Racial Justice Requires Domestic Terrorism Laws

Attorney General William P. Barr defended federal response to protests at an oversight hearing before the House Judiciary Committee. Photo Credit: Chip Somodevilla via The New York Times.

The Argument

As protests over police violence against Black people and systemic racism continue across the U.S., many still wonder how and when justice will be served. While popular demands like investing in community protection programs,^[i] ensuring universal public education and health care, eliminating contract language that allows for limited police accountability,^[ii] and creating civilian review boards^[iii] are important channels for effecting change, one crucial area has received less coverage: establishing domestic terrorism laws. 

This article does not assess what types of domestic terrorism laws should exist, but rather, it aims to demonstrate that domestic terrorism laws should exist. The existence of domestic terrorism laws is an essential part of racial justice. In the next sections, I will outline why our current legal foundation is inadequate for prosecuting domestic terrorism cases and offer possible explanations as to why legislators might be holding back from achieving these aims. I will then provide examples of domestic terrorism law in other countries as models for the U.S. Finally, I emphasize the value of domestic terrorism laws as a vital pillar of combatting racial injustices.

In her recent Lawfare piece,^[iv] Anna Meier highlights the significance of the issue: some call Black Lives Matter a terrorist organization,^[v] yet others refer to white supremacy-based violence as a mental health issue.^[vi] Meier argues that the “terrorist” label moves an act of violence from “non-ideal” to “unacceptable.” White supremacist violence must be definitionally unacceptable, as determined by the law. While some, like former Director of National Intelligence James Clapper, posit that slapping a “terrorist” label on a group is purely symbolic,^[vii] symbols matter. Indeed, establishing robust and effective domestic terrorism laws will play an important symbolic and functional role in advancing racial equality in the U.S.

What We Have Now is Insufficient

In August 2017, Heather Heyer attended the “Unite the Right” rally in Charlottesville, Virginia. On that same day, 20-year-old James Alex Fields, Jr. rammed a car through a crowd on a main street, taking Heyer’s life. Then-Attorney General Jeff Sessions characterized the attack as an “evil” act of domestic terrorism.^[viii] Former Acting Assistant Attorney General and Principal Deputy Assistant Attorney General for National Security, Mary B. McCord, later argued^[ix] that the attack most certainly meets the federal definition of terrorism.^[x] One of the most devastating aspects of Heyer’s death is that, while McCord’s argument and Mr. Sessions’ assessment may be valid, there is no legal statute for charging an individual or a group, with domestic terrorism in the U.S. Indeed, ‘domestic terrorism’ is a far more figurative than legal term in the country that boasts the highest budget for counterterrorism work in the world; there is no jurisprudential tradition of prosecuting domestic terrorism in America.

Because of the legal shortcomings in prosecuting domestic terrorism, perpetrators are often sentenced to a limited set of charges: murder, hate crimes, and racketeering. Dylann Roof was charged with a hate crime.^[xi] James Alex Fields, Jr. was charged with hate crimes.^[xii] Robert Bowers was charged with hate crimes.^[xiii] Nikolas Cruz was charged with premeditated and attempted murder.^[xiv] David Lane was charged with racketeering.^[xv] Scott Roeder was charged with aggravated assault and first-degree murder.^[xvi] This limitation helps explain the lack of data on domestic terrorism, especially within the last decade. What is more, the data that does account for these crimes excludes domestic acts of terror that do not kill people, like defacing or destroying property, inciting violence, threatening the use of violence, causing psychological fear, or coercing the public. Finally, reporting is unreliable because of who reports, or does not report, the crimes. The director of Northeastern University’s Institute on Race and Justice, Jack McDevitt, supports the findings that marginalized communities do not feel comfortable or safe reporting hate crimes; LGBTQ people may not report due to lack of trust in the police or undocumented immigrants may not report due to fear of deportation.^[xvii] This means that a number of hate crimes go unreported each year, and we have inaccurate data about the severity of hate crimes that are not reported. Consequently, domestic terrorism might be far more widespread than we think.

While no differentiation of the law can impose a worse punishment than those already handed out (all ended in either life in prison or the death penalty), terrorism expert Daniel Byman identifies three advantages to calling a domestic act “terror:” a push for more resources to track and fight domestic terrorism, a raised level of urgency to combat domestic terrorism when attacks do occur, and a distinction between what is and is not terrorism (which is helpful for the media to produce more accurate coverage of events).^[xviii] Meier also points out that for foreign terrorist organizations (as designated by the State Department), the consequences can include being barred from funding sources or a decreased ability to carry out attacks.^[xix]

If applied in a domestic setting, these are certainly consequences worthy of consideration for domestic terrorist groups. There is a special place in the law for those who commit domestic terrorism, or there should be.

