Domestic terrorism and how it is disregarded and neglected in the judicial system in comparison to international terrorism.
Tjae
FederalLawsInconsistentTreatmentofDomesticandInternationalTerrorism.pdf
711
One of These Things is Not Like the Other: Federal Law’s
Inconsistent Treatment of Domestic and International
Terrorism
Katie Dilts*
TABLE OF CONTENTS
I. INTRODUCTION ................................................................................................ 712
II. DEVELOPMENT OF FEDERAL TERRORISM LAWS ........................................... 714 A. FISA and the Federal Courts Administration Act of 1992 ................ 715 B. September 11, 2001 and the USA Patriot Act .................................... 716
III. WHY IS TERRORISM LEGISLATION REFORM NECESSARY? .......................... 718 A. Social Dimensions ............................................................................ 719
1. Confusion Following Attacks ..................................................... 720 2. Media Coverage and the Social Conception of Terrorism ........ 721
B. Legal Dimensions............................................................................. 722 1. Justice Manual ........................................................................... 723 2. Equal Treatment in Federal Law ............................................... 724
i. Criminal Context ................................................................. 724 ii. Civil Context ........................................................................ 726
IV. INCONSISTENT TREATMENT OF INTERNATIONAL AND DOMESTIC
TERRORISM .............................................................................................. 727 A. Civil Cause of Action ....................................................................... 727
1. Boyd v. City of Oceanside Police Dep’t ..................................... 729 2. Archer v. City of Taft .................................................................. 729
B. Protection in Bankruptcy Proceedings ............................................ 730 C. The Federal Crime of Terrorism...................................................... 730
1. Offenses Based on Intended Target............................................ 732 2. Offenses Based on Instrumentality ............................................. 733
* J.D. Candidate, University of the Pacific, McGeorge School of Law, to be conferred May 2019; B.A.,
Psychology, Ramapo College of New Jersey, 2008. Special thanks to my faculty advisor, Professor Stephen Cody,
as well as Professors Jean Hobler, Cary Bricker, Omar Dajani, and Daniel Croxall, who each offered invaluable
insight and guidance throughout this process. I would also like to thank my family and friends for their continuous
and unwavering support.
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V. CONCLUSION ................................................................................................. 734
I. INTRODUCTION
“You rape our women, and you’re taking over our country. And you have to
go.”1 Dylann Roof offered this explanation to his pleading victims as he opened
fire on a bible study meeting at the Mother Emanuel African Methodist Episcopal
Church (“AME”) in Charleston, South Carolina.2 Roof killed nine African
American churchgoers in the 2015 attack.3 He openly admitted that he had
intended to start a race war,4 and felt the attack was his responsibility because “no
one else was brave enough.”5 With plans to shoot himself, he intentionally left one
woman alive so she could “tell the story.”6
The incident reignited an ongoing conversation about domestic terrorism in
the United States.7 The FBI’s website describes domestic terrorism generally as
“[p]erpetrated by individuals . . . with primarily U.S.-based movements that
espouse extremist ideologies of a political, religious, social, racial, or
environmental nature.”8 Federal law is slightly more specific, defining domestic
terrorism in the Patriot Act as acts, “dangerous to human life that violate federal
or state law” that “appear to be intended i) to intimidate or coerce a civilian
population;” or “ii) to influence the policy of a government by intimidation or
coercion.”9
Roof’s actions and the racist ideology that animated them easily fit that
description—Loretta Lynch, former United States Attorney General, stated,
1. Erik Ortiz & F. Brinley Bruton, Charleston Church Shooting: Suspect Dylann Roof Captured in North
Carolina, NBC NEWS (June 18, 2015), https://www.nbcnews.com/storyline/charleston-church-shooting/charlest
on-church-shooting-suspect-dylann-roof-captured-north-carolina-n377546 (on file with The University of the
Pacific Law Review).
2. Id.
3. Timothy M. Phelps, Dylann Roof Indicted on Federal Hate-Crime Charges in Charleston Church
Shooting, L.A. TIMES (July 22, 2015), http://www.latimes.com/nation/la-na-roof-hate-crimes-20150722-
story.html (on file with The University of the Pacific Law Review).
4. Id.
5. Rebecca Hersher, Jury Finds Dylann Roof Guilty in S.C. Church Shooting, NPR (Dec. 15, 2016),
https://www.npr.org/sections/thetwo-way/2016/12/15/505723552/jury-finds-dylann-roof-guilty-in-s-c-church-
shooting (on file with The University of the Pacific Law Review).
6. Id.
7. Anthea Butler, Shooters of Color are Called ‘Terrorists’ and ‘Thugs.’ Why are White Shooters Called
‘Mentally Ill’?, WASH. POST (June 18, 2015), https://www.washingtonpost.com/posteverything/wp/2015/06/18/
call-the-charleston-church-shooting-what-it-is-terrorism (on file with The University of the Pacific Law Review);
Rick Gladstone, Many Ask, Why Not Call Church Shooting Terrorism?, N.Y. TIMES (June 18, 2005),
https://www.nytimes.com/2015/06/19/us/charleston-shooting-terrorism-or-hate-crime.html (on file with The
University of the Pacific Law Review).
8. Terrorism, FBI, https://www.fbi.gov/investigate/terrorism (last visited Mar. 31, 2018) (on file with The
University of the Pacific Law Review).
9. 18 U.S.C.A. § 2331(5) (West 2018).
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“[r]acially motivated violence such as this is the original domestic terrorism.” 10
Delivering slain Pastor Clementa Pinckney’s eulogy, President Barack Obama
described the attack as, “an act that drew on a long history of bombs and arson and
shots fired at churches, not random[ly], but as a means of control, a way to terrorize
and oppress.”11 Senator Lindsay Graham echoed that “it wasn’t a random act of
violence either. It is domestic terrorism.”12 The Justice Department’s statement that
they were looking into the crime “from all angles, . . . including as an act of
domestic terrorism” further nurtured expectations that a domestic terrorism charge
was possible, if not likely.13
Prosecutors eventually pursued 33 federal and 13 state charges against Roof.14
None of those charges related to terrorism in any way,15 sparking public outrage
and a petition to charge Roof “as a Domestic Terrorist.”16 However, prosecutors
faced a substantial hurdle in pursuing that charge even if they had wanted:
domestic terrorism is not a federal crime.17
Federal law provides the domestic terrorism definition referenced above, but
falls short of attaching criminal penalties to those acts.18 The determination that an
act was domestic terrorism is legally relevant only to the extent the definition has
been incorporated in another statute; for example, this designation impacts civil
liabilities for individuals who come forward with information.19
Domestic terrorism’s threat in the United States is undeniable and recognized
at the highest levels of law enforcement.20 Nevertheless, the lack of a domestic
10. Catherine E. Shoichet & Evan Perez, Dylann Roof Faces Hate Crime Charges in Charleston Shooting,
CNN (July 22, 2015), https://www.cnn.com/2015/07/22/us/charleston-shooting-hate-crime-charges/index.html
(on file with The University of the Pacific Law Review).
11. Press Release, White House, Office of the Press Secretary, Remarks by the President in Eulogy for the
Honorable Reverend Clementa Pinckney (June 26, 2015), https://obamawhitehouse.archives.gov/the-press-
office/2015/06/26/remarks-president-eulogy-honorable-reverend-clementa-pinckney (on file with The University
of the Pacific Law Review).
12. Phillip Martin, Defining Domestic Terrorism Part Three: Conservative Politicians Downplay Threat
From the Far Right, HUFFINGTON POST: THE BLOG (Jan. 3, 2016), https://www.huffingtonpost.com/phillip-
martin/right-wing-terrorism_b_8907358.html (on file with The University of the Pacific Law Review).
