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Challenges of Prosecuting Domestic Terrorism

By Dave Johnson

On August 12, 2017, James Fields drove his car into a crowd of people protesting a white supremacist rally in Charlottesville, Virginia,  killing one person and injuring numerous others. In December 2018, a Virginia state court jury found Fields guilty of first-degree murder, eight counts of malicious wounding, and one count of failing to stop at an accident involving a death (i.e., a “hit and run”). A federal grand jury also charged Fields with 30 hate crimes, 29 of which he later pled guilty to in March 2019.

Compare Fields’s actions and convictions with the alleged actions of, and charges brought against, Rondell Henry. Court documents allege that, in late March of 2019, Henry stole a U-Haul van in Alexandria, Virginia, and drove it to Oxon Hill, Maryland, in an effort to use the van to attack pedestrians within National Harbor. The federal grand jury returned an indictment charging Henry with attempting to provide material support to a foreign terrorist organization (ISIS) and interstate transportation of a stolen vehicle.

Fields was convicted for his crimes under both state and federal law and received significant sentences, but a question to ask is: what if Fields had only driven around the protestors conducting some form of “casing,” but he is stopped by police before he carries out any action?  Pushing the issue of whether the police would stop Fields prior for a moment, it would probably be difficult to charge him similarly as the federal government has done in Henry’s case. This dissimilar treatment of charging terrorism in Henry’s case, and not in Fields’s case, which many consider to be an act of ‘domestic terrorism’, is just one example of an issue that has been brought to the forefront in recent years.

To understand this difference, it is necessary to look at how U.S. law defines terrorism.  Under 18 U.S.C. §2331, terrorism is defined as a violent act dangerous to human life that is a violation of criminal laws and appear to be intended to: intimidate or coerce a civilian population; influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by mass destruction, assassination, or kidnapping.  International terrorism occurs primarily when terrorist acts fall outside of U.S. territorial jurisdiction or the acts transcend national boundaries, while domestic terrorism occurs primarily within the U.S. territorial jurisdiction.

Robert Chesney, in a Lawfare Blog article and a Lawfare Podcast episode, has illustrated two major gaps of how the law treats international terrorism and domestic terrorism.  The first is that under 18 U.S.C. §2332a, a person has to use a “weapon of mass destruction”, which generally does not include guns (but can) or weaponized vehicles, to commit terrorism domestically. 18 U.S.C. §2332b is not as discriminatory regarding weapons that are used to commit international terrorism.

The second gap Chesney identifies lies in the difference between 18 U.S.C. §2339A and §2339B. Section 18 U.S.C. §2339a makes it illegal to provide material support or resources knowing or intending that they are to be used in preparation for, or in carrying out, some terrorist act. Section18 U.S.C. §2339b makes it illegal to knowingly provide material support or resources to a foreign terrorist organization. As Chesney states, “It is comparatively hard to show a person knows or intends to support a particular criminal act and comparatively easy to show they knew or should have known that their support was going to the benefit of a specific organization.”

Knowing these gaps, it is now possible to understand why Henry had a terrorism-related charge while Fields did not. While the use, or alleged planned use, of a vehicle as a weapon can be deadly, it does constitute terrorism domestically. However, because Henry allegedly pledged allegiance to ISIS, that opened the door for terrorism charges.

It is important to note, though, that Fields was convicted on the various charges brought against him and has received significant sentencing. Even though there are significant challenges in bringing domestic terrorism charges against people not affiliated with foreign terrorist organizations, prosecutors can still bring other serious, non-terrorism-related charges against the accused that carry sentences close to those of terrorism charges. However, there can still be significant discrepancies. For example, a U.S. Coast Guard officer accused of stockpiling weapons and drafting a hit list of politicians and journalists pled guilty to four charges relating to possession of silencers and drugs and faces up 31 years in prison. If there was a domestic terrorism statute addressing stockpiling weapons with the intent to conduct assassinations directly, there may have been a stiffer maximum sentence than 31 years.

Mary McCord, in the same Lawfare Podcast episode with Chesney, states that there is an additional benefit for creating domestic terrorism statutes directly addressing acts such as those by the U.S. Coast Guard officer: understanding the threat. Under a domestic terrorism statutory scheme, the National Security Division in the Department of Justice, as well as other agencies, could take in more data and conduct better analyses on insider threats. This would more than likely help in focusing prevention efforts.

Prosecutors have continuously faced challenges in trying domestic terrorism cases. Adding another layer of criminalization to already criminal acts by inserting the intent portion of terrorism will more than likely help prosecutors, as well as the nation overall, confront and address these very serious threats we are increasingly facing. However, what challenges will prosecutors face when having to prove that additional terrorism intent?


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