The Domestic Terror

The Domestic Terror Paradox

Sitting in a courtroom in Greenbelt, Md., Brian Mark Lemley Jr.’s long, unkempt hair fell over his green prison tunic. It was October 2021, and for most of the previous two years, Lemley had been in federal custody, usually out of the reach of his family, his lawyer and, because of Covid-19, a barber. So unsympathetic was his appearance, so much did it suggest the domestic terrorist that the government accused Lemley of being, that Lemley’s lawyer felt compelled to apologize for it. “He doesn’t normally look like this,” he told the judge. “He’s gotten one haircut in the two years that he’s been at the jail.”

The federal prosecutors in the courtroom said that Lemley harbored and armed a Canadian man, Patrik Jordan Mathews, who had crossed the border illegally and who now appeared alongside Lemley as a defendant. From 2019 to early 2020, the prosecutors said, the two men discussed killing Jews, Black people, officials, police officers and members of Antifa. The defendants were members of the Base, a hate group that had ambitions ranging from defacing synagogues to overthrowing the United States government. None of them were realized. After a nationwide sting operation, at least 16 members of the Base were arrested.

This Image Was Taken From Court Filings In The Case Against Brian Mark Lemley Jr.

“We would start the riots and you best believe we finished them.”

“I could ‘snip snip snap snap’ several guards before anybody even sounded an alarm.”

The evidence against Lemley appeared damning. The prosecutors showed the court photos of guns and military equipment seized at his apartment, footage of him at a Base training camp, screenshots of Lemley’s text exchanges with other Base members, emails with the leader of the Base and selections from hundreds of hours of video and audio surveillance the F.B.I. recorded of Lemley and Mathews fantasizing about committing mass violence in order to help usher in the Boogaloo, code for a new American civil war, and a white ethnostate in its wake. “You need an atrocity to make people angry enough to get serious,” Lemley had written fellow members. In a conversation shortly before he was arrested, on Jan. 16, 2020, he asked Mathews, “Why in the world would you not inflict bloody vengeance upon the world when given the chance?”

Lemley had pleaded guilty, so there was no jury trial, only an evidentiary hearing and, now, the sentencing hearing. Of the seven charges, the most severe were transporting a firearm and ammunition in interstate commerce with intent to commit a felony, conspiracy to transport certain aliens and obstruction of justice. All together, the charges would have put Lemley in prison for at most about 41 months, if the judge were to follow the federal sentencing recommendations. But Thomas Windom, the lead prosecutor, argued that Lemley deserved stiffer punishment. Though he had not charged Lemley with a crime of terrorism, Windom claimed that Lemley posed a “severe risk to public safety,” and he asked the judge to apply a special terrorism sentencing adjustment designed to reflect a would-be domestic terrorist’s words. He wanted a sentence of 25 years.

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Lemley’s lawyer, a federal public defender named Ned Smock, did not deny that Lemley was in the Base. “Mr. Lemley has never disputed the fact that this investigation was appropriate,” he even told the court, “that it was appropriate to arrest him, that he pled guilty to these charges.” But Lemley, he pointed out, had never committed an act of violence. A veteran of the Iraq war, Lemley had no criminal record and no history of violence. Yes, he had said awful things; he had discussed doing awful things; he had even prepared to do awful things — but he had not done them. The terrorism accusation was based only on Lemley’s “words and their theories about what that suggests about his intent,” Smock told the judge. And most of what his client had said, loathsome though it was, was also protected by the First Amendment. Smock told the judge that Lemley should serve a maximum of three years in prison.

Smock was essentially right in his main point: The prosecutors’ argument was built mostly on Lemley’s words, not his actions, and the intentions those words might have signaled. Not even Windom could deny that. But that didn’t mean Lemley didn’t deserve to be punished to the full extent of the law, Windom said. Windom, who had been working on Lemley’s case for more than two years by the time of the hearing, told me: “The First Amendment says you can say these things. It doesn’t protect you from the consequences of having said them.” In a sentencing memorandum to the judge, he wrote, “They are domestic terrorists and should be sentenced accordingly.”

A Photograph Of Thomas Windom.

Thomas Windom, the lead prosecutor in the case against Brian Mark Lemley Jr. Julio Cortez/Associated Press

While a 25-year sentence was high even by the standards of the adjustment, the judge had to take the idea seriously, given what was happening outside the courthouse. The hearing was taking place nine months after the attack on the Capitol and in the midst of a congressional inquiry, the Justice Department’s Capitol-breach investigation and a series of indictments of insurrectionists and rioters. In Michigan, a group of 14 people had been indicted for conspiring to kidnap Gov. Gretchen Whitmer, possibly with the intention of torturing or killing her. When Joseph R. Biden Jr., the president-elect, chose Merrick Garland for his attorney general, on Jan. 7, 2021, Biden pointed out that the Justice Department had been created in part to take on domestic terrorism, and in his confirmation hearing, Garland, who led the Justice Department’s investigation of the 1995 Oklahoma City bombing, said the country faced a situation more dire than the 1990s, during the rise of the far-right militia movement. He suggested that the United States had entered a new era of domestic terrorism.

