Excerpted From: Sophia Houdaigui, Domestic Terror Across State Lines: A Failed Federal Framework, 2023 University of Chicago Legal Forum 363 (106 Footnotes) (Full Document)


SophiaHoudaigui.jpegOn September 11, 2021, Joey David George called a cannabis dispensary in Rockville, Maryland from his home in Lynwood, Washington. He employed racial slurs against the employees, threatening to shoot them and kill Black patrons of the business. That same day, George called a Denny’s restaurant in Enfield, Connecticut, and threatened Black individuals in the restaurant. In May 2022, he called a restaurant in San Bruno, California, and “allegedly threatened to shoot Black and Hispanic patrons in the restaurant.” On July 19, July 20, and again on July 21, 2022, George called multiple grocery stores in Buffalo, New York. On these phone calls, he expressly threatened to shoot Black patrons, telling the staff to “take him seriously” and ordering the store to clear out the customers as he was “nearby” and “preparing to shoot all Black customers.” Under the existing federal statutory framework, George’s threats are not considered attempted acts of domestic terrorism.

Recently, Seth Jones, director of the database project at the Center for Strategic and International Studies, declared that a significant threat facing the United States “is that the number of domestic terror plots and attacks are at the highest they have been in decades.” This consequential increase in domestic terrorist activity can be traced back to 2014, with approximately thirty-one fatalities occurring per year since then. Additionally, in 2017, the Federal Bureau of Investigations (FBI) produced a report announcing that white supremacists posed a “persistent threat of lethal violence” to the United States. The report detailed that white supremacists had “produced more fatalities than any other category of domestic terrorists since 2000.” These fatalities “have [been] targeted [at] individuals because of their racial, ethnic, religious, or political makeup–such as African Americans, immigrants, Muslims, and Jews.” Federal officials have varied in their approach to prosecuting white supremacist violence, which seems to be exacerbated in instances where people cross state borders to commit violent acts.

This inconsistent prosecutorial approach may be due, in large part, to the lack of a consistent definition of “domestic terrorism” at the federal level. While terrorism is not an explicit charge under federal law, Chapter 113B in Title 18 of the U.S. Code is intended to provide guidance for prosecuting terrorism. 18 U.S.C. § 2331 offers broad definitions of international and domestic terrorism, while 18 U.S.C. § 2332b(g)(5) details specific associated offenses that are “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.”

Federal agencies and pertinent legislation utilize distinct definitions of domestic terrorism consistent with their respective missions and goals. The FBI employs 18 U.S.C. § 2331(5)’s general definition of “domestic terrorism.” The FBI augments this initial interpretation by using the term “violent extremism” to refer to associated threats. This narrowed focus on “violent extremism” is motivated by the FBI’s mission to prevent “terrorist attacks in the United States, including those conducted by Domestic Violent Extremists.”

The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, more commonly referred to as the Patriot Act, offers a constricted interpretation of domestic terrorism. As the Act was motivated by the horrific events of September 11, 2001, the legislation places significant weight on the importance of differentiating between international terrorism and domestic terrorism. The Patriot Act does so by specifying that domestic terrorism acts have to occur primarily within the territorial jurisdiction of the United States.

The Department of Homeland Security’s (DHS) definition of “domestic terrorism” slightly broadens the application of the FBI’s interpretation of “domestic terrorism.” The Department’s definition is derived from the Homeland Security Act’s definition of terrorism, 6 U.S.C. § 101(18). This expanded interpretation stems from the core mission of DHS, an agency that was born out of the September 11 attacks. As such, there are a variety of definitions of domestic terrorism that differ in scope that could be employed by federal prosecutors.

In contrast, definitions of international terrorism are largely consistent across the federal government. Additionally, individuals suspected of international terrorism are charged at much higher rates than those accused of domestic terrorism. Such discrepancies in prosecutorial rates raise questions concerning the need to establish consistency in the definition of “domestic terrorism” within the federal government.

Existing scholarship has raised questions regarding the significance of classifying violent acts by white nationalist organizations as terrorism when other federal charges can be used instead. For example, some have argued that classification of these previously mentioned acts as domestic terrorism may do “little to deter the increasingly frequent mass killings perpetrated by white supremacists and other extremists.”

Advocates of the existing legal framework additionally refer to the fact that federal prosecutors have the opportunity to employ other federal charges, including hate crimes, terrorism-related sentencing enhancements, and firearm-related charges. Scholars have rebuffed the current prosecutorial reliance on hate crime charges, with Professor Daniel Medwed remarking that “[t]here is this symbolic idea that a hate crime is more personal and it doesn’t relate to broader issues in society. Whereas an act of terrorism is often associated with a larger political movement. And by classifying it as a hate crime, someone might diminish its’ [sic] larger implication ....” Firearms charges, as found in 18 U.S.C. § 924(c)(1), are additionally implemented against individuals committing associated domestic terrorist acts. However, relying on these charges limits prosecutors as they do not encapsulate the broader social and political issues concerning acts of domestic terrorism, particularly regarding the prosecution of white supremacists.

Due to the lack of common terminology in referencing domestic terrorism, a number of white supremacists who have crossed state boundaries to commit violent acts are prosecuted under federal hate crime and firearm laws. As such, these white supremacists are not subject to the harsher criminal penalties and social impacts of domestic terrorism charges. To properly address and regulate the interstate travel of individuals to commit white nationalist violence, the existing domestic terrorism statutory framework must be applied vigorously. In order to ensure that this framework is enforced against perpetrators of such violent crimes, this Comment argues that a consistent definition of “domestic terrorism” should be employed at the federal level.

Part II provides a brief history of the impact of the events of September 11, 2001 on domestic and international terrorism policy. This history will contextualize the subsequent invocation of international terrorism charges at significantly higher rates than those of domestic terrorism. Part III introduces the lack of a general criminal statute prohibiting acts of terrorism and discusses the issues associated with the varying definitions of domestic terrorism employed by the federal government. It will then propose that the variety in domestic terrorism definitions has contributed to low prosecution rates of white supremacists. Part IV argues for the implementation of a consistent definition of domestic terrorism within the federal government. Combatting inconsistency within the existing statutory framework could provide prosecutors with an additional tool to sufficiently address domestic terrorism threats. Specifically, a strengthened framework could lead to the regulation and subsequent prosecution of white supremacists who cross state lines to commit violent acts. Part V concludes.

[. . .]

As white supremacist violence has substantially increased over the last two decades, calls to combat associated attacks have intensified. Due to the lack of a federal statute criminalizing domestic terrorism, prosecutors turn to the existing statutory framework. In contrast to international terrorism, where prosecutors feel comfortable bringing forward charges against accused individuals, the existing domestic terrorism landscape is underdeveloped. This lack of employment is due in large part to the variety of definitions of domestic terrorism used at the federal level.

In an effort to combat the interstate travel of white supremacists crossing state lines to commit violent acts, definitional consistency must be introduced with regard to domestic terrorism. Were the government to employ 18 U.S.C. § 2331(5) at the federal level, prosecutors could begin to feel empowered to bring accurate charges against white supremacists like Joey David George. In doing so, both prosecutors and the American public could begin to formally recognize these individuals for what they truly are: domestic terrorists that pose a substantial threat to the nation.<

B.A., Barnard College of Columbia University, 2021; J.D. Candidate, The University of Chicago Law School, 2024.