The "Too Irrational to Be a Terrorist" Defense Goes Nowhere

ISIS supporter Joshua Van Haften "also believes, for example, that Britain's Prince William is the Antichrist, that people can use numerology to predict the future, and that most Western political leaders are closet Satanists."

|The Volokh Conspiracy |

From yesterday's Seventh Circuit decision in United States v. Van Haften:

Joshua Van Haften is a Wisconsin native who was caught travelling to Turkey in an attempt to join ISIS, a designated terrorist organization. In some ways, Van Haften fits the typical profile of a terrorist: he believes that ISIS is fighting a holy war against America—a war that will culminate in the establishment of a global caliphate. But this view is just one strand in a web of bizarre, mystical beliefs Van Haften holds. He also believes, for example, that Britain's Prince William is the Antichrist, that people can use numerology to predict the future, and that most Western political leaders are closet Satanists.

And Van Haften has a personal vendetta against the United States government that has nothing to do with religion: when he was 18 years old, Van Haften was convicted of statutory rape for having sex with his 15-year-old high school classmate. Van Haften's status as a sex offender made it difficult for him to live a normal life in America, and he greatly resents the "godless laws" that, in his view, destroyed his life.

After he was apprehended in Turkey, Van Haften pleaded guilty to attempting to provide material support to a foreign terrorist organization. At the sentencing stage, the district court concluded that the terrorism enhancement applies to Van Haften, because his crime was "calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct." The enhancement produced an advisory guidelines range of 292–365 months, capped at a 15-year statutory maximum.

After hearing testimony about Van Haften's delusional beliefs and his willingness to reform, the court gave Van Haften a below-guidelines sentence of ten years. Without the terrorism enhancement, Van Haften's range would have been 57–71 months. The sole issue in this appeal is whether the district court clearly erred in applying the enhancement. We conclude that it did not.

The record contains overwhelming evidence that Van Haften sought revenge against the U.S. government. He wrote on Facebook and in various private notes that he despised America because the county "betrayed" him and Muslims everywhere by refusing to "follow divinely guided law, otherwise known as Shari'ah." He described Presidents Obama and Bush as "Kuffar disbelievers" and "defenders of the antichrist," and said that he wanted to travel to Syria to fight against them and their armies. On one occasion, Van Haften asserted that, once he arrived in the Middle East, he would help ISIS "enslave Americans and kill Bush and Obama, [whose] children and grandchildren will be sold as slaves at our markets."

Van Haften also opined that, by placing him on the sex offender registry, the government had "fuck[ed] me for life from age 18." Because of this, Van Haften said that he wished "death to [Americans] and their little children" and proclaimed that he would "show [them] who [they're] really fuxkin wit [sic]."

Van Haften's writings establish a direct causal link between his hatred of the U.S. government and his desire to "join[ ] my brothers for the war against American liars" and "kill me some American soldier boys." These statements persuaded the district court that Van Haften sought to join ISIS, at least in part, because he wanted to "retaliate against the government for its treatment of Muslims in general and specifically for its treatment of [Van Haften] as a designated sex offender."

It is true, as defense counsel points out, that Van Haften's motivations fluctuated over time and that his worldview was not always consistent. In one conversation with his mother, for example, Van Haften described his anti-U.S. rants as mere "vent[ing]." And in a Facebook exchange with a friend, Van Haften wrote that he was travelling to Syria to "build roads [and] help the helpless." Further muddying the waters, Van Haften also "liked" links to stories suggesting that ISIS, rather than being comprised of Islamic holy warriors, was actually a CIA front.

The defense highlights these and similar inconsistent statements to argue that Van Haften's motivations were too incoherent to support a finding that he attempted to join ISIS as "a rational act of retaliation." Even if this is one way of looking at Van Haften's behavior, however, it is by no means the only one.

Van Haften undoubtedly holds many false beliefs—and the strength with which he has held those beliefs has fluctuated over time—but his actions are not irrational. As the district court saw it, Van Haften's decision to join ISIS's war against America was "a rational act of retaliation," even if the factual predicates that motivated his decision are false or absurd. Put another way, it is unimportant why Van Haften wanted to retaliate against the government. All that matters is that he did, in fact, commit a crime calculated to retaliate against the government.