The Jan. 6 cases, however, while they have received the most attention, may not prove typical of this new era. The attack on the Capitol was an extraordinary event precipitated by a set of historical circumstances that would be hard to replicate. In its aftermath, most of the roughly 1,000 people who have been indicted have been charged with minor offenses such as trespassing and disorderly conduct. The gravest charge, seditious conspiracy, has been brought against only 16 of them. The seditious-conspiracy statute, which originated in the Civil War era, is exceedingly hard to make stick. In a courtroom, it is difficult to convict someone of attempting to overthrow the government, even when that person has said publicly that they want to overthrow the government. So far, six members of Oath Keepers, including its founder, Stewart Rhodes, have been convicted of it.

The Jan. 6 cases are also atypical in this sense: The attack on the Capitol occurred. By contrast, most counterterrorism cases are brought to pre-empt attacks. The seditious-conspiracy charge has only ever been used successfully after an act of violence, but Garland has pledged the Justice Department to stopping domestic terrorism before it happens, an aim most of the public presumably supports. The government is taking the same preventive approach to domestic plots, in other words, that it did after Sept. 11 to plots connected with Al Qaeda, the Islamic State and other foreign groups. Jamie McCall, a former federal prosecutor in Delaware who worked on the Base cases, told me, “All we’re trying to do is stop an act of violence.” And Windom, the lead prosecutor in the Lemley case, told me: “All of the domestic-terrorism investigations I’ve been a part of involve someone claiming they want to be violent toward someone else, claiming they want to kill someone else. In my experience, we work with that in mind.”

For that reason, the case against Lemley may prove more typical of our new era. It also underlines the legal and ethical paradoxes of the preventive approach. After Sept. 11, the nation had to ask itself how much it was willing to impede the civil liberties of suspects in foreign-inspired terrorism plots. The question prompted a debate that has not ended. Jan. 6 has forced us to ask the same question, only this time looking more squarely in the mirror: How much are we willing to impede the civil liberties, particularly the free-speech rights, of American citizens whose plots are domestic? And if we are willing to impede those rights, and if the public does expect the government to stop people like Lemley before they act, what do we expect it to use against them if not their words?

Trump Supporters Outside The Capitol.

The Jan. 6 attack on the U.S. Capitol. Michael Robinson Chavez/The Washington Post, via Getty Images

Jan. 6 was the culmination of a trend that the Justice Department had been watching since around the time of the 2016 election. That’s when investigators started to notice a shift in extremist chatter online, from the international to the domestic. More and more, Americans were talking about attacking the country from within. Around the country, joint terrorism task forces, the units of federal and local agents and lawyers that do the groundwork in counterterrorism investigations, found themselves going from opening cases on Islamic State sympathizers to cases on white supremacists. “That’s what frightened us the most,” McCall said. That fear acquired a face with the Unite the Right white-nationalist rally in Charlottesville, Va., in the summer of 2017. By 2019, when a task force began tracking Lemley, F.B.I. counterterrorism officials could report to Congress that “individuals adhering to racially motivated violent extremism ideology have been responsible for the most lethal incidents among domestic terrorists in recent years.”

McCall noticed the suspect profiles in the international and domestic cases were similar: young, disaffected men. “The difference was, these were young, disaffected white dudes,” he said. Like Lemley, many were veterans of Iraq and Afghanistan. Just as the Vietnam War fed the rise of the militias in the 1990s, so the war on terror produced a new generation of aspiring domestic terrorists. They were susceptible to the same manipulative messages as aspiring jihadis: The world was going to hell, and America was leading it there; their lives would be meaningless until they took a stand. “My life sucks, etc.,” as McCall phrased it. One difference was that where the would-be jihadis tended to find inspiration in a single group or charismatic leader, with the far-right domestic extremists, “their inspiration was all over the place.”

Federal law enforcement distinguishes between “homegrown violent extremists” and “domestic violent extremists.” Homegrown violent extremists, such as Nidal Hasan, who killed 13 people at Fort Hood in Texas in 2009, are known to ally with a single, often well known, organization. (Hasan had contact with Al Qaeda.) Direct allegiances among domestic violent extremists are usually less clear. They will claim membership in several groups, as Lemley did, or in none. They were often connected to several overlapping movements, a menagerie of American paranoia and rage: white nationalists, accelerationists, neo-Nazis, militiamen, Christian identitarians, neo-Confederates, sovereign citizens, QAnon followers, armed Trump-worshipers and people using that new word, the Boogaloo. In 2019, F.B.I. counterterrorism officials, in a statement submitted to Congress, wrote that “the current racially motivated violent extremist threat is decentralized and primarily characterized by lone actors.” They added, “These actors tend to be radicalized online and target minorities and soft targets using easily accessible weapons.”

