Federal prosecutors were concerned that Dakota Reed's online threat was too vague to prosecute under federal law, and passed his case on to local law enforcement. Photo / David Ryder, New York Times
Dakota Reed's mind brimmed with thoughts of mass murder. In November, he wrote on Facebook, "I am shooting for 30 Jews."
The next month, he uploaded a video of himself in his bedroom of his mother's Seattle-area home proudly displaying new gun sights he had mounted on his AR-15-style semi-automatic rifle. White supremacist propaganda adorned the walls. He said he was "fixing to shoot up" a school.
The FBI, which had been investigating the 20-year-old Reed for about four months, weighed charging him. But federal prosecutors were concerned that the threat was too vague, so the FBI quickly passed the case on to local law enforcement officials, who thought they could build a case under state law. In early December, a detective from the Snohomish County Sheriff's Office arrested Reed. He was charged with making bomb threats and pleaded guilty in May. He was scheduled to be sentenced Wednesday.
The outcome was typical of the limits the FBI faces investigating domestic terrorism cases, roughly defined as violent acts inside the United States intended to intimidate a part of the population. The First Amendment protects hate speech and other activities that might be early indicators of plans to commit violence, keeping agents from investigating or making arrests in many cases. Agents cannot always rely on federal law, unlike in international terrorism cases in which statutes were enacted to address the threat after the September 11 attacks. Instead, the FBI often turns to local prosecutors to charge people they are concerned might be planning domestic attacks.
Now with an increase in such attacks in recent years, particularly racially motivated mass shootings in Charleston, South Carolina; Pittsburgh; San Diego and elsewhere that drew heightened attention, a debate has emerged about whether federal law enforcement, in particular the FBI, is sufficiently equipped to tackle the problem using existing laws and resources.
"The rise of white supremacy is an undeniable threat," said Senator Tim Kaine, D-Va., one of several lawmakers who have voiced concerns about the problem. "As the threat of violent white supremacy continues to mount, we must do more."
Democrats and others have called on President Donald Trump to forcefully disavow racism and urged his administration to address racist violence, a flashpoint for him since he said there were "very fine people on both sides" after a man who attended a white nationalist rally in Charlottesville, Virginia, in 2017 drove his car into a crowd of protesters, killing a woman and injuring others.
While Trump's critics have accused him of ignoring the growing problem, the White House made fighting domestic terrorism a priority, adding it to the National Strategy for Counterterrorism. But the challenge for federal law enforcement goes deeper than just needing support from the president's bully pulpit.
A federal statute defines domestic terrorism but carries no penalties. Some former and current law enforcement officials said in interviews that it was time for Congress to pass a new law aimed at people who commit political violence. But civil rights advocates and many in law enforcement worry that such laws would brush up against the First Amendment or invite government overreach.
"Law enforcement needs more effective tools," said Mary McCord, a former top national security prosecutor who has drafted a proposed statute to criminalise the stockpiling of weapons intended to be used in a domestic terrorist attack. "I recognize the very legitimate concerns of those in the civil rights community, but I would hope that their concerns could be addressed through oversight."
After nearly two decades in which international terrorism cases, chiefly involving Islamic extremism, seized headlines and garnered more arrests, domestic terrorist attacks have overtaken them in recent years both in terms of arrests and killings, Michael C. McGarrity, the FBI's top counterterrorism agent, told lawmakers last month.
"Individuals affiliated with racially motivated violent extremism are responsible for the most lethal and violent activity," he said.
According to the FBI, domestic violent extremists carried out six attacks in 2018 that killed 17 people. The previous year, McGarrity said, eight people died in five attacks. Domestic terrorism-related arrests narrowly outpaced international ones for the first two quarters of the current fiscal year, 66 to 63.
The increase in arrests marks something of a return to the 1990s, when the FBI devoted significant resources to infiltrating and dismantling violent white supremacist and right-wing militia organizations from which lethal terrorists like David Lane and Timothy McVeigh emerged.
The FBI shifted course after the September 11 attacks. Congress passed the Patriot Act, granting substantial powers to the government to fight international terrorism, including electronic surveillance and secret access to bank and library records. Federal investigators began frequently using a charge of material support for terrorism to prosecute Islamic terrorism suspects.
Prosecutors rarely used the charge to arrest far-right, anti-government terrorists, who are primarily white. Civil rights advocates and others have argued that current laws unfairly target racial or religious minorities.
Domestic terrorism became an afterthought at the FBI, seen as less prestigious than hunting down members of al-Qaida. The fast track to top jobs meant spending time in one of the bureau's two sections devoted to fighting international terrorism.
