In April 2014, an armed encampment formed at the Nevada cattle ranch of Cliven Bundy as news spread through militia networks about the confrontation between the 67-year-old rancher and the Bureau of Land Management. The BLM began to impound Bundy’s cows after he’d failed to pay grazing fees for approximately 20 years, claiming the federal government had no right to regulate the public land where he brought his livestock. Confronted with this armed encampment, the federal officials backed down, ultimately returning Bundy’s cows. He was not arrested for the confrontation,1 and as of December, he bragged to reporters, he was continuing to graze his cattle, for free, on federal land.2 Most media accounts treated Bundy as just a cantankerous oddball or, as an op-ed in the Los Angeles Times put it, “a scofflaw with screwy ideas about the Constitution.”3

More attention has been paid to the U.S. Far Right in recent years, but the media and federal representatives rarely use the word “terrorism” to describe their actions. When Larry McQuilliams, who followed the racist Phineas Priesthood ideology, shot more than 100 rounds at the Austin, TX, police station, federal courthouse, and Mexican Consulate, Austin police used the label, calling him an “extremist” and “American terrorist,” but media reports shied away from such terms, emphasizing his personal struggles.4 At the recent White House Summit on Countering Violent Extremism, the focus was primarily on the threat of global jihad,5 and the 2014 Congressional Research Service report on countering violent extremists discussed only Muslims (although it claimed the material applied to all forms of extremist thought).6 This February, the Department of Homeland Security (DHS) did release a report on the sovereign citizen movement, one element of the Far Right, but it amounted to barely three pages of substantive text and offered few recommendations for action.7

In the nearly 14 years since 9/11, more people have died in the U.S. from politically-motivated violence perpetrated by right-wing militants than by Muslim militants.8 As in the McQuilliams episode, the majority of these assaults target people who work for the government, particularly law enforcement,9 but perpetrators rarely receive harsh penalties unless they kill or severely injure someone. The disparity between treatment of Muslims and right-wing militants highlights the centrality of political power and vulnerability as factors shaping law enforcement anti-terrorism measures. The “War on Terror” creates tremendous political and social vulnerability for Muslims in the U.S. by associating U.S. Muslims with global jihad.

Right-wing militants, in contrast, benefit from the power of mainstream conservatives. For example, in 2009, the domestic terrorism unit of the DHS released a report10 indicating that right-wing activity posed the most significant terrorism threat in the United States, and that such activity was likely to increase during the Obama administration. Conservative bloggers declared the report was politically motivated and painted all conservative activists as potential terrorists, and conservative politicians reacted negatively as well.11, 12 As a result, the report was taken out of circulation, but the report’s analysis and predictions have since proven accurate.13

The ways in which federal law enforcement agencies describe and classify “terrorism” obscures the extent of violence by, and even local policing of, right-wing and Christian mili tants. To begin with, there is some inconsistency in how different types of incidents are labeled in practice by different federal offices, even within DHS, which complicates internal communication.14 The Department of Justice (DoJ) is the lead agency for domestic law enforcement, and they classify “international terrorism” and “domestic terrorism” separately15 (see diagram). The distinction, however, lies more in motivation or organizational affiliation than in geography; for example, a terrorist incident in the U.S. will be characterized as international if the perpetrator is seen as motivated by Islamist beliefs, and domestic if motivated by militant right-wing beliefs. (It’s also a difference that becomes clear when reading the lists of official “terrorism” cases—a list that does not include, for instance, the murder of abortion provider Dr. George Tiller.)

Figure 1. FBI/DoJ Classifications of Terrorism

“Terrorism,” unmodified, is used to refer to international terrorism, involving people or plans that include a demonstrated or attributed link to an international entity. Cases involving Muslims that clearly originate in the U.S. are classified as “homegrown” international terrorism, even though any links to international networks or entities may exist only in the eyes of law enforcement.

The Congressional Research Service defines “domestic terrorists” as “people who commit crimes within the homeland and draw inspiration from U.S.-based militant ideologies and movements.”16 This somewhat confusing FBI and DoJ distinction between “homegrown” and “domestic” terrorism produces interesting contradictions: in domestic cases involving Christian militants, antisemitism is cast as a U.S.-based ideology, but in “homegrown” cases, it’s evidence of global jihad among Muslims.

