AuthorBroughton, J. Richard

    The stories have been numerous and frightening to a Nation and world increasingly on edge over the threat of international terrorism. American citizens, along with other foreign nationals, have become inspired by--and in some cases joined forces with--terror groups, most notably the Islamic State. (1) Many--very often, though not exclusively, young men--have traveled overseas to train and fight alongside other Islamic State terrorists, then return to the United States. (2) Still, others will remain in the country and plan domestic attacks, even if they are not affiliated formally with a terror network. (3) Within the United States Court of Appeals for the Eighth Circuit's jurisdiction alone, recent cases follow the latter approach. For example, in August of 2016, the United States charged a twenty-year-old Minnesota man with providing and conspiring to provide material support to a foreign terrorist organization after he made multiple trips to Turkey. (4) In June 2016, three Minnesota men were convicted for providing material support to the Islamic State, arising from their efforts to travel to Syria to fight alongside the terror group. (5) In an alarming number of cases, though, these newly-formed terrorists are not even adults--they are juveniles, persuaded to take up arms against, or otherwise to attack, Americans and others around the globe. The Islamic State's chief recruiting tools are a savvy social media program and an overwhelming presence online. (6)

    In June of 2015, a Virginia teenager--17-year-old Ali Shukri Amin--was convicted in federal court after pleading guilty to terrorism charges arising from his efforts to aid the Islamic State. (7) He was sentenced to 11 years in prison. (8) A Washington Post report from December 2014 detailed the story of three teens--two brothers and their sister, two of which were juveniles--who planned to abandon their family and travel to Syria to join the Islamic State and its caliphate. (9) They were arrested by agents from the Federal Bureau of Investigation ("FBI") at O'Hare International Airport in Chicago. (10) The story recounted the letters each wrote to their parents before they left home; the 17-year-old sister stated, "Death is an appointment, and we cannot delay or postpone, and what we did to prepare for our death is what will matter." (11) In March 2014, 20-year-old Shelton Thomas Bell pleaded guilty on federal material support for terrorism charges arising in part from his efforts to employ a juvenile acquaintance in training for violent jihad. (12) Bell recruited and trained the juvenile, using the messages of the notorious al Qaeda mouthpiece Anwar Al-Awlaki to inspire the juvenile, then traveled with the juvenile overseas, where they planned to cross into Yemen to join with Ansar Al-Sharia in armed conflict. (13) The two were ultimately captured in Jordan; Bell was eventually sentenced to 20 years in prison. (14) In October 2014, three teenage girls--sisters age 15 and 17, and another girl age 16--from suburban Denver were taken into custody in Germany, suspected of traveling abroad for the purpose of reaching Turkey and eventually Syria. (15) Subsequent news reports indicated that it was not clear whether they had contact with anyone in Syria, and that they were unlikely to be prosecuted. (16)

    A report issued last year by a House Homeland Security Committee task force identified 58 cases of Americans joining or attempting to join the Islamic State in Syria and Iraq since 2011, the beginning of the civil war in Syria. (17) Of those, 12 were teenagers, and three were under the age of 18. (18) The report found that these prospective foreign fighters tend to be men, young, and inspired by propaganda they find online. (19) Consequently, the report issued the following key finding: "[t]he federal government has failed to develop clear intervention strategies such as 'off-ramps' to radicalization as an alternative to detaining individuals seeking to travel to fight with extremists overseas." (20) This finding was especially important in light of the related conclusion that "terrorist groups are increasingly recruiting people under the age of 18." (21)

