in 1970. Terror attacks in the United States rooted in right-wing extremist ideology far surpass those rooted in Al Qaeda- and ISIS-associated ideologies. For example, in 2017, twenty of the thirty-four deaths resulting from terror attacks in the United States were motivated by right-wing extremist ideologies, compared to nine that were motivated by Al Qaeda- and ISIS-associated ideologies. In 2018, all fifty deaths resulting from terror attacks in the United States were linked to violent right-wing extremists. From 2009 to 2018, right-wing extremists, including white supremacists, were responsible for 73% of terror-related killings in the United States, compared with 23% committed by those subscribing to Al Qaeda- and ISIS‑associated ideologies. Since 2014, there has also been a sharp increase in terrorist attacks committed by right-wing ideological groups in Western Europe, resulting in twenty-eight such attacks in 2017. FBI Director Christopher Wray informed Congress in July 2019 that the Bureau linked white supremacy to a majority of its domestic terrorism investigations since October 2018. This Article contends that the increase in terror attacks rooted in extreme right-wing and white supremacist ideologies in the United States, Western Europe, and elsewhere is part of a global terror movement. This global movement has developed in the second decade of the twenty-first century from domestic terror organizations that have linked together through social media platforms to form a transnational terror network motivated by their shared white supremacist ideologies and common fear of expanding religious, racial, and cultural diversification. This transnational network has increasingly committed large-scale attacks that have inspired more attacks by terror movement members.
A. The Characteristics of a Movement
The study of social movements has become a rich field for social scientists since the revolutionary changes spurred by the social movements of the mid-twentieth century to the present day. Social movement analysis assesses the roles that individuals, organizations, and events play in shaping the collective action of grassroots social movements. In their authoritative text on social movements, social scientists Donatella della Porta and Mario Diani offer a definition of social movements that this Article adopts to assess whether white supremacist terrorists operating today comprise a global movement. According to della Porta and Diani, a movement exists where actors: (1) engage in political or cultural conflicts “meant to promote or oppose social change,” (2) are connected through “dense informal networks,” and (3) “share a distinct collective identity.” To establish a transnational movement, this Article adds a fourth criterion: that actors operate fully across national boundaries in multiple countries.
B. History of White Supremacist Terror in the United States
White supremacist terrorism—terrorism rooted in white supremacist and white nationalist ideology—is the oldest form of terror in the United States. This terror has its roots in the violence visited upon Native Americans and enslaved Africans by European colonists, slave traders, and slave owners. These violent depredations were undergirded by white supremacist ideologies that have continued to the present day. The violent tactics of slave masters and slave patrollers were passed onto organizations such as the Ku Klux Klan (KKK)—formed after Emancipation and during Reconstruction as private militias to violently oppress, terrorize, and control newly freed, formerly enslaved individuals. Following Emancipation, these white supremacist organizations exacted over a century of violent terror on African-Americans and other minority groups. Although the Civil Rights Movement helped to galvanize popular opinion against white supremacist ideologies, and federal civil rights legislation of the 1960s provided powerful legal tools against segregation, racial disenfranchisement, and white supremacy, white supremacist organizations such as the KKK continued to terrorize minority communities. Tuskegee University estimates that between 1882 and 1968, 3,446 Blacks were the victims of race-based murders in the United States. Building on the work of Tuskegee University, the Equal Justice Initiative produced a report that found that between 1877 and 1950, over 4,384 Black men, women, and children were the victims of terror lynchings by groups such as the KKK and individuals who shared their ideology of white supremacy. In addition to its active terror during the Reconstruction Era and Jim Crow, the KKK also experienced resurgences in the 1920s in opposition to the immigration of Catholics and Jewish immigrants, as well as during the 1960s in opposition to the Civil Rights Movement and desegregation efforts. White supremacist groups, such as the KKK, also experienced a resurgence in the twenty-first century in reaction to the election of the first African-American President.
According to Department of Homeland Security (DHS) analysts, in 2007, the prospects of the first African-American President sparked a sharp rise in activity among violent far-right groups, including antigovernment militias and so-called Patriot movement adherents. Daryl Johnson, a former senior analyst at the DHS Office of Intelligence and Analysis, began working on a report about how violent far-right extremist groups were using the ascendancy of President Obama as a recruiting tool. Various members of the FBI, DHS, and other national security agencies felt that the threat of white supremacist terrorism grew unchecked during the Obama years. Some efforts directed at the problem became politically hamstrung. A copy of Johnson’s DHS report on right-wing extremism was leaked to conservative bloggers in April 2009, who blasted the report as a political attack by the Obama Administration. The reaction by conservative bloggers was indicative of the challenge in getting some Republican political leaders to take strong action against the expanding white supremacist terror threat; some conservative leaders reacted to reports that the extremists were from “right wing” groups as an unsavory characterization that made Republicans responsible for their actions. The resistance by some in the Republican Party to take strong action against white supremacist terrorism is typified by the Trump Administration’s disbandment of all agents focused on white supremacist violence within the DHS Office tracking domestic extremism, as well as its elimination of federal grants to organizations targeting neo-Nazis, white supremacists, antigovernment militias, and associated groups. Further, the Trump Administration renamed and redirected the resources of a federal program focused on Countering Violent Extremism, including white supremacist extremism, to Countering Radical Islamic Extremism.
Since 9/11, U.S. counterterrorism efforts have focused on terror groups such as Al Qaeda and ISIS. Domestic legislative authorities have enabled U.S. national security agencies to pursue foreign Al Qaeda- and ISIS-associated terrorists in the United States and abroad; however, the post-9/11 War on Terror has come at a cost, as the othering of the Muslim community and those perceived to be Muslim, Arab, or from the Middle East has caused numerous U.S. citizens, residents, and visitors to be racially and religiously profiled and targeted. The spectacular and destructive nature of 9/11, and numerous other Al Qaeda- and ISIS-associated terror attacks around the world, such as the mass shootings in San Bernardino and Orlando, has furthered a dominant public conception in the twenty-first century that Al Qaeda- and ISIS-associated terror are the primary terror threats to the United States. However, statistics indicate that, with the exception of 9/11, the most consistent and destructive form of terror in the United States has been that committed by violent, white supremacist extremists. The attacks committed by violent white supremacists have been articulated as lone-wolf or isolated attacks, but recent attacks indicate that violent white supremacist groups are now motivated by a common global ideology shared by white supremacists around the world. Accordingly, the actions of white supremacists committing terror attacks based on a common global ideology and call to arms are no different than ISIS supporters motivated to commit attacks by ISIS leaders. Other than their motivating ideology, white supremacist terrorists are no different than Al Qaeda- and ISIS-associated terrorists in terms of the terror threat that they present to targeted populations.
C. The Export of U.S. White Extremist Ideology
Although many Western states have birthed their own domestic white supremacist movements, violent white extremism in the United States has significantly influenced the modern global movement. Since the 1970s, U.S. white supremacist leaders such as Ku Klux Klan leader David Duke, Aryan Nations founder Richard Butler, and white supremacist author William Pierce have sought to export their worldview that the white race is under attack worldwide by people of color and immigrants. The modern “alt-right” movement, which comprises the modern online community of white supremacists, actively shares the views of alt‑right leader Richard Spencer and neo-Nazi Daily Stormer editor Andrew Anglin with followers around the globe through social media.
Members of this global terror movement ascribe to theories such as white genocide, The Great Replacement, and Accelerationism. White genocide is a white supremacist core view that the white race is dying due to non-white population growth and forced assimilation. This theory, also referred to as The Great Replacement, posits that the existential decline of the white race is furthered by rising immigration and declining fertility among white women. Another theory supported by the global white supremacist movement is that of “Accelerationism,” which advocates for white supremacists to take actions, including violent ones, that ensure the collapse of modern society and institutions, and the rise of new institutions controlled by white supremacists. These concepts—white genocide, The Great Replacement, and Accelerationism—were featured prominently in the manifesto of Brenton Tarrant, the self-professed perpetrator of the 2019 New Zealand mosque attacks. Tarrant was an Australian native who was inspired by the writings of the adherents of white supremacist ideology that he found online.
D. The Role of Digital Media in Radicalizing and Connecting Extremist Networks
Much like global Al Qaeda- and ISIS-associated terror networks, the global white supremacist terror movement has obtained adherents around the world through its outreach on digital media platforms. Digital media magnifies the voices of formerly isolated extremists and allows them to reach millions. Many white supremacists who were not previously affiliated with organized groups find community through the Internet and engage in coordinated activity. This terror network shares extremist ideologies, radicalizes new adherents, encourages violence, and broadcasts terrorist attacks around the world.
A number of legal scholars have written about the evolution of radicalization theory in post-9/11 U.S. counterterrorism policy. The narrative is that successive administrations—Bush, Obama, and Trump—increasingly expanded their counterterrorism strategies beyond preventing attacks by foreign terrorist fighters in the United States to preventing attacks from homegrown terrorists who might be radicalized by foreign terrorist networks, such as Al Qaeda or ISIS. Radicalization theory posits that the evolution of a homegrown terrorist from civilian to terrorist follows four phases: pre-radicalization, identification, indoctrination, and action. A 2006 FBI assessment titled “The Radicalization Process: From Conversion to Jihad” introduced this four-stage typology specifically in the context of preventing the radicalization of members of the domestic Muslim community. The FBI report introducing this framework has been criticized for its limited sourcing, citations, and unclear research methodology. Nevertheless, the framework was adopted as a core component of U.S. counterterror policy, undergirding many of the Countering Violent Extremism programs adopted by the FBI, DHS, the Department of Justice (DOJ), the National Counterterrorism Threat Center, and other national security agencies. Despite critiques that this radicalization theory is not well‑supported by social science research and is based on stereotypes of the Muslim community, the framework has been accepted by successive presidential administrations as part of their counterterrorism strategy. Accordingly, it is instructive to assess white supremacist terrorism through the lens of radicalization theory to assess the efficacy of the theory’s application outside of the Al Qaeda and ISIS context, and to determine what role radicalization plays in global white supremacist networks.
Under a radicalization theory construct, it would appear that digital media supports all four phases of radicalization: pre‑radicalization, identification, indoctrination, and action. Online communication has helped to fuel the rise of extremism by “facilitating the dissemination of extremist material to new constituents,” the “mainstreaming of fringe ideological points,” and the “building of ideological consensus” around extremist viewpoints. White supremacist activists and groups use sophisticated strategies to build their movement online. They recruit and radicalize new members by sharing their propaganda, inviting them to participate in closed communities, and then directly interacting with them once they are in those communities.
Many white supremacists have been pushed away from mainstream platforms, like Twitter, because of their hateful and extremist rhetoric. As a result, extremists have created alternative social media platforms that cater to others with their ideological viewpoint. One such platform, Gab.ai, operates like Twitter and allows extremist communities to exchange unfiltered extremist rhetoric that would be blocked on mainstream platforms. Imageboards also play an outsized role in the white supremacist community. Imageboards are online discussion platforms where users can share images, such as memes. One of these platforms, 4chan, has “become home” for many racists and white supremacists. A similar imageboard, 8chan, also has a large white supremacist following, similar to some user threads on more mainstream sites such as Reddit and Tumblr.
Digital platforms also enable white supremacists to engage in offline behavior that furthers their radicalization. Extremists have used the Internet and social media to coordinate combat training, to coordinate travel to events and protests, and to raise funds. Digital platforms have also facilitated the transnational exchange of ideas. In one example, members of the Rise Above Movement (RAM), a white supremacist organization in Southern California, traveled to Germany, Ukraine, and Italy to meet with members of European white supremacist organizations and to celebrate Hitler’s birthday.
The current iteration of the white supremacist movement has been influenced by a technologically savvy cohort of white supremacists called the alt-right. The alt-right is a younger, largely male group of white supremacists who have operated under the radar online since 2008. Their ideology is influenced by neo-Nazism, right-wing conspiracy theory, and “identitarianism.” Donald Trump’s entry into the presidential campaign in 2015 energized their movement, and many began to organize in support of him. They viewed his election as a popular endorsement of their views, and the movement has grown, with the alt-right moving from online activity to forming political organizations that largely target college campuses. They have also expanded their online propaganda activity, particularly through podcasting. Podcasting has played an outsized role in building the white supremacist movement; some white supremacists have attempted to brand themselves as credible alternative influencers by creating podcasts, news, and content on YouTube with the goal of attracting followers and moving them from more mainstream to more extreme content through guests and links. The goal of this community, dubbed the “Alternative Influence Network,” is to radicalize followers by presenting themselves as a relatable and authentic, but alternative, media source. The Assistant Commissioner for Intelligence Analysis at the New York Police Department Intelligence Bureau aptly notes that “whereas for ISIS the Internet is a tool to create and grow the caliphate, for white supremacists the Internet is the caliphate: a headquarters, a virtual training camp, and a staging ground all in one.”
E. White Supremacist Manifestoes Galvanize Further Attacks
Digital media has facilitated the spread of white supremacist ideology and the creation of transnational communities of hate; these communities have been galvanized to take terrorist action through various white supremacist manifestoes. In 2011, Norwegian white supremacist Anders Behring Breivik committed “the deadliest lone-actor terrorist attack in history”; his act and manifesto inspiring many other terrorist attacks. Breivik killed eight people with a truck bomb in Oslo and then killed sixty-nine people, mostly teenagers, with a semi-automatic weapon. After the horrific mass killing, Breivik attained iconic status among many in the white supremacist movement, who refer to him reverentially as “Commander Breivik” and “Saint Breivik.” Alex Linder, the American neo-Nazi founder of the VNN Forum, an online site that hosts many white supremacists, wrote in 2017, “I believe the time for violence is here: Anders Breivik fired the starting gun for the Age of Killing the Enemy.” Breivik committed his mass killing in the name of an ideology that he pulled together from information on the Internet and cobbled together in a 1,518-page manifesto titled “2083: A European Declaration of Independence.” In the manifesto, he attacks multiculturalism, liberalism, and Muslims, describing his terrorist attack preparations in detail.
Breivik’s terrorist act and manifesto have inspired many other white supremacist terror attacks. A white supremacist, Frazier Glenn Cross, who commented positively online about Breivik’s attack mere days after it occurred, later killed three people at Jewish community centers in Kansas. U.S. Coast Guard Lieutenant Christopher Hasson, another white supremacist, was planning a mass-casualty attack based on Breivik’s strategic plans before he was discovered. David Sonboly, the Munich mall shooter, murdered nine people and injured thirty-six exactly five years after Breivik’s attack. The son of Iranian immigrants to Germany, Sonboly viewed himself as Aryan and directed his hatred towards foreigners in Germany. In France, Logan Alexandre Nisin, the head of the Defense Command of the French People and the Motherland, a white supremacist group that attacked many minorities and Muslim women in France, maintained an online shrine to Breivik. He and several associates were indicted for planning mass violence and political assassinations.
