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The 9/11 Attack, War on Terror, and Domestic Terrorism
Criminology · Chapter 16: Political Crime and TerrorismSection 16.4 · lesson 69 of 91video coming soon
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In this lesson
The legal and institutional response, and the domestic charging gap.
- Describe the institutional response after September 11, 2001.
- Explain the main legal frameworks of that period.
- Summarize the detention and habeas holdings.
- Explain the domestic terrorism charging gap.
Transcript
Everything said in the video, section by section (1,709 words). Read along, or search it.
Opening Question
A Prosecutor Without an Offense
A federal prosecutor reviews conduct that clearly meets the definition of domestic terrorism. Yet there is no general federal domestic terrorism offense to charge. Why? The attacks of September eleventh, two thousand one, reshaped American law and government. This lesson is about that reshaping, not about the attacks themselves.
Roadmap
Five Areas This Lesson Covers
We begin with the institutional response, the new department, and the shift in federal law enforcement priorities. Then we cover the legal frameworks created or expanded in that period, from surveillance to military force. We look at the detention framework, and the habeas cases that tested it in the Supreme Court. We set out the debates over military commissions, civil liberties, and whether the response was worth its cost. Finally, we turn to domestic terrorism, and to the gap in how it is charged under federal law. Throughout, both sides of each contested debate are stated, without taking a position.
Historical Context
The Attacks as Occasion
On September eleventh, two thousand one, a foreign terrorist organization carried out a coordinated set of attacks. They caused mass casualties at multiple sites in the United States. We state that fact briefly, as the historical occasion for what followed, without any further account of the attacks.
Institutional Response
A New Department and FBI Shift
The federal government then undertook a substantial institutional reorganization. A new cabinet-level department was created to consolidate homeland security functions spread across many agencies. That became the Department of Homeland Security, established in two thousand two. Intelligence coordination was reorganized, to address gaps that had been identified between agencies. Federal law enforcement priorities were reoriented as well. Counterterrorism moved to the center of the FBI's mission, a real shift from its prior emphasis.
Legal Changes
Surveillance, Material Support, and Military Force
Congress also changed the law in three major ways. First, it substantially expanded surveillance authorities available for counterterrorism, chiefly through the USA PATRIOT Act of October two thousand one. Second, a material support framework was applied broadly. The federal statute bars providing specified kinds of support to a designated foreign terrorist organization. Crucially, it was applied even to support that involved no direct participation in violence. Third, Congress passed an authorization for the use of military force on September eighteenth, two thousand one. Its text covers those who planned, authorized, committed, or aided the attacks, or who harbored them. That authorization has since been cited as the legal basis for a wide range of military operations. Many of those operations go well beyond what its drafters are generally understood to have anticipated. So a short text, passed in days, became one of the most consequential legal instruments of the period.
Detention
Status Questions and Habeas Litigation
Detention of people captured in these operations raised a series of status questions. What legal category did these individuals occupy? And what process, if any, were they entitled to in challenging their detention? These questions produced significant habeas litigation, in which detainees sought judicial review of their confinement. Several leading Supreme Court holdings resulted.
Court Holdings
Hamdi, Rasul, and Boumediene
In Hamdi versus Rumsfeld, in two thousand four, a plurality addressed a U.S. citizen held domestically as an enemy combatant. Such a citizen is entitled to notice of the basis for detention, and a meaningful chance to contest it before a neutral decision-maker. In Rasul versus Bush, the same year, the Court held that federal courts could hear habeas petitions from foreign nationals at a U.S.-controlled facility abroad. In Boumediene versus Bush, in two thousand eight, the Court went further. Detainees held there have a constitutional right to habeas corpus. A statute stripping the courts of jurisdiction over those petitions could not constitutionally take that right away. We state these holdings for their legal significance only.
Debate
Military Commissions Versus Federal Courts
A continuing debate concerns where people accused of terrorism offenses should be tried. One option is a military commission, a specialized tribunal system. The other is an ordinary federal court, established under Article Three of the Constitution. Supporters of military commissions argue they are better suited to handling sensitive intelligence evidence. They also point to the security concerns particular to these cases. Supporters of Article Three prosecution make a different argument. The ordinary federal courts have a long track record of successfully trying terrorism cases. And they do so while affording more extensive procedural protections to the accused. Both positions rest on real considerations, and this lesson states both without taking one.
Debate
Security, Civil Liberties, and Cost
Expanded surveillance, detention, and immigration enforcement authorities set off a sustained civil liberties debate. The strongest security-focused position holds that the scale and novelty of the threat justified new authorities. Ordinary peacetime law, on this view, had simply not anticipated a threat of this kind. The strongest civil-liberties-focused position holds that emergency authorities, once created, tend to persist and expand. They outlast the emergency that justified them. On this view, the cost to constitutional protections has been significant, and insufficiently weighed. This lesson takes no position between them. A related question remains genuinely open. Did the overall response achieve its security objectives at a justified cost? That is hard to answer, because it requires measuring a counterfactual, what would have happened without these measures. Subchapter sixteen point six examines that question further.
