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CRS Legal Sidebar Prepared for Members and

Committees of Congress

Legal Sidebari

Domestic Terrorism: Some Considerations

Charles Doyle

Senior Specialist in American Public Law

August 12, 2019

Introduction

Mass shootings and other recent events have led to suggestions for (1) making domestic terrorism a

separate federal crime; (2) affording law enforcement agencies authority comparable to that which they

enjoy in cases of international terrorism; and (3) adjusting existing federal law enforcement priorities to

place greater emphasis on domestic terrorism.

Domestic terrorism as a separate federal crime

Existing federal law defines domestic terrorism but does not outlaw it by name. Section 2331(5) of the

federal criminal code defines domestic terrorism as a life-endangering federal or state crime, committed

within the United States, with the apparent intent to coerce or intimidate a civilian population or influence

government policy or conduct. Domestic terrorism, by name, is not a federal crime, but the conduct that

Section 2331(5) describes is already a state or federal crime under some other name. With or without a

terrorist motive, life-endangering misconduct – homicide or assault – is a crime under the laws of each of

the fifty states and the District of Columbia. Homicide is a federal offense or a sentencing factor for

dozens of federal crimes with various jurisdictional predicates (e.g., killing a federal officer or employee).

Violence directed against particular segments of the population often constitutes a federal civil rights or

hate crime offense. Several federal criminal provisions already use domestic terrorism as defined in

Section 2331(5) as an element of a separate crime or as a sentence enhancement.

Section 2331 also defines international terrorism without making it a separate crime. However, Congress

has enacted criminal statutes focused on international terrorism that also might appear to have no

domestic terrorism equivalents. For example, the federal crime of providing material support to a

designated foreign terrorist organization has no similarly captioned counterpart on the domestic side. Yet

here too, the basis for criminal liability has a different name. Beneath the surface, co-conspirator and

accomplice liability look much like providing material support. An individual who aids or abets (provides

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material support for) someone else’s commission of a federal crime, such as murdering members of a

church congregation or assassinating a Member of Congress, may be prosecuted as an accomplice before

the fact. Prosecution is only possible, however, if the underlying crime, the murders or the assassination,

actually occur. Conspiracy suffers no such limitation. Federal conspiracy is an agreement of two or more

individuals to commit a federal crime, complete when some step is taken toward that criminal objective.

When an individual knowingly provides material support to a confederate’s plan to commit a murder or

an assassination, the crime is complete though the murder or assassination may never be carried out.

Nevertheless, some may feel that federal criminal law should reflect the view that violence committed for

terrorist purposes, like commission of a hate crime, is more egregious than violence committed for other

reasons.

Congress seems to have sufficient constitutional authority to convert Section 2331(5) into a separate

federal crime of domestic terrorism – outlawing life-endangering conduct that violates a federal or state

law when committed with terrorist intent. The principal obstacle would appear to be the need to drop, or

find a federal jurisdictional “hook,” for instances when the offense involves a violation of state law but

not of federal law. Models might be found in the federal hate crime statute that lists a wide range of

federal jurisdictional options or the Armed Career Criminal Act (ACCA) that uses convictions for various

state crimes as the basis for sentencing enhancement upon federal conviction for unlawful possession of a

firearm.

Domestic Intelligence Gathering v. Foreign Intelligence Gathering

Under existing federal law, domestic intelligence gathering and foreign intelligence gathering are

different. The threshold for domestic authority to investigate is suspicion of a crime – past, present, or

future. The threshold for foreign authority to investigate is suspicion of foreign activity – criminal or

benign. Domestic investigations are conducted with an eye to prosecution. Foreign investigations are

conducted with an eye to prosecution, negotiation of international agreements, or diplomatic responses.

As a consequence, the law governing domestic law enforcement surveillance authority differs from the

law governing foreign surveillance authority. For instance, federal courts may issue law enforcement

wiretap orders upon a finding of probable cause that a particular crime has been, is being, or will be

committed; foreign intelligence surveillance courts may issue foreign intelligence surveillance orders

upon a finding of probable cause to believe that the target of the surveillance is a foreign power or the

agent of a foreign power. A federal magistrate may issue a search warrant for evidence in a criminal case

based on probable cause. A foreign intelligence magistrate may order a third party to surrender any

tangible item based on reasonable cause to believe the item is relevant to a foreign intelligence

investigation of a foreign national. Federal law authorizes federal agencies to issue administrative

subpoenas in health care fraud, child pornography, and controlled substance investigations; but not for

crimes described as domestic terrorism in Section 2331(5). Foreign intelligence officials may issue

national security letters for customer information, relevant to a foreign intelligence investigation, from

communication carriers, financial institutions, and consumer credit agencies. Federal prosecutors may

serve grand jury subpoenas to secure evidence for presentation to a federal grand jury investigation into

the possible commission of a federal crime.

Budgetary concerns and constitutional principles – including federalism and the rights to free speech, free

association, peaceable assembly, petition for the redress of grievances – may complicate the task of

conferring domestic law enforcement with the tools of foreign intelligence gathering. Since Section

2331(5) was enacted as part of the USA PATRIOT Act, there have been suggestions that it might be used

against protesters of all political stripes. The difficulty is in separating violence from protesters in order to

curb violent protests. Protesters enjoy First Amendment protections; violence does not. In 2010, the

Supreme Court held that the statute prohibiting providing material support to foreign terrorist

organizations could constitutionally be applied to prohibit “advocacy . . . directed to, coordinated with, or

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controlled by foreign terrorist groups.” In dicta, however, the Court cautioned that constitutionally the

presence of foreign element may impact the analysis, observing that “[w]e also do not suggest that

Congress could extend the same prohibition on material support at issue here to domestic organizations.”

Many years earlier, the Court had noted that Fourth Amendment limitations on warrantless surveillance of

domestic terrorists did not necessarily apply to surveillance of foreign terrorists, “[w]e have not

addressed, and express no opinion as to, the issues which may be involved with respect to activities of

foreign powers or their agents.”

Increased Focus on Domestic Terrorism

Since 9/11, foreign terrorism has been a federal law enforcement priority. So far in this Congress,

Members have introduced legislation to afford domestic terrorism higher priority. For example, H.R. 1931

(Rep. Schneider)/S. 894 (Sen. Durbin) would (1) establish domestic terrorism components in the Federal

Bureau of Investigation (FBI) and the Departments of Justice (DOJ) and Homeland Security (DHS); (2)

provide for coordination with joint terrorism task forces and fusion centers; (3) instruct the FBI, DOJ and

DHS to assess the anti-terrorism training they provide to other federal, state, local, and tribal law

enforcement entities; (4) in conjunction with the Secretary of Defense, create an interagency task force to

combat White supremacist and non-Nazi infiltration of the armed forces; and (5) authorize the necessary

appropriations. H.R. 3106 (Rep. Thompson) would create a National Center for the Study of Domestic

Terrorism within DHS. In addition, some Members of Congress have proposed designating particular

groups “domestic terrorist organizations,” S. Res. 279 (Sen. Cassidy); H. Res. 525 (Rep. Fitzpatrick); H.

Res. 536 (Rep. Mark Green).