Proposed Bills Would Help Combat Domestic Terrorism

By Barbara McQuade, Lawfare

21 August 19

ollowing recent attacks in Gilroy, California; El Paso, Texas; and Dayton, Ohio, we have seen a renewed call for domestic terrorism laws to give federal law enforcement the same types of tools that are available to combat violent acts committed by international terrorists. Proposed bills in the U.S. House of Representatives and Senate will help the FBI confront domestic terrorism on the terms it favors—left of boom.

“Left of boom” is a phrase I heard frequently from FBI agents when I worked as a federal prosecutor in national security cases. The words describe the FBI’s post-9/11 strategy to detect, disrupt and dismantle terrorist threats before acts of violence occur. Imagine a timeline where “boom” represents the moment the bomb goes off or an attack occurs: “Left of boom” means sometime before that moment.

International and domestic terrorism are both defined under federal law as acts that are dangerous to human life that are committed with the intent “to intimidate or coerce a civilian population,” “to influence the policy of a government by intimidation or coercion”; or “to affect the conduct of a government by mass destruction, assassination, or kidnapping.” International terrorism differs from domestic terrorism in the requirement that the activity occur primarily outside the United States or transcend national boundaries. In the international terrorism arena, the U.S. has federal statutes that permit intervention left of boom, such as terrorism transcending national boundaries, providing material support to a foreign terrorist organization, and attempt and conspiracy provisions for each. These statutes permit investigators to identify criminal behavior earlier in the timeline and intercept subjects before their plans reach completion. No such laws exist for domestic terrorism.

Republian Sen. Martha McSally of Arizona and Democratic Rep. Adam Schiff of California have introduced bills that would provide federal law enforcement with similar tools to combat domestic terrorism. The bills mirror a proposal advocated by former acting U.S. Assistant Attorney General for National Security Mary B. McCord and former State Department counterterrorism official Jason M. Blazakis.

The McSally and Schiff bills are virtually identical in substance, and both have two important provisions. Both would create a new crime of domestic terrorism, making it illegal to kill, kidnap or assault another person; create a substantial risk of serious bodily injury by intentionally destroying or damaging property; or threaten to do so “with the intent 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,” in the language of the House bill. The wording of the Senate bill is substantively similar. Both are derived from the current statute that defines domestic terrorism without making it a crime.

Both bills also amend 18 U.S.C. § 2339A, which makes it a crime to provide material support or resources “knowing or intending that they be used in preparation for, or in carrying out, a violation of” certain statutes. The new provision adds to that list of crimes the new domestic terrorism offense. Material support is defined as “any property or service,” including money, training, documents, weapons, and “personnel,” including oneself—medicine or religious materials are exempt. Under the proposed law, prosecutors could charge someone with providing money, goods, weapons or services to others who plan to conduct a domestic terrorism attack.

The bills are appropriately narrow to avoid colliding with civil liberties concerns. Our current laws were informed to a degree by overreach on the part of law enforcement that led to the wiretapping of Martin Luther King Jr. and Vietnam War protesters. The new bills appropriately focus on prohibiting violent conduct and not speech or association, nuancing the current approach to foreign material support.

For example, one of the current material support statutes, 18 U.S.C. § 2339B, makes it a crime to provide material support to a foreign terrorist organization that has been designated by the U.S. secretary of state. Foreign terrorist groups such as al-Qaeda and the Islamic State appear on this list. With the exception of medicine and religious materials, the statute prohibits the provision of any money, goods or service to any group on this list regardless of the purpose for that support. It is just as illegal to provide money for humanitarian aid as it is for weapons, on the theory that all money is fungible, so that donations received for one charitable purpose can be used to free up funds for another more nefarious purpose. In Holder v. Humanitarian Law Project, the Supreme Court upheld the statute against a First Amendment challenge to provide legal and advocacy training to certain designated foreign terrorist groups but cautioned that it did “not suggest that Congress could extend the same prohibition on material support at issue here to domestic organizations.”

The new bills seem cognizant of this distinction and do not go so far as to prohibit all types of material support, regardless of purpose, to domestic groups. Instead, prosecutors would be required to prove knowledge that the material support will be used to kill, kidnap or assault another person or damage property in a domestic terrorism crime.

Importantly, both proposed bills also include attempt and conspiracy provisions, so that law enforcement agents need not wait until someone successfully completes a domestic terrorism attack before intervening. They can combat an attack left of boom.

These bills would provide much-needed tools to federal agents and prosecutors who sometimes find themselves without adequate means for addressing domestic terrorism. For instance, I was once involved in the prosecution of a militia case, in which the suspects were charged with plotting, training and assembling weapons to kill police officers. We found a dearth of federal statutes to use against domestic terrorists and ended up charging seditious conspiracy, a clumsy statute with an Orwellian name. Although we believed that the statute fit the facts we confronted, the case ended with an order by the judge to dismiss the case. With the proposed new statutes, we could have charged conspiracy to commit domestic terrorism or even material support in preparation for a domestic terrorism offense.

Some critics argue that laws already on the books are adequate to address the types of mass shootings that come to mind when discussing domestic terrorism—such as state murder charges. But such charges can be filed only after the perpetrator completes or attempts violence. Even though state laws often include attempt and conspiracy provisions, state law enforcement agencies generally lack the resources to conduct the type of long-term, proactive investigations that can detect and disrupt terror plots before they occur, and they are limited by their geographic jurisdictions. The FBI, by contrast, routinely engages in lengthy investigations and has agents in every state, a network of intelligence analysts, federal wiretap capabilities, and nationwide search and arrest authority.

Another reason to support these bills is that they raise domestic terrorism to the moral equivalent of international terrorism, an important point considering that right-wing extremism was responsible for 70 percent of violent extremist killings over the past 10 years, according to the Anti-Defamation League. So often, when an act of violence is perpetrated by a Muslim subject, we refer to the crime as terrorism, but when it is committed by a non-Muslim subject, we refer to the crime as a mass shooting. The reason for the discrepancy is that the former case can be charged as terrorism transcending national boundaries if the perpetrator is affiliated with a foreign terrorist organization, while the latter crime cannot be charged as terrorism even if the perpetrator is acting out of a political motive. Instead, the perpetrator is charged with murder under state law or, if the facts support it, a hate crime under state or federal law. The difference in terminology stigmatizes Muslim communities, advances the false narrative that America is at war with Islam and diminishes the crimes committed by purely domestic actors. When I served as U.S. attorney in Detroit, federal law enforcement worked to build trust with Muslim communities to serve them more effectively. Members of Muslim communities frequently asked about the legal distinction between international and domestic terrorism, and we had no good answer. The proposed bills would help remedy this incongruity.

And, most importantly, the new law could save lives. By including conspiracy and attempt provisions, prosecutors could charge subjects at the planning stages of a domestic attack or even upon providing money or weapons to another planning a violent act. With this new law, domestic terrorists can be stopped left of boom.