It is somewhat axiomatic that the FBI doesn’t generally investigate so-called “street crimes” such as assault, rape, murder, and even low-level drug use. This isn’t because there aren’t federal laws for these activities. For example, 18 U.S.C. §§ 1111 et seq. proscribes homicide, 18 U.S.C. §§ 2241 et seq. proscribes sexual abuse, 18 U.S.C. §§ 111 et seq. proscribes assaults, and 21 U.S.C. § 844 proscribes “simple possession” of controlled substances. Despite having laws that could be enforced by federal authorities, though, it is generally considered an inappropriate use of resources when the states can handle the cases just fine, thank you very much.
That changes, apparently, when murder gets called terrorism.
According to the Chicago Sun-Times (found via Gawker), two men have been arrested on criminal complaints in Chicago. First, a clarification about the Sun-Time article is in order. The text states that one of the charges is “conspiracy to commit terrorist acts involving murder and maiming outside the United States” (emphasis added). That’s a little inaccurate. The complaint actually states that one of the men is charged under 18 U.S.C. § 956, a statute which says nothing about terrorism. And indeed, the complaint plainly states that the man allegedly “conspired and agreed with others … to commit acts outside the United States that would consitute [sic] the offenses of murder and maiming if committed in the special maritime and territorial jurisdiction of the United States.” Now, it is certainly true that the second charge in the complaint comes under 18 U.S.C. § 2339A, which proscribes conspiring to provide material support to terrorists, and the underlying act which is used to trigger the use of 2339A is the activity covered by the first count. (See, e.g., section 2339A(a) which states that section 956 is an underlying crime.) Still, I think accuracy is important.
The second man is being charged by criminal complaint with one count of violating section 2339A, with the section 956 underlying crime as the trigger.
So, what is the alleged activity which resulted in the complaints’ filing? A plot, it seems, to travel to Denmark for the purpose of attacking the two individuals purportedly responsible for publishing the cartoons in 2005 that enraged some among the Muslim community. (Background on the cartoons can be found at this Wikipedia page.) As one of the complaints states: “[one of the men] proposed that the operation against the newspaper be reduced from attacking the entire building in Copenhagen to killing the paper’s cultural editor, Flemming Rose, and the cartoonist who drew a cartoon of the Prophet Mohammed with a bomb in his turban, Kurt Westergaard, whom [he] felt were directly responsible for the cartoons.” United States v. Headley, at 7.
How then, does a plot to kill two people become “terrorism”? Neither of the definitions of terrorism in 18 U.S.C. § 2331 really envision the targeting of a couple of people as terrorism. “International terrorism” for example, is defined as activities in a foreign country involving violent or dangerous acts (proscribed by law) that appear to be intended to intimidate or coerce a civilian population, to influence the policy of a government by intimidation or coercion, or to affect the conduct of a government by mass destruction, assassination, or kidnapping. Likewise, “domestic terrorism” is the same activity, just conducted within the United States. (More or less. Both activities have jurisdictional statements that can get convoluted.) A larger scale is envisioned, it would seem. However, section 2339A clearly states that section 956 is a triggering statute, and section 956 clearly proscribes the murder of a solitary person.
But it’s actually easier than all that: the title of section 2339A is “Providing material support to terrorists.” But if you read the statute closely, you’ll notice something interesting: the words “terror,” “terrorism,” or “terrorist” don’t actually show up in the text. Sneaky, sneaky! And that’s how a person gets called a terrorist without committing what is defined as terrorism. (You can see, from the Sun-Times article, from the Gawker post, and from this Yahoo! News search on “illinois terror” rundown, how that can operate.)
(Updated: Upon rereading the Gawker post, Gawker actually got it right by calling it a murder plot.)