F. Homegrown Extremism to Global Movement
Despite the fact that white supremacist extremism may appear as homegrown white nationalist resistance to societal change in specific countries, common ideologies and cohesion facilitated across national borders by digital platforms have now created a global movement. The global white supremacist movement satisfies all the criteria of a social movement discussed in Section II.A, being that actors: (1) engage in political or cultural conflicts “meant to promote or oppose social change,” (2) are connected through “dense informal networks,” (3) share a distinct collective identity and beliefs, and (4) operate fully across national boundaries in multiple states. In the case of the global white supremacist movement, movement actors are engaged in political and cultural conflict opposing social changes such as the increasing racial and religious diversification in Western states, which they see as undermining their desired white supremacist hegemony. These actors share their viewpoints and spread their ideologies across dense informal networks formed through digital media technologies, some of which, such as 4chan, were created specifically to facilitate the growth of the movement. The movement actors also share a common identity and belief system that is predicated on white supremacy and extremist ideologies about the decline or genocide of the white community.
Digital networks allow community members to communicate and operate fully across national boundaries. Community members are located across the globe but appear to be concentrated in Western states (North America, Europe, Australia, and New Zealand) that have continued to be politically and economically dominated by majorities of European descent following the global decolonization of the twentieth century. Finally, violent white supremacist extremism does not merely constitute a social movement; it constitutes a global terror movement because violence and terrorist attacks are fundamental tenets of the manifestoes and the ideological framework to which members of the movement subscribe, and numerous members have been radicalized by these ideologies and have engaged in catastrophic terror attacks against minority communities.
Finally, element four of the framework—that global movement actors operate fully across boundaries—is reflected by the fact that members of white supremacist terror networks, including Americans, have now become foreign terrorist fighters who cross boundaries to receive training in active war zones and then bring those newly obtained fighting skills back home, including to the United States. For example, the war in Ukraine has attracted fighters from transnational white supremacist terror networks who use the battlespace to network. In addition to Ukraine, white supremacist training camps operate in Poland, Bulgaria, and the United Kingdom, among other countries. The global dimensions of this new global terror movement require a global response.
III. The Multiple Crises of 2020 Accelerate the Movement
The events of 2020 and early 2021 furthered the entrenchment of white supremacist terror networks and demonstrated how much these networks had metastasized. The worldwide health crisis caused by the COVID-19 pandemic led to greater social isolation, which caused more people to spend time on social media and to become exposed to conspiracies and white supremacist ideologies. Opposition to COVID-19 restrictions led to increasingly hostile anti-government protests and a plot by white supremacist militias to kidnap and kill two U.S. governors. The racial justice crisis sparked by the killing of George Floyd provided white supremacist terrorists the opportunity to provoke their long‑sought race war by infiltrating and attacking Black Lives Matter (BLM) protesters. The electoral crisis caused by Trump’s claims of election fraud and the incitement of an insurrection at the Capitol served as the long-awaited “Awakening” attack by white supremacists against the U.S. government. The high-profile nature of these events has furthered the public understanding that white supremacist terrorism is a serious crisis.
A. Health Crisis
The COVID-19 pandemic, which brought the entire globe to a halt in 2020, provided a unique opportunity for white supremacist terrorists to weaponize the crisis. White supremacist groups have incorporated the COVID-19 pandemic into their ideologies, spread these new conspiracy theories into social media platforms accessed by more people during lockdowns, and called for violence in response to government actions taken to defeat the pandemic. White supremacists have linked COVID-19 to their Accelerationist and Great Replacement ideologies during the pandemic. They have argued that COVID-19 is a conspiracy orchestrated by the “New World Order, . . . George Soros, the Chinese government and others seeking to eliminate the white race.” They have advocated the white community “to take up arms to spark a race war that leads to societal collapse” and replace the current government with a supreme white-led order. The scope of the messaging became so disturbing that DHS shared intelligence with state and local law enforcement, warning that white supremacist groups had discussed using coronavirus as a bioweapon against enemies, including non-white communities and the FBI.
Because white supremacist terrorist networks have historically organized themselves online, they were particularly well-suited to benefit from the mass shift of public interactions to online spaces with the global pandemic. Moonshot CVE, an organization that monitors online extremism, reported that in early April 2020 in states with extended stay-at-home orders, searches for violent extremist rhetoric grew by twenty-one percent in comparison to the prior eight months. Online platforms, such as Telegram’s encrypted group channels and 8Kun message boards, have played a central role in spreading white supremacist conspiracy theories to large groups during the pandemic. According to the Anti-Defamation League, Telegram has become a “staging ground” for extremist groups and groups associated with white supremacy. In March 2020, the first month of national lockdown in the United States, Telegram channels followed by white supremacists grew by more than 6,000 users, and one white supremacist channel focused on COVID-19 messaging grew by more than eight fold from 300 to 2,700 users. Telegram in particular has become the go-to platform for the Accelerationists who wish to destroy the government and establish a white ethnostate. The vice president of the ADL Center on Extremism assessed that, because people were at home during lockdown, these theorists found a “captive audience” to accelerate their views. Experts were also concerned that bored adolescents spending time online would become radicalized. In one bizarre example in Estonia, it was revealed that the head of a neo-Nazi organization, who had shared information about bomb-making, proposed setting up terrorist camps, and opposed a merger with another well-known white supremacist group, was actually a thirteen-year-old boy.
White supremacists also took advantage of the political protests that erupted in opposition to COVID-19 stay-at-home restrictions. The New Jersey Office of Homeland Security and Preparedness reported that white supremacists encouraged followers to attack and incite fear in minorities and immigrants. An April 23, 2020 U.S. DHS memo warned law enforcement officials around the country and U.S. congressional committees that white supremacist groups were mobilizing to violently respond to stay-at-home orders and noted the arrests of several white supremacists for threatening government officials imposing coronavirus restrictions. In May 2020, white supremacist groups such as the Boogaloo Bois, who believe in Accelerationism and a coming race war, stormed the Michigan state capitol with armed weapons in response to the Governor’s COVID-19 orders. Groups like the Boogaloo Bois used the government restrictions to encourage followers and new adherents to “take to the streets” in opposition. In one example, a white supremacist who had originally planned to attack a synagogue, mosque, or majority‑Black elementary school changed his plans after the pandemic began and decided to attack a Missouri hospital on the eve of the implementation of a stay-at-home order. He was thwarted by the FBI and killed in a gunfight with them.
In the most egregious example of COVID-19 regulation resistance, white supremacists made plans to kidnap and assassinate the Michigan and Virginia Governors. In October 2020, the FBI and Michigan attorney general arrested and charged thirteen men with ties to Wolverine Watchmen, a white supremacist militia with a plot to violently kidnap Michigan Governor Gretchen Whitmer at her home with firearms and explosives. The plotters had trained with militia groups and had conducted surveillance of Governor Whitmer’s vacation home and targeted the homes of law enforcement. They planned to kidnap Whitmer and try her for unspecified crimes. The justification for the plot was that Whitmer had violated their liberties with her preventative COVID-19 shutdown orders. The plotters planned to attack the Michigan Capitol, attack law enforcement, and kidnap the Governor, believing that their actions would start a civil war. The FBI’s charging document revealed that the Wolverine Watchmen were part of an effort organized online with other militia groups to kidnap governors, namely the Michigan or Virginia Governor, over their shutdown orders. The plot advanced against the Michigan Governor more directly, with one plotter seeking 200 men to storm the Michigan Capitol.
B. Racial Justice Crisis
Just as white supremacist terror groups sought to capitalize on the pandemic to further their aims, they also sought to exploit the massive, global Black Lives Matter, or BLM, protests that arose in the wake of the murder of George Floyd. George Floyd’s murder galvanized the largest protest movement in U.S. history. BLM protests in honor of George Floyd were held in nearly every state in the United States and over 40% of U.S. counties. Seeking to galvanize their long-sought race war, white supremacist groups infiltrated the protests as provocateurs, spread conspiracy theories about the BLM protests online, and violently confronted and attacked BLM protesters. At the epicenter of the George Floyd protests in Minneapolis, observers had concerns from the very beginning that outside groups were infiltrating the peaceful protests to cause destruction. Minnesota Governor Tim Walz opined that the individuals causing damage during the protests were provocateurs from outside of the area. Minnesota state officials noted that 80% of those arrested on one of the first evenings of protests were from outside of Minnesota. Walz and John Harrington, the Minnesota commissioner of public safety, said that they had received reports that “white supremacists were coming from elsewhere to stoke the violence.” Harrington also noted that several of the people arrested were linked to white supremacist groups. Similar issues arose in other cities, such as in San Diego, where white supremacists posted on Facebook that they were hosting a BLM rally, likely to incite destruction that would be wrongly attributed to BLM. In majority-Black cities such as Oakland, Atlanta, and Detroit, there were numerous reports of young, white individuals from outside of the city entering to cause destruction amid the protests.
In addition to acting as provocateurs, white supremacists encouraged their followers to show up at BLM protests and to try to instigate a race war. Many of these white supremacists were motivated by various Accelerationist ideologies and strategies, which included angering the police and government agents to such a great degree that the government would respond against protesting communities with indiscriminate force. Accelerationists believe that this indiscriminate use of force would help delegitimize the government, causing its collapse and making space for their creation of an eventual white ethnostate. They saw the largest protest movement in U.S. history against law enforcement practices as the perfect opportunity to aggravate tensions between the public and the state. The Boogaloo Bois followed this Accelerationist ideology: they showed up, armed, at the protests hoping to inspire a “boogaloo”—their term for a civil war or violent confrontation with law enforcement.
Other white supremacists saw the BLM protests as the perfect opportunity to assault people of color and their allies. These white supremacists encouraged their followers to violently attack Black protesters in order to exacerbate ethnic tensions and to spark a race war. In cities throughout the United States, armed white supremacists showed up as counterprotesters at BLM protests. In Kingwood, West Virginia, fifty armed counterprotesters showed up at a BLM protest—the group included Neo-Nazis, Three Percenters, and other white supremacists who harassed BLM protesters. Other interactions turned deadly. In one widely reported case, Kyle Rittenhouse, an armed, white seventeen-year-old vigilante, shot and killed BLM protesters in Kenosha, Wisconsin, who were protesting the recent police shooting of Jacob Blake, a young Black father, who was shot in the back by police and left paralyzed. Rittenhouse, like other armed militia members, had come to Kenosha in response to calls on social media. In the midst of conflicts between armed militia and BLM protesters, Rittenhouse shot and killed two unarmed BLM protesters and injured a third. He was arrested and is facing charges. Rittenhouse’s shooting of BLM protesters is an example of the violence that white supremacists sought—they called armed actors into conflict with BLM protesters, hoping that it would spark a bloody conflict, which in the case of Rittenhouse, it did.
C. Election Crisis
Following his electoral defeat in the November 3, 2020 U.S. presidential election, Donald Trump began to amplify disinformation across social media and right-wing cable networks that his defeat was the result of significant election fraud. This big lie about election fraud radicalized his followers who believed his claims, despite the fact that over sixty judges threw out his election fraud claims on the basis that there was no evidence to support them. White supremacist group members that are part of Trump’s base took advantage of his lies about election fraud to gain adherents and to convince them that their only option to stop the so-called steal was to pressure elected congressional representatives not to certify the election results, pursuant to their constitutional duty. The conspiracy theory to end a false election loss became known as Stop the Steal. The Stop the Steal conspiracy theory morphed with another conspiracy called QAnon.
Over the course of 2020, a number of Trump’s political base had been radicalized by a conspiracy started on social media by an anonymous individual or group of individuals known as Q. Q spread fictitious conspiracy theories online that Washington D.C. is run by a cabal of liberal leaders who are satanic, cannibalistic pedophiles and that Donald Trump was the savior recruited by the military to bring them to justice in a moment called The Storm. While QAnon was once a fringe group, during 2020 its followers expanded in number and with such violent fervor that DHS issued a warning that QAnon was a domestic terror threat. The Stop the Steal conspiracy theory morphed with white supremacist ideologies and QAnon conspiracy theories to cause many adherents to believe that Trump’s call for followers to come to D.C. for a rally on January 6, 2021, to stop the congressional certification of the presidential election was the foretold Storm. Other Trump supporters who were not QAnon followers but believed Trump about the election fraud came to D.C. to protest along with QAnon followers and white supremacists. Some people may have been members of all three groups. White supremacists saw the insurrection and storming of the Capitol as part of their Accelerationist ideology to bring about societal collapse.
D. Global Crisis
The January 6, 2021 Capitol insurrection revealed to the entire world the dangers of online radicalization and white supremacist terrorism, as well as the vulnerabilities of democratic and open societies. White supremacist networks around the world observed how their counterparts in the United States breached the U.S. Capitol and viewed their success as evidence that they also could achieve their goals of overturning democratic governments in concrete ways. The insurrection has also heightened foreign governments’ awareness of the threat of white supremacist terrorism. Two weeks after the insurrection, Canada’s Parliament voted unanimously that the Proud Boys should be listed as a terrorist organization by the Trudeau Government. The Public Safety Minister is compiling evidence for consideration by Prime Minister Trudeau. While the insurrection has inspired global white supremacists around the planet, it has also helped to put governments around the planet on notice about the danger of the threat.
IV. Al Qaeda- and ISIS-Associated Terrorism vs. White Supremacist Terrorism
Legal scholars such as Khaled Beydoun, Sahar Aziz, and Amna Akbar have written extensively about how U.S. counterterrorism approaches in the wake of 9/11 have resulted in the conflation of Muslim identity with terrorism, thereby heightening public suspicion of members of the Muslim community as potential terrorists and leading to race- and religion-based discrimination. This racial construction of terrorism as Muslim has obscured the public conception of violent white supremacists as terrorists even when they engage in actions that meet the legal definition of terrorism. This phenomenon has led national security authorities to label the violent activities of white supremacists as hate crimes rather than terrorism. The racial construction of terrorism has resulted in a presumption that violent acts committed by Muslims in the United States are associated with a transnational terror network, such as Al Qaeda or ISIS, and a presumption that white supremacists are individual actors, unassociated with a broader transnational terror network; however, as discussed in Part II, this presumption does not accord with present-day reality. Homegrown white supremacist terrorists are now linked in a global transnational network of terror.
