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The Predictable Result of Asymmetry in Terrorism Policing: Andrew McCabe’s Demise

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I recently finished Andrew McCabe’s book.

It is very effective at what I imagine its intended purposes are. It provides some fascinating new details about the genesis of the Russian investigation. It offers a great introduction in how the FBI (at its best) can work. It gives a self-congratulatory version of McCabe’s career, including key events like the Najibullah Zazi and Boston Marathon investigations; even if McCabe had wanted to tell fully honest stories about those investigations, I’m sure the less flattering details wouldn’t have passed FBI’s publication review.

The book also says satisfyingly mean things about Trump, Jeff Sessions, and (more obliquely) Rod Rosenstein. (I think McCabe’s book release significantly explains the rumors reported as fact that Mueller’s report was imminent some weeks ago; that claim served, in part, to once again eliminate any pressure to fire Rosenstein immediately).

The latter of two, of course, implemented McCabe’s firing. McCabe’s excuse for lying to the Inspector General, which led to his firing, is one of the least convincing parts of the book (he admits he can’t say more because of his continued legal jeopardy, but he does raise it). That’s true, in part, because McCabe only deals with one of the conversations in question; there were a number of them. But he also excuses his chief lie because he was frazzled about learning of the Strzok-Page texts in the same conversation. I can understand that, but elsewhere, one of his digs against Rosenstein is how overwhelmed the Deputy Attorney General was in the wake of the Jim Comey firing. McCabe suggests, in that context, that because he had dealt with big stressful issues (like the Boston Marathon attack), he wasn’t similarly rattled. Which is why I find it disingenuous to use being frazzled for not being fully truthful to the Inspector General. Plus, virtually all defendants prosecuted for lying to the FBI (including George Papadopoulos, but not Mike Flynn, who is a very accomplished liar) are frazzled when they tell those lies; it’s a tactic the FBI uses to catch people unguarded.

I was most frustrated, however, by something that has become increasingly important in recent days: McCabe’s utter lack of awareness (at least in the book) of the import of the asymmetric focus on Islamic terrorism across his career.

After moving to counterterrorism in the mid-00s from working organized crime, McCabe became an utterly central player in the war on Islamic terror, founding the High Value Interrogation Group, and then leading the CT and National Security Divisions of FBI. He was a key player in investigations — like Zazi — that the FBI is rightly proud of.

But McCabe normalizes the choices made after 9/11 to pursue Islamic terrorism as a distinct danger. He (of course) whitewashes Jim Comey’s decision to retain the Internet dragnet in 2004 under an indefensible use of the PATRIOT Act. He argues that it is politically impossible to survive a failure to prevent an attack even though he managed the Boston Marathon attack, where FBI and NSA had some warning of Tamerlan Tsarnaev’s danger, but nevertheless got very little criticism as a result. Most remarkably, McCabe talks about Kevin Harpham’s attempted attack on the Martin Luther King Day parade, mentions as an aside that this was (obviously) not an Islamic terror attack, but offers no reflection on how Harpham’s attack undermines much of what he presents, unquestioningly, as a greater risk from Islamic terrorism (here’s a story on how Barack Obama did not get briefed on Harpham, a decision that may well have involved McCabe).

Granted, McCabe’s blind spots (at least in the book) are typical of people who have spent their lives reinforcing this asymmetry. You see it, too, in this utterly nonsensical paragraph in a largely ridiculous piece from Joshua Geltzer, Mary McCord, and Nick Rasmussen — all likewise accomplished players in the War on Just One Kind of Terrorism — at Lawfare.

The phrases “international terrorism” (think of the Islamic State and al-Qaeda) and “domestic terrorism” (think of the Oklahoma City bombing and the October 2018 shooting at a Pittsburgh synagogue) have often been a source of confusion to those not steeped in counterterrorism. The Islamic State has its roots internationally, but what makes it such a threat to Americans is, in part, its ability to influence domestic actors like Omar Mateen to kill Americans in domestic locations like Orlando, Florida. The group may be “international,” but its attackers and attacks can be, and have been, domestic—to tragic effect.

This paragraph, in a piece that admits the focus of their career has been wrong (and neglects to mention that Christchurch terrorist Brenton Tarrant named Donald Trump, along with Anders Behring Breivik, as an inspiration), suggests that the reason international terrorism is “such a threat” is because it can inspire domestic actors. The logic inherent to that paragraph is that terrorism carried out by “domestic terrorists,” inspired by a domestic white supremacist ideology is any less dangerous than terrorism carried out by people inspired by what is treated as an international ideology. International terrorism is worse than domestic terrorism, these experts argue, because it can lead to domestic terrorism.

Dead is dead. And given the significant number of white supremacists who have had experience in the military and greater tolerance for their training, white supremacists have the potential of being far more effective, as individuals, at killing than US-based Islamic terrorists.

One thing the Lawfare piece studiously avoids acknowledging is that what it calls “domestic” terrorism (the racist ideology of which they never describe) is an ideology significantly exported by the United States. Even in a piece that rightly calls for an equal focus on both white supremacist terrorism and Islamic terrorism, it ducks labeling the ideology in question. And while this WaPo piece does label the ideology in question, it bizarrely calls an attack in New Zealand carried out by an Australian a “domestic” attack.

The WaPo piece describes one problem with the asymmetric treatment of different kinds of terrorism: that governments don’t share intelligence about international violent racist ideology. In fact, in the US, such intelligence gets treated differently, if the FBI’s failure to track the networks around Frazier Glenn Miller and Eric Rudolph is any indication.

