Why Domestic Terrorism Warrants a Federal Response

The Patriot Act, enacted shortly after the attacks of September 11, 2001, redefined terrorism both on the international and domestic level and was used as a preventative measure to ensure stronger opposition against extremist attacks. In an attempt to accomplish this, the Patriot Act included provisions enhancing immigration security which included a foreign student monitoring program and emphasis on visa integrity and security among other things (Patriot Act). Consequently, common public perception became that the U.S. government met foreign acts of terrorism with greater resistance than domestic extremist acts of the same or similar nature (MacFarquhar 2020). Currently, public perception would be correct. According to a Government Accountability Office Report, out of the 85 violent extremist incidents resulting in death since 9/11, 73.3% were due to far-right wing extremists, yet only on the international level is a federal terrorism crime applicable (Count. Vio. Extrem.). Because of this, crimes that meet the definition of domestic terrorism under Title 18 of Section 2331 of the U.S. Code​ are generally prosecuted with alternative criminal charges such as hate crimes or assault (Laguardia). Although offenders charged with these crimes are still met with harsh sentencing, the deference to alternative felonies for acts of domestic terrorism is inherently problematic because this allows leeway for right-wing perpetrators to face charges of lesser severity than their Islamic counterparts (​Aaronson 2019​). As far-right extremism continues to escalate, it becomes increasingly evident that domestic and international terrorism is not prosecuted equally under law and as a result they are not obstructed to the same extent.

As anti-immigration sentiment and Neo-Nazi organizations continue to emerge and perpetuate notions of white nationalism, white supremacy has been identified as the leading cause for domestic extremist behavior by the Department of Homeland Security yet such threats are not treated as connected incidents (Sands 2020). The 2019 shooting in El Paso, Texas is an indication of this reality in which the defendant, Patrick Crusius, was sentenced with hate crime and firearm charges for shooting and killing 23 people in a Walmart at the U.S. - Mexico border on the basis of his white nationalistic ideology (​Martinez 2020​). Though many might argue that Crusius will be receiving sufficient punishment for his crimes - now potentially facing the death penalty - the bigger picture here is evaded. This type of violence stems from a pattern of far-right extremist tendencies that have been identified by several law enforcement agencies as an imminent threat to human rights, however it is being handled independently (​Count. Vio. Extr.​). Under title 8 section 1189 of the U.S. Code, if found in relation to known Islamic extremist groups, these types of tendencies would be monitored and charged as associated with foreign terrorist organizations (FTOs) and could therefore be addressed before the attack. A large contributor in explaining why there is no designated list of domestic terrorist organizations (DTOs) comes from the First Amendment implications which various civil liberties groups have advocated against arguing that this designation could have unintentionally harmful outcomes for political advocates and protesters (​McQuade 2019​). This complication makes it exceedingly difficult to consolidate counterterrorism efforts on the domestic stage.

The lack of designated DTOs also provides an extra challenge when addressing charges of material support in the context of terrorism. Material support is deemed as the extension of property or services provided to designated terrorist groups or used as part of the commission of a terrorist activity. The case of ​Holder v Humanitarian Law Project,​ in which two different domestic groups aiming to help with peaceful conflict resolution in their respective foreign countries by educating entities that were labeled FTOs by the United States, set the precedent of which geographical standards material support met (1). The Supreme Court ruled against the First Amendment challenge stating that providing legal and advocacy training to designated FTOs fit the statute of material support, but specifically warned that this same prohibition could not be applied to instances of domestic terrorism (​McQuade 2019​). In 2019, Representative Adam Schiff proposed H.R. 4192 which addressed these concerns issuing that material support should be permissible domestically if prosecutors proved that it would be used to kill, kidnap, or assualt another person or damage property in a domestic terrorism crime (Dom. Ter. Act). This bill inevitably failed to pass due to other possible unconstitutionality discrepancies within the proposal, however creating such statutes independently are a plausible solution to address the disparity between the federal approach to international and domestic terrorism.

It’s important to note that the implications of having no cohesive domestic terrorist statute go beyond simply prosecuting perpetrators inadequately, but also affect the ability of federal security agencies to allocate resources for counterterrorism efforts. Currently, Justice Department guidelines dictate that every single crime charged as terrorism as defined in the U.S. Code ​must be coordinated and approved through the department’s National Security Division. This allows the Justice Department to maintain accurate and updated records on every single instance of international terrorism in the U.S. (McCord 2018) This is aided by the Foreign Intelligence Surveillance Act which authorizes federal agencies to thoroughly investigate individuals with an established connection to an FTO (Laguardia 226). In cases of homegrown terrorism, federal agents must rely on the voluntary reporting of hate crimes from state and local law enforcement agencies which gravely misrepresents and undercounts for most instances of domestic extremism (McCord 2018). Because of this, federal agencies can not employ the same degree of protection against extremist attacks when they are not directly connected to Islamic extremist entities.

While it is arguably untrue that the federal government does not recognize the growing threat of right-wing extremism, it is indisputable that more of their focus lies on the international playing field of terrorist threats. With an exceedingly polarized ethnic climate in which national rates of Islamophobia are continuously on the rise, it is more pertinent than ever to bridge the divide between the prosecution of domestic versus international terrorism through new federal domestic terrorism statues.

References

Aaronson, Trevor. "Terrorism's Double Standard." ​The Intercept​, First Look Media, 23 Mar. 2019, theintercept.com/2019/03/23/domestic-terrorism-fbi-prosecutions/. Accessed 15 Dec. 2020.

Laguardia, Francesca. "Considering a Domestic Terrorism Statute and Its Alternatives." Northwestern University Law Review​, 2020, pp. 212-50, scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1283&context=nulr _online. Accessed 8 Dec. 2020.

MacFarquhar, Neil. "As Domestic Terrorists Outpace Jihadists, New U.S. Law Is Debated." ​The New York Times​, New York Times, 25 Feb. 2020, www.nytimes.com/2020/02/25/us/domestic-terrorism-laws.html. Accessed 8 Dec. 2020.

Martinez, Aaron. "Suspect Faces New Federal Charges in El Paso Walmart Mass Shooting." ​El Paso Times​ [El Paso], 9 July 2020, www.elpasotimes.com/story/news/crime/2020/07/09/patrick-crusius-faces-new-federal-c harges-el-paso-shooting/3286985001/. Accessed 15 Dec. 2020.

McCord, Mary B. "It's Time for Congress to Make Domestic Terrorism a Federal Crime." LawFare,​ LawFare Institute, 5 Dec. 2018, www.lawfareblog.com/its-time-congress-make-domestic-terrorism-federal-crime. Accessed 15 Dec. 2020.

McQuade, Barbara. "Proposed Bills Would Help Combat Domestic Terrorism." ​LawFare,​ Lawfare Institute, 20 Aug. 2019, www.lawfareblog.com/proposed-bills-would-help-combat-domestic-terrorism. Accessed 15 Dec. 2020.