13. Ralph Ellis et al., Charleston Church Shooter Hears Victim’s Kin Say, ‘I Forgive You’, CNN (June 19,
2015), https://www.cnn.com/2015/06/19/us/charleston-church-shooting-main/index.html (on file with The
University of the Pacific Law Review).
14. Phelps, supra note 3; Soichet & Perez, supra note 10.
15. Phelps, supra note 3; Soichet & Perez, supra note 10.
16. KaTeysha Anderson, Petition: Charge Charleston, SC Murderer Dylann Roof as a Domestic Terrorist,
CHANGE.ORG, https://www.change.org/p/united-states-department-of-homeland-security-barack-obama-charge-
dylann-roof-as-a-domestic-terrorist (last visited Mar. 31, 2018) (on file with The University of the Pacific Law
Review).
17. Phelps, supra note 3.
18. See 18 U.S.C.A. § 2332b(g)(5) (enumerating offenses that could be considered a crime of terrorism if
committed with the specified intent). This list includes § 2332b (“acts of terrorism transcending national
boundaries”), but not § 2331(5) (“domestic terrorism”).
19. See 6 U.S.C.A. § 1104 (West 2018) (incorporating the Patriot Act’s definition of domestic terrorism).
20. Christopher Wray, FBI Director, Statement Before the House Homeland Security Committee, Keeping
America Secure in the New Age of Terror, FBI (Nov. 30, 2017), https://www.fbi.gov/news/testimony/keeping-
2019 / Federal Law’s Inconsistent Treatment of Domestic and International Terrorism
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terrorism charge is only one way in which the federal government fails to treat
international and domestic terrorism as equally dangerous and repugnant.21
Currently, a victim of international terrorism may bring a civil action against those
responsible, with federal law prescribing the monetary damages those victims are
to receive.22 Victims of domestic terrorism, however, are not permitted to bring a
similar action in federal court, leaving them without a remedy available to
international terror victims.23 This unequal treatment can also be seen in federal
crimes that carry higher penalties if the actor intended to commit or facilitate
international terrorism, but not if the actor intended to commit or facilitate
domestic terrorism.24
To correct these deficiencies, this Comment urges three specific alterations to
federal law: (1) Congress should create a civil cause of action for domestic terror
victims;25 (2) Congress should add domestic terrorism to the “federal crime of
terrorism” as enumerated in § 2332b(g)(5);26 and (3) Congress should expand the
list of substantive crimes comprising the “federal crime of terrorism” to more
accurately reflect the ways in which domestic terrorism is carried out in the United
States.27
This Comment begins by providing a brief history of how terrorism law has
developed in the United States.28 It then examines the social and legal
considerations that support domestic terrorism legislation reform. 29 Finally, it
explores the specific ways in which federal law treats international and domestic
terrorism differently and propose the changes mentioned above.30
II. DEVELOPMENT OF FEDERAL TERRORISM LAWS
Domestic terrorism was not defined in a federal statute until the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001 (USA PATRIOT Act), commonly known as the
america-secure-in-the-new-age-of-terror (on file with The University of the Pacific Law Review) (“In addition to
foreign terrorist organizations, domestic extremist movements collectively pose a steady threat of violence and
economic harm to the United States . . . We anticipate law enforcement, racial minorities, and the U.S.
government will continue to be significant targets for many domestic extremist movements.”).
21. See infra Part IV.
22. 18 U.S.C.A. § 2333(a) (West 2018).
23. See infra Part IV.A.
24. See 18 U.S.C.A. §§ 1001(a), 1028(b)(4), 1505 (West 2018) (imposing higher criminal penalties if the
offense was committed in relation to an act of domestic or international terrorism).
25. Infra Part IV.A.
26. Infra Part IV.C.
27. Infra Part IV.C.
28. Infra Part II.
29. Infra Part III.
30. Infra Part IV.
The University of the Pacific Law Review / Vol. 50
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“Patriot Act.”31 However, its linguistic roots can be traced to earlier general
statutory definitions of terrorism.32
A. FISA and the Federal Courts Administration Act of 1992
The first federal statute to define terrorism was the Foreign Intelligence
Surveillance Act (FISA), passed in 1978.33 FISA was enacted amid concerns about
the executive branch’s surveillance capabilities.34 FISA permitted the President to
authorize warrantless wiretapping to acquire foreign intelligence information and
created secret courts to provide oversight without compromising security
interests.35 The Supreme Court had previously held that the Fourth Amendment
requires a warrant be issued before the government may wiretap a domestic
threat,36 but was silent regarding foreign threats. Accordingly, Congress expressly
limited FISA surveillance to foreign powers and their agents.37 FISA did not
establish international terrorism as an independent crime.38
While FISA differentiated between types of terrorism, it did so not by
providing multiple classifications, but by defining only international terrorism. 39 It
described international terrorism as activities involving “violent acts or acts
dangerous to human life that are a violation of the criminal laws of the United
States” which appear 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 assassination or kidnapping.”40 FISA’s requirement
that the act “occur totally outside the United States, or transcend national
boundaries,” functionally excluded domestic terrorism from ever coming within
its scope.41
The words “transcending national boundaries” would later become integral to
many prosecutions under statutes incorporating this definition, but did not appear
in the early drafts of the bill.42 The Legislature borrowed that language from
Executive Order 12036, in which President Jimmy Carter put forth a similar but
31. USA Patriot Act of 2001, H.R. 3162, 107th Cong. (Oct. 23, 2001).
32. See Nicholas J. Perry, Comment, The Numerous Federal Legal Definitions of Terrorism: The Problem
of Too Many Grails, 30 J. LEGIS. 249 (2005) (reviewing the evolution of language in terrorism legislation).
33. Foreign Intelligence Surveillance Act of 1978, Pub. L. No 95-511, 92 Stat. 1783.
34. Nick Harper, Comment, FISA’s Fuzzy Line Between Domestic and International Terrorism, 81 U. CHI.
L. REV. 1123, 1128 (2014).
35. Foreign Intelligence Surveillance Act of 1978, Pub. L. No 95-511, § 102, 92 Stat. 1783.
36. U.S. v. U.S. Dist. Ct., 407 U.S. 297, 320 (1972).
37. Foreign Intelligence Surveillance Act of 1978, Pub. L. No 95-511, § 102, 92 Stat. 1783.
38. Id.
39. Foreign Intelligence Surveillance Act of 1978, Pub. L. No 95-511, § 101, 92 Stat. 1783.
40. Id.
41. Id.
42. Harper, supra note 34.
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716
more expansive definition of international terrorism.43 Originally, FISA
considered a terrorist act to be international if it was perpetrated for or on behalf
of a foreign power.44 This led to concerns that surveillance could be permitted
against some domestic groups—for example, the Communist Party—on the
allegation that they were “acting for or on behalf of a foreign power in some
abstract sense.”45 Disagreement persisted, with the House preferring the Executive
Order language and the Senate preferring the original. 46 The House eventually
prevailed.47
Fifteen years later, the Federal Courts Administration Act of 1992 (FCAA)
created a civil cause of action for victims of international terrorism.48 Though this
act added international terrorism to Title 18 of the United States Code, which
contains federal crimes and criminal procedure matters, it was relegated to the
“Definitions” section and did not establish any new penalties or crimes.49 The
definition is identical to the language used in FISA, with the exception that the
internationality threshold was reduced from acts “totally occurring outside the
United States” to acts occurring “primarily outside the United States.”50
B. September 11, 2001 and the USA Patriot Act
On a Tuesday morning in September 2001, Al Qaeda operatives hijacked four
commercial airliners and forever changed the way we view and respond to
terrorism in the United States.51 Two planes crashed directly into the World Trade
Center towers, causing the 110-story buildings to collapse; one collided with the
Pentagon and the last went down in a Pennsylvania field, avoiding additional
fatalities thanks to its heroic passengers.52 These unprecedented, coordinated
attacks took nearly 3,000 American lives and injured thousands more. 53 The loss
of life was staggering and the questions loomed—how did this happen, and how
do we keep it from happening again?54
43. Id.
44. Id.
45. Id. at n. 72.
46. Id. at 1136.
47. Id.
48. Federal Courts Administration Act of 1992, Pub. L. No. 102-572, § 1003, 106 Stat. 4506.
49. 18 U.S.C.A. § 2331(1) (West 2018).
