Who the Justice Department decides to prosecute as a domestic terrorist has little to do with the harm they’ve inflicted or the threat they pose to human life.

G lendon Scott Crawford was a mechanic at General Electric in Schenectady, New York. A tall, slender, middle-aged man with rectangular eyeglasses, he was married with three children. By appearances, he was an unremarkable middle-class American. But beneath Crawford’s vanilla exterior lurked a white supremacist angry about President Barack Obama’s election and contemptuous of upstate New York’s sizable Muslim community. And he had ambitious plans to transform his hatred into violence. He wanted to build a “death ray,” a portable, remote-controlled radiological weapon made from medical equipment and off-the-shelf electronics. He’d load the weapon into a van with tinted windows, drive it to a nearby mosque, scurry away to a safe distance, and switch it on remotely using a smartphone. Anyone in its path would be radiated and left to die a slow, mysterious death. He even had a pithy nickname for his weapon: “Hiroshima on a light switch.” Crawford’s killing machine was never built. He was convicted at trial in August 2015 of attempting to use a radiological dispersal device and a weapon of mass destruction. He is serving 30 years in prison. His case is remarkable not so much for its absurdity — federal agents admitted that his imagined weapon was likely impossible to make — but for how prosecutors handled it. Crawford’s co-defendant, an engineer named Eric J. Feight who had agreed to build the weapon’s remote control, pleaded guilty to providing material support to terrorism — the first and only time federal prosecutors have used the material support law against a domestic extremist since 9/11, according to a review of federal prosecutions by The Intercept.

Eric J. Feight arrives for his sentencing at the James T. Foley Federal Courthouse on Dec. 16, 2015, in Albany, N.Y. Photo: Skip Dickstein/The Albany Times Union via AP

The material support law is prosecutors’ tool of choice for hauling international terrorists into federal court — more than 400 international terrorism defendants have faced material support charges since 9/11. But the Justice Department has been reluctant to use this expansive and powerful law, which allows defendants to be prosecuted for providing minimal, and at times, inconsequential, support to a violent plot, against domestic terrorists. The rarity of such charges has helped drive a false narrative that domestic terrorism is not punishable under existing anti-terrorism laws. “Why is there no criminal statute for domestic terrorism?” CBS News asked in October 2017. “Americans Are Surprised Domestic Terrorism Isn’t A Federal Crime,” HuffPost declared last April.

Graphic: Moiz Syed/The Intercept

In fact, the government has ample room to go after domestic terrorism under existing laws. The material support law has two parts. The first can be applied to anyone who commits or assists with a terrorist attack, including one rooted in a domestic ideology, so long as the crime involves one of about 50 proscribed offenses, including bombing government buildings, murdering government employees, using weapons of mass destruction, and hostage taking. The second and more controversial allows the Justice Department to prosecute anyone supporting or working with a State Department-designated foreign terrorist organization, however minor their role in an attack or plot, including even unwitting targets of FBI undercover stings who never were in contact with actual terrorists. Civil libertarians have for two decades criticized the material support law, but primarily for the abuses possible in the more expansive provision for international terrorists. The more limited provision for domestic terrorism is harder for prosecutors to abuse. Although the part of the material support law that can be used against domestic extremists is limited in some important ways — mass shootings not involving the death of government employees are notably absent from the list of offenses eligible for material support charges — Feight’s conviction in the “death ray” plot shows that domestic extremists can in many cases be prosecuted using the same aggressive laws that federal prosecutors wield against international terrorists. But the Justice Department has been reluctant to use that authority against white supremacists and followers of other domestic ideologies. This double standard has little to do with existing laws. Instead, it is a result of decisions within the Justice Department, which since 9/11 has prioritized international terrorism prosecutions at the expense of domestic ones. “After 9/11, the FBI’s and the Justice Department’s resources were directed to international terrorism. The prosecutions against domestic terrorists suffered,” said Henry E. Hockeimer Jr., a former federal prosecutor who served on the FBI’s Domestic Terrorism Task Force in the 1990s. “I follow the domestic terrorism cases, and I sometimes wonder why prosecutors aren’t going after more significant statutes with these guys, using the anti-terrorism laws. On one hand, I suspect the average person thinks of terrorism in the international sense, and to some degree, the Justice Department has come to think of terrorism in that way as well.”

Photo: Gary Tramontina/AP

A Domestic Anti-Terrorism Law Among the first known instances of the material support law being used against domestic extremists came in 1996, when federal prosecutors charged seven men with assembling explosives and plotting to blow up an FBI building. Prosecutors filed material support charges against two of the seven men, Floyd Raymond Looker and James R. Rogers. Looker, the leader of a group known as the West Virginia Mountaineer Militia, and Rogers, a lieutenant in a local fire department who provided blueprints of the FBI building, pleaded guilty. Five years later, in February 2001, federal prosecutors brought material support charges against Connor Cash, an environmental activist accused of being a leader of the Earth Liberation Front, a radical environmental group that had claimed responsibility for arsons and vandalism throughout the United States. The Justice Department alleged that Cash had assisted in the arson of five homes under construction on Long Island, as well as an unsuccessful plot to burn down a duck farm and release the animals. A jury acquitted Cash of all counts in May 2004.

