Richard Burr Wants to Label People Who Make Threats and Carry Guns “Terrorists”

The bill Senate Intelligence Chair Richard Burr released last Friday is bad enough for the way it expanded the existing illegal dragnet. I argued here Burr’s bill would give the Intelligence Community everything they lost in 2009 and 2011.

But there’s something just as troubling in Burr’s stack of additional goodies for the IC. As USA F-ReDux does, Burr’s bill extends maximum sentences for material support for terrorism. Both bills increase the maximum sentence under 18 USC 2339B, which prohibits material support for a terrorist group formally designated as such by the government. Burr would also increase the maximum sentence under 18 USC 2339A, which prohibits material support for people who may not be formally designated as terrorists, but who violate one of a bunch of other laws that are deemed terrorist acts. (Burr also tweaks the penalty for getting military training from terrorists in ways that might actually lower the punishment.)

The shocking move came in Burr’s proposal to add 18 USC 924(c) — which prohibits the “use, carrying, or possession of fire arms” during the commission of a crime of violence — among those crimes listed in 18 USC 2332b that make someone a terrorist.

Let me be clear: I’m in favor of doing whatever we can to keep guns out of the hands of terrorists and dangerous people, so much so my libertarian and gun activist friends surely consider me squishy on the Constitution.

But there are a number of reasons why making the possession of gun while committing a crime of violence, “a terrorist act,” is a dangerous idea.

It starts from the fact that the term “crime of violence” is horribly vague (so much so that SCOTUS is reviewing a similar designation right now). It “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” That is, the “violence” may all stem from that perceived threat of physical force, which in turn may stem from someone’s possession of a gun (or, as often happens in our still very racially charged society, the possession of a gun by a particular kind of someone).

Then, to meet the terms of 18 USC 2332b that makes something a terrorist act, it may only involve a threat to “conspir[e] to destroy or damage any structure, conveyance, or other real or personal property within the United States.” As with the crime of violence, it may be the perceived threat of a crime, rather than a committed crime. And one way to qualify under this provision, the act would be “calculate[] to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.”

Altogether, Burr’s proposed change could — if the Federal Government pushed far enough — get people labeled as a terrorist for posing a threat or risk to the government while carrying a gun. The required element — beyond being or making a threat — is that gun, which, of course, is protected under the Constitution. The rest is just the risk to property in a way to influence politics. But ordinary dissidents and protestors intend to influence politics and have, at times, been called a threat to property, and looters who definitely (and indefensibly) destroy property have, throughout history, often been described as a “risk to the government” (and especially, a risk to law enforcement). Certainly dissidents should not be deemed terrorists because they carry guns and sit in the wrong park. And while looting is wrong, it’s not terrorism.

This might seem far-fetched, but one of the rare instances where non-Muslims have been charged as terrorists under a related provision — which deems even FBI-supplied bombs “Weapons of Mass Destruction” and therefore terrorist weapons — were three guys tied to Occupy Cleveland who were caught in an FBI-crafted sting.

As with that case, the effect of labeling someone’s threat of violence a terrorist crime would involve expanding the potential sentences significantly, not to mention labeling someone a terrorist as they contemplated a jury trial. Since 9/11, jurors have been very credulous of evidence involving alleged terrorists, meaning it would become a lot easier for the government to win convictions even with dodgy evidence or (as in the Cleveland case) a plot invented by the FBI.

It probably, also, involves lots of extra investigative tools.

There are so many other ways to designate people who are really conspiring under the direction of actual terrorists as terrorists that this seems like dangerous overkill. It would invite Feds to label looters who happen to be armed or dissidents who mouth off and train with guns as terrorists — and thereby all their associates as material supporters of terrorism.

Richard Burr’s bill is horrible, as it is, for how it would expand the dragnet. But that he is, at the same time, envisioning dangerously expanding the definition of “terrorist” in a way that could be badly abused is another reason to distrust Burr’s effort to capitalize on fear-mongering around the PATRIOT reauthorization to expand the security state.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

14 replies
  1. earlofhuntingdon says:

    This government seems to be arguing that if it cannot deem behavior a terrorist act, it will be powerless to stop, surveil or prosecute it crime, not just “terrorism”.

