Why The Government Can't Bring Terrorism Charges In Charlottesville | KUOW News and Information

Why The Government Can't Bring Terrorism Charges In Charlottesville

Aug 14, 2017
Originally published on August 14, 2017 8:31 pm

When Attorney General Jeff Sessions was asked how he viewed the car attack in Charlottesville, Va., here's how he responded:

"It does meet the definition of domestic terrorism in our statute," he told ABC's Good Morning America.

That certainly seems to suggest the government is looking into a possible terrorism charge against the suspect, 20-year-old James Alex Fields Jr. At Saturday's rally organized by white supremacists, a car slammed into counterprotesters, killing one and injuring 19.

But according to the Justice Department and legal analysts, it's simply not possible for the government to file charges of domestic terrorism, because no such criminal law exists.

The Patriot Act does define domestic terrorism, and under this designation, the Justice Department has broad powers to investigate, said Neal Katyal, a Georgetown University law professor who served as former President Barack Obama's acting solicitor general and as the national security adviser to the Justice Department.

He said the government has three basic ways to approach the Charlottesville case.

"No. 1, this is a hate crime, under the hate crime statutes," he said. "The second is that this is a conspiracy to deprive individuals of civil rights."

"And the third is, this is an act of domestic terror, which isn't itself a crime," he noted. In short, the government can't file a criminal charge of domestic terrorism, but so defining the incident does allow it to investigate not only an individual suspect, but also any group the suspect may be affiliated with.

In an email to NPR, the Justice Department made the same point.

The commonwealth of Virginia, meanwhile, has charged Fields with second-degree murder and other crimes.

The Charlottesville case has again spurred a discussion about describing far-right violence as terrorism. After the al-Qaida attacks of Sept. 11, 2001, terrorism was associated primarily with radical Islamist groups based abroad.

The State Department has a list of nearly 60 groups, all foreign, that are identified as terrorist organizations. The vast majority are radical Islamists. And the government can charge a person — American or foreign — with terrorism on behalf of these international groups.

Consider this hypothetical: If the Charlottesville attacker emerged from the car and said he was acting on behalf of the Islamic State, he could be charged with international terrorism, according to Katyal.

Inside the U.S., the political debate appears to be shifting, with growing numbers calling for far-right extremism to be identified as terrorism. But that's almost entirely a political discussion, not a legal one.

On the legal front, there's still a good deal of resistance to creating a criminal charge of domestic terrorism.

"It's an incredibly broad label," said Hina Shamsi, director of the national security project at the American Civil Liberties Union. "There's a real danger of the government criminalizing ideology, theology and beliefs rather than focusing on specific criminal acts."

She said creating a domestic terrorism charge could quickly raise all sorts of political questions about free speech and religion. The ACLU opposes any such law, believing it could be politicized and used, for example, against anti-war groups or environmental activists.

Back in 1995, when Timothy McVeigh killed 168 people with a truck bomb at a federal building in Oklahoma City, it was widely described as the worst act of domestic terrorism to that point.

Yet he was charged with, convicted of and executed for killing federal agents and other crimes — but not terrorism.

The government has historically used the term "terrorism" as a general description for a range of violent acts, including those by right-wing extremists, as well as environmental, anti-abortion and far-left groups. But the specific criminal charge is never domestic terrorism.

Another case came to light Monday, when the Justice Department announced it had arrested a man for allegedly attempting to set off a truck bomb in front of a bank in Oklahoma City on Saturday.

The bomb didn't detonate, the department said. But its description of the case is similar to McVeigh's attack, claiming the suspect, Jerry Varnell, 23, was angry with the government.

The FBI's Joint Terrorism Task Force is leading what's being described as a "domestic terrorism investigation." Yet the formal charge against Varnell is "attempting to use explosives to destroy a building in interstate commerce."

Not terrorism.

Copyright 2018 NPR. To see more, visit http://www.npr.org/.


