By Macie Daley
The United States has historically taken a hard-handed, no-concessions strategy when dealing with international terrorism when it has occurred. The same cannot be said for domestic terrorism. Take, for example, the most infamous transnational terrorist attack on U.S. soil, the attacks on the World Trade Center on September 11, 2001. The U.S. would go on to drastically alter its diplomatic relationships, its legal codes, and even the civil liberties it grants its citizens as a result of that single transnational attack. In a rapid response by the U.S. federal government, major policy changes and national security commissions quickly came underway. The Patriot Act was passed within one month of the attack, the Transportation Security Administration (TSA) was implemented within two months of the attack, and the Department of Homeland Security (DHS) and Guantanamo Bay Prison were created within a little over one year of the attack. Additionally, the longest war ever fought by the United States began as a result of that attack, with an estimated $5 trillion dollars spent on the War on Terror, and with U.S. troops – though greatly reduced – still in Afghanistan today (Garmone). If the U.S. government, as can be concluded, takes the threat of transnational terrorist attacks very seriously, one would logically assume that the U.S. would have a similar hard-handed strategy for acts of domestic terrorism. Strikingly, however, that is not the case.
In great contrast, successful domestic terrorist attacks have, on average, outnumbered successful transnational terrorist attacks by roughly eight to one over the past 30 years (Miller, LaFree, and Dugan). Moreover, when not including the effects of 9/11 – a statistical outlier – successful domestic terrorist attacks have been four times more deadly than successful transnational terrorist attacks since 1990(Miller, LaFree, and Dugan). Essentially, domestic terrorism has always posed a bigger threat to national security than international terrorism for at least the past quarter of a century. Despite the continuous threat domestic terrorism has posed to the United States, policy to fight against it is lacking in comparison to transnational terrorism. While there exists a Terrorist Exclusion List (TEL), and specific statutes against foreign terrorist organizations under U.S. penal code 2332b(g)(5)(B), no such mechanisms exist for countering domestic terrorism (Halliday and Hanna).
Many suggest that the lack of domestic counterterrorism-specific policy is due to the can of worms that could open in addressing or targeting groups that have historically occupied a grey area in the first amendment. The KKK, for example, whose members have committed lists of terrorist attacks throughout the U.S.’s history has not been touched by federal law due to the protection it receives from the first amendment’s guarantee of free speech and right to assemble. This argument, however, does not hold up when taking into account the potential violations of civil liberties that the federal government employs against international terrorist groups – including “lone wolves” whose only connection to a foreign terrorist organization is the inspiration the group provided the individual to carry out an attack. For example, the federal government can conduct warrantless electronic surveillance and wiretapping for international terrorism investigations, but not for domestic terrorism investigations (Halliday and Hanna). It, additionally, can use National Security Letters (NSL) – letters that allow federal agencies to request information on suspected terrorists from third parties without a judicial warrant – against suspected international terrorists, but not for domestic terrorists (Halliday and Hanna).
Though the intention of this proposal is not to comdemn any of the fantastic efforts made by the U.S. government in combating international terrorism, nor dismiss the serious threats international terrorism has posed to the U.S., it is meant to bring to light the objective disparities in the U.S. government’s response in regards to international terrorism versus domestic terrorism. The quick responses and massive allocation of resources to combat transnational terrorism have not occurred at the same level for domestic terrorism, despite the empirically larger threat it has posed to national security over the last three decades.
Creating a federal statute specific for domestic terrorist attacks is the first step that the federal government can take in phasing into a more hard-line approach towards domestic counterterrorism. Currently, a federal definition of domestic terrorism exists as part of the Patriot Act, though no criminal offenses are tied with that definition (United States). Thus, when an individual or group commits an act of domestic terrorism, prosecutors have to find other laws to bring charges against them, such as damage to property, physical assault, arson, or other acts that are dangerous to human life. This creates an obstacle where the public, judges, and juries cannot consider and condemn defendants’ threatening ideologies, an essential aspect of terrorism deterrence. A second issue is that, due to the lack of a comprehensive domestic terrorism offense, acts of domestic terrorism can easily get mixed in with more general violations – including their sentencing lengths – despite the weight of the crimes committed being equal to that of international terrorist attacks, which are always charged as federal crimes with their own statutes. Especially problematic, if an act of domestic terrorism is unable to be prosecuted at the state level under a different statute, there is no mechanism to then pursue the case at a federal level without a federal law (Collins), allowing the act of domestic terrorism – and its perpetrators – to go completely unpunished.
When creating a new penal code, it is important for politicians to consider the deterrence or lack thereof, the legal code would have over would-be offenders. In the case of creating a federal domestic terrorism statute, its creation would increase both celerity and severity of the crime which would strengthen deterrence to commit an act of domestic terrorism. It would increase the celerity of the crime by streamlining domestic terrorists into one group under law. This would partly avoid the sluggishness of bureaucracy by placing all domestic terrorism inquiries under the FBI, rather than having various law enforcement agencies and courts at both the state and federal level try to coordinate on blurred lines of authority. It would also increase the severity of the crime, as assigning domestic terrorism as a strictly federal crime will worsen the punishment for those who violate it. Additionally, a federal domestic terrorism statute would allow for the social condemnation of the dangerous doctrines that terrorist groups retort by directly condemning them through law. This effect can strengthen the perceptual deterrence for would-be radicalized individuals by adding a social cost to the legal punishment of being associated with domestic terrorist groups.
At a legal level, a federal domestic terrorism statute would alleviate the current issues enunciated earlier. Prosecutors would no longer have to rely on non-terrorism statutes or terrorism sentencing-enhancements to equitably charge acts of domestic terrorism. Perhaps most importantly, it would remove what is a matter of national security from the hands of states and streamline all investigations and prosecutions to the intelligence communities and federal courts.
In examining domestic terrorism trends in the United States compared with the legal mechanisms that currently exist to combat them, the existing legal methods of combating domestic terrorism are a legislative failure. This can be remedied only if the United States begins to take a more hard-handed strategy against domestic terrorists, and creating appropriate policies to combat domestic terrorism is a small, yet potent place to start. Though a simple federal statute specific for acts of domestic terrorism is not the key to solving this national security issue, it is as practical it is symbolic of the U.S. taking a stance that is proportional to the threat that domestic terrorism poses for citizens of the United States.
Collins, Amy C. 2020, The Need for a Specific Law Against Domestic Terrorism, extremism.gwu.edu/sites/g/files/zaxdzs2191/f/The%20Need%20for%20a%20Specific%20Law%20Against%20Domestic%20Terrorism.pdf.
Garmone, Jim. “U.S. Completes Troop-Level Drawdown in Afghanistan, Iraq.” U.S. DEPARTMENT OF DEFENSE, 15 Jan. 2021, www.defense.gov/Explore/News/Article/Article/2473884/us-completes-troop-level-drawdown-in-afghanistan-iraq/.
Halliday, Eric, and Rachel Hanna. “How the Federal Government Investigates and Prosecutes Domestic Terrorism.” Lawfare, 22 Feb. 2021, www.lawfareblog.com/how-federal-government-investigates-and-prosecutes-domestic-terrorism.
Miller, Erin, et al. “Global Terrorism Database.” University of Maryland, 2001. United States, Congress, The Patriot Act. 2001, p. 105.
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