Following 9/11, global terrorism inspired by Al Qaeda and ISIS in Western states appeared to surpass white supremacist terrorism in terms of the scale, frequency, and lethality of the attacks. However, over the past decade, white supremacist terrorism has outpaced Al Qaeda- and ISIS-associated terrorism in terms of its destructiveness, and since 2016, the white supremacist threat has increased as it has become a global movement. Today, in the United States, white supremacist terrorism is responsible for more terror attacks and deaths than Al Qaeda- and ISIS-associated terror, and white supremacist terror attacks are on the rise in other Western nations. A study from the Anti-Defamation League determined that from 2009 to 2018, 73% of terrorism-related killings in the United States were committed by white supremacists, compared to 23% that were committed by Al Qaeda- and ISIS-associated terrorists. Accordingly, most terror attacks and terror deaths in the United States are committed by white supremacists, not Al Qaeda- and ISIS-associated terrorists. In 2018, all fifty terror-related killings in the United States, except one, were committed by white supremacists, and the one exception was committed by a terrorist who switched from white supremacist beliefs to “radical Islamist beliefs” before his attack.
The global white supremacist terror movement shares many similarities with transnational Al Qaeda- and ISIS-associated terror networks. Al Qaeda connected its supporters through Internet websites, YouTube, and web forums, and ISIS gained and maintained a following through social media sites, like Facebook and Twitter, before being kicked off onto less-regulated apps, like Telegram. White supremacists also use social media platforms to share philosophies, to grow their network, and to organize. Like Al Qaeda- and ISIS-associated terrorists before them, they have largely been pushed from mainstream platforms to more obscure platforms known to cater to extremists, like Gab and 4chan. At its height, the ISIS network was empowered by the redistribution of its messages by and through followers around the world, just as the global white supremacist movement is empowered by the sharing of its messages through followers throughout the world. For example, the New Zealand mosque shooter, Brenton Tarrant, livestreamed his shooting spree on Facebook Live, and it was uploaded 1.5 million times, a level of online support that surpassed even ISIS. Al Qaeda and ISIS members, and their global supporters, look to figures “such as Osama bin Laden, Abu Masab al-Zarqawi, and Abu Bakr al‑Baghdadi” for leadership and vision. Global white supremacists look to figures such as Anders Breivik and Brenton Tarrant for inspiration to commit terrorist attacks and for ideological inspiration through their terrorist manifestoes. Al Qaeda- and ISIS-associated terrorism and white supremacist terrorism grew through the “inspirational contagion” of high‑profile terror attacks that raised their profile, “garner[ed] media attention, attract[ed] recruits, and inspire[ed] further plots.”
The Foreign Policy Research Institute has identified distinctions between the formation of Al Qaeda- and ISIS‑associated terror networks and the formation of the white supremacist terror network. Al Qaeda- and ISIS-associated terror networks are generally formed in a top-down manner. Organized terror groups, such as Al Qaeda and ISIS, plan, staff, and direct terror attacks. These terror groups also execute attacks through affiliated terror cells that have members who are trained fighters from other conflict zones. Finally, self-funded and self-equipped individuals or cells with no formal link to the terror groups are inspired to engage in similar attacks that they plan themselves. The white supremacist terror network has developed in more of a bottom-up fashion. The most notorious white supremacist terror attacks were not planned by a central organization but rather by individuals, not typically operating within a formal group structure. These terrorists arise “from [the] grass roots” and online activity. Their attacks then inspire a wave of repeat attacks, as their ideology is shared through digital platforms.
Successful and cataclysmic white supremacist attacks have inspired further attacks globally, just as Al Qaeda and ISIS attacks inspired other global attacks. Successful attacks raise the ideological profile of the terror movements, attract recruits, and inspire new attacks. Unlike Al Qaeda- and ISIS-associated terror networks, those who commit white supremacist attacks are not part of a formal organizational structure because they are based in Western states with organized law enforcement that deters organized armed conflict, as opposed to failed or weak states like Iraq, Syria, and Afghanistan where Al Qaeda and ISIS were able to form organizational structures with networks of combatants engaged in extended armed conflict. The global white supremacist movement has instead maintained a less formal virtual network. Although they have not formed an organizational structure operating under a flag like ISIS and Al Qaeda, the global white terrorist movement is organized and destructive. White supremacists share ideological, technical, and tactical assistance online that supports new attacks.
The online white supremacist network also supports the establishment of organized terror cells. For example, Atomwaffen, a neo-Nazi group, has been “linked to multiple murders” in the United States. The eighty-member terror group formed in an online forum and organized itself into cells that participated in hate camps and weapons training. The terror group encourages societal breakdown and a race war, after which they plan to establish a political system based upon their beliefs. They are heavily influenced by the racist and anti-Semitic writings of the American Nazi Party.
Despite the fact that global white supremacist terror attacks have caused more deaths than Al Qaeda- and ISIS-associated terror attacks, the United States and the global community have not collectively organized to address white supremacist terrorism as a global movement. In fact, some Western state leaders do not view white supremacist terror attacks as part of a global terror movement, and instead view them as isolated attacks. When asked about the New Zealand mosque attack, Trump referred to it as an isolated attack rather than part of a larger movement. The public narrative and presumption that mass scale terrorism is presumptively Al Qaeda- and ISIS-associated rather than white extremism-based is typified by the media reporting on a 2016 attack in Munich by David Sonobly, a German of Iranian origin. Reports of Sonobly’s Iranian origin led to public reporting that the attack was Al Qaeda- and ISIS-associated, but in actuality, the attack was rooted in white supremacist ideology. Sonobly, who was inspired by Breivik, shot and killed ten people, seven of whom were immigrants, and also killed himself. The public conception that terrorism is Al Qaeda- and ISIS-associated but not white extremism-based impacts how terror cases in the United States are surveilled and prosecuted by national security institutions, as discussed in the next Part.
V. U.S. Law: A Tale of Two Terror Regimes
As discussed above, U.S. national security agencies treat Al Qaeda- and ISIS-associated cases and white supremacist cases differently. This disparate treatment is in part the result of U.S. laws that distinguish between domestic and international terror cases and the tendency for U.S. national security institutions to treat white supremacist terror cases as domestic, while treating cases involving Muslims as international. U.S. international terrorism prosecutions overcapture cases involving Muslim defendants and undercapture cases involving white supremacist defendants. The identity of the defendant, rather than the nature of the underlying terrorist incident, has shaped the response of U.S. national security institutions. This section outlines the U.S laws for domestic and international terrorism, details how national security institutions have applied the laws on an identity-based, rather than incident-based, approach and details the advantages for treating white supremacist terror cases as international terror cases due to their link to transnational white supremacist terror networks.
The U.S. Code defines both domestic terrorism and international terrorism. Domestic terrorism is defined as activities that:
involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State; appear to be intended to intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by mass destruction, assassination, or kidnapping; and occur primarily within the territorial jurisdiction of the United States.
International terrorism is defined as activities that:
involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State; appear to be intended to intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by mass destruction, assassination, or kidnapping; and occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum.
Under the U.S. Code, the primary distinction between domestic and international terrorism is that domestic terrorism occurs primarily within the territory of the United States and international terrorism occurs primarily outside of the territory of the United States or transcends national boundaries in terms of the means of accomplishment, the persons intended for intimidation or coercion, or the locale in which perpetrators operate or seek asylum. For those terror incidents occurring within the United States, the key definitional distinction between whether a terror incident is considered domestic or international terrorism is whether the parties committing the act worked with or received support from individuals or entities located outside of the United States. Several significant consequences flow from whether a U.S. terror incident is labeled as domestic or international terrorism, as discussed herein.
First, federal law only creates an independent basis for prosecuting international terrorism, not domestic terrorism. Federal law does not provide any new authorities for prosecuting individuals who commit incidents that fit the federal definition of domestic terrorism—violent acts intended to “intimidate or coerce a civilian population” or to “influence [the policy or conduct of government] by intimidation or coercion”—and that do not have a transnational link. Such domestic terror incidents can merely be charged criminally under other state or federal law and do not have any increased punitive consequences, despite the fact that they fit the definition of domestic terrorism provided in the act. Defining domestic terrorism in the Code appears to be an impotent exercise, as the Code does not provide any new prosecutorial authority for the defined act. On the other hand, the U.S. Code provides several new authorities for the prosecution of activities defined as international terrorism that occur within the territory of the United States. Chief among these are the material support provisions, which criminalize the provision of material support to a terrorist engaged in a transnational crime and the provision of material support to a foreign terrorist organization. Further, international terrorism charges allow for more punitive sentencing by judges at the sentencing phase.
The federal government’s inability to bring domestic terrorism charges against white supremacists was made apparent in two high-profile cases: that of Dylann Roof, and the killing of Heather Heyer during the Unite the Right rallies in Charlottesville, Virginia. In both instances, discussed infra, Attorneys General of the United States acknowledged limitations in their capacity to pursue the crimes as terror cases. Attorney General Loretta Lynch was forced to make the argument that the federal hate crimes prosecution of Roof was effectively a terrorism prosecution because hate crimes are the original terror. The DOJ, under Attorney General Jeff Sessions, acknowledged openly that there is no independent domestic terror prosecutorial authority. Had these cases been understood to have ties to a global terror movement, as I discuss infra, authorities would have had the capacity to pursue federal international terrorism charges against the perpetrators.
A second practical distinction between domestic and international terrorism is that U.S. law provides more expansive authority for and requires less oversight of law enforcement and intelligence agencies investigating cases with a transnational nexus than cases that are exclusively domestic. The Foreign Intelligence Surveillance Act (FISA) permits investigatory agencies to wiretap the phone and email of someone suspected of having ties to international terrorism. The standard for approving wiretaps for international terror cases is generally considered to be more permissive than the standard that exists for a domestic wiretap. Accordingly, it is easier for authorities to monitor and surveil the target of international terrorism investigation than those considered to be involved with exclusively domestic activity.
There are significant constitutional reasons why separate surveillance regimes exist for surveilling international and domestic terrorism. The 1976 Church Committee report of the U.S. Senate revealed widespread constitutional violations committed by U.S. national security agencies in the surveillance and disruption of peaceful activities by American citizens, particularly during the Civil Rights and Vietnam War Protest Era. The revelations of the Church Committee, federal court decisions, and executive orders restricted many of the most violative practices. In the wake of these revelations and reforms, Congress passed FISA to provide a framework for the judicial approval of intelligence surveillance of communications between U.S. citizens and foreign parties.
Despite the fact that two distinct legal regimes exist for domestic and international terrorism, national security institutions have enforced those regimes based upon the identity of the suspect, rather than the underlying nature of the alleged criminal activity. As discussed supra Part III, legal scholars such as Khaled Beydoun and Shirin Sinnar have discussed the racial construction of Muslims as terror suspects in the United States. Comparing the response to the mass shootings in Las Vegas and Orlando, Beydoun argues that U.S. national security institutions have racialized lone-wolf suspects accused of mass violence, such that Muslim suspects are presumptively linked to terrorism while white, non-Muslim, suspects are presumed not to be linked to terrorism. The perpetrator of the Orlando Pulse nightclub mass shooting was of Afghani heritage and immediately thought to be linked to transnational terrorism whereas the mass shooter in Las Vegas was presumed to have acted alone. Sinnar discusses how this disparate treatment extends to the broader U.S. Muslim community, resulting in intrusive surveillance and the targeting of U.S. Muslim community members, who are racially stigmatized as “foreign” and therefore tied to transnational networks of terror. This racialized national security paradigm results in the underenforcement of available antiterror authorities against white supremacists, which is particularly striking in light of the growth of transnational white supremacist terror networks.
In addition to failing to prosecute white nationalists as terrorists, national security institutions fail to treat white supremacists as terror suspects, which means they are not subjected to the same level of surveillance or punitive prosecutorial consequences as those suspected of Al Qaeda- and ISIS-associated terrorism. The consequences of these failures can be seen in the cases of Christopher Hasson and Dylann Roof. Christopher Hasson, a Lieutenant in the Coast Guard, was arrested for “plotting to kill journalists, Democratic politicians, and Supreme Court Justices,” according to prosecutors. He pled guilty to drug and gun possession-related charges. Hasson, who had twenty-eight years of military service, is alleged to have stockpiled multiple weapons for a mass casualty terror attack “to murder innocent civilians on a scale rarely seen in this country” and to spark a race war. Hasson was radicalized online, having read Breivik’s manifesto and visited various white supremacist websites over a period of two years. He is alleged to have studied the techniques of the Unabomber and Virginia Tech gunman and to have plotted his attacks from his work computer at the Coast Guard headquarters. Considering the fact that he was a military officer, who passed periodic background security checks, it is evident that more needs to be done to vet and surveil white supremacists, including those in military service and law enforcement. Unfortunately, the Senate removed language from a House-drafted defense authorization bill that would have required vetting for white supremacism among military enlistees. The provision was intended to block white supremacists who are enlisting in the military to gain military training and access to weapons.
Dylann Roof, a white supremacist who murdered nine African-Americans at Emanuel African Methodist Episcopal Church in Charleston, South Carolina, was charged with hate crimes rather than terrorism-related offenses. FBI Director Comey initially failed to refer to Roof as a terrorist, as he failed to see a political motivation to the crimes. However, the investigation revealed that Roof was radicalized with research from white nationalist terror networks online and that he hoped to spark a race war, in line with transnational white supremacist terror objectives. A more consistent understanding by federal authorities that Roof’s radicalization occurred from transnational terror networks may have led to the public acknowledgment by authorities that his attack was a terror attack and to his prosecution under international terrorism criminal statutes.
Rather than increasing its focus on rising white supremacist terror, the Trump Administration obscured it and wasted resources on invented threats. Early in its tenure, the Trump Administration disbanded bodies responsible for analyzing the threat of white supremacist terrorism. At the same time, the FBI under Trump initiated the creation of a new terror threat category, called Black Identity Extremism (BIE), which falsely identified a movement from disparate incidents, and raised fears of a reinstated COINTELPRO program targeting black protest and dissent against police brutality. After significant congressional pushback, the FBI said that it was no longer using its BIE label and it also cut back on the use of its white supremacist classification, replacing them both with the amorphous Racially-Motivated Violent Extremism label. However, this new category obscures the threat of white identity extremism, while creating a false equivalency with BIE, a designation which under Congressional and public scrutiny proved to be unsubstantiated as a connected movement or actual threat. In July 2019 testimony to Congress, FBI Director Christopher Wray acknowledged that of the nearly one hundred arrests involving domestic terrorism over the prior nine months, the majority were based upon white supremacist motivations.
