Domestic Terrorism – Defining a Real Threat

Over the past two decades, the United States has focused heavily on preventing attacks from Islamic terrorism movements – or those inspired by these movements. However, recent attacks in the United States over the past few years have prompted much debate on how to combat the threat of domestic terrorism. Particularly concerning is that the recent surge in white supremacy and right-wing/left-wing extremist movements could inspire others to commit further violent attacks. In response to the most recent attacks in Ohio and Texas, the Federal Bureau of Investigation (FBI) says it “remains concerned that U.S.-based domestic violent extremists could become inspired by these and previous high-profile attacks to engage in similar acts of violence.” Equally concerning for law enforcement agencies is that a domestic terrorist attack is just as likely as a threat from abroad.

In November 2019, the FBI arrested Richard Holzer, a self-identified “skinhead” and a white supremacist in Colorado for plotting to blow up a Jewish synagogue. In the court affidavit, Holzer promoted white supremacy, advocated for a racial holy war, and promoted violence against Hispanics and Jews. According to Title 18 USC Ch. 113B: Terrorism, the term “domestic terrorism” is defined as activities that:

(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;

(B) appear to be intended: (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(C) occur primarily within the territorial jurisdiction of the United States.”

Holzer, who can clearly be viewed by definition as a “domestic terrorist” would typically not be charged as a terrorist, but rather under laws related to firearms, conspiracy, or the hate crimes statute. In this case, Holzer was charged with Title 18, United States Code, Section 247 (damage to religious property; obstruction of persons in the free exercise of religious beliefs).

A year ago, Robert Bowers killed 11 people and seriously injured 6 at a synagogue in Pittsburgh after he began shooting and screaming antisemitic statements. Bowers is linked to white nationalists and members of the far-right. He was charged under the Federal Hate Crimes Statute. More recently – on 3 August 2019 in El Paso, Texas – Patrick Crusius killed 22 people and injured dozens more when he stormed a Wal-Mart with an assault rifle and targeted Hispanic people. Crusius was charged under the capital murder statute. Also, in August 2019, Conner Betts killed 9 and injured 27 in Dayton, Ohio. Betts was killed and no motive was determined.

Hate as a Crime – Or Not

Congress has considered creating variations of domestic terrorism laws to combat white supremacy and right-wing/left-wing extremist movements since 1992. In 2006, the amended Animal Enterprise Protection Act was signed into law to target animal rights extremist groups involved in criminality. This was the first step for testing the waters of creating laws to combat extremists in the United States. Extremists groups were utilizing ideologies and technologies similar to those of foreign terrorist organizations. Therefore, it was essential for politicians to initiate the process.

The U.S. Code of Laws are the federal statutes that define international terrorism, which were specifically created to fight international terrorist organizations. If the domestic terrorism law was drafted with the same wording, it would infringe on the First Amendment of the U.S. Constitution, specifically Freedom of Speech. Under this statute, it is a crime for someone to provide support to organizations like al-Qaida or the Islamic State. Recently, two men in Chicago, Illinois – Edward Schimenti and Joseph Jones – were charged under Title 18, United States Code, Section 2339B(a)(1) (providing material support or resources to designated foreign terrorist organizations). Among other acts, they shared grisly Islamic State videos online and were found guilty of a conspiracy to provide material support to the Islamic State.

However, the FBI is limited when investigating hate groups because hate is not a crime. In addition, much of the social media, flyers, and rallies are protected by the First Amendment. The FBI defines a hate crime as a “criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.” Title 18 is the law that the FBI will charge in place of terrorism because there is no law in place to charge the person(s) with terrorist activities. 

Deadly Attacks: WMDs vs. Mass Shootings

The FBI categorizes domestic terrorism as the acts that are “perpetrated by individuals and/or groups inspired by or associated with primarily U.S.-based movements that espouse extremist ideologies of a political, religious, social, racial, or environmental nature.” Unfortunately, it is basically just a definition with no power in the federal courts. Federal prosecutors refer domestic terrorism cases to state prosecutors if the state in question has a terrorism statute. Of the 50 U.S. states and the District of Columbia, only 34 states have terrorism laws with varying definitions. Sixteen states do not have anti-terrorism laws at all.