Challenges to New Legislation

Perhaps the biggest obstacle in creating a legal basis for prosecuting domestic terrorism is that there is no agreed upon definition of ‘terrorism.’ Terrorism expert Bruce Hoffman argues that terrorism must be violent, political, have a psychological effect, and come from a small, non-state or substate group or network.^[xx] The definition inherently excludes threats, sanctions, gang violence, or violence committed for a ransom. The State Department defines terrorism differently: it includes clandestine operations and specifies that the targets of terrorism are exclusively “non-combatants.”^[xxi]

In its definition, the Department of Defense (DoD) states that ‘terrorism’ does not need to be violent (could be a threat) and does not need to be political.^[xxii] The DoD definition expands how we might think about terrorism and how it could be applied. The Federal Emergency Management Agency (FEMA) definition of terrorism includes violence used for a ransom, but specifically excludes any political motivation.^[xxiii] Under this definition, gangs could potentially be classified as terrorists. Is it helpful to classify gangs as terrorists? Or do they belong in a separate category to be addressed with separate services?  Is flying a confederate flag an act of terrorism? Could the president’s behavior be characterized as inciting terrorism? Of course, these are broad interpretations, but if a statute in criminal law adheres to a similarly ambiguous definition of terrorism, courts may be free to interpret as broadly or narrowly as the definition allows. Private citizens will also be free to advocate for the interpretation that they feel is correct if terrorism’s definitional ambiguity is not addressed. 

Definitions are important. Policymakers and legislators can better understand how to address an issue if the issue is well defined. Especially in this context, it is essential to consider how definitions impact potential domestic terrorism legislation. A broad definition might allow lawyers or judges to label something as ‘terrorism’ that otherwise might not (or should not) be. A narrow definition might be so restrictive that it is rendered useless, holding no legal or symbolic weight.

There are indeed institutional roadblocks that obstruct effective legislative action on domestic terrorism, but the past two months have demonstrated that placing pressure on public officials through organized protest can be highly effective.^[xxiv] Yet, the need for effective legislation must be part of the conversations. There are already demands to change the status of hate groups, like the Ku Klux Klan (KKK), to terrorist organizations,^[xxv] but there is no legal mechanism in place to bring about this change. Definitional ambiguities in conjunction with political infighting is one cause for a slow-moving legislative machine.

What Would Domestic Terrorism Law Even Look Like?

While the practical application of domestic terror laws might seem unrealistic to some Americans, legislators in other parts of the world have already taken swift action. For example, the Australian Parliament in 2002 enacted the Security Legislation Amendment (Terrorism) Bill which gave the state the ability to prosecute persons under domestic terrorism charges^[xxvi] and included a unique “preventative state” measure allowing persons suspected of terrorism or those engaged in the planning of a domestic terrorist attack to be prosecuted and charged by the state.^[xxvii] Australian lawmakers addressed the definitional issue by morally equating domestic terrorists to international terrorists,^[xxviii] which is what McCord called for in her Lawfare piece. Similarly, the Canadian government supplemented their Criminal Code with the Combatting Terrorism Act, which also gives the state the ability to bring a suspect to court if there are “reasonable grounds to believe that a terrorism offence will be committed” (§ 83.28(4)(b)(i)).^[xxix]  

There have been three attempts in the U.S. Congress to address this gap in our criminal code—all of which occurred in 2019. First, Senator Martha McSally (R-AZ) created a discussion draft of a potential statute criminalizing domestic terrorism, though this discussion draft is not yet a bill.^[xxx] Then, Representative Adam Schiff (D-CA) proposed H.R. 4192 (Confronting the Threat of Domestic Terrorism Act), which has yet to be introduced to the House.^[xxxi] Finally, three Texas Congressmen convened to propose H.R. 4187 (Domestic Terrorism Penalties Act of 2019),^[xxxii] which has been introduced but not voted on, and has a particularly limited scope.^[xxxiii] Notably, these attempts do not consider McCord’s two stop shop to combat domestic terrorism: conduct more congressional hearings so lawmakers have an accurate sense of how and where the threat operates, then enact legislation based on the current statutes for international terrorism found in 18 U.S.C. § 2332b to include terrorism that does not transcend national boundaries.^[xxxiv] 

Why Do Domestic Terrorism Laws Matter?

While Byman makes excellent points regarding the potential advantages of domestic terrorism laws, there is one additional point to be made in the context of the Black Lives Matter movement. Including the demand for domestic terror laws alongside other crucial demands to alleviate racial inequities would move the country closer towards “justice for all.”

Police brutality is, of course, not the only type of institutionalized violence that Black communities face. Black men now have a 1 in 1,000 chance of being killed by police (as compared to 1 in 30,000 women of all races).^[xxxv] The KKK still exists in nearly half of these states and holds a few public rallies per year.^[xxxvi] In addition, about 60% of hate crimes are racially motivated and about 54% of hate crimes are committed by white offenders.^[xxxvii] How many of these “hate crimes” would actually be characterized as domestic terrorism if such laws existed? How many violent, white supremacist organizations have evaded consequences due to the absence of robust domestic terrorism laws?

An adequate legal regime that addresses domestic terrorism would help answer these questions and would improve racial justice in the U.S. Establishing domestic terrorism laws would facilitate more accurate hate crime and domestic terrorism data, increase awareness, demonstrate the impact of Congressional committees and legislation, and serve as a vehicle for strengthening racial equity and personal security. Black lives matter, crimes committed against Black communities matter, and having a sound legal basis to charge those responsible matters.