    It’s a handy redefinition, a misconception, that bolsters the foundation of what government already seems to be doing – surveilling, investigating and prosecuting traditional criminal behavior as if it were terrorism (however one defines it), with all the over-powered tools (h/t Tim Allen) it commands.

    And what a propaganda twofer that this particular “assault” on Second Amendment-related behavior would properly have civil libertarians (as well as NRA fundies) defending the right to bear arms. How useful that would be if it were also a shiny penny to distract from the government’s expansion of its surveil-it-all-but-pretend-we’re-not “policing”. I wonder which Hill & Knowlton clone got paid to think this sort of thing one up.

  2. scribe says:

    A couple things:
    1. I don’t think the Second Amendment types are up to speed on exactly what this bill is about. Once they figure it out, they’ll get loud.
    2. The vast majority of Second Amendment types wind up being very law-abiding types. As it is, you pretty much have to be. Even in states with little to no gun control, the existing federal gun control statutes pretty much require it. Conviction of anything where your sentencing exposure – not the actual sentence – was >1 year winds up being a lifetime disqualification. Likewise if the police get called because you allegedly struck your spouse/significant other. So, the vast majority of them guide their behavior accordingly, i.e., behave themselves well.
    As a result, they also fall into that category of people who cannot conceive of themselves as even possibly running afoul of the law. They view themselves as living law-abiding lives and they actually do. This, notwithstanding the fact that the average person in today’s America, says the author, commits 3 felonies a day. So, the idea that they could be lumped in with “terrorists” is so far beyond their self-conception, that they’d have a hard time believing it.
    As a corollary to that, most gun owners (at least among the many that I know) have a strong sense of both supporting law and order, and of supporting both the police, government and military. A large number of people active in the shooting sports have, at some time in their past (or present) been a part of the military, the police, or both. They tend to view those entities as positive, even while acknowledging their flaws and wrongdoing as unacceptable. (That crams a lot into one sentence, but that’s how it is.) They want criminals to be caught and seem to be OK with just about anything the cops do, but if one walks them back and unpacks why a particular notorious defendant got a walk, they often wind up sounding like a Life member of the ACLU.

    The gun owners’ POV, then, informs their antipathy to gun control of just about any kind: they view it as a breach of a mutual social contract between them, on the one hand, and the government, on the other. You’ll hear it in terms of “back in the days when the government wasn’t afraid of the people”, “back when government trusted the people”, and so on, those old days being when there was no gun control to speak of, at least not by today’s standards.* They probably won’t articulate it, but they know – from the unending stream of gun-control and gun-seizure ideas that flow out to the country at large – that the relationship between the government and the people at large has turned far more adversarial than it ever was.
    They might, as earlofhuntingdon suggests, be amenable to standing alongside the ACLU, but for the fact that the ACLU defends people accused of crimes against overreaching by the government. Similarly, the ACLU might stand alongside the gun owners but for the fact that their donor base is, by and large, antipathetic to guns in the extreme. That’s the curious – well, not “curious”; try “sad” – thing: both the NRA and the ACLU stand in favor of constitutionally protected rights, but their respective donor bases each think the other is the spawn of Satan or something close.
    Fact: Within the last 2 years I’ve been in a legislative hearing where one of the witnesses, the editor of a large newspaper (owned by the wealthy spouse of a local Democratic congresscritter), demanded that the NRA be designated a terrorist organization. In just those terms. Because … well, because they’re scared of something I guess.
    3. EW correctly notes:

    It starts from the fact that the term “crime of violence” is horribly vague (so much so that SCOTUS is reviewing a similar designation right now). It “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” That is, the “violence” may all stem from that perceived threat of physical force, which in turn may stem from someone’s possession of a gun (or, as often happens in our still very racially charged society, the possession of a gun by a particular kind of someone).