In 12 states, the law asserts the perpetrator(s) must use weapons of mass destruction (WMD) in order to be charged with the statute. The Department of Homeland Security defines a WMD as “a nuclear, radiological, chemical, biological, or other device that is intended to harm a large number of people.” With this narrow focus, the last WMD attacks in the United States that could be charged using the state law verbiage would be the biological anthrax attacks in the days after 9/11 in 2001. The anthrax-laced envelopes killed 5 people and infected 17 people before the letters stopped, but hoax letters from copycat assailants continued for months. Those anthrax letters severely crippled federal, state, and local agencies in monetary costs well over $300 million in clean up, training, and overtime costs. No one was ever brought to justice and the FBI’s one person of interest, Bruce Irvins, took his own life prior to his arrest.

There have been more people murdered by mass shootings in 2019 than killed by WMD attacks in the past 35 years. So far in 2019, mass shootings have led to the murder of 129 people, including the recent Halloween party shooting in Orinda, California. Most of the current anti-terrorism statutes were signed into law after the 9/11 attacks, with only three states (Louisiana, New York, and Ohio) and the District of Columbia stipulating murder and kidnapping within their anti-terrorism laws. Michigan’s wording for the law adds life imprisonment “if death was caused by the terrorist act.” However, states avoid adding murder to their anti-terrorism laws because most states have murder as a statute. It is easier to charge and prosecute for murder than build a case for terrorism.

If the FBI is conducting a terrorism investigation in a state with no anti-terrorism laws, the investigation must take on a new dynamic. Prosecutors and agents must find laws related to hate crimes or weapon charges to link to the case. Unfortunately, these fall short on statistically monitoring domestic terrorism incidents. Investigations must be altered to adhere to other crimes, basically changing the investigation. Investigators must restructure the case and look for variables that can link to other federal or state laws. This could lead to a failed investigation or not enough probable cause for arrest.

Enhancing Federal Laws

New York has some of the harshest gun laws. Recently, Governor Andrew Cuomo proposed the Hate Crimes Domestic Terrorism Act, which defines a “hate-fueled murder with the intent to cause mass casualties” as an act of domestic terrorism. The proposed law would sentence a person(s), if found guilty, with life in jail without the possibility of parole. Federal policymakers could propose a similar act to provide federal investigators with another law to strengthen their cases.

Recent events unfolding in the extremist movements within the United States have renewed Congress’s interest in enhancing domestic terrorism laws to give federal authorities the needed tools to detect, disrupt, and dismantle terrorist threats before they happen. Proposed bills in both the Senate and U.S. House of Representatives would help federal law enforcement agencies disrupt and combat domestic terrorism. According to Illinois Congressman Brad Schneider, “The threat posed by white supremacists and other violent far-right extremists is growing, and we need to update our laws to reflect this dangerous source of domestic terrorism.” In March 2019, the Domestic Terrorism Prevention Act of 2019 was introduced to the Senate to address the recent threat and surge in white supremacy groups and right-wing/left-wing extremist movements. This bill has garnered significant support among federal law enforcement communities and was most recently endorsed by the FBI Agents Association (FBIAA), which stated:

FBIAA supports the bipartisan Domestic Terrorism Penalties Act of 2019 because it would make domestic terrorism a federal crime, helping ensure that FBI Agents and prosecutors have the best tools to fight domestic terrorism. Domestic terrorism is a threat to the American people and our democracy. Acts of violence intended to intimidate civilian populations or to influence or affect government policy should be prosecuted as domestic terrorism regardless of the ideology behind them.

Months following the introduction of Domestic Terrorism Prevention Act, bipartisan support was demonstrated with the introduction of similar bills that were introduced by Republican Senator Martha McSally and Democratic Representative Adam Schiff. McSally introduced a bill to make domestic terrorism a federal crime. Adam Schiff introduced a similar bill that not only makes a federal domestic terrorism crime, “it would cover, among other things, terrorist acts by domestic actors without links to foreign organizations.”

The Call for Action

The rise in support of groups that support white supremacy and right-wing/left-wing extremist movements clearly can no longer be ignored. Revamping and creating laws that provide the much-needed tools for law enforcement to better combat these threats are long overdue. As stated by Representative Lou Correa, “Ensuring Americans are safe from domestic terrorism is a commonsense issue we should all support. Our nation’s law enforcement must be empowered to address domestic terrorism with the same vigor we confront international threats.”

Americans are uncertain if current policymakers can secure the borders, protect American citizens in the United States and abroad, and create laws that will not infringe on American’s rights. In 1755, Benjamin Franklin wrote a letter to the Pennsylvania colonial governor stating, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” This quote has been widely used when arguing against giving up alienated rights of freedom for more security. Of course, in 1755, nobody could not have predicted the internet, cellphones, and video surveillance. The world is everchanging, and laws must change to protect Americans from both international and domestic terrorist organizations.