PERSPECTIVE: Prosecuting domestic terroristsWhite Supremacist Prosecutions Roundup

Published 14 July 2020

Since 9/11, national counterterrorism strategies have focused largely on foreign terrorist groups—like the Islamic State and al-Qaeda—and federal prosecutors have used specifically tailored criminal statutes to prosecute individuals affiliated with these groups. Emma Broches and Julia Solomon-Strauss write that over the past few years, however, the domestic terrorism landscape has shifted as a result of a growing threat from individuals and groups with racially motivated violent extremist ideologies—including white supremacist and anti-government views. This means that law enforcement groups face a different, and potentially more challenging, set of obstacles to successfully counter this threat.

Since 9/11, national counterterrorism strategies have focused largely on foreign terrorist groups—like the Islamic State and al-Qaeda—and federal prosecutors have used specifically tailored criminal statutes to prosecute individuals affiliated with these groups.

Emma Broches and Julia Solomon-Strauss write in Lawfare that over the past few years, however, the domestic terrorism landscape has shifted as a result of a growing threat from individuals and groups with racially motivated violent extremist ideologies—including white supremacist and anti-government views. Now, attacks on U.S. soil by followers of these ideologies outpace terrorism by other types of perpetrators, including individuals inspired by the Islamic State. According to a recent report from the Center for Strategic and International Studies (CSIS), right-wing extremists perpetrated two-thirds of the attacks and plots in the U.S. in 2019 and more than 90 percent of those between 1 January and 8 May 2020 [see “U.S. Facing Growing Terrorism Problem, with White Supremacists the “Most Significant Threat”: Report,” HSNW, 1 July 2020].

Broches and Solomon-Strauss note that the relevant law enforcement and national security agencies have recognized this growing threat. In February 2020, at a hearing before the House Judiciary Committee, for example, FBI Director Christopher Wray stated that the FBI has “elevated to the top-level priority racially motivated violent extremism so it’s on the same footing in terms of our national threat banding as [the Islamic State] and homegrown violent extremism.”

They add:

However, law enforcement groups face a different, and potentially more challenging, set of obstacles to successfully counter this threat. Like some foreign groups, far-right terrorist groups and those who associate with them operate under decentralized models and organize online so that they are harder to identify and isolate. But most importantly, there are no tailored domestic terrorism statutes to prosecute these individuals for the full extent of crimes they have committed—as opposed to the powerful material-support statutes for foreign terrorist groups. And unlike foreign terrorist groups, which can be designated by the federal government, supporting prosecutors and organizing investigations. This means that without a federal statute or a designation process, prosecutors sometimes charge on related grounds, like weapons charges or making threats. In many of those cases, local and federal law enforcement work together to investigate, bring charges and prosecute.

“We wanted to look into how state and federal prosecutors have addressed the ever-growing threat of white supremacist violence,” they write, noting that their article is the first installment of a Lawfare feature which will track prosecutions of white supremacists and far-right individuals or groups. This first installment includes cases from the past six months.