Think Mass Shootings Are Terrorism? Careful What You Wish For. (POLITICO Magazine)

Think Mass Shootings Are Terrorism? Careful What You Wish For.

http://politi.co/2zpjghN

When Stephen Paddock, a troubled professional gambler, murdered 58 people in Las Vegas and wounding an astounding 546 others, the calls came fast and furious for a new law aimed at domestic terrorism. Never mind that authorities thus far have found no nexus to any terrorist organization, extremist ideology or any political purpose whatsoever—mass-casualty attacks inspire passionate, angry debates that don’t always have anything to do with the underlying facts. And when an Uzbek greencard holder ran people over in Manhattan on Tuesday, many noted how quick authorities were to label the attack terrorism even before much was known about the attacker’s motives. And this past weekend, when a gunman opened fire on churchgoers in small-town Texas, for reasons that are yet unclear, more calls came for some sort of legal crackdown.

It can be hard to explain why these incidents are treated differently. Like many terrorist suicide attacks, the Las Vegas and Sutherland Springs massacres involved a heavily armed killer engaged in a carefully planned assault that would predictably end in his own death. It targeted a public place. Its victims were randomly selected. It was aimed at producing mass casualties and many were killed or wounded. It certainly was terrifying to those who came under fire and it caused nationwide fear.

Story Continued Below

A new domestic terrorism law, however, is not a solution and could create unintended consequences.

People tend to seek rational explanations for random violence. Terrible crimes committed for no identifiable reason disturb us—we feel more comfortable if they can attribute the carnage to a cause. Some of those who want a new domestic terrorism law think that attaching the terrorism label to murder infuses meaning to what would otherwise be an incomprehensible tragedy carried out by a madman.

The terrorism label also magnifies the significance of a crime. It may be that some of the advocacy for a new law is an expression of the grief and outrage that always follows a terrible crime, and not as concrete legislative proposal. Murder, even mass murder, is not heinous enough. Many feel that we must attach to it an additional term as an expression of outrage. No matter the definition of terrorism in the laws of America and other countries and in international treaties and conventions, all of which require a terroristic intention, the Las Vegas mass murder could be declared an act of terrorism by popular acclaim, not because it makes sense to do so but because to call it anything less diminishes the horror of the crime.

A number of recent articles argue that if the current domestic terrorism statute does not currently cover mass shootings like that in Las Vegas, it should. To not have such a law, assert some of the critics, reflects the inherent racism of American law enforcement—jihadists are called terrorists because they are Muslims while white “terrorists” are called “lone wolves.”

Actually, the term “lone wolf” is routinely applied primarily by the news media to both jihadist attackers and white supremacists, and recently has been adopted by the jihadist themselves. The FBI and Department of Justice do not use the term “lone wolf,” but instead refer to terrorists operating alone merely as “lone offenders.”

Proposals for new law may also reflect an effort to translate public outrage and alarm caused by mass shootings into greater support for fundamental change in U.S. gun control laws. The large arsenal amassed by the Las Vegas killer and the scale of the carnage he caused makes this a useful platform.

Advocates for a new law, while not yet clearly articulating what they have in mind, suggest terrorism should be more broadly defined and that domestic terrorism law should more closely resemble the law applicable to international terrorism. But there is no single law for international terrorism. There are multiple federal statutes applicable to international terrorism, some of which apply equally to domestic acts of terrorism. It is necessary to understand how they came about.

***

The history of laws addressing international terrorism is a short one. It wasn’t until the late 1960s and early 1970s, at fact, that the United States paid the subject much interest at all. But a rash of airline hijackings and attacks on diplomats and businesspeople—many of them by groups tied to the cause of Palestinian nationalism—increasingly found Americans caught up terrorism, even when the United States wasn’t the primary target.