The DoJ lists 403 cases of (international) terrorism from September 2001 through March 201017: 11 percent non-Islamist (mostly FARC or Tamil Tigers), 45 percent Islamist, and 44 percent undetermined (mostly cases of fraud or financial misconduct involving someone with an “Arab-sounding” name). The Islamist category includes 30 cases considered to be “homegrown.”

The FBI and DoJ do not provide publicly accessible lists of domestic terrorism cases, which complicates direct comparisons between domestic and homegrown cases. The data that do exist on domestic terrorism, or politically motivated violence, result from examining local, state, and federal law enforcement activity to identify relevant cases. A few nonprofit institutes track domestic political violence and terrorism cases, although their definitions and exact lists vary. For the purposes of this report, I have drawn upon the two most extensive and widely cited.

The Southern Poverty Law Center focuses primarily on right-wing activity, and has the most detailed and comprehensive list.18 The period from September 2001 through December 2010 lists 50 cases, almost double the number of “homegrown” Islamist cases in a similar period, and 21 of the 50 took place in 2009 and 2010, following President Obama’s inauguration. All 50 domestic cases involve elements of the Far Right, from Christian Identity to various militia movements to the KKK and other white supremacist groups. Terrorist acts often involved significant caches of weapons and explosives, with targets ranging from the murder of government representatives to assaults on synagogues or mosques and other Islamic centers.

According to the New America Foundation,19 which tracks cases explicitly classified as terrorism within the U.S., only 41 percent of jihadist plots in the U.S. since 9/11 involved weapons, and in almost one-third of those cases, the weapons were supplied by U.S. government agents. By contrast, 89 percent of domestic terrorism cases involved weapons, and in 92 percent of these cases the arms were acquired without assistance from government agents.

Based on the statistics and analysis of available cases, there are significant differences in the procedures, charges, and penalties in domestic (non-Islamist) and homegrown (usually Islamist) cases. Despite the greater prevalence of incidents and deaths resulting from right-wing violence, U.S. Muslims experience more aggressive surveillance, greater use of informants, more severe charges, and greater use of restrictive confinement once incarcerated.

The differential treatment of right-wing and Muslim cases draws attention to the political contexts surrounding terrorism-related law enforcement, as these disparities only make sense within politically-driven calculations. Mainstream conservative politicians and media personalities protest depictions of right-wing militants as anything more than troubled but patriotic Americans, while Muslim men—particularly young men— are constantly monitored as intrinsic security risks. In the process, Muslims lose Constitutional protections for belief, speech, and association—forced to inhabit an ambiguous territory as “un-American” and presumptively foreign.

Surveillance and Informants

The disparate treatment of the two groups of alleged terrorists begins before charges are ever filed, with how the two are investigated. Covert surveillance is, by definition, difficult to prove unless specific prosecutions or other evidence bring it into public view. A report by the New York University School of Law20 describes systematic surveillance of Muslim communities by the NYPD, FBI, and other law enforcement entities in the U.S. The widespread use of informants in homegrown terrorism cases also indicates an ongoing undercover presence. No evidence exists of similar routine surveillance of communities with significant right-wing activity, and reports and other materials about the Right produced by the FBI, DHS, and Congressional Research Service all emphasize the right to freedom of speech and expression, including the importance of differentiating beliefs from actions. Based on available case summaries, the majority of domestic terrorism prosecutions occur after the perpetrator has taken concrete action or as a consequence of other law enforcement contact, which suggests a low level of ongoing surveillance of right-wing movements.

The New America Foundation data indicate that 46.8 percent of Islamic terrorism cases involve use of an informant but only 27.5 percent of non-Islamic cases do.21 According to a report by Columbia University Law School and Human Rights Watch, 50 percent of federal counterterrorism convictions resulted from informant-based cases, and almost 30 percent were stings.22 (A “sting” refers to a case in which an informant or undercover agent actively developed the case, leading defendants to escalate their activity and often providing explosives or other materials.) The Columbia Law School report found that all but four of the high-profile homegrown terrorism plots of the last 10 years were FBI sting operations. While informants play a role in domestic cases, there is little recent evidence of right-wing cases being built through stings (although there is some history of FBI stings with environmental activists in the early 2000s).

