Who is Deemed a ‘Domestic Terrorist’?

Several high-profile cases have established a pattern: the Joe Biden administration has embraced an expansive view of domestic violence extremism and domestic terrorism, invoking a federal law that criminalizes the act of interfering with law enforcement during a protest that disrupts interstate commerce.

So far, the Intercept reports, Biden’s anti-extremism stance has ended up disproportionately targeting Black defendants, many of whom have faced civil disorder and arson prosecutions following last year’s protests.

In a National Security Council strategy document released in June, the Biden administration said the U.S.’s main domestic terror threats were militia groups and “racially or ethnically motivated violent extremists (principally those who promote the superiority of the white race”). But the document also said federal authorities would “disrupt and deter those who launch violent attacks in a misguided effort to force change in government policies that they view as unjust.”

Some legal experts were quick to point out that this approach — prosecuting protesters for behavior deemed violent — is not unlike that of former president Donald Trump, who used the court system to target Black Lives Matter protesters, Mother Jones reported last year.

Mary McCord, formerly the Justice Department’s acting assistant attorney general for national security from 2016 to 2017, said the department has an interest in maintaining prosecutions across presidential administrations. She added that choosing only to prosecute those responsible for the Capitol riot could raise allegations of political bias or selective prosecution.

But the seriousness of the supposed threat that protesters present remains weak.

Court documents for dozens of arson cases arising from the racial justice protests reveal virtually no references to extremist or domestic terror groups, the Intercept found.

In one case, 21-year-old Tia Pugh, a Black woman who’d never been arrested before, was handcuffed in her apartment, questioned by the FBI and charged under federal law for shattering the window of a police car with a bat at a protest last summer.

Pugh was convicted by a jury on the civil disorder charge this past May. Prosecutors are seeking a sentence of 12 to 18 months in federal prison, and Pugh faces up to $250,000 in fines.

Michael German, a fellow with the Brennan Center for Justice’s Liberty and National Security Program and a former FBI agent, said the FBI has a long history of ignoring threats from the hard right while devoting significant resources to other groups, from Civil Rights activists to suspected communists during the Cold War.

“If Congress passes a broad new statute, the FBI will continue prioritizing less violent groups and less violent people, and nothing will change — just that they would have more success in prosecuting individuals for protest activity and other nonviolent civil disobedience,” German said.

Pugh’s case confirms German’s fears: Pugh had no known ties to any political or extremist groups, but her case received significant attention from the FBI, which would be further empowered by a new domestic terrorism law.