SEPARATE AND UNEQUAL: THE LAW OF "DOMESTIC" AND "INTERNATIONAL" TERRORISM.

• Author: Sinnar, Shirin

U.S. law differentiates between two categories of terrorism. "International terrorism" covers threats with a putative international nexus, even when they stem from U.S. citizens or residents acting only within the United States. "Domestic terrorism" applies to political violence thought to be purely domestic in its origin and intended impact. The law permits broader surveillance, wider criminal charges, and more punitive treatment for crimes labeled international terrorism. Law enforcement agencies frequently consider U.S. Muslims "international" threats even when they have scant foreign ties. As a result, they police and punish them more intensely than white nationalists and other "domestic" threats. This legal divide not only harms individuals and communities but also reinforces distorted public perceptions of terrorism that fuel anti-immigrant and discriminatory policies.

This Article is the first to challenge the domestic-international divide in U.S. terrorism law. It maps the divergence in the investigation, prosecution, and punishment of terrorism. It then refutes the three leading rationales for the divide: (1) civil liberties; (2) federalism; and (3) the magnitude of the threats. It further argues that, once the law divides threats into the "domestic" and "international," the latter category will predictably expand to cover U.S. individuals perceived as "foreign," even if they are citizens with negligible relationships abroad. Policymakers should reject the legal divide as both incoherent and invidious. But rather than "ratchet up" the criminalization of domestic terrorism in the name of equality, they should make the law's approach to "international" terrorism more accountable and just.

TABLE OF CONTENTS INTRODUCTION I. THE LEGAL DIVIDE BETWEEN DOMESTIC AND INTERNATIONAL TERRORISM A. The Operation of the Divide 1. Electronic Surveillance 2. Other Investigative Mechanisms 3. Federal Prosecution 4. Material Support Charges 5. Sentencing and Confinement B. THE ORIGINS OF THE DIVIDE C. THE EFFECTS OF THE DIVIDE II. THE UNPERSUASIVE RATIONALES FOR THE LEGAL DIVIDE A. CIVIL LIBERTIES RATIONALES 1. The First Amendment and Material Support 2. The Fourth Amendment and the Scope of Surveillance B. FEDERALISM RATIONALES 1. Federalism Doctrine 2. Federalism Principles C. MAGNITUDE-OF-THE-THREAT RATIONALES 1. Assessing the Scale of Threats 2. The Relevance of Scale III. THE PATH FORWARD A. THE INVIDIOUS NATURE OF THE LEGAL DIVIDE B. FORMAL AND SUBSTANTIVE EQUALITY C. THE PROBLEM WITH RATCHETING UP D. THE PATH TO RATCHETING DOWN CONCLUSION INTRODUCTION

In the four years since a twenty-one-year-old white supremacist shot dead nine African American men and women at a Charleston church, a public debate has emerged on the law's response to political violence. (1) Initially, the public conversation centered largely on labeling acts of violence. Critics often charged that the race, religion, or ideology of suspects affected whether government officials and the media conceptualized such acts as "terrorism." (2) But the conversation has increasingly moved from labeling to law, as commentators and policymakers observe that, even where authorities recognize violence as terrorism, the policing and prosecution of terrorism differs across ideologies and communities. (3)

The differences are even more stark than is generally recognized. The government intensively surveils and polices U.S. Muslim communities to root out potential terrorist threats. Law enforcement officials intercept phone conversations and obtain internet records with secret warrants from the Foreign Intelligence Surveillance Court (FISA Court). (4) Through a vast network of confidential informants, the FBI identifies individuals deemed prone to "radicalization" and offers them ostensible opportunities to engage in violence. (5) If individuals take the bait--sometimes after intense prodding from informants--federal prosecutors indict them for federal offenses including material support to terrorism. (6) Human rights advocates charge that these prosecutions target vulnerable individuals and induce them to commit crimes they would never have undertaken on their own. (7) Sentences are steep--as high as life without parole for a twenty-three-year-old high school dropout who accepted an inert bomb from FBI operatives who stoked the young man's ISIS sympathies. (8)

