Question: Detailed Critique of a specific homeland security policy
Volume: 11 pages (3300 words)
Subject Area: Law
Project Type: Case Study
Description
Description of United States Code Chapter 18 (crimes and criminal procedures), how the law is being adjusted to domestic terrorism. How United States treating/processing domestic terrorism. The challenges, legal issues, which organization is responsible for law and recommendations or improvements.
Answer
United States Code: Title 18 and Domestic Terrorism
Overview
Domestic terrorism is on the rise and evolving. In a 2021 press release, President Biden recognizes that while domestic terrorism is hardly a new threat in the United States, it is a phenomenon that citizens have endured more frequently in recent years (The White House, 2021). For instance, on May 14, 2022, a racially-motivated Peyton Gendron, prompted by the extremist beliefs of the far-right “Great Replacement” conspiracy theory, shot and killed ten people, injuring three people in Buffalo, New York (Doxsee et al., 2022). Another disheartening act of domestic terrorism includes the 2018 attack that left 11 people dead at a Pittsburgh synagogue in Pennsylvania. Others include the El Paso mass shooting that resulted in 23 people dead, the 2016 anti-authority extremist who shot and killed five police officers in Dallas, the murder of 3 people at a garlic ceremony in Gilroy, and even the January 26, 2021, unprecedented attack on the United States Congress (The White House, 2021).
The examples highlighted above are among a considerable number of recent incidences that show the severity of the threat of domestic terrorism in the U.S. The report by the White House (2021) acknowledges the stringent extent to which these incidents call on the improved and more advanced efforts of the intelligence and law enforcement communities. As mentioned earlier, with Englund’s (2023) support, domestic terrorism is both persistent and evolving, which pinpoints the continuing debate on the precise definition of the concept of terrorism. Specific policies, including the U.S. Code, Title 18, should be comprehensively assessed to identify today’s terrorists’ ideological motivations. These motivations include anti-government, racial, bigotry, and hatred sentiments. Doxsee et al. (2022) add that these acts take various forms, ranging from lone perpetrators and small groups of actors to self-proclaimed “militias” admonishing and targeting specific communities. This study examines the provisions of the U.S Code Chapter 18 and the challenges and legal issues associated with adjusting the law to cover and address domestic terrorism efficaciously, responsibly, and sustainably.
Description of U.S. Code, Title 18
General Description
Title 18 of the United States Code, called Crimes and Criminal Procedures, is the primary criminal code of the U.S. federal government. The Code is designed to address crimes and criminal procedures. The Title has five parts, Part I being about crimes, Part II deals with criminal procedure, Part III is tasked with overseeing prisons and prisoners, and Part IV is about correcting youthful offenders as Part V provides information on the immunity of witnesses (Crime and Criminal Procedure, 2016). Part I, on crimes, comprises ten chapters with different sections. Chapter 1 of Part I is titled “General Provisions,” defining the various types of principals, parties, or actors responsible for an offense. Other sections address issues such as punishment for “accessory after the fact,” misprision of felony, insanity defense, stolen or counterfeit property, and use of minors in crimes of violence, among others. Chapter 2 of the same initial part contains definitions of aircraft and motor vehicles and deals with the destruction of aircraft facilities, violence in international airports, and drive-by shooting (Crime and Criminal Procedure, 2016).
Chapter 3 of Title 18 of the U.S. Code prohibits and provides penalties and fines for fishing, trapping, and hunting in protected areas within the U.S. territory. This chapter’s main sections denote punishment for importing harmful species, transporting invasive animals, international harm or disruption to animal enterprises, and any form of animal cruelty (Crime and Criminal Procedure, 2016). Chapters 5 to 10 of Part II are relatively straightforward as they provide definitions of offenses about arson, assault, bankruptcy, and biological weapons. However, Chapter 11 to 23 is arguably broad and deals with chemical weapons, civil disorders, bribery, child support, currency, conspiracy, criminal street gangs, theft and embezzlement, and elections and political problems. This segment further highlights the meanings of concepts such as flag desecration, unauthorized manufacture and sale of products, espionage, and censorship, escape and rescue, explosives, extortion, false personation, kidnapping, homicide, fraud, obstruction of justice, piracy, racketeering, robbery, and perjury, among others (Crime and Criminal Procedure, 2016).