Comparison
Surveillance and Material Support Compared
Compare four legal frameworks from this period, two at a time. Expanded surveillance authorized broader collection, and raised the question of Fourth Amendment reasonableness. Much of it remained in place, though some provisions were later narrowed by legislation, such as the USA FREEDOM Act of two thousand fifteen. The material support statute authorized prosecution for supporting a designated group, including nonviolent support. The question was whether it reached protected speech and association. In Holder versus Humanitarian Law Project, in two thousand ten, the Supreme Court upheld the statute as applied against a First Amendment challenge.
Comparison
Military Force and Detention Compared
The authorization for military force raised the question of how far it extends to later, different conflicts. That question remains contested and unresolved. The detention framework raised the question of what process detainees are due. The Supreme Court answered by requiring meaningful habeas review.
Quick Check
Which Framework Reaches Training?
Quick check. A group trains members of a designated organization to use international law, and to petition the United Nations. Which of those four frameworks reaches that conduct? Pause, and decide. The material support statute: it covers even nonviolent support, such as training, given to a designated group. In Holder versus Humanitarian Law Project, the Court upheld the statute as applied to that kind of training.
Domestic Terrorism
A Definition Without a Charge
Now turn to domestic terrorism, and how federal law charges it. Federal law defines domestic terrorism as a descriptive category, used for certain purposes. But no general federal criminal offense of domestic terrorism exists. Nothing compares to the material support framework available for conduct tied to designated foreign groups. So conduct that meets the statutory definition is usually prosecuted under other offenses. The figure shows that move, from the defined term to the statutes actually used. Those include weapons charges, murder, and hate crime statutes.
Debate
Should Congress Create an Offense?
Should Congress create a general domestic terrorism offense? Supporters argue it would close a meaningful gap, and better reflect the nature of the conduct. Opponents worry about how such an offense might be applied, including its potential reach into constitutionally protected activity. This lesson states both positions without taking one.
Classification
Agency Schemes for Political Violence
Federal law enforcement agencies maintain their own categorization schemes for domestic political violence. They are generally organized around several broad ideological categories, tracked over time. We describe these schemes neutrally, as officially documented classifications. They are not a ranking of any particular group's relative threat.
Jurisdiction
Federal and State Responsibility
Responsibility for responding to domestic political violence is also divided. Federal authority governs the specific federal offenses discussed in this lesson. State authority governs ordinary criminal offenses, such as assault or property destruction, under state codes. In practice, the two levels overlap substantially, and must coordinate closely. That division helps explain why the same conduct might be charged in federal court, state court, or both.
Key Pattern
Emergency Powers Tend to Persist
This period established a durable lesson about emergency and law. Authorities created in response to an urgent, unanticipated threat tend to persist well beyond the initial emergency. Subchapter sixteen point six develops this pattern as the emergency powers ratchet.
Sorting Activity
Surveillance and Detention Examples
Let's sort some of these authorities into four broader categories. An expanded authority to collect communications belongs to surveillance. So does a judicial process for authorizing surveillance of a specific target. A framework allowing military confinement without ordinary criminal charge belongs to detention. A habeas proceeding challenging the basis for confinement also belongs to detention.
Sorting Activity
Prosecution and Immigration Examples
A statute prohibiting material support to a designated organization belongs to prosecution. A military commission trial for a terrorism offense is prosecution as well. Heightened screening at points of entry belongs to immigration. So does a removal proceeding connected to a national security concern. Sorting this way shows how many separate legal tools the response actually involved.
Weighing Arguments
Surveillance and Detention Without Charge
Now weigh the arguments, stating both sides at full strength. For expanded surveillance, the security argument is that a novel threat requires broader collection. The objection is that its scope strains Fourth Amendment protection. For detention without charge, the argument is that some threats do not fit ordinary criminal process. The objection is that liberty is taken without the protections of criminal process.
Weighing Arguments
Material Support and Commissions
For broad material support, the argument is that any support frees resources for violence. The objection is that it reaches speech and association. For military commissions, the argument is protecting sensitive evidence, and the objection is fewer protections than an Article Three court.
Practice Problem
Firearms Counts, No Terrorism Charge
Now the reverse problem. A man attacks a crowd to intimidate the public. He is convicted on federal firearms counts, and the indictment never mentions terrorism. Why not? Pause, and decide. That happened because the definition is descriptive, and no general federal domestic terrorism offense exists to charge.
Return to Opening
The Prosecutor Chooses Other Statutes
Back to our federal prosecutor, who now has the full picture. The conduct she is reviewing meets the statutory definition of domestic terrorism. But there is no general federal domestic terrorism offense to bring. The task is to identify which general-purpose statutes, such as weapons or hate crime provisions, fit the facts. The prosecutor must also recognize something important about the outcome. The resulting charge may not carry the domestic terrorism label, even though the conduct meets that definition.
Key Takeaways
Reorganization, Expanded Powers, and a Gap
Let's pull it together. The response created a new department and reoriented federal priorities. Surveillance, material support, and military force were all expanded. Detention was tested through habeas cases. And domestic terrorism has a definition, but no general federal offense to charge.
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FAQ
Questions students ask us
About The 9/11 Attack, War on Terror, and Domestic Terrorism
Why is there no federal charge called "domestic terrorism" even when conduct meets the legal definition?
What did Hamdi, Rasul, and Boumediene decide about detainees and habeas corpus?
What did the USA PATRIOT Act and the 2001 military force authorization do after 9/11?
Does the material support statute apply to nonviolent help, like teaching a designated group about international law?
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