Acts of Politically Motivated Violence Are Already Illegal. Making 'Domestic Terrorism' a Federal Crime Won't Help

A domestic terrorism law is bound to threaten liberty more than it hampers terrorists.

Adding its voice to the growing chorus demanding stronger laws targeting politically motivated violence, the FBI Agents Association called on Congress to make domestic terrorism a federal crime. The members of this chorus are, to various degrees, sincere, panicked, and self-serving, but they all have something in common: they're advocating a very bad idea that's bound to threaten liberty more than it hampers terrorists.

"Domestic terrorism is a threat to the American people and our democracy," said FBIAA President Brian O'Hare in a statement. "Acts of violence intended to intimidate civilian populations or to influence or affect government policy should be prosecuted as domestic terrorism regardless of the ideology behind them. FBIAA continues to urge Congress to make domestic terrorism a federal crime. This would ensure that FBI Agents and prosecutors have the best tools to fight domestic terrorism."

Coming is it does from a labor union representing law enforcement agents who would gain another law to enforce if heeded, the statement can fairly be interpreted as an answer to the question: "Siri, what's an example of rent-seeking?"

But there are other objections to creating a new federal crime of domestic terrorism that also need to be addressed, given the real fears of many of the people making the call, and the serious concerns such a law could raise.

For starters, it's not clear that there's any need to pass more laws against crimes like the mass shootings in El Paso and Dayton that occurred over the weekend. Murder and related forms of mayhem are already illegal in every state, and there's no reason to believe that the federal government is better prepared to prosecute crimes than state and local authorities, who have long experience investigating such acts and bringing their perpetrators to trial.

Some advocates of a federal domestic terrorism statute concede this point, but still want a new law for largely symbolic value.

"To be clear, it is not that there are inadequate criminal statutes on the books," writes former Acting Assistant Attorney General for National Security Mary B. McCord, who is now with the Institute for Constitutional Advocacy and Protection at Georgetown University. "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."

McCord does acknowledge First Amendment concerns that would prevent the designation of domestic groups as terrorist organizations the way the United States government tags foreign groups. For example, even while ruling that the government could penalize assistance given to foreign groups designated as terrorist organizations, Supreme Court justices noted in 2010 that they "do not suggest that Congress could extend the same prohibition on material support at issue here to domestic organizations." But she still thinks it right to pass a law if only to put domestic terrorist acts "on the same moral plane" as those committed by largely Muslim attackers overseas.

But if we're just sending messages, it might be cheaper, and safer, to issue press releases. The feds already have a sketchy track record when it comes to investigating allegations of terrorism under existing laws.

"The United States government considered Nelson Mandela a terrorist until 2008," the American Civil Liberties Union pointed out in 2017. The organization went on to note that political protesters in Portland were being tagged as "domestic terrorists" by the Department of Homeland Security, which was then including that label in reports distributed to Fusion Centers which share information with federal, state, and local law enforcement agencies. In the absence of a specific statute against domestic terrorism, that meant little more than extra scrutiny of the sort authorized under the Patriot Act. But having your name associated with the word "terrorist" in police files comes with its own risks.

"The surveillance, labeling, and incarceration of protesters, especially Black protesters, because of their alleged criminal or terrorist activity is a well-worn trope. And while it may not surprise, it should still shock," the ACLU continued.

Not to pick on McCord here—well, not too much—but she's been a steady and specific advocate of domestic terrorism legislation. And the continued mislabeling of political protesters by law enforcement authorities for the sake of special treatment raises doubts about assurances that "to the extent that fear about possible abuses remains, any domestic terrorism statute should come with appropriate oversight requirements."

That's what she and Jason M. Blazakis, a professor at the Middlebury Institute of International Studies at Monterey, offer as a safeguard for "including domestic terrorism among the list of crimes that one is prohibited from materially supporting (such as through the stockpiling of weapons)."

That's a hell of a leap of faith to place in government agencies that have rarely, if ever, earned reputations for restraint and good judgment. Are we really supposed to believe that "appropriate oversight" by federal employees will prevent their colleagues from wrongly interpreting gun collections, stored chemicals, and random tools as material support for planned terrorist actions? These are the same federal employees who are also lobbying for domestic terrorism laws, on the rather transparent grounds that it will give them more important work to do.

Or… We could go with the admission that "it is not that there are inadequate criminal statutes on the books" and keep using existing laws as needed. By whatever name, the crimes committed by terrorists are already illegal and harshly punished. Additional laws against already criminalized activity promise to be more of a jobs program for feds than a step toward improved security, and a greater threat to our freedom than to terrorists.