Part II of Title 18 entails Chapters 201 through 237 of content and guidelines on criminal procedure. Besides general provisions, this chapter discusses issues to do with searches and seizures, speedy trial, military extraterrestrial jurisdiction, indictment, reward for terrorist information, death sentence, collateral profits of crime, and miscellaneous sentencing directives (Crime and Criminal Procedure, 2016). Part III is about the bureau of prisons, the transfer of prisoners to or from other nations, offenders with mental health issues, discharge and payments, employment within the prison system, and institutions for women. The part on the correction of youthful offenders provides instructions on juvenile delinquency. The final part on witness immunity covers the particular ways of meeting the provisions of the Fifth Amendment during testifying. In other words, if a witness pleads the fifth and refuses to offer any information, an officer can use Section 601 of Title 18 to compel the individual to answer the questions (Crime and Criminal Procedure, 2016). Still, this part ensures that the presiding officer guarantees the witness protection from prosecution for anything they would offer under such compulsion.
Adjustments to the U.S. Code, Title 18
Overview
Berris et al. (2021) state that recent acts of domestic terrorism have elevated the prevalence of the need to advocate for a better representation of this form of terrorism in the federal statutory regime. According to 18 U.S.C. 2331 (5), domestic terrorism involves “acts dangerous to life in violation of the criminal law of the United States or any state.” This idea also comprises activities that intentionally coerce a civilian population member to “influence the government’s policy by intimidation (Crime and Criminal Procedure, 2016). Berris et al. (2021) state that although this definition is included in the Title 18 federal law, no federal criminal standard explicitly prohibits “domestic terrorism” because such acts and conducts are not recognized components of criminal offenses. This section outlines ways the federal government can adjust the U.S. Code, Title 18, to identify and counter acts of domestic terrorism swiftly and more directly.
Prohibited Offenses Applicable to Domestic Terrorism
Material Support
Provisions for the commonplace material support cases are outlined in Sections 2339A and 2339B of Title 18 of the U.S. Code. In distinguishing the details and technicalities of the two provisions, Berris et al. (2021) highlight how lawmakers adjust the law to cover domestic terrorism better. More precisely, Section 2339A prohibits and punishes any material support to particular terrorism-related acts, mainly to terrorist corporations within the country. However, the resources or material support should align with specific offenses listed in the federal statute for the adjustment to be successfully applied. In this light, Sinnar (2019) states that the predicate wrongdoing in Section 2339A includes using explosives, hostage taking, targeted killing of a federal employee, and offenses with international links, such as conspiring to kidnap or murder people overseas. These and other elements can be modified to apply to domestic terrorism as most 2339A provisions focus on “U.S.-based ideologically motivated conduct” (Berris et al., 2021).
The components of Section 2339B are similar to those of 2339A. However, Section 2339B adds a separate definition to material support, saying that the personnel or material support must aim “to work under that terrorist organization’s direction or control or to organize, manage, supervise, or otherwise direct the operation of that organization” (Crime and Criminal Procedure, 2016). Intelligence and law enforcement communities have altered the provisions of Section 2339B to match domestic terrorism by ensuring that the material support to the foreign terrorist organization is intended and provided “knowingly” (Gurulé, 2021). In addition to certain assistance, scholars state the government is increasingly associating Sections 2339A and 2339B directives with and towards attempts and conspiracy to provide material support. More specifically, both sections recognize attempts and conspiracies to provide material support as “inchoate” federal crimes that aid in the commission of a domestic terror attack (Berris et al., 2021). The sections state that equipping terrorist organizations with resources or material support carry sentences ranging from fines and punishments up to life in prison.
Terrorism Acts Transcending National Boundaries
Section 2332B of Title 18 of the U.S. Code forbids certain forms of terrorism acts within the United States. This section of the statute prohibits acts such as murder, kidnapping, maiming, assault, property damage, and violating laws within the country’s territorial boundaries (Crime and Criminal Procedure, 2016). Although Section 2332b is frequently used against international terrorism, the government has made significant adjustments to ensure the law applies to the statutory definition of domestic terrorism. Anderson (2019) pinpoints Section 2332b’s definition of “conduct transcending national boundaries,” saying that it involves conduct occurring both within and outside the U.S. Berris et al. (2021) describe United States v. Wright, a case in which the appellate court used Section 2332b’s conspiracy segment to charge and punish an individual who was plotting to kill a U.S.-based. Title 18 of the U.S. Code states that charges under Section 2332b can result in 10-, 30-, and 35-year sentences and the death penalty for various violations.
Other sections of Chapter 113B appear to have amended the primary definition of offenses transcending national boundaries to suit the counter of domestic terrorism better. Berris et al. (2021) comment on Section 2332d, which proscribes an individual from participating in the financial exchange and transactions with the government of a designated nation widely known to foster international terrorism. Further, Section 2339d prohibits a U.S.-based individual from obtaining “military-type” training from a terrorist organization. However, Berris et al. (2021) emphasize that for these provisions to be effectively applied to domestic terrorism, the offenses must meet specific prerequisites of Title 18 of the U.S. Code. For instance, the Attorney General must affirm that a perpetrator deliberately sought to coerce and launch an attack against the U.S. government. In addition, as Sinnar (2019) posits, the designation of countries supporting international terrorism, the mental state, or a person’s knowledge of wrongdoing, should both be in line with the law, such as Section 2339B.