Between 1969 and 1972, Americans were targets in half of the 30 terrorist political kidnappings and attempted kidnappings of diplomats and other officials serving abroad. There was one diplomatic kidnapping incident in 1968, two in 1969 and 20 in 1970. Then terrorists shifted their sights to the executives of multinational firms from who they could extract multimillion-dollar ransoms. Terrorist hijackings also proliferated during this period. There were three politically motivated hijackings in 1968, 14 in 1969 and 43 in 1970.

Unable to get international agreement on a definition of terrorism, the United States government sponsored or supported a number of international conventions aimed at outlawing attacks on certain targets, for example, crimes aboard civil aircraft (and later airports, passenger vessels, and offshore platforms) or attacking diplomats, or outlawing certain tactics commonly employed by terrorists, such as taking hostages. Countries that signed these conventions were required to pass implementing legislation that incorporated the international agreement in their criminal code. The resulting laws made no distinction between international and domestic incidents of terrorism, and in many cases, they applied whether or not the attack was politically motivated. A hijacking, for example, was a U.S. crime regardless of what the hijacker wanted to achieve.

Frustrated that terrorists attacking American citizens abroad in one country were sometimes being released to take refuge in another, the United States in 1986 passed what’s known as the “long arm statute,” which made it a federal crime to murder, attempt to murder, conspire to murder, or cause serious bodily injury to Americans overseas if the attorney general determined that the violence was terrorism, rather than an ordinary nonpolitical criminal offense. It meant that terrorists attacking Americans abroad could be punished in U.S. courts. The legislation enabled the FBI to mount operations to investigate terrorist crimes abroad and when possible apprehend individuals and bring them to trial in the United States.

The more recent addition to the criminal code addresses the issue of material support for terrorism—that is, giving resources or assistance to designated terrorist organizations.
This provision was originally enacted in 1994, amended in 1996, and broadened after 9/11. The evolving statute, which makes it a crime to knowingly provide material support to a terrorist organization, reflects two developments in U.S. counterterrorism policy. The first was the reframing of U.S. counterterrorism policy in the 1990s from one aimed at outlawing terrorist tactics to one focused on punishing specific terrorist organizations. The second development followed the terrorist attacks on 9/11 and was meant to bolster law enforcement’s ability to disrupt any logistics structures and support networks that might aid terrorists in recruiting operatives, financing their operations, or carrying out further attacks.

Prosecutors have interpreted the material support provisions broadly and the courts have agreed. Individuals may be prosecuted for incitement, supporting the terrorists’ propaganda apparatus in calls for violence and volunteering to join these organizations. Intentions suffice. Jihadist terrorist plots and attacks are considered international because are connected with foreign terrorist organizations or at least inspired by their ideology. Most of the jihadists arrested for terrorism in the United States have been prosecuted under the material support provision—which requires that law enforcement make and maintain a list of banned terrorist groups.

***

Those proposing a new law to address domestic terrorism assert that America does not yet have such a law. That simply is not true. Current law 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 (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.” International terrorism is defined in similar terms.

The FBI has primary authority to investigate all terrorism, domestic and international. FBI Director Christopher Wray recently testified before Congress that the FBI has approximately 1,000 domestic terrorism investigations underway, roughly the same as the number of investigations of international or foreign-inspired terrorist investigations. Domestic terrorism investigations are supported by a resource-rich counterterrorism system consisting of prosecutors within the Department of Justice and its United States Attorney’s Offices, the FBI and its Joint Terrorism Task Forces, and state and local law enforcement officers and prosecutors throughout America.

Domestic terrorism investigations, just like those for international terrorism, seek evidence of conduct that violates federal and state laws committed with a specific terroristic intention. Such conduct can be prosecuted in federal and/or state courts under whichever criminal statutes fit the facts. In addition, federal law defines as a “federal crime of terrorism” a long list of offenses which are “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” The majority of these offenses do not require an international nexus. They can be committed within the United States by persons who act with the requisite terroristic intention without any connection to or influence of an international terror organization. In other words, they are crimes of domestic terrorism, whether prosecuted in federal or for that matter in state courts where it is not uncommon to prosecute even those terrorists connected with foreign terrorist organizations or inspired by foreign ideologies.

