Expanding the Powers of the FBI Is Not the Solution to White Supremacist Violence

The FBI is a racist institution with sweeping powers. Giving it more resources to fight “domestic terrorism” will only make things worse.

Chip Gibbons

(ROBYN BECK/AFP/Getty Images)

On August 3, a white suprema­cist attacked a Wal­mart in El Paso, Texas, killing at least 22 and wound­ing dozens more. Espous­ing racist con­spir­a­cy the­o­ries about a His­pan­ic inva­sion,” the killer’s mur­der­ous ram­page was cold-blood­ed — and appeared to tar­get Lat­inx peo­ple. It’s only the lat­est high-pro­file act of white suprema­cist vio­lence. And it comes at a time when Don­ald Trump and oth­er Repub­li­can politi­cians are main­stream­ing racist rhetoric.

The FBI has a long history of acting as the political police, including against civil rights groups. A new domestic terrorism law will only be used further repress these groups.

Faced with this cli­mate, many well-mean­ing peo­ple are look­ing for a way to counter the very real dan­ger of white suprema­cist vio­lence. Some Wash­ing­ton Post colum­nists, CNN guests, the FBI Agents Asso­ci­a­tion and pres­i­den­tial hope­ful Joe Biden are tout­ing one par­tic­u­lar solu­tion”: to cre­ate a new law coun­ter­ing domes­tic terrorism.”

The argu­ment is sim­ple: Due to a lack of a domes­tic ter­ror­ism statute, the FBI is some­how pow­er­less to stop these acts of vio­lence. Such a law would grant the FBI more sur­veil­lance pow­ers. A new domes­tic ter­ror­ism statute would allow the agency to inves­ti­gate and pros­e­cute far-right violence.

But this approach is mis­guid­ed — and dan­ger­ous. First of all, the FBI is not an ally in the fight against racism. It has, in fact, often thwart­ed racial jus­tice advo­cates and con­tin­ues to be defined by deep-seat­ed insti­tu­tion­al racism. With many activists reject­ing the carcer­al state or coun­tert­er­ror­ism frame­work, and embrac­ing police and prison abo­li­tion, whether a law enforce­ment agency can ever counter white suprema­cy is a sub­ject of debate.

What is extreme­ly clear is that the FBI has extra­or­di­nary tools at its dis­pos­al. It oper­ates under the loos­est guide­lines at any point since the post-Hoover era reforms. These cur­rent guide­lines allow the FBI to inves­ti­gate an indi­vid­ual with­out any fac­tu­al predi­cate that the per­son has com­mit­ted a crime or pos­es a threat to nation­al secu­ri­ty. The FBI is allowed to attend pub­lic meet­ings with­out dis­clos­ing its par­tic­i­pa­tion. The FBI has con­duct­ed coun­tert­er­ror­ism inves­ti­ga­tions into non­vi­o­lent left­wing groups, includ­ing civ­il rights orga­ni­za­tions. In oth­er words, the FBI is hard­ly pow­er­less to inves­ti­gate and sur­veil activ­i­ties it labels domes­tic ter­ror­ism.” The FBI’s his­to­ry of abuse, in fact, rais­es a trou­bling like­li­hood: A domes­tic ter­ror­ism law would almost cer­tain­ly be used to silence left­wing dissent.

Sweep­ing powers

In addi­tion to hav­ing the pow­er to inves­ti­gate domes­tic ter­ror­ism, the FBI also has plen­ty of statutes it can rely on. While it is true that domes­tic ter­ror­ism” is not a stand-alone offense under U.S. law, nei­ther is inter­na­tion­al ter­ror­ism.” It is a crime to pro­vide mate­r­i­al sup­port to a State-Depart­ment-des­ig­nat­ed For­eign Ter­ror­ist Orga­ni­za­tion” — a statute fre­quent­ly invoked by those claim­ing the FBI is pow­er­less to fight domes­tic terrorism.