Ironically, that’s one reason that McCabe’s failure to track white supremacist terrorism in the same way he tracked Islamic terrorism led to his demise. While the network behind the election year operation that helped elect Trump involves a lot of Russians, it also clearly involves a lot of white supremacists like Nigel Farage (and David Duke), a network Russia exploited. Additionally, as I have argued (and at least one study backs) white supremacist networks provided the real fire behind the attacks on Clinton; Russia’s information operations had the effect of throwing more fuel on a blazing bonfire.

The other problem with the US government’s asymmetric treatment of terrorism is legitimacy. Labeling Islamic terrorism “foreign” and pursuing material support cases based partly on speech has had the effect of criminalizing some speech that criticizes US foreign policy, even well-deserved criticism about the effect of US killing of Muslims. By contrast, white supremacist speech, even that which  more aggressively advocates violence is treated as speech. Yes, deplatforming has begun to change that.

But we’re still not at a place where those who incite white supremacist violence are held accountable for it.

That’s how it was possible for a man to kick off a campaign by inventing lies about Mexican immigrants and how the entire Republican party, up to and including the new supposedly sane Attorney General, are permitted to pursue counterproductive policies solely so they can appear to demonize brown people.

Irrespective of the merit or not in the finding that Andrew McCabe lacked candor with the IG, he got treated the way he did because a man whose entire political career is based off feeding white resentment needed to appear to be a victim of Andrew McCabe. That act, by itself, was not about Trump’s white supremacist ideology. But it is a structure of power that is white supremacist (exacerbated by Trump’s narcissism).

We have a President Trump in significant part because this country has tolerated and even rewarded white supremacist ideology, institutionally ignoring that it poses as much of a risk as violent Islamic ideology. It would be really useful if people like Andrew McCabe spend some time publicly accounting for that fact.

The white supremacy that brought us the Trump presidency would not be possible if we had treated violent white supremacist terror as terror for the last twenty years.

Trump Refuses to Keep This Country Safe from Terrorism

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I thought a lot about two things over the weekend.

I thought about the line that disqualifies an otherwise excellent book on left wing terrorism in the 1970s, Days of Rage: “With the possible exception of the Ku Klux Klan,” author Bryan Burrough claimed close to the beginning of the book, “the United States until 1970 had never spawned any kind of true underground movement committed to terrorist acts.” The book, which spends a lot of time talking about left wing political violence in significant part stemmed out of a concern for the rights of African Americans, utterly dismissed (perhaps because it was so widely accepted it could barely be called “underground”?) America’s most persistent terrorist movement as such. The line has haunted me ever since as an example of the kind of blindness even experts have about the centrality of right wing terrorism in American history.

I thought, too, about Charlie Savage’s description in Power Wars of how Scott Brown’s team claimed that his polling showed he won the 2010 special election to replace Ted Kennedy chiefly because of perceptions of how Obama responded to Umar Farouk Abdulmutallab’s failed Christmas Eve bombing, because Brown attacked Obama for wanting to give terrorists due process. Once Republicans learned that, they doubled down, encouraging voters to become more afraid.

In a question-and-answer period following his prepared remarks, [Mitch] McConnell candidly acknowledged the political advantage of hammering away at the issue, citing Brown’s victory.

“If this approach of putting these people in U.S. courts doesn’t play in Massachusetts, I don’t know where it sells,” McConnell said, adding: “You can campaign on these issues anywhere in America.”

As Savage describes, that was when Obama started caving on his efforts to adopt a more reasonable approach to terrorism, first reversing Eric Holder’s decision to try the 9/11 defendants in NYC, then launching an 18-month campaign to drone kill Anwar al-Awlaki, and ultimately failing to close Gitmo or hold torturers to account.

Now, as Savage tells it, all that arose solely out of the Abdulmutallab case. He barely covered an event that preceded it, one where Republicans very much set up the Brown lines: when Pete Hoekstra leaked information obtained via FISA collection showing that Nidal Hasan had had communications with Awlaki before his attack on Fort Hood, using it to suggest the Obama Administration should have prevented the Fort Hood attack by adequately analyzing collected communications. Republican efforts to exact a cost from Obama for a more reasonable approach to terrorism (which included demanding that Obama call Hasan’s attack on a military target, terrorism) actually preceded the Abdulmutallab attack, and it was far more deliberate than made out.

The point is, though, that it had the short term desired effect of breaking the Democratic super majority in the Senate and the longer term effect of making Obama reactive on terrorism, rather than proactive (even through the time, in 2013, when Massachusetts was successfully attacked at the Boston Marathon and polls showed people actually didn’t want any more limits on civil liberties). Republicans deliberately and successfully forced a president who wanted to be something other than a War on Terror President to instead be just that.

And now, 8 years after Mitch McConnell gleefully said Republicans should run on hard nose accountability for terrorist attacks everywhere, Republicans are whining that Democrats are treating Trump’s actions in advance of and in the wake of serial right wing terrorist attacks last week as a political issue.

In the wake of last week’s terrorist attacks, we have returned to a discussion we always have after such things, why we call Islamic terrorism terror, but call the targeting of black churches and Jewish synagogues hate crimes and the attempted assassination of Democratic figures bomb attacks. Popehat wrote a worthy lawsplainer, from the viewpoint of a former prosecutor, why domestic terrorists don’t get (immediately) labeled as terrorist attacks. 9/11 Commission staffer Daniel Byman acknowledged that while we don’t have the same legal structure for pursuing domestic terrorist as we do terrorism with a foreign nexus, for the Pittsburgh case, at least, we should probably use the T-word.