VI. International Counterterror Approaches and Challenges
Just as the implementation of U.S. counterterrorism laws has resulted in identity-based discrimination against the U.S. Muslim community and failed to sufficiently address white extremism as a global terror threat, the implementation of international counterterror mandates has undermined the human rights of marginalized communities and failed to sufficiently address the scope of the white supremacist terror threat. Following 9/11, the United Nations instituted a set of mandates to confront international terrorism. Despite the fact that many states have implemented counterterror efforts in conformity with U.N. mandates, white supremacist terror has increased exponentially in recent years. Western states’ primary focus on Al Qaeda- and ISIS-associated terror has not only resulted in discrimination against many Muslims unassociated with terror but also enabled white supremacist terrorism to proliferate. The white supremacist terror movement’s foundation in digital platforms and close association with far-right political parties in many states has also complicated the global counterterror response, as discussed infra this Part.
A. The United Nations Counterterrorism Framework
In order to assess the failure of the international community to fully address the challenge of white supremacist terror, it is helpful to revisit the international counterterrorism framework. Two weeks after the September 11, 2001 attack, the U.N. Security Council passed U.N. Security Council Resolution (UNSCR) 1373, which required states to take several actions to suppress and prevent terrorist acts. The resolution was passed under the authority of Chapter VII of the U.N. Charter, which creates legally binding obligations for United Nations Member States. UNSCR 1373 mandated, among other things, that states take several measures to “prevent and suppress the financing of terrorist acts,” including:
Criminaliz[ing] the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts; Freez[ing] . . . funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts . . . ; Prohibit[ing] their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts . . . .
In addition to its mandate regarding the suppression of terrorist financing, UNSCR 1373 also calls upon states to sign on to a number of international and regional conventions regarding the suppression of terrorism. The Security Council also established a Counter-Terrorism Committee to oversee implementation of the resolution. Pursuant to 1373, the Committee is responsible for listing individuals subject to terrorist financing bans.
Following bombings in London in July 2005, it was discovered that the attacks were not carried out by Al Qaeda but rather terrorists who connected with one another and planned the bombings through the Internet. UNSCR 1624, sponsored by the United Kingdom, encourages states to “act cooperatively to prevent terrorists from exploiting sophisticated technology, communications and resources to incite support for criminal acts.” UNSCR 1624 also calls upon states to adopt measures to “[p]rohibit by law incitement to commit a terrorist act or acts.” The Counter-Terrorism Committee was given the responsibility to implement these measures.
In 2014, at a high-level meeting chaired by President Obama, the U.N. Security Council passed UNSCR 2178 targeted at the foreign terrorist fighters contributing to the growth of ISIS and other terror groups. The resolution sought to address the problem of foreign terrorist fighters by preventing their radicalization, recruitment, travel, and receipt of financial support. Authorized pursuant to Chapter VII of the UN Charter, the resolution creates legally binding obligations for member states. Among other provisions, the resolution calls upon member states to “cooperate in efforts to address the threat posed by foreign terrorist fighters, including by preventing the radicalization to terrorism and recruitment of foreign terrorist fighters” and obligates states to “prevent and suppress the recruiting, organizing, transporting or equipping of individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training.”
Taken together, these three resolutions establish the United Nations’ approach to combatting terrorism—requiring states around the globe to restrict terror financing, prohibit the incitement to terror on the Internet, prevent the radicalization of new terrorists, and limit the transnational travel of terrorists. As discussed below, the implementation of global counterterror mandates has led to the marginalization of Muslim communities in many Western states and has left the problem of white supremacist terrorism unaddressed.
B. Counterterrorism Approaches in Western States Have Enhanced Discrimination Against Muslim Communities and Fomented Greater White Extremism
The discrimination resulting from counterterrorism policies that occurred in the United States also occurred in other Western states. In August 2017, Mutuma Ruteere, the U.N. Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia, and Related Intolerance, released a report on the challenges to combatting racism, xenophobia, and discrimination in the midst of global efforts heavily focused on countering terrorism. Ruteere noted the significant increase in populist parties in Europe, which doubled in their percentage in European parliaments from 10% in 1980 to 18.4% in 2017. Ruteere observed that the increase in populist parties has been driven in part by public concerns about terrorism, and that the populist candidates have exploited this anxiety with racist and xenophobic rhetoric targeted at Muslims and immigrants. Ruteere’s report also noted that public officials and the media in several countries propagated prejudice and stereotypes by linking Muslims and immigrants to terrorism. Ruteere cited a study that revealed the role that the media played in distorting public perceptions about the threat of terrorism in the United States. The study revealed that attacks by Muslims, particularly foreign‑born Muslims, received 4.5 times more news coverage than other attacks. Foreign-born Muslims and U.S.-born Muslims received, respectively, 44% and 32% of the terrorism-related news coverage despite the fact that they committed, respectively, 5% and 12.4% of attacks. The media simultaneously failed to report on white supremacist attacks as forms of terrorism.
Ruteere’s report noted that, in a number of countries, counterterrorism was used to justify policies that discriminated against Muslims in terms of their freedom of movement and national status. Several European countries implemented refugee policies designed to prevent refugees, largely from the Middle East, from entering the country. The report also cited the Trump Administration’s so-called Muslim Ban that prohibited the issuance of visas and the approval for refugee status to individuals from seven Muslim-majority countries. Several Western European countries also put in place laws that allowed them to revoke the citizenship of nationals suspected of having ties to terrorism, in some instances without judicial approval or due process safeguards.
Furthermore, the Special Rapporteur commented on the discriminatory impact of overly broad counterterrorism laws. Far‑reaching and vague definitions of terrorism and violent extremism have led to discrimination and the denial of human rights to Muslims in a number of countries. In Western Europe, such overly broad language on terrorism has been the result of efforts by right-wing populist politicians who have “fuel[ed] fears of Muslim radicalization.” In the United States, Muslim charities feel that they have been unfairly “targeted by investigations, raids and asset seizures” that have left the false impression that they are engaging in terror financing. In European countries, new laws have been used to criminally charge Muslims for nonviolent viewpoints that they shared on social media. Other European laws have created states of emergency, under which Muslim- and North African-appearing nationals have been subject to house arrest and search without due process or prior judicial authorization.
Ruteere also detailed how counterterrorism surveillance laws and practices were having a discriminatory impact on Muslim communities. In the United States, dragnet surveillance was applied towards a Muslim community, where mosques were monitored, entrances filmed, and daily reports were taken on Muslim individuals, despite no ties to actionable intelligence. Laws in one Western European country allowed for the surveillance of mobile phones and the capture of black boxes from Internet service providers without judicial authorization. In another Western European country, data mining and collection activities after 9/11 were directed at the Muslim population and those affiliated with a Muslim-majority nation.
Ruteere notes that the discriminatory treatment of Muslim communities in the name of counterterrorism is counterproductive. The increase in Islamophobic and xenophobic rhetoric rooted in fears of terrorism has legitimated violent and discriminatory acts by state actors and hate crimes by private actors. As a consequence, the alienation experienced by some members of the Muslim community as a result of this racialized targeting can further alienate them from mainstream society, making them ripe for terrorist recruitment.
C. Digital Platforms Facilitate Radicalization and Present Regulatory Challenges
A year after the Special Rapporteur released his report that detailed how global counterterrorism efforts had been implemented in a manner that discriminated against Muslim communities, the new U.N. Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia, and Related Intolerance, Tendayi Achiume, prepared a report that focused on the use of digital platforms as a tool for the spread of white supremacist propaganda. Achiume found that platforms were used for recruiting, radicalizing, networking, fundraising, and spreading information about public events, such as the Charlottesville rally. The report stated that digital platforms helped to expand the white supremacist movement, to radicalize new members, and to inspire various actors to commit terror attacks. Despite U.N. calls for the prevention of the incitement to terror online, protections for the freedom of expression on digital platforms complicate the response. Achiume’s report highlighted the challenge that laws intended to prevent the incitement of terror online could also be used by governments to ban certain digital platforms and stifle political opposition, diverse viewpoints, and human rights defenders.
D. The Political Constituency Problem
The nexus between white supremacist terror and white supremacist political parties has complicated counterterror responses in Western states in ways that did not exist for Al Qaeda- and ISIS-associated terror. In fact, the counterterror response to Al Qaeda- and ISIS-associated terror involved the identity-based targeting of discreet and insular Muslim communities in Western states who possessed comparatively less political power than the majority communities. In contrast, white supremacist terrorists have benefited from their association with political parties that wield power. I have named this phenomenon “the political constituency problem.”
The significant growth of right-wing extremist political parties in Europe and extremist political movements, such as the “alt-right” in the United States, has coincided with the growth of the white supremacist movement online. This correlation is unsurprising as the members of the online movement very often are the same individuals who are active in the political movement. In the case of the United States, individuals such as Richard Spencer, founder of the alt-right, have been pushing for greater recognition and space in the Republican Party, and have helped to influence party narratives and priorities, as seen with the Trump Administration’s “Muslim Ban” and various anti‑immigrant initiatives championed by white nationalists within the Administration. In Europe, white supremacist populist parties have expanded significantly in the past decade, driven in part by concerns about terrorism and foreign immigration. The enhanced political influence exerted by the members of the white supremacist movement has deterred states from organizing the same concerted counterterror response that was implemented in an identity-based fashion against Muslim communities. Further, membership in the majority population has protected white supremacists from identity- and race-based targeting that members of the Muslim community faced.
Like the United States, Europe has a legal framework for addressing terrorism. The EU Parliament and Council issued a 2017 Directive on counterterrorism. As EU legislation, the directive required all EU member states to bring their domestic laws into conformity by September 8, 2018. Article 3 of the directive defines the scope of terrorist offenses:
Member States shall take the necessary measures to ensure that the following intentional acts, as defined as offences under national law, which, given their nature or context, may seriously damage a country or an international organisation, are defined as terrorist offences where committed with one of the aims listed in paragraph 2:
(a) attacks upon a person’s life which may cause death;
(b) attacks upon the physical integrity of a person;
(c) kidnapping or hostage-taking; (d) causing extensive destruction to a government or public facility, a transport system, an infrastructure facility, including an information system, a fixed platform located on the continental shelf, a public place or private property likely to endanger human life or result in major economic loss; (e) seizure of aircraft, ships or other means of public or goods transport; (f) manufacture, possession, acquisition, transport, supply or use of explosives or weapons, including chemical, biological, radiological or nuclear weapons, as well as research into, and development of, chemical, biological, radiological or nuclear weapons; (g) release of dangerous substances, or causing fires, floods or explosions, the effect of which is to endanger human life; (h) interfering with or disrupting the supply of water, power or any other fundamental natural resource, the effect of which is to endanger human life; (i) illegal system interference . . . ; (j) threatening to commit any of the acts listed in points (a) to (i).
The Directive also requires states to make it illegal for an individual to direct or knowledgeably provide material resources or support to a terrorist group. The Directive defines terrorism‑facilitating offenses that states must make illegal including provoking the public to commit terrorism, recruiting, providing terrorism training, receiving terrorism training, traveling for terrorism, facilitating travel for terrorism, and financing terrorism. States are directed to create criminal penalties as well as civil penalties for natural and legal persons that violate these provisions. The key question implicated by the Directive is whether a political party could be deemed a terrorist group under Article 4 or a legal person under Article 17 with legal liability for violating the counterterror prohibitions. The Directive itself defines both groups:
(2) ‘legal person’ means any entity having legal personality under the applicable law, except for States or public bodies in the exercise of State authority and for public international organisations,
(3) ‘terrorist group’ means a structured group of more than two persons, established for a period of time and acting in concert to commit terrorist offences; ‘structured group’ means a group that is not randomly formed for the immediate commission of an offence and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure.
The Directive itself does not appear to preclude defining political parties as a “terror group” nor a “legal person” liable for violating counterterror provisions. Despite the fact that by its terms, political parties can be held liable under the EU Counterterror Directive, a state’s implementation of counterterror provisions against a political party presents legal and practical concerns. Legal scholar Nadia Banteka provides a helpful case study with the case of the People’s Association Golden Dawn (Golden Dawn). Golden Dawn is a right-wing extremist and neo-Nazi political party in Greece that adheres to a white supremacist ideology. It was founded in the 1980s but never received more than a negligible number of votes in parliamentary elections. Golden Dawn “received 7% of the national votes and 18 seats in the Parliament during the last election, making it the third-largest party represented in the Greek Parliament.”
Golden Dawn’s political success coincided with a campaign of hate-based terror crimes committed against immigrant communities throughout Greece by right-wing militia and vigilante groups that identify with the party. While Golden Dawn denies any direct involvement in the campaign of terror, several Golden Dawn candidates and members of parliament have been arrested and prosecuted for involvement in the “cleansing” campaigns. Golden Dawn’s leader, Nikos Michaloliakos, has stated that although “there is no organic relationship between Golden Dawn and these groups, we support their activities. Not illegal activities, however . . . [m]any of their members voted for us, and members of Golden Dawn belong to these groups, but the crimes don’t come from these groups.”
The knowledge and awareness that white supremacist party members and voters are engaged in terrorism is the crux of the political constituency problem. Any counterterror campaign targeted at this community must overcome a protective political bloc. And in Europe, efforts to target a political party that foments terror activity bumps up against protections for the freedom of expression. The European Convention on Human Rights and the constitutions of all EU member states protect the freedom of expression. The protections are not as uncompromising as the First Amendment of the U.S. Constitution because all EU member states have enacted laws that prohibit incitement to hatred and racial violence, as provided for in the International Covenant on Civil and Political Rights. Further, EU member states have the ability to ban Nazi and fascist political parties. The European Commission on racism and discrimination of the Council of Europe suggested “that Greece consider banning Golden Dawn.” Even if a ban is legally permissible, the ability to accomplish it politically is another matter. And if a political party is banned, it may drive members further underground and increase the potential for terrorist activity based on disaffection with the political system.