A 2009 case in Newburgh, NY, that became known as the Newburgh Four23, 24 provides an example of an FBI sting operation. Newburgh is a small, formerly industrial city about 60 miles north of New York City, with a substantial African-American population and relatively high poverty rate. In 2011, the city was declared the murder capital of New York state. In the winter of 2009, an FBI informant developed a relationship with an openly antisemitic Muslim man who had a history of drug addiction. The informant offered him $250,000 plus additional luxuries if he would gather a group of Muslims to carry out a terrorist attack.

The man recruited three friends, each of whom had significant financial needs. Each received small amounts of cash during the time the informant guided them in developing a plan to attack Stewart Air National Guard Base and bomb a local synagogue, using explosives and a vehicle provided by the informant. The men were arrested after the informant delivered the men and the explosives to cars provided by the FBI. All four were charged with conspiracy, attempt to use weapons of mass destruction, and plotting to kill U.S. government employees, and were sentenced to 25 years in prison. A judge rejected an appeal based on entrapment, accepting the government’s rationale that the men would have eventually committed terrorism on their own—a theory called “radicalization” that has been used in multiple prosecutions of accused Muslim terrorists.

In contrast, the participation of informants and undercover agents in right-wing cases has been much more limited, and does not involve either initiating a plot or being the only source of weapons or explosive materials. In 2002, Larry Raugust, an anti-government militant well known to law enforcement, gave an explosive device to an undercover agent; he ended up pleading guilty to 15 counts of making bombs, and served just over five years in a federal prison.25 Similarly, in 2005, Gabriel Carafa, a man with ties to the neonazi World Church of the Creator and a racist organization called The Hated, was arrested after he and another man asked an informant to build them a bomb. They were charged with selling 11 guns illegally to police informants and providing 60 pounds of urea for use in building a bomb; Carafa was sentenced to seven years and his accomplice to 10.26 In both of these cases, not only did the defendants acquire their own weapons and explosive materials, but the men had extensive histories of right-wing activism.

The Internet plays an increasingly central role in the development and communication of beliefs, as well as law enforcement monitoring of potentially violent activity. However, the consequences of posting beliefs that signal the potential for violence varies considerably by religion. Adel Daoud was a socially isolated 17-year-old Muslim boy in suburban Chicago who found refuge online. In 2012, he began to post on message boards and write emails relating to violent jihad, at which point the FBI drew him into planning an attack with an undercover agent. In 2013, the agent drove Daoud to a jeep filled with fake explosives, and he was arrested after he tried to trigger the explosives outside a bar they had agreed to target. He was charged with attempting to use a weapon of mass destruction, and the case is still in court.27

Compare that to the 2010 case of 26-year-old Justin Carl Moose, who described himself as the “Christian counterpart to Osama bin Laden” and posted threats of violence against abortion providers along with information about the use of explosives on his Facebook page. The FBI were tipped off, and Moose pled guilty to distributing information on the manufacture and use of explosives. He was sentenced to 30 months in prison and was released early, despite having demonstrated knowledge of explosives and his alignment with a movement that has an extensive track record of murders and destruction of medical facilities.28

Severity of Charges

As the five cases described above suggest, the charges and prison sentences faced by defendants in right-wing terrorism cases are significantly lower than those in homegrown cases. The key difference is usually in the specific charges brought. Many right-wing acts of violence are simply never prosecuted as “terrorism,” which has significant consequences due to terrorism “adjustments” to sentencing guidelines that increase the penalty for any given offense.29 Domestic cases largely involve charges of weapons possession (including explosives and/or assault weapons), murder, or attempted murder; most of these are filed and prosecuted at the state and local level.

