POLITICS
04/12/2018 04:54 pm ET

Americans Are Surprised Domestic Terrorism Isn’t A Federal Crime. Most Think It Should Be.

The lack of a federal criminal statute outlawing domestic terrorism "causes confusion and frustration," according to an FBI special agent.
A vehicle drives into a group of protesters demonstrating against a white nationalist rally in Charlottesville, Virginia
AP
A vehicle drives into a group of protesters demonstrating against a white nationalist rally in Charlottesville, Virginia, on Aug. 12, 2017.

A white supremacist kills nine black churchgoers in Charleston, South Carolina. A neo-Nazi drives his car into a crowd of anti-racist protesters in Charlottesville, Virginia, killing one person and injuring 19 others. A left-wing activist opens fire on Republican congressmen practicing softball near Washington, D.C., nearly killing the House majority whip.

None of these attacks were charged as ― or could have been charged as ― acts of domestic terror by the federal government. Americans want that to change.

Sixty-eight percent of Americans say there should be a federal criminal law against domestic terrorism, according to a new HuffPost/YouGov survey. Nearly half conceded that, before taking the survey, they were unaware that there wasn’t a federal criminal law that broadly outlaws acts of domestic terrorism. Another 24 percent weren’t sure if they’d heard that fact before.

Americans who said they previously didn’t know there wasn’t a federal crime of domestic terrorism were even more likely to say that should change: 83 percent of them said there should be a federal criminal statute against domestic terrorism.

The fact is, while the U.S. Code defines the phrase ‘domestic terrorism,’ there are currently no penalties attached to that definition. Therefore ‘domestic terrorism’ is not a crime in and of itself under federal law. FBI Special Agent Thomas O'Connor

It’s “not surprising” that a lot of Americans don’t realize domestic terrorism isn’t a federal crime, said FBI Special Agent Thomas O’Connor. He is the head of the FBI Agents Association, which has been working with the bureau and Justice Department, as well as lobbying congressional leaders, to create a federal criminal domestic terrorism statute.

“Most American assume that ‘domestic terrorism’ is a federal crime,” O’Connor said this week in a statement issued to HuffPost in his capacity as head of the FBIAA. “The fact is, while the U.S. Code defines the phrase ‘domestic terrorism,’ there are currently no penalties attached to that definition. Therefore ‘domestic terrorism’ is not a crime in and of itself under federal law.”

“Congress can quickly and easily end this confusion and fix the problem by amending the U.S. Code to make domestic terrorism a crime subject to specific penalties that apply irrespective of the weapon or target involved in the crime,” he added. 

The HuffPost/YouGov survey found that support for a federal domestic terrorism law was bipartisan: 82 percent people who voted for Hillary Clinton, and 69 percent of people who voted for Donald Trump, said there should be such a law.

Forty percent of Clinton voters thought domestic extremists posed a greater threat to the United States than foreign extremists, while 49 percent of Trump voters thought foreign extremist groups like the Islamic State were more of a threat. Just 3 percent of Trump voters though domestic extremist groups were a bigger threat, while 6 percent of Clinton voters thought foreign terrorist organizations were a bigger threat. (Forty-nine percent of Clinton voters thought domestic and foreign extremists posed an equal threat.)

There was a significant gap between Clinton and Trump voters in terms of how they judged the government’s response to domestic extremist threats: 75 percent of Clinton voters thought the government didn’t take domestic extremism seriously enough, while just 34 percent of Trump voters agreed.

Use the widget below to further explore the results of the HuffPost/YouGov survey, using the menu at the top to select survey questions and the buttons at the bottom to filter the data by subgroups:

The U.S. Code defines the term domestic terrorism, but there’s not a criminal statute that lays out penalties for attacks motivated by extremist ideologies.

Some types of violent acts committed by domestic terrorists can be charged under other federal laws, but the government has more tools to use against foreign extremists ― which results in disparate outcomes for Muslim and non-Muslim violent extremists.

Take, for examples, the prosecutions of Sayfullo Saipov and James Alex Fields Jr. Saipov drove a rented truck into a bike path in lower Manhattan last fall, killing eight people and injuring a dozen. Fields is the neo-Nazi accused of driving his car into a crowd in Charlottesville last year.

Among the slew of federal charges Saipov faces is a count of providing and attempting to provide material support to ISIS — a terrorism charge. He also faces eight counts of murder in aid of racketeering and 12 counts of attempted murder in aid of racketeering because federal prosecutors have labeled ISIS a criminal enterprise. Fields, meanwhile, faces a state charge of first-degree murder. Even though Attorney General Jeff Sessions said the attack was “the definition of domestic terrorism,” he hasn’t been charged with any crime on the federal level, let alone a terrorism-related crime.

Sixty-five percent of Americans think the attack in Charlottesville counts as terrorism, according to the HuffPost/YouGov poll. Twenty percent said they weren’t sure, and 15 percent said the attack wasn’t terrorism. Clinton voters were more likely to think the Charlottesville attack was terrorism: 80 percent said it was, compared to 63 percent of Trump voters.