For law enforcement, the good news is that picking up the trail isn’t always difficult. The preventive approach to domestic terrorism goes back even further than the 1990s and it begins with the basic police work and surveillance of the joint terrorism task forces. Today that usually means the internet, a tool that makes it much easier for extremists to connect but also easier for the authorities to scent them out. A task force in Delaware took notice of Barry Croft, a member of the Three Percenters who would eventually conspire to kidnap Gretchen Whitmer, when he was living there and began chattering on Facebook about the Boogaloo. He tried to recruit people online to help a fellow white nationalist who was on the run evade the authorities. His ambitions escalated while his abilities didn’t. In December of last year, Croft was sentenced to 19 years in prison on charges of kidnapping conspiracy and conspiracy to use a weapon of mass destruction (explosives) in the Whitmer plot.

This Image Was Taken From Court Filings In The Case Against Brian Mark Lemley Jr.

“I would think the way to do it would be to cause the mass breakout by running, by bulldozing…”

“What are you even doing? Why are you here?

Maybe you’re here because you wanna be a cool guy?”

The problem is that prosecuting suspects can be more of a challenge than tracking them. Since Sept. 11, the federal government has depended on an increasingly durable set of statutes and court precedents to prosecute suspected jihadis. There is no such legal machinery for domestic terrorism. In fact, there is no section of the U.S. Criminal Code that criminalizes domestic terrorism as such. The code does define “domestic terrorism,” describing it as activities that “involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State” and appear to be intended “to intimidate or coerce a civilian population” or to “influence the policy of a government by intimidation or coercion” and that “occur primarily within the territorial jurisdiction of the United States.” Domestic terrorism is alluded to in certain statutes but not explicitly proscribed or given a penalty. The phrase is not mentioned in the seditious-conspiracy statute, the statute that addresses advocating the overthrow of the government or in the hate-crimes statute, the three federal laws that come closest to matching the common definition of terrorism — violence committed with political or prejudicial ends. It goes unmentioned in the so-called material support statutes, which have been the backbone of the Justice Department’s campaign against groups such as Al Qaeda and ISIS.

Because of First Amendment protections, it is not a crime to merely pronounce yourself a domestic terrorist or claim allegiance to a known violent group, only to violate the law on the group’s behalf. So it wasn’t illegal for Lemley to publicly support the Base’s aims or even to announce that he was a member of it. It wasn’t illegal for him to say privately that he wanted to kill people on its behalf. In fact, even if he was recorded planning to kill people in nonspecific terms but didn’t take any concrete actions, such as making an illegal weapon or harboring Patrik Mathews, he probably wouldn’t have borne criminal liability. On top of that, suspects like Lemley enjoy more leniency than do those like Hasan because, in federal law, there is a list of officially proscribed foreign terrorist groups. There is no such list for domestic groups like the Base. It is very unlikely there will be any time soon, given how broad free-speech rights have become in the United States. Before the Unite the Right Rally in 2017, a state judge refused to allow the city of Charlottesville to relocate the ralliers outside the city center because that would be “viewpoint discrimination.” The last Supreme Court decision to define the parameters of hate speech, Virginia v. Black in 2003, made it legal to publicly burn crosses. In the majority opinion, still the law of the land 20 years later, Justice Sandra Day O’Connor wrote that “a burning cross is not always intended to intimidate. Rather, sometimes the cross burning is a statement of ideology, a symbol of group solidarity.”

A result, according to prosecutors I spoke to, is that the government often can’t pursue suspected domestic terrorists. Seth DuCharme, former chief of the criminal division in the Eastern District of New York, told me that in many domestic-terrorism investigations, what the suspects say, though revolting, is protected. “Immediately your stomach turns, and you say, ‘Why don’t we destroy these organizations?’” he said. But federal statutes “unfortunately are going to protect most of this behavior.” There is the constant danger, he said, that “we become vulnerable to accusations — and you’d see many of them — of us manufacturing crimes against Americans.” This is essentially what Lemley’s defense counsel suggested the government was doing.

Despite these obstacles, the Justice Department has done a more thorough job in this area than is widely recognized. Popular belief holds that the government has ignored domestic violent extremism since Sept. 11. The data says otherwise. According to an analysis of national crime statistics performed for The New York Times Magazine by the Terrorism Research Center at the University of Arkansas, since 2001, the federal government has brought hundreds of cases against far-right extremists, a large increase from the 1990s. (Thousands of state cases have also been brought in the same period.) This supports something that defense lawyers who work on federal terrorism cases told me: The government already has all the ammunition it needs. “The case law, statutory language and predisposition of most judges is to support the government’s position,” says one of those lawyers, Tamar Birckhead.

