Should There be a Federal Domestic Terrorism Criminal Statute? (H.R. 4187)

What is H.R. 4187?

(Updated August 5, 2021)

This bill — the Domestic Terrorism Penalties Act of 2019 — would create a distinct domestic terrorism criminal statute. To do this, it would replicate the penal code structure for prosecuting international terrorism to establish similar penalties for crimes committed speicfically under the definition of “domestic terrorism,” as set forth in the PATRIOT Act of 2001. This would penalize individuals who kill, kidnap, assault, damage, or attempt or conspire to do any of the preceding with the intent to influence governmental conduct.

Currently, the U.S. penal code contains a statute for the federal government to charge instances of foreign terrorism. However, no such statute exists for crimes falling under the exclusive purview of domestic terrorism.

Argument in favor

Domestic terrorism should be subject to the same penalties as international terrorism, and federal prosecutors should be able to charge domestic terrorists accordingly. This bill ensures that this would be the case.

Argument opposed

This bill is mostly symbolic and overly broad. Domestic terrorism laws aren’t needed to prosecute those who commit domestic terrorism, who can be charged under numerous other laws. This bill could also be interpreted to include political speech and political acts under the definition of “terrorism.”

Impact

Domestic terrorism; domestic terrorists; federal law enforcement officers; federal prosecutors; and federal prosecution of domestic terrorists.

Cost of H.R. 4187

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Sponsoring Rep. Randy Weber (R-TX) introduced this bill to help federal law enforcement officers and prosecutors better identify and charge those who commit acts of domestic terrorism: 

“Texas and our nation are still reeling from the devastating shootings of El Paso and Dayton. These crimes have further exposed deficiencies in federal criminal law, deficiencies that my district became all too familiar with following the tragic shooting at Santa Fe High School that left 10 people dead and 13 injured. These acts of domestic terrorism warrant a stronger response than the federal government can currently provide. Unlike international terrorism which has penalties, domestic terrorism exists in federal law but lacks penalties. As a result, individuals who commit crimes that constitute an act of domestic terrorism must be charged under non-terrorism statutes. And, in some cases, the crimes committed by people the FBI describe as domestic terrorism suspects do not violate federal law. Thus, these individuals may never be federally charged as terrorists.”

Original cosponsor Rep. Michael McCaul (R-TX) adds: 

“The attacks earlier this month in Dayton and El Paso are a stark and hideous reminder that the threat of domestic terrorism is very real. As a former prosecutor, I know our federal domestic terrorism laws are insufficient and lack any real legal recourse to charge domestic terrorists with the crime they’ve committed. The bill we introduced today would change that. It provides the FBI and DOJ with tools to better identify domestic terrorism before it occurs and fully prosecute those responsible. My constituents and I experienced terror in our own community last year when a string of deadly bombings wreaked havoc in Austin, TX. We need to do more than denounce the hateful ideologies that spur this type of violence – we have to take action to better prevent the spread of homegrown radicalization. I look forward to working with my colleagues on both sides of the aisle to create safer communities for Americans everywhere.”

Rep. Henry Cuellar (D-TX), this bill’s sole Democratic cosponsor, says, “Designating domestic terrorism as a federal crime will give law enforcement officials the necessary resources to effectively investigate suspects and fully prosecute criminals.”

The FBI Agents Association (FBIAA) is comprised of 14,000 Special Agent members, including approximately 90% of the active Special Agents that have helped lead the effort to criminalize domestic terrorism at the federal level, and endorses this bill. Its President, Brian O’Hare, says: 

“FBIAA supports the Domestic Terrorism Penalties Act of 2019 because it would make domestic terrorism a federal crime, helping ensure that FBI Agents and prosecutors have the best tools to fight domestic terrorism.  Domestic terrorism is a threat to the American people and our democracy. Acts of violence intended to intimidate civilian populations or to influence or affect government policy should be prosecuted as domestic terrorism regardless of the ideology behind them.”

Erik Schechter, CEO of Red Phantom Public Relations and a former defense journalist, criticizes this bill for “warping the meaning” of terrorism to “expand the power of the state and demonize political opponents” without making the public safer: 

“In the wake of recent mass shootings, other lawmakers have put domestic terrorism bills before Congress. For example, the Domestic Terrorism Penalties Act of 2019, introduced in mid-August by Texas Reps. Michael McCaul and Randy Weber, both Republicans, and Democrat Henry Cuellar, establishes federal penalties for a new all-encompassing crime of domestic terrorism, instead of what we have now: circumstance-specific terrorism laws that address bombings, hijackings, etc. According to the congressmen, our regular laws against violence and mayhem (plus 57 federal terrorism-related laws) are insufficient to address terrorists without links to foreign organizations who go on shooting sprees, and this bill will finally plug that hole. I don’t buy it, and here’s why. First, the bill is mostly symbolic. It’s good and right to call the El Paso shooter — who justified his murderous rampage in August as a response to “the Hispanic invasion of Texas”— a domestic terrorist. But public officials can label him that already; they don’t need a change of law… Second, if you want to federally prosecute shooters as domestic terrorists, just create a law that covers politically motivated violence with firearms. Simple. Why have a bill that considers assaults resulting in ‘serious bodily injury’ as terrorism, when such an open-ended category could be used by an overzealous prosecutor against unpopular, low-rent scrappers? Third, the bill describes politically motivated destruction of property as an act of domestic terrorism. Property! Think of the implications. By their logic, McCaul, Weber and Cuellar are saying the Boston Tea Party is an act of terrorism and the Sons of Liberty terrorists.”