I’ve talked about why it is important to call domestic terrorism terrorism here: First, because not doing so results in an equal protection problem, where Muslims are more likely to be targeted in a sting because the FBI has greater access to the communications of still-innocent people with suspect people overseas. And, because calling something terrorism conceives of the possibility of a supporting network, and investigating that network might prevent deaths, such as those perpetrated by the networks of Eric Rudolph or Kevin Harpham.

But the government may not call these acts terrorism. That’s true, in part, because DOJ has invented a separate category to criminalize (impose the death penalty on) hateful motives with hate crimes designation. In addition, Jeff Sessions’ DOJ has adopted a deliberate policy of record-keeping to try to claim that the greatest threats come from outside the country, which is paralleled by their thus far unsuccessful attempt to brand the (US-born) MS-13 gang both as a threat sourced from Central American and as a threat to rival ISIS.

Trump’s effort to brand a group of refugees 1,000 miles from the border as a more urgent threat to the country than corruption or climate change or domestic gun violence — an effort which likely had a tie to both Cesar Sayoc’s terrorist attempt and Robert Bowers’ mass killing — is more of the same, an effort to claim that the most critical threats are foreign and anything he deems a threat is therefore un-American, also foreign.

Ultimately, the reason why the government won’t call last week’s attacks terrorism, however, is precisely the reason they should. Call them terror attacks, and the networks of support and enablers get investigated rather than just isolated men treated as lone wolves. Call them terror attacks, and we start to ask what responsibility Lou Dobbs or Steve King or Chris Farrell (or the people who vote for and fund them) — or Donald Trump — have for the attacks, in the same way we held Anwar al-Awlaki responsible for his role in the terrorist attacks that Scott Brown exploited to get elected.

Byman describes correctly how contentious this can be, because those espousing the same policies as terrorists don’t want to be associated with those terrorist acts.

[D]omestic terrorism often has a bigger political impact than jihadi violence. A foreign-based attack brings America together in the face of tragedy. But right-wing (and left-wing) violence is more likely to divide the country. Just this week, for example, 56-year-old Cesar Sayoc reportedly sent explosive packages to CNN, Democratic politicians, and others seen as “enemies” of Trump. Some right-wing voices immediately embraced conspiracy theories rather than recognizing his activities for what it was. Domestic terrorists poke at bigger political wounds than do jihadis, with at least some Americans sympathizing with their cause even as they reject their violent means.

In turn, observers often avoid the word “terrorism” because peaceful proponents of right-wing and left-wing causes don’t want to be lumped together, even by weak association, with terrorists. We can and should recognize that most political groups of all stripes abhor violence. Doing so—while also acknowledging that the groups and individuals who don’t belong in a separate category—will better enable the United States to isolate extremists and cut them off before the next tragedy.

Which is why this post bears the headline, “Trump refuses to keep this country safe from terrorism” rather than Trump fosters terrorism, even if I believe the latter to be the case.

Because until the time those willing to coddle Trump’s racism in the name of tribal loyalty are defeated politically, they will want to pitch questions about what to label Cesar Sayoc and Robert Bowers’ actions as an attack on themselves.

Instead, let’s make it an attack on Donald Trump’s basic competence as President, one the Republicans themselves, from top to bottom, have embraced.

It is the Republican party of Karl Rove and Mitch McConnell and Scott Brown and (Trump Ambassador to the Netherlands) Pete Hoekstra that says a President who won’t keep the country safe from terrorism must be defeated politically. Me, I’d rather deal with all this domestic terrorism by first closely tracking those accused of domestic violence (which would have the effect of preventing non-ideological mass killings along with the ideological mass killings and attempts) and by noting that under George W Bush and Obama, the FBI was actually pretty good at discovering right wing terrorism without the tools they have against Islamic terrorism. I’d rather Democrats run on the fear of losing health insurance or the impact of climate change or gun violence generally.

But not Republicans. Republicans believe that a President who refuses to take a very aggressive approach to terrorism should not be President. So for those Republicans, let’s make this an issue not of the ways Trump’s network fostered actions like we saw last week, but how Trump’s Administration has chosen not to combat terrorism.

Yes, Calling Only Muslims Terrorists Does Result in Disparate Treatment of Muslims

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Over at Salon, I’ve got a piece addressing the things we call terror in this country that mostly argues, “In the wake of the Planned Parenthood attack, both the right and the left should redouble our commitment to distinguishing speech from murder.” But I also start by laying out how various mass killings get labeled as terrorism.

Commentary on the deadly mass shootings over the past week — last Friday’s at a Planned Parenthood in Colorado, and yesterday’s in San Bernardino, Calif. — has thus far has focused on whether the attacks were terroristic in nature.

Such a designation would suggest violence in support of political ends but also to a set of potential criminal charges. In both cases, there were at least initial reports the perpetrators tried to set off an explosive device, in Planned Parenthood shooter’s case a propane tank (though since initial reports, police have said nothing about whether this was his intent), in the alleged San Bernardino attackers’ case, several pipe bombs. If authorities do confirm these were bombs, both cases might be treated legally as domestic terrorism. Because of an asymmetry in our laws on terrorism and our collection of online communications, if the San Bernardino shooters can be shown to have been inspired by a foreign terrorist organization, like ISIS — as now appears to be the case — their attack would be treated as terrorism even without a bomb.

