Prosecuting Domestic Terrorism as Terrorism

On Monday, Attorney General Jeff Sessions declared that the vehicular attack in Charlottesville, Virginia over the weekend constitutes “domestic terrorism in our statute” and that the Department of Justice will “advance the investigation toward the most serious charges that can be brought.” The flurry of commentary his statement sparked largely describes the “domestic terrorism” tag as symbolically helpful but practically inconsequential because the designation doesn’t constitute an independent crime or trigger heightened penalties.

The US has terrorism statutes designed for and capable of combating domestic militancy motivated by homegrown ideologies such as white supremacy and they are not inconsequential. The problem, however, is that post-9/11, the DoJ all-but abandoned them in cases of militants operating in coordination with, or in service of, domestic terror groups.

Conceptualizing cases like that against the driver of the car that killed Heather Heyer and injured 19 in Charlottesville as an act of domestic terrorism makes other terrorism-related charges such as providing “material support” to terrorists viable tools to investigate and prosecute home-grown militants going forward. This, in turn, re-opens a broad swath of criminal liability for those affiliated with or enabling criminal activity by white supremacist groups like Vanguard America, the entity whose shield the Charlottesville attacker was photographed donning, and other breeding grounds for militantism.

Criminal charges for providing, or attempting or conspiring to provide, material support to terrorists have been at the core of the Justice Department’s approach against international terrorism. These material support charges were, in fact, designed for both domestic and international terrorism, but have been almost entirely forgotten with regards to domestic terrorists.

Charges of “material support” of terrorism flow from two statutory provisions. Most people are more familiar with §2339B, which criminalizes providing support to designated foreign terrorist organizations (FTOs). However, §2339A is, in some ways, broader. It prohibits “providing material support to terrorists” regardless of affiliation, so long as that support is in service of one of dozens of other federal crimes considered terrorist in nature.

Contrary to what is often assumed, the criminalization of providing material support to terrorists wasn’t a post-9/11 phenomenon. Instead, it developed in response to the 1993 World Trade Center bombing and the 1995 Oklahoma City bombing, which took 168 lives and was widely considered the worst terrorist attack in the U.S. before 9/11. In 1994, Congress first passed §2339A and, in 1996, they expanded its scope with the passage of the Antiterrorism and Effective Death Penalty Act, which also added the FTO designation process—and, with it, the separate FTO-related crime proscribed by §2339B.

As it stands, individuals associated with domestic terrorists, unlike their international counterparts, are rarely prosecuted for terrorism-related crimes. For example, the same day Sessions described the vehicular attack in Charlottesville as domestic terrorism, the DoJ announced charges against Jerry Drake Varnell for a truck bomb plot evocative of Timothy McVeigh’s attack on the federal building in Oklahoma City. The criminal complaint identifies Varnell as actively seeking to “develop and arm a small militia group” and a self-described adherent to the ideology of the “Three Percenters,” an “American ‘patriot movement’ that pledges resistance against the United States government. The offense for which Varnell was charged, “malicious attempted destruction of a building used in and affecting interstate commerce by means of an explosive” is one of the dozens set out in §2339A that could theoretically trigger material support liability for those who assisted. While the DoJ complaint alleges Varnell was actively recruiting members and specifically worked on aspects of the bomb plot with at least one friend, he is the only person currently charged. In short, the facts of the case support charges under §2339A, but neither the accused, nor others associated with him, has yet been charged under it.

Far from being overlooked, material support charges once played a prominent role in taking down domestic militant groups. In the 1990s, the federal government used §2339A material support charges to investigate and convict prominent white nationalist leaders of the Southeastern States Alliance and the Mountaineer Militia, among others. Following 9/11, the balance shifted dramatically toward international terrorism. Over the five-year period from January 1, 2012 to January 1, 2017, DoJ filed 45 indictments for material support of terrorists under §2339A. The vast majority charged defendants with attempting or agreeing to provide material support rather than actual commission of the crime. In nearly all of those cases, however, the individual charged came under the scrutiny of law enforcement based on the perception they sympathized, or had declared allegiance to, self-proclaimed Islamist militants abroad.

