If the Shoe Fits: Designating Foreign White Supremacy Extremist Groups

February 4, 2020

Whispers of a global race war echo from the darkest corners of the internet. These cyphered messages are for members and supporters of a supremacist movement in the hope they will be mobilized to organize, receive training, and take violent action. These whispers may come from afar, but they are resonating in the United States. Some members of this movement propose poisoning water supplies and derailing trains. No, this isn’t the Islamic State or al-Qaeda, although one of the groups that makes up this movement uses the latter’s name in translation: the Base.

Things have changed since the Sept. 11, 2001, attacks. Since that tragic day, violent white supremacists have caused more deaths on U.S. soil than jihadists. Today, white supremacy seems poised to be the greatest terrorist threat that the United States faces. While many white supremacists act pursuant to domestic influences, and therefore do not qualify as international terrorists under federal law, over the past few years, foreign white supremacist groups such as the Russian Imperial Movement and the Azov Battalion have recruited, trained, and radicalized U.S. citizens sympathetic to their causes.

Although their guiding ideologies are distinct, foreign white supremacy extremist groups function quite similarly to their Islamic extremist counterparts. For instance, in addition to the transnational nature of the networks, similarities can also be found within their militarization, use of violence, organizational structure, and methods of training, recruitment, and financing. Despite these similarities that warrant similar enforcement mechanisms, both the international community and the U.S. government’s efforts to combat foreign white supremacy extremist groups have not been in step with the rise, transnational growth, and inward influence of these groups. Accordingly, to meet the growing threat of foreign white supremacy extremist groups putting the lives of U.S. citizens and others at risk, “if the shoe fits,” U.S. leadership should designate these groups as foreign terrorist organizations and pursuant to Executive Order 13224.

By designating foreign white supremacy groups, not only will the U.S. government take a step toward overcoming any racial dialogue surrounding terrorism, but it will also be able to charge supporters with receiving military-type training under 18 U.S.C. § 2339D and material support under 18 U.S.C. § 2339B and place economic and immigration sanctions on members, trainees, and representatives of foreign white supremacy extremist groups. Given First Amendment and statutory limitations, this approach will not open up the possibility of designating domestic white supremacy groups (i.e., groups without foreign links). However, this approach will facilitate an appropriate and strategic reaction by the U.S. government to current intelligence on the internationalization of previously domestic mischief. In sum, this approach is effective, constitutional, ideology-neutral, durable, and flexible to meet evolving threats.

White Supremacy: A Growing Threat Abroad and at Home 

Worldwide, white supremacists are increasingly forming global networks of membership, training, funding, and information-sharing in a way consistent with jihadists prior to and following Sept. 11. While Afghanistan was the global mecca for jihadist extremist groups, Ukraine has become the global mecca for white supremacy extremist groups to assemble, train in irregular warfare, radicalize, and develop transnational networks — with Russia also playing a significant role. Through Ukraine’s Donbass War, Ukraine has become a breeding ground for white supremacy extremism and neo-Nazi beliefs on both sides of the conflict. Thus far, 17,000 people from 50 countries — including the United States — have traveled to Ukraine at the behest of the Russian Imperial Movement and the Azov Battalion, both of which are extremist groups that developed from far-right militias during the war. Following the conflict, members of the Azov Battalion and Russian Imperial Movement aim to return to their origin countries or relocate to third-party countries in order to cause widespread terror and destruction and recruit through the use of violence.

These groups, their membership, and their supporters have already been involved with violent acts of terrorism charged by white supremacist ideology in the United States and elsewhere. For instance, Swedish neo-Nazi bombers Viktor Melin and Anton Thulin attended a Russian Imperial Movement-affiliated paramilitary training camp. The Russian Imperial Movement’s connections in the United States include the Traditionalist Worker Party founded by Matthew Heimbach — a key organizer of the Unite the Right rally in Charlottesville, Virginia. Similarly, the Azov Battalion has cultivated a relationship with U.S.-based white supremacy extremist groups such as the Atomwaffen Division, which was tied to three fatal attacks from 2017 to 2018, and the Rise Above Movement, a militant group whose members engaged in several acts of violence.