50. Id. § 2331(1)(C) (emphasis added).
51. September 11th Terror Attacks Fast Facts, CNN (Aug. 24, 2017), https://www.cnn.com/2013/07/2
7/us/september-11-anniversary-fast-facts/index.html (on file with The University of the Pacific Law Review).
52. Id.
53. Id.
54. See Blaine Harden, Physical and Psychological Paralysis of Nation, N.Y. TIMES (Sept. 12, 2001),
http://www.nytimes.com/2001/09/12/us/a-day-of-terror-vulnerability-physical-and-psychological-paralysis-of-
nation.html (on file with The University of the Pacific Law Review) (discussing the emotional aftermath of the
The University of the Pacific Law Review / Vol. 50
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Prevention became the government’s top priority, with Senator Orrin Hatch
stating “redeeming and rectifying this situation is the responsibility of Congress,
the Justice Department, the FBI, the INS, and the Border Patrol.” 55 Senator John
Kyl echoed the sentiment that Congress had “a responsibility to the people of this
nation to ensure that those who are charged with protecting us from future terrorist
attacks are empowered to do so.”56
The pressure to take action was high and the legislative response was swift. 57
On September 18, 2001, just one week after the attacks, a resolution allowing the
President to “use all necessary and appropriate force” against those responsible for
the attacks passed both houses of Congress,58 with California Representative
Barbara Lee casting the only opposing vote.59 Though Lee merely intended to
convey the need to “step back and think” before granting the President sole
discretion to use such force,60 many viewed Lee’s disapproval as soft on terrorism,
resulting in death threats following the vote.61
The government believed that FISA’s domestic surveillance restrictions were
partially to blame for the intelligence gaps that caused the FBI’s failure to prevent
the attacks.62 Attorney General John Ashcroft immediately directed the
Department of Justice to begin working on a legislative package to provide “all
that is necessary for law enforcement, within the bounds of the Constitution, to
discharge the obligation to fight this war against terror.”63
The Patriot Act was introduced six weeks after the attacks.64 It was largely a
compilation of previously discussed bills and measures, hastily assembled to create
as comprehensive a legislative package as possible.65 In just three days, it passed
the House and Senate, was signed by President Bush, and became law on October
26.66 This expedited process is more remarkable in light of the Patriot Act’s sheer
size and breath—the bill spanned over 340 pages, which the most dedicated
September 11 attacks).
55. Kyle Welch, The Patriot Act and Crisis Legislation: The Unintended Consequences of Disaster
Lawmaking, 43 CAP. U. L. REV. 481, 506 n.191 (2015).
56. Id.
57. Id. at 505.
58. Authorization for Use of Military Force, Pub. L. No. 107-40, § 2, 115 Stat. 224 (codified as amended
at 50 U.S.C.A. § 1541 (2001)).
59. Peter Carlson, The Solitary Vote of Barbara Lee: Congresswoman Against Use of Force, WASH. POST
(Sept. 19, 2001), https://www.washingtonpost.com/archive/lifestyle/2001/09/19/the-solitary-vote-of-barbara-
lee/fb86aee7-3cc5-4cbd-98f1-e2650e545f42 (on file with The University of the Pacific Law Review).
60. Id.
61. Id.
62. Robert O’Harrow Jr., Six Weeks in Autumn, WASH. POST (Oct. 27, 2002), http://www.washingtonpost.
com/wp-dyn/content/article/2006/05/09/AR2006050900961.html (on file with The University of the Pacific Law
Review).
63. Id.
64. USA Patriot Act of 2001, H.R. 3162, 107th Cong. (Oct. 23, 2001).
65. See Welch, supra note 55 (providing a detailed analysis of the Patriot Act’s passing).
66. O’Harrow supra note 62.
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718
lawmaker would struggle to fully process in the short amount of time available.67
In addition to creating new laws, it also extensively amended existing ones, making
it impossible to read through without researching and comparing the individual
statutes being changed.68
One such change was to expand 18 U.S.C.A. § 2331—which already defined
international terrorism—to also define domestic terrorism.69 The Patriot Act
directly copied the language defining international terrorism, making only two
changes: (1) including acts intended to affect a government through “mass
destruction”70 (the previous version only covered assassination or kidnapping); and
(2) specifying that the acts “occur primarily within the territorial jurisdiction of the
United States” (as opposed to primarily outside).71 This formulation remains
unaltered today72 and is the only current federal statutory definition of domestic
terrorism.
The terrorism definitions in § 2331 are the most significant in federal law,
incorporated in a wide range of other statutes—for example, a determination that
an act meets a § 2331 definition of terrorism can lead to a reward for information
leading to an arrest,73 civil immunity for reporting suspicious activity,74 or
disclosure of tax returns.75 Despite both definitions’ wide application, there
remains an important distinction between the way federal law views international
and domestic terrorism—Section 2332b of the criminal code, which outlines
penalties for terrorist crimes, enumerates the offenses included within the “federal
crime of terrorism.”76 This enumeration specifically includes the statute defining
international terrorism, but omits its domestic counterpart.77
III. WHY IS TERRORISM LEGISLATION REFORM NECESSARY?
Even though he was not charged with domestic terrorism, Dylann Roof was
sentenced to death for federal hate crimes and nine consecutive life sentences for
state charges.78 Roof’s sentence raises the question: if we can already adequately
67. Welch, supra note 55.
68. USA Patriot Act of 2001, H.R. 3162, 107th Cong. (Oct. 23, 2001).
69. 18 U.S.C.A. § 2331(5) (West 2018).
70. Id. § 2331(5)(B)(3).
71. Id. § 2331(5)(C).
72. Id. § 2331(5).
73. Id. § 3077(1).
74. Id. § 44941(a).
75. 26 U.S.C.A. § 6103(i) (West 2018).
76. 18 U.S.C.A. § 2332b (West 2018).
77. Id. § 2332b.
78. Associated Press, Dylann Roof: Charleston Church Shooter Gets Nine Life Sentences in State Case,
NBC NEWS (Apr. 10, 2017), https://www.nbcnews.com/news/us-news/dylann-roof-charleston-church-shooter-
pleads-guilty-state-charges-n744746 (on file with The University of the Pacific Law Review).
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punish actors, why do we need to be able to charge them with domestic terrorism
as well?79
At the same time, the language defining domestic terrorism in the Patriot Act
has been sharply criticized as problematic for criminal application due to its vague,
subjective, and over-inclusive language.80 The critique is likely not without merit,
as the Patriot Act was passed remarkably quickly, without providing adequate time
to debate the wording of individual provisions.81 Of the state domestic terrorism
statutes that mirror the Patriot Act’s language, several contain alterations that
appear directly responsive to these concerns.82 The specific changes that would be
needed to make criminal application of the Patriot Act’s domestic terrorism
definition more effective on the federal level, while beyond the scope of this
Comment, will be a necessary part of any meaningful reform.83 That said, the need
to treat international and domestic terrorism equally under federal law is supported
by social and legal considerations reaching far beyond any individual fear or
outcome.84
A. Social Dimensions
Criminal statutes serve an important expressive purpose in communicating a
society’s values.85 “Journalists and academics have long criticized the
government” for its focus on international terrorism, claiming it has neglected to
recognize the threat of terrorism from domestic actors such as anti-abortion
activists and white supremacists.86 Federal prosecutors’ inability to accurately
describe a defendant’s actions and charge them accordingly contributes to the
pervasive confusion and debate following incidents of domestic terrorism and the
social perception that only certain types of actors are terrorists.87
79. Id.
80. How the Patriot Act Redefines “Domestic Terrorism”, ACLU, https://www.aclu.org/other/how-usa-
patriot-act-redefines-domestic-terrorism (last visited Sept. 5, 2017) (on file with The University of the Pacific
Law Review); Karen J. Greenberg, A Domestic Terrorism Statute is Federal Overreach, Not Justice, NBC NEWS
(Oct. 28, 2017), https://www.nbcnews.com/think/opinion/domestic-terrorism-statute-federal-overreach-not-
justice-ncna814826 (on file with The University of the Pacific Law Review).
