Last month, Cesar Sayoc was arrested for allegedly mailing 16 improvised explosive devices to top Democrats and former national security officials around the country, including former presidents Barack Obama and Bill Clinton, former Vice President Joe Biden and 2016 presidential contender former Secretary of State Hillary Clinton. Yet, while the 56-year-old Sayoc was charged in a 30-count indictment and faces life in prison, none of those counts were standalone terrorism charges. Why? There is no specific federal criminal law against domestic terrorism.
“We have no standalone criminal offense that outlaws domestic terrorism, per se,” Thomas Brzozowski, the Justice Department’s domestic counterterrorism coordinator, said Tuesday at The George Washington University. “There is a considerable amount of ambiguity over domestic terrorism, what it means precisely, how it’s charged.”
On June 17, 2015, white supremacist Dylann Roof shot and killed nine African-Americans at the Emanuel African Methodist Episcopal Church in Charleston, S.C., but was not charged with domestic terrorism. Neither was unabomber Theodore Kaczynski, who killed three people and injured 23 others with mail bombs between 1978 and 1995, or Robert Bowers, who has pleaded not guilty to killing 11 people at a Pennsylvania synagogue in October.
The White House notes that domestic terrorism is increasing while incorporating homegrown violent extremist attacks inspired by ISIS, according to the National Strategy for Counterterrorism published in October.
“Domestic terrorism in the United States is on the rise, with an increasing number of fatalities and violent nonlethal acts committed by domestic terrorists against people and property in the United States,” the strategy states. “Such attacks, motivated by a wide range of factors, will continue to be conducted primarily through the use of simple tactics against predominantly soft targets. ISIS is likely to remain the main inspiration for such attacks, particularly if the group can retain its prominence and use social and mainstream media coverage to promote its violent message.”
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Domestic terrorism is defined in U.S. Code as acts dangerous to human life in violation of the law, which are intended to intimidate a civilian population or influence government policy through violent and extreme acts within the territorial United States.
Some social media or protester comments might appear to fall under this definition, but free speech is widely protected by the First Amendment of the U.S. Constitution.
“Advocacy of violence, standing alone, is broadly protected,” Brzozowski said. “If someone were to get up on a pedestal and start talking down at the metro station about how all the white people needed to be killed, well, that’s protected activity, regrettably, whatever you might think about it… You have to classify imminence in order to classify someone’s speech as criminal.”
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A 2017 Government Accountability Office report found that there were 225 deaths in 85 separate attacks by all violent extremists, regardless of ideology, since the terrorist attacks of Sept. 11, 2001. Additionally, 166 individuals have been charged in the U.S. with offenses related to the Islamic State since the first arrests in March 2014, according to The George Washington University Extremism Tracker.
Brzozowski said that the Federal Bureau of Investigation maintains an internal domestic terrorist watchlist.
“We have any number of of folks who routinely direct threats at religious organizations, Jewish community groups, Islamic centers around our country, and the Department of Justice does its level-best to bring charges whenever it can to combat what really is domestic terrorism in a sense that its acts intended to coerce or intimidate the civilian population,” Brzozowski said. “That list is maintained by the FBI and it changes on a daily basis based on the predication that they have determined at any given time.”
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