This, how­ev­er, is not the only ter­ror­ism-relat­ed law. Dozens of laws apply to domes­tic ter­ror­ism, mak­ing the claims about the lack of domes­tic ter­ror­ism laws spe­cious. One statute makes it a crime to pro­vide mate­r­i­al sup­port for the com­mis­sion of fed­er­al crimes of ter­ror­ism.” This statute explic­it­ly lists 57 pre­ex­ist­ing laws as fed­er­al crimes of ter­ror­ism. An analy­sis by the Bren­nan Cen­ter for Jus­tice found that, of these 57 fed­er­al crimes of ter­ror­ism, 51 of them, or 89 per­cent, are applic­a­ble to both inter­na­tion­al and domes­tic ter­ror­ism.” This is on top of mul­ti­ple hate crimes stat­ues and numer­ous oth­er basic crim­i­nal laws, like those against rack­e­teer­ing or con­spir­a­cy, that clear­ly would apply to white suprema­cist violence.

There also exists a high­ly spe­cif­ic domes­tic ter­ror­ism law, which illus­trates how such leg­is­la­tion can be designed specif­i­cal­ly to thwart dis­sent. Con­gress passed the Ani­mal Enter­prise Ter­ror­ism Act, which makes it ille­gal to dam­age or inter­fere with an ani­mal enter­prise caus­ing it to lose prof­its. This law has been used to pros­e­cute ani­mal rights activists who free mink des­tined to be slaugh­tered on com­mer­cial fur farms.

Mak­ing up the rules

In order to under­stand how the FBI con­ducts inves­ti­ga­tions, it’s impor­tant to real­ize that the Bureau plays by its own rules. There is no char­ter from Con­gress defin­ing how much evi­dence is required for the FBI to open an inves­ti­ga­tion. While some of the most intru­sive sur­veil­lance tech­niques, like wire­taps or nation­al secu­ri­ty let­ters, are reg­u­lat­ed by statute, Con­gress has lit­tle else to say about when and why the FBI can use spe­cif­ic inves­ti­ga­to­ry tech­niques. Although a statute autho­rizes the FBI to inves­ti­gate crime, many of its nation­al secu­ri­ty pow­ers instead come from exec­u­tive orders. For the last four decades, the ques­tions of when, why and how the FBI con­ducts inves­ti­ga­tions have been large­ly reg­u­lat­ed by the Attor­ney Gen­er­al. While this move was osten­si­bly intend­ed as a reform, leav­ing such author­i­ty to the Attor­ney Gen­er­al has allowed for a grad­ual expan­sion of FBI powers. 

In the mid-1970s, the pub­lic, the media, Con­gress and even the Comp­trol­ler Gen­er­al of the Unit­ed States, began to scru­ti­nize the FBI’s use of its domes­tic intel­li­gence author­i­ties to sur­veil and even dis­rupt law­ful, polit­i­cal activ­i­ty. As part of an effort to rein in the FBI’s polit­i­cal sur­veil­lance and stave off pub­lic crit­i­cism, in 1976 Attor­ney Gen­er­al Edward H. Levi issued guide­lines to reg­u­late the FBI’s inves­ti­ga­to­ry pow­ers. Levi’s guide­lines have since been suc­ceed­ed by new guide­lines pro­mul­gat­ed by sub­se­quent Attor­neys Gen­er­al. How­ev­er, the Attor­ney Gen­er­al Guide­lines remain the main mech­a­nism for defin­ing and reg­u­lat­ing the scope of the FBI’s authorities.

As part of a these reforms osten­si­bly meant to move the FBI away from broad polit­i­cal intel­li­gence” inves­ti­ga­tions and reori­ent it towards inves­ti­ga­tions of vio­la­tions of the fed­er­al code, the FBI in 1976 moved the respon­si­bil­i­ty for inves­ti­gat­ing domes­tic ter­ror­ism from the FBI’s Intel­li­gence Divi­sion to its Crim­i­nal Inves­ti­ga­tion Divi­sion. Inter­na­tion­al ter­ror­ism, on the oth­er hand, was con­sid­ered to be a for­eign counter intel­li­gence” mat­ter. Until 2008, there exist­ed sep­a­rate guide­lines for gen­er­al crime, rack­e­teer­ing and domes­tic security/​terrorism inves­ti­ga­tions on the one hand, and for­eign coun­ter­in­tel­li­gence inves­ti­ga­tions on the oth­er hand. In oth­er words, domes­tic and inter­na­tion­al ter­ror­ism were to be treat­ed dif­fer­ent­ly. Since the for­eign coun­ter­in­tel­li­gence guide­lines were sup­pos­ed­ly large­ly meant to deal with for­eign spies, sabo­teurs and ter­ror­ists, they were less pro­tec­tive of civ­il lib­er­ties and par­tial­ly classified.