One reason for the lag between reality and perception is that in only some of those cases were terrorism charges brought. They were prosecuted as standard criminal cases, though the defendants may have acted with political or prejudicial ends in mind. In many of these cases, the term “domestic terrorism” never came up. Before Charlottesville, some prosecutors made a point of avoiding it. Edward O’Callaghan, a former principal associate deputy attorney general in charge of the Justice Department’s National Security Division, said that while the word “terrorism” is “an easy reference” for the public, it is seldom of use in court. It is extremely difficult to prove to a jury or judge that a defendant committed a crime with a particular philosophy in mind. And it can backfire. If prosecutors charge seditious conspiracy, for instance, and lose, O’Callaghan told me, “the headline is ‘Government Loses Terrorism Case.’”

How much are we willing to impede

the civil liberties, particularly

the free-speech rights of American

citizens whose plots are domestic?

How much are we willing to impede the civil liberties, particularly

the free-speech rights of American citizens whose plots are domestic?

Consider some of the recent crimes that many Americans, including law-enforcement officials, believe are acts of domestic terrorism: James Alex Fields Jr.’s crushing Heather Heyer to death with his car in Charlottesville; Patrick Crusius’s killing 23 people in a Walmart in El Paso; Payton Gendron’s shooting 10 Black people in a supermarket in Buffalo. None of these men were charged with crimes of terrorism, though they’ve all admitted to political or prejudicial motives. The same is true of Dylann Roof, who published a manifesto laying out his political philosophy. All four men were charged with federal hate crimes, but the hate-crimes statute suffers the same strategic problem that the seditious-conspiracy statute does: It is mainly punitive in aim and so, post-facto, not preventive.

The absence of clear law around domestic terrorism, and the imperatives of prevention, mean that investigators and prosecutors who work domestic terrorism cases must focus on more common charges: weapons violations, illegal drug possession, burglary, aiding and abetting and so forth. With these crimes, guilt can be demonstrated in court without the prosecutor’s having to conjecture about a defendant’s philosophy — even without imputing criminal intent. An illegal gun is an illegal gun, whatever the ideas of its owner and whether or not its trigger is pulled. These charges can also head off violence before it occurs, or so the prosecutor must claim in court.

“Because you’re trying to prevent an act of violence, you’re frequently having to disrupt the criminality before it reaches its zenith,” McCall told me. “But what that means is, you’re going to be stuck with lesser charges and are not going to get the sentence you want. But you’re preventing the loss of life. So there’s a trade-off and a balance.”

This Image Was Taken From Court Filings In The Case Against Brian Mark Lemley Jr.

“If we’re not ambushing feds, and we’ve got nothing better to do, we might as well go disable that infrastructure.”

“If you don’t sign a contract saying that you will fight when there is a flash point, an open conflict of the United States, you need to get kicked out of the Base.”

What he didn’t mention is that there is also a paradox that exists between a defendant’s supposedly major intentions and their often verifiably minor crimes. Since Jan. 6, there have been constant calls for the Justice Department to treat domestic violent extremists and foreign terrorists with a “moral equivalence,” a phrase that has become common in legal circles: that is, to punish people for the violence of their ideas as much as, if not more than, the violence of their actions.

In Washington, these calls figure into a larger debate between those who believe new domestic-terrorism law is needed and those, like Birckhead, and like most federal prosecutors I spoke with, who believe existing law is enough. Bills have been proposed in Congress to create a domestic-terrorism statute. None have gone far in part because they depend on designating domestic terror groups, a designation that would involve a fight over labels and free speech that neither Democratic nor Republican leaders appear eager to pursue. The Capitol-breach investigation has been called the largest criminal investigation in U.S. history. If so, it may also be the largest domestic-terrorism investigation in U.S. history — if you happen to consider the people who attacked the Capitol domestic terrorists. Some Americans do. But last February, the Republican National Committee officially censured its own members who were working on the congressional Jan. 6 investigation, stating that they were participating in the “persecution of ordinary citizens engaged in legitimate political discourse.” Some consider the protesters who took to the streets after the murder of George Floyd patriots. Yet, in 2020, Deputy Attorney General Jeffrey Rosen urged federal prosecutors to charge protesters with seditious conspiracy.

The major-minor paradox has always vexed criminal law. With the nation in a moral alarm over domestic terrorism, it is more vexatious than ever. And it was at the center of Lemley’s case.

The Base was not the first far-right extremist group Lemley joined. At his sentencing hearing in Maryland in the fall of 2021, Smock, his lawyer, portrayed him as especially susceptible to radicalization.

Smock took the court through Lemley’s personal history. His abusive father used crack and IV drugs. His mother had three husbands during his childhood, all of them abusive toward Lemley in some way. They moved 33 times. He switched schools 15 times. He was hospitalized for psychiatric treatment twice. A psychologist retained by the defense found the circumstances of his childhood were “so severe that the data set upon which they’re doing this analysis doesn’t even account for someone who’s experienced that level of trauma,” Smock said.