In the United States, national security analysts have observed that white supremacist terrorists are not surveilled or targeted to the same degree as suspected Al Qaeda- and ISIS‑associated terrorists because they vote. Clint Watts, a former national security analyst, observed that despite the increase in domestic white supremacist attacks following President Obama’s election, national security institutions remained focused on Al Qaeda- and ISIS-associated terrorism:
Still, the U.S. focused its counter-terrorism efforts on al Qaeda and its spawn, the Islamic State. Homegrown extremists inspired by the groups were a more vexing problem at that moment. The Obama administration crafted policy and programs “to develop community-oriented approaches to counter hateful extremist ideologies . . . including domestic terrorists and homegrown violent extremists in the United States.” Years of conferences and outreach sessions commenced, but the focus remained on preventing jihadist terrorism and not domestic terrorism. Muslim communities saw law enforcement-led interventions, and I’d spoil these discussions by asking, “Where is the outreach to domestic extremists?” I’d point out that Kevin Harpham arose from Eastern Washington, not far from where FBI Agents in 1992 became embroiled in a disastrous standoff at Ruby Ridge with an alleged, anti‑government group. “Why don’t we send some teams out to northern Idaho and eastern Washington to counter domestic terrorism?” I’d ask. No one responded, and the conversation would die because we all knew the answers. Domestic extremists have guns; al Qaeda wannabes generally don’t. Domestic terrorists vote; international terrorists don’t.
Unfortunately, Watt’s observation is still reflected in U.S. and global counterterror responses to white extremism due to the political constituency problem. The next Part will offer suggestions on counterterror approaches that can be pursued in the United States and at the international level to address the scope of the global white extremism terror threat.
VII. Confronting White Supremacist Extremism as Global Terrorism
Given the disproportionate U.S. and global response to Al Qaeda- and ISIS-associated terrorism and white supremacist terrorism, new counterterror approaches are needed to address the full scope of white supremacist terror. Fortunately, existing state counterterror authorities can be utilized to confront white supremacist terrorism as the global terror threat that it has become. This Article seeks to increase awareness that these actors are part of a transnational terror network so that they can be treated as such under domestic authorities. The political constituency problem and the practical reality that white supremacists are members of majority ethnic populations in Western states will ensure that these more robust authorities are not applied in the same identity-based manner as counterterror authorities have been applied against Muslim communities in Western states. The adoption of a threat-based, rather than identity-based, counterterror approach will also serve as a model for improving counterterror efforts against Al Qaeda- and ISIS‑associated terrorism. This Part provides an overview of promising counterterror proposals and my suggested strategies for addressing white supremacist terrorism.
A. Disrupting White Supremacist Terror Networks on Digital Media
Successful counterterror approaches must include close collaboration between governments and the private sector given the fundamental role that digital platforms have played in expanding the global white supremacist terror movement. The European Commission and several Western governments have proposed or implemented policies to impose duties of care, with legal sanctions for omission, on online service providers—requiring them to actively monitor and rid their platforms of extremist content. In 2018, the European Commission announced a proposal to impose duties of care on online service providers and encouraged member states to impose their own supplementary domestic regulations. Germany and Australia have implemented new policies aligned with the European Commission proposal, and France and the United Kingdom have pursued similar regulations. France plans to actively encourage and support other European nations to implement similar regulations to create a digital single market across Europe.
It is legally significant that countries are legislating their own online content regulations because it enables them to expand the legal definition of terrorism to include domestic extremism. Under the European Commission’s policy, terrorism is defined under the existing EU definition—which maintains a high bar that holds political and economic destabilization as a principle indicia of terrorism. However, Germany’s and Australia’s policies impose an indistinguishable duty on online service providers to remove and report seemingly foreign terrorist content and domestic extremist content alike. Following the Christchurch attack, as well as the general increase in extremist violence and disinformation, the United Kingdom and France were expected to also implement and promote policies that expand existing legal definitions of terrorism to include domestic extremism. The rest of Europe will likely follow the regulatory frameworks established by the European Commission, Germany, France, and the United Kingdom.
Although these novel online EU extremism regulations represent progress in protecting society from misinformation and incitement to violence, it does present new questions on the role and authority of governments regulating information, which could invite abuses of discretion—even by extremist parties who have gained political representation, should they rise to power. Australia’s law holds online service providers to a reasonable person standard, requiring them to remove and report content reasonable persons would find offensive. Under the law, the Australian government is empowered to demand that platforms like Facebook delete posts it deems unreasonable, or face penalties; presumably, an unchecked government could use this authority to silence its dissenters, regardless of whether their views are extreme or appropriate social commentary. Under their proposed regulations, the French and U.K. governments will develop agencies that oversee online service providers’ compliance with the law; it is unclear whether they too will institute a reasonable person standard of review. Though bureaucratic, the most equitable and effective means for France, the United Kingdom, and other nations to mitigate future abuses of discretion may be to establish independent review boards, within their proposed agencies, to establish adaptable criteria for determining what speech should be limited under the law.
While many European states are taking a regulatory approach and forming new bureaucratic institutions to monitor online extremism, the United States is likely to face constitutional and political hurdles in pursuing a regulatory approach. Because of broad protections afforded by the First Amendment, government agencies imposing a content-based regulatory framework are likely to raise concerns and legal challenges from numerous constituencies. For now, the best approach might be greater collaboration with digital media companies on self‑regulation, such that those companies remove content pursuant to private user agreements that preclude use of their platforms for terror radicalizations and incitement to violence. There is precedent for such an arrangement.
Following the shooting in Christchurch, New Zealand, several digital media companies entered into an agreement with several countries to enhance cooperation in order to prevent online terror radicalization. In May 2019, Amazon, Facebook, Google, Twitter, Microsoft, YouTube, and four other digital media companies signed the Christchurch Call to Eliminate Terrorist and Violent Extremist Content Online with the European Commission and leaders of seventeen countries, including France, New Zealand, Australia, Canada, Germany, Spain, and the United Kingdom. Thirty-one additional countries signed onto the Call in September 2019. Under the Call, governments and online service providers commit to collectively counter the dissemination of violent extremist content online. Government commitments include (1) promoting social inclusivity to diminish citizens’ susceptibility to extremist content, (2) implementing and expanding applicable legal frameworks to prosecute and limit the amplification of extremist ideologies by perpetrators or media, and (3) conducting research to better understand the spread of online extremism and its implications. Online service provider commitments include (1) providing greater transparency into the creation of terms of service and enforcing those terms more strongly, (2) reviewing existing algorithms to understand how they amplify extremist content, and (3) collaborating across the industry to share effective counterterrorism practices. The United States failed to sign the agreement, citing its First Amendment interests.
A U.S. approach that takes account of First Amendment concerns could include the passage of legislation that requires all digital media companies operating in the United States to put in place terms-of-use policies that preclude the use of digital systems for terror radicalization and would subject the digital media companies that do not prevent the sharing of terror-based content online to financial sanction. A number of issues would need to be resolved, including how government authorities could monitor compliance in a manner that does not violate user privacy and constitutional safeguards, but the key would be establishing an ongoing partnership between government and private sector actors that incentivizes the elimination of digital media platforms as terror radicalization tools.
B. Developing Coordinated Strategies to Address White Supremacist Terrorism at the Global and Domestic Level
The white extremism terrorist threat must be addressed as a global threat through coordinated actions at the global and domestic level. Governments facing threats from white supremacist terror should share threat information and develop coordinated strategies to respond to the threat in bilateral and multilateral fora. The United Nations General Assembly and Security Council are natural venues for the elevation and discussion of the global security threat posed by expanding white supremacist terror. The Western European and Other States Group (WEOG), which includes European States, Canada, United States, Australia, and New Zealand, is a natural regional group to discuss and elevate the issue.
Similar sustained coordination should occur at the domestic level. Interagency and federal-state counterterrorism working groups should be convened to develop coordinated strategies to prevent and punish white supremacist terror attacks, including targeted deradicalization efforts. In that regard, federal agency resources (personal and programmatic) focused on tracking and preventing white supremacist terror attacks should be restored and expanded. White supremacist terrorism should continue to be labeled explicitly, rather than obscured through terminology such as Racially-Motivated Extremism. Similarly, resources should be diverted away from false threats such as BIE labeling or the identity-based targeting of communities like non-threat-based CVE targeting of Muslim communities, which has only served to enhance discrimination against Americans, violate constitutional rights, and as noted in the Ruteere report, discussed supra, to enhance and justify white supremacist narratives.
C. Designating White Supremacist Entities as Foreign Terrorist Organizations
Foreign white supremacist terror organizations should be designated as Foreign Terrorist Organizations (FTOs) under U.S. law. While exclusively domestic entities and individuals cannot be designated as FTOs, there are plenty of foreign white supremacist organizations that could be added to the FTO list. In fall 2019, Congressman Max Rose sent a letter to Secretary of State Mike Pompeo, co-signed by 39 members of Congress, requesting that white supremacist organizations, such as the Ukraine-based Azov Battalion, be designated as FTOs. In his letter, Congressman Rose noted that the Azov Battalion meets the criteria of an FTO, in that it is a foreign organization that maintains the capability and intention to engage in terrorism, and is a threat to American national security. The Congressman went on to explain that the Christchurch shooter claimed he had trained with the Azov Battalion. Rose further noted that both the United Kingdom and Canada have recently added international neo-Nazi organizations to their domestic terror lists, and suggested that the State Department follow suit. Congressman Rose’s proposal to add the Azov battalion and other international violent white supremacist groups to the FTO list is wise: the Azov Battalion has attracted more than 17,000 foreign fighters from fifty countries, including the United States, into Ukraine for training. Its designation would help to combat the transnational network of terror by enabling the prosecution of individuals who provide material support to or who travel to train with the Azov Battalion or similar organizations. Such designations would also provide clear linkages and justifications for the use of international terrorism authorities to prosecute individuals who rely upon digital information from FTOs, or who coordinate directly with designated entities, in the conduct of terror attacks here in the United States or abroad. It also enhances the justification for counterintelligence surveillance of individuals who interact with these entities in the planning of terror attacks. Finally, such designations also provide legal justification for digital companies and financial institutions to prevent designated entities from using their platforms and institutional resources to support training, radicalization, or terror financing.
While Azov Battalion has not yet been added to the FTO List, on April 6, 2020, the State Department for the first time added a white supremacist organization to its FTO list—the Russian Imperial Movement (RIM). While there was some criticism that the RIM was a more obscure movement, and that more destructive organizations such as the Azov Battalion should have been added, the designation creates a precedent for further designations of white supremacist organizations by the State Department. Representative Elissa Slotkin has already requested that the Biden Administration make such additional designations. In a letter to Secretary of State Antony Blinken, Slotkin requested that the Biden Administration designate over a dozen foreign white supremacist organizations on the U.S. FTO list, including the neo‑Nazi National Action Group founded in the United Kingdom and banned by Britain in 2016. Slotkin aptly noted that designating these foreign transnational white supremacist organizations would “give the United States Government more tools to engage and flag the Americans who contact, support, train, and join these (white supremacist extremist) groups.”
D. Imposing U.N. Sanctions on White Supremacist Terror Groups and Actors
The U.N. Counter-Terrorism Committee has the mandate to implement U.N. Security Council Resolutions aimed at preventing terrorist financing, incitement to terror on the Internet, terrorist radicalization, and terror travel. The Counter-Terrorism Committee should use its full arsenal of resources to confront global white supremacist terror networks, including sanctioning white supremacist terrorist actors and groups, so that they cannot use financial institutions to fund campaigns of terror, or travel transnationally to organize or train for terror attacks. Such global sanctions would legally require states to pursue domestic action against listed entities and groups and would help to address the political constituency problem that prevents some states from taking unilateral action against entities with politically powerful associates.
E. Strengthening Existing Terrorism Legal Authorities
A number of legislative proposals have been put forward that would expand the available legal tools for identifying, deterring, and punishing white supremacist terrorists. Senator Dick Durbin has introduced legislation that would implement my earlier recommendations regarding interagency coordination and institutional support for a cohesive counterterror response to white supremacist terrorism. Durban’s Domestic Terrorist Prevention Act of 2019 calls for the creation of domestic terrorism prevention offices in DHS, DOJ, and the FBI, the development of a federal interagency task force to address white supremacist terrorism, and the development of DOJ, DHS, and FBI antiterrorism training programs for federal, state, and local agencies to respond to white supremacist terrorism. Former Principal Deputy Assistant Attorney General for National Security Mary McCord and former Homeland Security Adviser Lisa Monaco support legislation that would create a criminal sanction for the crime of domestic terrorism, which could encompass acts not yet criminalized, such as the stockpiling of weapons for the purpose of committing a terrorist act. Congressman Adam Schiff has proposed such a bill, and his legislation would require that the Privacy and Civil Liberties Oversight Board review national security investigations undertaken by national security agencies to ensure that appropriate resources are directed at threats such as white supremacist terrorism and not disproportionately directed against vulnerable minority communities.
While the intergovernmental, private sector, policy, and legislative proposals discussed above have merit, the United States has existing legal authorities that it can apply immediately to address the white supremacist terror threat. National security agencies simply need to view and treat white supremacist terrorists as the international terrorists that they are. Surveilling, pursuing, disrupting, and punishing white supremacist terrorists’ actions as transnational will enable counterterror responses that are commensurate with the scope of this rising threat. This Article seeks to provide the analytical framework and justification for this more robust strategy by changing the narrative around white supremacist terrorism and crystallizing in the public mind the awareness and understanding that although white supremacist terrorism may appear solely homegrown, it is also fundamentally global in nature.
Clint Watts, America Has a White Nationalist Terrorism Problem. What Should We Do?, Foreign Pol’y Rsch. Inst. (May 1, 2019), https://www.fpri.org/article/2019/05/america-has-a-white-nationalist-terrorism-problem-what-should-we-do/ [https://perma.cc/3BTC-S7VK]; Julian Borger, Insurrection Day: When White Supremacist Terror Came to the US Capitol, Guardian, https://www.theguardian.com/us-news/2021/jan/09/us-capitol-insurrection-white-supremacist-terror [https://perma.cc/XLG3-ALNJ] (Jan. 9, 2021, 11:37 PM); Eleanor Dearman, Racism and the Aug. 3 Shooting: One Year Later, El Paso Reflects on the Hate Behind the Attack, El Paso Times, https://www.elpasotimes.com/in-depth/news/2020/07/30/el-paso-walmart-shooting-community-reflect-racist-motive-behind-attack/5450331002/ [https://perma.cc/EJB6-SEUD] (Aug. 1, 2020, 2:45 PM); Weiyi Cai & Simone Landon, Attacks by White Extremists Are Growing. So Are Their Connections, N.Y. Times (Apr. 3, 2019), https://www.nytimes.com/interactive/2019/04/03/world/white-extremist-terrorism-christchurch.html [https://perma.cc/T2WW-BB62].
