How the KKK Produced the Department of Justice
AUTHORS: BRUCE HOFFMAN, JACOB WARE
Originally published by Just Security on 8 January 2024
Among the most controversial proposals to address the threat of domestic terrorism in the United States is the proposal for new laws that would specifically address acts of politically-motivated violence, much as current hate crimes statutes express society’s particular opprobrium of those crimes. Conviction of a hate crime can increase a sentence by up to three times, sending a powerful message that these acts are intolerable and unacceptable. However, critics of this legislation—including the RAND Corporation’s longstanding terrorism expert, Brian M. Jenkins, and former FBI agent and now Brennan Center analyst, Michael German—argue that domestic terrorism legislation, and specifically the designation of domestic violent extremist groups as terrorist organizations, would inevitably become dangerously politicized and partisan. They fear that, using such a law, a future authoritarian president could simply designate any group or movement that protested, demonstrated against, or otherwise disagreed with that leader’s policies as terrorists.
We believe that these concerns can be overcome. Congress should consider enacting a high-threshold domestic terrorism law to formally criminalize violence and conspiring to commit violence targeted against individuals based on race, ethnicity, religion, national identity, sexuality, gender, political affiliation, and other protected categories. A domestic terrorism law of course needs to be established and applied with great care. It needs guardrails and high standards, to prevent it from being politically weaponized. A law that would enable the Justice Department to charge only the perpetrators of lethal violence—or plots to commit lethal violence—could help to ensure that it cannot be used against peaceful protestors or political extremists who nonetheless eschew or abjure from violence.
Given the depth of American division and dysfunction, this solution might appear excessively idealistic. But, at a time when fear of civil war has again surfaced, it bears remembering that this country has faced profound internal strife and division before—and emerged intact. The fabric of the nation was stitched back together despite hundreds of thousands of deaths during the Civil War, with many on the losing side putting aside their loss and resentment to build a more promising future by working to re-unite the country.
Indeed, the very history of federal law enforcement and justice in the United States should inspire optimism. Both are firmly rooted in counterterrorism—initially against antebellum violent white supremacist groups. In 1870 President Ulysses S. Grant created the Department of Justice specifically to counter-far-right terrorism from the Ku Klux Klan and other violent groups active in post-Civil War southern states. In a letter to the Speaker of the House, Grant wrote,
“there is a deplorable state of affairs existing in some portions of the south demanding the immediate attention of Congress. If the attention of Congress can be confined to the single subject of providing means for the protection of life and property in those sections of the Country where the present civil authority fails to secure that end, I feel that we should have such legislation.”
Congress enacted new laws, including the Ku Klux Klan acts, and empowered the newly created Department of Justice to suspend habeas corpus and arrest suspected terrorists en masse. Despite the failed efforts during Reconstruction to guarantee the rights of Black Americans in the South, the Ku Klux Klan as an organization was nonetheless effectively “smashed.” And it would not be until nearly half-a-century later that it re-emerged. A new domestic terrorism law today seems a small step in comparison—but one that would send a resounding societal message that there is no place for political violence in a democracy.
The Status Quo Creates Inequity and Recidivism Problems
The status quo is clearly insufficient. First, the absence of domestic terrorism laws has led to an inequity of sentencing depending on whether the crimes were committed on behalf of designated foreign terrorist organizations or a domestic violent extremist group. There is a substantial sentencing gap today between violent far-right extremists convicted of violent offenses in this country, for example, compared with others convicted of similar crimes for foreign groups. According to the Program on Extremism at George Washington University, the average sentence for those convicted in the United States of providing material support to the Islamic State is 13.5 years. Violent, entirely domestic extremists, however, currently cannot be charged for providing material in support of patently violent domestic organizations or for planning and plotting that are otherwise classified as terrorist attacks when a foreign terrorist entity is involved.
Former U.S. Coast Guard officer Christopher Hasson is a case in point. Violent extremists like Hasson, who amassed a small arsenal with which to assassinate elected Democratic Party representatives and media figures (prosecutors claimed he intended “to murder innocent civilians on a scale rarely seen in this country”), are typically prosecuted for other non-terrorist offenses, such as drug and gun charges, in order to ensure convictions. Hasson was sentenced to over 13 years in prison, but was never tried for his terrorist plans themselves. Hasson’s initial sentence was instead more than tripled due to a “terrorism enhancement,” that Hasson later unsuccessfully argued had been improperly used. The Circuit Court of Appeals ruling confirming the judgment would point to the fragility of this tool, finding that the judge had “reasoned that Hasson’s rhetoric and weaponry viewed separately would not justify applying the terrorism adjustment, but in combination they revealed ‘that he was actually in the process of formulating a plan that makes this a case where the terrorism enhancement (applies).’”
