Legal Sidebari

Domestic Terrorism: Some Considerations
August 12, 2019
Introduction
Mass shootings and other recent events have led to suggestions for (1) making domestic terrorism a
separate federal crime; (2) affording law enforcement agencies authority comparable to that which they
enjoy in cases of international terrorism; and (3) adjusting existing federal law enforcement priorities to
place greater emphasis on domestic terrorism.
Domestic terrorism as a separate federal crime
Existing federal law defines domestic terrorism but does not outlaw it by name. Section 2331(5) of the
federal criminal code defines domestic terrorism as a life-endangering federal or state crime, committed
within the United States, with the apparent intent to coerce or intimidate a civilian population or influence
government policy or conduct. Domestic terrorism, by name, is not a federal crime, but the conduct that
Section 2331(5) describes is already a state or federal crime under some other name. With or without a
terrorist motive, life-endangering misconduct – homicide or assault – is a crime under the laws of each of
the fifty states and the District of Columbia. Homicide is a federal offense or a sentencing factor for
dozens of federal crimes with various jurisdictional predicates (e.g., killing a federal officer or employee).
Violence directed against particular segments of the population often constitutes a federal civil rights or
hate crime offense. Several federal criminal provisions already use domestic terrorism as defined in
Section 2331(5) as an element of a separate crime or as a sentence enhancement.
Section 2331 also defines international terrorism without making it a separate crime. However, Congress
has enacted criminal statutes focused on international terrorism that also might appear to have no
domestic terrorism equivalents. For example, the federal crime of providing material support to a
designated foreign terrorist organization has no similarly captioned counterpart on the domestic side. Yet
here too, the basis for criminal liability has a different name. Beneath the surface, co-conspirator and
accomplice liability look much like providing material support. An individual who aids or abets (provides
material support for) someone else’s commission of a federal crime, such as murdering members of a
church congregation or assassinating a Member of Congress, may be prosecuted as an accomplice before
the fact. Prosecution is only possible, however, if the underlying crime, the murders or the assassination,
actually occur. Conspiracy suffers no such limitation. Federal conspiracy is an agreement of two or more
individuals to commit a federal crime, complete when some step is taken toward that criminal objective.
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When an individual knowingly provides material support to a confederate’s plan to commit a murder or
an assassination, the crime is complete though the murder or assassination may never be carried out.
Nevertheless, some may feel that federal criminal law should reflect the view that violence committed for
terrorist purposes, like commission of a hate crime, is more egregious than violence committed for other
reasons.
Congress seems to have sufficient constitutional authority to convert Section 2331(5) into a separate
federal crime of domestic terrorism – outlawing life-endangering conduct that violates a federal or state
law when committed with terrorist intent. The principal obstacle would appear to be the need to drop, or
find a federal jurisdictional “hook,” for instances when the offense involves a violation of state law but
not of federal law. Models might be found in the federal hate crime statute that lists a wide range of
federal jurisdictional options or the Armed Career Criminal Act (ACCA) that uses convictions for various
state crimes as the basis for sentencing enhancement upon federal conviction for unlawful possession of a
firearm.
Domestic Intelligence Gathering v. Foreign Intelligence Gathering
Under existing federal law, domestic intelligence gathering and foreign intelligence gathering are
different. The threshold for domestic authority to investigate is suspicion of a crime – past, present, or
future. The threshold for foreign authority to investigate is suspicion of foreign activity – criminal or
benign. Domestic investigations are conducted with an eye to prosecution. Foreign investigations are
conducted with an eye to prosecution, negotiation of international agreements, or diplomatic responses.
As a consequence, the law governing domestic law enforcement surveillance authority differs from the
law governing foreign surveillance authority. For instance, federal courts may issue law enforcement
wiretap orders upon a finding of probable cause that a particular crime has been, is being, or will be
committed; foreign intelligence surveillance courts may issue foreign intelligence surveillance orders
upon a finding of probable cause to believe that the target of the surveillance is a foreign power or the
agent of a foreign power. A federal magistrate may issue a search warrant for evidence in a criminal case
based on probable cause. A foreign intelligence magistrate may order a third party to surrender any
tangible item based on reasonable cause to believe the item is relevant to a foreign intelligence
investigation of a foreign national. Federal law authorizes federal agencies to issue administrative
subpoenas in health care fraud, child pornography, and controlled substance investigations; but not for
crimes described as domestic terrorism in Section 2331(5). Foreign intelligence officials may issue
national security letters for customer information, relevant to a foreign intelligence investigation, from
communication carriers, financial institutions, and consumer credit agencies. Federal prosecutors may
serve grand jury subpoenas to secure evidence for presentation to a federal grand jury investigation into
the possible commission of a federal crime.
Budgetary concerns and constitutional principles – including federalism and the rights to free speech, free
association, peaceable assembly, petition for the redress of grievances – may complicate the task of
conferring domestic law enforcement with the tools of foreign intelligence gathering. Since Section
2331(5) was enacted as part of the USA PATRIOT Act, there have been suggestions that it might be used
against protesters of all political stripes. The difficulty is in separating violence from protesters in order to
curb violent protests. Protesters enjoy First Amendment protections; violence does not. In 2010, the
Supreme Court held that the statute prohibiting providing material support to foreign terrorist
organizations could constitutionally be applied to prohibit “advocacy . . . directed to, coordinated with, or
controlled by foreign terrorist groups.” In dicta, however, the Court cautioned that constitutionally the
presence of foreign element may impact the analysis, observing that “[w]e also do not suggest that
Congress could extend the same prohibition on material support at issue here to domestic organizations.”
Many years earlier, the Court had noted that Fourth Amendment limitations on warrantless surveillance of
domestic terrorists did not necessarily apply to surveillance of foreign terrorists, “[w]e have not

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addressed, and express no opinion as to, the issues which may be involved with respect to activities of
foreign powers or their agents.”
Increased Focus on Domestic Terrorism
Since 9/11, foreign terrorism has been a federal law enforcement priority. So far in this Congress,
Members have introduced legislation to afford domestic terrorism higher priority. For example, H.R. 1931
(Rep. Schneider)/S. 894 (Sen. Durbin) would (1) establish domestic terrorism components in the Federal
Bureau of Investigation (FBI) and the Departments of Justice (DOJ) and Homeland Security (DHS); (2)
provide for coordination with joint terrorism task forces and fusion centers; (3) instruct the FBI, DOJ and
DHS to assess the anti-terrorism training they provide to other federal, state, local, and tribal law
enforcement entities; (4) in conjunction with the Secretary of Defense, create an interagency task force to
combat White supremacist and non-Nazi infiltration of the armed forces; and (5) authorize the necessary
appropriations. H.R. 3106 (Rep. Thompson) would create a National Center for the Study of Domestic
Terrorism within DHS. In addition, some Members of Congress have proposed designating particular
groups “domestic terrorist organizations,” S. Res. 279 (Sen. Cassidy); H. Res. 525 (Rep. Fitzpatrick); H.
Res. 536 (Rep. Mark Green).


Author Information

Charles Doyle

Senior Specialist in American Public Law




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