On March 16, 2021, twenty-one-year-old Robert Aaron Long murdered eight people in a series of shootings in three Atlanta-area spas. Six of the eight victims were of Asian descent, marking another tragedy in the growing trend of violence against Asian Americans since the start of the Coronavirus pandemic. In a year filled with violence and uncertainty, condemnation of heinous acts is more important now than ever before. Yet, when asked to comment on the investigation and Long’s suspected motivation for the shootings, Cherokee County Police Captain, Jay Baker, stated “he had a bad day, and this is what he did.”
Such responses to acts of violence are unfortunately common. In 2017, President Trump stated that there were “very fine people on both sides” of the “Unite the Right” rally in Charlottesville, Virginia, where right-wing extremist protestors battled counter-protestors over the destruction of a Robert E. Lee statue. The riot resulted in one death and dozens of injuries after “white nationalist,” James Alex Fields Jr., drove his car through a crowd of counter-protestors. Likewise, on January 6, 2021, President Trump issued a one-minute video on social media telling insurrectionists in the United States Capitol, “Go home. We love you. You are very special.” The January 6 Capitol insurrection resulted in five deaths, more than 140 injuries, and unprecedented destruction in the United States Capitol Building.
Domestic terrorism is surprisingly not, to borrow a phrase from Justice Potter Stewart, “I know it when I see it.” Politics and the interpretation of constitutional liberties prevent wide-spread acceptance of a clear, concrete definition of domestic terrorism. One example that illustrates this is the contrasting responses to Black Lives Matter protests and the United States Capitol insurrection. Both were referenced in President Trump’s second impeachment hearing. However, both were construed differently depending on political ideology and party. Namely, Democrats labeled the Capitol insurrection as domestic terrorism and conversely, Republicans pointed to Black Lives Matter protests as the standard of extremism. With the threat of domestic terrorism “metastasizing” throughout the United States, there is a newfound urgency to identify and combat domestic extremism. However, where there is an inability to identify and label domestic terrorism, there is an inability to effectively combat the threat.
Domestic Terrorism and the Law
Domestic terrorism is defined in 18 U.S.C. §2331 and §802 of the USA Patriot Act as “activities that involve acts dangerous to human life that are a violation of the criminal laws of the United States.” These acts occur “primarily within the territorial jurisdiction of the United States” and “appear to be intended to intimidate or coerce a civilian population, influence the policy of a government by intimidation or coercion, or affect the conduct of a government by mass destruction, assassination, or kidnapping.” Although a comprehensive definition of this pressing threat, there are no punitive measures attached for violating the statute. Accordingly, there is no general federal charge or punishment available for suspected domestic terrorists.
Legislation has been proposed to attempt to bridge that gap in regulation. Since 2017, a “Domestic Terrorism Prevention Act” has been proposed during every Congressional session. However, none were enacted, likely reflecting the political influence over defining domestic terrorism. Most recently, Representative Brad Schneider proposed the Domestic Terrorism Prevention Act of 2021. The bill authorizes “domestic terrorism components” in the Department of Homeland Security, the Department of Justice, and the FBI to “monitor, analyze, investigate, and prosecute domestic terrorism.” Given the violence observed over the last year, there appears to be a greater emphasis placed on monitoring domestic terrorism. Yet, there is still debate as to the scope and method of regulation.
Should Domestic Terrorism Legislation be Enacted?
Domestic terrorism is a threat to national security, accounting for approximately twenty percent of all threats against the United States. Notably, from 2017 to 2019, the United States executed more arrests relating to domestic terrorism threats than arrests relating to international terrorism threats. Domestic terrorism poses such a threat because individuals are largely able to remain “undetected” by law enforcement. Specifically, unlike international terrorism where organizations are clearly designated as terrorist organizations, there is no designation system for domestic terrorism and many actors are considered to be “lone wolf” terrorists. Given the challenge of finding and subsequently regulating domestic terrorists, a domestic terrorism law would ensure that threats are handled effectively. Namely, domestic terrorism legislation would recognize domestic terrorism for the threat it is and force agencies to prioritize the investigation of domestic terrorist attacks, the prosecution of domestic terrorists, and ideally provide a framework of punishment for committing domestic terrorism attacks.
Despite the growing threat of domestic terrorism, there are also concerns about enacting legislation. First, opponents argue that enacting this legislation would force law enforcement agencies to determine what constitutes domestic terrorism, and what does not. This creates a subjective level of enforcement that is heavily dependent on the administration in charge, thus creating inconsistencies in characterizing criminal conduct. Second, creating a domestic terrorism law could potentially impinge upon constitutional liberties. A domestic terrorism law, if applied broadly, could present challenges relating to the First Amendment, specifically the freedoms of speech and assembly, and the Second Amendment right to bear arms. Due to the value of constitutional liberties in American society, such “threats” of impingement would likely cause a greater divide in American society. Finally, opponents argue that a domestic terrorism bill would not make the prosecution of domestic terrorists any easier. There are already tools in place to prosecute domestic terrorists, and enacting a “hastily crafted” bill may cause more harm than good.
The future of a domestic terrorism law will be determined within the coming months. Although there is still debate regarding promulgation and scope, domestic terrorism legislation would serve as a significant step in the right direction to protect national security.
Image Sources: Capital Breach by Brett Davis