Addressing Domestic Terrorism and the White-Wing
The specter of Nazi’s marching in American streets, the deadly events that took place in Charlottesville, and the realization that the white supremacy movement has friends in high places, has raised American awareness about what the data has been demonstrating: white-wing extremism poses a greater threat to U.S. domestic security than Islamist inspired extremism.
However, no one connected with the events that took place in Charlottesville will be charged with committing acts of terrorism under federal law. That is because domestic terrorism is not a federally punishable crime in the United States of America.
While U.S. Code 2331 Title 18 defines Domestic Terrorism, there are no federal penalties attached to the definition. Those who commit acts of terror within the United States are typically prosecuted for related violent crimes. When Timothy McVeigh killed 168 people with a truck bomb at Oklahoma City’s federal building in 1995, described as the worst act of domestic terrorism at the time, he was not convicted of terrorism. He was convicted of killing federal agents and other crimes, but terrorism was not one of them.
And now the Commonwealth of the state of Virginia has charged James Fields with second-degree murder and other crimes committed in Charlottesville because there is no federal law under which to prosecute him for domestic terrorism. If James Fields had engaged in the same actions he took in Charlottesville on behalf of al-Qaeda, instead of Vanguard America, he could have been charged with terrorism, in addition to other crimes. Federal law authorizes the United States to charge people who commit acts of terrorism inside or even outside the United States if those crimes were committed in support of a foreign terrorist organization, but it does not authorize a terrorism charge for the same terrorist activity on American soil and inspired by American organizations committing acts of terrorism.
It seems reasonable, therefore, to move quickly to attach criminal penalties to the definition of domestic terrorism as Thomas F. O'Connor, President of the FBI Agent Association has recently urged.
But not so fast.
While Mr. O’Conner and the many who support the criminalization of domestic terrorism present a reasonable position, others are concerned that the definition of domestic terrorism is too broad, that it could be misused to violate the right of peaceful assembly, or that it might endanger free speech. Ironically, members of domestic extremist groups would probably agree with this position. Relatedly, one wonders why the Department of Homeland Security selectively focuses on international terror groups when its charter is to protect the homeland from threats both foreign and domestic.
The federal government can already prosecute acts of violence that are committed for the purposes enumerated in the federal definition of domestic terrorism because it has been legally established that violent acts committed with the intent to coerce or intimidate civilian populations, influence government policy or conduct are not protected by the First Amendment. These acts are not speech but, rather, are considered violent acts and can be prosecuted without recourse to the designation of domestic terrorism.
The real, practical difference will depend less upon designating individuals as domestic terrorists and more on whether organizations can be labeled domestic terrorist organizations because if they are, an organization itself can be investigated. And given such a label, something like re-tweeting a message from a terrorist organization can be considered aiding and abetting a terrorist organization. Aiding and abetting is the most often applied charge to foreign terrorist organizations, some would say the most widely misused. It has effectively deterred involvement of some individuals. Hence the First Amendment concerns in the U.S.
Whether or not additional federal laws are required or desirable is a debate we should continue to have but let’s not lose sight of the larger threat—the end-game these tactics are meant to serve.
Ajit Maan, Ph.D. is CEO of the think-and-do tank Narrative Strategies, Affiliate Faculty of the Center for Narrative Conflict Resolution at George Mason University, and author of Counter-Terrorism: Narrative Strategies.