The El Paso terrorist attack has revived interest in the possibility of making “domestic terrorism” a federal offense. The FBI Agents Association, for example, has renewed its earlier call to take that step (see here for a very useful explainer from Charlie Savage yesterday in the New York Times, and also this insightful piece from Adam Goldman, also in the Times, from early June of this year). But do the various arguments for creating at least some type of new federal domestic terrorism statute hold up under close examination?

1. Do we need a federal domestic terrorism law in order to enable prosecution—or sufficiently serious punishment—of persons actually involved in terrorist attacks?

No. We do not have a situation in which persons who are involved in terrorist attacks somehow end up walking free, or getting improperly light sentences, due to a gap in the scope or calibration of criminal laws. This is true regardless of the scope of federal criminal law, for the states are the primary source of criminal law in the American system and every state has a wide array of general-purpose state criminal laws applicable to terrorist acts: murder, attempted murder, conspiracy, destruction of property and so forth. In some states, capital charges are available in some circumstances. I have no doubt that the district attorney in El Paso will pursue capital murder charges in that case, for example. The most one can say on this point is that many states do not have capital punishment, and Congress thus would be making a practical difference by providing a capital option via a new federal domestic terrorism offense.

Is that enough to carry the argument? As an initial matter, I’m very doubtful that this specific gap (the lack of the death penalty in some states) is playing a significant role in the calls for a new federal crime of domestic terrorism. Perhaps some are advancing that point, but not that I’ve seen.

Second, federal law already provides a capital option for some important domestic terrorism scenarios. What’s that you say? You thought that there was no federal crime of domestic terrorism? Read on.

2. Is it true that we do not currently have a federal domestic terrorism crime?

It is true we do not have a single, sweeping statute purporting to criminalize all domestic terrorism. Yet we do have several federal terrorism statutes that apply in the purely domestic context. To assess the argument for adding a new domestic terrorism offense, therefore, it makes sense to start by identifying just what gaps remain once one accounts for the existence of these current statutes.

Title 18 of the U.S. Code contains most federal criminal laws, and it includes a chapter (Chapter 113B) titled “Terrorism.” This is where one finds a variety of federal terrorism-related statutes, including most of the ones commonly used in prosecuting foreign terrorism cases. But not all the “terrorism” crimes listed here are limited to international or foreign fact patterns. Some apply just as well to domestic terrorism.

Take one of the most significant of these crimes: 18 U.S.C. § 2332a. This one, alas, has an unfortunately misleading title, one that makes it sound as if the statute would come into play only quite rarely: “Use of Weapons of Mass Destruction.” Naturally, one would think that this statute makes it a federal offense to use, attempt to use, or conspire to use nuclear, radiological, chemical or biological weapons. And it does do all that. But, critically, it also covers the use of explosives—plain ol’ non-WMD explosives. And it does not require any showing of a transnational or foreign element in the fact pattern. It is enough if there is an interstate commerce element, as is generally required with most federal criminal laws (in order to bring those laws into the scope of federal lawmaking power to begin with, via the interstate commerce authority of Article 1, Section 8, of the Constitution). The point being: This is a key terrorism statute, and it is perfectly available for domestic terrorism cases that involve bombings. Indeed, it was a key charge in the case of Cesar Sayoc, a domestic terrorist who just got a 20-year sentence for attempting to mail bombs to a large number of public figures.

Similarly, 18 U.S.C. § 2332f, also part of the “Terrorism” chapter, addresses the bombing of public places, infrastructure, transportation and the like. And both 2332a and 2332f bear the possibility of the death penalty. And then there is 18 U.S.C. § 2339C (“Prohibitions Against the Financing of Terrorism”). Section 2339C makes it a crime to collect funds knowing or intending that the funds will be used to commit various predicate acts, most of which have an international connection but one of which encompasses attacks on civilians meant to intimidate a population where an element of interstate commerce is present (see the subtle combination of 2339C(a)(1)(B) and 2339C(b)(1)(G)(ii)). Further, we also have 18 U.S.C. § 2339(a), which prohibits harboring or concealing a person you reasonably believe has committed or is going to commit certain offenses, including a violation of the “WMD” (i.e., explosives) statute described above (i.e., 18 U.S.C. § 2332a).

