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On August 3, a white supremacist attacked a Walmart in El Paso, Texas, killing at least twenty-two 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. 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 left-wing 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 left-wing 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 US 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 fifty-seven preexisting laws as federal crimes of terrorism. An analysis by the Brennan Center for Justice found that, of these fifty-seven federal crimes of terrorism, “fifty-one 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 these reforms ostensibly meant to move the FBI away from broad “political intelligence” investigations and reorient it toward 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 counterintelligence” 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 (CISPES). Even though CISPES was a domestic group, involved in domestic political activity, and the investigation took place entirely in the United States, 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 ten 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.