Perspective: Domestic terrorismWhy a Domestic Terrorism Law Is a Terrible Idea

Published 26 August 2019

There is a big push for the federal criminalization of domestic terrorism. Andrew C. McCarthy writes that the impulse, of course, is understandable but the push is attempting to address a non-problem because “There are no meaningful impediments to federal investigation and prosecution of domestic terrorism.” He adds: “We should never have to wait for foreign powers to attack before taking action to thwart them. With our own citizens, however, the line we draw is the planned or actual use of force. Until that threshold is crossed, anti-government agitation is protected, regardless of how obnoxious it may be.”

There is a big push for the federal criminalization of domestic terrorism. Andrew C. McCarthy write in The Hill that the impulse, of course, is understandable. We have had a spate of mass-shooting attacks. In one of them, a white racist murdered 22 innocent people at a Walmart in El Paso, Texas. He is said to have been animated by what he allegedly called the “Hispanic invasion of Texas.” To date, the assassin has not been tied to any terrorist organization.

Nevertheless, he writes, the attack fits the federal-law definition of domestic terrorism: a violent act intended to (i) intimidate or coerce a civilian population; (ii) influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination or kidnapping.

This brings into sharp relief the seeming anomaly that, although federal law defines domestic terrorism, it does not criminalize it — at least, as such. Thus, there is growing bipartisan momentum to fix this non-problem

It is a non-problem, McCarthy writes, because “There are no meaningful impediments to federal investigation and prosecution of domestic terrorism. Besides seditious conspiracy, there is a broad array of penal statutes covering bombing, firearms, explosives, racketeering and violent gang activity.”

He concludes:

We cannot do … in our own country to our own citizens[what we do with international terrorists] without imperiling [our citizens’] constitutional rights. This is why seditious conspiracy prosecutions can be difficult, and why domestic terrorism prosecutions would be just as difficult.

We should never have to wait for foreign powers to attack before taking action to thwart them. With our own citizens, however, the line we draw is the planned or actual use of force. Until that threshold is crossed, anti-government agitation is protected, regardless of how obnoxious it may be.

Once that threshold is crossed, the federal and state laws we already have are more than adequate to address domestic terrorism. We do not need new ones, and enacting new ones would create constitutional problems without any meaningful security improvement.