Federal Laws Applicable to Domestic Terrorism
This study has established that not all federal criminal laws on terrorism explicitly address domestic terrorism. However, Berris et al. (2021) and other scholars and law observers demonstrate that one can use particular federal statutes to criminalize certain aspects of domestic terrorism. Doxsee et al. (2022) support the relationship between crimes of violent unrest and terrorism, explaining how recent protests, rioting, and most destructive conduct have done more than polarize and drive domestic terrorism. In an event such as the January 6, 2021 breaching of Capitol grounds, law enforcement can apply the elements of U.S.C. § 2101, federal anti-riot act, and U.S.C. § 231, the civil disorder statute of the U.S. Code Title 18 (Berris et al., 2021). Regarding crimes against government authority, law enforcement would apply 18 U.S.C. § 2381 to prosecute an individual against the treason charge. Other laws addressing crimes against government authority include insurrection in 18 U.S.C. § 2383 and 18 U.S.C. § 2384 on seditious conspiracy (Crime and Criminal Procedure, 2016).
Berris et al. (2021) and Walker (2012) comprehensively review other substantive criminal laws that law enforcement can modify and apply to domestic counterterrorism. In the case of crimes against persons, 18 U.S.C. § 111 on assault of federal officers and 18 U.S.C. § 1201 on kidnapping would be highly pertinent. Berris et al. (2021) state that crimes involving infrastructure and federal property can be solved using vandalism of government property, 18 U.S.C. § 1361, and restricted buildings or grounds, 18 U.S.C. § 1752. Further, damage to religious property or obstruction of free exercise, 18 U.S.C. § 247 and Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009, 18 U.S.C. § 249 are among the standard guidelines against hate crimes in the U.S. (Crime and Criminal Procedure, 2016). Other provisions, such as Section 844, regulate the use of certain weapons and firearms, and Section 1030, which imposes penalties on crimes involving the use of computers and the internet.
Guidelines for Sentencing Acts of Domestic Terrorism
Besides identifying substantive criminal laws that can be used to determine the criminality of an offense, Title 18 of the U.S. Code is a relevant addition to sentencing individuals convicted of the mentioned crimes. Berris et al. (2021) assert that the statute provides guidelines that provide the maximum sentence if an offense comprises or relates to an actual act of terrorism. Moreover, law enforcement components use the Title to calculate the range or scope of punishment per the U.S. Sentencing Guidelines. In this regard, several federal statutes distinguish whether or not a violation relates to terrorism. For instance, 18 U.S.C. § 1001, which forbids the intentional creation and use of false documents in court, can carry a fine or a sentence of up to five years (Laguardia, 2019). However, if the offense entails any form of domestic or international terrorism, the statutory maximum sentence as per 18 U.S.C. § 2331 elevates to eight years.
Berris et al. (2021) provide a list of instances in which Title 18 of the U.S. Code alters the standard U.S. Sentencing Guidelines. Another example pertains to 18 U.S.C. § 1028’s usual one to twenty-year sentence on identity theft, which rises to thirty years if the offense is used to facilitate domestic or international terrorism. In another example, Taylor (2019) affirms Berris et al.’s (2019) contention that the federal statute is used to justify the death penalty in a murder charge. More specifically, 18 U.S.C. § 3592 outlines the aggravating and mitigating factors that the court ought to consider in deciding the rationalization of a death sentence. Taylor (2019) highlights an 18 U.S.C. § 3592 provision that states that one of the aggravating factors is whether the commission of murder involved the utilization of weapons of mass destruction (W.M.D.), which meets the primary definition of domestic terrorism. Another factor that justifies the death penalty is in the event that the defendant “committed the offense after substantial planning and premeditation.” (McCord, 2021).
Legal Issues and Challenges for Domestic Counterterrorism
Legal Issues
Various legal issues facilitate the current threat of domestic terrorism, perpetuating the government’s challenges in addressing the phenomenon. Berris et al. (2021) provide an overview of legal issues such as inchoate liability, which explains and differentiates how attempt and conspiracy factor into domestic terrorism. For instance, 18 U.S.C. § 373 forbids one person from inciting another to commit a violent crime while also punishing anyone who induces, aids, abets, or commands the commission of a crime (Crime and Criminal Procedure, 2016). Other issues include solicitation and accomplice liability. However, perhaps one of the significant issues pertains to the constitutional issues associated with domestic counterterrorism. According to McCord (2021), some solutions would compromise the Fourth Amendment’s right to freedom from unreasonable search and seizure and right to free speech, which is dear to Americans. Other issues pertain to other provisions of the First Amendment, including how freedom of association relates to incitement and criminal conduct.