81. Supra Part II.B.
82. N.Y. PENAL LAW § 490.05 (McKinney 2004); N.J. STAT. ANN. § 2C:38-2 (West 2002); OHIO REV.
CODE ANN. § 2909.21 (West 2012).
83. ACLU, supra note 80; Greenberg, supra note 80.
84. Infra Parts III.A–B.
85. See Dan Kahan, The Secret Ambition of Deterrence, 113 HARV. L. REV. 414 (1999) (examining the
“expressive” function of law).
86. Jesse J. Norris, Comment, Why Dylann Roof Is a Terrorist Under Federal Law, and Why It Matters,
54 HARV. J. ON LEGIS. 259, 269 (2017).
87. Infra Parts III.A.1–2.
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1. Confusion Following Attacks
Public officials generally use the term “terrorism” subjectively and without
pointing to a clear definition, frequently rendering it a term of propaganda.88
“You’d be hard pressed to find any two law enforcement officials, law enforcement
entities, any two policymakers, any two journalists who are going to define
terrorism the same way . . . That’s the problem.”89 Inconsistent use of the word
terrorism contributes to, if not directly causes, the confusion common in the days
following violent incidents.90 This was evident after the October 2017 mass
shooting in Las Vegas.91
The night of October 1, 2017, country music star Jason Aldean took the stage
at an outdoor music festival on the Las Vegas strip.92 Over 22,000 people attended
the three-day event.93 Around 10:00 p.m., James Paddock, a man with “with no
real criminal history and no known affiliations with terror groups,” opened fire
from the 32nd floor of the hotel hosting the event.94 He brought 23 firearms with
him, including an AK-47 and other guns with “calibers ranging from .223 to
.308.”95 Paddock shot and killed 59 people (including himself) and injuring
hundreds more.96
After the attack, Clark County Sheriff Joe Lombardo was asked if the incident
was being considered an act of domestic terrorism.97 He replied, “No, not at this
point, we believe it is a local individual, he resides here locally. We don’t know
what his belief system was at this time.” 98 This was perplexing to many because
Nevada law, in contrast to federal law, makes no reference to any ideological
88. Laura Yuen, Use of ‘Terrorism’ Label Depends on Questions of Rhetoric, Law, MPR NEWS (Aug. 15,
2017), https://www.mprnews.org/story/2017/08/15/use-of-terrorism-label-depends-on-questions-of-rhetoric-law
(on file with The University of the Pacific Law Review).
89. Id.
90. Glenn Greenwald, Manipulative Use of the Term ‘Terrorism’, SALON: RADIO (Mar. 14, 2010),
https://www.salon.com/2010/03/14/terrorism_20/ (on file with The University of the Pacific Law Review).
91. See Lynh Bui et al., At Least 59 Killed in Las Vegas Shooting Rampage, More than 500 Others Injured,
WASH. POST (Oct. 2, 2017), https://www.washingtonpost.com/news/morning-mix/wp/2017/10/02/police-shut-
down-part-of-las-vegas-strip-due-to-shooting (on file with The University of the Pacific Law Review) (describing
the attack).
92. Id.
93. Id.
94. Id.
95. Id.
96. Id.
97. Tom Batchelor, Nevada State Law Defines Las Vegas Mass Shooting as an Act of Terrorism,
INDEPENDENT (Oct. 2, 2017), https://www.independent.co.uk/news/world/americas/las-vegas-shooting-nevada-
terrorism-state-law-act-police-stephen-paddock-a7978456.html (on file with The University of the Pacific Law
Review).
98. Id.
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component in its definition of an act of terrorism.99 It requires only that an act of
“sabotage, coercion, or violence” be intended to “cause great bodily harm or death
to the general population” or to destroy or impair buildings, infrastructure,
communications, or services.100
Neither the federal nor Nevada law defining domestic terrorism include any
indication that someone’s status as a terrorist would depend on whether they were
a local resident.101 Lombardo’s response, therefore, could not have been based in
those statutes.102 As one commentator observed, “This is thinly veiled code for
‘the shooter was a white man’ . . . Stephen Paddock was obviously a terrorist. But
because he’s white, we don’t call him that.”103
2. Media Coverage and the Social Conception of Terrorism
The infamous September 11 attacks were a turning point in the way American
media handles terrorism, and “this post-September 11 landscape of discourse about
terror was more polarized and less nuanced than it had been before.”104
Following the attacks of September 11, 2001, attention and resources were
focused almost exclusively towards preventing extremist Islamic attacks on the
United States.105 In the years since, however, domestic far-right violence has been
responsible for 109 deaths in 62 separate incidents, while radical Islam accounts
for slightly more deaths (119) across fewer incidents (23).106 Of the deaths
attributable to radical Islamic extremism, 41 percent occurred in a single attack at
a Florida nightclub in 2016.107 Despite the two groups being responsible for
relatively the same number of deaths, Americans retain a racially influenced
perception of who terrorists are.108
This perception is strongly influenced by the deep disparity in the way United
States media portrays subjects based on race.109 Those of Middle Eastern descent
99. NEV. REV. STAT. ANN. § 202.4415 (West 2018).
100. NEV. REV. STAT. ANN. § 202.4415 (West 2018).
101. NEV. REV. STAT. ANN. § 202.4415 (West 2018); 18 U.S.C.A. § 2331 (West 2018).
102. Tom Batchelor, Nevada State Law Defines Las Vegas Mass Shooting as an Act of Terrori sm,
INDEPENDENT (Oct. 2, 2017), https://www.independent.co.uk/news/world/americas/las-vegas-shooting-nevada-
terrorism-state-law-act-police-stephen-paddock-a7978456.html (on file with The University of the Pacific Law
Review).
103. Jack Moore, The Las Vegas Shooting is Terrorism, GQ (Oct. 2, 2017), https://www.gq.com/story/las-
vegas-shooting-terrorism (on file with The University of the Pacific Law Review).
104. RUTH DEFOSTER, TERRORIZING THE MASSES: IDENTITY, MASS SHOOTINGS, AND THE MEDIA
CONSTRUCTION OF TERROR 35 (2017).
105. Id.
106. U.S. GOV’T ACCOUNTABILITY OFF., REPORT TO CONGRESSIONAL REQUESTERS, COUNTERING
VIOLENT EXTREMISM: ACTIONS NEEDED TO DEFINE STRATEGY AND ASSESS PROGRESS OF FEDERAL EFFORTS 3
(Apr. 2017).
