It’s Time to Consider a Federal Domestic Terrorism Statute
by Mary McCord
The New York Times’s Adam Goldman has a new story on efforts by federal law enforcement to curb domestic terrorism, for which I was interviewed:
“Law enforcement needs more effective tools,” said Mary McCord, a former top national security prosecutor who has drafted a proposed statute to criminalize the stockpiling of weapons intended to be used in a domestic terrorist attack. “I recognize the very legitimate concerns of those in the civil rights community, but I would hope that their concerns could be addressed through oversight.”
And NPR’s Hannah Allam ran a story that excerpted from an event on combating online hate in which I participated at New America in May. At the event, I said:
“I know there are good people in the government — I spent most of my career there — who really take this seriously, including people at the FBI, and really want to show leadership on the subject. But we don’t — they don’t have the same mandate from the highest-level leadership.”
Far right extremist violence is a pressing issue, growing more urgent with every new case. In a series of pieces published in Lawfare over the past two years, I have made the case for a terrorism statute that would apply to acts of violence in the United States that are intended to intimidate or coerce the civilian population or influence governmental policy through intimidation or coercion. As the idea picks up momentum, we have excerpted those writings below to serve as a resource for anyone looking for more information on this topic.
To be clear, it is not that there are inadequate criminal statutes on the books to ensure that James Fields can be prosecuted appropriately and, if convicted, serve a lengthy time in prison for his heinous crime. He is currently charged in Virginia state court with second-degree murder, aggravated malicious wounding, malicious wounding, and other offenses for which, if convicted, he could face up to life imprisonment. Like other domestic terrorists before him, state law can ensure just punishment for crimes like these. Scott Roeder, an anti-abortion extremist who in 2008 shot and killed an abortion provider in a Wichita, Kansas, church, was convicted of first-degree murder in state court and sentenced to life imprisonment; Jim David Adkisson, who in 2009 killed two people and wounded seven others during a shooting rampage at a Knoxville, Tennessee church motivated by hatred of liberals and Democrats, pleaded guilty to state murder charges and received a life sentence without possibility of parole. There also are federal hate crimes with which Fields may be charged after the Justice Department completes the civil rights investigation announced by the Attorney General last week. These have been effective in cases such as that of Dylann Roof, who was convicted of 33 counts of federal hate crimes and sentenced to death for slaughtering nine black parishioners at a Charleston, South Carolina, church in 2015. But neither state-law murder charges nor hate crime charges call what happened in Charlottesville what it was — domestic terrorism — and they fail to equate it under federal law, as it deserves to be equated, with the actions of ISIS-inspired terrorists who engage in violence in pursuit of their equally insidious goals.
It is of course true that, because of what would be a more complicated interaction with the First Amendment’s protection of the rights to free speech and assembly, the United States does not designate domestic organizations such as the Ku Klux Klan as terrorist organizations in the way that it designates foreign organizations such as ISIS as terrorist organizations. Our Constitution guarantees the right to free expression of opinions, including banding together with others of similar views, even if those views are offensive to the majority of the population. That right, as interpreted, has been understood by some as a barrier to the enactment of the domestic equivalent to the most commonly used international terrorism charge: providing material support to a foreign terrorist organization. But this does not mean that the federal government cannot criminalize acts of violence that are committed for the purposes enumerated in the federal definition of domestic terrorism (which, by the way, are identical to the purposes enumerated in the federal definition of international terrorism): “to intimidate or coerce a civilian population,” “influence the policy of a government by intimidation or coercion,” or “affect the conduct of a government by mass destruction, assassination, or kidnapping.” It is well established that violent acts done with any of these purposes are not protected by the First Amendment — they are not speech but, instead, violent acts. A federal crime of domestic terrorism would put crimes such as those allegedly committed by James Fields on the same moral plane as those committed by the attackers in France, Germany, the UK, and Spain, just as they deserve to be.
On Oct. 27, Robert Bowers launched an attack on the Tree of Life Synagogue in Pittsburgh, Penn., murdering 11 worshipers and injuring many others. The federal indictment against Bowers charges him with multiple counts of obstructing, by force and threat of force, “the free exercise of religious beliefs” resulting in death and bodily injury and involving the use of a dangerous weapon and attempts to kill. These counts are charged under a suite of federal hate crimes statutes first enacted in 1968 and amended periodically ever since. Some of these crimes allow for the maximum sentence under law: the death penalty. But they fail to hold Robert Bowers accountable for what he actually did: commit crimes of domestic terrorism.