While weapons possession may sound like a minor offense, and often results in sentences of less than 10 years, the actual quantity of weapons involved can be considerable. David Burgert, the leader of a militia-style group called Project 7 who was wanted for assaulting police officers, was found with 25,000 rounds of ammunition and multiple pipe bombs; he was sentenced to seven years.30 In a separate case, a series of raids on militia members in rural Pennsylvania netted 16 bombs and at least 73 other weapons, but none of the militia members served more than three years in prison.31 The quantity of armaments involved in many of the right-wing terrorism cases calls for a response of a corresponding order of magnitude, especially in light of the sentences given to Muslims who never independently obtained a weapon of any kind.

Marchers with the Project SALAM Journey for Justice protest the incarceration of Mohammed Hossain and Yassin Aref, Muslim men convicted of providing material support for terrorism as part of an FBI sting. Photo via Flickr, courtesy of Vanessa Lynch, orangeinkeducation.wordpress.com.

Homegrown terrorism cases, on the other hand, are prosecuted using a wider and more severe array of charges. Sixteen of the 30 homegrown cases listed by the DoJ included conspiracy charges, which can carry high sentences even in the absence of a completed criminal act.

Prosecutors may combine both “conspiracy” and “attempt to commit” charges in cases in which no actual violence took place, including sting cases where the only weapons involved were provided by FBI agents or informants. Domestic terrorism cases that include charges of attempt to assault or murder almost always base the charge on the active use of a weapon—usually shooting at a law enforcement officer but sometimes activating an explosive device.

The issue of conspiracy charges throws into stark relief the demonization and excessive surveillance of American Muslims. In 2008, five men were convicted of conspiracy to murder members of the U.S. military, and four of the five were convicted of possession of firearms. Four of the men were sentenced to life and the other to 33 years, even though no actual assault or violence took place. The case of the Fort Dix Five, as it came to be known, was primarily built through the use of an informant who actively guided the youngest of the five men—then just 19 years old—to collect videos depicting jihad-oriented violence, develop a hazy “plot” to attack Fort Dix, and recruit his friends to participate. The evidence at trial included a map of Fort Dix that one of the defendants had used to deliver pizza, and the claim that paintball games and camping trips were “jihadi training.”32However absurd this may sound, this interpretation of both paintball and camping while Muslim has been used in other trials, and notes from the NYPD’s surveillance of the Brooklyn College Islamic Society include references to “militant paintball trips.”33

The 2010 Hutaree militia case provides a very interesting contrast to this treatment of Muslims. In 2008, the FBI planted an informant with the Hutaree militia group in Michigan, and followed their activities for two years before initiating an arrest with charges of seditious conspiracy and attempt to use weapons of mass destruction based on the group’s plan to kill police officers and plant bombs at their funerals. A judge dismissed the conspiracy charges and dropped all charges against six of the nine defendants on the grounds that their hatred of law enforcement was not evidence of a conspiracy.34 Three men in the group pled guilty to weapons possession, and two of them were released on just two years’ supervision.35 While the informant taped conversations with the militia members, he does not appear to have conducted a sting operation. When Muslims express hostility towards the U.S. government or law enforcement, this has been treated as evidence of radicalization and intent to engage in acts of terrorism, but, at least in this case, a U.S. judge heard these same sentiments much differently when uttered by right-wing activists.

The majority of cases of homegrown terrorism analyzed in the report by Columbia, and a significant percentage of international cases, involve charges of material support for terrorism.36 The original statute on material support for terrorism,37 passed in 1994 after the first World Trade Center bombing, criminalized the provision of weapons, physical goods, money, or training to terrorists and terrorist organizations, but included specific free speech protections and exemptions for humanitarian aid.38 Subsequent versions of the law removed the free speech protection, narrowed the humanitarian aid exception, broadened the scope of what counts as “material support,” and increased the penalties for conspiracies and attempts to provide support. The material support statute applies to “designated terrorist organizations,” but the FBI’s list of designated terrorist organizations, available on its website, includes no domestic organizations of any ideological bent. As a result, material support charges have no analog among domestic terrorism cases, despite the existence of longstanding right-wing organizations associated with political violence.39 In blunt terms, if a person gives money to the KKK, they will not be prosecuted for material support to terrorists. Although it might technically be possible to bring such charges, in practice, it simply doesn’t happen.

