Feds confront limits on domestic terror laws as new plots appear
Kevin Johnson and Kristine Phillips
Published 8:47 AM EDT Sep 10, 2019
WASHINGTON — In the weeks after a pair of massacres in El Paso and Dayton left 31 dead, local police and federal authorities scrambled to contain a succession of chilling new threats.
A Florida man allegedly vows to “break a world record” for mass shooting casualties; a disgruntled hotel cook in California threatens to transform a Marriott lobby into a killing field; a Jewish community center in Ohio is the target in an alleged shooting plot.
Police stopped each one before anyone was harmed. But the arrests, spanning just over a week, highlighted a frequent theme in the government’s efforts to prevent domestic terrorism and other forms of mass violence: law enforcement didn’t see the potentially deadly storms approaching until members of the public stepped forward with crucial information, and authorities had little power to intercede until an attack appeared imminent.
The FBI has warned for months that domestic terrorism, often animated by racial animus and religious discord, represents one of the United States’ most pressing national security threats. Yet time after time the central weapons against such threats for local and federal law enforcement have largely proved to be timely tips, or even a stroke of luck.
In the 18 years since 9/11, the United States has taken aggressive steps to prevent terrorist acts in the name of the Islamic State, Al Qaeda and other international terror groups. The government built a vast security apparatus to target threats to the United States from extremist groups based overseas, including an extensive effort to identify, track and arrest Americans who give them support.
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Potential domestic attackers, largely untethered to specific organizations and protected from police scrutiny by free-speech rights, have proven more difficult for the government to investigate. An affiliation with a designated international terrorist group makes someone fair game for U.S. criminal investigators; expressing extreme, or even violent, views without such a connection typically does not.
“I think it is time to re-think our approach,” former Attorney General Michael Mukasey said. “The goal has to be to identify and intervene in advance. But there is no corresponding designation or consequences for domestic actors.”
Congress could be moving in that direction, as recent mass shootings have prompted members of both parties to seriously consider legislation that would expand the government’s authority over domestic terrorist threats. House Intelligence Committee Chairman Adam Schiff, D-Calif., and Sen. Martha McSally, R-Ariz., have proposed bills that would essentially allow federal law enforcement to pursue domestic terror suspects as they would international operatives.
While domestic terrorism is memorialized in federal law as an effort to “intimidate or coerce” a civilian population or government, there are no corresponding criminal penalties to back it. That has law enforcement officials moving to head off potential threats with the tools at their disposal, including leaning on the public to provide tips and charging suspects with violating weapons laws, hate crimes or illegal threats in the absence of a domestic terrorism charge.
Not every mass attack would meet that standard. Local and federal officials investigating the Dayton shooting said they have found evidence of the shooter’s “violent ideology,” though they did not offer specific information on the gunman’s motivations. And some of the plots authorities said they thwarted in recent weeks did not have a clear political motive. But they raise similar issues for authorities seeking to prevent them.
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Last month in Connecticut, a 22-year-old Norwalk man was arrested after local police and the FBI were tipped he sought to obtain high-capacity rifle magazines. Police said a Facebook post expressed “interest” in a mass attack while investigators recovered two weapons, multiple rounds of ammunition and body armor.
“We continue to urge the public to please remain alert and to report suspicious activity that is observed in person or online,” New Haven FBI chief Brian Turner said following the arrest, a tacit acknowledgement of the enormous challenge confronting law enforcement.
And so far, there is evidence that the public has been responding. During the first week of August, the period covering the El Paso and Dayton shootings, the FBI reported that 38,000 tips had streamed into its National Threat Operations Center, up from a weekly average of about 22,000.
“Such increases are often observed after major incidents,” the FBI said in a statement. “As always, the FBI encourages the public to remain vigilant and report any and all suspicious activity to law enforcement immediately.”
An online battlefield
In the aftermath of 9/11, the Internet quickly emerged as key battleground in the U.S. war on Al Qaeda and later the Islamic State. Both terror groups used digital tools to spread online hatred and enlist recruits with surprising ease. The United States responded by blocking and infiltrating the corners of the internet where terrorists’ recruiting was most effective.
Undercover agents and informants mined Internet message boards and social media looking for Americans who expressed an interest in Islamic terrorism, and occasionally targeted them in elaborate sting investigations in which agents led them down the path toward radicalization, offered them the chance to carry out imaginary attacks and arrested them.
Among the dozens of sympathizers and suspected operatives identified and charged in the law enforcement sweeps was a 23-year-old Oakland man whose case now exemplifies the power federal law enforcement brought to bear in international terror investigations that is now lacking in domestic inquiries.
Until he surfaced on an encrypted messaging channel known as “Against the War Coalition” three years ago, Amer Sinan Alhaggagi was largely unknown to federal investigators.
But his suspected purpose for entering the chatroom, a meeting place for Islamic State sympathizers, was immediately alarming to an FBI informant who was secretly monitoring the exchanges. Alhaggagi, a 23-year-old Oakland, California man, was looking for weapons, and seized on a post referencing an available supply of Kalashnikov rifles and hand grenades.
What followed, by the FBI’s own account detailed in court documents, was an extraordinary pursuit by teams of agents who for weeks smothered the suspect with round-the-clock surveillance. An undercover investigator, posing as an experienced bomb-maker, met with him extensively to discuss desired body counts. The bureau’s monitoring even included a back-up SWAT unit, in the event Alhaggagi sought to make good on a boast to ”redefine terror” by leaving “the whole Bay Area…in flames.”
In almost every way, the threat posed by the young suspect — whose targets included bars, nightclubs and schools — followed a now all-to-familiar path to mass murder.
Except for one key difference: Alhaggagi’s allegiance to an international terror group, ISIS, set in motion the aggressive federal inquiry whose supporting laws do not apply in rooting out domestic terror suspects.
