Editor’s Note: Rafia Zakaria is the author of “The Upstairs Wife: An Intimate History of Pakistan” (Beacon 2015) and “Veil” (Bloomsbury 2017). She is a columnist for Dawn newspaper in Pakistan and The Baffler. The views expressed in this commentary are her own. View more opinion on CNN.
In the immediate aftermath of mail bombs and suspicious packages sent to former President Barack Obama and former first lady Hillary Clinton, former CIA Director John Brennan, former Vice President Joe Biden, Representative Maxine Waters, Senator Cory Booker and former Director of National Intelligence James Clapper at CNN, among others, President Donald J. Trump said he would have the acts labeled “domestic terrorism.” In his statement, Senate majority leader Mitch McConnell also referred to the incidents as “attempted acts of domestic terrorism.”
On Friday, authorities arrested a suspect, Cesar Sayoc, 56, in connection with the packages. There would be no respite for Americans, however, as Saturday morning brought another attack. Police say suspect Robert Bowers opened fire on a Jewish congregation in Pittsburgh, killing 11 people.
Neither Bowers nor Sayoc have been charged with “domestic terrorism,” nor will they. This is because current US federal law fails to specify that “domestic terrorism” is a crime and “material support for terrorism” prosecutions are generally limited to those who have connections to “foreign terrorist organizations.” In cases where US law does allow for such prosecutions under a generic “terrorism” label, domestic terrorists are rarely charged.
As a spokesperson from the FBI Agents Association told CNN on Saturday: “It is time to treat domestic terrorism as the national threat that it is, and track, analyze, and punish political violence at the federal level. Winning the fight against domestic terrorism is not about parties or political views; it is about ending political violence.” The organization has also called on Congress to immediately amend the United States Code such that “domestic terrorism” becomes a crime with specific penalties and is freed from the legal and political uncertainties in which it is currently mired.
It’s important now to consider the legal context any domestic terrorism prosecution currently faces.
In addition to labeling domestic terrorism a crime, Congress also needs to bring “domestic terror organizations” within “Terrorist Material Support” statutes, the laws under which the vast majority of terror prosecutions are brought.
Under current law, the Material Support for Terrorism Statute Section 2339A does technically permit prosecutions of domestic terrorists but is almost never used in these cases – only two people were charged between 2012 and 2017, according to Just Security. Furthermore, Section 2339B only criminalizes support and assistance of “foreign terrorist organizations.”
The failure of this section to include domestic terrorist organizations is indicative of the lopsided emphasis on international terrorism as the greater threat. A stipulation to create a designated list of domestic terrorist organizations for instance, would permit greater monitoring of such organizations along with more public awareness of their illegality.
Unsurprisingly, domestic terrorists, from Dylann Roof to the accused perpetrator of the pipe bombings to domestic terror organizations, have little likelihood of being caught even as they purchase arms or explosives, because they do not face the same stringent monitoring as “foreign terror organizations.” The fact that First Amendment protections and intent requirements are suspended in the case of 2339B means that someone retweeting the Islamic State can be prosecuted but someone retweeting the Rise Above Movement’s threat to rid the country of ethnic minorities cannot.
Section 2339B of “Terrorist Material Support” statutes are US law enforcement’s primary legal tool against would-be terrorists, permitting monitoring and prosecution before any intended acts are even committed. In this respect, 2339B, which is responsible for 80% of ISIS prosecutions, criminalizes assistance to a “foreign terrorist organization” where “assistance” is broadly interpreted as including financial services, lodging, weapons, communication equipment or facilities and more.
The extensive reach of the statute has produced successful prosecutions, 33% of which came to the attention of law enforcement based on evidence from online statements in support of groups like the Islamic State. ISIS prosecutions take place under 2339B because it has no intent requirement and enables the monitoring and surveillance of particular groups.
Even the Trump administration recognizes that domestic terrorists pose a significant threat to Americans. The administration’s recently released National Strategy for Counterterrorism openly admits “domestic terrorism in the United States is on the rise, with an increasing number of fatalities and violent nonlethal acts committed by domestic terrorists against people and property of the United States.”
Despite this admission, no public executive or legislative effort exists to expand the reach of the 2339B Material Support for Terrorism Statute to go beyond “foreign terrorist organizations” to include domestic ones. Indeed, while a process exists for the US Secretary of State to designate “foreign terrorist organizations,” support or assistance to whom is