“I suspect the average person thinks of terrorism in the international sense, and to some degree, the Justice Department has come to think of terrorism in that way as well.”

After the 9/11 attacks, when federal prosecutors began to turn to the material support law as the statute of choice in prosecuting international terrorists, the Justice Department created the National Security Division, which absorbed the counterterrorism and counterespionage sections and created a powerful bureaucratic node responsible for national security prosecutions. Under a policy created at the time, and still in effect today, all terrorism-related charges — including material support and the use of weapons of mass destruction — must be approved by the National Security Division. After the policy took effect, the Justice Department’s tentative experiments with using the material support law against domestic terrorists hit a wall. In the years immediately following the 9/11 attacks, the Justice Department and the FBI reoriented to focus significant resources on international terrorism threats, with the prevention of another terrorist attack from Al Qaeda or other groups as the top priority for both agencies. White supremacists, right-wing extremists, and other domestic terrorists were not a pressing concern. “If you took yourself back to 2006, when the National Security Division was first started, the country was still in the throes of responses to 9/11,” said Mary B. McCord, the Justice Department’s acting assistant attorney general for national security from 2016 to 2017 and a principal deputy assistant attorney general for its National Security Division from 2014 to 2016. McCord and other former federal prosecutors maintain that the Justice Department has always taken domestic terrorism seriously. But in the years since 9/11, the difference between how domestic and international terrorists are prosecuted and punished has been striking.

William Keebler appears in camouflage in Vernon, Utah, on Nov. 30, 2011. Photo: Al Hartmann/The Salt Lake Tribune via AP

The case of William “Bill” Keebler is an example. He came to the FBI’s attention after spending two weeks in Nevada during the 2014 armed standoff between the Bureau of Land Management and rancher Cliven Bundy and his supporters. Keebler helped organize Bundy’s supporters by posting on social media and YouTube under the handle “Th3Hunt3r.” After returning home to Utah, Keebler started organizing a militia of his own, recruiting like-minded people on Facebook and at local gun shows. “We are now being taken by a rogue government,” he wrote in a May 2014 Facebook post. Keebler called his militia the Patriots Defense Force. FBI informants who joined the group told federal agents that members were preparing for future standoffs with the government, operations to rob drug dealers at the U.S.-Mexico border, and violent attacks targeting Muslims. The FBI then inserted two undercover agents into Keebler’s militia. One agent told Keebler that he had experience with explosives.

Because Keebler had tried to bomb a government building, the material support law could have applied. Instead, he pleaded guilty to the lesser charge federal prosecutors had chosen.

By June 2016, the Patriots Defense Force had eight members, including two FBI undercover agents and a government informant. Members of the militia had talked about killing Muslims, and Keebler and the undercover agents drove to a mosque to consider it as a target. But Keebler was most interested in an attack on the Bureau of Land Management. He and one of the FBI agents concocted a plot to bomb a cabin in Utah used by the bureau. The FBI built the bomb, which was fake, and Keebler planted it in the cabin. The bomb simply fizzled, as designed, and in July 2016, Keebler was charged with attempting to damage federal property with an explosive device. Despite a federal prosecutor describing Keebler as a “would-be terrorist,” the militia leader did not face terrorism-related charges. Because Keebler had tried to bomb a government building, the material support law could have applied and with it, a possible 15-year prison sentence. Instead, Keebler spent two years in prison while his case was pending, and after pleading guilty to the lesser charge federal prosecutors had chosen, he was sentenced to time served and three years of probation. Prosecutors did not ask for a “terrorism enhancement” at sentencing — a request that, if approved by the judge, could have resulted in a more significant sentence. Keebler, now on probation in Utah, declined to comment for this article. By contrast, federal prosecutors charged Nicholas Young, a 36-year-old Muslim police officer in Washington, D.C., with material support when he sent a $245 gift card to a man he believed was with the Islamic State. The gift card recipient was in fact an FBI informant. Young was found guilty at trial and sentenced to 15 years in prison. Last month, an appeals court vacated his convictions on two charges of attempting to obstruct justice, but upheld his conviction for material support. Young will be re-sentenced soon, but his original 15-year term was in line with those of the more than 400 other Muslim terrorism defendants convicted of material support.