107. Id.
108. DEFOSTER, supra note 104.
109. Id.
2019 / Federal Law’s Inconsistent Treatment of Domestic and International Terrorism
722
are far more likely to be identified as terrorists in media coverage than white actors,
often as a direct result of sensationalism and fear.110 One study found that attacks
by Islamic perpetrators receive 449% more media coverage on average.111
Former FBI agent Mike German explained that law enforcement’s use of the
term “terrorism” in some instances but not others creates a two-tiered system of
justice in which minority communities feel less protected.112 That feeling is
validated by an FBI hate crime report showing that attacks against Muslim victims
rose 67 percent from 2014 to 2015.113
Reforming federal terrorism legislation to include criminal penalties for acts
of domestic terrorism could begin to alleviate issues.114 Having a federal crime of
domestic terrorism would be a powerful step in combating the “[m]edia discourse
reproducing simplified pre-existing anti-Muslim anxieties.”115 It would also reduce
the amount of confusion and debate following attacks by creating a clear standard
that public officials could refer to, and more accurately reflect the relative severity
and likelihood of domestic and international terrorism.116
B. Legal Dimensions
Beyond the social consequences of failing to equate international and domestic
terrorism, purely legal considerations also support reform.117 Domestic terrorism’s
unavailability as a criminal charge contradicts the policy considerations
prosecutors are instructed to consult when selecting charges.118 Additionally, the
few scenarios in which domestic and international are already treated the same in
federal law demonstrate their fundamentally similar nature, making it more
difficult to justify the current disparate treatment.119
110. Id.
111. Benjamin Kentish, Terror Attacks Receive Five Times More Media Coverage if Perpetrator is Muslim
Study Finds, INDEPENDENT (Jul. 3, 2017), https://www.independent.co.uk/news/world-0/terror-attacks-media-
coverage-muslim-islamist-white-racism-islamophobia-study-georgia-state-a7820726.html (on file with The
University of the Pacific Law Review).
112. Yuen, supra note 88.
113. Azadeh Ansari, FBI: Hate Crimes Spike, Most Sharply Against Muslims, CNN (Nov. 15, 2016),
https://www.cnn.com/2016/11/14/us/fbi-hate-crime-report-muslims/index.html (on file with The University of
the Pacific Law Review).
114. See Page Pate, How Congress Has Dropped the Ball on Domestic Terror, CNN (Aug. 14, 2017),
https://www.cnn.com/2017/08/14/opinions/congress-has-dropped-ball-on-domestic-terror-pate/index.html (on
file with The University of the Pacific Law Review).
115. DEFOSTER, supra note 104.
116. Id.
117. Infra Parts III.B.1–2.
118. Infra Part III.B.1.
119. Infra Part III.B.2.
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1. Justice Manual
Federal prosecutors have wide discretion in choosing which charges to pursue
against a defendant.120 With that discretion comes guidance, most relevant to this
Comment in the form of the Justice Manual (“Manual”), previously known as the
United States Attorneys’ Manual.121
The Manual details what considerations a federal prosecutor should weigh
when deciding what charge to pursue.122 As a general rule, prosecutors are directed
to charge “the most serious offense that is consistent with the nature of the
defendant’s conduct, and that will probably be sufficient to sustain a
conviction.”123 Still, prosecutors are urged to assess each circumstance
individually and ensure that the charge (or charges) achieve the law enforcement
purposes of “punishment, protection of the public, specific and general deterrence,
and rehabilitation.”124
Despite the various considerations listed, the presumption that the most serious
offense available is the most appropriate charge pervades.125 Its rationale is
explained in the Comment to § 9-27.300: “The general presumption that a
defendant will be charged with the most serious offense that is encompassed by
his/her conduct provides the framework for ensuring equal justice in the
prosecution of federal criminal offenders.”126 This policy of seeking the highest
available is guided by the additional instruction that “[i]n all cases, the charges
should fairly reflect the defendant’s conduct.”127
The Manual provides for situations where more than one charge may apply to
a single course of conduct.128 Prosecutors are permitted to pursue multiple charges
in a variety of circumstances.129 When determining whether to pursue more than
one charge, the “prosecutor’s initial concern should be to recommend charges that
adequately reflect the nature and full extent of the criminal conduct involved.”130
The charges must accurately convey “the seriousness of the conduct involved” to
120. Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (“[So] long as the prosecutor has probable cause
to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and
what charge to file or bring before a grand jury, generally rests entirely in his discretion. ”).
121. See U.S. DEP’T OF JUST., JUSTICE MANUAL, available at https://www.justice.gov/usam/united-states-
attorneys-manual (last visited Apr. 9, 2018) (on file with The University of the Pacific Law Review) (previously
known as the U.S. Attorneys’ Manual) (hereinafter “MANUAL”) (outlining procedures and considerations to
which federal prosecutors must adhere).
122. MANUAL, supra note 121, § 9-27.300.
123. Id. 124. Id.
125. Id.
126. MANUAL, supra note 121, § 9-27.300(B).
127. Id. § 9-27.300.
128. Id. § 9-27.320.
129. Id.
130. MANUAL, supra note 121, § 9-27.320(B)(1).
2019 / Federal Law’s Inconsistent Treatment of Domestic and International Terrorism
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the public.131
Less than two weeks after the September 11 attacks, President George W. Bush
addressed the nation and attempted to explain why a terror group would target the
United States: “[I]ts goal is remaking the world and imposing its radical beliefs on
people everywhere . . . These terrorists kill not merely to end lives, but to disrupt
and end a way of life. With every atrocity, they hope that America grows fearful,
retreating from the world and forsaking our friends. They stand against us because
we stand in their way.”132 While murder is undoubtedly a serious crime, a murder
charge wholly fails to adequately express the “nature and full extent” of a terrorist
act.133
2. Equal Treatment in Federal Law
Examples of domestic and international terrorism currently being treated
equally under federal law can be found in both criminal and civil contexts. 134
Despite domestic terrorism’s exclusion from the “federal crime of terrorism,” a
few federal statutes provide higher criminal penalties when committed to facilitate
a terrorist act, regardless of whether it was domestic or international.135 Protections
from civil liability are in place for individuals who come forward with information
related to a suspected terrorist act, domestic and international alike.136
Additionally, federal law authorizes monetary rewards for individuals who come
forward with information.137 Each of these instances demonstrate a policy
judgment that terrorism is serious and deserving of our highest attention, regardless
of whether it is international or domestic in nature.138
i. Criminal Context
It is a federal crime to make false statements to a government agency regarding
terrorism.139 A defendant who violates this statute may be sentenced to up to five
years’ imprisonment.140 However, pursuant to this statute, if the defendant made
131. Id.
132. Transcript of President Bush’s Address, CNN (Sept. 21, 2001), http://www.cnn.com/2001/US/09/20/
gen.bush.transcript (on file with The University of the Pacific Law Review).
133. MANUAL, supra note 121, § 9-27.320(B)(1).
134. See infra Parts III.B.2.i–ii (providing examples of each).
135. See 18 U.S.C.A. §§ 1001(a), 1028, 1505 (West 2018) (imposing higher criminal penalties if the
offense was related to an act of domestic or international terrorism).
136. 6 U.S.C.A. § 1104 (West 2018); 49 U.S.C.A. § 44941 (West 2018).
137. 6 U.S.C.A. § 1104 (West 2018).
138. Infra Parts III.B.2.i–ii.
139. 18 U.S.C.A. § 1001(a) (West 2018).
140. Id.
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725
the false statements to facilitate domestic or international terrorism, the potential
sentence is increased to eight years.141 This penalty structure, while not drastically
harsher for terrorism-related offenses, appears identically in a statute prohibiting
obstruction of an antitrust proceeding.142
Federal law also prohibits fraud in connection with identification documents
such as birth certificates or drivers licenses.143 This offense has a more complicated
penalty structure, with different prescribed sentences based on the type of
document involved, prior offenses, and underlying motivation.144 A first-time
offender whose conduct did not involve official U.S. documents, drug crimes, or
terrorism faces up to one year in prison.145 However, if the crime was intended to
facilitate terrorism (international or domestic), the penalty increases to 30 years.146
Among federal criminal statutes that equate domestic and international
terrorism, the statute prohibiting “bribery affecting port security” is unique in that
it expressly includes terrorist-related intent or knowledge as an essential element
of the offense.147 The prohibition applies both to an individual seeking to bribe and
to an individual demanding or accepting a bribe.148 The person seeking to bribe
must have done so “with intent to commit international terrorism or domestic
terrorism,” while the person accepting or agreeing to accept a bribe must have done
so “knowing that such influence will be used to commit, or plan to commit,
international or domestic terrorism.”149
Despite the fact that this statute can only be violated by an act intended to
further (or committed with the knowledge of) a terrorist goal, it is not included in
the Federal Crime of Terrorism.150 Given the wide breadth of offenses included
within the Federal Crime of Terrorism, it seems strange to omit a crime so
inextricably linked.151 The policy judgments inherent to that particular drafting
choice, however, are beyond this Comment’s scope, and for this purpose it is
sufficient to observe that these criminal statutes treat domestic and international
terrorism with equal weight.152
141. 18 U.S.C.A. § 1001(a) (West 2018).
