Expert Commentary

Deny Terrorists What They Want — Prosecute Them as Criminals

Michael German
Former FBI Undercover Agent

After the deadly mass shooting in Las Vegas, which killed 58 people, and the murder of an anti-fascist protester in Charlottesville this August, many people are asking what exactly qualifies as terrorism, and where the real difference lies between domestic and international acts of terror.

The Cipher Brief’s Fritz Lodge spoke with Michael German, a former FBI who successfully infiltrated two extremist domestic terror organizations as an undercover agent, about how the current approach to domestic terrorism is missing serious organized violence.

The Cipher Brief: In what ways does the U.S. government treat international and domestic terrorism differently in terms of response and public messaging?

Michael German: As differently as possible.

There is a completely separate legal regime separating international terrorism from domestic terrorism, and there is a completely different attitude in the way that the two are approached.

The FBI has always been two separate organizations: one that focused on criminal justice issues and law enforcement, and the other that focused on foreign intelligence and counterintelligence. When international terrorism became a thing in the 1970s, it didn’t fit neatly into either category because it was certainly criminal, but there was also an international aspect to it that didn’t look like it fit into the criminal sphere. This was mistake number one, not realizing that treating this as purely criminal would have been the more effective response.

Part of this is not the FBI’s fault, it’s the way that the government looks at terrorism. Terrorism is a pejorative term, and we apply it to violence we don’t like at the time, but that is often very changeable. Often we look at violence that is identical, but since it is perpetrated by other groups, we don’t call it terrorism.

In that respect, terrorism did fit better into the foreign/counter intelligence realm, where they are used to this kind of ambiguity, and this realm uses a completely different legal regime. Most foreign counterintelligence work isn’t actually focused on criminal acts.  It’s focused on foreign diplomats and other officials who you want to gather information about but you don’t have the luxury of using a judge to issue a search warrant or wiretap, so they set up a different legal regime under the Foreign Intelligence Surveillance Act (FISA).

Following the Oklahoma City bombing, which was of course a domestic terrorist act, the law that passed immediately after created an expanded ability to criminalize support for a foreign terrorist organization. That material support statute empowered the FBI to go after not just people who are engaged in terrorism, but people ancillary to those terrorist acts. That basically allows them to go after people not because of anything they did, but because of things that people who are associated with them did, which created a completely different legal structure that doesn’t exist on the domestic terrorism side of things.

Domestic terrorism, in general, is treated as just a law enforcement issue.

TCB: When you look at something like the Las Vegas shootings, people were asking in the aftermath why this was not called terrorism. Is that a reasonable complaint? Why or why not?

German: It’s certainly a reasonable complaint if we’re talking about political rhetoric and the way that we talk about violence and the way that we devote resources to preventing violence.

I think there is a lot of frustration with the way that the government treats domestic terrorism incidents.

It’s interesting how we use these terms because there are events that don’t fit naturally into either category – international or domestic terrorism. Imagine a scenario where you’re an FBI agent sitting on desk duty and somebody walks in and says, “I think my neighbor’s a terrorist.” You get out a sheet of paper and ask why the person thinks their neighbor is a terrorist, and they say, “Well I walked by the garage and there were some political posters on the wall, and he was making what looked to me to be a bomb.” The agent would say this is something we have to jump on and then ask, “what do you know about your neighbor?” They respond, “Well, he’s born and raised here, lived next to me my whole life but in the last couple of years, he’s acted unusual and he’s Muslim, and I saw an ISIS poster on his wall.”

Ok, that’s international terrorism. At that point, I can write “Classified” at the top of that page, and it’s a secret document that can be used under FISA as a counterintelligence tool, with a highly secretive way of handling all that information.

However, if they say, “Well, I don’t know much about my neighbor, he just moved here from Canada but there’s a Nazi flag on his wall and he was making a bomb,” suddenly that’s domestic terrorism. Even though this person is from Canada, that’s domestic terrorism. It really doesn’t make any sense.

If we just break down what the FBI calls domestic terrorism, that’s political violence from groups on the left, political violence from groups on the right, and all things in the middle. But it doesn’t mean that the FBI treats those things the same.

Governments tend to view any challenge to their hold on power as a threat, whether that is a protest or actual violence, and they tend to merge these two things together in a way that suppresses the protest, the challenge to power and policy, whether it’s violence or not. That’s what we saw during the Hoover era where he tended to see white nationalist violence as a relatively small concern, while viewing the civil rights movement as a threat to the nation.

Unfortunately, the rules put in place to prevent that from happening again – the attorney general guidelines – were significantly relaxed after 9/11 and most seriously relaxed in 2008. That relaxation, along with the national security imperative that was created by 9/11, has basically created the same set of circumstances that drove the Hoover-era abuses.

We have guidelines now that are not strong enough to prevent abuse, and we have inadequate oversight and excessive secrecy. We also have an imperative to prevent all acts of terrorism, not just solve them, which has caused an overzealous and aggressive pursuit of intelligence practices that tend to target not just people who are actually violent, but people who are perceived to be challenging the status quo. This tends to fall into the same categories – new immigrants, communities of color, political dissidents and whistle blowers.