In 2004, at 18, Lemley enlisted in the Army. He served three years, including 15 months as a cavalry scout in Iraq. After an honorable discharge, he was diagnosed with PTSD. He entered therapy and was put on Adderall. He married, had a son, skipped from job to job. After declaring personal bankruptcy in Florida, he moved to Delaware. “He seemed lost,” Smock told the court. “He starts to look for answers about why his life is not going the right way, and this is something that you’ve seen in the lives of a lot of people in this country, sadly.”

This Image Was Taken From Court Filings In The Case Against Brian Mark Lemley Jr.

“We can at least draw like a mock-up plan for it.”

“That’s the likely spot for, like uh, setting up a base camp and everything.”

In 2018, Lemley joined League of the South, a neo-Confederate group. The same year, he wrote to Harold Covington, the creator of Northwest Front, a group whose mission was to create a white ethnostate in the Pacific Northwest. Dylann Roof mentioned the Northwest Front in his manifesto, and Covington described Roof’s murders as “a preview of coming attractions.” Lemley asked Covington about moving to his ethnostate. He subscribed to Covington’s Patreon account, sending him $100 a month until Covington died in July 2018.

Then Lemley learned of the Base. Like Northwest Front, it had elements of neo-Nazism, the militia movement and paranoid anti-​communism. But where Covington’s group predated the Trump era, the Base was a secretion of it. It was formed during the Trump presidency by a man who online called himself Norman Spear or Roman Wolf. He beckoned recruits to what he described as a “nationalist self-defense organization.” He named the group after Al Qaeda, “the base” in Arabic. Osama bin Laden’s model of decentralized terror cells is, bizarrely, an inspiration to certain white hate groups. Recruits completed written applications and underwent phone interviews. “Your choice is to trade freedom for safety under ZoG or fight,” Wolf told them, using an acronym for the antisemitic term Zionist Occupied Government.

His real name was Rinaldo Nazzaro. According to New York Magazine, he grew up in the New Jersey suburb of Livingston, attended Catholic school and studied philosophy at Villanova University, where he joined the Democratic Socialists of America. With the Iraq War, he reinvented himself as a defense contractor. He won a Pentagon contract, Vice News reported.

Lemley contacted Nazzaro, writing, “I really expect the powder keg to just blow at some point and I want to have some liked minded people to link up with.” Nazzaro responded two days later. “The Base is an international survivalist and self-defense network — It’s not a political organization or militia, there is no formal membership, and therefore there are no formal leaders,” he wrote to Lemley. “The primary goal is to pool together knowledge and resources in order to organize training events and improve individual skills as well as provide mutual support in the event of a SHTF scenario,” using an acronym for [Expletive] Hits the Fan. He added, “If you think your interest will be limited to only online participation, please don’t join — Meet-ups and getting active IRL are essential.”

Lemley explained that he was a “2016 redpill,” a term that commonly describes the conversion to a right-wing worldview. He said of himself, “Ideology/political worldview: ill summarize because this could be extremely long. I am a newbie NatSoc” and “I expect there to be a civil war in the usa in the near future.” He added, “Trump is a false prophet.”

The government knew about their conversation because, in 2018, it began surveilling the Base. It was easy enough for a joint terrorism task force to pick up Nazzaro’s trail. He advertised his email address and had public Twitter accounts, including @TheBase_1.

The task force obtained a warrant to monitor private exchanges among Base members on chat platforms. Far from limiting himself to online participation, the investigators learned, Lemley was eager to do something in reality. He started small, sticking a Base flyer onto the drive-through menu at a Starbucks. Then he met a Base member, William Garfield Bilbrough IV, and in August 2019, they attended two training camps, where they fired rifles and did tactical drills. In a photograph taken by a Base member at one of the camps, Lemley wears cargo shorts and a mask and holds aloft a rifle. Bilbrough kneels, wearing a mask with a skull printed on it, holding a blade. They are posing in front of a flag bearing the Base emblem, three identical, possibly Norse, runes in white on a black background.

That same month, The Winnipeg Free Press published an article about the Base’s activities in Canada. The reporter, Ryan Thorpe, posed as a recruit and was interviewed by phone. Thorpe was told to meet with a local member: Patrik Mathews, who would become Lemley’s co-​defendant. Mathews was a former reservist in the Canadian Armed Forces. When The Free Press article ran, the Royal Canadian Mounted Police searched his house. His pickup truck was later found abandoned near the border.

Lemley and Bilbrough drove to Michigan, where they picked up Mathews. In aiding someone who was in the country illegally, Lemley had at last committed a clearly chargeable offense. But the task force didn’t arrest him. Instead, it tracked him to the home of a Base member in Georgia. Members discussed killing Thorpe. At the end of October, they traveled together to another training camp. Lemley bought 1,500 rounds of rifle ammunition. He and Mathews moved into an apartment in Delaware that Lemley rented under his own name. They built an assault rifle from parts they ordered online. They appeared to be preparing something big.

This Image Was Taken From Court Filings In The Case Against Brian Mark Lemley Jr.

“… and if it turns into a shootout, I’ll immediately retreat from the city and then start organizing all the people that are going to come and respond.”