Next up? 18 U.S.C. § 2339A, the original (1994) material support statute. Do not confuse 2339A with its similar-sounding 1996 sibling, 18 U.S.C. § 2339B. Whereas the latter (2339B) is akin to an embargo statute in that it prohibits giving “material support or resources” to a designated foreign terrorist organization regardless of one’s intentions for that support, the former (2339A) is more like an aiding-and-abetting statute in that it makes it a felony to provide material support or resources to anyone—including domestic individuals or groups—with knowledge or intent that the assistance will be used to facilitate any of a long list of predicate federal crimes. Most of those predicate offenses are not relevant to the domestic terrorism scenario, to be sure, but some are. For example, 2339A applies when the support is used to facilitate a violation of 18 U.S.C. § 1114 (murder of U.S. government officials), or 2332a and 2332f (both discussed above). To that extent, the remarkable breadth of the “material support” concept can be brought to bear in cases of those who assist at least some domestic terrorism scenarios.

So what does this leave missing? Two gaps stand out.

First, as El Paso illustrates, terrorist attacks can be devastating without the use of explosives. The statutes listed above do not appear to reach most gun-based scenarios—although 2332a does come into play for some guns, because it incorporates by reference the definition of a destructive device found in 18 U.S.C. § 921(a)(4) and, thus, reaches weapons that “expel a projectile by the action of an explosive or other propellant … [if it has a] barrel with a bore of more than one-half inch in diameter.” This is a concrete difference between the current approach to criminalizing domestic terrorism as compared to foreign/transnational terrorism, for in the latter scenario it generally would be possible to turn to a statute—18 U.S.C. § 2332b (“Acts of Terrorism Transcending National Boundaries”)—that does not distinguish based on the means of violence employed.

Second, the partial availability of a material-support charge under 2339A is just not nearly as useful, from the law enforcement perspective, as having access to the version of material support provided in 18 U.S.C. § 2339B (i.e., the embargo-style prohibition on material support to designated foreign terrorist organizations). The reason why is clear (and helped significantly in gaining passage of 2339B): It is comparatively hard to show a person knows or intends to support a particular criminal act and comparatively easy to show they knew or should have known that their support was going to the benefit of a specific organization. The latter, in fact, opens the door to anticipatory prosecutions of persons whom the government thinks are personally dangerous but cannot yet be linked to particular conspiracies, attempts or completed acts of violence … but who can at least be shown to have given something of value to a designated foreign terrorist organization (including providing themselves as “personnel” subject to the group’s direction and control, thereby encompassing the status of active membership). Some bemoan that scope and some applaud it, but either way the point for present purposes is that it is not available in the domestic terrorism context; we do not have a proscribed-organizations list for domestic terrorist groups.

To sum up: When people say that we lack a federal criminal law for domestic terrorism scenarios, this is only partially accurate. We do have such laws when it comes to explosives, and those laws apply not just to the direct perpetrators but also to those who harbor, finance or otherwise materially support them. Federal law also is effective at reaching domestic terrorists who attack federal officers and installations. What is missing is the domestic terrorism scenario in which the weapon is a firearm (below a certain size), as well as a list of proscribed organizations to which it becomes a crime to provide, knowingly, any form of support (including becoming a person subject to the group’s orders).

3. Bearing those gaps in mind, what are some of the leading current proposals—and what objections might they raise?

Let’s start by noting that few if any people are arguing for legislation to create a domestic version of the designated foreign terrorist organization list, complete with a ban on material support to such groups. Attempting to go that route would court a variety of constitutional problems along the lines of freedom of speech, freedom of association and due process of law. Notably, it is not actually clear that the Constitution would not permit proscription of a domestic organization (cf. the qualified analysis of the Supreme Court in Scales v. United States, addressing the Smith Act’s prohibition on membership in the Communist Party of the United States during the Cold War). Still, any attempt to extend federal law in this direction would face serious constitutional obstacles. And it is hardly clear that it would be wise, in any event. It opens one hell of a can of worms to the government with such a powerful instrument of suppression in the domestic context. To see the pitfalls, one need only envision the power to designate groups that are in the hands of a political party with which one has sharp disagreements.

But what about closing the gap with respect to domestic terrorism carried out by means other than explosives or large-bore firearms? Here the main objection arguably sounds primarily in terms of federalism: that is, the idea that this would mark still another expansion of federal law (and federal enforcement capacity) into a domain previously belonging exclusively to the states. That is an argument that will resonate with some, certainly, but others will find it a modest objection as compared to potential enforcement benefits, symbolism and so forth.