When it comes to spy­ing on dis­sent, the FBI is remark­ably resource­ful and inven­tive — and it has used its pow­ers to vio­late civ­il lib­er­ties in for­eign ter­ror­ism cas­es to crack down domes­ti­cal­ly. Take, for exam­ple, the FBI’s sur­veil­lance of oppo­nents of Ronald Reagan’s Cen­tral Amer­i­can pol­i­cy. In the 1980s, the FBI sur­veilled the Com­mit­tee in Sol­i­dar­i­ty with the Peo­ple of El Salvador’s (CIS­PES). Even though CIS­PES was a domes­tic group, involved in domes­tic polit­i­cal activ­i­ty, and the inves­ti­ga­tion took place entire­ly in the U.S., the FBI argued that CIS­PES might be con­nect­ed to armed groups in El Salvador’s civ­il war. As a result, the FBI clas­si­fied its inves­ti­ga­tion as an inter­na­tion­al ter­ror­ism inves­ti­ga­tion and used the loos­er guide­lines (no con­nec­tion to ter­ror­ism was ever discovered).

Attor­ney Gen­er­al William French Smith under Ronald Rea­gan and Attor­ney Gen­er­al John Ashcroft under George W. Bush both rewrote the guide­lines to make them sig­nif­i­cant­ly less pro­tec­tive of civ­il lib­er­ties. The most dra­mat­ic changes came in 2008, when in the wan­ing months of the Bush Admin­is­tra­tion, Attor­ney Gen­er­al Michael Mukasey cre­at­ed rad­i­cal­ly new guide­lines — which remain in place today. Explic­it­ly argu­ing for the need to elim­i­nate the rem­nants of the old wall’ between for­eign intel­li­gence and domes­tic law enforce­ment,” Mukasey issued a uni­tary set of guide­lines for gen­er­al crime, nation­al secu­ri­ty and for­eign coun­ter­in­tel­li­gence oper­a­tions. Thus, the FBI agents no longer oper­at­ed under dif­fer­ing stan­dards for open­ing and car­ry­ing out domes­tic ter­ror­ism ver­sus inter­na­tion­al ter­ror­ism inves­ti­ga­tions. (The inter­nal struc­ture of the FBI has also been reor­ga­nized since the reforms of the 1970s. Both inter­na­tion­al and domes­tic ter­ror­ism are now han­dled by the Coun­tert­er­ror­ism Divi­sion, which is part of the FBI’s Nation­al Secu­ri­ty Branch.)

The cur­rent Mukasey guide­lines cre­ate two over­ar­ch­ing types of FBI inves­ti­ga­tions of indi­vid­u­als: pred­i­cat­ed inves­ti­ga­tions and assess­ments. While pred­i­cat­ed inves­ti­ga­tions require hav­ing a fac­tu­al rea­son to think the sub­ject has some nexus to crim­i­nal activ­i­ty or a nation­al secu­ri­ty threat, an assess­ment requires no such jus­ti­fi­ca­tion. Thanks to the Mukasey guide­lines, the FBI can inves­ti­gate peo­ple with­out any evi­dence of a crime.

In addi­tion to the cur­rent loose stan­dards for open­ing an inves­ti­ga­tion in gen­er­al, the FBI’s own domes­tic ter­ror­ism inves­ti­ga­tions show how eas­i­ly the agency manip­u­lates the term, in stark con­trast to those who say the FBI lacks enough author­i­ty. Using its domes­tic ter­ror­ism author­i­ties, the FBI has sur­veilled both Occu­py Wall Street and the School of Amer­i­c­as Watch, even though it acknowl­edged both groups were non­vi­o­lent or had peace­ful inten­tions. The FBI rea­soned that a future, hypo­thet­i­cal lone offend­er” or mil­i­tant group” could infil­trate the move­ments to car­ry out unspec­i­fied threats. The FBI’s domes­tic ter­ror­ism inves­ti­ga­tion of School of the Amer­i­c­as Watch car­ried on for 10 years. A 2010 Depart­ment of Jus­tice Office of the Inspec­tor Gen­er­al (OIG) report looked at FBI mon­i­tor­ing of domes­tic advo­ca­cy groups from 2001 to 2006, includ­ing PETA, Green­peace and the Catholic Work­er movement.