“I would only do that in enemy territory. I wouldn’t be caught dead doing it in like a Second Amendment Sanctuary county where I might- (talking over each other)”

Over the course of 2019, the task force obtained more than a dozen warrants on Lemley and his circle. In the applications for the warrants, the prosecutors cited serious potential federal crimes such as inciting a riot and conspiracy to commit a hate crime. They obtained access to Lemley’s email accounts and phones and personal records. They watched the exterior of Lemley’s apartment through a closed-circuit camera. This is how domestic-terrorism investigations work: patient, plodding. The former federal prosecutor Jamie McCall says they are not unlike drug-trafficking investigations: You watch and watch, record and record, slowly accumulating evidence over the course of months and years. But, he added: “The rub is, where with drug-trafficking the crime is very obvious, here it isn’t. Where does hate turn into a plot?”

By December, the task force had collected enough evidence to obtain from a judge a delayed-notification warrant — or so-called sneak-and-peek warrant — to search Lemley’s apartment. Inside, they found Base propaganda, empty rifle cases and a storage container packed with meals-ready-to-eat (made by a company called My Patriot Supply). They searched Lemley’s and Mathews’s devices. On Mathews’s laptop they found a video. He addressed the camera in a gas mask. “The time for words has ended,” he said. “The time for podcasts has ended. The time for talk has ended.” He added, “The time for violent revolution is now.” The investigators photographed everything, leaving no sign they had been there.

The evidence was alarming enough that, while still in the apartment, the agents received approval from a judge for a Title III wiretap. (That Mathews was Canadian did not protect him.) It is the most invasive tool of electronic surveillance available, “essentially a federal agent living in your home and watching your every move,” as one lawyer involved in the case put it to me. In a wall, they installed a hidden camera and microphone. From mid-​December 2019 to mid-January 2020, they monitored Lemley and Mathews around the clock. They watched as the pair added parts to the homemade assault rifle and practiced what they appeared to think were close-quarters combat drills, rushing between the kitchen and living room. Lemley and Mathews went to a shooting range. Agents set up a video camera near the range. They watched as Mathews fired a rifle and Lemley observed the shots through a scope, as a sniper team would do.

But mainly the pair just talked, seesawing between the ludicrous and the unthinkable.

“They want bad guys so bad, they can have it: We’ll give them bad guys,” Mathews said. “We will give them white-supremacist terrorists.”

Lemley said, “I need to claim my first victim.” They discussed a scheme to free Dylann Roof from prison using a planted guard and a prisoner who would hold up a sign with Roof’s name, directing him to a hole in the fence. Lemley suggested they steal a tank and ram it into the prison. “A tank isn’t a horrible idea,” Mathews said, “but the question is, How do you get a tank?”

This Image Was Taken From Court Filings In The Case Against Brian Mark Lemley Jr.

“I literally I need to claim my first victim and then you have [unintelligible].”

“No, I mean, you don’t know me and I don’t know you. Not in the same way, not the way that you would need to. You don’t know the depths of my courage, and I don’t know yours.”

In early January 2020, the talk took a more serious turn. They believed the Virginia House of Delegates was being taken over by Jewish Marxists out to ban guns. They discussed going to a Second Amendment rally scheduled to take place in Richmond later that month, where they and other extremists would help spark the Boogaloo. They debated whether to go in guns blazing or to stay on the periphery, using sniper tactics to pick off people.

The agents were watching this in real time. So, too, was Windom, the prosecutor, trying to determine how serious Lemley and Mathews were about Richmond. Their chatter was so diffuse, it was hard to say, and most of what they said was still protected by the First Amendment.

By this time, the F.B.I. was not only recording everything; it was also relying on an undercover agent. A middle-aged man posing as a white-power biker, he had managed to infiltrate the Base and then Lemley’s circle. Now he was in Lemley’s living room. He tried to tease out details about Richmond.

“So what’s the significance of next week?” he asked Lemley on Jan. 11. The rally was to take place nine days later.

Lemley told him that many armed extremists would converge on Richmond. “And then some are being told, ‘This is it, we’re going to [expletive] storm the Capitol building.’”

Mathews said, “The minute that militias start hearing Boog’s on, boys — ”

“It’s on,” Lemley said.

But when the undercover agent asked for more detail, Lemley demurred. Lemley was considering going to a training camp in Michigan instead, he said. “We’re definitely going up to Michigan,” he said, and might continue on to Richmond, but “I certainly don’t want to be in the crowd, and I certainly don’t want to be storming any buildings with a bunch of retards.” He added, “Nobody’s really, like, drawn up a real plan.”

The discussion stretched into the night and the next day, the three men becoming less and less coherent. Lemley and Mathews fantasized about the havoc they would wreak in Richmond, then pulled away, doubting whether they would even go. The agent kept redirecting the talk back to Richmond, offering to do whatever was needed.

“OK, who am I killing?” he asked.

