What’s The Difference Between Domestic And International Terrorism?

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Excerpted from a longer piece by Mary B. McCord for Lawfare

In the last year, it appears that the vehicle has become a new “weapon of choice” for international terrorists. Whether a cargo truck deliberately driven into the crowds of people celebrating Bastille Day in Nice in July 2016, a tractor-trailer that plowed into a Berlin Christmas market in December 2016, the car and van attacks in London at the Palace of Westminster and London Bridge in March and June of this year, or last Thursday’s van attack in Barcelona, this low-cost, low-planning method of spreading terror has produced high-fatality, high-impact results. But the use of vehicles as weapons isn’t limited to terrorists acting on behalf of ISIS or other Islamist violent extremists. As we saw in Charlottesville on August 12, the vehicle was the most lethal weapon deployed by the white supremacists, neo-Nazis, and Ku Klux Klansmen who descended on this southern but progressive university town, invoking what they characterized as their First Amendment rights to free speech and assembly as a guise to conceal their true purpose of intimidating and coercing not only the citizens of Charlottesville but the entire U.S., with vows to take back the country–violently if necessary.

Two days later, Attorney General Jeff Sessions correctly labeled the car attack in Charlottesville that left Heather Heyer dead and many others wounded an act of “domestic terrorism.” Federal law defines domestic terrorism as activities dangerous to human life that occur primarily in the United States, violate federal or state criminal laws, and are 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.” Based on what we know now about James Alex Fields Jr., the 20-year-old who allegedly rammed his car into Ms. Heyer and others on Saturday, his conduct readily seems to meet the federal definition.

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But while the Attorney General’s labeling of the attack as domestic terrorism was important–and stands in stark contrast to President Trump’s reluctance to use the terrorist label when referring to Fields and even more worrisome persistent moral ambivalence between the protesters on the right preaching and indeed using violence and the counter-protesters on the left speaking out against them–it does not change the fact that there is no federal crime of domestic terrorism with which Fields can be charged. Federal law would allow the United States to charge the terrorists who used their vehicles to kill and injure scores of people in France, Germany, the UK, and Spain with terrorism offenses if committed in support of a foreign terrorist organization like ISIS–even though these acts occurred outside of U.S. territory–but it does not provide for a terrorism charge against James Fields for the same type of terrorist activity occurring right here in the heart of the United States. It is time that our federal criminal laws recognize domestic terrorism for what it is: the moral equivalent of international terrorism.

To be clear, it is not that there are inadequate criminal statutes on the books to ensure that James Fields can be prosecuted appropriately and, if convicted, serve a lengthy time in prison for his heinous crime. He is currently charged in Virginia state court with second-degree murder, aggravated malicious wounding, malicious wounding, and other offenses for which, if convicted, he could face up to life imprisonment.

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But neither state-law murder charges nor hate crime charges call what happened in Charlottesville what it was–domestic terrorism–and they fail to equate it under federal law, as it deserves to be equated, with the actions of ISIS-inspired terrorists who engage in violence in pursuit of their equally insidious goals.

It is of course true that, because of what would be a more complicated interaction with the First Amendment’s protection of the rights to free speech and assembly, the United States does not designate domestic organizations such as the Ku Klux Klan as terrorist organizations in the way that it designates foreign organizations such as ISIS as terrorist organizations.

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But this does not mean that the federal government cannot criminalize acts of violence that are committed for the purposes enumerated in the federal definition of domestic terrorism (which, by the way, are identical to the purposes enumerated in the federal definition of international terrorism): “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.”

It is well established that violent acts done with any of these purposes are not protected by the First Amendment–they are not speech but, instead, violent acts. A federal crime of domestic terrorism would put crimes such as those allegedly committed by James Fields on the same moral plane as those committed by the attackers in France, Germany, the UK, and Spain, just as they deserve to be.