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 forbidden, no parallel list of domestic terror organizations even exists.
Even as the 14 suspected bombs that have gone out to a president, multiple high-level officials and a media organization are being investigated, domestic terror organizations in the United States can continue openly recruiting supporters with virtual impunity.
When acts of domestic terrorism are prosecuted, prosecutors must cobble together charges from assorted federal statutes. Very often there is no mention at all of “terror” in the charge sheet. This means that even maximum sentences for these crimes are far lower than those in terrorism-related cases, because the “terrorism enhancement” is inapplicable. Prosecuting US citizens according to other statutes but not as terrorists also makes “domestic terror” a hidden crime, whose numbers and characteristics are not being released by the government.
The recently released federal complaint against four members of the California-based “Rise Above Movement,” which carried out attacks during an April 2017 rally in Berkeley, California, is a case in point. The complaint lists charges against the men for violating federal conspiracy statutes and riots statutes without making any mention of domestic terror at all. The maximum sentences in these charges are only 10 years in prison – less than the 15-year sentence suggested in Material Support for Terrorism cases.
Similarly, the charges filed against members of the same group for participating in the “Unite The Right” rally in Charlottesville, Virginia, in August 2017, charge each of the four defendants with “one count of conspiracy to violate the federal riots act and one count of traveling in interstate commerce from California to Charlottesville, Virginia with the intent to incite a riot, organize, promote, encourage, participate in, and carry on in a riot, to commit an act of violence in furtherance of a riot, or aid or abet any person inciting and participating in or carrying on in a riot.”
One possible reason that legislative and executive branches have shied away from creating lists of domestic terror organizations and imposing similar legal restrictions upon them is that they fear running into First Amendment protections that do not permit restrictions on speech. Yet this is a vacuous argument, because the United States Supreme Court held in the landmark case Holder v. Humanitarian Law Project that the Material Support for Terrorism statute does not violate a plaintiff’s right to free speech under the First Amendment.
If US citizens tweeting and recruiting in support of the Islamic State can be prosecuted, so too should US citizens known to espouse violence and even posting pictures of themselves engaging in acts of violence on social media. As the FBI notes on its website, these domestic terrorists are persistently “crossing the line from First Amendment protected rights to committing crimes to further their political agenda” while our political leaders look the other way.
The lopsided counter-terrorism strategy that tries to preemptively prosecute those who support foreign terror groups but awaits the commission of actual acts when it comes to domestic terror groups must be corrected immediately. The way to do this is to create “domestic terrorism” as a specific crime. In addition, the enforcement of 2339A should be expanded to include domestic terrorists and the scope of 2339B expanded to include “domestic terror organization.”
Without such reforms and the increased power they would provide law enforcement to identify and prosecute domestic terrorists, Americans remain frighteningly vulnerable to an ever-increasing spate of terror attacks committed by those who are being given free rein to do so.