Posted by Orin Kerr:
Patriot Act Error in Dahlia Lithwick's NYT Column:
Dahlia Lithwick has apparently fallen for one of the
often-alleged-but-still-incorrect claims about the Patriot Act. In her
latest [1]guest column in the New York Times, she writes
[W]hile I'm not reflexively opposed to the entire Patriot Act,
two provisions do serve more to quell protest than terrorism.
One section invented a broad new crime called "domestic
terrorism" - punishing activities that "involve acts dangerous to
human life" if a person's intent is to "influence the policy of a
government by intimidation or coercion." If that sounds as if it's
directed more toward effigy-burning, or Greenpeace activity, than
international terror, it's because it is. International terror was
already illegal.
The trouble is, the Patriot Act does not create a crime of "domestic
terrorism." Critics of the Patriot Act often say it does, but it
doesn't. The Patriot Act created a statutory definition of the phrase
"domestic terrorism" in [2]18 U.S.C. 2331(5), which was added to the
preexisting definition of "international terorrism" found in [3]18
U.S.C. 2331(1). The Patriot Act created this statutory definition to
provide a common meaning for the use of the phrase "domestic
terrorism" for when it is used in the United States code. The
definition states:
the term ''domestic terrorism'' means activities that -
(A) involve acts dangerous to human life that are a violation of
the criminal laws of the United States or of any State;
(B) appear to be intended - (i) to intimidate or coerce a
civilian population; (ii) to influence the policy of a government
by intimidation or coercion; or (iii) to affect the conduct of a
government by mass destruction, assassination, or kidnapping;
and
(C) occur primarily within the territorial jurisdiction of the
United States.
As an abstract matter, perhaps this definition is too broad; I tend to
think it is. But since it's only a statutory definition, not a crime,
the question is how the definition is used. As far as I know, the
definition of "domestic terrorism" is used in the context of
substantive criminal law only in one statute, [4]18 U.S.C. 1028. This
statute prohibits identity document fraud, such as making fake IDs.
The part about domestic terrorism doesn't actually expand the scope of
criminality in this statute. Rather, it allows a court to impose a
higher statutory maximum penalty if an act of identity document fraud
"is committed to facilitate an act of domestic terrorism." As a
result, making a fake ID for a college student is punished with a
relatively small sentence; making a fake ID to further a terrorism
crime is treated more seriously.
Maybe it's just me, but that doesn't "sound[] as if it's directed .
. . toward effigy-burning, or Greenpeace activity[.]"
P.S. If "domestic terrorism" is used elsewhere in defining a
criminal law under the Patriot Act and I am just missing it, please
let me know. I ran a westlaw "USC" database search for the phrase, and
Section 1028 was the only relevant section that popped up.
References
1. http://www.nytimes.com/2004/08/12/opinion/12lith.html
2. http://www4.law.cornell.edu/uscode/18/2331.html
3. http://www4.law.cornell.edu/uscode/18/2331.html
4. http://www4.law.cornell.edu/uscode/18/1028.html
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