The lack of a federal crime of domestic terrorism affects how media outlets cover such attacks, as reporters often take the lead from prosecutors when describing them. Federal law enforcement officials are constrained in their ability to label acts of domestic terrorism as such for fear it could impact a future prosecution, as the Justice Department’s top domestic terrorism official explained earlier this year.

“The department is very judicious about deploying the term in the first instance, and typically will only do so in the backend of litigation when the facts and circumstances are going to be clear,” Thomas Brzozowski said. By that point, he noted, the media narrative tends to be firmly established.

Under the current federal law, perpetrators can only be prosecuted on a terrorism-related charge when they’ve either taken a very specific type of action or if they have claimed allegiance to a foreign terrorist organization that’s on a list made up of mostly radical Islamist groups. In practice, this has meant the vast majority of people the government charges as terrorists are Muslim.

Even retweets in support of a designated foreign terror group like ISIS can be considered material support, and raise the possibility of a federal terrorism-related charge. According to The Intercept’s Trial and Terror project, nearly 70 percent of terrorism defendants in FBI stings since 9/11 have been charged with “material support” — a charge that can’t be applied to violent domestic extremists, the majority of whom are likely to be white or non-Muslim. The material support charge also makes it easier for the government to run sting operations against supporters of foreign terrorist groups than it is against domestic extremists.

An equivalent material support law that applied to domestic extremist groups would be unconstitutional and highly problematic: The government shouldn’t be labeling U.S.-based organizations, whose speech is protected by the First Amendment, as terrorist organizations. But supporters of a change to the current federal law say the legislation could be tailored to apply only to acts of violence committed to advance a political agenda by intimidating the public or influencing government policy.

“I think that domestic terrorism should be put on the same moral plane as international terrorism,” Mary McCord, the former head of the Justice Department’s National Security Division, previously told HuffPost. “When the reason for a crime of violence is in order to influence a civilian population, or influence actions of the government ... it certainly has the same level of seriousness and should be taken just as seriously as international terrorism.”

The outcomes for non-Muslim defendants can end up being much different than they are for people charged under laws that apply only to international terrorism. Muslim defendants will on average receive a 211-month sentence, according to a report released this month by the Institute for Social Policy and Understanding. Non-Muslim defendants, meanwhile, receive on average receive a 53-month sentence. 

ISPU

This disparity is likely due in part to Muslims receiving more severe terror charges. Of Muslim defendants allegedly involved in violent plots, 83 percent faced terror charges, including material support of a terror group, and weapons of mass destruction, according to the ISPU. Less severe charges were filed against non-Muslim defendants, with 83 percent facing non-terror charges of possession of a firearm as a felon, or possession of means to make explosives.

It’s not as if right-wing and other non-Muslim extremists are less dangerous than Muslim extremists. If anything, studies have shown the opposite to be true. But you’d never know that from reading Justice Department press releases. The DOJ “issued press releases from its national office six times as often in regards to violent plots by Muslim-perceived perpetrators than violent plots by non-Muslim-perceived perpetrators,” the ISPU report says.

ISPU

The problem is compounded by the media.

Muslim perpetrators of alleged foiled violent ideological plots received a staggering 770 percent more media coverage than non-Muslim perpetrators of the same alleged crimes, according to an ISPU analysis of print archives of The New York Times and The Washington Post.

The lack of a federal criminal domestic terrorism statute also means the FBI doesn’t track crimes of domestic terrorism, so there aren’t federal statistics to illustrate the scope of the problem.

“If you look up domestic terrorism in general and try to figure out the numbers of domestic terrorism incidents that have taken place in the United States over the past 20 years, you’re never going to come up with an accurate number because people haven’t been charged with domestic terrorism,” the FBI’s O’Connor previously told HuffPost.

The net effect is that the word “terrorism” among Americans is all but synonymous with “Muslim” — which both minimizes the very real danger of non-Muslim extremists and further foments bigotry against Muslim Americans.

“American Muslims have been unfairly targeted and profiled using a double standard under current federal terrorism laws,” Nihad Awad, executive director of the Council on American-Islamic Relations, said in a statement.

The HuffPost/YouGov poll consisted of 1,000 completed interviews conducted March 27-29 among U.S. adults using a sample selected from YouGov’s opt-in online panel to match the demographics and other characteristics of the adult U.S. population.

HuffPost has teamed up with YouGov to conduct daily opinion polls. You can learn more about this project and take part in YouGov’s nationally representative opinion polling. More details on the polls’ methodology are available here.

Most surveys report a margin of error that represents some, but not all, potential survey errors. YouGov’s reports include a model-based margin of error, which rests on a specific set of statistical assumptions about the selected sample rather than the standard methodology for random probability sampling. If these assumptions are wrong, the model-based margin of error may also be inaccurate. Click here for a more detailed explanation of the model-based margin of error.

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