Bowers is just as morally deserving of the “terrorist” label as Islamist extremists who engage in acts of violence to intimidate and coerce. That label carries weight — it creates a moral equivalency between domestic terrorists and international terrorists, and it signals to Americans that the threat of extremism is just as significant when it is based on domestic political, economic, religious or social ideologies as it is when based on Islamist extremist ideologies. This has become ever more important as the United States experiences increased incidents of violence, and threats of violence, perpetrated on behalf of extremist right-wing ideologies. There are no good terrorists, domestic or international. It is time for Congress to enact a federal offense of domestic terrorism.
With the groundwork set, if Congress determines — as we believe — that there is no central repository in the federal government for systematically collecting, analyzing and disseminating data on acts of domestic terrorism and hate crimes, it should consider legislation that establishes a mechanism and requirement to keep track of these incidents. One possible analogue could be the State Department’s congressionally required Country Reports on Terrorism. Those reports, among other things, include a statistical annex of worldwide incidents of terrorism. The Department of Homeland Security and the FBI seem like the logical entities to produce a comprehensive annual domestic terrorism report.
But more than just accurate reporting is needed. Congress should also introduce and pass legislation creating a domestic terrorism offense. Draft legislation could be the catalyst for the hearings recommended above. Based roughly on current 18 U.S.C. § 2332b, the statute could make it a federal criminal offense to kill, kidnap, maim, commit an assault resulting in serious bodily injury or an assault with a dangerous weapon, or destroy property causing significant risk of serious bodily injury, when done with one of the intents included in the current federal definition of domestic terrorism: (1) to intimidate or coerce a civilian population, (2) to influence the policy of government by intimidation or coercion, or (3) to affect the conduct of a government. The statute should apply to attempts and conspiracies too.
Enacting a federal crime of domestic terrorism would place it on the same moral plane as international terrorism, as one of us has written before. It would also bring with it more resources (the FBI would, after all, be responsible for investigating domestic terrorism and enforcing the statute) and better data (especially if paired with mandatory reporting requirements).
The United States has long built its approach to counterterrorism based on a fundamental distinction between “international terrorism” and “domestic terrorism.” The phrases were always misnomers to some degree, but the recent mass shooting at two mosques in Christchurch, New Zealand, has revealed just how unsuitable that distinction is for today’s terrorist threats. Governments must reorient their counterterrorism approaches to reflect an environment in which all terrorist threats have transnational dimensions — and they must do so quickly to address the growing threat of far-right violent extremism.
The phrases “international terrorism” (think of the Islamic State and al-Qaeda) and “domestic terrorism” (think of the Oklahoma City bombing and the October 2018 shooting at a Pittsburgh synagogue) have often been a source of confusion to those not steeped in counterterrorism. The Islamic State has its roots internationally, but what makes it such a threat to Americans is, in part, its ability to influence domestic actors like Omar Mateen to kill Americans in domestic locations like Orlando, Florida. The group may be “international,” but its attackers and attacks can be, and have been, domestic — to tragic effect.
In contrast, killers like Robert Bowers, who gunned down 11 worshipers at the Tree of Life Synagogue and injured many others,was motivated not by allegiance to a foreign terrorist organization like the Islamic State but by what typically have been thought of as “domestic” political, social, or ideological grievances: in Bowers’s case, a hatred of Jews and desire to preserve what he referred to as “my people.”
Last week’s terrible killing of 50 Christchurch residents while they prayed at two mosques revealed how inapt the distinction between “international” and “domestic” terrorism has become. Brenton Tarrant, the Australian suspect now in custody for these murders, is reported to lack concrete ties to any international organization like the Islamic State — but, nonetheless, he cited an expansive range of international influences in his online manifesto. Those included other “domestic terrorists,” like the Norwegian killer Anders Behring Breivik, who killed 77 people in July 2011, and Dylann Roof, the American white supremacist who slaughtered nine African-American worshipers at a church in South Carolina in 2015.
· An act of domestic terrorism (CNN, 4/28/19)
· Why So Many Violent White Supremacists Aren’t Charged With Domestic Terrorism (Mother Jones, 4/26/19)
· How a change in law could lead to more arrests of domestic terrorists (ABC News, 3/26/19)