We Don't Need Terrorism Laws When Murder Is Already Illegal
The government has given itself special powers to deal with crimes that it could already prosecute.
New York state prosecutors announced on Tuesday that they were charging Luigi Mangione, the alleged killer of United Healthcare CEO Brian Thompson, with murder "in furtherance of terrorism." The law that they are citing, which was passed a week after the attacks of September 11, 2001, increases penalties for violent crimes meant to "intimidate or coerce a civilian population," "influence the policy of a unit of government by intimidation or coercion," or "affect the conduct of a unit of government by murder, assassination or kidnapping."
Killing and kidnapping, of course, are already illegal. Thompson's murderer would have gone to prison for a very long time, with or without terrorism laws. A few decades ago, authorities had all the power they needed to investigate and prosecute violent crimes. But the wave of counterterrorism laws, which began in the 1990s and ramped up after 9/11, has allowed the government to create a new realm of special crimes.
Terrorism enhancements, like hate crime enhancements, increase the penalties for certain crimes simply because the motive is politically controversial. Other counterterrorism laws allow the government to treat unpopular First Amendment activities—like talking to unsavory foreign rebel groups, or animal rights activism—as if they were associated with heinous crimes.
The first counterterrorism laws in the United States were concerned with foreign policy and immigration. The Export Administration Act of 1979 allowed the U.S. State Department to designate certain countries as "state sponsors of terrorism," which subjected them to certain kinds of economic sanctions. The 1990 amendments to the Immigration and Nationality Act allowed authorities to ban any foreigner who "has engaged in a terrorist activity" or "is likely to engage after entry in any terrorist activity" in the United States.
But criminal law continued to treat terrorist crimes like regular crimes. Ramzi Yousef, who killed six people at the World Trade Center in 1993 and plotted to blow up several airliners, was thrown into solitary confinement for life. Timothy McVeigh, who killed 168 people at the Oklahoma City federal building in 1995, was executed. There didn't have to be any special laws for political violence, because the normal laws against murder and explosives use were enough.
After the Oklahoma City bombing, however, Congress passed the Antiterrorism and Effective Death Penalty Act of 1996. The Clinton administration and its supporters, including the Anti-Defamation League, originally wanted a broad law to crack down on both foreign and domestic terrorism, but Republicans pushed back due to worries about expanding the power of federal law enforcement. As a compromise, the final law banned "material support" for foreign terrorist organizations, meaning that there would be no legal definition of "domestic terrorism."
But even the ban on supporting foreign terrorists encroached on "activities that would ordinarily be considered constitutionally protected," according to a February 2024 study by the Center for Constitutional Rights. The definition of "material support" is vague, and the definition of a "foreign terrorist organization" is completely up to the discretion of the U.S. State Department.
In a 2010 case, Holder v. Humanitarian Law Project, the Supreme Court ruled that even teaching terrorists to lay down their arms could be considered a form of support. The Humanitarian Law Project, a group of American activists, had wanted to provide human rights and international law classes to rebels in Turkey and Sri Lanka—the Kurdistan Workers' Party (PKK) and the Liberation Tigers of Tamil Eelam, respectively—in order to encourage them to take a more peaceful route.
Because the PKK and the Tamil Tigers were considered terrorists, the Humanitarian Law Project sued the U.S. government for the right to engage with them, arguing that the "material support" ban was unconstitutionally vague. Chief Justice John Roberts responded that any act coordinated with a terrorist group, even a speech act, "frees up other resources within the organization that may be put to violent ends," "helps lend legitimacy to foreign terrorist groups" and strains "the United States' relationships with its allies."
Associate Justice Stephen Breyer, dissenting from the decision, stated that "money given for a charitable purpose might free up other money used to buy arms," but the same principle doesn't apply to "advocacy of political ideas and lawful means of achieving political ends," which "is the kind of activity to which the First Amendment ordinarily offers its strongest protection."
In 2022, the U.S. Treasury even tried to use counterterrorism sanctions to stop American researchers in Lebanon from even listening to designated foreign terrorists speak, arguing that "the provision of a platform for [the sanctioned individuals] to speak" was considered a "service." Threatened with a lawsuit, the Treasury backed down.
The decision of who counts as a terrorist is an arbitrary, political decision that is nearly impossible to challenge in court. The PKK is on the terrorist list, but it has never killed Americans, and American troops fight alongside its Syrian Kurdish allies. The Mojahedin-e Khalq, an Iranian guerrilla organization that has killed Americans, was taken off the terrorist list after U.S. politicians decided they wanted to use it to overthrow Iran's government. The State Department has designated neo-Nazis in Russia as terrorists but refuses to do the same for neo-Nazis in Ukraine. And so on.
Meanwhile, counterterrorism began to be used as a cudgel against animal rights activists. In the late 1980s and early 1990s, the FBI began to raise the alarm about "ecoterrorism," and several states capitalized on those fears to pass "ag-gag" laws making it illegal to film inside farms or laboratories without the owner's consent. When People for Ethical Treatment of Animals managed to film pigs being mistreated at an Iowa farm, the owner described it as "the 9/11 event of animal care."
In 1989, the House Committee on Agriculture considered a federal bill to protect farms and laboratories from protesters—but the Department of Justice testified against it, arguing that the laws on the books were enough to deal with vandalism and threats. In 2006, Congress passed the Animal Enterprise Terrorism Act, which increased penalties for conspiring to commit violence, theft, vandalism, or "intimidation" against facilities with animals.
As for New York's post-9/11 terrorism enhancement, it was first used in 2007 against gangsters who had a gunfight in a church and killed a 10-year-old girl. Rather than fighting religious extremists and political militants, the counterterrorism law was used to throw the book at particularly notorious criminals for a particularly heinous crime. Michael Balboni, one of the authors of the counterterrorism bill, called the antigang prosecution an "unanticipated application" of his law.
New York prosecutors have also used a provision in the law against "terroristic threats" to slap felony charges onto what would normally be misdemeanors "such as aggravated harassment, disorderly conduct, and falsely reporting an incident," Brooklyn Law School professor Louis Jim wrote in 2010. A combination of "prosecutorial discretion, statutory vagueness, and the pressure to prosecute terrorism cases leads to the potential for prosecutorial abuse," he added.
Murder is bad enough. The government should punish murderers, deter serious death threats, and break up conspiracies to kill civilians. Creating a special category for political violence isn't necessary to accomplish these things. What counterterrorism laws do accomplish is allowing politicians to grandstand on public fears—and increase their own power in the process.
