Federal law enforcement officials have all the tools necessary to address far-right violence proactively – as my own successful investigations as an FBI undercover agent in the 1990s indicate. They have simply chosen as a matter of policy not to prioritize these cases. What role racism, latent or overt, plays in these decisions has yet to be explored.
There are currently 52 federal terrorism laws available to address entirely domestic acts of political violence. Congress has also passed five federal hate crimes statutes specifically designed to punish the types of violence white supremacists and other far-right militants often commit against vulnerable communities. Organized crime and conspiracy statutes can also be used to dismantle white supremacist gangs.
When white nationalists commit deadly attacks like the El Paso shooting, these crimes fit the statutory definition of domestic terrorism. Terrorism remains the FBI’s top priority. It ranks hate crimes fifth and organized crime sixth, however. So, when FBI agents or federal prosecutors initially label far-right violence as hate crimes, or gang crimes, they de-prioritize these cases, limiting the available resources and narrowing the scope of the investigations.
Worse, as a matter of policy, the justice department defers the vast majority of hate crimes to state and local police and prosecutors, who are often ill-equipped or uninterested in pursuing these cases. Justice department crime victim surveys estimate there are approximately 230,000 violent hate crimes annually, yet federal prosecutors charge only about 25 hate crimes defendants each year. State and local law enforcement, however, are not picking up the slack. Only about 12% of state and local law enforcement agencies report hate crimes occurring in their jurisdictions, and in some states, reported hate crimes are rarely prosecuted as such.
These deficiencies in the law enforcement response to hate crimes are not new. And a justice department-funded study in 2000 examining the barriers to hate crime reporting identified fear of the police as the primary reason victims refuse to report. This is unsurprising: the communities targeted by white supremacist violence are often disproportionately targeted by police violence and abuse as well.
It is easy to paint white supremacy as an extreme ideology relegated to the fringes of our society. The violence these fringe actors inflict on our society tears at the social fabric, but it represents just a tiny fraction of the 17,000 annual homicides in the US. It is a manageable problem when law enforcement and our government leaders focus on reducing it. Historically, they have chosen not to.
The legacy of our government’s official sanction of white supremacy continues to linger, particularly infecting our criminal justice system and immigration policies. The FBI remains an overwhelmingly white, male organization, which may partly explain why it would treat white supremacist violence as a less serious concern than an imaginary Black Identity Extremist movement. Recent reports documenting law enforcement cooperation with violent far-right groups and antipathy toward their victims at riotous demonstrations in Sacramento, California, and in Portland, Oregon, demand investigation to see what role bias plays in the police response.
Though the justice department and FBI officials have claimed renewed interest in tackling white supremacist violence, their actions raise continued concerns about how they are using counterterrorism authorities.
More troubling, recent reporting that revealed the active participation of police officers in white supremacist groups and racist social media activity by a small but significant number of police officers and border patrol officials makes clear that overt and organized racism continues to fester within agencies sworn to protect the public safety as well. The FBI has repeatedly warned its agents about white supremacist infiltration of law enforcement, urging caution about sharing sensitive intelligence about domestic terrorism cases. But it has taken few concrete actions to protect communities of color from these racist officers. Given this disturbing reality, giving law enforcement greater domestic terrorism powers may not be the safest or most effective solution.
So what is Congress to do?
Policymakers and intelligence analysts need better data regarding the scope of white supremacist violence in this country and around the world in order to craft more effective responses. A number of pending bills require the justice department to provide this information.
We need a new approach, not deeper investments in failed methods.
Our latest Brennan Center report urged Congress to find ways the federal government can fund programs designed to repair the communal injuries that hate violence inflicts, by building social inclusion through investments in education, social services, and employment. When white supremacists use violence to divide us, our response should be designed to empower the victimized communities, not just the police.
Michael German, a former FBI agent, is a fellow with the Brennan Center for Justice’s Liberty and National Security Program and the author of Disrupt, Discredit and Divide: How the New FBI Damages Democracy