Amending 18 U.S. Code § 2331 to Combat Domestic Terrorism

Introduction

The nation's headlines are replete with increasing reports of international and domestic terrorism of every kind. Indeed, many experts argue that terrorism in general, and domestic terrorism in particular, represents the greatest threat facing the country today. To identify effective paths forward, this paper describes an administrative change that would make criminal justice agencies more effective in combating domestic terrorism. It begins with a description of the prior situation and the main reasons for the proposed administrative change, followed by a discussion of the anticipated positive results and potential negative consequences. Finally, the paper addresses the resources the proposed change would require and the corresponding management support necessary to implement and administer it, before summarizing key findings in the conclusion.

Prior Situation: The Definitional Gap in Terrorism Law

Federal and state criminal justice agencies tasked with combating terrorism face multiple challenges. Some of these challenges, however, are fairly straightforward to remedy — requiring only 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). The Federal Bureau of Investigation (FBI) provides the following working definitions of each type:

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 is clear that there is significant overlap between these definitions, and assigning one or the other is highly subjective. Distinguishing domestic terrorists from their international counterparts is especially daunting given the free society in which Americans live, work, worship, and recreate — and given the existence of so-called "sleeper cells" comprised of foreign nationals who exploit these circumstances by becoming naturalized citizens and waiting for years before striking. In other words, determining the precise cause and actors involved in a 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 achieved significant conviction and guilty plea rates for terrorism-related charges (Terrorism and Terrorism Related Prosecutions by the Bush Administration: More than 300 after 9/11, 2022). Notwithstanding these successes, investigating and prosecuting domestic terrorism remains a particularly difficult process, due in large part to the aforementioned lack of definitional clarity.

Reasons for the Proposed Statutory Change

The primary cause of the disparity in prosecutions between domestic and international terrorists is not simply the absence of a domestic terrorism statute, but rather the lack of a generalized terrorism statute and the failure to formally designate right-wing organizations as terrorist entities. Law enforcement agencies pursuing international terrorists rely on such designations and material support statutes far more than on statutes prohibiting terrorist acts per se — largely because the acts prohibited by existing statutes are so narrowly defined that they are rarely useful, even in the international context (Laguardia, 2020).

Although the above-stated FBI definitions of domestic and international terrorism are largely consistent with the definitions in the controlling law, 18 U.S. Code § 2331 – Definitions, radical right-wing domestic terrorism organizations and salient examples are not mentioned at all. Therefore, this paper proposes that the definitions section of 18 U.S. Code § 2331 be amended to include this distinction in order to facilitate investigations and subsequent prosecutions.

Conclusion

The proposed amendment to 18 U.S. Code § 2331 – Definitions, to better distinguish between domestic and international terrorism, is both timely and valuable for those responsible for investigating and prosecuting terrorist individuals and organizations. By more clearly defining each type of terrorism — and by explicitly designating right-wing extremist organizations — the Department of Justice can better focus its investigatory and prosecutorial resources. Moreover, beyond the initial printing costs involved, few additional federal resources would be required to implement and administer this change. In sum, it is time to clear the muddy definitional waters surrounding international and domestic terrorism.

References

Laguardia, F. (2020, January). Considering a domestic terrorism statute and its alternatives. [University] Law Review, 114(4), 37–44.

Terrorism and terrorism related prosecutions by the Bush Administration: More than 300 after 9/11. (2022). Department of Justice Archives. Retrieved from https://www.justice.gov/archive/cjs/docs/terrorism-bush-admin.html

What we investigate. (2022). Federal Bureau of Investigation. Retrieved from