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.

In June 2012, Chris Stevens, a top-rated Army sniper, received a Facebook message from an acquaintance he hadn’t seen in years. The message was from a man Stevens had known as a teenager. Before Stevens joined the Army, he’d had a turbulent childhood, living in group homes in California and getting in trouble for drug use. As a result of failing drug tests as a teenager, Stevens had been ordered to attend Alcoholics Anonymous and Narcotics Anonymous meetings. That was where he met Angelo Sultana, the tall, imposing man who had contacted him. Sultana “was this figure there,” Stevens remembered. “He was loud, boisterous, and very aggressive. When he entered a room, he would talk and people would quiet. He was that sort of person.” By 2012, Sultana was a member of the Northern California State Militia. On Facebook, he asked Stevens to come to California and train him and his friends in sniper techniques. A private right-wing group, the Northern California State Militia conducts military-style tactical training and disaster-response exercises and organizes social events for members. Stevens doesn’t know exactly how Sultana knew about his sniper training; he may have posted something on Facebook about his sniper competitions, he said, or perhaps Sultana had read a story that the U.S. Army had published about him. Stevens found Sultana’s invitation concerning. Sultana had been convicted in 1986 of voluntary manslaughter in the beating death a 22-year-old musician. Stevens called the FBI and left a message. An FBI agent who specialized in domestic terrorism and was assigned to the Joint Terrorism Task Force responded, asking Stevens to accept Sultana’s invitation and report back to the FBI about what Sultana said. That is, to become an FBI informant.

Photo: Staff Sgt. Matthew Coffee/U.S. Army

At the FBI’s behest, Stevens met with Sultana over several months, and in Sultana’s living room, Stevens gave him and his friends tips for using a sniper rifle. Stevens reported back to the FBI on the type of sniper training Sultana requested and the kinds of guns he had. In April 2014, the FBI arrested Sultana on charges of being a felon in possession of a firearm. Posts Sultana wrote on a militia website suggested that he was preparing for a coming war. “I come with fear, my children do not deserve what I believe is coming. If it’s to be a fight, I won’t start it, I’ll do my damnest (sic) to finish it,” he wrote, according to court records. Sultana, who did not respond to requests to comment for this story, ultimately pleaded guilty to the firearms charge and served five years of probation. What came next was increasingly ominous for Stevens, whose firsthand view of how federal law enforcement can investigate Americans based solely on ideology left him disillusioned with the government he’d served for nearly five years in the Army. After Sultana’s arrest, the FBI asked Stevens to keep spying on the militia without apparent probable cause. For the next four years, Stevens attended Northern California State Militia meetings and trainings, all of which were advertised publicly on Facebook, including meet-and-greets and family walks. Stevens tracked attendees and locations on his own initiative using an online mapping program whose data he shared with The Intercept; he then used that data to write reports for the FBI.

“I was just a human recording machine paid by the government to go into people’s lives and befriend them and find out what they were thinking.”

The FBI refused to comment specifically about Stevens’s work for the bureau or officially claim him as having been one of its more than 15,000 informants. That’s the bureau’s longstanding policy: to neither confirm nor deny an informant. Stevens’s story is supported by email exchanges with FBI agents and copies of intelligence reports he wrote for the FBI. “We are grateful for everything you have done for our organization, the military, and this country,” FBI agent Matthew Stanger, one of Stevens’s handlers, wrote in a June 2018 email. In addition, a retired U.S. Army officer confirmed in an interview with The Intercept that Stevens had described to him his work with the FBI as it was happening. Amid growing concerns about white supremacist and far-right violence, current and former Justice Department and FBI officials have often claimed that federal law enforcement does not have adequate authority to investigate right-wing domestic terrorism threats. But Stevens’s infiltration of the militia shows the wide leeway the FBI has to use informants when investigating citizens based on their ideological beliefs. The more time Stevens spent with the militia members, the more he began to question why he was there at all. Some of these people seemed to have mental illnesses and a few of them were racists, he told the FBI, but no one was committing crimes in his presence. “Why are you having me do this instead of a federal agent who would be clearly more qualified and maybe more appropriately suited for this position?” Stevens remembered asking Stanger. Stanger’s response was quick, Stevens recalled: “With you, we avoid a lot of red tape.” “To me, red tape, as I’ve learned in the government, is set up for a reason,” Stevens told The Intercept. “Why aren’t they following that red tape? Did he mean just internal regulations? Or did he mean I could do the work without a warrant?” The FBI declined to comment about the statement Stevens recalled hearing from Stanger. “I was just a human recording machine paid by the government to go into people’s lives and befriend them and find out what they were thinking,” Stevens said. Since the Walmart shooting in El Paso, Texas, on August 3, in which a white supremacist killed 22 and injured 24, calls for new domestic terrorism laws have grown louder. Facing public pressure to respond to the apparent rise of white supremacist violence, the FBI has touted a rash of arrests of violent right-wing extremists who allegedly were plotting attacks. Rep. Adam Schiff, a California Democrat, has proposed a bill that would expand domestic terrorism laws, and three Texas congressional representatives — Republicans Michael McCaul and Randy Weber and Democrat Henry Cuellar — have put forth a similar bipartisan effort.