Cai & Landon, supra note 1.
Peter Bergen et al., Terrorism in America 18 Years After 9/11, New Am., https://www.newamerica.org/international-security/reports/terrorism-america-18-years-after-911/what-is-the-threat-to-the-united-states/ [https://perma.cc/NY5A-PFPW] (last updated Sept. 18, 2019).
E.g., Shirin Sinnar, Separate and Unequal: The Law of “Domestic” and “International” Terrorism, 117 Mich. L. Rev. 1333, 1335–37, 1347–48 (2019).
See Upendra D. Acharya, War on Terror or Terror Wars: The Problem in Defining Terrorism, 37 Denv. J. Int’l L. & Pol’y 653, 654, 656 (2009).
Id. at 656.
Id. at 657.
Id. at 658–60; see also U.N. Security Council Counter-Terrorism Committee, International Legal Instruments, https://www.un.org/sc/ctc/resources/international-legal-instruments/ [https://perma.cc/SH9M-7MLX] (last visited Apr. 15, 2021); Press Release, Sixth Committee (Legal), Fight Against International Terrorism Impeded by Stalemate on Comprehensive Convention, Sixth Committee Hears as Seventy-Third Session Begins, U.N. Press Release GA/L/3566 (Oct. 3, 2018), https://www.un.org/press/en/2018/gal3566.doc.htm [https://perma.cc/VE92-D3P4] (noting the continued “lack of a definition for terrorism”).
U.S. federal statutes and regulations define the term terrorism in approximately twenty different ways. Nicholas J. Perry, The Numerous Federal Legal Definitions of Terrorism: The Problem of Too Many Grails, 30 J. Legis. 249, 254–55 (2004).
22 U.S.C. § 2656f(a), (d)(2).
18 U.S.C. § 2331(1) (emphasis added).
See USA PATRIOT Act of 2001, Pub. L. No. 107-56, 115 Stat. 272, 376 (codified at 18 U.S.C. § 2331(5)).
ADL Ctr. on Extremism, supra note 13, at 10.
Id. at 16.
Inst. for Econs. & Peace, Global Terrorism Index 47 tbl.2.11 (2018) [hereinafter Global Terrorism Index] (stating that, in 2007, there were only three right‑wing extremist motivated terror attacks in Western Europe and, in 2017, there were twenty-eight such attacks).
Vera Bergengruen & W.J. Hennigan, ‘We Are Being Eaten from Within.’ Why America Is Losing the Battle Against White Nationalist Terrorism, Time (Aug. 8, 2019, 6:02 AM), http://time.com/5647304/white-nationalist-terrorism-united-states/ [https://perma.cc/SRU8-JV7B].
Donatella della Porta & Mario Diani, Social Movements: An Introduction 1 (2d ed. 2006).
Id. at 2.
Id. at 20–22.
Although della Porta and Diani’s definition is primarily focused on global justice social reform movements such as the environmental movement or the labor rights movement, which seek reform through nonviolent means, there is nothing in the social movement definition that would imply that a movement’s use of violence or terrorism means that it is not a movement. For example, the environmental movement contains an extremist element that has engaged in environmental terrorism, and in the case of some movements, terrorism may be a fundamental aspect for which the movement is known. See, e.g., James J. Brittain, Revolutionary Social Change in Colombia: The Origin and Direction of the FARC–EP 37 (2010) (discussing the armed FARC movement in Colombia).
Ku Klux Klan, S. Poverty L. Ctr., https://www.splcenter.org/fighting-hate/extremist-files/ideology/ku-klux-klan [https://perma.cc/FJW6-BRPN] (last visited Apr. 15, 2021).
Id. See generally Civil Rights Movement, ADL, https://www.adl.org/education/resources/backgrounders/civil-rights-movement [https://perma.cc/CM6Z-SUZC] (last visited Apr. 15, 2021) (describing federal civil rights legislation).
Roger Chesley, Activist’s KKK Hood Uncloaks Black-on-Black Murder Rate, Virginian-Pilot (Feb. 12, 2013, 12:00 AM), https://www.pilotonline.com/news/columns/article_56123df0-41a2-55d2-a606-46d8fdffba3f.html [https://perma.cc/XT2T-SHA6].
Equal Just. Initiative, Lynching in America: Confronting the Legacy of Racial Terror 4 (3d ed. 2017), https://eji.org/wp-content/uploads/2020/09/lynching-in-america-3d-ed-091620.pdf [https://perma.cc/B3GZ-FU75] (last visited Feb. 18, 2021).
Ku Klux Klan, supra note 23.
Bergengruen & Hennigan, supra note 18.
Id. This phenomenon, known as the political constituency problem, is discussed further in Part VI. See discussion infra Section VI.D.
Bergengruen & Hennigan, supra note 18.
See USA PATRIOT Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (codified as amended in scattered sections of the U.S. Code).
50 U.S.C. § 1541 note (Authorization for Use of Military Force).
See discussion infra Section VI.B.
Tim Lister et al., ISIS Goes Global: 143 Attacks in 29 Countries Have Killed 2,043, CNN, https://www.cnn.com/2015/12/17/world/mapping-isis-attacks-around-the-world/index.html [https://perma.cc/PQ8A-W2GV] (Feb. 12, 2018, 11:24 AM).
Michael S. Schmidt & Richard Pérez-Peña, F.B.I. Treating San Bernardino Attack as Terrorism Case, N.Y. Times (Dec. 4, 2015), https://www.nytimes.com/2015/12/05/us/tashfeen-malik-islamic-state.html [https://perma.cc/W6CG-JP27].
Steve Visser & John Couwels, Orlando Killer Repeatedly Referenced ISIS, Transcript Shows, CNN, https://www.cnn.com/2016/09/23/us/orlando-shooter-hostage-negotiator-call/index.html [https://perma.cc/5SPL-M6WL] (Sept. 24, 2016, 7:38 AM).
See discussion infra Part IV.
Art Jipson & Paul J. Becker, White Nationalism, Born in the USA, Is Now a Global Terror Threat, Conversation (Mar. 19, 2019, 3:14 PM), https://theconversation.com/white-nationalism-born-in-the-usa-is-now-a-global-terror-threat-113825 [https://perma.cc/D78W-G3PD].
“White Genocide,” ADL, https://www.adl.org/resources/glossary-terms/white-genocide [https://perma.cc/59M3-93Q7] (last visited Mar. 3, 2021). For more description of white supremacist ideology, see J.M. Berger, Alt History, Atlantic (Sept. 16, 2016), https://www.theatlantic.com/politics/archive/2016/09/how-the-turner-diaries-changed-white-nationalism/500039/ [https://perma.cc/4Q82-96HB].
Farhad Manjoo, Opinion, The White-Extinction Conspiracy Theory Is Bonkers, N.Y. Times (Mar. 20, 2019), https://www.nytimes.com/2019/03/20/opinion/new-zealand-great-replacement.html [https://perma.cc/5PQL-MYUT].
White Supremacists Embrace "Accelerationism," ADL (Apr. 16, 2019), https://www.adl.org/blog/white-supremacists-embrace-accelerationism [https://perma.cc/HTA7-TMN6].
Id.; Sara Brzuszkiewicz, Jihadism and Far-Right Extremism: Shared Attributes with Regard to Violence Spectacularisation, 19 European View 71, 73 (2020).
See Brzuszkiewicz, supra note 47, at 73, 75–76.
Hate Crimes and the Rise of White Nationalism: Hearing Before the H. Comm. on the Judiciary, 116th Cong. 11 (2019) [hereinafter Hershenov Testimony], https://docs.house.gov/meetings/JU/JU00/20190409/109266/HHRG-116-JU00-Wstate-HershenovE-20190409.pdf [https://perma.cc/XFF5-HQVE] (testimony of Eileen Hershenov, Senior Vice President for Policy, Anti-Defamation League).
Mila Shopova, Reclaiming the Digital Space: Fighting Right-Wing Extremists Online, Friedrich-Ebert-Stiftung: FES Connect (July 30, 2018) [hereinafter Interview with Davey], https://www.fes-connect.org/trending/reclaiming-the-digital-space-fighting-right-wing-extremists-online/ [https://perma.cc/US5J-22DF] (interview with Jacob Davey, Institute for Strategic Dialogue).
E.g., Khaled A. Beydoun, Lone Wolf Terrorism: Types, Stripes, and Double Standards, 112 Nw. U. L. Rev. 1213, 1227–28 (2018); Amna Akbar, Policing "Radicalization," 3 U.C. Irvine L. Rev. 809, 820–27 (2013); Sahar F. Aziz, Policing Terrorists in the Community, 5 Harv. Nat’l Sec. J. 147, 163–67 (2014); Aziz Z. Huq, Modeling Terrorist Radicalization, 2 Duke F. for L. & Soc. Change 39, 41 (2010); Samuel J. Rascoff, Establishing Official Islam? The Law and Strategy of Counter-Radicalization, 64 Stan. L. Rev. 125, 140–41 (2012).
See Beydoun, supra note 52, at 1227; Akbar, supra note 52, at 820.
Akbar, supra note 52, at 819–21.
Id. A similarly influential New York Police Department report on counter‑radicalization of the Muslim community was also criticized by scholars for its broadly conclusory observations about the Muslim community and failure to link its assumptions about radicalization to established and recognized methodology and studies. See Sahar F. Aziz, Caught in a Preventive Dragnet: Selective Counterterrorism in a Post‑9/11 America, 47 Gonz. L. Rev. 429, 481–82 (2012).
See Akbar, supra note 52, at 823–27.
See Aziz, supra note 52, at 166–67.
Beydoun, supra note 52, at 1232–33.
See Interview with Davey, supra note 51.
Hershenov Testimony, supra note 49, at 11.
Interview with Davey, supra note 51.
Hershenov Testimony, supra note 49, at 12.
Seth G. Jones, Ctr. for Strategic & Int’l Stud., The Rise of Far-Right Extremism in the United States 4 (2018), https://csis-website-prod.s3.amazonaws.com/s3fs-public/publication/181119_RightWingTerrorism_layout_FINAL.pdf [https://perma.cc/T7SK-MCT9].
Hershenov Testimony, supra note 49, at 3–4 (citing ADL Ctr. on Extremism, New Hate and Old: The Changing Face of American White Supremacy (2018), https://www.adl.org/media/11894/download [https://perma.cc/K66C-HAZF]).
Id. at 3.
Id. at 4.
Id. at 13–14.
Rebecca Lewis, Data & Soc’y Rsch. Inst., Alternative Influence: Broadcasting the Reactionary Right on YouTube 35–38 (2018), https://datasociety.net/wp-content/uploads/2018/09/DS_Alternative_Influence.pdf [https://perma.cc/YXN6-YALX].
Id. at 4, 15, 17–18.
Rebecca Ulam Weiner, The Growing White Supremacist Menace: COVID-19 Has Been a Boon for Far-Right Extremists, Foreign Affs. (June 23, 2020), https://www.foreignaffairs.com/articles/united-states/2020-06-23/growing-white-supremacist-menace [https://perma.cc/P7F5-D5WK].
J.M. Berger, The Dangerous Spread of Extremist Manifestos, Atlantic (Feb. 26, 2019), https://www.theatlantic.com/ideas/archive/2019/02/christopher-hasson-was-inspired-breivik-manifesto/583567/ [https://perma.cc/8NTJ-4WHR].
Id.; Gerard Taylor, French Extremists Inspired by Breivik, Nor. Today (Nov. 6, 2017), https://norwaytoday.info/news/french-extremists-inspired-breivik/ [https://perma.cc/STQ2-MPFS].
Berger, supra note 78.
See ADL Ctr. on Extremism, Hate Beyond Borders: The Internationalization of White Supremacy 7–8 (2019), https://www.adl.org/media/13538/download [https://perma.cc/86R7-LR3N]; Robyn Dixon, White Supremacism in Australia, Long a Virulent Strain, Is Amplified by the Internet, L.A. Times (Mar. 17, 2019, 3:00 AM), https://www.latimes.com/world/la-fg-australia-terrorist-far-right-20190316-story.html [https://perma.cc/R59L-UY4W]; Charlie Campbell, The New Zealand Attack Shows How White Supremacy Went from a Homegrown Issue to a Global Threat, Time (Mar. 21, 2019, 5:59 AM), https://time.com/5555738/new-zealand-shooting-white-supremacy/ [https://perma.cc/B8ZD-53US].
Weiner, supra note 77.
IntelBrief: White Supremacists and the Weaponization of the Coronavirus (COVID-19), Soufan Ctr. (Mar. 25, 2020), https://thesoufancenter.org/intelbrief-white-supremacists-and-the-weaponization-of-the-coronavirus-covid-19/ [https://perma.cc/Y4GX-4N67] [hereinafter Soufan Ctr.].
Neil MacFarquhar, The Coronavirus Becomes a Battle Cry for U.S. Extremists, N.Y. Times (May 3, 2020), https://www.nytimes.com/2020/05/03/us/coronavirus-extremists.html [https://perma.cc/7QHT-ZQ4Q].
Soufan ctr., supra note 94.
Billy Perrigo, White Supremacist Groups Are Recruiting with Help from Coronavirus—and a Popular Messaging App, Time (Apr. 8, 2020, 4:42 PM), https://time.com/5817665/coronavirus-conspiracy-theories-white-supremacist-groups/ [https://perma.cc/W762-L9DR].
MacFarquhar, supra note 98.
Id.; Katelyn Burns, Armed Protesters Entered Michigan’s State Capital During Rally Against Stay-at-Home Order, Vox (Apr. 30, 2020, 9:04 PM), https://www.vox.com/policy-and-politics/2020/4/30/21243462/armed-protesters-michigan-capitol-rally-stay-at-home-order [https://perma.cc/K5CF-VV96].
MacFarquhar, supra note 98.
Hannah Allam, 'A Perfect Storm’: Extremists Look for Ways To Exploit Coronavirus Pandemic, NPR (Apr. 16, 2020, 11:51 AM), https://www.npr.org/2020/04/16/835343965/-a-perfect-storm-extremists-look-for-ways-to-exploit-coronavirus-pandemic [https://perma.cc/K4VQ-AYHL].