Eventually, the FBI reorganized its domestic terrorism section in 2013 to more closely resemble the way its agents investigated international terrorism, dividing the country into three regions. Officials described the shift as more of a natural evolution than a response to an event. Among those regions, the FBI has seen an uptick in arrests on the West Coast and Great Lakes, part of a recent trend over the past several years that won the attention of counterterrorism officials.
In his congressional hearing, McGarrity said the FBI's counterterrorism division allocated about 20 per cent of its resources to counter domestic threats. Out of 4,000 open terrorism cases, about 850 are designated as domestic terrorism.
While McCord and others have advocated tougher laws, some civil rights advocates and former FBI agents worry that, like after September 11, additional powers could lead to abuses. Human rights advocates have criticized aggressive sting operations, the use of informants and other tools that law enforcement officials have used in international terrorism cases. In some cases, the bureau "may have created terrorists out of law-abiding individuals by conducting sting operations that facilitated or invented the target's willingness to act," Human Rights Watch wrote in a comprehensive report in 2014.
"Law enforcement agencies already have the investigative and prosecutorial tools they need, and they should prioritise resources and policies to meaningfully address white supremacist violence," said Hina Shamsi, a national security expert at the American Civil Liberties Union.
Adam Lee, the former top FBI agent in Richmond, Virginia, does not believe a new statute is necessary. He cited laws against hate crimes and racketeering as well as others as adequate for fighting domestic terrorism. "We can hold those groups and people to account most effectively by using the investigative methods we used to break up the mafia and violent street gangs," Lee said
He was in the job when the Rise Above Movement, a group of violent neo-Nazis from California, descended on Charlottesville in 2017. Federal investigators in Los Angeles were tracking the men before they were charged last fall with conspiracy to riot for attacking counterprotesters in Virginia and across California. But in a blow to prosecutors, a federal judge threw out the anti-riot charges against the men Monday, saying they were "unconstitutionally overboard in violation of the First Amendment."
Federal law enforcement officials have had success targeting suspects in cases involving a dangerous mix of speech and violence — but often only after they have unleashed deadly carnage. White supremacist Dylann Roof, who gunned down nine black churchgoers in Charleston in 2015, was convicted of 33 counts, including hate crimes resulting in death, and ultimately sentenced to death.
The following year, three far-right militia members were convicted in federal court of plotting to blow up an apartment complex in Kansas where Somali Muslims lived. They were sentenced to more than 20 years in prison.
More recently, the FBI in February arrested Lt. Christopher P. Hasson, an officer in the Coast Guard accused of stockpiling guns and drugs. Prosecutors described him as a domestic terrorist and white nationalist who drew up a list of prominent cable news journalists and Democratic politicians to be killed, saying he was on the cusp of turning his "thoughts into action." His lawyers argue he did nothing wrong and is being punished for "private thoughts."
Federal prosecutors have also charged 19-year-old John Earnest in the April shooting at a San Diego synagogue that killed one and wounded three. Before the shooting, he posted a manifesto online, an anti-Semitic screed filled with white nationalist conspiracy theories. He faces dozens of hate-crime charges that carry the death penalty.
Without a punishment for domestic terrorism under federal law, it is impossible to say whether prosecutors could have targeted Reed under it. He matched the elements in what the FBI calls its domestic terrorism "triangle": an ideology, the threat of violence and a possible crime.
Reed, who lived with his mother in the Monroe suburb of Seattle, worked at a Fred Meyer superstore and had no criminal history aside from a 2011 citation as a juvenile for "reckless burning." But his online presence spoke to a young man fascinated with firearms, white supremacist ideology and violence.
After the Anti-Defamation League alerted the FBI to threatening Facebook posts by seven accounts he ran, agents began monitoring his posts last fall. The FBI and local law enforcement grew alarmed when Reed vowed to "shoot up a school" and displayed an assault rifle in a roof covered in extreme-right iconography. His online accounts showed photographs of an arsenal seemingly in his possession, including three AR-15 rifles, two hunting rifles, a pump-action shotgun and at least one handgun.
Authorities decided to intervene, the threat of school shooting too great. When detectives searched Reed's room, they seized a dozen firearms.
Reed told investigators that his menacing posts were only meant to get attention and that he intended only "to hurt people's feelings," citing his First Amendment right to reprehensible speech.
Even after he was released on bail, Reed railed against the government on Facebook, hinting at violence. He was jailed again. He pleaded guilty May 10, according to a news report, smiling to reporters after he was led away.
Written by: Adam Goldman
Photographs by: Matt Eich, David Ryder and Hilary Swift
© 2019 THE NEW YORK TIMES
The war in Ukraine has been called the deadliest and largest in Europe since WWII.