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Far Right Extremism on the Rise: How US Law and Policy Falls Short in Preventing and Prosecuting Dom

By Helina Daniel

With increased acts of domestic terrorism in the US, far right extremism is a growing threat in the US. The rise of domestic terrorism highlights how the US falls short in the prevention and prosecution of domestic acts of terror, especially as relates to those perpetrated by far right or white nationalist organizations. Domestic acts of terror like the synagogue shooting in Pennsylvania, the mail bomber, and the shooting of two black men in a grocery store in Kentucky illustrate that, even if acts are labeled as domestic terrorism, the perpetrators will likely not be charged with terrorism.

US law defines domestic terrorism as “perpetrated by individuals and/or groups inspired by or associated with primarily U.S.-based movements that espouse extremist ideologies of a political, religious, social, racial, or environmental nature.” However, that is where the law stops. There is no domestic terrorism statute that prosecutors can use to charge perpetrators, such as the synagogue shooter, with, even though the perpetrator’s act fits well within the definition of domestic terrorism.  

The most commonly used statute in prosecuting terrorism is 18 U.S. Code §2339A and  §2339B, which falls short in adequately encompassing domestic acts of terror. While §2339A would permit prosecutions of domestic terrorists, according to Just Security, only two people were charged between 2012 and 2017. However, §2339B requires a nexus to a foreign terrorist organization, thus eliminating prosecutions of domestic terrorism entirely. Though the US Secretary of State is tasked with designating foreign terrorist organizations, there exists no equivalent list or guidelines for designating domestic terrorist organizations. The emphasis in our laws on foreign terrorist threats is indicative of the amount of attention and resources placed in fighting these threats.

Under this administration, the little effort and resources that are used to combat far right extremism as a domestic terrorist threat are being redirected to combat foreign terrorism and Islamic extremism. More resources are allocated to those groups designated as foreign terrorist organizations to prevent and prosecute their threats to national security, and these organizations and individuals affiliated with them are subject to closer monitoring and implicate other federal laws, such as the Foreign Intelligence Surveillance Act, that empower authorities to dismantle the threats.

Despite the rising threat domestic terrorism poses in the US, particularly in this political climate where racism, xenophobia, and anti-semitic rhetoric are at a high, more efforts should be placed on condemning, preventing, and prosecuting acts of domestic terrorism on a federal level and under a domestic terrorism statute. While some may argue that domestic terrorism statutes would implicate First Amendment concerns, the Supreme Court held in Holder v. Humanitarian Law Project, while assessing First Amendment concerns in the prosecution of Material Support for Terrorism, that the statute at issue did not violate the plaintiff’s right to free speech. Thus, that statute should be expanded to include domestic terrorist organizations, and, like foreign terrorist threats, efforts should be made to track and monitor the rise of these domestic terror organizations. Domestic terrorism is a rapidly growing safety concern that should be dealt with swiftly to ensure safety and security for everyone, especially the minority populations most vulnerable to its threat, so recent events could be prevented.

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