Jersey City: More Likely Domestic Terror
Initial reports said it was "hooligans," and later reports talked about drug deals or gun deals gone bad. Don't you believe it. The odds that heavily armed group of people with a bomb in a truck would randomly select a kosher market as their plan went south are tiny. The use of the word hooligans seems to indicate "not Muslim," or more likely "skinhead types." The odds that this is a white supremacist group are extremely high, and we will need to sit tight.
Even today, we received a notice from local authorities (who have been wonderful in meeting with us in the past and are dedicated to our protection) that there is no evident "nexus to terrorism." I fear that this is the stereotypical view of "terrorism" as "foreign" terrorism. The initial indications certainly seem like a spoiled Domestic Terrorism incident, which one officer paid the ultimate price to stop.
Ocham's Razor says that is the case. A serious of random events with such highly armed suspects winding up in a kosher market is just too unlikely to accept as our primary theory.
Violent Extremists, Hate, or Domestic Terror?
The truth is that America, and our policing authorities at every level, have yet to fully embrace the concept that Anti-Semitic violence is terrorism, not mere hate. Hate crimes and terrorism statutes often overlap, and the hate crime statutes are usually sufficient for enhanced penalties in the sentencing phase of the court case. For that reason, District Attorneys will often eschew terrorism charges because they can get the bad guys in jail without them. This is a terrible mistake.
A violent extremist is one who holds extreme views and is willing to act upon them against property or persons, but without the terrorist components of overt intimidation for political ends. Again, the FBI usage is problematic: Bjelopera points out that “According to DHS and the FBI, a HVE is ‘a person of any citizenship who has lived and/or operated primarily in the United States or its territories who advocates, is engaged in, or is preparing to engage in ideologically-motivated terrorist activities (including providing support to terrorism) in furtherance of political or social objectives promoted by a foreign terrorist organization, but is acting independently of direction by a foreign terrorist organization.’” (Bjelopera, 2013).
According to the FBI, “A federal crime of terrorism is prosecutable under Title 18 U.S.C. Section 2331(a) or (b). It is best defined by the FBI in Title 18 U.S.C. Section 2331(5), “ domestic terrorism occurs primarily within U.S. territorial jurisdiction, and domestic terrorism involves (A) ... acts dangerous to human life that are a violation of the criminal laws of the United States or of any State; (B) appear to be intended— (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping....” (Bjelopera, J.P. 2013, p.8).
I would hold that the differentiation must not be on the national origin of the ideology, which is impossible to really clarify, and instead should focus on the political or apolitical nature of the crime.
But Trump is Declaring Anti-Semitism a Federal Civil Right Crime: Isn't that good?
Yes, but be careful. President Trump is set to sign a directive today declaring Anti-Semitism, according to the definition of the IHRA: "Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities." Furthermore, he is directing all government agencies, for the purpose of civil rights legislation, to consider Jews as being a unique "nation." While we in Judaism use this language all the time, to explain our multi-cultural unity in the face of broad religious diversity, it is a political trap. If the Jews are a separate nation, protected in status as such, are they in fact fully American? This is a dangerous road, best left alone. Declaring Anti-Semitism a form of religious bias is sufficient under current law.
Federal Hate Crimes and Protection of Jews:
The development of federal hate crimes legislation is critical background to understand. Federal hate crimes were first passed in the Violent Interference with Federally Protected Rights Act, 18 U.S.C. § 245 Act of 1968. This law made it illegal to use or threaten use of force to interfere with any lawfully protected activity, like voting, because of a person’s race color religion or national origin. Attending a house of worship is also a protected activity under the constitution. Entering a kosher supermarket would not exactly fall under that statute.
Hate crimes against property have also developed over time. Congress passed legislation prohibiting bias in housing in 1968, in the Criminal Interference with Right to Fair Housing, 42 U.S.C. § 247. President Trump was charged with breaking that statute in 1973 by the Justice Department. In 1996, the Damage to Religious Property, Church Arson Prevention Act, 18 U.S.C. § 247 asserted federal protections for racial and ethnically associated religious buildings, religious buildings that engage in interstate commerce, and the protected the free expression of religion against hate crimes explicitly.
These separate acts of Congress all were united and expanded under the 2009 Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, which both consolidated and expanded federal hate crimes statutes. Physical harm, attempted physical harm, and use of a weapon were specifically named, despite any context of the victim’s actions, or the nature of the building in question. Also, in addition to affirming race, ethnicity, religion and national origin as protected categories from hate violence, gender, sexual orientation, disability and gender identity were added to the list. Finally, the words “actual or perceived” were included when describing the accused’s state of mind and bias towards the victim.
It is important to note that every level of federal hate crimes legislation has combined to protect any Jewish person by ethnicity or religion, as well as their religious property and gathering places from any form of violence, intimidation, attempted violence, interference or prejudice against real estate rentals. Disrupting the free expression of Jewish religious practice, as a result of bias, is itself a prosecutable offense under these combined federal statutes.The State of New Jersey has further expanded local legislation to include specific sanctions against bias and intimidation. Under the 2013 Revised New Jersey Statutes, Section 2C 16:1, bias intimidation is the act, attempt to act, conspiracy or threat to act in a manner that would cause an individual or group of individuals to be intimidated because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity (New Jersey Revised Statutes, 2013). The importance of this legislation is that causing the victim to perceive bias is sufficient, and an actual bias to persecute the victim is not a necessary condition of the statute.
The State of New Jersey has further expanded local legislation to include specific sanctions against bias and intimidation. Under the 2013 Revised New Jersey Statutes, Section 2C 16:1, bias intimidation is the act, attempt to act, conspiracy or threat to act in a manner that would cause an individual or group of individuals to be intimidated because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity (New Jersey Revised Statutes, 2013). The importance of this legislation is that causing the victim to perceive bias is sufficient, and an actual bias to persecute the victim is not a necessary condition of the statute.
So, yes, violent anti-semitism is terrorism and must be prosecuted as such. And yes, violent anti-semitism is also a bias crime and must be prosecuted as such. But no, this is not inherently due to the status of Jews as a nation, but rather our religious identity. In either case our civil rights are protected, and one leads to Anti-Semitic views of Jews in America as "other," while the other protects us as "us."