The Codification and Characterization of International versus Domestic Terrorism
After horrific events such as the January 6th, 2021 storming of the Capitol,[1] the Tree of Life Synagogue shooting,[2] or the Charleston church attack carried out by Dylann Roof,[3] some may be shocked to hear that the charges for those involved do not include domestic terrorism despite the political and intimidating nature of the acts. While both domestic and international terrorism are defined in the US code,[4] the government’s approach to prosecuting individuals varies greatly based on the domestic or international nature of the crimes.
In first addressing how the United States defines and prosecutes international terrorism, the US Code defines it as violent acts in violation of US criminal laws that appear to be intended to intimidate civilians, influence policy, or affect governmental conduct that occur outside the United States or transcend borders.[5] The Code then goes on to provide criminal penalties for homicide when a US national is killed outside the United States,[6] and specifically addresses acts of terrorism “transcending national boundaries.”[7] When a defendant is charged with international terrorism, there are clear criminal penalties and extraterritorial jurisdiction addressed within the statute.[8] Importantly, the statute also provides the Attorney General with primary investigatory authority for all federal terrorism crimes.[9]
Domestic terrorism statutes are markedly different from international ones in that despite defining domestic terrorism, they do not actually provide a cause of action with which to prosecute someone.[10] As such, only acts of terrorism with an international nexus are codified as federal crimes.[11] Those who are involved in acts of domestic terror then must be charged with different federal and state criminal violations such as hate crimes or conspiracy to use a weapon of mass destruction.[12]
The Canadian government has recognized the predominant threat posed by white supremacist and nationalist organizations and has gone so far as to brand the Proud Boys as a terrorist entity after the group’s role in the January 6th Capitol attack.[13] This places the organization in the same category as organizations such as al Qaeda and Boko Haram, meaning group members may be subject to asset seizure.[14] Interestingly, though the Proud Boys are largely associated with US nationalism, the organization was founded by a Canadian individual.[15] Additionally, countries such as Germany and the United Kingdom have also taken measures to add domestic terror groups to their organization lists while the United States remains largely unable to do the same,[16] in part due to the significant domestic protections for civil liberties and free speech following abusive intelligence practices carried out covertly by federal organizations in the early 1970s.[17]
There are arguments that the United States should enact a domestic terrorism federal crime in order to increase the federal government’s investigatory ability over domestic extremist organizations.[18] This would allow the Department of Justice to investigate those tied to the domestic terrorist.[19] Additionally, codifying domestic terrorism in a similar vein as international would enable victims to receive compensation for things like attorney’s fees.[20] On the other hand, there are arguments against enhancing the domestic terrorism charges out of fear it would lead to increased surveillance, especially of marginalized communities frequently targeted by federal authorities.[21] Proponents of this argument state that providing for increased prosecutorial power in the name of national security can lay the groundwork for repression.[22] Further, Brennan Center Fellow, Michael German, argues that “nothing prevents the Department [of Justice] from adopting more effective methods to assess the scope of far-right violence, it has simply chosen not to do so.”[23]
While it remains true that domestic terrorists and extremists are charged with serious crimes carrying significant sentences, there still exist two systems of justice for those accused of international terrorism compared with perpetrators of domestic terrorism. While Lakhdar Boumediene was detained in Guantanamo Bay for seven years without formal charges until his landmark Supreme Court decision and subsequent federal court appearance required his release,[24] a woman who actively participated in the Capitol attack has been granted permission to travel to Riviera Maya, Mexico while awaiting trial for two misdemeanor charges.[25]
Zoe Buzinkai is a staff member of Fordham International Law Journal Volume XLIV.
This is a student blog post and in no way represents the views of the Fordham International Law Journal.
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[1] See Julia Jacobo, A visual timeline on how the attack on Capitol Hill unfolded, ABC News (Jan. 10, 2021, 9:01 AM), https://abcnews.go.com/US/visual-timeline-attack-capitol-hill-unfolded/story?id=75112066.
