By Heidi R. Gilchrist, Assistant Professor of Legal Writing at Brooklyn Law School; Lecturer-in-Law at Columbia Law School.
Attempt law is inherently fraught with difficulty – predicting who is going to commit a crime or become a terrorist is almost impossible. Therefore, the law generally requires the individual to come as close to committing the act as possible, “a substantial step” in addition to intent before prosecuting them. However, in the terrorism realm, material support laws were enacted to catch terrorists before they have acted and even if they have not engaged in or attempted a terror act at all. Rather, ‘material support’ encompasses giving money or aid that could help a designated terror group more generally. Therefore, with the concepts combined, we have the murkiest of laws – attempted material support. Many of the cases follow a similar pattern: an individual tweets or writes something positive about ISIS on social media, they are then contacted by an undercover FBI informant, and they discuss plans to join ISIS. When the individual then buys a ticket to a country that can be a conduit to Syria or goes to an airport, they are arrested, charged with attempted material support, and can go to prison for up to twenty years. There are themes of young, misguided, or mentally ill individuals who do not fit the terrorist label at all. In sharp contrast, similarly young, misguided, or mentally ill individuals can plan a mass shooting, discuss it on-line, buy handguns, rounds and rounds of ammunition and often law enforcement cannot do anything. They have done nothing illegal. This article questions why is there this divide? Do we accept mass shooters in a way we do not accept ‘terrorists’? Is this potential bias because of race or religion? In an era where gun reform seems unlikely, should the laws be changed so that there is an attempted mass shooting law to bridge this divide especially when in many of the ‘terror’ cases the targets are not really terrorists at all.
Keywords: terrorism, social justice.
When news of a mass shooting breaks, the question in the news media quickly turns to whether it was terrorism or not. Why is this the immediate concern? If tens of people are dead, does it really matter to the general public, in the immediate aftermath, whether the person was motivated by ISIS(1)or some other reason? The shooter who killed 17 students at a high school in Parkland, Florida “preened with guns and knives on social media, bragged about shooting rats with his BB gun and got kicked out of school — in part because he had brought bullets in his backpack, according to one classmate(2) and even began introducing himself as “a school shooter.”(3) People contacted law enforcement about him at least three times with concerns that he could carry out a mass shooting.4 And that was not attempted anything. Conversely, when a young man or woman, often of Arab descent or Muslim, writes about jihad on-line and makes inquiries about traveling to Syria or buys a ticket to a country than can be a conduit to Syria, he or she can be found guilty of attempted material support and sentenced for up to twenty years in prison.
Much has been written about the murky law of material support, what it exactly is and how it criminalizes some minor actions or even speech. Attempt law has a long history and literature about its beguiling nature. Together we have the murkiest of laws – attempted material support which makes criminal the attempt to do something that itself would generally not even be considered criminal. This article will be the first to examine and isolate attempted material support specifically.
In Section I, I give background to the material support laws and what they criminalize. I then look specifically at attempted material support and what ‘actions’ can lead to a conviction for attempted material support. Many of the cases follow a similar pattern where an individual tweets or posts on social media something positive about ISIS or another terrorist group and is then contacted by an FBI informant. The defendant then expresses interest in joining ISIS and either buys a plane ticket to a country where they could then reach Syria or goes to an airport where they are arrested. They can be sentenced for up to twenty years in prison, sometimes in solitary confinement. In Section II, I look at attempt law more broadly and discuss how murky preventative prosecutions can be as a general matter.
Section III examines sentencing for attempted material support and possibilities for rehabilitation or counseling. As the individuals in the attempted material support cases have often done nothing that is actually criminal, the long sentences for ‘terrorism’ crimes are especially harsh. Therefore, attempted material support is an area that is especially attractive for rehabilitation or counseling, although few inroads have been made in this area.
Finally, in Section IV, I detail some cases of mass shooters and all of the red flags they left behind as they went about their lethal plots and how there is often no law enforcement response or how law enforcement is unable to act. If mass shooters are killing as many or more people then terrorists, should law enforcement have the same tools to try to prevent them? Or do we accept mass shooters in a way we do not accept ‘terrorists’? Why is there such a gulf of law enforcement response between the two? Even when in many of the attempted material support cases the defendant may be mentally ill, isolated, looking for a cause, or even a criminal, but is not a ‘terrorist.’ As our federal gun laws do not seem to be changing, no matter how many people die, and as we do not want mass shootings to continue, there is a call to expand the definition of terrorism to include domestic terrorism and therefore enable law enforcement to investigate and prosecute individuals domestically who are planning an attack. (5) There is strong appeal in this suggestion, but this paper urges caution as predicting who will be a terrorist or mass shooter is a difficult business especially in the age of social media where tweets and postings can be misconstrued.
Gilchrist, Heidi, The Vast Gulf Between Attempted Mass Shooting and Attempted Material Support (March 19, 2019). University of Pittsburgh Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3355657