James Alex Fields Jr. is accused of driving his car into a crowd Saturday in Charlottesville. He allegedly attacked people who were demonstrating against a white supremacist gathering. Fields is being held without bond on several charges, including the murder of one woman, Heather Heyer. Attorney General Jeff Sessions was on ABC's "Good Morning America" today, and when he was asked what the Justice Department would be investigating in connection to the allegations against James Alex Fields Jr, Sessions said this.


JEFF SESSIONS: Well, it does meet the definition of domestic terrorism in our statute.

SIEGEL: Which seems to suggest that the government is looking into a possible terrorism charge against Fields. Well, it's complicated, so NPR national security correspondent Greg Myre is here to help explain. Hi, Greg.


SIEGEL: The attorney general and many others are calling this domestic terrorism. Should we expect charges of domestic terrorism to be filed?

MYRE: No, and there's a short and simple answer. There is no domestic criminal charge for domestic terrorism. There's this political discussion we're having, and people say, well, we've been - we call radical Islamic terrorism; we should call this when there's right-wing violence. That needs to be identified as terrorism as well.

So this is a political debate. People can fall wherever they may on - in this discussion. But then there's also the legal definition. And so I called Neal Katyal. He was President Obama's acting solicitor general, tried many cases in front of the Supreme Court. And I ask him about the legal definition of domestic terrorism.

NEAL KATYAL: The problem is that itself, domestic terror is not a crime. It does allow the FBI to open up an investigation and to dedicate law enforcement resources, not just to examining what any particular individual did, like this driver, but to examine the group as a whole.

SIEGEL: So what options are open to the government then?

MYRE: Well, according to Katyal, they have a couple options. They could look at a hate crime, for example, or a civil rights violation. And with the Patriot Act, you can open a domestic terrorism investigation. And this does give the government broad powers. And this seems to be what Jeff Sessions was referring to.

You can do a lot of things. You can look at an entire group, not just the individual involved here. And again, we're just talking about federal charges here. You've got the state court. And the suspect was charged today with second-degree murder and other crimes as well.

SIEGEL: But the federal government keeps a list of terrorist groups. How many of those groups are actually domestic groups?

MYRE: Zero. The State Department has a list - about 60 groups, many of the usual suspects - al-Qaida, the Islamic State. We're familiar with some of them - others that are more obscure. But they all have one thing in common. They're all foreign-based groups.

And here's sort of an interesting hypothetical that I ran by Katyal. If the exact same thing had happened in Charlottesville but the man in the car got out and said, I'm with the Islamic State; I did this on behalf of the Islamic State, then theoretically he could be charged with an international terrorist act because of that affiliation.

SIEGEL: So domestic terrorism is, as you say, a political phrase. There's no such act. But there have been previous cases where we've heard the phrase and they were prosecuted.

MYRE: Oh, absolutely - perhaps the most prominent - Timothy McVeigh back in the mid-'90s. He's the guy that set off the truck bomb at a federal building in Oklahoma City, killed 168 people. But he wasn't prosecuted for terrorism. He was prosecuted for killing federal agents. He was tried, convicted, put to death. So all of these penalties are available but just not the terrorism charge. And we've seen the government talk about terrorism with far-right extremist, the environmental movement, anti-abortion extremist, the far-left - again, talking about it in general terms but not prosecuting under that term.

SIEGEL: In fact there's another case developing today also in Oklahoma City. What can you tell us about that one?

MYRE: Well, just on Saturday, the - there was an arrest of a young man named Jerry Varnell. The suspect allegedly tried to detonate a van he thought was full of explosives. And this is being investigated by the FBI's Joint Terrorism Task Force as a domestic terrorism investigation. But the charge is attempting to use explosives to destroy a building and interstate commerce, not terrorism.

SIEGEL: This is NPR's national security correspondent Greg Myre. Thank you, Greg.

MYRE: Thanks, Robert.

(SOUNDBITE OF KMD SONG, "GET YOU NOW") Transcript provided by NPR, Copyright NPR.