    The FBI has also acknowledged the threat of terrorist recruitment among the youth population in the United States. (22) Focusing on the slick propaganda used in ISIL's recruiting efforts, FBI counterterrorism head Michael Steinbach acknowledged, in recent testimony before Congress, that although "there is no set profile for the susceptible consumer of this propaganda... one trend continues to rise--the inspired youth. We have seen certain children and young adults drawing deeper into the ISIL narrative." (23) In an interview conducted last year, Steinbach noted ISIL's efforts to recruit children as young as 15, as well as the possibility that children in their mid-teens have successfully traveled to ISIL strongholds in the Middle East. (24) In response, the FBI has undertaken an extensive, though controversial, approach to dissuading young people from the dangers of radicalization. The FBI, for example, launched a new initiative on its website entitled, "Don't Be a Puppet: Pull Back the Curtain on Violent Extremism," which specifically targets teens. (25) This interactive webpage allows the user to click on a variety of tabs explaining violent extremism and how extremists make contact with young people, and shares personal stories about the dangers of becoming involved in violent extremism. (26)

    The "puppet" analogy seems designed to emphasize the nature of terrorist recruiting, particularly through social media and online platforms: that once hooked, the individual falls under the dominion and control of the clever and seductive terrorist recruiter. The "Don't Be a Puppet" program is also consistent with what the House Homeland Security task force report identified as an important step in deterring foreign fighters--namely, the FBI's plans to refer more juvenile suspects for "interventions" that would involve "community leaders, educators, mental health professionals, religious leaders, parents, and peers, depending on the circumstances." (27) The report's point was that, in many cases, law enforcement and criminal prosecution should not be the first line of defense. (28) Rather, depending upon the nature of the case, a young person in the early stages of radicalization should have contact with others whose work with them may be more effective than forcing them into the criminal justice system. (29) The report cautioned, however, against relying on "ad hoc interventions," preferring instead that the Government "develop a baseline policy and legal framework of intervening in cases of potential violent radicalization." (30)

    The fact that juveniles are induced or inspired to aid terror groups should be, to some extent, unsurprising. Consistent with the House Homeland Security task force report findings, counterterrorism experts have repeatedly explained the importance of social media and the Internet in terrorist recruitment. (31) Recruiters have become particularly sophisticated in using new forms of media to appeal to young people. It is equally unsurprising, then, that congressional investigators and federal law enforcement have emphasized a program of deterrence and early intervention, focused on disavowing these youthful targets of radicalization through community participation and cooperation. Moreover, this model for addressing youth involvement with group criminality has an analogue in gang prevention strategies. Indeed, the similarities between gang recruitment and terror recruitment are revealing. (32)

    Notably, the approaches discussed above focus on the role of community leaders and government officials in deterring future foreign fighter travel and violent attacks by preventing initial radicalization. These approaches, however, though they do not reject it, de-emphasize the role of the criminal law in identifying and punishing those juveniles who, once radicalized, take steps toward the commission of terror attacks or travel to become foreign fighters. While it is of course important to dissuade and deter juveniles from engaging in violent extremism and terrorism, it is also important to acknowledge the Government's efforts against international terrorism. Combating the Islamic State, in particular, will require the use of military force, diplomacy, intelligence gathering, and criminal prosecution--in addition to strategies designed to educate young people about the dangers of radicalization and to deter their involvement with terror groups. (33) As we know from experience, such strategies, even if successful, will not capture the entire universe of juveniles who pose real threats to national security. A robust program of federal prosecution must be available. This paper therefore examines more fully the role of the federal criminal law with respect to juveniles who engage in terrorist activity and with respect to those who recruit them to do so.


    The House Homeland Security Task Force report emphasized that, "[w]hile recognizing that we cannot just look the other way, our only choice should not be to incarcerate teenagers on terror charges when they are preyed upon by online jihadists." (34) Other commentators have noted the rarity and difficulty of prosecuting juveniles in federal court, particularly on terrorism charges. (35) It is understandable that the Justice Department would be cautious about prosecuting juveniles in these cases, particularly where the juvenile's attachment to a terror group is in its early stages, or where the prospect of engaging in violent extremism has not yet developed despite some early inspiration. Still, while certainly not the only choice, the choice of criminal prosecution remains--and ought to remain--a crucial weapon in the ongoing effort against international terrorism...

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