The FBI has not offered an official response on whether the bureau needs new laws to combat domestic terrorists, but Christopher Wray, the FBI director, said during an April event at the Council on Foreign Relations that he was open to accepting expanded anti-terrorism powers. “We always like having more tools,” Wray said. “That makes us more versatile and more effective. So I would never be one to turn down the offer of new weapons in the fight.” But, as Stevens’s informant work demonstrates, investigations of right-wing extremists depend not on new laws, but on internal decisions at the FBI on how to allocate resources and where to target powers that allow for broad surveillance and investigation of potential public safety threats. “I think the bureau looked at me as this element that didn’t cost very much money, but was gathering intelligence in a fashion that the military would on an enemy force,” Stevens said. While Stevens was still investigating Sultana, he was honorably discharged from the U.S. Army due to an unrelated back injury. He moved from the Washington, D.C., area to Phoenix to attend Arizona State University, where, in July 2014, he received another call from the FBI. Stanger asked if Stevens would come back to California to help investigate the militia with which Sultana allegedly associated. Stevens was hesitant, but Stanger appealed to his patriotism. The message: Help protect your country. For the next four years, Stevens traveled back and forth from Arizona to California to attend Northern California State Militia meetings and trainings. During his approximately six years of work as an informant, Stevens said the FBI paid him about $30,000, much of it to reimburse his travel expenses. He attended about 20 militia meetings and trainings throughout California. “I was just there to maybe, if they started speaking about their path to violence, that I could just follow them down that path,” Stevens said. “So after doing that time and time again, there was just nothing actionable, and I would think, Why after a year or so of me doing that didn’t they stop it? It seemed to increase as time went forward, and they just weren’t getting any actionable intelligence.”

Stevens’s infiltration of militia groups appears to contradict the FBI’s persistent claims that federal law enforcement does not investigate Americans based on ideology alone. Wray, the FBI director, emphasized this in a July 23 testimony before the Senate Judiciary Committee. “Our focus is on the violence. We, the FBI, do not investigate ideology, no matter how repugnant,” Wray told the senators. “We investigate violence. And any extremist ideology, when it turns to violence, we’re all over it.” Of course, since 9/11, the FBI has regularly investigated ideology and found adequate, if controversial, authorities to do so, with a particularly large loophole available in its vast roster of informants. The FBI’s deployment of informants to investigate Muslims, based solely on their religious affiliation, has been documented nationwide. The American Civil Liberties Union has been battling the FBI in court since 2011 over a case involving FBI informant Craig Monteilh, who spied on Muslim worshippers throughout Southern California. The Justice Department was so eager to quash the case after it was filed that then-Attorney General Eric Holder asserted the “state secrets” privilege. In that case, as in the militia investigations Stevens worked on, the FBI did not appear to have reason to suspect any of the surveillance targets were committing crimes. As The Intercept reported in the 2017 series “The FBI’s Secret Rules,” which was based on leaked policy documents, FBI agents must obtain supervisory approval to enter a group or gathering using an undercover agent, and to obtain that approval, the FBI must have a “predicate,” or a factual basis to suspect criminal activity. But neither supervisory approval nor a predicate is required if the work is done by an informant, creating a loophole that allows the FBI to investigate Americans for virtually any reason.