    This is the flip side of the proposition that the possible presence of privately-owned guns carried concealed in public spaces winds up putting everyone into a much more mannerly state of mind. I’ve seen it. In large cities and states where guns are strictly regulated, you’re much more likely to get flipped off, screamed at, or verbally assaulted in one way or another than you are in states where carrying concealed is something that goes on all the time. I’ve lived in both environments for extended periods and can confirm it. (BMAz, don’t tell me Ariz. is the land of flipping off your neighbor – you’re seeing one criminal client after another and getting a warped perspective on the run of humanity.)

    But the amendment Burr is proposing would, read by an ambitious prosecutor, turn some guy who tells someone “I’m gonna f’ you up.” while “possessing” a gun into a “terrorist” at the whim of that prosecutor.
    And keep in mind that the government’s definition of “possession” is way, way wider than yours. A couple weeks ago, the Supreme Court decided a case interpreting just what “possession” of a gun was, involving a guy who after his conviction could no longer have a gun but wanted them to be sold to/through someone in particular (who would not allow him access to them). The government argued he couldn’t even do that. fortunately, the government lost. But, “possession” for the purposes of the statute can include having the gun at home, or locked in the trunk, not in the defendant’s hand or tucked inside his belt or her purse. There are people in prison serving long terms for “possessing” a gun at home, or locked in the trunk, while doing something untoward elsewhere.


    * Before someone goes off on telling me how lax today’s gun control is, consider that until the Gun Control Act of 1968, under federal law, anyone could buy any long gun or handgun by mail order, no background check, no waiting period, no criminal record search, no nothing. Felon disqualification was almost non-existent. Minimum ages for purchase, nonexistent.
    Now, as I have discussed with EW in the background, by monitoring the traffic through probably a dozen websites, the feds can get a pretty clear picture of exactly who’s shopping for what, who’s buying what, who’s selling what, and for how much. And that is while technically complying with the legal requirement that no record be kept of transactions through the instant background check system.

    • wallace says:

      quote”Now, as I have discussed with EW in the background, by monitoring the traffic through probably a dozen websites, the feds can get a pretty clear picture of exactly who’s shopping for what, who’s buying what, who’s selling what, and for how much. And that is while technically complying with the legal requirement that no record be kept of transactions through the instant background check system.”unquote

      Indeed. The exact premise of why premier evil scumbag multinational arms providers can make billions while the guy legally carrying is now surveilled with impunity.

    • emptywheel says:

      But the amendment Burr is proposing would, read by an ambitious prosecutor, turn some guy who tells someone “I’m gonna f’ you up.” while “possessing” a gun into a “terrorist” at the whim of that prosecutor.

      Well said. That’s my fear. And of course, these terrorist designations are already being treated arbitrarily. Lowering the bar makes it a lot easier to do.

      • Another Reader says:

        @emptywheel: “And of course, these terrorist designations are already being treated arbitrarily. Lowering the bar makes it a lot easier to do.”

        Funding ramifications, I’d imagine.

    • Another Reader says:

      @scribe: Recent studies showed something like 15% of American adults are on psych meds. Given the massive number of kids on psych meds now (which my bet is, higher than 15% at this point, given the ADHD stuff)… how long til this becomes the hot button for the next set of citizens who cannot get weapons because they may be a danger to themselves or others?

      • scribe says:

        It already has, after a fashion.

        A few years ago, DoJ got involved opposing (with the threat, implicit if not explicit, of prosecution) people in Oregon who both had prescriptions for medical marijuana and wanted to buy guns. Existing law prohibits a person who is “an unlawful user of, or addicted to, marijuana, or any depressant, stimulant, narcotic drug or other controlled substance” from buying or possessing a gun or ammunition. (18 USC 923(g)) Here’s the form you have to fill out when buying a gun from a dealer so as to facilitate the instant background check: https://www.atf.gov/file/61446/download More on that form here: http://en.wikipedia.org/wiki/Form_4473 Lying, broadly interpreted, on that form is a separate federal felony.

