Domestic Terrorism: A Necessary Charge or a Discriminatory Overreach?

Disorderly conduct. Trespassing. Assault of a federal officer. Illegal possession of a firearm. These are just a few of the many charges filed against capitol rioters in federal court thus far. However, to anyone who witnessed the violence of January 6th, these charges pale in comparison to the irreparable harm that the seditionists inflicted on the fabric of American democracy. Indeed, many of these charges are instead on the level of what one might expect to see for a petty bar brawl, not an all-out insurrection against the United States government. Notably, one significant charge is missing from the group: domestic terrorism. This absence has nothing to do with the Justice Department’s hesitance to charge those involved with domestic terrorism, as domestic terrorism carries no criminal punishment in the first place. 

Under the PATRIOT Act, domestic terrorism is defined as an act that is “dangerous to human life,” “a violation of the criminal laws of the United States,” and is designed to either “intimidate or coerce a civilian population,” “influence the policy of the government by intimidation” or “affect the conduct of the government by mass destruction, assassination, or kidnapping.” These acts must primarily take place within the jurisdiction of the United States yet hold no criminal penalty. As such, federal agencies have the authority to open investigations into individuals suspected of domestic terrorism. Yet, when it comes time to charge the individuals, they are forced to resort to other existing statutes – such as murder or assault. However, many believe that this discrepancy necessitates a change in federal law that would allow the gravity of domestic terrorism to be reflected in the sentence and charge that a defendant receives. Thus, after the capitol riot, isn’t it high time for a domestic terrorism law that holds those involved accountable?

This is not a new idea; indeed, Rep. Adam Schiff introduced legislation to the Judiciary Committee in 2019 that would apply international terrorism penalties to some domestic terrorism charges. However, the legislation met swift backlash from a number of civil rights groups who believed it was not only unnecessary but, in fact, could deny legitimate political groups their constitutional rights or be used to discriminate against minority populations. These concerns remain today, as groups such as the ACLU worry that under a different administration, the broad wording of the statute could be used to prosecute “groups the government views as having ‘unpopular’ or controversial beliefs.” These concerns, especially those regarding the rights of political groups, are shared by many constitutional scholars. Some contend that if the government were to take the same approach it does with foreign terrorist organizations, and designate specific political groups as terrorist organizations, it would immediately be chased out of court on first amendment grounds. 

While these are certainly important critiques, they fail to take into account the need to distinguish between violent actions that are motivated by personal sentiments and those that seek to use violence to influence governmental policy or structure. With white nationalist groups on the rise, it is urgent to bring charges that reflect the distinct nature of domestic terrorism – an act whose abhorrence goes beyond typical felonies or even hate crimes. Nevertheless, such legislation must be mindful of the country’s troubled history that used similar statutes to target civil rights activists who did not seek the downfall of the government, but rather dignity for all people. 

Therefore, the necessary attachment of a penalty to domestic terrorism must come with significant safety mechanisms to ensure just enforcement. First and foremost, a narrowly tailored definition of the crime itself will mitigate the extraneous prosecution of individuals whose actions should instead fall under the typical criminal code. Such a definition must only use the acts outlined in the PATRIOT Act above as a starting point, and specifically should strive to define the target of the politically motivated violence as civilian. This inclusion will separate domestic terror from any guerrilla type movement that seeks to target the military, and as such its inclusion will only go to legitimize the statute as appropriately focused. Furthermore, such legislation ought to incorporate appropriate civil rights protections – among them transparency in investigation data, oversight of potential charges, limits on investigative powers, fourth amendment assurances, and due process elements. As a result, such legislation will likely look quite different than that used to charge individuals involved in foreign terrorist organizations. However, this plan of action is the only way to assure proper protection of the rights of American citizens while simultaneously sending a message that domestic terrorism is a profound scourge that is unique in its gravity and scope.

Arik Wolk ‘21 studies in the College of Arts & Sciences. He can be reached at arik.wolk@wustl.edu.