At Lawfare, former NSA attorney Susan Hennessey has a piece outlining at length much the same thing. If you want a detailed legal treatment of what I summarized in that Salon paragraph, written by an actual lawyer, hers is a decent piece to read.

But her piece is far more interesting as an artifact of a certain type of thinking, complete with some really important blind spots about how the law actually gets implemented. Those blind spots let Hennessey claim, falsely, that the different treatment of international and domestic terrorism does not result in disparate treatment for Muslims.

Hennessey lays out the law behind terrorism charges and argues (and I agree) that the distinction is mostly investigative.

The most consequential citation to the § 2331(5) domestic terrorism definition is in the Attorney General Guidelines for Domestic FBI Operations which authorizes the FBI to conduct “enterprise investigations” for the purpose of establishing the factual basis that reasonably indicates a group has or intends to commit an act of “domestic terrorism as defined in 18 U.S.C. § 2331(5) involving a violation of federal criminal law”:

[snip]

As a consequence, labeling an act one of “domestic terrorism” is most important in the context of investigations, and not ultimately indictments.

She claims it’s okay to treat domestic “ideologically-motivated mass shootings” (which is a great term) as murder because states have the capacity to investigate them.

We don’t want to have a general federal murder statute, and the states are perfectly capable of prosecuting murders of American citizens within their borders, even those that are motivated by politics.

[snip]

States have no lack of capacity to investigate shootings, no lack of authorities to prosecute them, and mass shooters have tended to be very local in the past.

Of course, interest in investigating is very different from capacity to. And for many forms of right wing terrorism — the targeting of minorities and health clinics — there has been local disinterest in investigating the networks behind them. That problem has been addressed in both cases, though not by making these crimes terrorism, but rather by creating “hate crime” and Freedom of Access to Clinic Entrances laws that can give the Feds jurisdiction. But that jurisdiction does not, then, get those crimes that require Federal investigation or prosecution because localities are disinterested treated as terrorism crimes, especially not prospectively. That means the FBI will be bureaucratically less focused on and less rewarded for the investigation of them, and they’ll more often intervene after an attack than before, to prevent it. That bureaucratic focus shows up in Congressional tracking of terrorism cases and White House focus on them, which is another way of saying FBI’s bosses and purse-strings pay closer attention to the stuff that gets charged as terrorism.

Hennessey claims this doesn’t result in any disparate treatment of Muslims. To prove that there is no disparity arising out of the limitation of domestic terrorism mostly to crimes involving bombs, she lays out a list of Muslims who killed using guns that didn’t get charged with terrorism. Here’s just part of her discussion (in the later part, she presumes attackers who died would not have been charged as terrorists).

By and large, violent extremists of all stripes who use bombs are prosecuted as terrorists, while violent extremists of all stripes who use guns get prosecuted as simple murderers. Consider Nidal Hassan, the Fort Hood shooter who professed an agenda of radical Islam, yet was prosecuted by the military for simple murder. Despite overwhelming calls to categorize the act as terrorism, the Pentagon treated it as an act of workplace violence. Shortly before the Fort Hood shooting in 2009, Abdulhakim Mujahid Muhammad killed two soldiers in front of a Little Rock, Arkansas recruiting station. Following the shooting, Muhammad expressed to investigators allegiance to al Qaeda in the Arabian Peninsula. Yet he was prosecuted by the state of Arkansas and ultimately pled guilty to capital murder charges, not terrorism. The most dramatic example may be that of Mir Aimal Kasi who, in 1993, shot two CIA employees dead outside the agency’s entrance in Langley, Virginia. Kasi’s stated motive was anger over the US treatment of people in the Middle East, particularly Palestinians. He fled to Pakistan, and following a four-year international manhunt and joint CIA-FBI capture operation in Pakistan, he was rendered back to the United States. How was he charged? Not with terrorism. Kasi was convicted by the state of Virginia on capital murder charges and executed in 2002.

But, even ignoring how she presumes certain charging decisions had some attackers not died, this is not enough to prove her claim. To prove it, she’d also have to prove that non-Muslims who use bombs in “ideologically-motivated” killings do get charged as terrorists, and that the ability to charge domestic crimes using bombs is not used by FBI to create terrorism prosecutions. With a few notable exceptions, those things aren’t true.

There are a number of cases of right wingers who could have gotten charged with a terrorist WMD charge but didn’t. Most notably, there’s Eric Rudolph — who not only serially bombed abortion clinics but bombed the Atlanta Olympics, then escaped across state lines. He was charged with explosives charges but not given a terrorism enhancement (he is serving multiple life sentences in any case). Indeed, his indictment — signed by current Deputy Attorney General Sally Quillian Yates when she was an AUSA — did not once call the series of bombings and threats Rudolph carried out terrorism, even though bombing the Olympics is a quintessential example of terrorism.

Then there’s another Sally Yates case (this time as US Attorney), the Waffle House plot, in which four geriatric right wingers plotted to use weapons and ricin dropped from a plane to overthrow the federal government. They actually bought what they thought was explosives from the FBI, but did not get charged with terrorism for either the ricin or the presumed explosives.

There’s Schaffer Cox, who got busted for conspiring to kill federal authorities; he talked about using grenades but did not get charged with a WMD count. There’s Benjamin Kuzelka, the guy with Nazi propaganda trying to make TATP. There’s William Krar, the white supremacist caught with massive explosives who eventually pled to one chemical weapons charge, but without exposing what was presumed to be a broader network.

Meanwhile, there are just three cases I know of where non-Muslims did get charged with bomb-related terrorism charges — and to some degree, these exceptions prove the rule (I’m not treating ACTA “animal terrorism” cases, which introduce another order of magnitude of absurdity into the issue).

