Is DOJ Rethinking Material Support Laws and Domestic Terrorism?

In December, following the Planned Parenthood shooting and San Bernardino attacks, I shared some thoughts on the differences between domestic and international terrorism laws in the U.S. There, I argued that it was both rational and protective of civil liberties to avoid extending the substantive offenses and law enforcement authorities of international terrorism domestically. Over at Empty Wheel, Marcy Wheeler countered that treating similar crimes differently results in unacceptable disparate impact (I responded to some of her specific points here).

One thing Wheeler and I appeared to agree on, is that there is a demonstrable disparate impact to Muslim populations in the realm of material support laws. Put simply, supporting a foreign terrorist organization –designations which are overwhelmingly applied to groups of Islamic identity—is a serious federal offense. While supporting a domestic terrorist organization—say, an armed militia occupying a federal building—is not. That results in more Muslims being charged with terrorism-adjacent crimes than similarly situated non-Muslims. And that’s a problem.

John Carlin, Assistant Attorney General for National Security, might agree. Carlin says

his counter-terrorism team, including a recently hired counsel, is taking a “thoughtful look at the nature and scope of the domestic terrorism threat” and helping to analyze “potential legal improvements and enhancements to better combat those threats.

Carlin declined to comment on any legislative changes the Department of Justice might seek. But Reuters notes:

[F]ederal prosecutors tackling domestic extremists still lack an important legal tool they have used extensively in dozens of prosecutions against Islamic State-inspired suspects: a law that prohibits supporting designated terrorist groups.

Carlin and other Justice Department officials declined to say if they would ask Congress for a comparable domestic extremist statute, or comment on what other changes they might pursue to toughen the fight against anti-government extremists.

The U.S. State Department designates international terrorist organizations to which it is illegal to provide "material support." No domestic groups have that designation, helping to create a disparity in charges faced by international extremist suspects compared to domestic ones.

We are certainly in—as Carlin puts it—a “heightened environment,” with respect to ideologically-motivated, domestic violent extremists (also known as domestic terrorists). But DOJ's “thoughtful look” should include real consideration of whether the right answer here is that material support charges should apply to fewer people—not more.