If the Mail Bomber Had Worn an ISIS Hat

The government rarely charges domestic extremists as terrorists.

Cesar Sayoc Jr., a registered Republican with a long criminal history, was arrested on Friday in connection with more than 10 mail bombs sent to prominent Democrats and critics of President Donald Trump. He was charged with five federal crimes, including threats against former presidents, but he was not charged with terrorism. And it’s a safe bet that unless it turns out that Sayoc was inspired by a foreign terrorist organization as opposed to domestic politics—which appears to be the case—terrorism won’t be added to the bill.

A perpetrator’s ideology should not dictate the nature of justice that he or she receives, but that is precisely what happens under today’s laws.

Although the secretary of state has designated almost 70 foreign terrorist organizations, the federal government does not officially designate domestic terrorist organizations or individuals. The U.S. legal code does define domestic terrorism: acts meant to intimidate a civilian population or influence government policy through coercion. It does not, however, identify penalties associated with it. As a result, individuals responsible for attacks that federal law enforcement would consider domestic terrorism often are not charged as terrorists.

The Oklahoma City bomber, Timothy McVeigh, was convicted of murder, and the Charleston church shooter, Dylann Roof, was convicted of federal hate crimes, despite the fact that both men’s actions clearly met the U.S. definition of terrorism. Ted Kaczynski, a.k.a. the Unabomber—one of the most famous American terrorists, who earned his sobriquet sending bombs through the mail—pleaded guilty to illegally transporting, mailing, and using bombs, and to three counts of murder, but not to terrorism. And now the suspect responsible for the recent spate of mail bombs is unlikely to be charged with terrorism. But if he’d waved an ISIS flag instead of a MAGA hat, the story would be quite different.

The same violent crime is labeled and tried differently depending on what inspired it. This may seem like semantics, and thus inconsequential, but the terrorism label matters in part because it carries a powerful stigma. Describing domestic terrorists as terrorists can help to discredit them among potential supporters and isolate them from the wider public.

The United States has devoted immense resources to combating jihadist ideology over the past 17 years. Soon after 9/11, the newly appointed U.S. ambassador to Saudi Arabia pressed the government there to rein in the religious establishment from promoting the radical Wahhabi doctrine that inspires many jihadists. “What you teach in your schools and preach in your mosques now is not an internal matter,” the ambassador told his Saudi counterparts. “It affects our national security.” Many homegrown terrorists are inspired by foreign jihadist ideology, but others are inspired by U.S. extremist movements. The government has not made a similar effort to hold this latter set of actors accountable.

Instead, the federal government has kneecapped itself when it comes to fighting domestic terrorism. Designating foreign groups as terrorist organizations enables prosecutors to charge individuals with providing material support to them. Stateside, because there are no such designations, it is more difficult to curb financing or other forms of support for violent extremist organizations.

Some individual states have domestic terrorism laws in place, but this patchwork system is no substitute for a comprehensive federal law. It’s also not terribly useful in cases where the crime in question crosses state boundaries or touches on federal agencies, such as the U.S. Postal Service.

The administration and Congress need to work together to amend the law in order to give the criminal charge of domestic terrorism some teeth. Beyond the immediate benefits in terms of administering justice, this move could also force the federal government to clarify its concept of domestic terrorism as a first step toward developing a list of designated individuals or organizations.

Rectifying these deficiencies sounds easy enough in theory. In practice, there are two major barriers to action.

First, there are legitimate concerns that laws designed to counter domestic terrorism could be used to impinge on civil liberties, including freedom of speech or other constitutionally protected activities. Yet the government already has experience navigating these issues when it comes to combating homegrown jihadists. It’s true that foreign terrorist organizations don’t have constitutional rights, but U.S. citizens inspired by these groups do. Moreover, it should be possible to proscribe terrorist violence, as well as activities that support or enable domestic terrorism, without infringing on civil liberties.

Second, real action would require elected officials to put politics aside. Domestic terrorists come from the left and the right, but not in equal numbers. Right-wing extremists were responsible for the largest number of deadly attacks in the United States since 2001, according to the Government Accountability Office. The Anti-Defamation League found that extremists from the far right have been responsible for the majority of murders linked to terrorism in the United States going back at least a decade. Many of the actors under the far-right umbrella who are either involved in or supportive of extremist violence in the United States have been energized by Trump’s election.

In general, Republicans don’t wish to acknowledge these facts. Republican lawmakers lashed out at the Obama administration when it attempted to increase the federal government’s focus on right-wing extremism. Not long after the first mail bombs were found, commentators on the right began promoting the line that they were part of a “false flag” operation executed by leftists to harm Republicans ahead of the elections next month.

The president himself tweeted, “Republicans are doing so well in early voting, and at the polls, and now this ‘Bomb’ stuff happens and the momentum greatly slows—news not talking politics. Very unfortunate, what is going on. Republicans, go out and vote!” There’s so much wrong with this tweet, notably Trump’s decision to put the word bomb in quotes, as if the threat were not real.

By repeatedly claiming that the media and his political opponents are enemies of the people, and that violence is an acceptable form of dealing with them, Trump has contributed to the environment in which the mail bombings occurred.

The Trump administration’s National Strategy for Counterterrorism acknowledged the threats posed by “domestic terrorists who are not motivated by a radical Islamist ideology.” If these words are to have any meaning, then Trump and his allies in Congress must put politics aside to ensure that all terrorists—regardless of the ideology motivating them or their political persuasion—are tried, convicted, and punished accordingly.