'Where is the FBI?' Former federal agent who spent years infiltrating white supremacist groups has some questions

Late in 2017, ProPublica began writing about a California white supremacist group called the Rise Above Movement. Its members had been involved in violent clashes at rallies in Charlottesville, Virginia, and several cities in California. They were proud of their violent handiwork, sharing videos on the internet and recruiting more members. Our first article was titled “Racist, Violent, Unpunished: A White Hate Group’s Campaign of Menace.”

More articles followed, and another neo-Nazi group, Atomwaffen Division, was exposed.

Michael German, a former federal agent who spent years infiltrating white supremacist groups, said the work of the groups constituted “organized criminal activity,” and he asked, in so many words, “Where is the FBI?”

Federal authorities wound up arresting eight members of the Rise Above Movement, and five of them have since pleaded guilty to federal riot charges. This summer, FBI Director Christopher Wray testified that, over the last nine months, the bureau’s domestic terrorism investigations had led to 90 arrests, many of them involving white supremacists. And in recent weeks, there have been additional arrests: a Las Vegas man said to be affiliated with Atomwaffen and a young man in Chicago affiliated with Patriot Front, another white supremacist group.

The activity concerning the threat of white racists has gone beyond arrests. There have been a variety of proposals making their way through Congress aimed at creating federal criminal statutes that might make prosecuting domestic terrorism threats more effective. The FBI Agents Association has supported new laws.

We went back to German, a fellow with the Brennan Center for Justice’s Liberty and National Security Program and the author of the forthcoming book “Disrupt, Discredit, and Divide: How the New FBI Damages Democracy,” to inquire about the significance of the seeming burst of enforcement efforts.

The FBI, made aware of German’s observations and arguments, declined to comment, but it provided a link to recent testimony by bureau officials before Congress.

There have been a handful of arrests of alleged white supremacists in recent weeks. What do you make of them? A temporary reaction to the El Paso, Texas, massacre? Evidence of a deeper commitment by the FBI? Coincidence?

First, the arrests of several white nationalists allegedly planning acts of violence since the El Paso attack demonstrate beyond question that the FBI has all the authority it needs to act proactively against white supremacist violence. Claims from the FBI Agents Association and other current and former Justice Department officials that the government needs new laws to target this violence are false. I worked successful domestic terrorism undercover operations against white supremacists in the 1990s, and no one ever suggested we didn’t have all the authority we needed.

It is hard to know if these arrests mark a new increase in attention to far-right violence because the Justice Department doesn’t keep reliable data about how many investigations and prosecutions it conducts against white supremacists. It sometimes categorizes them as domestic terrorism, other times as hate crimes or even gang crimes, obscuring the true scope of the violence they inflict on our society. And since the Justice Department defers the investigation and prosecution of hate crimes to state and local law enforcement, the FBI doesn’t even know how many people white supremacists kill each year.

The Justice Department and FBI de-prioritize the investigation and prosecution of far-right violence as a matter of policy, not a lack of authority. These recent cases are a result of increased public pressure to do something about these crimes. But the Justice Department and FBI have done nothing to amend their policies that de-prioritize the investigation of white supremacist crimes. Maintaining public pressure and focusing on changing the biases that drive these policies is essential to forcing a change in priorities at these agencies.

At least two of the arrests appear to have involved a certain infiltration of white hate groups online. Noteworthy? Overdue?

Many researchers have suggested that the internet fuels white nationalist violence and therefore suppression of these online communities is necessary. But white supremacists have been killing people in this country for more than a 100 years before the internet was created. They use the internet more to communicate today than 20 years ago, just like all the rest of us do, but that doesn’t mean there is more violence. In fact, as the recent cases suggest, internet communications make them far easier to track and infiltrate, so it is more a boost to law enforcement more than to violent militants.

But mass monitoring of social media for clues isn’t an effective strategy, as there are far more people expressing racist ideas online than committing violence. The FBI would be very busy chasing down false leads, which would only dull the response. Instead, the FBI and other law enforcement agencies should work from reasonable criminal predicates. Where there is objectively credible evidence that someone is planning to do harm they should act. The number of homicides in the U.S. has fallen significantly since the 1980s and 1990s, but so has the clearance rate. Even though there are fewer homicides now, fewer are being solved. I think it is because we are spending so much time and resources on suspicion-less surveillance and intelligence gathering rather than traditional evidence-based law enforcement tactics.

There is a variety of proposed legislation aimed at creating more specific federal domestic terrorism statutes. Worthy? Wrongheaded?

Congress shouldn’t pass broad new laws or stiffer penalties, as there are already dozens of federal statutes outlawing domestic terrorism, hate crimes and organized violent crime that carry significant sentences. There are bills that demand better data collection by the Justice Department, which would reveal where counterterrorism resources should be devoted and where they are being wasted. This is the better approach. Proper policies can’t be developed without a better understanding of the crime problem.