The federal government takes a different approach to non-Muslim terrorist threats. White supremacists, anti-government militias, sovereign citizens, and other groups present a significant terrorist threat. (9) The FBI investigates these individuals and groups using conventional warrants rather than secret foreign intelligence surveillance orders or other national security tools. (10) While prosecutors pervasively use material support charges to "preemptively" target Islamic extremists, they rarely charge white nationalists or anti-government extremists with material support. (11) Studies suggest that the FBI does not use informants and undercover operations against right-wing threats as extensively or aggressively as it does with Muslims. (12) And local law enforcement officials prosecute many cases under state law, thereby precluding the application of a federal terrorism sentencing enhancement and other potential consequences of federal prosecution. (13)

This divergence in the treatment of terrorist threats stems in part from a formal division in the law of terrorism. U.S. law differentiates between two categories of terrorism in the investigation and prosecution of individuals. The "international" category covers terrorism with a putative international nexus--even when the threat stems from U.S. citizens or residents on American soil contemplating acts only within the United States. The "domestic" category covers terrorism thought to be purely domestic in its origin and intended impact. These categories thus do not coincide with the common understanding of "domestic" terrorism as occurring within the United States and "international" terrorism as committed abroad. Moreover, in practice, this categorization has a blunt impact because government officials largely consider threats of terrorism by Muslims to be international and threats by others to be domestic, even where there is little difference in their actual geography. For instance, the FBI characterizes U.S. citizens inspired by ISIS or al Qaeda propaganda as international terrorists even if they have no actual international ties, while it often views white supremacists and neo-Nazis as domestic terrorists despite the movements' global dimensions. (14)

The consequences of the legal divide between domestic and international terrorism--and its frequent application along ideological lines--are troubling. The legal divide subjects U.S. Muslim communities to greater surveillance, with less oversight, than other groups. It exposes some offenders to criminal punishment--and harsh sentences--for conduct that would not be criminal with respect to others. The discrepancy in consequences is greatest for individuals suspected of tenuous and uncertain connections to violence.

Beyond these direct effects, the legal divide contributes to a flawed--and racialized--public understanding of the terrorist threat, with further repercussions for public policy and communities. Federal officials say they hesitate to describe white nationalist or anti-government cases as terrorism because federal terrorism charges are less available in domestic cases. (15) In addition, the Justice Department only publishes statistics on international terrorism convictions, which reinforces perceptions that terrorists are primarily Muslim and foreign. (16) These skewed representations--facilitated by the binary legal regime--fuel exclusionary and discriminatory policies, like President Trump's travel bans, that target Muslims and immigrants while minimizing attention to racial violence afflicting communities of color. (17)

Despite the significance of the domestic-international terrorism divide and its increasing relevance in policy debates, legal scholarship has scarcely touched the subject. A handful of law review articles point out racial discrepancies in the use of the terrorism label, (18) advocate treating racist violence as terrorism, (19) or address the legal distinction in particular contexts. (20) Some legal blog posts defend the distinction. (21) But none of these pieces systematically addresses the scope, impact, or legitimacy of the terrorism divide.

This Article illuminates and challenges the legal divide in the treatment of domestic and international terrorism within the United States. It shows that the investigation, prosecution, and sentencing of terrorism diverges according to the "domestic" or "international" classification of the threat. At the investigative stage, government officials use Foreign Intelligence Surveillance Act (FISA) orders, National Security Letters, and other tools for international terrorism that involve lower substantive standards and less oversight. (22) At the prosecution stage, federal officials routinely charge international terrorism defendants with material support charges that are unavailable in domestic cases. (23) In addition, due in part to the uneven federalization of terrorism, federal prosecutors handle most international terrorism cases while local prosecutors frequently charge domestic terrorism under state law. (24) This disproportionate federal treatment of international terrorism unequally exposes defendants to a severe federal terrorism sentencing enhancement that treats even first-time offenders charged with nonviolent offenses like defendants with the most serious criminal histories. (25)

These legal differences do not account for all observed disparities between the treatment of Muslim suspects and those of other identities and ideologies. Even where certain laws apply to both domestic and international terrorism...