Only two individuals charged with material support from 2012 to 2017 were accused of acts involving domestic terrorism. The defendants in that case, Glendon Crawford and Eric Feight, faced charges for collaborating with the KKK in an attempt to produce a lethal x-ray gun to use against Muslims. The 2014 criminal complaint attributes quotes to the defendants that lay bare their political ends and intent of “making the mother f*ckers pay,” complaints regarding the “treasonous bedwetting maggot in chief” who had provided Muslims with a privileged position in which “they don’t have to follow any laws” and the press facilitates a cover it up—themes familiar to the “Unite the Right” groups rallying in Charlottesville.

Material support provisions exploit the fact that the more individuals in a group risk criminal liability the more difficult it is for that group to function effectively. As a preventive matter, the increased risk of associating with a group where some members are active in criminal activity discourages membership, as well as mundane business relationships such groups require to survive. The prospect of potential double-agents also compromises the trust necessary to coordinate a group’s more complex operations. After a crime is committed, the more individuals subject to charges the more opportunities are available for prosecutors to leverage potential cooperating witnesses.

A loss of political will may be the best explanation of the DoJ’s abandonment of material support charges against domestic groups. Targeting domestic militant groups creates much more acute political difficulties for governmental agencies than when targeting foreign groups. Past governmental misdeeds or missteps stoke such fears across the political spectrum. Those on the left remember revelations of open-ended FBI surveillance of civil rights and anti-war groups during the 1960s and 1970s as usurping rights to organize and protest. Those on the right view sieges at Ruby Ridge and Waco as affronts to lawful gun ownership.

Before 9/11, the 1995 bombing of the federal building in Oklahoma City was the preeminent terrorist attack upon the nation. In response, law enforcement vowed to demonstrate the political will necessary to robustly confront domestic terror groups. Shortly after the Oklahoma City attack, then FBI Director Louis Freeh told Congress that the Bureau would act against domestic terror groups “broadly and proactively, as opposed to defensively, which has been the case for many, many years.” But even during this period, officials found convictions more difficult to secure than they would in the post-9/11 context. In contrast, of the 176 material support indictments between 2012 and 2017, no defendant was acquitted on all counts.

In March, as the White House attempted to justify its travel ban executive order, the Administration repeatedly asserted that individuals charged with “terrorism-related” offenses were more likely to be foreign citizens. That statement was false.  In fact, American citizens make up the majority of individuals charged with international terrorism-related crimes. Similarly, American citizens are more likely to be victims of violence at the hands of right-wing extremists than foreign terrorists.

Despite this, the DoJ’s counterterrorism strategy over the last three presidential administrations has focused nearly exclusively on individuals with minority heritages and religious beliefs. Domestic terrorism has not been treated as terrorism at all. This is much larger than James Alex Fields, Jr. It may be that federal counterterrorism agents and prosecutors in Charlottesville don’t find facts supporting material support charges. Their presence, however, helps reframe the incident, and those similar, from the reactive investigation of singular past harms to a proactive investigations and prosecutions designed to defuse the systemic danger posed by domestic militant groups as terrorists.

Material support crimes are one of a host of extraordinary legal tools the U.S. has crafted to fight terrorism. Because of their breadth, severity of punishment and vulnerability to misuse, we should be circumspect before endorsing their expanded application. However, we must be wary of foregoing our most draconian law enforcement powers in fighting domestic militant groups and their followers while promoting their use for the refugees, immigrants and racial or religious minorities that are the least politically powerful among us.

This piece comes out of an ongoing project investigating changing traits of material support for terrorism prosecutions. The author is thankful for excellent research assistance performed by Paxson Guest and Missy Wheeler.

Image Credit: Joe Raedle / Getty 

About the Author(s)

Scott Sullivan

Harvey A. Peltier, Sr. Professor of Law at the Louisiana State University Law Center Follow him on Twitter (@smsullivan_).