Over the last few months, there have been growing calls to categorize white nationalism as a form of terrorism and to extend counterterrorism laws to explicitly target domestic terrorism, particularly white supremacist violence. The FBI Agents Association, which represents more than fourteen thousand active and former bureau agents, has called on Congress to make domestic terrorism a federal crime. Meanwhile, Representative Adam Schiff (D-CA), the chairman of the House Intelligence Committee, recently proposed a “Confronting the Threat of Domestic Terrorism Act,” citing the need to tackle white supremacist attacks. The legislation would expand the types of crimes that federal prosecutors could charge as domestic terrorism if the attorney general certified they were intended to intimidate a civilian population or influence government policy.
Many concerned about white supremacist violence support these proposals, highlighting the stark discrepancy in the ways the government treats Muslims and whites when they commit acts of political violence. What could be wrong with wanting to remove the racial biases in the application of counterterrorism? Why wouldn’t we want the full force of federal law to be applied to racist mass murderers? But to think that would be a mistake. It would actually end up worsening the problem of white supremacy and further expanding the reach of law enforcement. To understand why requires understanding how the word “terrorism” operates in US political and legal culture and the racially coercive powers its use enables. It also requires taking seriously the arguments of prison abolitionists who caution against “reforms” that actually give law enforcement more power.
Years and decades of organizing work and movements like Critical Resistance, Black Lives Matter, and #Not1More Deportation — along with influential analyses by scholars such as Angela Davis and Ruth Wilson Gilmore — have produced a substantive shift toward radically transforming the legal system — on the issues of ending cash bail and solitary confinement, on electing progressive district attorneys who promise what they won’t do instead of what they will, on real civilian oversight over the police, and prison abolition. That work has moved us beyond the assumption that only certain kinds of reforms for certain kinds of people could be advocated. That work — and the insights it has produced — has created the space and the urgency to take on federal “counterterrorism” law and policing, which has largely escaped sustained challenge.
In July, Congresswoman Alexandria Ocasio-Cortez said the Department of Homeland Security should be eliminated. While her comment initially focused on ICE abuses, it zeroed in on the fact that we cannot undo contemporary injustices without dismantling the apparatus of such legalized injustice. To understand the structures of policing and imprisonment — and what supports them ideologically and materially in the United States — necessitates examining the domestic war on terror as well.
Like with imprisonment, a radical examination of “counterterrorism” shows it fails to work even on its own terms: many more civilians have been killed as a result of the war on terror than the “jihadists” have killed, or could ever have hoped to kill. The wars, bombings, and covert operations pursued by the United States have killed nearly five hundred thousand people in Afghanistan, Iraq, and Pakistan, according to a Brown University estimate. Families and whole swaths of communities within the United States have been devastated by domestic practices of intensive targeting and prosecution. Like the war on drugs, the war on terror at home does not reduce violence but spreads it; its impacts reverberate from schools to family life to diminished political power for Muslim-American communities. Under the guise of policing “homegrown terrorism,” it has dramatically expanded the politics of fear and suspicion around Muslims and the sphere of law enforcement around Muslim communities.
Just as the so-called war on drugs mobilizes a racial idea of gangs to criminalize — for example, by adding people to gang databases simply for residing at a particular housing project — the so-called war on terror uses notions of terrorism and extremism to criminalize Muslim identity and “anti-American” political thought. Both use policing and prosecution as key tools of “war.” The very premise of the post-9/11 counterterrorism industry was that a Muslim threat required every arm of government on high alert and new, wide-ranging tools to combat.
For the past two decades, holding certain political ideas as a Muslim, engaging in certain religious practices as a Muslim, looking at certain materials online as a Muslim, fraternizing with certain kinds of Muslims, traveling to certain parts of the world as a Muslim have become suspect. The FBI, along with local police like the NYPD, have used such ideas and activities to trigger intensive surveillance and criminalization. This has led to post-9/11 immigration sweeps, which resulted in zero actual prosecutions despite the detentions, and a steady stream of FBI stings and domestic material support prosecutions, where plots are often masterminded by government informants or charges stem largely from First Amendment conduct (now effectively criminalized through material support bans).