The district court did not err, much less clearly err, when it concluded that the record does not support Van Haften's contention that he wanted to join ISIS solely to "help the helpless" or to seek shelter from an impending holy war. A desire for safety and Islamic fellowship may have contributed to Van Haften's decision to travel to Syria, but this innocent desire was not Van Haften's sole, or even primary, motivation for attempting to join ISIS. The terrorism enhancement applies so long as the defendant's conduct was "calculated … to retaliate against government conduct," even if it was also calculated to accomplish other goals simultaneously.

Because Van Haften's own statements demonstrate that he sought to join ISIS to take up arms against America and Americans, we AFFIRM the decision of the district court to apply the terrorism enhancement to his sentence.

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  1. I’m not concerned about the sentence length for “guilty to attempting to provide material support to a foreign terrorist organization” but don’t think much at all of a sentencing enhancement for behavior “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” I also don’t like the idea of mining someone’s facebook to prove intent. Sure, throw him away for attempting to join ISIS. There’s nothing in the quoted comments that makes the defendant more criminally blameworthy, at least in my view.

    1. I’m also a little confused by a “terrorism enhancement” to a charge of “providing material support to a foreign terrorist organization.”

      1. Right? I would have expected that the elements of the crime of “joining ISIS” (whatever they are) to include the sort of stuff in a “terrorism enhancement”.

        If we think joining ISIS is a serious enough problem to put people away for years, I don’t think it should matter whether they’re joining to become a medic rather than a killer. I certainly don’t think it matters what they said on Facebook years ago. Does the next tax evader need to worry about a terrorism enhancement because they’ve made disparaging comments about the government?

  2. I’d never really thought about it before but the wording of that rule seems problematic. I can think of several things that are “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct” that are (or should be) fully-protected by the First Amendment. Harsh language is definitely calculated to influence. And it seems rather too ambiguous to allow prosecutors (the people being influenced) to define whether that influence counts as coercive. And I can think of lots of examples of harsh language said in response to (that is, retaliation against) government conduct. Most protests could be shoehorned into that description.

    Not trying to defend Van Haften’s behavior but at least based on the snippet above, it seems that clause could be vulnerable to an overbreadth challenge.

    1. Harsh language isn’t coercive, and coercion does not necessarily entail literally harsh language.

      “Screw you and the horse you rode in on” is harsh language; “I hope, sir, that I don’t terrible inconvenience you by begging to inform you that if you don’t graciously accede to our requests, we will kill you and your family” is coercion.

  3. Like many convictions for terrorism, this is a long sentence for a guy who wanted to harm the United States, but never actually got around to it.

    1. He took a flight to Turkey, acting on his intention to harm many innocent people (“…and there little children…”). Sounds pretty heinous to me.

      1. Jeez, don’t let this guy on your jury if you’re charged with flying to Turkey.

  4. We live in an age where FBI/DOJ officials applying to a FISC for a warrant submit affidavits based on the fictional press releases from the political campaign of a woman who has been the subject of many investigations already (and more to come I guarantee.) Andrew McCabe said the dossier was the main ingredient in the FISA application. Rep. Trey Gowdy’s return to prosecution work could be a cushy special counsel gig that he can steer any direction he wants. Maybe I will finally find out if there was a shooter on the grassy knoll.

    1. So what is “rational?”

      1. I sense that is destined to remain a mystery for you.

        1. Pot-Kettle-Black.

          1. Thank you for taking time away from fondling the Nunes memo to respond to my observation.


            1. The Nunes memo was a big nothing. And despite your claimed love of reason and rationality you have never once demonstrated either in any of the comment threads at VC.

              1. You endorsement of Mr. Cook’s views are noted.

                At least the soundtrack was great.

    2. Michael Cook: “Maybe I will finally find out if there was a shooter on the grassy knoll.”

      I believe we already know the answer. There was, and he was Ted Cruz’s father. Sheesh!

