Ku Klux Klan memberes protest the planned removal of a statue of Confederate Gen. Robert E. Lee on July 8 in Charlottesville, Va. | Chet Strange/Getty Images Domestic hate groups elude feds American white supremacists enjoy legal protections that blunt sweeping powers used to prosecute groups like ISIS and Al Qaeda.

When an alleged white supremacist rammed a car into a crowd of people Saturday in Charlottesville, Virginia, Attorney General Jeff Sessions and members of Congress from both parties were quick to call it an act of terrorism.

But U.S. law enforcement officials, who enjoy sweeping powers to investigate and prosecute suspected foreign terrorists on U.S. soil, face obstacles to charging the man, James Alex Fields Jr., as a terrorist. The Justice Department's civil rights division is currently focused on whether Fields committed a hate crime.


Beyond Fields' case is the urgent question of how law enforcement can prevent further violence at a time when radical white supremacist groups appear emboldened. U.S. officials are severely limited in their ability to crack down on domestic extremist groups—even those who spew hate-filled rhetoric, acquire arms and advocate violence.

The constraints are significant given that, over the past decade, suspects accused of extreme right-wing violence have accounted for far more attacks in the U.S. than those linked to foreign Islamic groups like al Qaeda and ISIS, according to multiple independent studies.

The FBI and Department of Homeland of security broadly track dozens of neo-Nazi, “sovereign” and other white Christian militant groups in the U.S. But while federal officials have numerous legal tools to closely monitor and arrest a U.S. citizen or resident who shows support for a federally designated foreign terrorist organization like ISIS, American hate groups like the Ku Klux Klan have many more legal protections that make their members and sympathizers much harder targets.

The contrast results in part from legal safeguards created to prevent the U.S. government from abusing its power to surveil its own citizens.

“There have been strong constraints historically on the FBI's ability to investigate political movements in the United States and to collect intelligence without a clear indication that the commission of a crime is imminent,” said J.M. Berger, a specialist on U.S. extremists at the International Centre for Counter-Terrorism in The Hague. “Any change to those restrictions would really be a Pandora's box.”

A crucial issue is the question of so-called “material support,” a legal term that opens the door to federal terrorism charges based on connections to foreign terrorist organizations. Any person who takes tangible action to support a foreign terror group like ISIS — from donating money to buying bomb components — can face a material support for terrorism charge. Such an action can also quickly trigger the U.S.’ vast counterterrorism dragnet, initiating surveillance operations and tracking down a suspect’s potential network and any potential co-plotters.

But that bar doesn’t exist, at least not as clearly, when the organization involved is a domestic terrorist or hate group — on the right, left or those who base their actions on topics like the environment or animal rights.

Domestic terrorism does exist as a federal crime, but it is much more narrowly defined, mostly as an element of other offenses. With no specific federal statutes for domestic terrorism, the “focus is not so much on the ideology that animates the criminal activity but the criminal activity itself,” Thomas Brzozowski, domestic terrorism counsel for the Justice Department’s National Security Division, told an audience last year.

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“Where draw those early lines is different just based on those underlying ideologies,” that separate those with ties to foreign terrorist groups from those without them, including white nationalist groups, said Susan Hennessey, managing editor of the Lawfare blog and a former intelligence community lawyer.

Further complicating the picture, Hennessy said, is that “a lot of these ‘alt-right’ groups are intertwined with gun groups and religious identities” — raising First and Second amendment concerns about any federal action against them.

Fields, for example, is not being charged with terrorism for crashing his car through a group of peaceful protesters. Instead, he is being charged with a hate crime.

“You can see the way the law complicates the early intervention stage,” Hennessey said. “The really significant difference is the existence of the material support charge.”

Constitutional protections, including the right to free speech and the right to bear arms, also complicate the FBI’s ability to investigate and pre-empt potential escalations, and the Justice Department’s authorities to prosecute members of right-wing groups. Casting a shadow over the debate is the memory of the late FBI director J. Edgar Hoover’s COINTELPRO programs of the 1950s and '60s which aggressively monitored and subverted domestic political movements, including nonviolent ones like the civil rights movement. Hoover’s bureau destroyed reputations, blackmailed public figures and even anonymously urged Martin Luther King Jr. to commit suicide.

Brzozowski, the Justice Department domestic terrorism counsel, acknowledged those constraints at an event last October sponsored by the GWU Program on Extremism.

He said the government is struggling to deal with the limitations in how it responds to domestic terrorism. For example, there is no way to account for how many groups or individuals in the U.S. are involved in domestic terrorism. But under the Obama administration, the Department of Homeland Security and the FBI issued multiple reports warning about the threat of non-Muslim domestic radical groups — warnings that many conservatives assailed as politically motivated distractions from the threat of Islamic radicalism.

Also, the FBI and the Justice Department don’t keep lists of domestic terrorist organizations, because of concerns about civil liberties. Those concerns also prevent federal authorities from engaging in the kind of sweeping surveillance and monitoring of the Ku Klux Klan and anarchist groups that was more accepted in decades past, before reforms were put in place after the Church Committee hearings in 1975.

Justice Department and FBI guidelines “are very clear that the FBI cannot predicate investigative activity solely on the exercise of First Amendment rights, including free speech,” the FBI said in a statement released to POLITICO.

“Free speech is not something we can monitor,” said an FBI official. “We’ve been asked a lot about whether we’re monitoring these groups. But you need predicated investigations, and it’s related to either suspicion of or actual violations of federal criminal law. If we have that, we can look at particular people rather than blanket monitoring of groups.”

But officials are casting a wider net to ensure that Fields doesn’t have associates who might be plotting further violence.

“The investigation is not limited to the driver," the Justice Department official said. “We will investigate whether others may have been involved in planning the attack.”

Authorities are also investigating the possibility of domestic terrorism, and could bring related charges if there is evidence of “criminal acts that are dangerous to human life and appear to be intended to intimidate or coerce a civilian population.” “Motive often is not clear,” in the current case, the official said, “but we have enough evidence to be suspicious that the suspect intended to send a message and not just harm immediate victims.”

Meanwhile, Justice Department officials said the Trump administration has charged others with hate crimes in similar cases, including Adam Purinton of Olathe, Kansas, who allegedly opened fire on two Indian nationals and a bystander who tried to intervene. One was killed and the other two were seriously wounded.