Lemley said to Mathews, “How bad would you feel if all that went on, there was a battle of Richmond, and you weren’t even [expletive] there?” But then he told the agent, “This is all, like, uh, hypothetical.”

Windom watched and listened in suspense. How firm a plan did the suspects have to make for Richmond so that he could show criminal intent in court? With Windom was his co-​counsel, an assistant U.S. attorney in Maryland named Thomas Sullivan. Sullivan told me, “When you have individuals who are close-knit and they’re plotting activities, it’s very difficult to get that evidence of intent.”

Then there was the question of when to move. If Lemley and Mathews did formulate a plan, how close to the time of the Jan. 20 rally should the agents wait? Should they allow the suspects to leave the apartment? Should they descend upon Lemley’s truck on the highway as he drove south? Windom told me: “One of the things that’s constantly in your mind is, What is the disruption charge? As opposed to, What is the ultimate charge we want here? What can we do to take this person off the board if we have to?”

Windom and Sullivan did the legal calculus. As it stood, they did not have enough evidence to bring terrorism charges. In fact, they didn’t have enough to bring any very serious charges. But they did have enough for a series of smaller charges. And they had the homemade rifle. Having no criminal record, Lemley could have purchased any number of guns legally. But he had chosen instead to build his own assault rifle, which wasn’t necessarily chargeable, either, except that Mathews had made it fully automatic, against which there is a federal statute.

If Lemley pleaded guilty to the lesser charges, there would be no trial, and then the prosecutors would only have to make their argument for an enhanced sentence before a judge. The sentencing adjustment wouldn’t require that they show beyond a reasonable doubt that Lemley intended to commit a crime of terrorism, only a “preponderance of evidence” that Lemley committed a felony “that involved, or was intended to promote, a federal crime of terrorism,” in the language of the sentencing guideline. They believed his words could be sufficient for that.

“We work with what the targets give us,” Windom told me.

They decided to act.

This is how domestic-terrorism

investigations work:

patient, plodding.

This is how domestic-terrorism investigations work: patient, plodding.

“Once it became more certain there was a strong possibility they were going” to Richmond, Windom said, “we started developing takedown plans.”

In the last recorded conversation presented in court, from the early morning of Jan. 16, Mathews said, “We’re gonna go to jail anyway, might as well go to jail for something good.”

Later that day, as the two men made to leave the apartment, an F.B.I. SWAT team surrounded the building. Lemley and Mathews had just enough time to throw their phones in a toilet. In addition to the military-style rifle, agents found a sniper rifle painted in camouflage, two thermal scopes, a range finder used by snipers, ammunition, a helmet, camouflage tactical gear and a knife emblazoned with the Base insignia.

The Base investigation had by that point extended into at least six states. One member, Richard Tobin, was arrested in New Jersey and charged with conspiracy against civil rights. Yousef Omar Barasneh was arrested in Wisconsin and charged with the same thing. They had planned to vandalize synagogues in the Midwest in a plot they called Operation Kristallnacht. In Georgia, Michael John Helterbrand, Jacob Oliver Kaderli and Luke Austin Lane were arrested and charged with conspiracy to commit murder and conspiracy to commit arson after they plotted to kill a couple who they believed were in Antifa. While awaiting trial in jail, Helterbrand was charged again, this time with helping members of a hate gang rape another inmate with a toothbrush. There would be more arrests in Michigan and California. The Second Amendment rally in Richmond attracted thousands of participants, but there was no violence.

While Lemley was in jail, the U.S. Capitol was attacked. Nine months later, he sat in the courtroom in Maryland. The sentencing memorandum against Lemley that Windom and Sullivan gave the judge began this way: “Hoping for a civil war that would decimate racial and ethnic minorities and subjugate women, the defendants joined forces with each other and others, studied violence, tested their weapons skills, stockpiled munitions and supplies, and planned to kill on a large scale in pursuit of their goals.” It went on, “The defendants each should be sentenced to a term of imprisonment of 25 years.”

The seven charges in the memo involved the homemade rifle and aiding and abetting Mathews. The charges for inciting a riot and conspiracy to commit a hate crime were gone. Sullivan told me that he’d never seen so much evidence in a domestic-terrorism case; he knew of no previous domestic-terrorism case in which a Title III wiretap had been used. Yet even with all of the evidence, he and Windom felt they didn’t have enough to make the more serious charges stick. Nor did they have enough evidence to charge Lemley with criminal conspiracy. His plotting was too incoherent to say what exactly the conspiracy was.

Windom told the court that Lemley had been intent on going to Richmond. But this claim was soon contradicted — by the F.B.I. When the lead F.B.I. agent on the case was asked about the Richmond plot by Mathews’s lawyer, the agent conceded that “they discussed Michigan and Virginia on multiple occasions,” and “it wasn’t clear, which or both, what they were doing.”