        So, DoJ and ATF took the position that medical MJ is a disqualifier. Here’s their open letter to dealers on the topic: https://www.atf.gov/file/60211/download Even the possession of a prescription for medical MJ is enough, in DoJ/ATF’s view, to disqualify one from buying/possessing a gun or ammunition. Violating that law is a federal felony. The only reasons they don’t prosecute it [much] is it isn’t worth the effort and there would be a backlash.

        What you also should recall is that in 2005 or so, tacked on to a piece of must-pass legislation (by Durbin, IIRC) was a provision that required pharmacies and dispensers of prescription drugs to create and join into an electronic system wherein all prescriptions are recorded. I suppose the most anodyne reasons are to prevent pharmacists from screwing up when dispensing, by eliminating the problems doctors’ handwriting creates, cut down on people stealing prescription pads, and speed dispensing drugs in emergencies (by facilitating use of email). I think they also wanted to cut into the market for Canadian pharmacies filling US scrips, too. But, I’ve seen it happen more than once where one of the first bits of news that comes out when some guy shoots some other people is that the FBI knows he’s on some medication.

        Moreover, given that Big Pharma has decided (or discovered) they could not make as much money as they wanted by making drugs that cure you, but could make that money by making drugs you have to take every day for the rest of your life, one could easily argue they have created many, many people who are “addicted” to a “controlled substance”. Given that the main active ingredient in Adderall is amphetamine, clearly both a “stimulant” and a “controlled substance”, all it would take to prosecute people receiving it and having guns would be comparing databases for matches.

  3. Another Reader says:

    @scribe: Terrific, terrific comment. And agreed on the website comment (it’s probably already being done, actually, I’d imagine, in the guise of specific cases (DEA, ATF, ICE), then dipped into as needed).

  4. earlofhuntingdon says:

    The greater the ambiguity in the law, the more scope for bureaucratic discretion, as well as corruption. Differential injustice follows. Accountability declines. A politician’s nirvana. In a government increasingly dominated by corporate values and priorities, what’s not to like? For the citizenry not living by the proverbial clipping of coupons, it’s a different story altogether.

  5. Rayne says:

    The other problem with Burr’s bullshit is that it will not be enforced equitably — the label “terrorist” is virtually reserved for persons of color, not for whites.

    We already don’t see equal protection under the law when it comes to First Amendment religious freedoms. White people can carry guns and make threats against persons of color because of their religion with impunity right now. Exhibit A and Exhibit B.

  6. orionATL says:

    scribe’s comment at 4:56 and earl of huntingdon’s need to be considered together.

    i was wondering myself about the issue, which scribe discusses, of possession as ownership but absent possession at the time one was engaged in a particular public activity, e.g., demonstrating, rabblerousing, etc.

    that could involve, among others, either of two photogenic/mediagenic groups:

    – cliven bundy and his fellow travelers, much covered in the news

    or

    – a bunch of north carolinians, angry and demonstrating angrily, at the way the n.c. state government and its developer/real estate pals are responding to coastline erosion and beach development (with some loud climate change commentary thrown in).

    as earl of huntingdon suggests, members of either group could be up on charges, depending on a prosecutor’s personal political needs.

    same goes, in n. carolina or iowa, for investigation of or flyovers of pig farms.

    there, folks, we have in america, thanks to aaron burr’s senatorial blood relative, the beginnings of agro-climo-rancho terrorism – in short, of DOMESTIC TERRORISM.

    duck.

  7. Bill Jones says:

    “Richard Burr Wants to Label People Who Make Threats and Carry Guns “Terrorists””

    So that would get 800,000 cops off the street then

  8. Marley Beezle says:

    Terrorism is a tactic. The crime is murder, attempted murder and generally very large scale destruction of property. We have laws on the books to prosecute all of those. Whether you die from a bomb used in a terrorist (adj.) attack, a gunshot from your crazy neighbor or polonium from a Russian operative, you are just as dead – the end result of all methods are equally as bad. Stop this nonsense of governmental overreach.

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