Of the 25 jihadists who carried out terrorist attacks in the United States since 9/11, 11 were killed during the attack or soon after. Of the remaining 14, six were (or are being) tried in state courts, often on charges of first-degree murder or attempted murder. Seven were indicted on federal charges and one, Nidal Hasan, who shot and killed 13 of his fellow soldiers and wounded 31 others at Fort Hood Texas in 2009, was tried in a military court.

There is no evidence that an inadequate domestic terrorism statute has impeded investigations and prosecutions of domestic terrorism. FBI Director Wray in his recent testimony made the point that even when convicted under non-terrorism charges, domestic terrorists can face the same punishment — including death — as those convicted under international terrorism statutes. He also explained that it can sometimes be “simpler, easier, quicker, less resource-intensive” to go this legal route—but the bureau still considers such prosecutions domestic terrorism cases.

A former federal prosecutor who recently called for a new domestic terrorism law asserted that it was significant that the absence of a domestic terrorism statute resulted in Timothy McVeigh, who bombed the federal building in Oklahoma City, being prosecuted and executed for using a weapon of mass destruction rather under a crime that labeled him a terrorist. This is a flawed argument. Not only did the Oklahoma City bombing happen in 1995—before the enactment of the Antiterrorism and Effective Death Penalty Act in 1996 and the current terrorism laws enacted after the attacks launched in the United States by al Qaeda on September 11, 2001—but without those laws, McVeigh was convicted and sentenced to death for killing eight federal officials, in addition to conspiracy and bombing charges. (One of the reasons for focusing on these specific victims was that killing federal officials was a charge that carried the death penalty sought by the prosecutors.) In the unlikely case that McVeigh avoided conviction in federal court, the state of Oklahoma charged McVeigh with 168 counts of capital murder.

The law as it existed then was fully adequate to address his crime. Moreover, neither the government nor the public hesitated to label McVeigh a terrorist. The trial judge referred to his terroristic motive, the prosecutor in his summation to the jury called him a domestic terrorist, the media referred to McVeigh as a domestic terrorist and the Oklahoma bombing then and now is commonly regarded as an act of domestic terrorism. And there was no doubt that McVeigh carried out the bombing with a terroristic intention – he issued a statement setting out his reasons.

America has a sophisticated and resource rich law enforcement system for investigating and prosecuting domestic and international terrorism. The only element that significantly distinguishes the two – the international from the domestic – is material support and its accompanying proscription list.

Does it make sense for the federal government to promulgate an official list of domestic terrorists? Putting aside the substantial constitutional objections, there is no good reason to do so.

When applied to a nation’s own people, a list of banned domestic terrorists strongly tends to becomes a tool of state control. It works to suppress speech, association, and political action because any idea advanced by a proscribed group becomes anathematized. In the middle of the 20th century the federal government published a list of subversive organizations as part of a Federal Employee Loyalty Program, ostensibly to keep communists out of government and socialist ideology by denying or terminating their employment. The desired effect was not only to protect the infiltration of government by soviet agents and Marxist revolutionaries, but to suppress throughout American society lawful and non-violent political speech and action in support of political goals influenced by communist and socialist ideas.

The Federal Employee Loyalty Program did not reach as far as material support regimes do. The federal government did not attempt to make it a crime to support the proscribed organizations. It deprived those who did of employment in government or of security clearances requisite to work in certain government jobs. It also led to “blacklists” that deprived people of working in certain industries.

Material support law applied to American organizations is a much more powerful, blunt and potentially oppressive instrument of social control. It therefore appeals to those, on the left and right, who think the government must step in to purge American society of harmful ideas and attitudes. For that reason alone, it would be a mistake to open the door to promulgating a domestic terrorism list.