The current sprawling system of counterterrorism policing has its origins in the 1970s, when the United States, faced with anticolonial movements that had unsettled geopolitical realities, found a new enemy — a Muslim menace. In the 1990s, such views solidified into an official culture of suspicion. Within the logic of the era, policing and punishment were the solution. Bill Clinton’s 1996 Antiterrorism and Effective Death Penalty Act introduced a ban on “material support” to foreign terrorist organizations, enabling the criminalization of Muslims on the basis of their expressed religious views, particular ideology, or connection to Muslim community organizations or overseas groups — at the same time that it dismantled habeas corpus rights and defendants’ abilities to challenge their convictions for other crimes. Along with the 1994 Crime Bill and the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, this Clintonian trifecta contributed to the expanding criminalization and spiraling rates of incarceration of black and brown people in the United States.
The USA PATRIOT Act, passed six weeks after 9/11 and largely reauthorized since, gave law enforcement agencies enlarged authority and latitude, the ability to operate in secret, and an expanded material support ban. In the months after 9/11, the Justice Department raided the homes of thousands of Muslim men; many were deported, others held for months without charge. By 2004, at least a hundred thousand Muslims living in the United States were estimated to have personally experienced one of the various state security measures, including arbitrary arrests, secret and indefinite detentions, prolonged detention of “material witnesses,” closed hearings and use of secret evidence, government eavesdropping on attorney-client conversations, FBI home and work visits, wiretapping, seizures of property, removals of aliens with technical visa violations, and mandatory special registration.
Over the past two decades, a steady stream of federal terrorism prosecutions has simultaneously worked to scare the nation and to demonstrate law enforcement’s ability to keep us safe. In the twenty-three years since their introduction, material support bans have allowed the criminalization of “pre-crime,” giving law enforcement the tools for “preventive prosecution” (in other words, to criminalize conduct before any plot or criminal event has even materialized). Despite its fearsome-sounding name, “material support” is legally defined to include “training” and “expert advice or resources”; thus, it functions as the black box where all sorts of constitutionally protected activities can be classified as suspect. No evidence of a plot needs to be shown, just “support” to a known terrorist organization.
Material support charges carry disproportionately long sentences — fifteen or twenty years per count with the government typically charging multiple counts for the same allegation. The federal government has often disappeared people charged with terrorism into solitary confinement with special administrative measures (which cordon off the prisoner from nearly any contact with the outside world) for years before their trials, the better to isolate and intimidate them into accepting a plea — and often classified the evidence against them.
As an extensive report by Human Rights Watch and Columbia Law School’s Human Rights Institute demonstrated, material support convictions have encompassed prosecuting Muslim charities like the Holy Land Foundation, and criminalizing the translation of websites, allowing friends to store luggage in your apartment, and loaning money for plane tickets. Buying travel tickets or going on paintball excursions, which Americans do all the time, figure as suspicious activities for Muslims. And these cases, once filed by the government, are hugely successful for federal prosecutors; they have a near total conviction rate. In turn, these prosecutions give law enforcement agencies an apparent justification for the mountains of money they request each year. As the FBI explained in requesting its 2019 budget of $8.9 billion, “counterterrorism” is its top priority. In other words, they contribute to the mass expansion and sustenance of law enforcement today.
An avalanche of money for weapons and new technologies has poured into law enforcement on a scale impossible to comprehend. According to the Washington Post’s investigation, “The top-secret world the government created in response to the terrorist attacks of September 11, 2001, has become so large, so unwieldy and so secretive that no one knows how much money it costs, how many people it employs, how many programs exist within it or exactly how many agencies do the same work.” Across the country, police department after police department received Department of Homeland Security (DHS) funding to acquire everything from armored vehicles to digital surveillance tools. A DHS-funded nationwide network of “fusion centers” was established to collate surveillance data from multiple agencies. Counterterrorism put law enforcement on steroids — to an extent that it is no longer sufficient to talk only about a prison-industrial complex but also a terror-industrial complex.
Equally significantly, after 9/11, law enforcement agencies were able to use the rhetoric of counterterrorism to take the legs out from under many of the rising anti-police brutality movements. It became un-American to critique the police — they were now “first responders,” securing the homeland from terrorists. At the same time, progressive impulses got tainted with counterterrorism fears. When congressmen led by John Lewis reached a breaking point around gun control inaction and held a sit-in on the floor of the House, what they actually focused on was ending the ability of people on the no-fly list from buying guns (despite no evidence that people on the no-fly list were engaging in recent acts of gun violence and lots of evidence of the discriminatory nature of the no-fly list).