There is the Spokane MLK bomber Kevin Harpham, whose sophisticated bomb got found before it went off.  Harpham’s plea deal retained a terrorism WMD charge, but his sentence was lighter than similarly situated Muslim terrorists.

There is the Hutaree group charged on multiple counts of trying to overthrow the government, including with bombs. The terrorism related charges against the Hutaree were thrown out entirely (in part because they were charged badly), and most of the 9 of them went free.

The only case I know of that is parallel to the way many Muslims get treated is that of the Occupy Cleveland participants whose discussion of vandalism got inflamed — and focused on a target that might merit federal charges — by an informant who also plied them with jobs and other enticements. After pressing buttons they thought would detonate a bomb, they got charged as terrorists.  The judge thought the punishments requested by the government “grotesque” and sentenced them much more lightly (though still to upwards from 6 years).

I say the Occupy Cleveland case is parallel because for the overwhelming number of cases charged as Islamic terrorism, the FBI supplies the bomb and often picks the target for a “wayward knucklehead” who then gets charged with terrorism (though judges almost never consider those charges “grotesque”). There were hundreds of them already by 2011. Often, the target would have not had the ability — in terms of money, experience, and other resources — to conduct the “bomb” plot by himself. So when Hennessey justifies charging bomb but not gun crimes as terrorism because “bombers tend to be more organized in interstate groups,” what she really means is that the FBI is an organized interstate group, because that’s the organizing force that provides the expertise in the overwhelming majority of terrorism cases.

Which brings me to the most alarming claim that Hennessey makes, in the midst of an argument that the civil liberties cost of treating domestic terrorism like international terrorism is too high: that what she calls “complex legal obligations” on using “incidental” collection reflects heightened privacy concerns.

The complex legal obligations generated by incidental or intentional focus on US persons reflects the heightened privacy and civil liberties concerns at stake when we use foreign intelligence tools domestically. And rightly so, as the process of investigating and prosecuting domestic terrorists and homegrown violent extremists risks infringing into areas of constitutionally protected speech, religion, and association.

To be fair, she was an NSA lawyer, not an FBI lawyer, which is why I consider this surprising claim a “blind spot.” The NSA does have to treat incidentally US person data carefully; they actually do very few back door searches of incidentally collected data.

But many (if not most) counterterrorism targets collected under Section 702 and all traditional FISA ones get shared directly with the FBI. And the FBI can access and use the incidentally collected data not only for formal investigations, but also for assessments, such as called in tips or even just to find stuff to use to coerce people to turn informant. For incidentally collected US person data that resides in FBI’s databases, in other words, there are no complex legal obligations on incidental collection. None. It just sits there for 30 years at potential risk of contributing to a prosecution. And that’s a big source of the stings the FBI starts, when it throws an informant at some kid downloading Inspire or talking in a chat room to try to take them off the street by inventing a bomb plot.

Update: In her response to this piece, Hennessey makes it clear she believes this passage is wrong–and with respect to whether unreviewed data sits in FBI servers for 30 years, it is; with respect to how much CT data FBI gets directly it may be. But as to its accessibility, per the PCLOB report on 702, it is not. So I’m replacing this paragraph with this language from PCLOB.

Because they are not identified as such in FBI systems, the FBI does not track the number of queries using U.S. person identifiers. The number of such queries, however, is substantial for two reasons.

First, the FBI stores electronic data obtained from traditional FISA electronic surveillance and physical searches, which often target U.S. persons, in the same repositories as the FBI stores Section 702–acquired data, which cannot be acquired through the intentional targeting of U.S. persons. As such, FBI agents and analysts who query data using the identifiers of their U.S. person traditional FISA targets will also simultaneously query Section 702–acquired data.

Second, whenever the FBI opens a new national security investigation or assessment, FBI personnel will query previously acquired information from a variety of sources, including Section 702, for information relevant to the investigation or assessment. With some frequency, FBI personnel will also query this data, including Section 702– acquired information, in the course of criminal investigations and assessments that are unrelated to national security efforts. In the case of an assessment, an assessment may be initiated “to detect, obtain information about, or prevent or protect against federal crimes or threats to the national security or to collect foreign intelligence information.”

[snip]

Section 702–acquired communications that have not been reviewed must be aged off FBI systems no later than five years after the expiration of the Section 702 certifications under which the data was acquired.

So if conducting network investigations of “domestic terrorists and homegrown violent extremists risks infringing into areas of constitutionally protected speech, religion, and association,” — and I absolutely agree it does — then it does for Muslims as well, except that because we’ve made the terrorism Muslims might engage in a different category of collection and thrown billions of dollars at it, they’re not accorded that protection.

Finally, there’s one other problem with the assumption that international terrorism requires enterprise investigations but domestic terrorism doesn’t (that’s not actually what happens; FBI does do enterprise investigations of domestic terrorism, just with a different focus and different SIGINT tools). People get killed as a result.

Consider Kevin Harpham’s case, the MLK bomber. The government used the correspondence Harpham had while in jail with known white supremacist Frazier Glenn Miller (who was, I believe, then in North Carolina but would move to Kansas) to call for an enhanced sentence. Miller’s offer to raise money for Harpham might have been evidence of an interstate network worth tracking. But the FBI appears not to have done so, though, given that Miller went on to murder three people he believed (wrongly) to be Jewish two years later. Miller got charged at the state level and will be executed.