Windom decided he could still try for the sentencing adjustment. Even if it was true that the defendants hadn’t made a firm plan for Richmond, he told the judge, Theodore Chuang, they still intended to promote terrorism. It wasn’t an outlandish strategy. The terrorism adjustment, 3A1.4 in the federal sentencing handbook, was written in the 1990s, and since then has come up in nearly 200 cases, many of them to do with domestic terrorism. Sometimes judges grant it; sometimes they don’t.

This wasn’t the first time Windom sought it. In 2020, he prosecuted Christopher Paul Hasson, in the same court. A former Coast Guard lieutenant, Hasson had accumulated a small arsenal with the idea of killing Democratic politicians, professors, journalists and “leftists in general.” Hasson was charged with relatively minor weapon and drug-possession crimes. The judge in Hasson’s case found 3A1.4 was applicable and sentenced him to 13 years.

Smock, Lemley’s lawyer, disagreed. He presented Chuang with a list of cases comparable with Lemley’s in which the prosecutors didn’t seek 3A1.4 or it had been denied. In the list were two cases against other Base suspects. This was when Smock said that the adjustment was “not based on what Mr. Lemley was charged with” but “based on his words and their theories about what that suggests about his intent.”

And he was right. That’s exactly what they were doing. Indeed, Chuang agreed with him. He was unconvinced by Windom. When Windom told him, “These aren’t two guys just sitting there, you know, having a beer, talking about, you know, their dreams,” Chuang said: “Well, that’s your theory, right? But you need to have evidence of that, correct?”

“Well, I mean, it’s a — it’s a theory that’s borne out by, I guess, logic and their statements,” Windom said.

“But isn’t it correct,” Chuang responded, “that not every member of the Base is necessarily, at any given point in time, intending to promote these specific crimes of terrorism?”

“That’s correct,” Windom conceded.

On his side, Smock may have had the broad boundaries of the First Amendment. But this was not enough to overrule the fear of domestic terrorism that was gripping the nation and that hung in the courtroom.

After the lawyers finished their arguments, Lemley was allowed to make a statement of his own. He stood up. “After moving on mentally for almost two years, listening to my statements shocked even me,” he told the court. “I have a lot of work to do to figure out how and why I got to that point.”

Lemley’s sister also addressed the court. She recalled that, when Lemley left home for Iraq, their mother hung gold ribbons and American flags in their front yard. She said, “I watched the colors fade and the ribbons fall apart.”

“He’s not the enemy,” she went on, but “part of a generation of Americans that lost its faith in the system.”

“He’s not a terrorist,” she said.

Chuang appeared unmoved. He sentenced Lemley to nine years in prison. Explaining his decision, the judge acknowledged that he didn’t believe Lemley was set on going to Richmond. Nor, he implied, did he entirely buy Windom’s argument that Lemley intended to promote federal crimes of terrorism. Chuang said that 3A1.4 would bring a sentence incommensurate with the crimes, but a sentence without the adjustment (33 to 41 months) was too lenient. Splitting the difference, he lighted on nine years, because he wanted “to provide greater deterrence than we currently have” for cases like Lemley’s.

If his reasoning sounded tortuous, it was hardly Chuang’s fault. It reflected the legal paradoxes of the case and domestic terrorism law in general or, maybe more accurately, the absence of it.

“This is a forgiving country,” Chuang told Lemley after sending him to prison. The Base “may hate America and want to tear it down, but there are an awful lot of dedicated citizens, whether in law enforcement, government or just regular folks who love this country and believe in what it stands for and will work together to make sure that the kinds of violent acts that you intended will not succeed.”

A Photograph Of Patrick Mathews

Royal Canadian Mounted Police, via Associated Press

Justen Watkins

Left: Patrick Mathews, Lemley’s co-​defendant. Royal Canadian Mounted Police, via Associated Press Right: Justen Watkins, who claimed he was the new leader of the Base. Washtenaw County Sheriff’s Office

Mathews also received nine years. William Bilbrough received five and Richard Tobin one. Justen Watkins, a Michigan man who claimed he was the new leader of the Base, was arrested. He was sentenced by a state court to up to 20 years. The founder of the Base, Rinaldo Nazzaro, is believed to be living in Russia.

The defense lawyer Tamar Birckhead told me that Lemley’s defense “did a valiant job putting forth a rational, reasonable argument, as most of us do,” but it wasn’t enough to counter a federal judge’s instinct to side with the Justice Department in a terrorism case. But, she added, in a case in which “the government wanted 25, a sentence of nine years is a win for the defense.”

The Justice Department also views the Lemley case as a win, as well as a model for future prosecutions. (It was enough to earn Thomas Windom a challenging new assignment: He is now helping to direct the Justice Department’s investigation into Donald Trump’s efforts to overturn the 2020 election.) The department reports that, since 2020, its domestic-terrorism investigations have more than doubled in number. Still, Lemley’s case, which required years to complete, thousands of man hours and a vast outlay of government resources, points up the challenges of making such cases, particularly as the constellation of domestic violent extremists continues to grow. Windom said, “It’s like trying to solve a murder before it happens.”

Original Source