MacFarquhar, supra note 98.
Claire Hansen, 13 with Ties to Right-Wing Militias Charged in Plots to Kidnap Michigan Governor, Target Police, U.S. News (Oct. 8, 2020, 4:09 PM), https://www.usnews.com/news/national-news/articles/2020-10-08/13-with-ties-to-right-wing-militias-charged-in-plots-to-kidnap-michigan-governor-target-police [https://perma.cc/VNZ9-YYLN].
W.J. Hennigan & Vera Bergengruen, ‘A Perfect Storm.’ The Michigan Plot Lays Bare the Dangers of Ignoring the Far-Right Threat, Time (Oct. 13, 2020, 7:49 PM), https://time.com/5898763/michigan-kidnapping-far-right-extremism/ [https://perma.cc/EXX2-UW4Y].
Larry Buchanan et al., Black Lives Matter May Be the Largest Movement in U.S. History, N.Y. Times (July 3, 2020), https://www.nytimes.com/interactive/2020/07/03/us/george-floyd-protests-crowd-size.html [https://perma.cc/9FXE-G2FE].
Mia Bloom, Far-Right Infiltrators and Agitators in George Floyd Protests: Indicators of White Supremacists, Just Sec. (May 30, 2020), https://www.justsecurity.org/70497/far-right-infiltrators-and-agitators-in-george-floyd-protestsindicators-of-white-supremacists/ [https://perma.cc/458D-WTUK.
Michael Balsamo & Kathleen Hennessey, Officials Blame Differing Groups of ‘Outsiders’ for Violence, Associated Press, May 30, 2020, https://apnews.com/article/93776458f930fdb4250bd1af62a481e3 [https://perma.cc/8BPN-DFHP].
Jon Parton, Minnesota Officials Link Arrested Looters to ‘White Supremacist’ Groups, Courthouse News Serv. (May 30, 2020), https://www.courthousenews.com/minnesota-officials-link-arrested-looters-to-white-supremacist-groups/ [https://perma.cc/QJ2T-A9LP].
Bloom, supra note 122.
Id.; Balsamo & Hennessey, supra note 124.
Tess Owen, Far-Right Extremists Are Hoping to Turn the George Floyd Protests into a New Civil War, Vice (May 29, 2020, 4:41 PM), https://www.vice.com/en/article/pkyb9b/far-right-extremists-are-hoping-to-turn-the-george-floyd-protests-into-a-new-civil-war [https://perma.cc/9DZ4-ERBZ].
Bloom, supra note 122.
Owen, supra note 128.
Chris Jones, Right-Wing Extremism and the Election, Yes! Mag. (Oct. 30, 2020), https://www.yesmagazine.org/democracy/2020/10/30/election-right-wing-extremism/ [https://perma.cc/V8YD-JYG2].
Peter Beaumont, Kenosha: Teen Charged with Murder After Two Black Lives Matter Protesters Killed, Guardian, https://www.theguardian.com/us-news/2020/aug/26/jacob-blake-shooting-gun-battle-in-kenosha-on-third-night-of-unrest [https://perma.cc/MKG2-53RE] (Aug. 26, 2020, 3:07 PM).
Id.; Gina Barton & Bruce Vielmetti, Kyle Rittenhouse, 17-Year-Old Charged in Kenosha Protest Shootings, Considered Himself Militia, Social Media Posts Show, USA Today, https://www.usatoday.com/story/news/nation/2020/08/26/kyle-rittenhouse-charged-kenosha-shootings-militia/5636473002/ [https://perma.cc/G97L-2GT5] (Aug. 27, 2020, 7:28 AM).
Beaumont, supra note 134.
Rebecca Heilweil & Shirin Ghaffary, How Trump’s Internet Built and Broadcast the Capitol Insurrection, Vox recode (Jan. 8, 2021, 5:00 PM), https://www.vox.com/recode/22221285/trump-online-capitol-riot-far-right-parler-twitter-facebook [https://perma.cc/B9PW-GLQ5]; David Zurawik, Commentary, Where Does Right‑Wing Media Go After Being Splintered and Debased by Trump?, Balt. Sun (Jan. 8, 2021, 11:37 AM), https://www.baltimoresun.com/opinion/columnists/zurawik/bs-ed-zontv-cable-news-shift-20210108-di7tkdhnjnhh5myxhqvqawzfqu-story.html [https://perma.cc/A8JU-75L6].
Heilweil & Ghaffary, supra note 138; Amy Sherman & Miriam Valverde, Joe Biden Is Right that More than 60 of Trump’s Election Lawsuits Lacked Merit, POLITIFACT: The Poynter Inst. (Jan. 8, 2021), https://www.politifact.com/factchecks/2021/jan/08/joe-biden/joe-biden-right-more-60-trumps-election-lawsuits-l/ [https://perma.cc/UMF2-2Q46].
Heilweil & Ghaffary, supra note 138; Dan Barry & Sheera Frenkel, ‘Be There. Will Be Wild!’: Trump All but Circled the Date, N.Y. Times, https://www.nytimes.com/2021/01/06/us/politics/capitol-mob-trump-supporters.html [https://perma.cc/RTD6-BASA] (Jan. 8, 2021).
Heilweil & Ghaffary, supra note 138.
See Kevin Roose, What Is QAnon, the Viral Pro-Trump Conspiracy Theory?, N.Y Times (Mar. 4, 2021), https://www.nytimes.com/article/what-is-qanon.html [https://perma.cc/4V7L-MVLE].
Drew Harwell et al., QAnon Reshaped Trump’s Party and Radicalized Believers. The Capitol Siege May Just Be the Start., Wash. Post (Jan. 13, 2021, 10:00 AM), https://www.washingtonpost.com/technology/2021/01/13/qanon-capitol-siege-trump/ [https://perma.cc/4VQU-F5ME].
Casey Tolan et al., Insurrection Fueled by Conspiracy Groups, Extremists and Fringe Movements, CNN, https://www.cnn.com/2021/01/07/us/insurrection-capitol-extremist-groups-invs/index.html [https://perma.cc/7UGT-7VZU] (Jan. 7, 2021, 5:01 PM).
See Chauncey DeVega, The Capitol Attack: White Supremacist Terrorism Meets Evangelical Christianity, Salon (Mar. 10, 2021, 11:00 AM), https://www.salon.com/2021/03/10/the-capitol-attack-white-supremacist-terrorism-meets-evangelical-christianity/ [https://perma.cc/KD6U-9AW8].
Katrin Bennhold & Michael Schwirtz, Capitol Riot Puts Spotlight on ‘Apocalyptically Minded’ Global Far Right, N.Y. Times (Jan. 24, 2021), https://www.nytimes.com/2021/01/24/world/europe/capitol-far-right-global.html [https://perma.cc/U7SM-KQ8K].
Hannah Jackson, MPs Unanimously Agree to Urge Feds to Designate Proud Boys a Terrorist Entity, Glob. News, https://globalnews.ca/news/7598355/motion-passes-proud-boys-terrorists/ [https://perma.cc/BW5W-P9HF] (Jan. 26, 2021, 8:53 AM).
See Caroline Mala Corbin, Essay, Terrorists Are Always Muslim but Never White: At the Intersection of Critical Race Theory and Propaganda, 86 Fordham L. Rev. 455, 459–60 (2017); Khaled A. Beydoun, Acting Muslim, 53 Harv. C.R.–C.L. L. Rev. 1, 25–28 (2018); Sahar F. Aziz, Sticks and Stones, the Words that Hurt: Entrenched Stereotypes Eight Years After 9/11, 13 N.Y.C. L. Rev. 33, 35–36 (2009) (noting “the racialization of Arabs, Muslims, and South Asians as the ‘terrorist other’”); Amna Akbar, National Security’s Broken Windows, 62 UCLA L. Rev. 834, 879–81 (2015); Leti Volpp, The Citizen and the Terrorist, 49 UCLA L. Rev. 1575, 1577–78, 1580–81 (2002).
The prosecution of White supremacist violence as “hate crimes” rather than as terrorism also is a result of the lack of a criminal statute for domestic terrorism. See discussion infra Part V.
Watts, supra note 1.
See Adam Serwer, The Terrorism that Doesn’t Spark a Panic, Atlantic (Jan. 28, 2019) (citing ADL Ctr. on Extremism, supra note 13, at 16), https://www.theatlantic.com/ideas/archive/2019/01/homegrown-terrorists-2018-were-almost-all-right-wing/581284/ [https://perma.cc/KD8H-JJ4E]; Global Terrorism Index, supra note 17, at 3, 47 (“In Western Europe, there were 12 attacks in the UK, six in Sweden, and two each in Greece and France. In the US, there were 30 attacks in 2017 which resulted in 16 deaths. The majority of attacks were carried out by lone actors with far-right, white nationalist, or anti-Muslim beliefs.”).
Serwer, supra note 154 (citing ADL Ctr. on Extremism, supra note 13, at 16).
Id. The ADL report cited by Serwer does not specify what specific organizations or entities were the source of the individual’s “radical Islamist beliefs.” ADL Ctr. on Extremism, supra note 13, at 10.
Watts, supra note 1.
Jonah Engel Bromwich, What Is Atomwaffen? A Neo-Nazi Group Linked to Multiple Murders, N.Y. Times (Feb. 12, 2018), https://www.nytimes.com/2018/02/12/us/what-is-atomwaffen.html [https://perma.cc/E4YD-JZKP].
See Betsey Klein & Kevin Liptak, Trump Says He Does Not Think White Nationalism Is a Rising Global Threat, CNN, https://www.cnn.com/2019/03/15/politics/white-house-new-zealand-mosque-attacks/index.html [https://perma.cc/9ES9-XKVT] (Mar. 15, 2019, 5:10 PM).
Terrorism and the Media: A Handbook for Journalists, UNESCO 22 (2017) [hereinafter UNESCO Report], https://unesdoc.unesco.org/ark:/48223/pf0000247074 [https://perma.cc/T9JC-DBCY]; Alex Shams, Why Did the Munich Killer Beg Us to See Him as German, Huffington Post, https://www.huffpost.com/entry/why-did-the-munich-killer_b_11154486 [https://perma.cc/2TE9-FXGV] (July 27, 2017).
Shams, supra note 185.
See, e.g., Sinnar, supra note 4, at 1396–97 (arguing that Muslim defendants who are treated as “international” terrorists are punished more harshly under U.S. law than white nationalists who are treated as “domestic” terrorists).
18 U.S.C. § 2331(5) (internal sub-numbering omitted).
Id. § 2331(1) (internal sub-numbering omitted).
Shirin Sinnar’s piece does an excellent job of articulating three of the practical distinctions between an “international” and “domestic” terrorism framework, and I highlight the distinctions here that Sinnar discusses in depth in her piece. Sinnar, supra note 4, at 1344, 1349, 1352, 1354–55, 1358.
See 18 U.S.C. §§ 2331–2339D on “Terrorism” (the criminal penalties section, § 2332, refers only to transnational crimes, incidents committed against U.S. nationals while abroad, or committed by perpetrators located abroad).
18 U.S.C. § 2339A.
Id. § 2339B.
See James P. McLoughlin, Jr., Deconstructing United States Sentencing Guidelines Section 3A1.4: Sentencing Failure in Cases of Financial Support for Foreign Terrorist Organizations, 28 Law & Ineq.: J. Theory & Prac. 51, 59, 80 (2010) (citing Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 120004, 108 Stat. 1796, 2022 (1994)).
Kevin Johnson, Attorney General Lynch: 'Hate Crimes Are the Original Domestic Terrorism,’ USA Today, https://www.usatoday.com/story/news/nation/2015/06/24/loretta-lynch-baptist-church-birmingham/29238615/ [https://perma.cc/WZ9D-DP7G] (June 24, 2015, 6:23 PM).
Greg Myre, Why the Government Can’t Bring Terrorism Charges in Charlottesville, NPR (Aug. 14, 2017, 4:15 PM), https://www.npr.org/2017/08/14/543462676/why-the-govt-cant-bring-terrorism-charges-in-charlottesville [https://perma.cc/U4YX-CAN4].
Sinnar, supra note 4, at 1344.
See Select Comm. to Study Governmental Operations with Respect to Intel. Activities, Intelligence Activities and the Rights of Americans, S. Rep. No. 94-755, at 139, 167 (1976).
See, e.g., United States v. U.S. Dist. Ct. for E. Dist. of Mich., 407 U.S. 297, 320–21 (1972) (holding that prior judicial approval, pursuant to the Fourth Amendment, is required for government domestic security surveillance of U.S. citizens).
Exec. Order No. 11,905, 41 Fed. Reg. 7707 (Feb. 18, 1976); Exec. Order No. 12,036, 43 Fed. Reg. 3675 (Jan. 24, 1978); Exec. Order No. 12,333, 46 Fed. Reg. 59952 (Dec. 4, 1981).
Emily Berman, The Two Faces of the Foreign Intelligence Surveillance Court, 91 Ind. L.J. 1191, 1194–95 (2016).
Khaled A. Beydoun, Lone Wolf Terrorism: Types, Stripes, and Double Standards, 112 Nw. U. L. Rev. 1213, 1217 (2018) (“[T]errorism is instantly presumed when the lone wolf killer is Muslim, and the prospect of terrorism is typically dismissed when the actor is white (and non-Muslim). . . . More often than not, race and religion are the most salient factors in determining whether law enforcement will conduct a terrorism investigation and prosecution.”).
See Sinnar, supra note 4, at 1335–37.
Christine Hauser, Coast Guard Officer Called a ‘Domestic Terrorist’ Pleads Guilty to Gun and Drug Charges, N.Y. Times (Oct. 3, 2019), https://www.nytimes.com/2019/10/03/us/christopher-hasson-coast-guard-white-supremacist.html [https://perma.cc/98BZ-FHPH].
Dave Philipps, Christopher Hasson, Coast Guard Officer, Plotted Attacks at His Desk, Filings Say, N.Y. Times (Feb. 21, 2019), https://www.nytimes.com/2019/02/21/us/coast-guard-christopher-hasson-terrorist-attack.html [https://perma.cc/BY6L-ASBX].
Zachary Cohen & Jamie Crawford, Senate Removes Phrase ‘White Nationalist’ from Measure Intended to Screen Military Enlistees, CNN, https://www.cnn.com/2019/12/19/politics/us-military-white-nationalist-ndaa/index.html [https://perma.cc/K7LG-RBZX] (Dec. 19, 2019, 5:19 PM).