Similarly, supporters of the militant anti-choice group Army of God have corresponded with people who had been previously convicted for attacks before attacking others (in addition to publishing Rudolph’s memoir), and George Tiller’s murderer, Scott Roeder, has issued threats while talking with Army of God supporters from prison as recently as two years ago. These things have happened across state boundaries, so would be tougher to investigate at the local level. Like ISIS or AQAP, Army of God makes how-to materials available to its supporters.

Indeed, the way in which Army of God fans have networked is particularly important given this claim from Hennessey:

[With the Planned Parenthood attack], there is no apparent evidence that the perpetrator was acting as part of a larger group, and thus no need for the federal government to pursue an enterprise investigation.

I presume she isn’t privy to the evidence discovered so far, so in fact has no basis to say this. But even the public reporting poses good reason to look for such connections. Six years ago, Dear considered the Army of God to be heroes for their actions.

In 2009, said the person, who spoke on the condition of anonymity out of concerns for the privacy of the family, Mr. Dear described as “heroes” members of the Army of God, a loosely organized group of anti-abortion extremists that has claimed responsibility for a number of killings and bombings.

As ISIS did with the San Bernardino attack, the Army of God hailed the Planned Parenthood attack.

 Robert Lewis Dear aside, Planned Parenthood murders helpless preborn children. These murderous pigs at Planned Parenthood are babykillers and they reap what they sow. In this case, Planned Parenthood selling of aborted baby parts came back to bite them.

Dear was very active online, so it is not unreasonable to wonder whether he had reached out in the interim period to the group or consulted their how-to resources. But you’re not going to find those ties unless you look for them, and series of localized murder trials are far less likely to do that than an FBI enterprise investigation.

The FBI doesn’t entirely ignore attacks on reproductive health clinics. Indeed, it issued a threat assessment predicting increased targeting of clinics in September. Would a more focused enterprise investigation into Army of God before the Planned Parenthood attack have prevented it?

Frankly, as Hennessey says, there’s a balancing of civil liberties that goes on. And it may be that the number of deaths we suffer from non-Islamic “ideologically-motivated mass shootings” hits that sweet spot of the number of deaths we’ll tolerate given the risks to civil liberties (or — as I argued at Salon — it may be that because we suffer so many non-Islamic “ideologically-motivated mass shootings” and non-Ideological mass shootings, we need to develop another approach to combat them).

But under the current system, the victims of Islamic “ideologically-motivated mass shootings” are treated as more important deaths than all the others (which almost certainly inflates the import of them and thereby feeds more terror). All American mass deaths, ideologically-motivated, Islamic or not, deserve the same access to justice (or chance of prevention). And all Americans, whether they worship in a church or a mosque or a library, deserve the same protection for their First Amendment rights.

Update: As I noted above, Hennessey has replied to my piece. She expands on this sentence:

It is also the case that Muslim populations have been disproportionately impacted by foreign-specific material support laws.

To this discussion, to make it far, far more clear that she recognizes there is a difference.

In fact, I actually do believe that Muslims are disparately impacted by terrorism laws. Indeed, in my piece I make this point expressly with respect to material support laws. Furthermore, whatever the legal distinctions between homegrown violent terrorists and domestic terrorists—domestic actors with no contact with foreign groups who may or may not be inspired by foreign terrorist ideology—the law certainly applies dramatically different consequences to foreign terrorist organizations and international terrorists who commit crimes in coordination with those organizations. The FBI can pose as Al Qaeda or ISIS operatives and trick a homegrown violent extremist into becoming an international terrorist based on contact with wholly fictitious terrorists. Walk that out to include crimes of attempt and material support, as Wheeler notes, and the disparate application is reflected in the prosecution numbers.

She then shows the results of her research to find several more white people charged as terrorists (notably McVeigh; I don’t contest that if we go back far enough in time before 9/11 we could find loads of white people charged as terrorists, and rightly so).

But her treatment of Rudolph reinforces my point.

Rudolph is a puzzling case, because the government declined to even indict on terrorism charges that would seem to have been clearly available. But while Rudolph was not charged as a terrorists, federal authorities had long publically referred to him as just that. In a statement following Rudolph’s arrest then Attorney General John Ashcroft called Rudolph’s crimes “terrorist attacks” outright.

First, the fact that Ashcroft calls Rudolph’s attacks terrorist attacks, but does not call him a terrorist, precisely stops short of calling a white man a terrorist. More importantly, Hennessey has spent two articles talking about terrorism being a legal distinction, specifically backing off what people get called.

There is an element of truth to this as a matter of media vocabulary, and certainly there are those in right-wing corners of the media who are quick to call terrorism any act of violence perpetrated by someone from an Arab or Muslim country.

But if we’re going to measure what people get called, then her gun/bomb distinction breaks down. Because many of the Muslims attacking with guns get called terrorists by the Feds (though they generally did not with Nidal Hasan, which adds the element of military targeting).

And all of this comes back to her initial point, with which I agree: this is about investigation. And the reality is, regardless of what it called him, the government treated Rudolph (and Harpham) as a lone wolf, not as a person in the network that he was in. One reason fewer white ideological terrorists get charged with terrorism is because until you do that investigation, you may not find the network, especially since the chances it will be sitting in an FBI server are much lower because of the different standards for collecting data. And, in the case of Frazier Glenn Miller, you may not prevent deaths you might have.

The FBI has dedicated 400 people to investigating what motivated the San Bernardino attackers because it is clear they were radicalized but their actual ties to foreign terrorists are not yet. That’s a focus on identifying foreign and US-based networks that rarely happens with white ideological violence, and as a result it doesn’t get approached systematically.