142. Id. § 1505.
143. Id. § 1028.
144. Id. § 1028(b).
145. Id. § 1028(b)(6).
146. Id. § 1028(b)(4).
147. 18 U.S.C.A. §§ 226(a)(1), (2)(B) (West 2018).
148. Id.
149. Id.
150. Id. § 2332b(g)(5).
151. Id.
152. 18 U.S.C.A. §§ 226, 1001(a), 1028, 1505 (West 2018).
2019 / Federal Law’s Inconsistent Treatment of Domestic and International Terrorism
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ii. Civil Context
Several federal civil statutes treat domestic and international terrorism equally,
governing individual liability related to suspected terrorist acts.153 One protects
individuals who come forward with information leading to an arrest or “favorable
outcome.”154 Another provides essentially the same protections, but specifically
for air carriers and their employees who come forward with similar information. 155
The last provides than an individual will not be liable for refusing to sell
ammonium nitrate if they have a reasonable suspicion that the buyer is involved in
terrorism.156
In these statutes, the protections apply whether the terrorism involved is
domestic or international.157 These equal protections evince a value judgment that
individuals with suspicions or information regarding terrorist activity should be
equally incentivized to contact law enforcement.158 This aligns with government
statements that preventing acts of domestic terror is a top priority for the United
States.159
Interestingly, however, these statutes do not reference the Patriot Act
definitions directly.160 Each one states that terrorism shall be “defined as set forth
in § 3077.”161 That section contains the definitions for Chapter 204 of the federal
criminal code, governing “Rewards for Information Concerning Terrorist Acts and
Espionage.”162 In particular, § 3077(1) specifies that an “act of terrorism” is “an
act of domestic or international terrorism as defined in § 2331.”163 This is not
especially problematic—the end result is the same, ultimately arriving at the
Patriot Act definition of domestic terrorism.164 It does, however, contribute to a
complicated statutory scheme in which several different statutes must be
referenced to arrive at one definition, and it is more difficult to ascertain any one
statute’s true reach when incorporated in this manner.165
153. See 6 U.S.C.A. §§ 488f, 1104; 49 U.S.C.A. § 44941 (West 2018) (providing the same protections
regardless of whether the terrorism was domestic or international).
154. 6 U.S.C.A. § 1104 (West 2018).
155. 49 U.S.C.A. § 44941 (West 2018).
156. 6 U.S.C.A. § 488f (West 2018).
157. Id. §§ 488f, 1104 (West 2018); 49 U.S.C.A. § 44941 (West 2018).
158. See 6 U.S.C.A. §§ 488f, 1104 (West 2018); 49 U.S.C.A. § 44941 (West 2018) (providing the same
protections regardless of whether the terrorism was domestic or international).
159. See Wray, supra note 20 (“Preventing terrorist attacks remains the FBI’s top priority . . . The FBI is
using all lawful investigative techniques and methods to combat these terrorist threats to the United States.”).
160. 6 U.S.C.A. §§ 488f, 1104 (West 2018); 49 U.S.C.A. § 44941 (West 2018).
161. Id.
162. 18 U.S.C.A. § 3077(1) (West 2018).
163. Id.
164. 18 U.S.C.A. §§ 2331(5), 3077(1) (West 2018).
165. See id. (incorporating by reference).
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Additionally, federal law authorizes the Attorney General to provide a
monetary reward to individuals who come forward with information leading to a
wide range of outcomes related to terrorism.166 A reward is available for
information leading to an arrest or conviction for a completed terrorist act,
conspiracy or attempts to commit a terrorist act, or the “prevention, frustration, or
favorable resolution of an act of terrorism.”167 This statute does not differentiate
between international and domestic terrorism.168 While the reward’s availability is
limited to information relating to terrorism “primarily within the territorial
jurisdiction of the United States,” this distinction speaks to where the act took
place, not whether it was international or domestic.169
Despite some flaws in these statutes’ mechanics, when taken together, they
ultimately evince a legislative judgment that domestic and international terrorism
should be treated equally in several situations.170 They stand in conflict, however,
with the significant ways in which federal law handles domestic and international
terrorism differently.171
IV. INCONSISTENT TREATMENT OF INTERNATIONAL AND DOMESTIC TERRORISM
Federal law contains several statutes that treat international and domestic
terrorism drastically differently.172 This Comment is not meant to represent every
way in which terrorism is handled unevenly in federal law; however, the two most
glaring situations where this presents are the lack of a civil cause of action for
domestic terrorism victims173 and the exclusion of domestic terrorism from the
federal crime of terrorism.174
A. Civil Cause of Action
A federal civil suit may be dismissed if the plaintiff fails to include “a short
and plain statement of the claim showing that the pleader is entitled to relief.”175 A
claim, or cause of action, must almost always be created by Congress. 176 The
166. 18 U.S.C.A. § 3071 (West 2018).
167. Id.
168. Id.
169. Id.
170. 6 U.S.C.A. §§ 488f, 1104 (West 2018); 18 U.S.C.A. §§ 226, 1001(a), 1028, 1505, 3077 (West 2018);
49 U.S.C.A. § 44941 (West 2018).
171. Infra Part IV.
172. Infra Parts IV.A–C.
173. Infra Part IV.A.
174. Infra Part IV.C.
175. FED. R. CIV. P. 8.
176. Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017) (quoting Bush v. Lucas, 462 U.S. 367 (1983)) (“The
question is ‘who should decide’ whether to provide for a damages remedy, Congress or the courts? The answer
most often will be Congress.”).
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Supreme Court has only rarely recognized a cause of action where Congress failed
to expressly create one.177 In each instance where it has, the cause of action related
to constitutional rights violations and the Court found implied congressional intent
sufficient to support the claims.178
Congress expressly created a civil cause of action for victims of international
terrorism in the Federal Courts Administration Act of 1992.179 It allows victims—
as well as their heirs, survivors, or estate—to bring claims for any injury sustained
“by reason of an act of international terrorism.”180 The statute not only permits the
action to go forward, but also prescribes the amount of damages to be awarded.181
A plaintiff in such a suit “shall recover threefold the damages he or she sustains
and the cost of the suit, including attorney’s fees.” 182 A victim who prevails in
court against a perpetrator of international terrorism is further protected, as
payments to terrorism victims are excluded from income calculations in
bankruptcy proceedings.183 There is no corresponding statute providing such a
cause of action, or prescribing a similar financial remedy for injuries sustained by
domestic terrorism.184
Because the statute’s language expressly limits this remedy’s availability to
victims of international terrorism, victims of domestic terrorism are completely
precluded from initiating a similar action.185 The available case law, while not
extensive, is consistent.186 Courts hearing civil cases based on allegations of
domestic terrorism have dismissed those actions for failure to state a claim. 187
177. See Ziglar, 137 S. Ct. at 1843 (providing a more thorough discussion of the circumstances in which
the Supreme Court has recognized an implied cause of action).
178. Id.
179. Federal Courts Administration Act of 1992, Pub. L. No. 102-572 (S 1569), 106 Stat. 4506.
180. 18 U.S.C.A. § 2333 (West 2018).