  5. There was a short time in my life when I also was obsessed with notions like the ability of “numerology to predict the future”. I knew it was irrational. However, my ability to dismiss the fantastical ideas deteriorated, and I ended up getting confused. It was a long time ago, and I now have what I need to keep it from ever happening again. through all the emotional rollercoaster, it was never difficult to dismiss the idea of directing any of the anger or hostility outward.

    Even during that time, I asked myself the same question…. can one ever be loosed the responsibility for abiding moral priciples, even when tossed about by these irrational emotions? The answer I determined for myself was clearly no. When the moral priciples never leave your field of vision, as what I experienced, you are just as guilty as the other terrorists. The “sane” terrorists, if born in, say, Iceland, would in all likelihood not become active terrorists, but may still have violent souls. It is therefore with a clear conscience I say, throw the book at him.

    1. Unfortunately for him, there is no ‘moral system that will trump politics, an “argument that will stop them in their tracks when they come to take you away”‘

      Hope he finds some peace.

  6. This is the current event that Prof. Volokh figures is the one for comment?

    I guess if I were a movement conservative with an academic veneer (rather than a member of the true-believing right-wing base), I’d probably be ducking the obvious, too.

    Or perhaps a conservative academic would know some of the Republicans — Mueller, McCabe, Comey, Rosenstein, Wray — being depicted as conspirators on behalf of a Democrat against a Republican.

    Either way . . . carry on, clingers.

    1. Wray is off the list because he hasn’t resigned. He was only posturing opposing the memo because he wants a long term gig as director.

      You forgot Bruce and Nellie Ohr, Lisa Page, her boyfriend Strzok, Glenn Simpson, and more to come.

      Stay tuned for the Inspector General report in March. It will be 9x worse for Dems than the Nunes memo because it will contain dozens of whistleblower reports from FBI agents who saw what the cabal was doing and were outraged.

      I must apologize for Arthur and I to the professors trying to have focused chats on legal issues, but you have to admit these are times of unique constitutional challenge.

      1. You figure Mr. Wray believed he was improving his prospects for a long-term posting in the Trump administration?

  7. The terrorism enhancement sounds absurd. All terrorists attempting to influence a government or to seek retribution against a government. This sounds like Deep Statism run amok. How about new penalties for “failing to treat a psychiatric ailment while being a terrorist” ?

    1. “Deep Statism” sends a chill down my spine. Not because I don’t trust the administrative state, as I generally always have. It just sounds too much like “Satism”, and whenever it is repeated there is an conspicuous absence of evidence.

  8. I think my fundamental difficulty here is that the totality of the conduct the defendant was sentenced for seems practically indistinguishable from treason as the consitutition defines it, yet the defendant was deprived of the protections, including the heightened evidentiary requirement for a conviction, that the Constitution requires.

    Subdividing the crime of treason into separate components, and labeling one a crime (with a lower burden of proof than treason) and the other a sentencing enhancement (with an even lower burden) seems a subterfuge to get out of the constitution’s restrictions.

    I have often advised against creating new rights with no commection to the Constitution’s Text. But when the Framers articulated a specific textual right, it should be given a fair, even expansive reading, construed liberallly enough to give it full effect.

    Re Quinlin is inopposite here. It permitted prosecution of citizen enemy combattants for violating the laws of war. But the defendant in this case was never designated an enemy combatant, and never charged with any war crime. In a war, attempting to subdue and terrorize the United States Government into agreeing to a favorable peace is war’s basic business, and is no crime.

    1. Typo: In re Quirin.

  9. Regards the abuse of FISA court scandal: the release of the Nunes memo at first glance does not seem to have changed anyone’s mind. In fact, the rebuttals are quite emotional and imaginative. Eventually the preponderance of evidence smother all political talking points in their cribs.

    I am even such an idealist that I firmly believe that eventually even the general public will acquire a much better sense of what is likely true, what is certainly false, and what really matters.

    But it will take months and months, perhaps years and years. Every hair will be split, examined, argued over, and split again until even an obsidian scalpel can’t cut another layer off the onion.

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