FBI Disclaims Material Support for Terrorism Prosecutions — for White People

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Tara McElvey wrote a piece for the Beeb coming close to espousing a very (dangerous, IMO) British view: that the FBI should criminalize white supremacists’ speech the way they have Islamic terrorists’.

[Frazier Glenn Miller’s] writings are a reminder of the virulence in white supremacist views. Earlier this month a married couple, Jerad and Amanda Miller (no relation to Frazier Glenn), shot and killed three people in Nevada.

The couple was steeped in white-supremacist ideology and spoke openly about their views. Police said they placed a swastika on the body of one of the victims.

Some wonder whether authorities were too easy on Frazier Glenn Miller before the killings – and are too soft on the white supremacists in the US.

The piece is most interesting for the quotes from FBI’s spokesperson, which falsely suggests it doesn’t target groups as groups.

Paul Bresson, a spokesman for the FBI, said: “We don’t target groups for who they are. If you want to be a white supremacist – legally there’s nothing wrong with that.

“What we’re concerned about is breaking the law.”

[snip]

As Bresson said: “There’s nothing illegal about being weird.”

Anti-Semitism and extremist ideology seem to play a role in the violence, but Bresson and other officials say that knowing when a white supremacist – or anyone – will explode is beyond their purview.

This is, of course, bullshit. For groups named as Foreign Terrorist Organizations, the FBI does target groups for who they are, under well-worn material support laws. But even without membership in an FTO, the FBI routinely sets up stings to catch young men to precipitate their “explosion” (invariably using inert bombs).

To be fair, the FBI also set up a bunch old white men in the Waffle House plot, in part because they had an informant affirmatively trying to work off his sex crime charges by setting up fellow anti-government activists.

But the FBI’s approach to both groups deserves reconsideration. If the FBI believes it’s not in the job of precipitating personal explosions, it should stop doing so, and instead investigate actual crimes (as Bresson says they do).

In the case of Miller, McElvey misses a key detail. The FBI did not have just his speech. The had — and DOJ had already used — his open support for the MLK bomber, Kevin Harpham, as evidence of criminality. Miller already supported the use of violence against African Americans.

The difference,  of course, is that FBI also called that a “hate crime,” not terrorism. And as a result, treated Miller’s support for terrorism as a First Amendment issue rather than a crime issue.

The Terror Networks and the Hate Criminals

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In response to Frazier Glenn Miller’s arrest in the murder of 3 people at Jewish targets the other day, Peter Bergen reminds that white supremacist terrorists have been more dangerous in recent years than Islamic terrorists.

Now let’s do the thought experiment in which instead of shouting “Heil Hitler” after he was arrested, the suspect had shouted “Allahu Akbar.” Only two days before the first anniversary of the Boston Marathon bombings, this simple switch of words would surely have greatly increased the extent and type of coverage the incident received.

Yet the death toll in the shootings in Kansas is similar to that of last year’s Boston Marathon bombings, where three people were killed and the suspects later killed a police officer as they tried to evade capture. (Many more, of course, were also wounded in the Boston attacks; 16 men, women and children lost limbs.)

In fact, since 9/11 extremists affiliated with a variety of far-right wing ideologies, including white supremacists, anti-abortion extremists and anti-government militants, have killed more people in the United States than have extremists motivated by al Qaeda’s ideology. According to a count by the New America Foundation, right wing extremists have killed 34 people in the United States for political reasons since 9/11. (The total includes the latest shootings in Kansas, which are being classified as a hate crime).

By contrast, terrorists motivated by al Qaeda’s ideology have killed 23 people in the United States since 9/11.

But, as Bergen notes, thus far these murders have been called “hate crimes,” not terrorism.

That’s particularly interesting given this remarkable report from HuffPo’s Ryan Reilly, while he was still at TPM. Back in 2012, Reilly interviewed Miller about his contacts with Kevin Harpham, the MLK bomber. As Reilly notes, Federal prosecutors had used Harpham’s contacts with Miller to argue for harsher sentencing.

Less than a week after 36-year-old Kevin Harpham was arrested for allegedly attempting a racially motivated bombing of a 2011 Martin Luther King Jr. parade in Spokane, white supremacist leader Glenn Miller sent him a letter offering to help start a legal fund on his behalf.

“Keep your chin up and stay strong,” Miller wrote in a letter dated March 14, telling Harpham that he and other members of an online white supremacist forum believed he’d “been set up.”

[snip]

Federal prosecutors used Miller’s jailhouse letter and Harpham’s response — in which he said he might have Miller screen individuals as he looked for “someone to house sit for a while” — as one of the factors that “supports the imposition of a sentence that will maximize the time the Defendant is incarcerated and subject to judicial oversight.”

Evidently Harpham’s lawyers soon informed him it probably wasn’t a good idea to be sending letters to a well-known white supremacist while in jail accused of a hate crime, as he didn’t respond to any of Miller’s follow up letters.

“He’s kind of let me know he doesn’t want anything to do with me,” Miller said. “It’s not in his self interest to associate with me, and I can understand that, can’t you?” [my emphasis]

As I noted at the time, the FBI called Harpham a “lone wolf” “hate criminal.” That, in spite of the fact that the crime to which he plead guilty — attempted use of a WMD — is one of FBI’s favorite “terrorist” crimes with which to entrap young Muslims, and in spite of the fact that Harpham’s contacts with Miller and his abundant online activity showed him to be a part of a network sharing the same ideology.