Challenges
The progression of domestic terrorism in recent years is mainly due to the advancement in radicalization and how actors and offenders communicate. A report by the National Counterterrorism Center (2020) states that an increasingly vast part of activity associated with domestic terrorism nowadays occurs online, which by law, is protected. Webber (2018) agrees with other scholars on the abnormality of the notion that current federal statutes do not have a detailed and distinct law criminalizing acts of domestic terrorism. For instance, federal laws such as 18 U.S.C. § 1114 and others are limited as they do not cover all conceivable cases of terrorism. In addition, existing federal statutes contain a considerable disparity in the kinds of sentences the court may impose on domestic terrorism (Berris et al., 2021). The U.S. Sentencing Guidelines do not take into consideration all factors when assessing the maximum sentence for an offense, only the acts that relate to the provisions of “federal crimes of terrorism” as shown in 18 U.S.C. § 2332b (Crime and Criminal Procedure, 2021).
Another part that requires prompt legislative review concerns the designation of a terrorist organization, a shortcoming that Tominaga et al. (2022) explain how it limits counterterrorism. Local and foreign actors have mastered the current designation system and can easily adjust their conduct to avoid prosecution. Berris et al. (2021) state that this problem falls under the massive Fourth Amendment gap and the different intelligence-gathering strategies. The terminology panel of the National Counterterrorism Center (2020) adds that the U.S. lacks a standard definition of domestic terrorism and terms used to refer to the threat. More often than not, statutes derive their terminologies primarily from law enforcement authorities, which can be restrictive and unproductive to the efforts of other government agencies. Besides a few existing obstacles and drawbacks of interagency communication, Berris et al. (2021) demonstrate that specific constitutional issues can give different meanings and potentially challenge the efforts to combat terrorism.
Recommendations for Improvement
The legal issues and challenges mentioned above do not rule out the efficaciousness of Title 18 of the U.S. Code, only that there is need to consider a few changes to improve its sustainability. Given the gaps in terminology and definition, Berris et al. (2021) report that the 117th Congress has introduced a bill titled the Domestic Terrorism Prevention Act of 2021 (DTPA 2021), which seeks to enhance 18 U.S.C. § 2331(5)’s definition of “domestic terrorism. On top of that, DTPA should develop new forms of operation, including a more cohesive interagency communication, publication and dissemination of information, and better engagement with the private sector. Congress has suggested another bill, the Commission on Domestic Terrorism Act of 2021, which would mainly assess prior shortcomings and review lessons learned from previous incidents (Berris et al., 2021). This second act should develop a new foreign and domestic terrorist organization designation system that includes all the changes and improved details.
The 116th Congress introduced some bills that the House of Representatives and the Senate should have reevaluated for implementation. It is not too late, as Hamann et al. (2021) suggest that the current Congress reexamines the Confronting the Threat of Domestic Terrorism Act to consider amending the provisions and penalties of terrorism transcending national boundaries under 18 U.S.C. § 2332b(c) (Berris et al., 2021). This idea relates to the White House’s (2021) second strategic pillar, which serves to strengthen the resources and services for preventing domestic terrorism. Moreover, there is a stringent need to address online terrorist radicalization, recruitment, and mobilization into violent activities by domestic actors. Englund (2023) emphasizes one of the Biden Administration’s action plans; to assess potential legislative reforms and enable improved examination and prosecution of domestic threats. Other considerations that could be added to Title 18 include enhanced vetting and screening processes in all areas of governance and a better confrontation of enablers of domestic terrorism within the U.S. (The White House, 2021).
Conclusion
Protecting the U.S. from acts of terrorism is the primary responsibility and priority of the intelligence and law enforcement community. In the past few years, terror attacks have stemmed more from domestic terrorism than international terrorism. This study assesses the effectiveness of Title 18 of the U.S. Code, one of the principal statutes of homeland security. The researcher explains how Congress and law enforcement agencies can alter this law’s provisions as they switch their focus to domestic terrorism. Some of the ways these responsible organizations can adjust Title 18 is by offering a refined definition of domestic terrorism and some of its main aspects. These aspects include material and terrorism transcending national boundaries under various sections of Title 18 and identifying criminal laws applicable to domestic terrorism. Additionally, it would be fitting to revise the legal and constitutional issues related to the problem, challenges affecting government efforts and sentencing, and gaps in current law. Lastly, Congress should reexamine the 117th and 116th proposals and see how specific elements might supplement Title 18 of the U.S. Code.
References
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