181. Id.
182. Id.
183. Id.
184. Id.
185. Id.
186. Linde v. Arab Bank, 353 F. Supp. 2d 327, 331 (E.D.N.Y. 2004); Archer v. City of Taft, No. 1:12-cv-
00261-AWI-JLT, 2012 WL 1458136, at *6 (E.D. Cal. Apr. 26, 2012) (citing Aldabe v. Aldabe, 616 F.2d 1089,
1092 (9th Cir. 1980)) (“Plaintiffs contend Defendants committed . . . domestic terrorism . . . and, thereby violated
federal law. However, these statutes are federal criminal statutes that do not provide for a private civil right of
action.”); Boyd v. City of Oceanside Police Dep’t, Civil No. 11cv3039 LAB (WMc), 2013 WL 5671164, at *5
(S.D. Cal. Oct. 11, 2013) (“[T]o the extent Plaintiff contends all named Defendants committed acts of domestic
terrorism . . . he also fails to state a claim upon which relief can be granted because federal criminal statutes do
not create a private civil right of action.”).
187. Linde, 353 F. Supp. at 331; Archer, 2012 WL at *62012 (citing Aldabe v. Aldabe, 616 F.2d 1089,
1092 (9th Cir. 1980)) (“Plaintiffs contend Defendants committed . . . domestic terrorism . . . and, thereby violated
federal law. However, these statutes are federal criminal statutes t hat do not provide for a private civil right of
action.”); Boyd, 2013 WL 5671164 at *5 (“[T]o the extent Plaintiff contends all named Defendants committed
acts of domestic terrorism . . . he also fails to state a claim upon which relief can be granted because federal
criminal statutes do not create a private civil right of action.”).
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1. Boyd v. City of Oceanside Police Dep’t
The United States District Court for the Southern District of California
dismissed such a claim in just one sentence, finding that “to the extent Plaintiff
contends all named Defendants committed acts of domestic terrorism . . . he also
fails to state a claim upon which relief can be granted because federal criminal
statutes do not create a private civil right of action.”188 The Plaintiff in Boyd had
sued the many police officers, SWAT team members, and attorneys involved in
his prior criminal conviction.189 His third amended complaint was dismissed with
prejudice.190
2. Archer v. City of Taft
The Eastern District of California similarly dismissed a civil domestic
terrorism claim because “Plaintiffs are unable to state cognizable claims for
violations of Title 18, and these claims for . . . domestic terrorism must be
dismissed.”191
In Archer, Plaintiffs had been doing construction on their home, and
subsequently had lumber, metal sheeting, and other supplies laid out on their
property.192 The legal action was initiated because city officials removed the
supplies and sent Plaintiffs an invoice after Plaintiffs failed to respond to violation
notices.193 Plaintiffs brought suit against the city, alleging numerous claims
including violations of several constitutional rights and the Racketeer Influenced
and Corrupt Organizations (RICO) Act, as well as grand theft and domestic
terrorism.194
In these cases, the courts did not consider the merits of the claims
whatsoever.195 They gave no indication that a subsequent claim under different
factual circumstances would prevail, instead foreclosing the possibility that any
domestic terrorism claims could be pursued civilly in federal court. 196 Domestic
188. Boyd, 2013 WL 5671164 at *5.
189. Id. at *2.
190. Id. at *5.
191. Archer, 2012 WL 1458136 at *6.
192. Id.
193. Id.
194. Id.
195. See Archer, 2012 WL1458136 at *6 (dismissing civil claims alleging domestic terrorism against city
officials); see also Boyd, 2013 WL 5671164 (dismissing civil claims with prejudice where the Plaintiff’s third
amended complaint alleged domestic terrorism against the many police officers, SWAT team members, and
attorneys involved in his prior criminal conviction).
196. Id.
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730
terror victims will not be able to bring such claims until Congress passes a law
granting them the same legal rights as victims of international terrorism.197
B. Protection in Bankruptcy Proceedings
A federal law excluding payments to terrorism victims from consideration in
bankruptcy proceedings further protects terror victims who prevail on their civil
claims.198 For bankruptcy purposes, an individual’s current monthly income is
defined as “the average monthly income from all sources that the debtor receives
. . . without regard to whether such income is taxable income.” 199 This inclusive
definition provides for a few specific exceptions, one of which is “payments to
victims of international terrorism . . . or domestic terrorism . . . on account of their
status as victims of such terrorism.”200
While this statute appears to treat domestic and international terrorism equally,
it does so only on its face.201 As discussed above, there is no federal civil cause of
action for victims of domestic terrorism.202 There are undoubtedly other claims
they may be able to pursue, but those causes of action must be rooted in some law
aside from terrorism.203 Under this construct, even if a victim of domestic terrorism
succeeded in bringing a non-terrorist civil action and was awarded damages, any
payments they received would not be similarly protected if that individual were to
later file bankruptcy because those payments would not be “on account of their
status as victims of such terrorism.”204 Inasmuch as this statute appears intended
to protect victims of domestic and international terrorism equally, it fails to do
so.205
C. The Federal Crime of Terrorism
There are two requirements that an act must meet to fall under the “Federal
Crime of Terrorism” laid out in § 2332b(g)(5).206 First, the act must be “calculated
to influence or affect the conduct of government by intimidation or coercion, or to
197. See 18 U.S.C.A. § 2333 (West 2018) (facially excluding domestic terror victims from bringing a civil
action based on their status as terror victims).
198. 11 U.S.C.A. § 101(10A)–(B) (West 2018).
199. Id. § 101(10A).
200. Id. § 101(10A)–(B).
201. Id.
202. 18 U.S.C.A. § 2333 (West 2018).
203. Archer, 2012 WL 1458136 at *6 (citing Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980))
(“Plaintiffs contend Defendants committed . . . domestic terrorism . . . and, thereby violated federal law. However,
these statutes are federal criminal statutes that do not provide for a private civil right of action.”).
204. 11 U.S.C.A. § 101(10A) (West 2018).
205. Id.
206. 18 U.S.C.A. § 2332b(g)(5) (West 2018).
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retaliate against government conduct.”207 Second, the act must also fit within one
of many enumerated offenses.208 While international terrorism is listed
specifically, domestic terrorism is not.209 The enumeration of offenses in this
statute has been amended several times, most recently in 2015.210 Each time,
further offenses have been added, still omitting domestic terrorism.211
As written, the statute includes many offenses that do not strictly apply to
either international or domestic terrorism.212 For example, the current law includes
crimes involving weapons of mass destruction, biological agents, and assassinating
congressional, Cabinet, and Supreme Court members, with no mention of whether
the act must be international or domestic.213 The two-part test (requiring a
particular intent and a particular action) results in a construct where purely
domestic actions, if taken with the requisite intent, could still fall under this
provision.214
When federal courts have addressed the issue of whether the federal crime of
terrorism excludes purely domestic conduct, it has most frequently been in the
context of determining whether a sentencing enhancement for acts of terrorism
applied in domestic cases.215 Appellate courts across multiple circuits have
uniformly found that “the definition of a ‘federal crime of terrorism’ does not
require the offense conduct to transcend national boundaries,” so long as it meets
the statute’s intent and offense requirements.216 Given that interpretation, it would
seem as though domestic terrorists can already be adequately charged through the
current scheme; however, a survey of the included offenses reveals clear gaps in
statutory coverage as related to domestic terrorism.217
Most of the underlying offenses included in the “federal crime of terrorism”
can be grouped into two categories: (1) offenses based on the intended target,218
207. Id. § 2332b(g)(5)(a).
208. Id. § 2332b(g)(5)(b).
209. Id. § 2332b(g)(5).
210. Id.
211. Id.
212. Id.
213. Id.
214. U.S. v. Garey, 546 F.3d 1359, 1163 (11th Cir. 2008); see also U.S. v. Salim, 549 F.3d 67, 78 (2d Cir.
2008) (“Congress could have defined ‘Federal crime of terrorism’ to include a requirement that the offense
conduct transcend national boundaries, but it did not.”); U.S. v. Harris, 434 F.3d 767, 773 (5th Cir. 2005) (finding
that application of the sentencing enhancement was appropriate to the defendant’s purely domestic conduct
because he committed an enumerated offense with the requisite intent).