Harpham was one of the few white people convicted of a terrorist enhancement crime (the 3 anarchists tied to Occupy who discussed bombing a bridge were also found guilty on WMD charges; both the Hutaree and Schaeffer Cox were initially charged with terrorist-associated crimes, but not found guilty of them; see this a post for Dianne Feinstein’s catalog of such crimes). Whether the FBI called Harpham one or not, he is technically a terrorist.

Just two years ago, they made a big deal out of Harpham’s ties to Miller and used that to substantiate the severity of Harpham’s crimes. Yet not only did the FBI not catch Miller in a sting before he killed. But they’re not even calling Miller a terrorist … yet.

Miller and Harpham were participants in the same kind of network the FBI uses, if they’re Muslim, to identify targets for increased law enforcement attention. Harpham was convicted as a terrorist, in part, based on his ties to Miller.

And yet no one stopped Miller before he (allegedly) killed.

Law Enforcement Still Can’t Keep Hate Crimes and Terrorism Consistent

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Last week, I noted that the NYPD–the same NYPD that had trumped up a “terrorist attack” against a synagogue last year–was calling the New Year’s Day attack on a Queens mosque a “hate crime.”

For the sake of consistency, I wanted to note that very similar attacks–Molotov cocktails thrown at houses of worship, in this case, synagogues–were also being called “hate” or “bias crimes” this week. This, from an FBI that has also entrapped people as terrorists with plots to attack a synagogue.

Now, to some degree, I think the FBI is operating on the same logic as the NYPD–by calling this a bias crime, they don’t hurt their “success rate” at finding and preventing terrorist attacks. I also think both agencies are suggesting that a kid entrapped to say he’d like to use more dangerous explosives (provided, often, by the FBI) is more dangerous than someone who actually acts on his own with whatever improvised explosive–a Molotov cocktail–he can procure without the assistance of an FBI informant. The FBI’s involvement seems to be the most dangerous aspect, according to that logic.

But that doesn’t explain the FBI’s logic for sending out this email update, titled, “2011 MLK Day Hate Crime Prevented; Case Solved,” and boasting that it was a “prototypical hate crime.

“Clearly he intended to detonate the device, cause mass carnage, and then survey the devastation,” said Special Agent Frank Harrill, who supervised the investigation. “Harpham was acting out against what he termed multiculturalism, but his hatred was firmly rooted in violent white supremacy. This was a prototypical hate crime.”

Kevin Harpham’s attempt to bomb last year’s MLK Day Parade in Spokane, WA, is surely a hate crime.

But it also clearly fits the definition of terror, particularly given that Harpham plead guilty to Attempted Use of a WMD, one of the government’s favorite charges for terrorists. The release even has a call-out describing what a sophisticated weapon Harpham had constructed for the attack, specifically calling it a WMD.

Kevin Harpham had been an artilleryman in the Army, and the bomb he meticulously constructed—using 128 fishing weights for shrapnel, each coated with an anticoagulant commonly found in rat poison—was not a typical improvised explosive device (IED).

“JTTF members on this investigation have had experience on many other bombing cases both here and abroad,” said Special Agent Joe Cleary, who worked alongside other agents, evidence technicians, and intelligence analysts on the Harpham case. “But none of us had ever seen this type of bomb in the U.S.”

Cleary explained that most IEDs are triggered with fuses or timers. “This was command-detonated,” he said. “Harpham designed it so he could remotely control when the blast would occur and the direction in which the shrapnel would fly. He placed the bomb so it would explode directly across the line of the march, thereby inflicting maximum damage to the marchers. This was a weapon of mass destruction.”

When bomb experts from the FBI Laboratory reconstructed the device and detonated it, the results were sobering, Cleary said. “The shrapnel exploded with such a high velocity that some targets in the shape of humans were blown over, and a metal filing cabinet was perforated—it was filled with holes.”

“Harpham intended to use this extremely lethal weapon on individuals solely because of their race and perhaps their religion,” Cleary said. “His plan was to wreak havoc on a crowd of innocents.” [my emphasis]

Harpham’s crime–an attempt to bomb a public space with a “WMD” thwarted by a diligent onlooker–is almost a mirror image for Faisal Shahzad’s Time Square bombing, except that Harpham’s bomb was more competent and lethal, and the timing of Harpham’s attack was tied to a political motivation.

So why boast of this successful hate crime conviction when the kudos in this country go to successful terrorism convictions?

One more thing. In its description of the FBI’s (very admirable) investigation, it notes this discovery:

Investigators also learned of Harpham’s white supremacy postings on the Internet and his affiliation with a neo-Nazi group called the National Alliance.

TPMM describes some of what those postings say here.

Update: And here’s a collection of them from his sentencing report. Note, for example, the one on PDF 6 that says, in a thread on “your favorite part of the Turner Diaries,”

In the army my lieutenant told me Tim McVey read the Turner Diaries and that there was a blueprint for a truck bomb in it. After I was out of the service and was getting to the point of advanced anti-government libertarianism, I bought the book and when I was finished I was extremely disappointed that there was no plans for a bomb inside.

But then later, it claims,

“Kevin Harpham was the lone wolf that all of us in law enforcement dread,” Harrill said. “He lived alone and he worked alone, and he didn’t foreshadow the bombing plot in any meaningful way.

Harpham foreshadowed his extremism, at least, the same way all the Muslim young men the FBI entraps did–in online chat rooms. What he didn’t do is exhibit his extremism in a form the FBI routinely investigates.