Under U.S. law, there is currently no such thing as a crime of ‘domestic terrorism.’
Federal law enforcement can charge alleged domestic terrorists under other statutes that designate punishment for hate crimes, firearm and explosives possession, depending on the nature and gravity of the offense, but there is no special provision for law enforcement to bring “domestic terrorism” charges. But in the wake of incidents like the explosive devices sent via mail to various high-profile critics of President Trump last week and the shooting at a Pittsburgh synagogue on Saturday, does the U.S. need a more targeted law for charging individuals accused of domestic terrorism?
Legal scholars are divided on the issue, and have been for some time. Proponents of adopting a domestic terrorism law say that it could open up more investigative tools for the feds to use, would put it on the same moral level as international terrorism simply by giving it a label, and that by labeling an offense ‘domestic terrorism’ it will allow law enforcement to better track trends and outcomes of domestic terrorism incidents and prosecution of them. But skeptics worry that a domestic terrorism law could lead to violations of civil liberties if, say, the government were to classify a domestic organization as ‘terrorists’ because they didn’t agree with their ideology, and that federal law enforcement agents already have access to the tools they need to prosecute domestic terrorism.
We look at the tools the U.S. currently has to prosecute domestic terrorism, what a specific law to prosecute it might look like, and the First Amendment and civil liberties concerns a law like it could raise.
Mary McCord, visiting professor of law at Georgetown University; she was the acting Assistant Attorney General for National Security at the U.S. Department of Justice from 2016-2017 and served as its Principal Deputy Assistant Attorney General for the National Security Division from 2014-2016
Shirin Sinnar, associate professor of law at Stanford University where she teaches courses in civil procedure, terrorism, and the intersection of race and identity with national security