Photo: Pablo Martinez Monsivais/AP

Current federal prosecutors, including Thomas E. Brzozowski, the Justice Department’s counsel for domestic terrorism, declined to comment for this article. In an interview with The Intercept, McCord said that in retrospect, she and other prosecutors had underutilized the material support law for prosecuting and punishing domestic terrorists. “I’ve been a cheerleader for the fact that, hey, this is the same stuff — extremism is extremism,” McCord said. “The white supremacist extremism we’re seeing right now, they’ve taken the playbook from the foreign terrorist organizations in terms of who they’re trying to recruit and who can be easily drawn to feel like they’re working for something bigger than themselves. To me, the parallels are very close.” Despite the material support law being used predominantly against Muslim extremists during her tenure at the Justice Department, McCord said religion was never a factor in charging decisions. “I think, frankly, because of 9/11 and Al Qaeda and ISIS and Islamic extremism, we have been overly focused on those threats,” McCord said. “But I would be a happy to call a domestic terrorist a domestic terrorist. I will shout it from the rooftops.” The “Death Ray” Case The only case in which federal prosecutors have brought material support charges against domestic terrorists since 9/11 began with a phone call. Crawford, the New York man who tried to build a “death ray,” needed help financing the construction of his weapon. In July 2012, he called a Ku Klux Klan hotline in North Carolina operated by Chris Barker, an imperial wizard in a KKK group called Loyal White Knights. Crawford reportedly left a message saying that he had explosives that he wanted to detonate in New York or New Jersey. Barker was facing state firearms charges in North Carolina. He and his lawyer took the voicemail to the FBI, offering up Crawford in exchange for leniency on the firearms charges. The FBI then enlisted Barker as an informant and set up an elaborate sting. Barker invited Crawford to come to North Carolina to discuss his plans. In a hotel room, Crawford met with Barker, a heavyset man with a goatee and ears slightly too large for his head, and two FBI undercover agents. One agent was pretending to be a Klansman, while the other was posing as a wealthy, like-minded businessperson looking to finance an attack.

“Now I don’t know how close you guys have been watching, but you might have noticed that for the last 20 years or so, and especially during this administration, all the fashionable ethnic groups really can do no wrong, OK?” Crawford said, according to video from an FBI camera that had been hidden in the hotel room. “You know, we got Black Panthers committing felonies. That don’t matter — Eric Holder’s not going to prosecute his people. Mexicans — illegal Mexicans get to come in and do whatever they want. They rape, maim, and pillage. They turn ’em loose. They got, like, Jessie Jackass and Al Charlatan kicking up the Justice for Trayvon mobs. And it never ends, OK? Hate crimes, OK? This is all — white Christians just need not apply. White Christians need not apply for law-abiding protection or anything like that. And then you’ve got CAIR, OK? The Council on American-Islamic Relations, OK? We can do no right. We’re convicted in the press before we do anything, OK?” Crawford then described his plan to create a “death ray” to target Muslims. He said he already had an accomplice, Feight, whom he called his “software guy”; he just needed money. “This could kill whole cities in a night, silently,” Crawford said of his proposed weapon. “If you had it in the parking lot of, say, your local mosque, or just outside of it, and pointed in the given direction, you would be able to — it would reach from here to the mosque?” an undercover FBI agent asked. “Easily,” Crawford said. “Then what happens? You shut it off, that’s it? No more radiation?” “Then you come and get the truck. You drive it up, you park it, you point it. You’d be totally anonymous. You’d be untraceable. It would be weeks before anyone had any inkling anything was wrong, and they’d probably drop dead in their beds.” “It’s almost too good to be true,” one of the agents said. “I think the potential is considerable,” Crawford added. “Just make sure you’re nowhere near this thing when it goes off, OK? Like curvature-of-the-earth distance, OK?” “But if it’s working from a smartphone, I can call it from —” one of the agents said. “Anywhere,” Crawford answered, finishing the sentence. “You could call it from home.”

The FBI agents agreed to support Crawford’s “death ray,” and in November 2012, they traveled to upstate New York to meet with him and his “software guy.” Feight, who had curly hair and a mustache, had worked as an engineer for more than two decades and was the father of three girls. For their meeting, Crawford came up with code names. He was “Dmitri.” Feight was “Yoda.” The undercover agents were “Robin Hood” and “Daddy Warbucks.” The “death ray” was “the Baby.” They even had a code phrase for killing Muslims: “sterilizing medical waste.” Because Feight was only building the remote control, the FBI undercover agents needed to be sure that he knew the remote was for a weapon. Using the code words, they questioned Feight about what exactly he was building. Feight wasn’t under any illusions. “I started seeing how things, the direction things were going and then certainly after the elections,” Feight told the agents, referring to Obama’s election in 2008. “It’s like, well, OK, you know [what] that old saying is, right? You know, the only thing necessary for evil to triumph is for good men to do nothing.” He added a moment later: “In for a penny, in for a pound.” Crawford and Feight began building their device. On the afternoon of June 18, 2013, in a warehouse the FBI had wired with cameras, one of the undercover agents watched as Crawford worked on the purported “death ray.” Wearing gloves and holding a screwdriver, Crawford leaned against the power supply, which was encased in a large, black metal box. “You’re actually transforming energy from electrical energy to ionizing radiation,” he explained to the agent. Less than a minute later, an FBI SWAT team carrying assault rifles kicked in the door. “FBI! Get down! Get down!” they shouted. Crawford raised his hands in shock. An agent then forced Crawford onto his belly and handcuffed him.