Protesters are increasingly being labeled domestic terrorist threats, experts worry

Black Lives Matter demonstrators at the 2016 Democratic National Convention. “Black identity extremist” is a new category of domestic terrorism, according to a leaked FBI document.
Black Lives Matter demonstrators at the 2016 Democratic National Convention. “Black identity extremist” is a new category of domestic terrorism, according to a leaked FBI document. AP

The FBI counterterrorism division’s identification of a new movement it calls “black identity extremists” is the latest addition to the broadening list of protesters and dissidents the agency puts under the “domestic terrorism” umbrella.

But many national security experts say the designation doesn’t describe a movement at all – let alone a terrorism threat; rather, it’s simply a label that allows the FBI to conduct additional surveillance on “basically anyone who’s black and politically active,” according to Michael German, who left the FBI in 2004 and did undercover domestic terrorism work.

Critics are concerned that increasingly, it appears to be minorities and environmental protesters who are being targeted.

While the practice of labeling certain protest groups as domestic terrorists is not unique to President Donald Trump’s administration, American Civil Liberties Union National Security Project Director Hina Shamsi said there’s concern that “abusive and unjustified investigations” by the FBI are on the rise.

“We are worried that protesters are increasingly being labeled as terrorism threats,” Shamsi said.

It’s difficult to know for sure whether the Trump administration engages in the practice more often, however, because the FBI and other law enforcement entities rarely make that data available to the public. But rhetoric critical of certain groups by the Department of Justice and the White House also tends to inform FBI decisions, German said, and empowers those seeking to target those groups.

The problem, Shamsi said, partly lies in the overly broad definition of domestic terrorism in the Patriot Act as a violation of the criminal laws of a state or the United States that is “dangerous to human life” and appears to be intended to “influence the policy of a government by intimidation or coercion.”

Eighty-four members of Congress cited that intention to intimidate or coerce in a letter to the Department of Justice this week that asked if the department had labeled Dakota Access Pipeline protesters domestic terrorists. Calls and emails to multiple members of Congress who signed the letter were unreturned.

Protests of the pipeline’s construction led to the arrest of 761 people, most of them for misdemeanor charges, according to the Morton County Sheriff’s Office. Some of the protesters accused of setting fire to campsites and turning off safety valves in efforts to shut down the pipeline were charged with more serious crimes.

“Damaging pipeline infrastructure poses multiple risks to humans and the environment. When an individual burns a hole through a pipeline currently in operation, there is a high probability this could ignite the contents, killing not only the perpetrator but other innocent victims,” the letter, authored by Rep. Ken Buck, R-Colo., said. “It also has the potential to cause property and environmental damage, as well as disrupt services to communities and consumers.”

The Department of Justice did not respond to questions about the letter.

Domestic terrorism is not an official criminal charge, but if the label is applied to certain protesters it makes it much easier for law enforcement to surveil those groups with minimum oversight. That surveillance can extend to the seizure of assets of both the individual and an involved organization without a prior hearing and many times without evidence, Shamsi said.

“This has absolutely been a pattern by federal, state and local law enforcement,” Shamsi said. “And it is absolutely subject to rhetorical and political manipulation, and there is a real danger that arises from that.”

Pipeline protesters aren’t the only ones that appear to have been targeted. The FBI report that focused on black identity extremists, which was published in August and leaked to Foreign Policy in October, had interest groups wondering if the designation has been used to target members of Black Lives Matter, though it never specifically mentions the group.

“The FBI defines black identity extremists as individuals who seek, wholly or in part, through unlawful acts of force or violence, in response to perceived racism and injustice in American society and some do so in furtherance of establishing a separate black homeland or autonomous black social institutions, communities or governing organizations within the United States,” the leaked report says. The movement began after the Ferguson protests in 2014, according to the document.

The report predicted it is “very likely” that black identity extremists would engage in “ideologically motivated, violent criminal activity” against police within the next year.

It identified six attacks against police as examples of black identity extremism, but German, now a fellow at the liberal Brennan Center, said the logic in the report is deeply flawed.

“If you look at three of those cases, there’s no ideology connecting them at all,” German said. “The only commonality is that they’re black.”

“They’re taking isolated incidents and turning it into a movement to justify increased surveillance,” he continued. “It’s throwing fuel on this argument of a war on police by black people, even though if you look at the numbers that’s not the case.”

There has been no spike in law enforcement deaths in recent years. So far in 2017, 107 police officers have been killed in the line of duty, according to the National Law Enforcement Officers Memorial Fund. In 2016, 135 officers died while on duty; the figure was 124 in 2015, 119 in 2014 and 177 in 2011. Viewed historically, the fluctuation is fairly typical, and the numbers actually are trending downward overall. The downward trend is also true for the subset of firearms-related deaths only.

An FBI spokesperson declined to comment on the report specifically, but said in a statement that it “cannot initiate an investigation based solely on an individual’s race, ethnicity, national origin, religion, or the exercise of First Amendment rights.”

“Our focus is not on membership in particular groups but on individuals who commit violence and other criminal acts,” the statement said. “Furthermore, the FBI does not and will not police ideology. When an individual takes violent action based on belief or ideology and breaks the law, the FBI will enforce the rule of law.”

The Department of Homeland Security has also likened certain protests over relations with law enforcement to domestic terrorism. In a February report leaked to the Intercept, DHS assessed that “anger over the results of the 2016 Presidential election continues to be a driver of domestic terrorist violence throughout the United States – as evidenced by rioting in Portland, Oregon following the election and destruction of property in Washington during the inauguration.”

The Portland “rioting” mentioned was an anti-Trump protest with a focus on racism within the justice system. It started as a peaceful march of about 4,000 people, but “anarchists” in the crowd reportedly started throwing objects at officers and vandalizing businesses and cars. Police declared it a riot due to "extensive criminal and dangerous behavior."

Those riots were then cited as evidence by the DHS of “domestic terrorist violence.”

German said that designation has practical effects at the local police level, as protests by groups such as Black Lives Matter get met with riot gear, tear gas, rubber bullets, mace and other chemical agents. He pointed to the September protests in St. Louis following the acquittal of police officer Jason Stockley in the fatal 2011 shooting of Anthony Lamar Smith, saying the policing of those protests was “dangerous.”

Though the black identity extremist label seems unique to the Trump administration, the targeting of minority groups is not.

“There is no question that people who have been singled out include Muslims, black activists and environmental and animal rights activists, regardless of the administration,” Shamsi said.

Notably, in 2004 and 2005, the FBI labeled environmental protesters the primary domestic terrorism threat, despite no deaths cause by environmentally motivated actors at the time, German said.

There is no public list of what the FBI considers domestic terrorist groups, Shamsi said.

“If there were a list of domestic terrorist organizations, it would virtually guarantee an investigation into First Amendment violations,” Shamsi said.

The ACLU has recommended limiting the definition of domestic terrorism to only include acts that “cause serious injury or death” rather than ones that are “dangerous to human life” — a more ambiguous term. But Shamsi said that’s merely a first step in correcting an overreach into citizens’ constitutional rights, one that can have a significant chilling effect on people who want to practice their right to speak out against their government.

Kate Irby: 202-383-6071, @kateirby