Up until a year ago, I would have said that this over-aggressiveness in prosecuting international terrorism is the main problem in our treatment of terrorism, while the criminal justice approach to domestic terrorism is more effective. We don’t want to give the terrorists what they want, which is to be considered an enemy to go to war with, not a criminal.

TCB: So then, when you look at a situation like the attack on protesters in Charlottesville, would you still advocate the criminal justice – more domestic terrorism focused – approach as the most effective?

German: Well, remember that I said up until a year ago.

I have been shocked and disappointed at the reaction of law enforcement regarding the increasing violence by these far right protesters. I first noticed it in March of this year in Berkeley, where there were violent street battles between these far right extremists and the so-called “Antifa” counter protesters, and the police standing back and allowing that to take place. I was absolutely shocked by that and surprised when I heard Berkeley officials defending the policy. What happened immediately after was even worse violence at a protest in April, but this is totally predictable.

The message that this sent to violent people in the far right movement is that you can come to these protests, beat people up, and walk away. It empowered the criminal fringe in a way that they haven’t been empowered in quite some time.

Then there was another set of protests in Portland where the police allowed far right militia groups to provide security for the protest as if they are some kind of a licensed security outfit. There is actually a video of Department of Homeland Security officers allowing these militias to assist them in making arrests of counter protesters. Apparently, the IG is investigating that, but this was, again, shocking to me.

If you look at the victims of far right violence, very often they are police, and for the police to not recognize that these people pose the greater threat is hard for me to imagine if we’re working from any kind of an intelligence base. To the extent that you have anarchist and “Antifa” violence at protests, it’s confined to the protests and doesn’t lead to homicides. Certainly police can get frustrated by the tactics of these people, but they don’t come anywhere near the history of violence that comes out of the far right.

Once I recognized that this was going on, I realized that it goes all the way back to Sacramento in June of 2016, where there was a white supremacist rally and counter protesters showed up and there were some clashes, and some of the counter protesters were actually stabbed. And yet, most of the arrests were of counter protesters. There was this odd failure to recognize that there is a difference in the level of violence coming out of these groups. And these people on the white supremacist side were actual felons with criminal records, often violent criminal records, who were promoting on social media that their intention was to go to these protests and commit violence. They then filmed this violence and used the films to recruit more people for the next protests. Yet, somehow these people can travel around the country without any impairment by law enforcement, going from one protest to the next.

There is organized criminal activity for the purpose of a committing a crime here. Some of these people are actually on probation, going from protest to protest committing violence and filming that violence without law enforcement seemingly aware.

At the same time on the international terrorism side, we see an aggressiveness that goes beyond reason. Not just mass surveillance programs and excessive use of criminal informants, but aggressive sting operations as well.

There was a case in Miami where a person who was living on the street apparently had an animus against a particular synagogue – anti-Semitic in nature – and decided that he wanted to go do harm to that synagogue. The government informant assisted him in getting weapons to bomb the synagogue, and then, as they’re going there to plant the bombs, the informant says, “Hey, how about if we say we’re ISIS?” That was not an ISIS case, the person had nothing to do with ISIS, this was completely manufactured so the FBI could claim a victory in this international terrorism category. You don’t see that kind of stuff targeting the far right.

TCB: How would you reconcile these two approaches to domestic and international terrorism? This lighter hand on domestic terrorism and a more aggressive approach to international terrorism?

German: I wouldn’t characterize it as a light hand on domestic terrorism, I don’t think the domestic terrorists that I put in jail would have said that I was light on them.

I think what we need is an objective data-driven focus on violence, then a lot of the problems will go away. Whether it’s international terrorism or domestic, if we’re focused on violence, then all of our resources are focused on where they’re going to be the most effective.

Unfortunately, we’ve had an extra-legal counterterrorism initiative abroad that makes things more difficult because the terrorists want that war footing. They call themselves warriors, they want to be thought of as soldiers for a cause rather than criminals. Remember that ten Irish terrorists starved themselves to death in prison simply because they didn’t want to be seen as criminals in prison.

There is a failure to recognize that any political enemy who is engaging in terrorist violence is doing so out of weakness. If they had military power, you would call them rebels. If they were politically powerful, you would call them the opposition, and they wouldn’t need to resort to terrorism. So rather than recognizing that the resort to violence is a weakness, we’re responding with violence in a way that broadens the conflict.

It’s going to be a hard road now, but building international legal systems so that evidence collected in Pakistan or Indonesia can easily be brought to the United States and used in a U.S. courtroom – and vice-versa – is the way that terrorists will actually get defeated. Once people have access to legitimate tools to create political and social change, they would rather use those tools than violence, and once that exists, we can marginalize the people who would rather use violence.

In the United States, it’s just a matter of focusing on where there is actual violence. Focusing on the people who have criminal records, who have criminal intentions, and using the tools that we have in our criminal justice system to focus on the right people, while at the same time leaving people who are choosing to use the legitimate tools available to them so that they can do that, and so that other people see those tools as valid and effective.

The Author is Michael German

Michael German is a fellow with the Brennan Center for Justice's Liberty and National Security Program. His work focuses on law enforcement and intelligence oversight and reform. Prior to joining the Brennan Center, Mr. German served as the policy counsel for national security and privacy for the American Civil Liberties Union Washington Legislative Office. A sixteen-year veteran of federal law enforcement, Mr. German served as a special agent with the Federal Bureau of... Read More

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