Improving Prosecution Rates of Domestic Terrorists in the U S

Adjusting to Terrorism with Additional Definitional Clarity

The nation’s headlines are replete with increasing reports of international and domestic terrorists of all ilk. Indeed, many experts argue that terrorism in general and domestic terrorism in particular represent the greatest threat facing the country today. To identify effective paths forward, the purpose of this paper is to provide a description of an administrative change that would make a criminal justice agency more effective in combating this type of terrorism more effectively. In addition, a description of the prior situation and the main reasons for the proposed administrative change is followed by a discussion concerning the anticipated positive results or potential negative consequences of the change. Finally, a description of the resources that would be necessitated by the proposed change and the corresponding changes in management support that would be required to implement and administer it is followed by a summary of the research and key findings concerning the proposed change in the conclusion.

Describe the prior situation

Federal and state criminal justice agencies that are tasked with combating terrorism are faced with multiple challenges, of course, but some of them are fairly straightforward to remedy, requiring only some additional definitional clarity in existing laws to improve enforcement and prosecution. In this regard, Laguardia (2020) reports that, “Recent years have seen an increase in right-wing extremist violence within the United States, which has highlighted the disparities in law enforcement’s handling of ‘international’ as opposed to ‘domestic’ terrorism (p. 37). A useful working definition of each type of terrorism provided by the Federal Bureau of Investigation (FBI) is provided below:

· International terrorism?: Violent, criminal acts committed by individuals and/or groups who are inspired by, or associated with, designated foreign terrorist organizations or nations (state-sponsored).

· Domestic terrorism: Violent, criminal acts committed by individuals and/or groups to further ideological goals stemming from domestic influences, such as those of a political, religious, social, racial, or environmental nature (What we investigate, 2022, para. 4).

Taken together, it clear that there is significant overlap between these definitions, and assigning one or the other is highly subjective. Indeed, distinguishing domestic terrorists from their international counterparts is especially daunting giving the free society in which Americans live, work, worship and recreate, and so-called “sleeper cells” comprised of foreign nationals who take advantage of these circumstances by becoming naturalized citizens who can lay in wait for many years before striking. In other words, determining the precise cause and actors involved in terrorism attack is a complicated enterprise. As Laguardia (2020) points out, “Public, legal, and law enforcement commenters have begun calling for a ‘domestic terrorism statute,’ arguing that the lack of such a statute is the largest hurdle in prosecuting domestic terrorists” (p. 37).

At present, the U.S. Department of Justice is responsible for investigating and prosecuting all cases of terrorism in the United States as well as those affecting its interests abroad. Although faced with a highly dynamic and increasingly threatening environment, the Justice Department has been successful in achieving significant conviction and guilty plea rates for terrorists (Terrorism and Terrorism Related Prosecutions by the Bush Administration

More than 300 after 9/11, 2022). Notwithstanding these successes, however, investigating and prosecuting domestic terrorism remains a particularly difficult process due in large part to the aforementioned lack of definitional clarity which is discussed further below.

The reasons for the proposed change

The primary cause of the disparity in prosecutions between domestic and international terrorists is not a lack of a domestic terrorism statute but rather the lack of a generalized terrorism statute and the failure to designate right-wing organizations as “terrorists.” Law enforcement pursuing international terrorists rely on these designations and material support statutes far more than on any statutes prohibiting terrorist acts, largely because the acts prohibited are so limited that they are rarely useful, even in the international context (Laguardia, 2020). Although the above-stated definitions of domestic and international terrorism are largely congruent with the definitions set forth in the controlling law, 18 U.S. Code § 2331 – Definitions, radical right-wing domestic terrorism organizations and salient examples are not even mentioned. Therefore, it is proposed that the definition section of 18 U.S. Code § 2331 be amended to include this distinction in order to facilitate investigations and subsequent prosecutions.

The anticipated positive results or potential negative consequences of the change

Because the prosecution of domestic terrorists has been complicated by the above-described lack of definitional clarity, it is anticipated that the success rate of the investigation and adjudication of domestic terrorist organizations would improve, while also freeing up other organizational resources that are currently otherwise devoted to investigating and prosecuting terrorist organizations of nebulous origins which are likewise constrained.

Identify the resources the change would require or make available—financial resources, human resources, and training dollars—and the management support the change would need.

Assuming that the Justice Department is currently optimizing its resources for investigating and prosecuting domestic terrorist individuals and organizations, it is reasonable to posit that few additional financial resources will be required to implement and administer the proposed change. In fact, by streamlining the focus on domestic terrorists or international terrorists, the Justice Department may be able to save tens of millions of dollars in administrative costs.