But the material support statute has become central to the prosecution of Muslims accused of terrorism. One of the more prominent prosecutions on material support concerned the Holy Land Foundation, a large Muslim charity in the U.S. that provided aid to zakat (charitable) committees in the West Bank and Gaza. The zakat committees were not involved in violent activities but supported the social services instituted by Hamas, which was designated a terrorist organization in 1997. This secondhand connection to the social services arm of Hamas resulted in the use of material support charges to close down the Holy Land Foundation and convict the senior administrators on terrorism-related charges in 2009, with sentences from 15 to 65 years.40

The Holy Land Foundation case is not an outlier or an isolated example. In fact, 65 percent of the homegrown cases analyzed in detail by Columbia included charges of conspiracy and/or attempt to provide material support to terrorists, resulting in sentences ranging from five to 30 years in prison. The Columbia analysis of all terrorism prosecutions conducted by the DoJ from 2001 to 2011 found that more than 25 percent involved charges of material support or conspiracy, indicating that these charges are more common among homegrown cases than genuinely international ones.

Beyond individual cases, the surveillance of Muslim communities, the use of informants, and the question of material support create a fear that limits development of community support for those caught in terrorism prosecutions, effectively isolating family members of accused or convicted “terrorists.”

Conditions of Incarceration

The limited data available on domestic cases makes a direct comparison of the conditions of incarceration difficult, although some inferences can be made. The U.S. penal system has developed stringent conditions of confinement and management that can be applied under a variety of circumstances, especially at the federal level. The federal system includes the Administrative Maximum Penitentiary (ADX) Florence supermax prison in Colorado, where almost all prisoners are held in solitary confinement for 23 hours of every day. According to the Bureau of Prisons, in 2013 the ADX was holding 41 prisoners designated as “terrorists,” the majority of whom are of Muslim background. The UN Committee Against Torture has raised the question as to whether the extensive use of solitary confinement in the U.S. constitutes a form of torture.41 (See sidebar: Brutality Made Visible)

While virtually all U.S. prisons have the structural capacity for solitary confinement, the federal system has the additional ability to impose two highly restrictive forms of communication control. Communication Management Units (CMUs) were created in 2006 to isolate certain prisoners from contact with the outside world; all forms of communication with family, friends, and other prisoners are limited, and physical contact with family and friends is completely banned. Muslims make up over two-thirds of prisoners in CMUs, even though they account for only six percent of the total federal prison population.42 Special Administrative Measures (SAMs) also restrict a prisoner’s communication and contact with others in ways that vary from case to case, and have become routine in terrorism cases, including during pre-trial detention.43 Since the vast majority of cases formally designated as “terrorism” in the U.S. are “homegrown,” these extreme forms of control and confinement overwhelmingly affect Muslims. Almost 50 percent of the homegrown cases reviewed by the Columbia Law School report involved significant pre-trial solitary and/or restricted communication, which had a negative effect on the development of a legal defense. These high levels of isolation and control of communication are justified by the portrayal of Muslims living in America as representatives of global terrorist networks.

While there are no comparable reports on the conditions in which right-wing terrorists are held in U.S. prisons, the disproportionate use of pre-trial solitary, SAMs, CMUs, ADX, and other highly restrictive settings with Muslims indicates differential treatment, as does the extent of organized community support for incarcerated right-wing activists.

For prisoners who are not subject to isolation and restrictions on communication, contact with the outside world can be a vital source of affirmation, in addition to mundane assistance like commissary credits or care packages. Organizations on the Right openly provide support for and maintain contact with incarcerated individuals who share their political perspective, even those convicted of murder, such as Scott Roeder44, 45 and Timothy McVeigh.46 The anti-abortion movement, in particular, generally does not sever ties to those who have been incarcerated for violence against abortion providers. This level of organization reflects how much right-wing violence is grounded in social movements, even if individual perpetrators appear to be lone actors.