Andrew C. McCarthy: Why a domestic terrorism law is a terrible idea

There is nothing more powerful in Washington, it seems, than a bad idea whose time has come. So welcome to the big push for the federal criminalization of domestic terrorism.

The impulse, of course, is understandable. We have had a spate of mass-shooting attacks. In one of them, a white racist murdered 22 innocent people at a Walmart in El Paso, Texas. He is said to have been animated by what he allegedly called the “Hispanic invasion of Texas.” To date, the assassin has not been tied to any terrorist organization.

Nevertheless, the attack fits the federal-law definition of domestic terrorism: a violent act intended to (i) intimidate or coerce a civilian population; (ii) influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination or kidnapping.

This brings into sharp relief the seeming anomaly that, although federal law defines domestic terrorism, it does not criminalize it — at least, as such. Thus, there is growing bipartisan momentum to fix this non-problem.

To begin with, the fact that we do not have a federal crime called “domestic terrorism” does not mean the behavior is legal. Federal law simply criminalizes it under other labels.

In 1995, for example, I led the prosecution of a dozen U.S.-based jihadists for the terrorist bombing of the World Trade Center, a plot to bomb other New York City landmarks, and plans to carry out political assassinations. The case was correctly considered international terrorism because the defendants were, in the main, non-Americans who were part of a global jihadist movement traced to foreign terrorist organizations. Yet, the statute we prosecuted them under, the so-called seditious conspiracy law, was a Civil War-era provision designed to prosecute domestic terrorists.

That law makes it a crime for two or more people within a U.S. jurisdiction to conspire to overthrow the government or forcibly to oppose the government’s authority, hinder its execution of the laws or seize its property. Attacking civilian populations in order to extort the government to change its policies qualifies as an offense under the statute. To be sure, the law criminalizes conspiracy, so it would not capture “lone wolf” attackers. But we have plenty of laws that do so — from the federal offense of insurrection, which fits the terrorism context, to federal and state bombing and murder statutes which may be, and commonly are, applied to mass-murder attacks.

On Thursday, a Wall Street Journal report posited that the FBI’s efforts to combat domestic terrorism are being “hobbled” by the lack of a federal domestic terrorism law. It closes with a cautionary tale from University of Michigan law professor Barbara McQuade. When she was a federal prosecutor in 2010, Ms. McQuade indicted for seditious conspiracy a group of “militia members” who had threatened to kill police officers. The charge ultimately was dismissed by a federal court. The Journal relates the judge’s rationale: “offensive speech and a conspiracy to do something other than forcibly resist a positive show of authority by the federal government is not enough to sustain a charge of seditious conspiracy.” Ms. McQuade suggests that the outcome might have been different if there had been a domestic terrorism statute.

I don’t see how that could be so. The First Amendment hurdle would exist regardless of whether the crime were denominated “seditious conspiracy,” “domestic terrorism,” or some other descriptor conveying the concept of forcibly extorting the government. Offensive speech that does not cross the line into incitement is not a crime in this country, no matter what statute a prosecutor invokes.

Moreover, the judge’s rationale intimates that prosecutors lacked evidence of an agreement to use force against the federal government’s authority. If that is so, a federal domestic terrorism statute would not have helped. If there’s no force, there’s no terrorism; and if the force is not directed at some exercise of federal authority, there would be no effort to extort the United States or its government, which is the essence of a federal terrorism offense.

That hardly means there would be no prosecution options. If there actually were threats against the police, or a conspiracy to attack police, this would violate a raft of state criminal laws. And nothing would prevent federal authorities from assisting state police and prosecutors in the investigation — just as state authorities customarily assist the FBI in the latter’s joint terrorism task forces.

There are no meaningful impediments to federal investigation and prosecution of domestic terrorism. Besides seditious conspiracy, there is a broad array of penal statutes covering bombing, firearms, explosives, racketeering and violent gang activity.

There are other very sound reasons why we do not have a federal domestic terrorism crime. As became obvious in the 1960s and ’70s, violent resistance against the government is intertwined with constitutionally protected activity, such as political dissent, group association and the possession of firearms by law-abiding citizens — for their own protection, as well as other legitimate purposes.

International terrorism is significantly different. It involves organizations that our law regards as hostile foreign powers. They are not vested with American constitutional rights; they are not members of our community who have a right to protest vigorously against our government; and their objective is to destroy our society. They largely operate outside the United States; consequently, criminalizing international terrorism enables us to exercise jurisdiction over their menacing plans and acts; and the ability to designate them formally as terrorist organizations enables us to starve them of resources — funding, personnel and other assets, much of which comes from outside the U.S.

We cannot do that in our own country to our own citizens without imperiling their constitutional rights. This is why seditious conspiracy prosecutions can be difficult, and why domestic terrorism prosecutions would be just as difficult.

We should never have to wait for foreign powers to attack before taking action to thwart them. With our own citizens, however, the line we draw is the planned or actual use of force. Until that threshold is crossed, anti-government agitation is protected, regardless of how obnoxious it may be.

Once that threshold is crossed, the federal and state laws we already have are more than adequate to address domestic terrorism. We do not need new ones, and enacting new ones would create constitutional problems without any meaningful security improvement.

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor. His new book, “Ball of Collusion,” was published by Encounter Books on Aug. 13. Follow him on Twitter @AndrewCMcCarthy.