National security has long been a way to police movements, used to justify surveilling Dr King, the Nation of Islam, Palestinian-American activists, and a host of others. The war on terror married old practices with new tactics. By 2008, the FBI had recruited fifteen thousand paid informants, ten times the number working under COINTELPRO in the 1960s (when Congress began its hearing into COINTELPRO in 1974, the FBI had 1,500 informants). Deploying these informants across the country, the Bureau has tasked them with listening for “anti-American sentiments” among Muslim communities. Indeed, key to counterterrorism law enforcement is the policing of Muslims who hold certain kinds of religious and political beliefs, who are critical of US domestic treatment of Muslims within the United States and, even more so, support ideas or groups at odds with US interests. Law enforcement has also aimed squarely at Muslim young people. “Since we’re looking for young people re-engaging with their Islamic faith, the local MSA [Muslim Student Association] is a great place to start,” instructed one FBI training presentation.
When these informants find people espousing such “un-American sentiments,” their FBI handlers often develop elaborate schemes to try to ensnare their subjects in fake plots, supplying weaponry and often tossing around large sums of money. It is no wonder that many of the so-called domestic terrorists prosecuted in the United States over the past fifteen years have been poor, mentally ill, or otherwise vulnerable. One example is the investigation of Luqman Abdullah, an African-American imam at a mosque on Detroit’s impoverished West Side. His outspoken criticisms of the government prompted a two-year “counterterrorist” operation that involved entrapping congregants into transporting stolen goods. The operation culminated in 2009 in a raid by sixty law enforcement officers, including a special operations team the FBI had flown in from Quantico, Virginia. Abdullah was killed by FBI agents at close range. His son, Omar Regan, views the killing as “unfinished business” from the days of COINTELPRO.
One key lesson to emerge from abolitionist organizing is to be wary of “reforms” that promise safety but actually add power and reach to law enforcement. The FBI’s “black identity extremists” designation, for example, demonstrates how the logic of counterterrorism crosses over to affect others, too. Developed by the FBI’s Counterterrorism Division in 2016, the program falsely advised local law enforcement agencies that there was a “resurgence in ideologically motivated, violent criminal activity” among black groups opposing police killings. In 2013, under President Obama, the FBI put Assata Shakur on its list of “most wanted terrorists.” Black Lives Matter has been called a “terrorist group” by a police chief, and a petition calling for the movement to be officially labelled a “terrorist organization” attracted 140,000 signatures in two weeks. To further expand the power of the state around domestic terrorism seems foolhardy. It is no surprise, given rising calls for domestic terrorism legislation, that President Trump called for designating Antifa a terrorist organization. Intrinsic to the counterterrorism enterprise is policing ideas that the state doesn’t like.
To see the injustices in “counterterrorism” law enforcement is to see how racialized fear works to validate amplified policing and incarceration more broadly. Waving the flag of counterterrorism works as a silencer, placing a protective shield around law enforcement and government action, cloaking their actions in secrecy and necessity. Policing and prosecution get one of their biggest justifications from policing terrorism. By looking directly at counterterrorism policing, the injustices rife within it come into view. And by questioning its practices, one of the central pillars of why we need expanded policing is undermined.
Like challenges to the criminal legal system more generally, taking on national security abuses means taking on the apparatus and architecture of national security law enforcement itself. People are right to point out that there is a disparity in how white and Muslim perpetrators of mass violence are labeled. The way forward, though, is not to broaden the use of the term “terrorism” — and the assumptions and government practices that go with it — but to reassess the ways the country currently polices terrorism and probe more deeply into the social and political roots of ideological and racial violence.
One of the great myths after 9/11 was that the government didn’t have the tools to go after foreign terrorist violence — they did. But we gave them massively expanded powers leading to widespread surveillance at home, a mushrooming of government informants, the widespread targeting of Muslim organizations, and the policing of new political groups. One of the great myths today is that they don’t have the tools to go after white supremacists — they do. We have all the tools we need to prosecute white supremacist violence. We don’t need material support extended to domestic terrorism; we need it repealed for foreign terrorist organizations. In other words, we shouldn’t level up but level down.
Part of what the use of the term “terrorism” does is grant law enforcement greater leverage, deeper reach into the realm of political ideas and association, and dramatically expanded funds. Ending the material support statute is one element in removing Muslim political identity and religious association from the sphere of criminalization. Curtailing the mass deployment of informants in Muslim communities is another. We must be wary of reforms that say they will address racism through expanding policing and prosecuting powers. Under the guise of safety, they expand surveillance. Under the guise of antiracism, they fuel criminalization. Under the guise of fairness, they expand state scrutiny and law enforcement power.