A reading of the Anti-Riot Act
Shooting people is a crime. White supremacy is not. We're all safer that way.
After the two mass shootings last week, there was a lot of discussion about domestic terrorism. Specifically, I saw a lot of variation on the idea that “domestic terrorism” is not a federal crime, and that’s bad, and we should do something about that.
The thought process seemed to be:
mass shootings are bad —> mass shootings are domestic terrorism —> bad things should be criminalized —> can you believe that domestic terrorism is not a crime???
Shooting people is obviously a crime. It’s just not always a federal crime. In order for something to be a federal crime it has to fall under the purview of the federal government. That mostly means things that affect interstate commerce or have some sort of international component. (Selling) drugs and guns are pretty easily made into federal crimes, as is terrorism committed by non-U.S. nationals. Assault, theft, murder, and homegrown terrorism not so much.
It’s not super clear to me why the distinction matters to anyone except the prosecutors trying to make their careers on media attention.
For example, in the Oklahoma City bombing, Timothy McVeigh killed 168 people. He was tried in federal court on eight counts of murder, because eight federal agents died in the bombing. Killing a federal agent happens to be one of the ways for murder to become a federal crime. He was also convicted for using a weapon of mass destruction, conspiracy to use a WMD, and destroying a federal building—which are federal “terrorism” crimes regardless of who does them or where, but they don’t including shooting, so we’re here talking about how domestic terrorism crimes don’t exist. McVeigh was sentenced to death.
The other 160 deaths McVeigh caused were state crimes, and he would have to be tried in state court to be convicted of them. The Oklahoma City DA’s office didn’t go forward with a state court trial after McVeigh got the death penalty, but theoretically they could have. He would have been convicted and probably sentenced to death. (While the state can try a person in two different jurisdictions, it can only kill them once.)
It slowly came into focus last week that this line, “domestic terrorism is not a crime” was being pushed by the FBI, which wants Congress to write a new law more explicitly defining “domestic terrorism” to help them arrest and prosecute people on the federal level. When I say “being pushed by the FBI,” I mean there’s literally a press release from the FBI Agents Association. I don’t have sources in the FBI, but I think stories like this, from Huff Post, are probably embarrassing for them:
This headline (and the general “domestic terrorism isn’t a crime!!!” narrative) completely misunderstands the real, subtle jurisdictional issues at play here (alt: federal prosecutors measuring their dicks against state DAs), instead leaning on the idea that white supremacists are somehow getting away with crimes because Congress has been sleeping on domestic terrorism.
Violence perpetrated on behalf of white supremacy is on the rise, it’s criminal, it’s terrorism, it should be stopped. But these stories bring up some questions: should it be stopped because it’s violence, or should it be stopped because of the political ideology behind it? And, again, why does it matter if the federal government is involved?
A lot of media I see portrays state criminal prosecution as a sort of kid version of Federal Crime. If the feds cannot prosecute it, it’s not a Real Crime. There’s some hand waving to do about the difference between state and federal prosecutions, but it’s really all the same shit. It all ends in putting people in cages. People get sentenced to decades, life, even death in both kinds of courts every day for real crimes they may or may not have committed.
The New York Times summarizes one Justice Department attorney’s argument about why the government thinks a federal domestic terrorism law is necessary:
Mary McCord, a former senior Justice Department national security official who has long called for enacting a domestic terrorism law, suggested that the symbolic element could make a substantive difference to the country.
Among other things, she said that the government needed to maintain trust with Muslim-American communities so people would sound warnings if they heard something potentially dangerous. Calling Islamist attacks “terrorism” in court, but not doing the same for white supremacist attacks, is a racist double standard that undermines such trust, she argued.
This argument is all over the place, but I generally don’t think that “our current terrorism laws are super racist, so we should make up more redundant crimes to seem less racist” is all that convincing. I think the federal government could do a better job building and maintaining trust with Muslim-American communities by pulling back on the widespread surveillance and discrimination of Muslims in the U.S., or by removing the Muslim ban, or by stopping the President from openly spreading Islamophobia, but I’m just spitballing here.
Nowhere in Ms. McCord’s argument is any indication that “domestic terrorism” includes an act that isn’t already a crime. Domestic terrorism laws, like the “international terrorism” laws we already have (which sometimes cover domestic stuff, like bombing a federal building!), would be rooted in criminalizing the political ideology that motivates the acts rather than the acts themselves (which, again, are already crimes).
I am not sure that it’s a good idea to give the federal government (more) power to prosecute people based on their political beliefs. Sure, in a perfect world I would love to see white supremacists rot in hell, but I don’t really see a future where the Trump Administration devotes a lot of resources to that particular project.
I want to go back to the Huff Post story screenshot above. It’s from June, and it’s about some guys from California who are part of the white nationalist Rise Above Movement (RAM). They talked to each other about going to the Charlottesville rally in August 2017—although it’s unclear to me whether they are actually alleged to be involved in any violence there—and also went to some California political rallies to beat up some protesters. Again, beating people up is a crime. But it’s not a federal crime. They could have been prosecuted in state court in California and had that be the end of it.
Instead, the feds got involved. Federal prosecutors in Virginia, in a response to Charlottesville, charged several RAM members under something called the Anti-Riot Act, which is a little-used law tacked on to the Civil Rights Act that basically criminalizes crossing state lines while thinking about or maybe talking to someone who might incite a riot.
(They also prosecuted James Fields Jr., the guy who drove his car into protestors and killed someone. According to the Washington Post, “Fields had already been indicted on murder charges by the state, but to send a message, the [U.S. Attorney’s] office wanted him to face federal charges as well.”)
The resurgence of the Anti-Riot Act has been nagging at me for days. It was passed in 1968 as a response to the “urban riots” in Detroit in the mid-1960s (and potentially directed at one specific activist—SNCC head H. Rap Brown). It was used just a handful of times in the years after it was passed before an appeals court gave a vague nod toward it being unconstitutional and the feds moved on. However, the few times it was rolled out, it was directed at Black political organizers and Vietnam War protestors. The Post somewhat flippantly calls its use an “ironic weapon of choice” for federal prosecutors.
Spoiler: as the Huff Post headline alludes to, back in June a judge in California dismissed the Anti-Riot Act charges because it’s super unconstitutional and criminalizes political speech and assembly in addition to violence (the Washington Post story I’ve been quoting is a little old, the case seems to have been transferred from Virginia to California because that’s where all the RAM defendants are from).
No one should be sad about this development. The history of the Anti-Riot Act is integral to understanding what it is intended to do, which sure as hell is not suppress white supremacy in some sort of vision of equality and democracy. It’s not a step-stone on the way to racial justice in America. Were it to be widely used, it would be a tool of the powerful to suppress political dissent, which very often is the opposite of white supremacy.
Less than two years ago, between the Charlottesville rally and the judge dismissing the RAM case, the FBI’s “Domestic Terrorism Analysis Unit” arrested a black man in Dallas for being a “black identity extremist” based on Facebook posts he wrote criticizing the police. Rakem Balogun spent five months in jail before being released because federal prosecutors couldn’t find any actual crimes to go forward with.
These are not magically two different FBIs, or two different federal governments that are asking for more power to prosecute people based in part on their political beliefs. It’s not really a different federal government than the one that wanted to prosecute protesters in 1968.
“Domestic terrorism” crimes are not a can of worms anyone with any respect for civil rights should want to open.