Lawfare

The Law Should Treat Domestic Terror as the Equivalent of International Terror

There is no federal crime of domestic terrorism with which James Fields can be charged.

CHARLOTTESVILLE, VA - AUGUST 16:  A woman leaves a message in chalk on the street where Heather Heyer was killed and 19 others injured when a car slammed into a crowd of people protesting against a white supremacist rally, August 16, 2017 in Charlottesville, Virginia. Charlottesville will held a memorial service for Heyer Wednesday, four days after she was killed when a participant in a white nationalist, neo-Nazi rally allegedly drove his car into the crowd of people demonstrating against the 'alt-right' gathering.  (Photo by Chip Somodevilla/Getty Images)
CHARLOTTESVILLE, VA - AUGUST 16: A woman leaves a message in chalk on the street where Heather Heyer was killed and 19 others injured when a car slammed into a crowd of people protesting against a white supremacist rally, August 16, 2017 in Charlottesville, Virginia. Charlottesville will held a memorial service for Heyer Wednesday, four days after she was killed when a participant in a white nationalist, neo-Nazi rally allegedly drove his car into the crowd of people demonstrating against the 'alt-right' gathering. (Photo by Chip Somodevilla/Getty Images)

In the last year, it appears that the vehicle has become a new weapon of choice for international terrorists. Whether a cargo truck deliberately driven into the crowds of people celebrating Bastille Day in Nice in July 2016, a tractor-trailer that plowed into a Berlin Christmas market in December 2016, the car and van attacks in London at the Palace of Westminster and London Bridge in March and June of this year, or last Thursday’s van attack in Barcelona, this low-cost, low-planning method of spreading terror has produced high-fatality, high-impact results.

But the use of vehicles as weapons isn’t limited to terrorists acting on behalf of the Islamic State or other Islamist violent extremists. As we saw in Charlottesville on August 12, the vehicle was the most lethal weapon deployed by the white supremacists, neo-Nazis, and Ku Klux Klansmen who descended on the southern but progressive university town, invoking what they characterized as their First Amendment rights to free speech and assembly as a guise to conceal their true purpose of intimidating and coercing not only the citizens of Charlottesville but the entire United States with vows to take back the country — violently if necessary.

Two days later, Attorney General Jeff Sessions correctly labeled the car attack in Charlottesville that left Heather Heyer dead and many others wounded an act of “domestic terrorism.” Federal law defines domestic terrorism as activities dangerous to human life that occur primarily in the United States, violate federal or state criminal laws, and are intended “to intimidate or coerce a civilian population,” “influence the policy of a government by intimidation or coercion,” or “affect the conduct of a government by mass destruction, assassination, or kidnapping.” Based on what we know now about James Alex Fields Jr., the 20-year-old man who allegedly rammed his car into Heyer and others on Saturday, his conduct readily seems to meet the federal definition. The attack, which resulted in Heyer’s death and the injury of many others, was obviously dangerous to human life and certainly in violation of state criminal statutes. More importantly, given the apparent purpose of Fields’s travel to Charlottesville to participate in the “Unite the Right” white supremacist rally, it seems reasonably clear that his intent was “to intimidate and coerce a civilian population.”

But while the attorney general’s labeling of the attack as domestic terrorism was important — and stands in stark contrast to President Donald Trump’s reluctance to use the terrorist label when referring to Fields and even more worrisome persistent moral ambivalence between the protesters on the right preaching and indeed using violence and the counter-protesters on the left speaking out against them — it does not change the fact that there is no federal crime of domestic terrorism with which Fields can be charged.

Federal law would allow the United States to charge the terrorists who used their vehicles to kill and injure scores of people in Britain, France, Germany, and Spain with terrorism offenses if committed in support of a foreign terrorist organization like the Islamic State — even though these acts occurred outside of U.S. territory — but it does not provide for a terrorism charge against Fields for the same type of terrorist activity occurring right here in the heart of the United States. It is time that our federal criminal laws recognize domestic terrorism for what it is: the moral equivalent of international terrorism.

To be clear, it is not that there are inadequate criminal statutes on the books to ensure that Fields can be prosecuted appropriately and, if convicted, serve a lengthy time in prison for his heinous crime. He is currently charged in Virginia state court with second-degree murder, aggravated malicious wounding, malicious wounding, and other offenses for which, if convicted, he could face up to life imprisonment. Like other domestic terrorists before him, state law can ensure just punishment for crimes like these. Scott Roeder, an anti-abortion extremist who in 2008 shot and killed an abortion provider in a church in Wichita, Kansas, was convicted of first-degree murder in state court and sentenced to life imprisonment. Jim David Adkisson, who in 2009 killed two people and wounded seven others during a shooting rampage at a church in Knoxville, Tennessee, motivated by hatred of liberals and Democrats, pleaded guilty to state murder charges and received a life sentence without possibility of parole. There also are federal hate crimes with which Fields may be charged after the Justice Department completes the civil rights investigation announced by the attorney general last week. These have been effective in cases such as that of Dylann Roof, who was convicted of 33 counts of federal hate crimes and sentenced to death for slaughtering nine black parishioners at a Charleston, South Carolina, church in 2015. 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 Islamic State-inspired terrorists who engage in violence in pursuit of their equally insidious goals

It is of course true that, because of what would be a more complicated interaction with the First Amendment’s protection of the rights to free speech and assembly, the United States does not designate domestic organizations such as the Ku Klux Klan as terrorist organizations in the way that it designates foreign organizations such as the Islamic State as terrorist organizations. The U.S. Constitution guarantees the right to free expression of opinions, including banding together with others of similar views, even if those views are offensive to the majority of the population. That right, as interpreted, has been understood by some as a barrier to the enactment of the domestic equivalent to the most commonly used international terrorism charge: Providing material support to a foreign terrorist organization. But this does not mean that the federal government cannot criminalize acts of violence that are committed for the purposes enumerated in the federal definition of domestic terrorism (which, by the way, are identical to the purposes enumerated in the federal definition of international terrorism): “to intimidate or coerce a civilian population,” “influence the policy of a government by intimidation or coercion,” or “affect the conduct of a government by mass destruction, assassination, or kidnapping.” It is well established that violent acts done with any of these purposes are not protected by the First Amendment — they are not speech but, instead, violent acts. A federal crime of domestic terrorism would put crimes such as those allegedly committed by James Fields on the same moral plane as those committed by the attackers in Britain, France, Germany, and Spain, just as they deserve to be.

Photo credit: CHIP SOMODEVILLA/Getty Images

Mary B. McCord is a visiting professor of law at Georgetown University Law School and is the former acting assistant attorney general and principal deputy assistant attorney general for national security at the U.S. Department of Justice.

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