Criminalizing Terrorism Through Designations

In the United States, “being a terrorist” or “thinking terrorist thoughts” are not crimes. Labeling such acts as crimes would undermine key constitutional protections such as freedom of expression and freedom of association. Further, jurisprudence dictates that persons in the United States cannot be prosecuted for their thoughts alone. Accordingly, the U.S. criminal justice system focuses on definable acts — and counter-terrorism enforcement is no exception to this approach.

Designations under the Immigration and Nationality Act

Pursuant to § 219 of the Immigration and Nationality Act of 1952, as amended under the Antiterrorism and Effective Death Penalty Act of 1996, the secretary of state, in consultation with the attorney general and the secretary of the treasury, may designate an entity as a foreign terrorist organization if three elements are met: (1) the organization is foreign; (2) the organization engages in terrorist activity (as defined by statute); and (3) the terrorist activity threatens the security of U.S. nationals or the national security (national defense, foreign relations, or economic interests) of the United States. If the secretary of state decides that an organization meets these conditions, he or she may add it to the State Department’s list of foreign terrorist organizations by informing Congress and publishing a notice to that effect in the Federal Register.

A foreign terrorist organization designation provides prosecutors and law enforcement with many unique avenues for preventing and combating terrorist activity by members and supporters — the most significant of these avenues being the criminalization of providing material support and the regulation of banks under 18 U.S.C. § 2339B, the criminalization of receiving military-type training from a designated organization under 18 U.S.C. § 2339D, the establishment and enforcement of financial sanctions under Executive Order 13224 and 8 U.S.C. § 1189(2)(C), and the implementation of immigration sanctions under 8 U.S.C. § 1182(a)(3)(B) and § 237 of the Immigration and Nationality Act.

The material support statute 18 U.S.C. § 2339B has proved to be one of the most effective tools for federal terrorism prosecutors in the United States. Pursuant to § 2339B(a)(1), the Department of Justice may prosecute any person in the United States or subject to U.S. jurisdiction for knowingly attempting to, conspiring to, or providing “material support or resources” to a designated foreign terrorist organization, even if done for benevolent purposes. Thus, § 2339B(a)(1) effectively allows the Justice Department to prosecute individuals for providing funds, personnel (one or more individuals, including oneself, to work under the organization’s direction or control or to organize, manage, supervise, or otherwise direct the operation of the organization), and specialized advice or assistance to groups designated as foreign terrorist organizations — among other acts.

Additionally, § 2339B(a)(2) requires financial institutions to retain possession of all designated foreign terrorist organization funds and report their existence to the secretary of state. More specifically, this provision provides that, except as authorized by the secretary of state, a bank that becomes aware that it has possession of, or control over, any funds in which such an organization or its agents has an interest shall retain possession of, or maintain control over, such funds and report to the secretary of state the existence of such funds in accordance with regulations issued by the secretary of state.

Attempt or conspiracy under § 2339B can even overlap with another useful statute, 18 U.S.C. § 2339D, as an individual who receives military-type training has taken an affirmative or overt act toward providing material support to the designated foreign terrorist organization sponsoring the training: providing personnel in the form of oneself. However, even on its own, § 2339D is an effective counter-terrorism mechanism. Section 2339D criminalizes the act of knowingly receiving military-type training from or on behalf of a designated organization — including training in means or methods that can cause death or serious bodily injury as defined by § 1365(h)(3), destroy or damage property, or disrupt services to public or private critical infrastructure (e.g., water supply systems, telecommunications networks, financing and banking systems, transportation systems and services, emergency services), or training on the use, storage, production, or assembly of any explosive, firearm, or other weapon, including any weapon of mass destruction (as defined in 18 U.S.C. §2232a(c)(2)). Thus, a foreign terrorist organization designation of foreign-based white supremacy extremist groups like the Russian Imperial Movement and the Azov Battalion would allow federal prosecutors to charge individuals who have become militarized and/or trained by these groups with § 2339D.

