11.3 Domestic Terrorism

WHO? Domestic Terrorists.

WHAT? Are US residents who commit terrorist acts not directed by foreign agents.

WHEN? The Fourth Amendment requires the FBI to have “probable cause” to investigate.

WHERE? The First Amendment blurs the line between “free speech” and “criminal conspiracy”.

WHY? In advance of an attack, it is not easy to prove domestic terrorism in a US court of law.

Remember, Title 18 Section 2331 United States Code defines terrorism as a violent crime with the intent to coerce US government. Also remember, as we learned in Topic 6.1, the FBI, responsible for enforcing US Federal law, is the lead federal agency for counterterrorism. In this role, the FBI broadly classifies terrorists into two groups: 1) domestic, and 2) international. In this topic, we will take a look at domestic terrorism. According to the FBI, a domestic terrorist is a US resident, citizen or not, who commits a terrorist act inside or outside the US. Although not part of its official definition, the FBI only considers a suspect to be a domestic terrorist if they meet the residency requirement and their actions are not directed by a foreign source. This is a tricky distinction. What it’s saying is that if you are a US resident, citizen or not, but commit a terrorist act at the direction of a foreign source, let’s say ISIS, then you are an international terrorist. And here’s why this is tricky. Because if you are a US resident, citizen or not, and commit a terrorist act and CLAIM it in the name of ISIS, you are still a domestic terrorist because you weren’t directed. In the end, what difference does it make? A terrorist is a terrorist, right? Not exactly. The difference is that US residents, citizen or not, have constitutional rights. Remember Topic 1.5 when we talked about the Bill of Rights? All US residents are afforded legal protection under the Fourth Amendment, which guards against unreasonable search and seizure. This means that the FBI can’t cast an indiscriminate net to try and find domestic terrorists. As we learned in Topic 6.2, the FBI must have a “factual predication”, some indication of possible criminal activity or threat to national security in order to open an investigation. Factual predication is necessary for a search warrant so the FBI can conduct individual surveillance. This means that a potential domestic terrorist must somehow come to the attention of the FBI so they can establish “probable cause” in accordance with the Fourth Amendment. In January 2019, students reported a classmate to police after he made strange comments about school shootings. Subsequent interviews uncovered a plot by three teenagers to attack a New York Muslim community named Islamberg using a cache of 23 guns and three homemade bombs. Still, it’s not easy to uncover a domestic terrorist plot. The Second Amendment protects an individual’s freedom of expression. Certainly, not all speech is free. You can’t run into a crowded theater and shout “fire!”. According to the Supreme Court, speech intended to incite violence or harm is not protected by the Constitution. Otherwise, to paraphrase President Truman, “In this country you can only be arrested for your actions, not your beliefs.” Accordingly, group affiliation, does not automatically make you a terrorist. This is one reason why the FBI doesn’t identify any groups as specifically “terrorist”. As a US resident, you can claim yourself a member of ISIS, and not get arrested. However, depending on things, your declaration may allow the FBI, according to the USA PATRIOT ACT, to perform an “assessment” that may reveal a “factual predication” justifying investigation. Even so, it is difficult to discern when “free speech” crosses over into “criminal conspiracy”. This makes it hard to prove domestic terrorism in a court of law. Accordingly, most suspected domestic terrorists are arrested under other, more substantive charges. In February 2019, Christopher Paul Hasson, a Coast Guard Officer, was arrested on drug and gun charges despite clear evidence of domestic terrorist intentions. The FBI found 15 guns and 1,000 rounds of ammunition in Hasson’s basement. They also found an email with a target list that included House Speaker Nancy Pelosi and other members of Congress.