Neither supervisory approval nor a predicate is required if the work is done by an informant, creating a loophole that allows the FBI to investigate Americans for virtually any reason.

In addition to the informant loophole, the FBI may authorize so-called assessments, which allow FBI agents to open an investigation of anyone without probable cause for national security purposes. Although the law does not dictate a time constraint for assessments, FBI policy limits these intrusive investigations to 72 hours unless probable cause can be established during the assessment. When he was working as an FBI informant, Stevens wasn’t aware of the informant loophole, but he was nonetheless baffled at the time by the fact that the FBI, with all its highly trained agents around the country, kept bringing him to California to spy on militia events. So far, aside from a series of high-profile arrests in the days immediately after the El Paso shooting, there’s little to suggest that the FBI is placing threats from right-wing and other domestic extremists on the same level as threats from extremists inspired by Al Qaeda, the Islamic State, and other international ideologies. In his July testimony before the Senate Judiciary Committee, Wray said that “jihadist-inspired violence” remains the greatest terrorist threat in the United States — even though he acknowledged that in the first three quarters of this fiscal year, arrests of domestic terrorists, most of whom were white supremacists, roughly equaled the number of international terrorism-related arrests. Getting straight answers from the FBI on the number of domestic terrorism cases it is investigating at any given time, and how that corresponds with the number of domestic terrorism arrests the bureau has made, can be a baffling task. In August, ProPublica requested records to support an FBI claim that agents had arrested 90 domestic terrorists in the previous nine months. The FBI told ProPublica that the number came from a compilation of press releases, but then refused to provide the releases. Available press releases about domestic terrorism arrests during that period of time came nowhere near the 90 the FBI claimed, according to ProPublica’s review of online records.

Of the bureau’s 5,000 currently open terrorism investigations, just 850 are related to domestic terrorism.

During a testimony in May before the House Homeland Security Committee, FBI Assistant Director Mike McGarrity admitted that the bureau devotes considerably fewer resources to domestic terrorism than international terrorism. Two of every 10 counterterrorism agents are assigned to investigating domestic threats, McGarrity testified. In a prepared statement, the FBI’s press office told The Intercept that of the bureau’s 5,000 currently open terrorism investigations, just 850 are related to domestic terrorism. Adding to the overall perplexity in this area is that the FBI has reconfigured its domestic terrorist threat categories in a way that appears to deemphasize white supremacist violence. For more than a decade, the FBI used 11 categories to describe domestic terrorist threats, with white supremacists being one of them. The FBI recently reduced those categories to four, with white supremacists folded into a new category titled “racially motivated violent extremism.” The new category includes so-called black identity extremists — a term the FBI coined, and has since claimed to have abandoned, for a supposed ideology among some black extremists that violence against law enforcement officers is justified. But this new category does not appear to be a broad one that includes multiple types of “racially motivated violent extremism.” An FBI document from last year obtained by The Young Turks includes language that suggests this new category includes only white supremacists and so-called black identity extremists.

When Sen. Cory Booker, a New Jersey Democrat, pressed the FBI director in his July Senate testimony about what effect folding white supremacists into the new category would have on the FBI’s investigative priorities, Wray avoided the question by using the official line that the FBI, as a matter of policy, investigates violence, not ideology.

Michael German, a former FBI undercover agent who investigated white supremacists and is now a fellow at the Brennan Center for Justice, has criticized what he views as the FBI’s recent lackluster efforts to investigate white supremacists while simultaneously claiming to need new powers to do the job. “The FBI and federal prosecutors already have all the authority they need to address white supremacist violence proactively when they are feeling the pressure to act,” German said, pointing to the string of high-profile arrests after the El Paso shooting. “When they properly prioritize cases involving deadly violence, rather than chasing environmentalists or other protest groups engaging in civil disobedience, they can be effective,” he said. “This public pressure is essential, as current and former Justice Department officials seem more interested in using these recent tragedies to claim greater counterterrorism powers than in changing the longstanding Justice Department policies that de-prioritize the investigation and prosecution of white supremacist violence.”

Photo: Courtesy of Chris Stevens