Why It’s So Hard to Charge White Nationalists with Terrorism

Want the best from VICE News in your inbox? Sign up here.

A U.S. Army veteran who expressed support for the Islamic State group allegedly planned to build a bomb powerful enough to kill 50 people at a white nationalist rally in California.

An active-duty U.S. Coast Guard lieutenant stockpiled weapons and allegedly compiled a lengthy hit list, as part of an effort to establish “a white homeland.”

Only one of those men will face terrorism charges.

In the U.S., federal counterterrorism laws are built around the danger posed by foreign terrorist groups, like al-Qaeda and ISIS, rather than threats coming from American citizens. After 9/11, the U.S. Patriot Act created a legal definition of “domestic terrorism,” but that particular crime doesn’t exist under the current penal code except in a handful of narrow and specific circumstances.

As far-right terrorism in the U.S. becomes more frequent and more deadly, experts and politicians worry the government lacks the appropriate tools to stop a domestic terror attack before one happens — and prosecute ones that do.

“Violent white supremacists and other far-right extremists are the most significant domestic terrorism threat facing the United States today,” Democratic Sen. Dick Durbin, who reintroduced legislation last month to combat far-right extremism, told VICE News in a statement. “For too long, we have failed to take action to combat the deadly threat in our own backyard.

The government’s blind spot on far-right, domestic terrorism came into sharp focus last week when a judge in Maryland agreed to release self-avowed white nationalist Christopher Hasson, pending the outcome of his trial. Police arrested the 50-year-old Coast Guard lieutenant in February and accused him of intending to “murder innocent civilians on a scale rarely seen in this country.”

Hasson had stockpiled 15 weapons, including AR-15s, and allegedly compiled a hit list of “leftists” and people he considered “traitors,” like high-profile Democrats and journalists.

But prosecutors couldn’t charge Hasson with any crimes more serious than being a drug addict in possession of a gun, owning unregistered gun silencers, and ordering synthetic opioids from Mexico. Although the government argued Hasson “continued to pose a serious danger,” the judge in his case ruled prosecutors hadn’t met the standard required to keep him behind bars.

What’s more, if Hasson had owned all of his guns and gun accessories legally — and hadn’t ordered drugs online — he might not have shown up on the government’s radar at all.

“The FBI's investigative work to discover the illegal gun/drug acquisition was critical in stopping what would have been another domestic terror event,” said Jason Blazakis, professor at the Middlebury Institute of International Studies at Monterey and former director of Counterterrorism Finance and Designations Office at the U.S. State Department. “There is a high level of serendipity here. Clearly, Hasson was not a clever man. We are lucky for it.”

The lack of more-serious charges could also embolden others with similar ideologies, Blazakis added.

On the other hand, Mark Steven Domingo will await his terrorism trial from a jail cell. A judge denied the 26-year-old Afghanistan war veteran bond after an FBI sting revealed he allegedly wanted to bomb a white nationalist rally in California as retribution for the New Zealand mosque attacks that left 50 dead. He also told an undercover agent that he would “swear allegiance to ISIS,” according to charging documents.

His expressed interest swearing allegiance to ISIS allowed prosecutors to hit Domingo with one of the most commonly used terrorism charges on Friday. Domingo was charged with “providing or attempting to provide material support to a foreign terror group.” The statute pertains to anyone suspected of plotting a terror attack in the name of a designated foreign terror group or of having an ideological affiliation with that group.

There’s no explicit domestic terrorism statute, but 51 other laws include language about domestic terrorism, according to the Brennan Center, a nonpartisan public policy institute.

In October 2018, for example, a neo-Nazi broke into a secure compartment of an Amtrak train in Nebraska and hit the emergency brake because he “wanted to save the train from black people.” He was sentenced to 14 years in federal prison on domestic terror charges.

Although the man wasn’t affiliated with any foreign groups, prosecutors charged him under a law that prohibits terror attacks — even ones with domestic origins — against railroad carriers and other transportation systems

Other crimes labeled domestic terrorism include knowingly manufacturing and spreading the smallpox virus, destroying an energy facility, and putting an explosive device on an airplane.

Two weeks after 9/11, the U.S. State Department started maintaining a list of foreign terrorist organizations or “specially designated global terrorists.” The goal is to identify terrorist networks and find ways to disrupt their financial support systems.

