Second Thoughts About the T Word

by Michael C. Dorf

A recent Washington Post op-ed by Harry Litman occasioned by the mass shootings in El Paso and Dayton calls for the enactment of a federal statute criminalizing domestic terrorism as such. In light of various statements by law enforcement and other officials condemning the respective acts as domestic terrorism, Litman points to the seeming oddity that there is no federal domestic terrorism statute. (He acknowledges that the PATRIOT Act defines domestic terrorism but complains that it does not state a specific crime of domestic terrorism.)

Partly Litman makes a practical point. He says that a specific domestic terrorism law would "bring such crimes into the rubric of predicate offenses for providing material support to terrorists [and] would also provide more resources for the [FBI] on the data-gathering side as well as the prosecution side." Perhaps that's true, although it's not clear that existing legislation is insufficient. Rather, one might think that the resource problem, if there is one, stems from the Trump administration's decision to direct funds away from programs that combat far-right extremist violence.

Meanwhile, it's not as though the absence of a domestic terrorism statute means the El Paso killer is likely to go unpunished. He faces the possibility of state and federal murder charges. Consider another domestic terrorist, Timothy McVeigh. He was found guilty and executed based on charges of conspiracy to use and use of a weapon of mass destruction, destruction by explosives, and first-degree murder. Like the El Paso killer, he could also have been charged under state law. (I am only discussing the El Paso killer, because the Dayton killer is dead.)

Litman acknowledges that there is no shortage of laws under which the El Paso killer can be prosecuted, but he says that the possibility of charging him with these other crimes should not stand in the way of a federal domestic terrorism statute, in the same way that the existence of murder and other laws should not stand in the way of hate-crime legislation. Just as there is expressive value in calling hate-crimes what they are, so there might be expressive value in calling terrorism what it is.

There is, but there is also danger in doing so.

What exactly is terrorism? Notwithstanding uncertainty around the edges, a workable definition includes both the targeting of innocent civilians for violence and some form of political aim. Various insurgent groups around the world will sometimes resist the terrorist label and call themselves "freedom fighters" or the like, but in so doing they rarely contest the foregoing rough definition. Typically such groups are either claiming that their targets aren't really innocent civilians (perhaps because they are collaborating in some way with the insurgents' enemies) or they are saying that their use of terrorism as a means is justified by the justice of their cause (whether it is national liberation, God's will, or whatever).

Litman writes that
just as the social evil of hate crimes is particular to those offenses, domestic terrorism is its own evil, and it’s fitting for the legislature to recognize the threat and injury that terrorism occasions, and, in fact, to put it on relative equal footing with international terrorism. Fitting, too, that perpetrators of domestic terrorism be branded with the scarlet letter signifying particularly abhorrent crimes.
There are two claims here. First is the claim that domestic terrorism, like international terrorism, causes a harm beyond the loss of life and injury that goes with similar acts lacking in the kind of political motivation that renders a crime terrorism. Hate-crimes seem like a close analogy. They affect all members of the targeted group, not just the direct victims.

Yet in the current context I'm not sure the hate-crime analogy works all that well. Some mass-shooters have political aims. Others appear to be motivated by personal demons, a hope of fame, or other non-political factors. Yet it is hardly clear that the existence of a political motive in fact leads to more harm. The distinct harm of terrorism is the loss of a sense of security (the feeling of terror) due to the knowledge that at any moment one might be attacked. People in the US now experience that feeling regardless of the political or non-political motives of mass shooters. The "extra" harm that accompanies terrorism is already baked into mass shootings.

The second claim Litman appears to make is that a terroristic mass killer is worse than a non-terroristic one who performs an otherwise identical act. I don't know that that's true. A terrorist might have idealistic motivation. That shouldn't ever suffice to justify terrorism, but it's not obvious that one who kills innocents in the misguided belief that some ostensible greater good justifies his act is worse than one who kills innocents because, say, he is a sadist.

Nor is it obvious that being labeled a terrorist brands one with a worse scarlet letter than being labeled a common criminal. In the wake of 9/11, there was some discussion about whether to say that the attack was an act of war or a mere crime. Although the war framing won out, many people (including me) were concerned that it would be better to call the perpetrators mere criminals to avoid elevating their status. Calling people terrorists is not quite like calling them warriors, but it is more like calling them warriors than simply labeling them as criminals.

Accordingly, I regard the case for a new domestic terrorism statute unproved.