Jesse J. Norris, Why Dylann Roof Is a Terrorist Under Federal Law, and Why It Matters, 54 Harv. J. on Legis. 259, 260–62 (2017).
Id. at 265–66.
Id. at 280, 284.
See supra Part II.
Khaled A. Beydoun & Justin Hansford, The F.B.I.'s Dangerous Crackdown on 'Black Identity Extremists,’ N.Y. Times (Nov. 15, 2017), https://www.nytimes.com/2017/11/15/opinion/black-identity-extremism-fbi-trump.html [https://perma.cc/V4YN-Y9XY].
Patrick G. Eddington, Constitution Day 2019: The Hidden Domestic Surveillance Crisis, Just Sec. (Sept. 17, 2019), https://www.justsecurity.org/66201/constitution-day-2019-the-hidden-domestic-surveillance-crisis/ [https://perma.cc/6P8U-CPNT].
Alice Speri, Fear of a Black Homeland, Intercept (Mar. 23, 2019, 7:31 AM), https://theintercept.com/2019/03/23/black-identity-extremist-fbi-domestic-terrorism/ [https://perma.cc/AX4S-6GK4].
Matt Zapotosky, Wray Says FBI Has Recorded About 100 Domestic Terrorism Arrests in Fiscal 2019 and Many Investigations Involve White Supremacy, Wash. Post (July 23, 2019, 2:29 PM), https://www.washingtonpost.com/national-security/wray-says-fbi-has-recorded-about-100-domestic-terrorism-arrests-in-fiscal-2019-and-most-investigations-involve-white-supremacy/2019/07/23/600d49a6-aca1-11e9-bc5c-e73b603e7f38_story.html [https://perma.cc/7Y4F-XJWR].
S.C. Res. 1373 (Sept. 28, 2001).
Id.; see U.N. Charter art. 2, ¶ 2.
S.C. Res. 1373, supra note 222, ¶ 1(b)–(d).
Id. ¶ 3(d).
Id. ¶ 6.
U.N. Security Council Counter-Terrorism Committee, Terrorism Financing, https://www.un.org/sc/ctc/focus-areas/financing-of-terrorism/ [https://perma.cc/D7UJ-MGPB] (last visited Feb. 9, 2021); U.N. Security Council Counter-Terrorism Committee, Technical Guide to the Implementation of Security Council Resolution 1373 (2001) and Other Relevant Resolutions (2017), https://www.un.org/sc/ctc/wp-content/uploads/2017/08/CTED-Technical-Guide-2017.pdf [https://perma.cc/W4LX-MPLP].
Elizabeth M. Renieris, Combating Incitement to Terrorism on the Internet: Comparative Approaches in the United States and United Kingdom and the Need for an International Solution, 11 Vand. J. Ent. & Tech. L. 673, 678 (2009).
S.C. Res. 1624 (Sept. 14, 2005); Secretary of State for Foreign and Commonwealth Affairs, The United Kingdom in the United Nations, 2006, Cm. 6892, at 40 (UK), https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/272324/6892.pdf [https://perma.cc/T45G-6K26].
S.C. Res. 1624, supra note 229, ¶ 1(a).
Id. ¶ 5.
U.N. Office of Counter-Terrorism, Foreign Terrorist Fighters, https://www.un.org/counterterrorism/foreign-terrorist-fighters [https://perma.cc/4N73-A2Y3] (last visited Feb. 10, 2021); Implementing Landmark Resolution 2178, BEAM (Counter-Terrorism Task Force & U.N. Counter-Terrorism Ctr.), Fall 2015, at 1, https://www.un.org/counterterrorism/sites/www.un.org.counterterrorism/files/ctitf_beam-no9-web.pdf [https://perma.cc/E7ZX-MWF9].
Implementing Landmark Resolution 2178, supra note 232, at 1.
S.C. Res. 2178, ¶ 4 (Sept. 24, 2014).
Id. ¶ 5.
This statement refers to U.N. counter-terror approaches, not involving direct military intervention against terror groups. Id. ¶¶ 4, 24. See also the U.N. Global Counterterrorism Strategy adopted by the UNGA in 2006, which focused on enhancing existing state to state cooperation, use of international organizations, enhanced participation in counterterror treaties, and domestic implementation of the UNSCR mandates against terror financing, among other proposals. G.A. Res. 60/288, annex, The United Nations Global Counter-Terrorism Strategy’s Plan of Action, at 5–6 (Sept. 20, 2006).
See generally Mutuma Ruteere (Special Rapporteur), Combating Racism, Racial Discrimination, Xenophobia and Related Intolerance and the Comprehensive Implementation of and Follow-up to the Durban Declaration and Programme of Action, U.N. Doc. A/72/287, at 11–12 (2017) [hereinafter Ruteere Report].
Id. at 4.
Id. at 5.
Id. at 6.
Id. at 6–7 (citing a study later published as Erin M. Kearns et al., Why Do Some Terrorist Attacks Receive More Media Attention than Others?, 36 Just. Q. 985, 989 (2019)).
Ruteere Report, supra note 238, at 6.
Id. at 6–7.
Id. at 7 (citing UNESCO Report, supra note 185, at 22).
Id. at 8–9.
Id. at 8.
Id. at 10.
Id. at 11.
Id. at 11–12.
Id. at 12.
See generally E. Tendayi Achiume (Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance), Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, U.N. Doc. A/73/312, at 3 (2018).
Id. at 6–8.
Id. at 8–10.
Id. at 9–10.
Ruteere Report, supra note 238, at 10–12.
Michael Edison Hayden, Stephen Miller’s Affinity for White Nationalism Revealed in Leaked Emails, S. Poverty L. Ctr. (Nov. 12, 2019), https://www.splcenter.org/hatewatch/2019/11/12/stephen-millers-affinity-white-nationalism-revealed-leaked-emails [https://perma.cc/5WQ7-3B27].
In emails provided to the Southern Poverty Law Center, White House aide and immigration policy architect Stephen Miller espoused white nationalist ideologies of white genocide, immigrants as criminals, and eugenics. See id.
Ruteere Report, supra note 238, at 5–6.
See generally Nadia Banteka, The Rise of the Extreme Right and the Crime of Terrorism: Ideology, Mobilization, and the Case of Golden Dawn, 29 Duke J. Compar. & Int’l L. 127, 148–49 (2019).
Council Directive 2017/541, 2017 O.J. (L 88) 6.
Id. art. 3.
Id. art. 4.
Id. arts. 5–11.
Id. arts. 15–18.
Id. arts. 14, 17.
Id. art. 2.
See generally Banteka, supra note 270, at 147–56.
Id. at 148–49.
Id. at 149.
Id. at 152–53.
Id. at 154–55.
Id. at 155.
Id. at 157.
Id. at 157–58.
The United States signed the ICCPR with a reservation on article 20 because of First Amendment concerns. 138 Cong. Rec. 8,070–71 (Apr. 2, 1992).
Banteka, supra note 270, at 158.
Clint Watts, America Has a White Nationalist Terrorism Problem., Selected Wisdom (May 12, 2020), https://selectedwisdom.com/blog/america-has-a-white-nationalist-terrorism-problem [https://perma.cc/2DYF-Q37C]; About Clint Watts, All. for Securing Democracy, https://securingdemocracy.gmfus.org/author/clint-watts/ [https://perma.cc/JA5K-3BN5] (last visited Feb. 13, 2021).
Fortunately, awareness that white supremacist terrorists operate as part of a transnational network appears to be increasing. See Dep’t of Homeland Sec., Strategic Framework for Countering Terrorism and Targeted Violence 10 (2019). In the fall of 2019, following the El Paso shootings, the Department of Homeland Security released its strategy for countering terrorism, which stated that “[w]hite supremacist violent extremists have adopted an increasingly transnational outlook in recent years, largely driven by . . . technological forces.” Id.
David Morar & Bruna Martins dos Santos, Online Content Moderation Lessons from Outside the US, Brookings (June 17, 2020), https://www.brookings.edu/blog/techtank/2020/06/17/online-content-moderation-lessons-from-outside-the-u-s/ [https://perma.cc/2N2S-5DRL].
European Commission, Proposal for a Regulation of the European Parliament and of the Council on Preventing the Dissemination of Terrorist Content Online, at 10, 24 COM (2018) 640 final (Dec. 9, 2018).
Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 (Cth) sch 1 sub-div H (Austl.) [hereinafter Sharing of Abhorrent Violent Material Act]; Netzwerkdurchsetzungsgesetz [NetzDG] [Network Enforcement Act], Sept. 7, 2017, BGBl I at 3353 art. 1 § 3 (Ger.) [hereinafter Network Enforcement Act]; Proposal of Law N ° 2062 to Fight Against the Hatred on the Internet ch. II art. 2 (Fr.) [hereinafter Proposal of Law N ° 2062]; Department for Digital, Culture, Media & Sport & The Home Department, Online Harms White Paper, 2019, Cm. 57, at 41–43 (UK) [hereinafter Online Harms White Paper].
See Ministry for Eur. and Foreign Affs., France’s International Digital Strategy, Fr. Diplomacy, https://www.diplomatie.gouv.fr/en/french-foreign-policy/digital-diplomacy/france-s-international-digital-strategy/ [https://perma.cc/FK86-RN9J] (last visited Feb. 13, 2021); Ministry for Eur. and Foreign Affs., Council of Europe - Amélie de Montchalin’s Participation in the Committee of Ministers (Helsinki, 16-17 May 2019), Fr. Diplomacy, https://www.diplomatie.gouv.fr/en/french-foreign-policy/human-rights/events/article/council-of-europe-amelie-de-montchalin-s-participation-in-the-committee-of [https://perma.cc/82YG-5SAZ] (last visited Feb. 3, 2021).
European Commission, supra note 294, at 15, 23; Council Directive 2017/541, art. 3, 2017 O.J. (L 88) 1, 2 (EU).
Sharing of Abhorrent Violent Material Act, sch 1 sub-div H; Network Enforcement Act at 3352–53, art. 1, §§ 2–3.
Proposal of Law N ° 2062, supra note 295, at ch. I, art. 1; Online Harms White Paper, supra note 295, at 12–14, 42–43, 64; Cai & Landon, supra note 1; The Rise and Rise of Fake News, BBC News (Nov. 6, 2016), https://www.bbc.com/news/blogs-trending-37846860 [https://perma.cc/KQW6-3AHR].
Sharing of Abhorrent Violent Material Act, sch 1 sub-div H.
Proposal of Law N ° 2062, supra note 295, at ch. III, art. 4 ; Online Harms White Paper, supra note 295, at 7–8, 54.
Jamie Tarabay, As New Zealand Fights Online Hate, the Internet’s Darkest Corners Resist, N.Y. Times (July 5, 2019), https://www.nytimes.com/2019/07/05/world/asia/new-zealand-internet.html [https://perma.cc/QH8Q-9ZAT]; Ministry of Foreign Affs. & Trade, The Christchurch Call to Action to Eliminate Terrorist and Violent Extremist Content Online, Christchurch Call 1–2 (2019) (N.Z.), https://www.christchurchcall.com/christchurch-call.pdf [https://perma.cc/87JR-TXSD] [hereinafter The Christchurch Call to Action].
The Christchurch Call to Action, supra note 303, at 2.
Id. at 1–3.
Id. at 2–3.
Tony Romm & Drew Harwell, White House Declines to Back Christchurch Call to Stamp Out Online Extremism Amid Free Speech Concerns, Wash. Post (May 15, 2019, 5:44 PM), https://www.washingtonpost.com/technology/2019/05/15/white-house-will-not-sign-christchurch-pact-stamp-out-online-extremism-amid-free-speech-concerns/ [https://perma.cc/B2HA-J2PV].
U.N. Dep’t for G.A. & Conf. Mgmt., Regional Groups of Member States, https://www.un.org/dgacm/en/content/regional-groups [https://perma.cc/649A-6W5Z] (last visited Mar. 14, 2021).
Letter from Max Rose, Rep., U.S. Cong., to Mike Pompeo, Sec’y of State, U.S. Dep’t of State (Oct. 16, 2019) (on file with the Houston Law Review); Emily Birnbaum, Democratic Lawmakers Press for White Supremacist Groups to Be Labeled Foreign Terrorist Organizations, Hill, https://thehill.com/policy/national-security/466064-dozens-of-dem-lawmakers-press-state-department-to-designate-white [https://perma.cc/WA3N-K97Q] (Oct. 16, 2019, 11:12 AM).
Letter from Max Rose, Rep., U.S. Cong., to Mike Pompeo, Sec’y of State, U.S. Dep’t of State, supra note 311.
IntelBrief: The Transnational Nature of Violent White Supremacy Extremism, Soufan Ctr. (Sept. 26, 2019), https://thesoufancenter.org/intelbrief-the-transnational-nature-of-violent-white-supremacy-extremism/ [https://perma.cc/2Q9U-R9T6].
See P. Scott Rufener, Prosecuting the Material Support of Terrorism: Federal Courts, Military Commissions, or Both?, 5 U. Mass. L. Rev. 151, 155–56, 158 (2010).
Anna Meier, The U.S. Labeled a White Supremacist Group as ‘Terrorists’ for the First Time. It’s Less Significant than You Think., Wash. Post (Apr. 30, 2020, 5:00 AM) https://www.washingtonpost.com/politics/2020/04/30/us-labeled-white-supremacist-group-terrorists-first-time-its-less-significant-than-you-think/ [https://perma.cc/Q85Y-NBAB].
Phil Stewart, Biden Administration Pressed by Lawmaker to Label White Supremacists Overseas as Terrorists, Reuters, Apr. 9, 2021, https://www.reuters.com/article/us-usa-extremism-slotkin/biden-administration-pressed-by-lawmaker-to-label-white-supremacists-overseas-as-terrorists-idUSKBN2BW1KQ [https://perma.cc/P5SB-UVBY].
See supra Part VI (detailing the U.N. Security Council Resolutions and the creation of the Committee).
Domestic Terrorism Prevention Act of 2019, S. 894, 116th Cong. §§ 1, 4–5, 7 (2019).
Domestic Terrorism Panel at Texas Tribune Festival, C-Span (Sept. 27, 2019), https://www.c-span.org/video/?464645-5/domestic-terrorism-panel-texas-tribune-festival# [https://perma.cc/9YK4-AHGK].
See Confronting the Threat of Domestic Terrorism Act, H.R. 4192, 116th Cong. §§ 1–2 (2019).