Although Alhaggagi’s lawyers argued that their client’s threats were the product of immature boasts, he was sentenced earlier this year to more than 15 years in prison on charges of providing material support to a foreign terrorist organization.
“Today is a tragedy for the Alhaggagi family and our community as we have lost yet another young person to the allure of extremist ideology focused on hatred and violence,” San Francisco FBI chief John Bennett said following the February sentencing. “This … serves as a reminder of how persistent and pervasive online radicalization has become and this should be a precautionary example for individuals who may be tempted by terrorist propaganda.”
A call for greater scrutiny
Although investigators are now limited in the battle against homegrown violence unconnected to overseas terror groups, President Donald Trump seemed to call for more aggressive Internet monitoring in the aftermath of shootings in El Paso and Dayton.
But there is widespread disagreement on how much power the government should have to do that, and on how it would work if it did.
Michael German, a former FBI special agent who specialized in domestic terrorism, has opposed an expanded domestic terrorism statute, saying that providing law enforcement unfettered access to investigative and surveillance techniques has led to perverse consequences.
German cites an elaborate sting operation targeting Nicholas Young, a former Washington transit police officer who converted to Islam and whom the FBI monitored for several years. Young was arrested in 2016 after he sent $245 in gift cards to a friend he believed had gone to Syria to join the Islamic State. Unknown to Young, the friend was an informant, and Young was subsequently charged with attempting to provide material support to the Islamic State.
Prosecutors argued that Young’s activity was anything but benign, saying the cards were intended to assist ISIS recruitment efforts. He was sentenced to 15 years in prison earlier this year.
German, now a fellow at the Brennan Center for Justice, said there are other potential dangers in arming investigators with more authority in domestic terror inquiries. Targeting radical right-wing groups, he said, could thrust law enforcement into the realm of policing political speech.
“You can’t imagine how many people entertain conspiracy theories who would never commit an act of violence,” German said. “Clearly a lot of these people are engaged in the political process…”
But civil liberties group, such as the American Civil Liberties Union, oppose expanding domestic terrorism laws, saying doing so would target people of color and other marginalized communities.
Mary McCord, the former acting chief of the Justice Department’s National security Division, said the extreme violence that has marked recent attacks and the stream of continuing threats of mass attacks have all but eliminated the distinction between international and domestic terror.
After the October shooting at the Tree of Life Synagogue in Pittsburgh, McCord urged Congress to make domestic terrorism a federal crime, saying doing so would create a moral equivalency between domestic and international actors.
“It’s the same crime,” McCord said, adding that a domestic terrorism statute would give the FBI “the mandate and the impetus and the resources” to conduct undercover and sting operations. Had Patrick Crusius, the alleged shooter in El Paso, pledged allegiance to the Islamic State, “he would be prosecuted right now for terrorism,” McCord said.
In the case of Crusius, who allegedly authored an anti-immigrant screed prior to the attack and confessed to police that he had targeted Mexicans, a federal terrorism prosecution would not likely make a difference in the range of possible punishment.
The 21-year-old suspect has been charged by state prosecutors with capital murder, which carries a potential death sentence.
Thwarting domestic schemes
In some cases, the government has moved to thwart right-wing extremism when it appeared to be on the precipice of violence, though authorities face some significant limits on its ability to do so, because some of what would come up would be protected speech.
Federal prosecutors in Las Vegas announced charges Aug. 9 against a 23-year-old man they described as an associate of a white supremacist group. They alleged that he had discussed attacking local synagogues and a gay bar.
Investigators were first alerted to Conor Climo nearly a year earlier, according to court documents, when a local television station showed him patrolling the sidewalk in front of his home armed with a rifle and long-knife, sending ripples of concern through the neighborhood. .
A review of social media, turned up an account on Quora, where Climo allegedly quoted an Adolf Hitler rebuke to multiculturalism, while the account’s profile photo carried the image of AR-15 rifle, similar to the weapon Climo carried during his television appearance.
The FBI did not launch a formal investigation until this spring, according to court documents, when investigators learned of his contacts with Atomwaffen Division, a white supremacist organization that encourages attacks on the government, homosexuals and Jews. Through the summer, an informant allegedly engaged Climo in an encrypted chatroom, as the contacts progressed to discussions about weapons, bomb-making and potential targets, including local synagogues. In a subsequent search of his residence, investigators recovered “several hand-drawn schematics for a potential Las Vegas attack” and other drawings of explosive devices.
Beyond the potential threat, the investigation – featuring months of monitoring and the online engagement with an informant – was striking in its similarity to the FBI’s pursuit of foreign operatives. In announcing the charges, Las Vegas FBI chief Aaron Rouse appeared to acknowledge that, while adding a careful distinction.
“As this complaint illustrates, the FBI will always be proactive to combat threats that cross a line from free speech to potential violence,” Rouse said.
Prosecutors assert that Climo went further than just espousing racial and anti Semitic animus, citing his discussions about constructing improvised explosive devices and conducting “surveillance” on a bar frequented by members of the LGBTQ community on Fremont Street in downtown Las Vegas. But Climo was not charged with making threats; instead, he’s facing one count of possession of an unregistered firearm.
In cases of extreme violence, distinctions between domestic and international terrorist threats should not matter, said Colin Clarke, a senior research fellow at The Soufan Center, a global security research organization.
“I don’t know what has to happen for us to treat perpetrators of violence equally,” Clarke said. “I thought it would’ve been Pittsburgh. That clearly isn’t the case … It’s temporary outrage. Rinse and repeat. Thoughts and prayers. Go back to daily life until the next shooting … We’ve been so focused on Al-Qaeda and ISIS that people have seen white supremacy as more of a nuisance than a significant threat. These aren’t just a bunch of crazy people.”