Why Domestic Terror Must Be Criminalized

On August 12, 2017, James Alex Fields Jr. drove his Dodge Charger into a crowd of peaceful counter-protesters in Charlottesville, Virginia. One woman was killed and 19 others were injured. Despite President Trump’s lukewarm rebuttal of the violence, Attorney General Jeff Sessions, along with nearly every major politician, recognized the tragedy as an act of terrorism. Sessions said, “[the attack] does meet the definition of domestic terrorism in our statute.” Under the definition outlined in the Patriot Act, Fields clearly falls under the category of domestic terrorist; however, he is not being prosecuted with any terrorism-related charges. Instead, he faces second-degree murder, three counts of malicious wounding, and five additional felony charges. That is because despite a clear definition of domestic terrorism under Title 18, Section 2331—which Sessions correctly used to identify Fields Jr.—there is no attached legal penalty.

President Donald Trump infamously refused to condemn the white-supremacist organizers of the “Unite the Right” march, saying, “I think there is blame on both sides” and that “you also had people that were very fine people, on both sides.” This false equivalency between peaceful protesters and white supremacists is both a symptom and a cause of our failure to morally equate domestic terror with international terror; little beyond ideology separates the attack in Charlottesville from recent terrorist attacks in Nice, Berlin, and London. What complicates this situation is leeway given—rightfully so—to First Amendment protections. Keeping those in mind, we must correct for this moral divergence by criminalizing a specific and limited definition of domestic terror.

In the wake of rising far-right violence, the current apathy towards domestic terror is misguided and should be addressed head-on. The most straightforward response would be to treat domestic terror the same way we treat international terror. While this strategy would probably be effective in quelling any domestic violent extremists, it would also challenge American civil liberties. Instead, just like with any truly successful piece of legislation, we must compromise. By creating a limited, act-specific federal statute penalizing domestic terror, the American government can begin to make it clear that domestic and international terrorism fall under the same category of moral abhorrence.

In any effort to penalize domestic terror, we must push back against calls to enact broader domestic surveillance programs or create a domestic terror list analogous to how we treat international terror. While these measures may help combat violent, hateful ideologies, they also give the government excess power to criminalize beliefs that, even if hateful, are protected by the First Amendment. The ACLU has argued against any calls for criminalizing the current definition of domestic terrorism because they feel that such a broad definition would give the government too much power to criminalize an ideology.

To address these concerns, I would propose a limited, act-specific definition of domestic terror with a correlated punishment. The first step of this proposal would be to adjust the definition of domestic terror in Section 2331. As it reads now, the definition could apply to a broad swath of actions we would not normally consider terrorism. The first requirement of the current definition states that acts that are “dangerous to human life that are a violation of the criminal laws of the United States.” To make this definition more focused, the ACLU has suggested specifying that it only applies to “acts that cause death or large-scale physical injury.” This would limit the scope under which this crime could be applied so that vandalism and other less serious crimes do not fall under the umbrella of “terrorism.” Next, the punishment should be commensurate to the same foreign charge. By using the exact text from Section 2332 B of Title 18, which addresses international terrorism, we could reinforce the parallels between the two.

Although these relatively minor edits would not put international and domestic terrorism on the same legal plane, they would certainly take a step in the right direction. Such changes would allow the U.S. federal government to recognize domestic and international terrorism to be on the same moral plane of unacceptance. Without that equivalency, terrorism tends to be thought about in a simple Muslim, non-Muslim dichotomy that clearly sets up a false narrative. It should be our goal to align the American legal code with the clear morality of this situation we know to exist—criminalizing a revised definition of domestic terror is a first step in doing so.

Image Credit: Wikimedia Commons

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