215. Garey, 546 F.3d at 1163; see also Salim, 549 F.3d at 78 (“Congress could have defined ‘Federal crime
of terrorism’ to include a requirement that the offense conduct transcend national boundaries, but it did not.”);
Harris, 434 F.3d at 773 (finding that application of the sentencing enhancement was appropriate to the defendant’s
purely domestic conduct because he committed an enumerated offense with the requisite intent).
216. Id.
217. 18 U.S.C.A. § 2332b(g)(5) (West 2018).
218. Infra Part IV.C.1.
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732
and (2) offenses based on the instrumentality used.219 Both categories fail to
adequately represent domestic terrorism as it currently presents in the United
States.220
1. Offenses Based on Intended Target
The “federal crime of terrorism” encompasses many crimes committed against
specified persons, primarily government officials.221 Killing or attempting to kill
“officers and employees of the United States,” the President, a member of the
President’s staff, or “congressional, cabinet, and Supreme Court” members are all
included, as is the murder or attempted murder of “foreign officials, official guests,
or internationally protected persons.”222
Crimes against ordinary citizens do not share the same unequivocal inclusion
in this statute.223 Some enumerated offenses, discussed more thoroughly below, are
only concerned with the means or weaponry used.224 These could apply to attacks
on civilians, but only in certain circumstances.225 For example, crimes involving
chemical or biological weapons do not require that the actor have a particular target
in mind for the act to be terrorism.226 One included offense directly covers
“homicides and other violence against United States nationals,” but limits its
application to violence “occurring outside of the United States.”227 The only other
enumerated offense to cover violence against civilians without reference to a
particular instrumentality involves “conspiracy to murder, kidnap, or maim
persons abroad.”228 Under this statutory structure, Dylann Roof’s actions would
have fallen under the “federal crime of terrorism” if he had killed American
citizens overseas, but did not because he perpetrated his attack in South
Carolina.229
Some included offenses are based on a geographical physical target such as
aircraft facilities, government property, and federal facilities.230 Such attacks
would likely injure civilians, but civilians are not the primary focus, and these
219. Infra Part IV.C.2.
220. 18 U.S.C.A. § 2332b(g)(5) (West 2018).
221. Id.
222. Id.
223. Id.
224. Infra Part IV.C.2.
225. 18 U.S.C.A. § 2332b(g)(5) (West 2018).
226. 18 U.S.C.A. §§ 175, 229 (West 2018).
227. 18 U.S.C.A. § 2332 (West 2018).
228. 18 U.S.C.A. § 956(a)(1) (West 2018).
229. 18 U.S.C.A. § 2332b(g)(5) (West 2018); Ortiz & Bruton, supra note 1.
230. 18 U.S.C.A. §§ 32, 930(c), 1361 (West 2018).
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offenses’ application as related to civilian victims would be incidental. 231
2. Offenses Based on Instrumentality
Many statutes included in the “federal crime of terrorism” relate solely to the
instrumentality by which they are carried out - for example, attacks using chemical,
biological, or nuclear weapons are terrorism regardless of the intended target.232
However, the enumerated offenses fail to include mass shootings, despite their
prevalence in domestic terrorism.233
The closest offense currently included covers acts involving a weapon of mass
destruction (WMD).234 A WMD is defined, in relevant part, as “any destructive
device as defined in section 921,”235 which in turn is defined as “any type of
weapon . . . which will, or which may be readily converted to, expel a projectile
by the action of an explosive or other propellant, and which has any barrel with a
bore of more than one-half inch in diameter.”236
The bore of a gun is the barrel’s interior.237 The bore diameter is referred to as
the caliber, which corresponds to the size of compatible ammunition.238 For a mass
shooting to come within “the federal crime of terrorism,” a gun must have a caliber
above 0.50.239 Dylan Roof used a .45-caliber handgun to murder AME’s
congregants, just five hundredths of an inch short.240 Assault rifles, another
common choice among domestic terrorists, are .233 caliber, far below the .50
caliber threshold.241
The current enumeration defining the “federal crime of terrorism” creates an
uneven statutory scheme where attacks on United States civilians by United States
civilians, even if committed with clearly terrorist intent, are only considered
terrorism from a criminal perspective if they are committed overseas, in certain
locations, or with certain weapons.242 In addition to including more substantive
underlying offenses that more accurately reflect the ways in which domestic
231. 18 U.S.C.A. §§ 32, 930(c), 1361 (West 2018).
232. 18 U.S.C.A. § 2332b(g)(5) (West 2018).
233. Wray, supra note 20 (“We are most concerned about the lone offender attacks—primarily shootings,
as they have served as the dominant mode for lethal domestic extremist violence.”).
234. 18 U.S.C.A. § 2332a(c)(2)(a) (West 2018).
235. Id.
236. 18 U.S.C.A. § 921(a)(4)(B) (West 2018).
237. Bore: Firearms, ENCYCLOPEDIA BRITANNICA, https://www.britannica.com/technology/bore-firearms
(last visited Mar. 31, 2018) (on file with The University of the Pacific Law Review).
238. Id.
239. 18 U.S.C.A. § 921(a)(4)(B) (West 2018).
240. Phelps, supra note 3.
241. John Cassidy, Gun Laws and Terrorism: An American Nightmare, NEW YORKER (June 13, 2016),)
https://www.newyorker.com/news/john-cassidy/gun-laws-and-terrorism-an-american-nightmare (on file with
The University of the Pacific Law Review).
242. 18 U.S.C.A. § 2332b(g)(5) (West 2018).
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734
terrorism is carried out in the United States, adding domestic terrorism to the
enumerated list would fill these gaps and better serve federal law enforcement’s
stated interests.243
V. CONCLUSION
Despite the recognized threat that domestic terrorism poses in the United
States, federal law still does not treat it as seriously as international terrorism. 244
Creating a civil cause of action for victims of domestic terrorism would hold them
in the same regard as victims of international terrorism, as well as ensure that
damages awarded in such an action would be protected from bankruptcy
calculations consistent with congressional intent.245 Expressly adding domestic
terrorism to the federal crime of terrorism would hold it equally reprehensible as
international terrorism and permit federal prosecutors to better align their charging
decisions with the policy considerations in the Justice Manual.246 Additionally,
including more underlying offenses within the federal crime of terrorism would
update the federal statutory scheme to reflect current knowledge about domestic
terrorism in the United States.247
As Senator John Kyl observed following the attacks on September 11, 2001,
Congress has “a responsibility to the people of this nation to ensure that those who
are charged with protecting us from future terrorist attacks are empowered to do
so.”248 The time has come for Congress to finally correct these harmful gaps in our
federal legal system and treat domestic terrorism as seriously as it deserves.249
243. Id. § 2332b(g)(5); Wray, supra note 20 (“We are most concerned about the lone offender attacks—
primarily shootings, as they have served as the dominant mode for lethal domestic extremist violence. ”).
244. See Wray, supra note 20 (“In addition to foreign terrorist organizations, domestic extremist
movements collectively pose a steady threat of violence and economic harm to the United States . . . We anticipate
law enforcement, racial minorities, and the U.S. government will continue to be significant targets for many
domestic extremist movements.”).
245. 11 U.S.C.A. § 101(10A)–(B) (West 2018).
246. MANUAL, supra note 121, § 9-27.300.
247. Cassidy, supra note 241.
248. Welch, supra note 55.
249. Wray, supra note 20.
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