What might such a law look like? One oft-cited proposal, discussed here on Lawfare by Mary McCord and Jason Blazakis, would take the transnational terrorism offense noted above (18 U.S.C. § 2332b) and simply restate it in a manner that would apply to domestic terrorism. McCord and Blazakis pitched the idea this way:

Based roughly on current 18 U.S.C. § 2332b, the statute could make it a federal criminal offense to kill, kidnap, maim, commit an assault resulting in serious bodily injury or an assault with a dangerous weapon, or destroy property causing significant risk of serious bodily injury, when done with one of the intents included in the current federal definition of domestic terrorism: (1) to intimidate or coerce a civilian population, (2) to influence the policy of government by intimidation or coercion, or (3) to affect the conduct of a government. The statute should apply to attempts and conspiracies too.

Similarly, some have proposed simply attaching criminal penalties to the existing statutory definition of “domestic terrorism” found in 18 U.S.C. § 2331(5) (a definition that currently is there simply to provide meaning when that phrase is used in a handful of other statutes, such as certain sentence-enhancement provisions). Roughly speaking, it tracks with the 2332b-based model described above. Both approaches, in short, are agnostic as to the means of violence associated. Indeed, they would reach even assaults carried out with mere fists and feet, if harmful enough. That would certainly close the gap, with both the benefit and the cost of thereby extending federal law enforcement equities (potentially displacing local preferences) significantly.

4. So there are gaps that could be closed. But why should they be closed?

One possibility is that having such a statute might be helpful in terms of ensuring that there can be (or perhaps would even have to be) FBI involvement at the investigative stage. The idea here is that this could be beneficial in terms of making available greater resources, investigative technologies and the like. That argument presupposes, of course, that federal authorities currently lack grounds to become involved in domestic terrorism investigations if the gap is not closed. Is that quite right? The question is tricky. There is no doubt that the FBI already conducts domestic terrorism investigations (described as such) in at least some circumstances (as one would expect, given the several terrorism statutes noted above as well as a variety of more-general firearms and other offenses that might come into play in such cases). At the same time, there are some scenarios in which the coverage gap might make it hard to establish federal equities, let alone an argument for investigative primacy.

A further possibility is that creation of some sort of federal domestic terrorism statute would be beneficial to the larger project of stemming domestic political violence due to what we might call the “narrative impact” or “signaling effect” of such a high-profile development. The idea here is that it would indicate seriousness of purpose, help steer discretionary allocations of investigative resources, and hopefully help to further delegitimize domestic political violence. Whether enactment of a new federal criminal statute would accomplish the latter two goals is not obvious, however, though I think it clearly would address the first item on that list. That said, if an important goal is to nudge allocations of investigative and enforcement resources, there are more direct—and likely more impactful—approaches available to Congress. And it is worth mentioning that federal engagement will not always have a clear-cut positive impact on the battle of narratives and legitimacy across all relevant audiences, however unjust it may be for some communities to demonize “the feds.” This was a familiar insight in the 1990s—from controversial events such as the Branch Davidian episode outside Waco, Texas—and one we should bear in mind now.

5. Enough about the scope of federal criminal law. What about expanding surveillance authorities, as we have done for foreign-intelligence collection purposes?

I have not seen anyone calling for an attempt to create a domestically focused analogue to the Foreign Intelligence Surveillance Court system (let alone something akin to Section 702), so I won’t dwell on this other than to say the following: There has not been any significant appetite, since the 1970s, for crafting a purely domestic surveillance system along the lines the Supreme Court suggested in the famous Keith case. In Keith, the court rejected the idea of a “domestic intelligence” exception to the warrant requirement, finding the warrantless surveillance of someone who might today be described as a suspected domestic terrorist to be unconstitutional. But the court also observed that Congress could, if it wished, create a system for courts to grant warrants in that scenario based on a probable cause showing directed at intelligence relevance or the like as opposed to the ordinary focus on crime. Ultimately, Congress declined to take up that task, focusing instead on doing this solely for the foreign-intelligence collection scenario (and, thus, the Foreign Intelligence Surveillance Act). Doing the same thing so as to wiretap wholly domestic targets might be able to pass constitutional muster according to the dicta in Keith, but it still smacks of authoritarianism, and with ample criminal-investigative authorities in hand (thanks to Title III), it hardly seemed justified to push for such tools.

As terrible as the mounting problem of domestic political violence today appears to be, I see zero basis for revisiting that particular judgment. We need many things to address this problem—including fresh resources and national leadership capable of speaking on this topic with credibility and conviction—but the case for expanded surveillance powers has not been made.