White nationalist demonstrators used shields as they guarded the entrance to Lee Park in Charlottesville, Va., Saturday, Aug. 12, 2017. Photo Credit: AP Photo/Steve Helber
By: Lee Walter, Columnist
This past January, Marcia Price of the Virginia House of Delegates proposed Virginia House Bill 1601, which would establish a state definition of what constitutes an “act of domestic terrorism” and a “domestic terrorism organization.” If passed, the bill would direct state police to create annually updated designations of “all organizations, groups, or associations meeting the definition of a domestic terrorist organization”[i] and would mandate a life sentence, with no possibility of reduction, for anyone that commits two or more separate acts of domestic terrorist violence. This bill, and similar ones introduced in other state legislatures, was no doubt inspired by the spate of horrific acts of domestic terrorism over the last several years. The Boston Marathon bombing, mass shootings in a Charleston church and an Orlando nightclub, and violence at a protest in Charlottesville placed a national focus on domestic terrorism at a level not seen since the mid-90s. More recently, the Department of Justice has reportedly tried lobbying for the creation of federal statutes to prosecute domestic terrorists.[ii]
What should we make of these proposals to create a new class of criminal? What will happen if we treat two identical crimes differently depending on whether the offender was driven by personal or political grievances? If recent events are any indication, the outlook is not bright. According to a leaked report written in August 2017, the FBI established a new terrorist designation, “Black Identity Extremists,” to describe individuals motivated by “perceptions of police brutality” to commit violence against law enforcement.[iii] Critics are comparing the new FBI policy to the government’s penetration of African-American protest organizations during the civil rights movement under COINTELPRO.[iv] There seems to be some merit to their claims, as at least one protestor has likely been arrested under the new designation.[v] The American Civil Liberties Union expressed its vigorous opposition to the Virginia House Bill, arguing that by allowing the government to designate activist groups as terrorist organizations, it could also open the door to prosecuting their supporters under 18 USC 2339. This statute, concerning “material support” of terrorist organizations, covers an extremely broad range of activities, including simple advocacy.[vi] Though perhaps used effectively to hunt down ISIL propagandists unprotected by the First Amendment, the material support clause could result in serious civil rights infringements if it were ever employed against U.S.-based political organizations.
Other nations have also found little success crafting effective legislation designed to counter domestic terrorism. France, which has arguably grappled with an even greater terror threat than the United States, has struggled with its own accusations of civil rights violations. The country recently passed what some have referred to as its own version of the PATRIOT Act, allowing the government to raid French homes and detain terror suspects without warrants, which has been used disproportionately to target Muslims.[vii]
What, then, should be done? If the Department of Homeland Security is to be believed, the threat of domestic terrorism – in the form of heavily armed, right-wing “patriot” militia groups – has been on the rise since at least 2009.[viii] In this regard, the federal response is already well-constructed. The federal government defines domestic terrorism in the PATRIOT Act[ix], but the law does not detail any criminal charges. Instead, the statute exists to trigger certain stricter investigatory mechanisms within the FBI. This is a fine middle ground, which recognizes the fact that terrorism, given its disproportionate impact, requires a more resource-intensive response, while also acknowledging that introducing harsher sentencing for a crime purely because the perpetrator was politically motivated potentially puts civil rights at risk. If the threat of domestic terrorism is on the rise, more resources could be helpful, but harsher legislation is probably counterproductive. Besides, the federal government has done just fine prosecuting domestic terrorists – from Timothy McVeigh to Dzhokhar Tsarnaev – with laws that are already on the books.
Terrorism is only as effective as the fear it produces. To the extent that a newfangled “tough on terror” law assuages these fears, House Bill 1601 and others like it might have some merit. But from a practical perspective, there are better options for addressing the threat, presently in place, that do not involve potentially endangering civil liberties.
[i] HB 1601 (VA 2018), https://lis.virginia.gov/cgi-bin/legp604.exe?181+sum+HB1601.
[ii] Ryan J Reilly, “Domestic Terrorism Isn’t a Federal Crime. DOJ May Try to Change That,” Huffington Post, August 16, 2017, https://www.huffingtonpost.com/entry/charlottesville-attack-domestic-terrorism-doj_us_5991eaa2e4b09071f69bb648.
[iii] Jana Winter and Sharon Weinberger, “The FBI’s New U.S. Terrorist Threat: ‘Black Identity Extremist’,” Foreign Policy, October 6, 2017, https://foreignpolicy.com/2017/10/06/the-fbi-has-identified-a-new-domestic-terrorist-threat-and-its-black-identity-extremists/.
[iv] Thaddeus Talbot, Hugh Handeyside, and Malkia Cyril, “Is the FBI Setting the Stage for Increased Surveillance of Black Activists?” ACLU, October 18, 2017, https://www.aclu.org/blog/racial-justice/fbi-setting-stage-increased-surveillance-black-activists.
[v] Creede Newton, “US Judge Orders Release of ‘First Black Identity Extremist’,” Al Jazeera, May 5, 2018, https://www.aljazeera.com/news/2018/05/judge-orders-release-black-identity-extremist-180504115412408.html.
[vi] Providing material support to terrorists, 18 USC 2339 (1994).
[vii] James McAuley, “French Muslims Enraged by Passage of Macron’s Version of Patriot Act,” Washington Post, October 3, 2017, https://www.washingtonpost.com/world/europe/with-french-patriot-act-macron-enrages-french-muslims/2017/10/03/998a0af4-a841-11e7-9a98-07140d2eed02_story.html?noredirect=on&utm_term=.4cad4210d974.
[viii] US Department of Homeland Security, Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalizations and Recruitment (2009), https://fas.org/irp/eprint/rightwing.pdf.
[ix] Providing material support to terrorists, 18 USC 2339 (1994).