Members and representatives of designated foreign terrorist organizations and those who receive military-type training from these groups are subject to immigration sanctions as well. Pursuant to 8 U.S.C. § 1182(a)(3)(B), non-U.S. citizens or nationals are inadmissible and therefore ineligible to receive visas or to enter the United States if they are members or representatives of a designated organization or if they have received military-type training from or on behalf of a designated organization as set forth in 18 U.S.C. § 2339D. Additionally, if already located within the United States, under § 237 of the Immigration and Nationality Act, non-U.S. citizens may be deported back to the individual’s country of origin if the individual is a member or representative of a designated foreign terrorist organization or has received military-type training from or on behalf of such an organization. These immigration sanctions effectively place law enforcement on notice, allowing it to step in and remove individuals who pose a threat before any tangible harm becomes actualized.

Executive Order 13224, which is further discussed below, and 8 U.S.C. § 1189(2)(C) provide for the establishment and enforcement of financial sanctions against designated foreign terrorist entities, supporters, members, and/or leaders. 8 U.S.C. § 1189(2)(C) provides that the secretary of the treasury may require U.S. financial institutions possessing or controlling any assets of a foreign terrorist organization to block all financial transactions involving those assets until further directive from either the secretary of the treasury, an act of Congress, or a court order. Thus, where Americans or other individuals wire money to designated white supremacy extremist groups in Ukraine or Russia, the U.S. government would be able to step in and block these assets.

Treasury designations under Executive Order 13224

The designation framework also provides the U.S. Department of the Treasury with tools for counter-terrorism enforcement. Similar and pursuant to language mirroring that of § 219 of the Immigration and Nationality Act, under Executive Order 13224, the secretary of state, in consultation with the secretary of the treasury, the attorney general, and the secretary of homeland security, can designate and subsequently sanction foreign entities and individuals who have “participated in training to commit acts of terrorism that threaten the security of [U.S.] nationals or the national security, foreign policy, or economy of the United States.” Further, section 1F(b) gives the secretary of the treasury, in consultation with the secretary of state, the ability to revoke or deny banks and other financial institutions access to the U.S. dollar if they knowingly provide correspondent services to designated individuals or organizations.

Limitations

While the United Kingdom, Canada, and Germany have added domestic white supremacy groups to their terrorist organization lists, the U.S. government is limited, by statute and the First Amendment, in its ability to pursue this same approach to counter-terrorism. More specifically, the Immigration and Nationality Act and Executive Order 13224 allow the designation only of foreign groups or persons, respectively. Thus, the designation of a domestic group without a foreign link is statutorily impermissible. Additionally, the First Amendment’s freedom of speech protections drastically limit the U.S. government’s ability to regulate content and viewpoints and would therefore virtually prohibit the designation of domestic groups without foreign links.

Due to these limitations, the U.S. government must conform to an approach that focuses on foreign ties and ideological neutrality — and the foregoing designation approach meets these criteria while confronting the threat effectively and for as long as this threat exists.

Conclusion

While the terrorist threat is perhaps more evasive than ever, the path to countering it is hiding in plain sight. When bodies fall and blood is shed, does it matter whether the individual unloading rounds into a crowd does so pursuant to some distorted version of Islam versus some neo-Nazi creed? While it shouldn’t, the U.S. government’s apparent reticence to designate foreign white supremacy extremist groups implies that it does, at least politically.

Despite the inconsistency between what the law says and its current application, terrorism is terrorism regardless of race, faith, or ideology. Although domestic terrorism requires a slightly altered enforcement approach, there should be no such distinction among international terrorist groups. Indeed, international terrorism by foreign white supremacy extremist groups warrants attention and action by the U.S. government synonymous to that afforded to foreign jihadist extremist groups; only then can the United States meet the challenge.

 

 

Amy Collins is a law student at the George Washington University Law School. She has worked at the National Security Section of the U.S. Attorney’s Office for the District of Columbia, at the Department of Justice’s Office of International Affairs, and at the Office of the General Counsel, International Affairs, for the Department of the Treasury. Collins is a writer for both George Washington Law’s Criminal Law Brief and International Law and Policy Brief, where she researches and writes on novel or niche topics related to the respective practice area. She is in the process of writing a piece for publication in one of these briefs in which she proposes an amendment to one of the “material support” statutes, 18 U.S.C. § 2339B, aimed at promoting and decriminalizing conflict resolution and peacekeeping by legitimate governments. The views expressed in this article are the author’s own and do not necessarily reflect those of the United States or its government agencies.

Image: Wikicommons (Photo by Carl Ridderstråle)