Creating an official list of domestic terrorist organizations would open the way for a contentious and potentially ugly debate about who should be included. The Southern Poverty Law Center has identified 917 “hate groups” operating in the United States, many of them on the right. Should they be labeled terrorist organizations on grounds that they incite hatred and violence? Many conservative critics of what they regard as the SPLC’s murky methodology would blanch at the thought. On the left, anarchist extrmists have been responsible for bombings in the United States. Some people are calling for Antifa, a militant movement of autonomous, self-styled anti-fascist groups known for confrontational and often violent tactics, to be declared a terrorist group. The FBI has recently warned that so-called black identity extremists pose a threat to law enforcement personnel. And why not include terror-producing MS-13 and other criminal street gangs in the definition of terrorism?

A review of the FBI’s list of domestic terrorism incidents and preventions from 2002 through 2005, the last year covered in a public report, includes 23 incidents and 9 preventions; 22 of the incidents were carried out by eco-terrorists of the Earth Liberation Front or animal rights extremists associated with the Animal Liberation Front. One was carried out by a white supremacist. Six of the preventions involved white supremacists, violent tax protesters, or anti-federal government extremists, two involved planned attacks on abortion clinics, and one involved an anarchist. (During this same period, there was one jihadist terrorist attack and 13 jihadist plots were uncovered.)

Most jihadist terrorist violence in the United States today is inspired rather than directed by foreign organizations. Domestic terrorism generally involves individuals and gangs operating within even an more amorphous universe. Defining the limits of material support would be an enormous challenge. Should anger about taxes, believing abortion is a sin or excessive zeal in protecting the environment, arouse suspicion?

Making an official list of domestic terrorist organizations would inevitably lead to a highly divisive and politically charged campaign by left and right to label groups as terrorists based on their beliefs, the ideas they express and their manner of protest, not on criminal actions systematically adopted in furtherance of a political and ideological goals.

Redefining the domestic terrorism statute to encompass mass shootings as a form of terrorism on grounds that they create public terror, leaving aside individual motivation, would guarantee a continuing supply of public anger, especially if the audience is persuaded to substitute the more recent definition of a mass shooting as any armed assault that results in four casualties, including the shooter in place of the FBI’s higher criteria of any shooting that results in four fatalities not including the shooter. This change alone transforms a comparatively rare event into an everyday occurrence.

Adding a material support provision to a new domestic terrorism law could theoretically expose the gun lobby as well as firearms manufacturers and sellers and even opponents of more stringent gun laws to criminal prosecution or civil suit on grounds that their activities support “gun terrorism.” The nation needs to have a serious discussion about gun violence. A politically toxic debate about terrorism will not help.

And there are further complications. To distinguish terrorism from the crimes that terrorists commit to further their ideological and political agendas, the additional element of a terroristic intention—i.e., a political motive—must be attached to those crimes. Attaching the label of terrorism to criminal conduct committed without the essential terroristic intention would strip the term of its established legal and commonly understood meaning. Terrorism would be any crime that causes or is intended to trigger extreme fear: extortion, armed robberies, severe assaults, rape and many other crimes would all arguably qualify as crimes of terrorism under such a loose, subjective definition.

There is no compelling law enforcement or policy reason to apply the entirety of international terrorism law, with its material support and terrorist designation features, domestically. It would not improve the ability to investigate, prosecute and punish domestic terrorism. And it would come with unwanted consequences. America has a comprehensive system to deal with domestic terrorism consisting of federal prosecutors, investigators and analysts, fully supported by the resources of intelligence, enforcement and regulatory agencies, and in partnership with the law enforcement resources of the 50 states. It has worked well.

Brian Michael Jenkins is senior adviser to the president of the RAND Corporation and author of The Long Shadow of 9/11.

Richard C. Daddario is a former assistant U.S. attorney, Southern District of New York and deputy commissioner for counterterrorism, NYPD.

More from POLITICO Magazine

via POLITICO Magazine

November 7, 2017 at 02:23PM