One of the ter­ror­ism inves­ti­ga­tions reviewed involved a 2003 inci­dent where an alleged mem­ber of the Catholic Work­er move­ment smashed a glass win­dow and threw red paint at a mil­i­tary recruit­ment sta­tion. An email claim­ing respon­si­bil­i­ty stat­ed the act was car­ried out on behalf of the peo­ple of Iraq who suf­fered under Sad­dam Hus­sein and now suf­fer under the Unit­ed States.” The OIG decid­ed that since the act involved a use of force or vio­lence” (throw­ing red paint and smash­ing win­dow) to achieve a polit­i­cal goal it, was — under FBI pol­i­cy — prop­er to inves­ti­gate it as domes­tic terrorism.

The OIG made a sim­i­lar con­clu­sion about a 2004 act of civ­il dis­obe­di­ence at a mil­i­tary recruit­ment sta­tion, deter­min­ing that pro­test­ers spilling blood on the walls, an Amer­i­can flag and pic­tures con­sti­tut­ed a use of force or vio­lence for polit­i­cal ends.

The FBI is hard­ly ham­strung in inves­ti­gat­ing domes­tic ter­ror­ism. Instead, the FBI has over­ly broad pow­ers that it rou­tine­ly relies on to sur­veil dissent.

Insti­tu­tion­al racism

Dur­ing a 2016 ral­ly orga­nized by the white suprema­cist Tra­di­tion­al­ist Work­er Par­ty, white suprema­cists stabbed counter-pro­test­ers with the civ­il rights group By Any Means Nec­es­sary (Bamn). The FBI respond­ed by open­ing up a domes­tic ter­ror­ism inves­ti­ga­tion—into Bamn. Addi­tion­al­ly, the FBI misiden­ti­fied Tra­di­tion­al­ist Work­er Par­ty as the Ku Klux Klan and con­sid­ered open­ing an inves­ti­ga­tion into Bamn for con­spir­ing to vio­late the rights of the Ku Klux Klan. The FBI’s doc­u­ments describe the Ku Klux Klan as a group that con­sist­ed of mem­bers that some per­ceived to be sup­port­ive of a white suprema­cist agenda.”

That the FBI would respond to an inci­dent of white suprema­cist vio­lence by inves­ti­gat­ing the vic­tims as ter­ror­ists doesn’t mere­ly illus­trate how the FBI doesn’t need any new pow­ers to inves­ti­gate ter­ror­ism. It illus­trates how the FBI uses those pow­ers to police polit­i­cal activism and has a deep-seat­ed prob­lem with insti­tu­tion­al racism.

The Bamn inves­ti­ga­tion is part of a much larg­er pic­ture. The FBI issued an out­ra­geous and base­less intel­li­gence assess­ment in August of 2017 on the threat of Black Iden­ti­ty Extrem­ism.” Accord­ing to this analy­sis, African-Amer­i­can per­cep­tions of racism are like­ly to lead to vio­lence against police offi­cers. By treat­ing oppo­si­tion to racism as a pre­cur­sor to vio­lence, this analy­sis is inher­ent­ly crim­i­nal­iz­ing of Black dis­sent. For­mer FBI Direc­tor James Comey pub­licly tout­ed the Fer­gu­son Effect, an entire­ly debunked the­o­ry argu­ing that protests against police bru­tal­i­ty lead to an uptick of crime. His­tor­i­cal­ly, while the FBI had tasked infor­mants with infil­trat­ing and dis­rupt­ing the Ku Klux Klan, it knew in advance about planned vio­lence against the Free­dom Rid­ers and took no action.