In the meantime, Congress should explore mechanisms to fund and implement community-led restorative justice practices that would redress the communal injuries hate crimes are designed to inflict. White supremacists try to intimidate and marginalize the communities they attack. Making sure these communities are cared for, protected and supported after an attack frustrates that goal. More policing isn’t always the right answer, and certainly not the only one.

There was recently news coverage of leaked FBI threat assessments listing the promotion of an array of political conspiracy theories as a domestic menace. What did you make of that?

The FBI intelligence assessment declaring conspiracy theorists a domestic terrorism threat should worry all of us. It had a line defining conspiracy theorists as those who do not hold the “official” or “prevailing” view on a particular topic. Given that the intelligence community has often been the promoter of false narratives, particularly about the lawfulness of its own conduct, giving them license to target people who disagree with the “official” view is chilling. It is basically a declaration that the government will treat dissent as dangerous.

There was a recent case that has to puzzle the public. A Coast Guard lieutenant was arrested with guns and a target list of politicians and others, and held on firearms charges. At least one federal magistrate thought he deserved bail because the government had failed to provide evidence of terrorist acts and the simple gun charges didn’t merit him being held without bail. A judge overturned the magistrate and kept the lieutenant held. All that can be hard to follow for an American public concerned about safeguarding its rights and its citizens. Thoughts?

It’s difficult to talk about cases that have not yet gone to trial because there is little information available outside the government’s allegations, which haven’t been proven yet. But there are some principles of our legal system that should be applied in all cases, including this one, even though we seem to have moved far from them over the years. First, people are innocent until proven guilty. That means, absent government evidence that a defendant poses a threat to the public or to abscond, that person should be released until trial, and bond should only be used to guarantee appearance. Of course, many people with allegations that seem less serious than those against the Coast Guard officer don’t receive bond, but that is a question for those judges and prosecutors, not the ones involved in this case.

Obviously the government initially failed to present evidence that justified pretrial confinement, so based on the charged conduct the judge considered bond. This result should happen more often, not less. When the government got its act together, added charges and presented evidence of a potential threat to the public, the judge ordered him held. The burden is on the government and shouldn’t be met through sensationalized press releases but through reasonable evidence presented in court.

Second, prosecutors can only charge people with crimes they committed, not crimes the government thinks they might commit in the future. Lots of people stockpile weapons in this country. And if keeping a creepy diary is against the law, plenty of people will go to jail. Where the government has evidence that laws were broken, they have the power to act, which — ironically given the hyperbolic news coverage of this incident — they did here. The officer was arrested and is being prosecuted for crimes the government alleges he committed, so there seems to be no problem.

The Justice Department seems to have tried to make this into a test case for demanding new authorities, even though prosecutors obviously had enough evidence to address the threat. Compare this case to the Larry Hopkins case in New Mexico. There the FBI received a tip in 2017 that a formerly incarcerated felon who was the “commander” of a border militia group that harassed migrants was also planning to assassinate Hillary Clinton, George Soros and Barack Obama. The FBI went to Hopkins’ trailer and recovered nine firearms he was not permitted to own due to his previous felony convictions, which included weapons charges and impersonating a police officer. The FBI did not arrest Hopkins and instead let him continue to operate with his militia group for 18 months, harassing migrants in the desert, until a video of his group pointing weapons at a group of migrants they detained went viral and sparked public outrage. Only then did the FBI take action.

Comparing the two cases, the FBI had much more significant evidence of potential dangerousness from Hopkins than from the Coast Guard officer, yet they took no action against Hopkins. I think they saw the Coast Guard officer’s case as a ready-made scandal near D.C. that they could sensationalize to pressure Congress into passing a broad new domestic terrorism law. Obviously, they already had enough authority to arrest him on the drug and weapons charge, and his possession of illegal silencers. So there was no lack of authority to arrest him in the first place. It was a manufactured scandal.

What, if anything, is different today than two summers ago in Charlottesville concerning the threat of white supremacists and the government’s response at all levels to it?

I think the violence in Charlottesville was a wake-up call for everyone. The media finally recognized that white supremacists were engaging in terrorism, too. The level of violence these far-right groups inflict has been persistent over time, but studies show that the media gave terrorist acts perpetrated by Muslims 350% more coverage than violence committed by other terrorists. The increased reporting post-Charlottesville eventually caused policymakers to take notice, which in turn compelled the FBI and Justice Department to begin to take these crimes more seriously. The media coverage drives public perception, which causes policymakers to act. It remains to be seen whether they react in a way that improves the situation and builds a more inclusive society, or makes it worse by giving law enforcement broad powers to continue targeting marginalized communities agitating for civil rights and changes in government policies.