During his decade-long career at State, which ended in 2018, Blazakis said the department made a tremendous effort to sanction Islamist groups but paid little attention to other types of threats. At the same time, far-right extremists were becoming more organized, forging international ties, recruiting trans-nationally, and distributing training materials online.

Even as European countries have ramped up efforts to sanction extremist groups in their own countries, the U.S. has stayed singularly focused on threats from violent jihadis, Blazakis noted in a post on LawFare.

In 2016, the U.K. designated National Action, a neo-Nazi group in the country, as a terror group. Researchers found evidence linking National Action with far-right extremist groups in the United States, including Vanguard America and Atomwaffen. James Fields — who killed 32-year-old Heather Heyer during the violent white nationalist rally in 2017 in Charlottesville, Virginia, belonged to Vanguard America.

FBI Director Chris Wray has called far-right extremism a “persistent, pervasive threat” to national security, and a bulletin published in February by the Soufan Center, a research center focused on global security issues, identified far-right extremism as “the most serious terrorist threat facing the U.S.”

The Trump administration, however, has slashed programs dedicated to combating domestic terrorism, and the president has repeatedly dismissed the idea that white nationalism constitutes a serious threat. Last month, the House Judiciary Committee also held a hearing that intended to address the growing threat of far-right extremism. But that devolved into chaos.

And yet, the only groups added to the U.S. State Department’s list of foreign terror organizations in the last decade have been Islamist networks. The Immigration and Nationality Act prohibits the State Department from labeling any group that has a significant presence in the U.S. as a terrorist group.

Changing the criteria to give the State Department the authority to designate domestic extremist groups like Atomwaffen, a violent neo-Nazi group, or Rise Above Movement, a white supremacist street-fighting group, as terrorist organizations could usher in a new set of concerns — namely that the law could be abused to target protest groups often deemed nuisances by law enforcement, like Black Lives Matter or Antifa.

After an Australian white nationalist opened fire on two mosques in New Zealand on March 15, Sen. Durbin and Rep. Rick Schneider, both Democrats, reintroduced the “Domestic Terror Prevention Act,” which failed two years ago.

The legislation — which has been referred to the Senate Judiciary Committee for consideration — proposes the creation of a Domestic Terrorism Executive Committee to repurpose the counterterrorism framework established after 9/11 to combat far-right extremism and publish an annual report on domestic terrorism.

The language, however, stops short of calling for a new domestic terror law.

“While federal law enforcement agencies recognize that white supremacist extremism is on the rise, my legislation would require them to take the concrete steps needed to address it,” Durbin said in a statement to VICE News.

Some experts think that the best way forward would be for Congress to pass legislation that establishes a specific domestic terrorism law.

The new law could combine the FBI’s existing definition of domestic terrorism with the framework for prosecuting foreign terrorist groups, according to Blazakis and Mary B. McCord, a professor at Georgetown University.

That would make killing, maiming, and kidnapping (among other crimes) a federal offense if committed with the goal of achieving one of the following outcomes: “intimidating or coercing a civilian population, influencing the policy of government by intimidation or coercion, or affecting the conduct of government.”

The new law would also give prosecutors the ability to charge someone like Hasson, the white nationalist with an alleged hit list, with the offense of providing or attempting to provide material support to “domestic terrorism,” as defined by the Patriot Act.

But other experts worry creating such a law would be ill-conceived.

“The material support law doesn’t operate on its own,” said Faiza Patel, co-director of the Liberty and National Security Program at the Brennan Center, a nonpartisan public policy institute. “It operates in concert with a system of surveillance and informants. That’s what allows the FBI to discover individuals who might be interested in committing violence, and it’s a framework that has been widely abused.”

Patel sees a temptation to look at the way federal laws treat ISIS versus far-right extremism and want to level the playing field. But she also thinks that’s misguided and points to the broad surveillance of Muslim communities that came after 9/11— as well as cases like Domingo’s, where an undercover FBI sting targets an individual that they suspect is plotting an attack. The FBI has been repeatedly accused of manufacturing terror plots through entrapment.

“Obviously everyone is worried about this wave of violence targeted at minority communities, and we need to have a response that is vigorous,” she said. “One that doesn’t just replicate the mistakes from the war on terror.”

Cover image: This undated file image provided by the U.S. District Court in Maryland shows a photo of firearms and ammunition that was in the motion for detention pending trial in the case against Christopher Hasson. (U.S. District Court via AP, File)