Schechter observes that the word “terrorist,” which he calls “the nuclear bomb of political epithets,” is being casually tossed about. He argues that pushing through bills that list too many crimes as terrorism could create a legal landscape in which rioters, political opponents, and protesters could be labeled as terrorists.

Hina Shamsi, director of the ACLU’s National Security Project, says that while domestic terrorism laws “may sound good,” they aren’t actually good policy. In an August 6, 2019 tweet, she said, “FBI officials want more power than they need to investigate & prosecute white supremacist violence, ignoring or downplaying resulting harms to communities of color, Bill of Rights. The last thing we need is to give this gov[ernment] more coercive power.”

Writing in The New Republic, journalist Matt Ford expresses similar concerns with regard to the federal government abusing a domestic terrorism statute to punish political speech and activism. He writes: 

“It’s not hard to imagine the government using these tools against Americans who take part in large-scale protests or who carry out acts of civil disobedience. Federal prosecutors spent a year and a half pursuing riot-related charges against a few dozen protesters who smashed windows and damaged cars during President Donald Trump’s inauguration. The Justice Department also brought charges against Native American activists who protested the Dakota Access pipeline in Standing Rock, North Dakota, in 2016, alleging they started fires and built illegal roadblocks. The extreme sentences attached to the crimes would give prosecutors significant leverage over defendants to strike a plea deal even if they believe the case is unjust. History also gives pause. The federal government has a mixed record at best when it comes to defining what constitutes domestic terrorism. The Hoover-era FBI’s campaign to harass civil rights activists and infiltrate antiwar groups in the 1950s and 1960s is still within living memory. In the 1990s and early 2000s, the FBI described ecoterrorism as the “number one domestic terrorism threat” and faced criticism from its inspector general in 2010 for inappropriately monitoring nonviolent groups like Greenpeace and PETA. More recently, the Bureau responded to the Black Lives Matter movement’s rise by warning about the possibility of domestic terrorism from “black identity extremists,” a spurious category at best.”

The Los Angeles Times’ editorial board, expressing its opposition to the establishment of a federal terrorism statute, points out there are potential constitutional issues with enacting a federal hate crime law. As an example, they point out that while it’s a crime for Americans to provide “material support or resources” to designated foreign terrorist organizations, criminalizing support for domestic political groups, however extreme, could threaten First Amendment free speech protections. Testifying before the House Homeland Security Committee, Deputy Assistant Attorney General Brad Wiegmann acknowledged this reality, saying, “Designating domestic groups as domestic terrorism organizations and picking out particular groups [whose views] you say you disagree with ... is going to be highly problematic.”

This legislation has 12 bipartisan House cosponsors, including 11 Republicans and one Democrat. 

Of Note: The U.S. currently doesn’t have a single statute criminalizing all domestic terrorism. Instead, it has several federal terrorism staututes that apply in the purely domestic context. Writing for Lawfare, Bobby Chesney, a professor at the University of Texas School of Law, observes that there are two gaps in existing law: 1) cases where attacks don’t use explosives and 2) cases where someone provided material support for an attack of domestic terrorism, but wasn’t involved in carrying out the attack.

However, despite these gaps, Chesney observes that people involved in terrorist attacks aren’t getting away with their crimes. He writes: 

“We do not have a situation in which persons who are involved in terrorist attacks somehow end up walking free, or getting improperly light sentences, due to a gap in the scope or calibration of criminal laws. This is true regardless of the scope of federal criminal law, for the states are the primary source of criminal law in the American system and every state has a wide array of general-purpose state criminal laws applicable to terrorist acts: murder, attempted murder, conspiracy, destruction of property and so forth. In some states, capital charges are available in some circumstances… The most one can say on this point is that many states do not have capital punishment, and Congress thus would be making a practical difference by providing a capital option via a new federal domestic terrorism offense… As an initial matter, I’m very doubtful that this specific gap (the lack of the death penalty in some states) is playing a significant role in the calls for a new federal crime of domestic terrorism. Perhaps some are advancing that point, but not that I’ve seen. Second, federal law already provides a capital option for some important domestic terrorism scenarios.”

To Chesney and Ford, recent cases where white nationalist terrorists have been punished without a federal domestic terrorism law prove that such a law isn’t needed. They point out that federal prosecutors successfully brought hate crime charges against Dylann Roof, who murdered nine black parishioners at a Charleston church in 2015. More recently, Pittsburgh shooter Robert Bowers, who allegedly killed eleven Jewish congregants at a synagogue in 2018, is being tried for 44 counts, including firearm-related charges and obstructing the free exercise of religion through violence.

Media:

• Sponsoring Rep. Randy Weber (R-TX) Press Release
  
• NBC News Op-Ed (Opposed)
  
• ACLU National Security Project Director Hina Shamsi Tweet (Opposed)
  
• The New Republic (Opposed)
  
• Los Angeles Times Op-Ed (Opposed)
  
• The Daily Wire
  
• Lawfare (Context)