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The Implications of the Federal Definition of Domestic Terrorism

By Natalie Holland

On June 17, 2015, Dylann Roof attacked the Emanuel African Methodist Episcopal Church in Charleston, North Carolina where he shot and killed nine people with the intention of provoking a race war. Later that year, on December 2, 2015, Syed Rizwan Farook and Tashfeen Malik shot and killed 14 people and seriously injured 22 more during a Christmas party at the Inland Regional Centre in San Bernardino, California. The federal charges against Dylann Roof were filed under the Hate Crimes Act and while his attack was politically and racially motivated with the intention of stoking fear in the community, it did not fall within the parameters of federal domestic terrorism prosecution. The FBI did, however, classify its investigation into the San Bernardino shooting under domestic terrorism and Farook and Malik could have been prosecuted under federal terrorism statute had they not been killed following the attack. To many people across the U.S., these two attacks should both be considered as domestic terrorism, and to indicate otherwise would further embed the infusion of “terrorism” and “Islam” into the American psyche. However, the federal definition’s merit can be found in its practicality through federal investigations, the prevention of abuse in domestic terrorism prosecution, and the preference for state prosecution.

Under U.S. Code, there is no federal crime for domestic terrorism. 18 U.S. Code § 2331(5) defines “domestic terrorism” as activities that:

(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;(B) appear to be intended—

(B) appear to be intended—

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion; or

(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(C) occur primarily within the territorial jurisdiction of the United States.

However, federal terrorism investigations and prosecutions into acts of domestic terror can take place “where the conduct ‘transcend[s] national boundaries’ or the perpetrator uses a WMD. When either fact is present, the case typically falls under both federal and state terrorism statutes.” (See Prosecuting Terrorism in State Court for more information on state terrorism prosecution).

While the decision to label a domestic attack as terrorism may seem like a strict legal determination, its cultural and social implications are felt beyond the legal field. Governmental announcements, news reports, and personal experiences shape how we internalize word meanings. Dylann Roof[1], James Holmes, and Adam Lanza are classified as mass murderers primarily prosecuted through the state; while Farook and Malik, Dzhokhar Tsarnaev and Tamerlan Tsarnaev, and Ahmad Rahami are charged or investigated under federal terrorism statutes. While every one of these people terrorized their respective communities, only the individuals associated in some way with Islam seem to be declared terrorists by the federal government, which potentially leads to more discrimination and misunderstanding. Yet, the federal government’s definitions and applications make practical sense. This practicality just needs to be communicated more clearly to the people.

The decision to label an act as one of “domestic terrorism” is not necessarily as important to indictments as it is to federal investigations. The decision to assert federal authority through the designation of an act as terrorism “flows from different facts and serves to assert the appropriate degree of federal jurisdiction and to properly scope the investigation.” Where the FBI has determined a need to conduct an enterprise investigation, it can do so through investigating under the scope of terrorism. An enterprise investigation is a type of full investigation “subject to the purpose, approval, and predication requirements that apply to full investigations, and all lawful methods may be used in carrying them out.” Enterprise investigations distinctively “concern groups or organizations that may be involved in the most serious criminal or national security threats to the public.” Given the scope of enterprise investigations, they are taken under the strict federal definition of terrorism and relate to the investigation of groups, rather than lone shooters. In the case of Dylann Roof, the FBI already had authority to conduct an investigation under the Hate Crimes Act and with regard to Farook and Malik, there was a need to investigate the shooting as it related to a terrorist organization. Federal investigation under the umbrella of terrorism is not connected to ideology, but the group nature of an action against the state and the scope of an investigation. (See The Good Reasons to Not Charge All Terrorists with Terrorism for more information on enterprise investigations).

The federal definition of domestic terrorism is necessarily rigid to prevent over-prosecution. The system can become rife with abuse if the definition is expanded too far. This has already been the case at the state level where definitions for state domestic terrorism are more open. One such example of potential abuse involved 18-year-old Mahin Khan who was arrested on terrorism charges in Arizona for plotting to support the Taliban and ISIS and commit acts of terrorism in the local community. Khan had been previously investigated by the FBI for a past occurrence and was placed in a psychiatric facility for evaluation. Through this process, it became clear that Khan had serious mental health and developmental issues, however, Arizona still pressed terrorism charges for Khan’s recent threats. Given Khan’s psychological impairments, his capacity to commit to his threat was questionable and people surrounding the case questioned the ease with which Arizona official chose to file state terrorism charges.[2] The federal government need not open itself up to the same potential for abuse through a broadened definition.

State interest weighs heavily in jurisdictional decisions, and where the forum state has the capacity to investigate and prosecute a mass killing, preference should and is given to that state.

Furthermore, there is no federal murder statute, so unless the definition of terrorism is broadened, the state maintains jurisdiction. With regard to mass shootings, the state government may have a particularly strong interest in maintaining jurisdiction and being able to bring justice to victims and their families through state court. The U.S. Attorney’s Manual, Principles of Prosecution outlines the considerations for federal prosecutors to contemplate in determining jurisdiction. One of the considerations centers on state interest:

Some offenses, even though in violation of Federal law, are of particularly strong interest to the authorities of the state or local jurisdiction in which they occur, either because of the nature of the offense, the identity of the offender or victim, the fact that the investigation was conducted primarily by state or local investigators, or some other circumstance. Whatever the reason, when it appears that the Federal interest in prosecution is less substantial than the interest of state or local authorities, consideration should be given to referring the case to those authorities rather than commencing or recommending a Federal prosecution.

When the practical considerations are brought to light, the federal definition of domestic terrorism makes sense. The definition and the federal barriers to prosecution of terrorism were not created because of an ideological belief in the nature of terror as Islamic. The definition is about instrument used, the investigation of groups, and the crossing of state borders. What needs to be remembered, is the need for the federal government to effectively communicate its position to the public.

[1] The Charleston shooting was initially investigated as an “act of domestic terrorism” by the Department of Justice, however, the FBI declined to label it as terrorism. Dylann Roof later faced federal charges under the Hate Crimes Act.

[2] State prosecutors and Mahin Khan agreed to parameters of a plea agreement on October 7, 2016. Khan agreed to plead guilty to “terrorism, conspiracy to commit terrorism, and conspiracy to commit misconduct involving weapons.” For more information on Khan’s plea agreement, see Plea agreement reached in case of accused Arizona terror suspect Mahin Khan.


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