You Can Prosecute Animal Rights Activists But Not a Right-Wing Militia for “Terrorism”

You Can Prosecute Animal Rights Activists But Not a Right-Wing Militia for “Terrorism”

Earlier today, a right-wing militia seized the headquarters of the Malheur National Wildlife Refuge in Oregon. The group, which is led by Ammon Bundy — the son of Cliven Bundy, who led an armed stand-off with federal agents in 2014 — is demanding that the federal government release Dwight Hammond Jr. and Steven Hammond, two ranchers who are due to report to a California prison on Monday to serve out their sentences for arson. Bundy says the group intends to hold the building “for years” and refuses to rule out using violence if police try to remove them.

There is little question that the militia’s actions qualify as seditious conspiracy. 18 USC 2384 specifically criminalizes “two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspir[ing]… to seize, take, or possess any property of the United States contrary to the authority thereof.” Seditious conspiracy is a very serious crime, one that carries a maximum sentence of 20 years imprisonment.

But what about domestic terrorism? Could the members of the militia be prosecuted as domestic terrorists once the seige is over?

Domestic terrorism is defined in 18 USC 2331(5):

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.

At this point, the militia has probably not satisfied 18 USC 2331(5). Although their activities are clearly “intended… to influence the policy of a government by intimidation or coercion,” it is difficult to argue that the militia has engaged in acts “dangerous to human life,” because the Wildlife Refuge’s headquarters was closed and unoccupied when the militia seized it.

The situation would be very different, of course, if the militia followed through on its threat to use force to repel an attempt by the police to retake the headquarters. Doing so would clearly qualify as domestic terrorism under 18 USC 2331. But here is the problem in terms of actual prosecution: as Susan Hennessy pointed out in an excellent post at Lawfare after the mass murders in Colorado and California, “[d]omestic terrorism does not exist as a substantive offense under federal law.” It is simply an element of other substantive federal offences, such as bribery affecting port security, 18 USC 226 (Hennessy’s example). And none of those offences would seem to cover the militia’s seizure of the Wildlife Refuge headquarters.

The bottom line, then, is that although we could call the members of the militia “terrorists” if they ever engage in acts dangerous to human life, they could not be prosecuted as terrorists. That’s perverse — especially when we contrast the absence of a substantive federal terrorism offence covering the militia’s actions with the existence of a substantive federal terrorism offence designed specifically to prosecute non-violent animal-rights activists: 18 USC 43, the Animal Enterprise Terrorism Act (AETA). The AETA, which was adopted by Congress at the behest of the pharmaceutical, fur, and farming industries, is an absurdly overbroad statute that deems any actions that intentionally damage the property of an animal enterprise to be “terrorism”:

(a) Offense.—Whoever travels in interstate or foreign commerce, or uses or causes to be used the mail or any facility of interstate or foreign commerce—

(1) for the purpose of damaging or interfering with the operations of an animal enterprise; and

(2) in connection with such purpose—

(A) intentionally damages or causes the loss of any real or personal property (including animals or records) used by an animal enterprise, or any real or personal property of a person or entity having a connection to, relationship with, or transactions with an animal enterprise;

(B) intentionally places a person in reasonable fear of the death of, or serious bodily injury to that person, a member of the immediate family (as defined in section 115) of that person, or a spouse or intimate partner of that person by a course of conduct involving threats, acts of vandalism, property damage, criminal trespass, harassment, or intimidation; or

(C) conspires or attempts to do so;
shall be punished as provided for in subsection (b).

The only “violence” the AETA requires is the violence of ripping up documents or opening up animal cages. Indeed, the AETA has been used to prosecute as terrorists four people who “chalked the sidewalk, chanted and leafleted outside the homes of biomedical scientists who had conducted animal testing” and two young men who “released about 2,000 mink from cages and painted the slogan ‘liberation is love’ in red paint over a barn.” The charges in the first case were thrown out for lack of factual specificity, but both of the defendants in the second case have pleaded guilty and are facing 3-5 years in prison.

It defies logic that there is a substantive federal terrorism offence covering non-violent activists who open mink cages but not one covering a right-wing militia that forcibly seizes a federal building, demands the release of prisoners, and threatens to kill anyone who tries to intervene. But there you have it.

Featured, International Human Rights Law, National Security Law
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Marty Lederman
Marty Lederman

I’m genuinely a bit confused by what point you’re trying to make here, Kevin. Putting aside nomenclature for a moment, you agree that engaging in domestic terrorism (acts dangerous to human life that appear to be intended to intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by mass destruction, assassination, or kidnapping) is always criminal conduct, that can be tried and severely punished, even if not under the stand-alone heading of “terrorism.” Such conduct when humans are threatened is treated *more* seriously, not less, than cases of harming “animal enterprises.” Moreover (and now turning to nomenclature), when such conduct does occur, it is *expressly* labeled by law as “terrorism,” even if always as an element of some other offense. On the other hand, the conduct in 18 USC 43 is no longer even described as “terrorism”: the title of the offense is “Force, violence, and threats involving animal enterprises.” When I first read your post, I got the distinct impression that the point you were trying to make was that the US Code absurdly treats the animal enterprise offenses more severely than bread-and-butter… Read more »

Kevin Jon Heller

Fair questions. My point isn’t about severity. It’s about the completely unprincipled approach Congress has taken to the idea of domestic terrorism. On the one hand, Congress adopts a valid definition of domestic terrorism but does not make domestic terrorism a substantive offence. On the other hand, Congress criminalises as terrorism (as indicated by the name of the Act) actions that bear no resemblance whatsoever to “classic” terrorism. The arbitrariness is just another indication that in American parlance terrorism is little more than a pejorative term applied to whatever actions the US government dislikes.

Marty Lederman
Marty Lederman

Thanks, Kevin. I still don’t understand your point: Even as only a matter of labeling, Congress originally called *both* forms of conduct “terrorism,” but subsequently eliminated that moniker for the animal-enterprise statute (perhaps they agreed with you that the actions bear no resemblance whatsoever to “classic” terrorism!)–which hardly strikes me as “arbitrary”–but in any event, we agree that there’s no substantive problem with the statutes. Thanks


One destroys property, the other sits in an empty building doing nothing in particular.

I’d say the labels fit pretty well.


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