To get around this gap in our laws, in some situations federal authorities appear to have resorted to using the name of a designated foreign terrorist organization to secure material support to terrorism charges and thus obtain longer sentences for persons convicted of these offenses. This was evident in the FBI sting operation that resulted in the 2020 arrest and conviction of two Boogaloo adherents who were apprehended after discussing violence against government targets to an undercover agent purporting to represent Hamas. In other words, the legal tools available to the government were insufficient enough that law enforcement effectively moved the suspects from its “domestic violent extremist” categorization to its “homegrown violent extremist” grouping—“individuals who have been radicalized primarily in the United States, and who are inspired by, but not receiving individualized direction from, foreign terrorist organizations.”
The comparatively shorter sentences handed to convicted domestic terrorists are damaging for at least two reasons. One, they reinforce a perception that “foreign” terrorists, often distinguishable from “domestic” terrorists only by the color of their skin and religion, are treated more harshly by an allegedly racist judicial system. This “sows confusion,” according to Department of Justice counsel for domestic terrorism, Thomas Brzozowski, and also leads to assumptions that international terrorism perpetrated by Muslims, for instance, is a more serious threat to the United States than far-right terrorism—which has been statistically untrue in the post-9/11 era. As Helen Taylor, whose scholarly work focuses on terrorism and hate crimes, writes, “labelling an act as terrorism serves as an official statement about the severity of the crime. While hate crime statutes carry significant penalties, they nevertheless do not carry the symbolic weight of a terrorism charge.” Legislation establishing a domestic terrorism legal category would also contain provisions that would ensure the improved collection, collation, and analysis of data on terrorist attacks perpetrated by different ideological extremists across states and localities throughout the United States, which does not exist in any uniform fashion now, and would allow for better calibration of law enforcement responses.
But second, and even more importantly, domestic terrorists are often released after remarkably short prison terms, creating substantial recidivism concerns and appearing to excuse certain violent plotting. The founder of the “terroristic neo-Nazi organization” Atomwaffen Division, Brandon Russell, was sentenced in 2018 to five years imprisonment on charges of “possessing an unregistered destructive device and for unlawful storage of explosive material”—despite arresting law enforcement officers believing they successfully thwarted his plans to perpetrate a mass casualty attack. Similarly, in 2020 another Atomwaffen member, Andrew Thomasberg, was sentenced to a year and a day in prison on charges of possessing firearms while a drug user. He had participated in the infamous 2017 Charlottesville “Unite the Right” rally, and when arrested had over a dozen firearms in his home along with 50 loaded magazines. He had previously been arrested as a juvenile for firing a weapon at a moving car during a botched drug deal. And, in 2021, two members of The Base (a white nationalist extremist network), Patrik Mathews and Brian Lemley, pled guilty to various firearms and immigration charges, related to planned attacks that entailed “crippling such infrastructure as roads and power plants to provoke a White uprising,” assassinating elected representatives, killing police officers, and overthrowing the U.S. government. Prosecutors had requested 25-year prison terms. Mathews and Lemley were sentenced to nine years imprisonment—only after the presiding judge invoked the special “terrorist enhancement” provisions that extended their time in prison three times that of federal sentencing guidelines. By comparison, Nicholas Young, a former suburban Virginia police officer, was sentenced in 2018 to 15 years in prison on charges of attempting to provide material support to ISIS. And, in 2022, Jonathan Guerra Blanco of Miami, Florida, was sentenced to sixteen years in prison after he was similarly convicted of attempting to provide material support to ISIS.
With such disparity, recidivism becomes a serious concern when it comes to countering far-right terrorism. In February 2023, Brandon Russell was again arrested and charged with an accomplice for plotting to attack five electrical power substations in Maryland with the intention of “completely destroy[ing]” Baltimore. The Atomwaffen leader had been released from his previous sentence on explosives charges in August 2021.
A New Approach Rooted in Our History
The challenge for those drafting the law will indeed be in ensuring such legislation cannot be weaponized by political actors. One possible guardrail would be to ensure that the law can only be employed in cases where lethality is achieved or desired. Another option would be a provision on scale. The state domestic terrorism law in New York, for instance, states that “a person is guilty of the crime of domestic act of terrorism motivated by hate in the first degree when, acting with the intent to cause the death of, or serious physical injury to, five or more other persons (emphasis added), in whole or in substantial part because of” a number of protected categories. The law was successfully applied against Buffalo shooter Payton Gendron, who killed 10 in a white supremacist attack in May 2022, and may provide an effective model for a federal statute.
Given that the entire Department of Justice was founded specifically to counter domestic terrorism, a new law to better prosecute today’s domestic terrorists and more effectively deter people intent on using violence to advance a political agenda seems a small step in comparison.