The FBI’s insti­tu­tion­al racism is fur­ther demon­strat­ed by its own dis­tinc­tion between domes­tic and inter­na­tion­al ter­ror­ism. Fed­er­al statutes define domes­tic ter­ror­ism and inter­na­tion­al ter­ror­ism as iden­ti­cal, except for one key dif­fer­ence. Domes­tic ter­ror­ism takes place in the US, inter­na­tion­al ter­ror­ism does not. The FBI, how­ev­er, ignores these statu­to­ry def­i­n­i­tions. Instead, the FBI clas­si­fies as inter­na­tion­al ter­ror­ism any acts inspired by for­eign ide­olo­gies.” The FBI con­sid­ers Jihadist ide­ol­o­gy to be a for­eign ide­ol­o­gy. There­fore, near­ly any ter­ror­ist act in which the alleged per­pe­tra­tor is Mus­lim is clas­si­fied as inter­na­tion­al ter­ror­ism. This is true even if the alleged per­pe­tra­tor is a U.S. cit­i­zen, has no con­tacts out­side the coun­try, and car­ries out the alleged act in the U.S.

Hatem Abu­dayyeh is the exec­u­tive direc­tor of the Arab Amer­i­can Action Net­work, a social jus­tice orga­ni­za­tion based in Chica­go. He tells In These Times, If more fund­ing goes to the feds, that expan­sion of the state is going to go after us. It’s going to come down on our com­mu­ni­ties — Arab, Mus­lim, Lat­inx, Black, Native — all the social jus­tice orga­niz­ers around the coun­try who come under attack by law enforce­ment because we’re resist­ing Trump’s poli­cies and try­ing to build a bet­ter world.”

Abu­dayyeh has rea­son to be con­cerned. Don­ald Trump has tweet­ed that Antifa should be labeled a ter­ror­ist orga­ni­za­tion, and Ted Cruz has spon­sored a non­bind­ing res­o­lu­tion urg­ing that Antifa be declared a domes­tic ter­ror­ism orga­ni­za­tion. Antifa, which is short for Anti-Fas­cism, is an ide­ol­o­gy, not the name of an orga­ni­za­tion. Fur­ther, tech­ni­cal­ly speak­ing, no mech­a­nism exists to clas­si­fy domes­tic groups as ter­ror­ist orga­ni­za­tions. The Oba­ma Admin­is­tra­tion cit­ed this when respond­ing to a White​House​.Org peti­tion urg­ing it to clas­si­fy Black Lives Mat­ter as a ter­ror­ist orga­ni­za­tion. While this may not be a statu­to­ry des­ig­na­tion, politi­cians and law enforce­ment con­flat­ing polit­i­cal move­ments with ter­ror­ism is far from harm­less. It demo­nizes these move­ments, green­lights repres­sion, and chills peo­ple from engag­ing in pro­tect­ed polit­i­cal activ­i­ty for fear of being asso­ci­at­ed with ter­ror­ism. In the past, when the FBI declared ani­mal rights and eco-ter­ror­ists the num­ber one domes­tic ter­ror­ist threat, this con­tributed to a cli­mate of repres­sion, sur­veil­lance and aggres­sive prosecution.

White suprema­cist vio­lence is real. It threat­ens some of the most vul­ner­a­ble com­mu­ni­ties amongst us. But expand­ing the pow­ers of the FBI or cre­at­ing a new domes­tic ter­ror­ism law is not a solu­tion. Con­trary to the hand­wring­ing of cable news guests, reviews of exist­ing stat­ues or the FBI’s own domes­tic ter­ror­ism inves­ti­ga­tions show the claim that the FBI is lack­ing in pow­ers is patent­ly false. New laws aren’t only unnec­es­sary, they would be active­ly harm­ful. The FBI has a long his­to­ry of act­ing as the polit­i­cal police, includ­ing against civ­il rights groups. A new domes­tic ter­ror­ism law will only be used fur­ther repress these groups.

In the words of Fatema Ahmad, deputy direc­tor of the Mus­lim Jus­tice League, a civ­il rights orga­ni­za­tion, We need to get seri­ous about address­ing vio­lence by start­ing at the root caus­es, like white suprema­cy, rather than attempt­ing to pre­dict indi­vid­ual instances or expand­ing the pow­er of insti­tu­tions that have long upheld white supremacy.”

Chip Gib­bons is a jour­nal­ist whose work has been fea­tured in Jacobin and the Nation. He is also the pol­i­cy and leg­isla­tive coun­sel for Defend­ing Rights and Dis­sent, but the views expressed here are his own. Fol­low him on Twit­ter @ChipGibbons89.
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