[2] See Emma Green America Has Already Forgotten the Tree of Life Shooting, The Atlantic (Oct. 28, 2019), https://www.theatlantic.com/politics/archive/2019/10/tree-life-and-legacy-pittsburghs-synagogue-attack/600946/.
[3] See Rebecca Hersher, Jury Finds Dylann Roof Guilty in S.C. Church Shooting, NPR (Dec. 15, 2016, 3:33 PM), https://www.npr.org/sections/thetwo-way/2016/12/15/505723552/jury-finds-dylann-roof-guilty-in-s-c-church-shooting.
[4] See 18 U.S.C. §2331
[5] See id. § 2331(1).
[6] See id. § 2332(a)
[7] See id. § 2332b.
[8] See id. §§ 2332b(c)-(e).
[9] See id. § 2332(f).
[10] See Emily B. Tate, Note, “Maybe Someone Dies.”: The Dilemma of Domestic Terrorism and Internet Edge Provider Liability, 60 B.C. L. Rev. 1731, 1739 (2019).
[11] See Brian Pascus, What is “domestic terrorism” and what can the law do about it?, CBS News (Aug. 10, 2019, 8:01 AM), https://www.cbsnews.com/news/what-is-domestic-terrorism-understanding-law-and-fbi-definitions-terrorist-activity-in-the-united-states/.
[12] See id.
[13] See Andy Blatchford, Canada declares Proud Boys a terrorist entity, Politico (Feb. 3, 2021, 4:00 PM), https://www.politico.com/news/2021/02/03/canada-proud-boys-terrorist-entity-465600.
[14] See id.
[15] See id.
[16] See Amy Collins, The Need for a Specific Law Against Domestic Terrorism, George Wash. Program on Extremism 13 (2020).
[17] See Shirin Sinnar, Separate and Unequal: The Law of “Domestic” and “International” Terrorism, 117 Mich. L. Rev. 1333, 1361 (2019).
[18] See Nathan Carpenter, Note, The Ad Hoc Federal Crime of Terrorism: Why Congress Needs to Amend the Statute To Adequately Address Domestic Extremism, 92 St. John’s L. Rev. 393, 395 (2018).
[19] See id. at 406.
[20] See Collins supra note 16, at 20.
[21] See Sinnar, supra note 17, at 1400.
[22] See Sarah Jones, A Domestic Terrorism Law Can’t Solve Right-Wing Violence, N.Y. Magazine: Intelligencer (Jan. 9, 2021), https://nymag.com/intelligencer/2021/01/a-domestic-terrorism-law-cant-solve-right-wing-violence.html.
[23] Michael German, Why New Laws Aren’t Needed to Take Domestic Terrorism More Seriously, Brennan Ctr. For Just. (Dec. 14, 2018), https://www.brennancenter.org/our-work/analysis-opinion/why-new-laws-arent-needed-take-domestic-terrorism-more-seriously.
[24] See Conor Friedersdorf, Innocent and Imprisoned: A Former Gitmo Detainee Speaks Out, The Atlantic (Jan. 10, 2012), https://www.theatlantic.com/politics/archive/2012/01/innocent-and-imprisoned-a-former-gitmo-detainee-speaks-out/251139/ (explaining that Boumediene was accused of conspiring to attack the US Embassy in Bosnia. He was cleared by the Bosnian judicial system and released from prison but was apprehended by US authorities and imprisoned in Guantanamo for seven years until the Supreme Court held that he was entitled to plead his case before a federal judge).
[25] See Bill Chappell, U.S. Judge Grants Accused Rioter’s Request To Vacation In Mexico, NPR (Feb. 6, 2021, 6:39 AM), https://www.npr.org/sections/insurrection-at-the-capitol/2021/02/05/963661854/u-s-judge-xxxx-accused-rioter-s-request-to-vacation-in-mexico.