Separate and Unequal: The Law of “Domestic” and “International” Terrorism
U.S. law differentiates between two categories of terrorism. “International terrorism” covers threats with a putative international nexus, even when they stem from U.S. citizens or residents acting only within the United States. “Domestic terrorism” applies to political violence thought to be purely domestic in its origin and intended impact. The law permits broader surveillance, wider criminal charges, and more punitive treatment for crimes labeled international terrorism. Law enforcement agencies frequently consider U.S. Muslims “international” threats even when they have scant foreign ties. As a result, they police and punish them more intensely than white nationalists and other “domestic” threats. This legal divide not only harms individuals and communities but also reinforces distorted public perceptions of terrorism that fuel anti-immigrant and discriminatory policies.
This Article is the first to challenge the domestic–international divide in U.S. terrorism law. It maps the divergence in the investigation, prosecution, and punishment of terrorism. It then refutes the three leading rationales for the divide: (1) civil liberties; (2) federalism; and (3) the magnitude of the threats. It further argues that, once the law divides threats into the “domestic” and “international,” the latter category will predictably expand to cover U.S. individuals perceived as “foreign,” even if they are citizens with negligible relationships abroad. Policymakers should reject the legal divide as both incoherent and invidious. But rather than “ratchet up” the criminalization of domestic terrorism in the name of equality, they should make the law’s approach to “international” terrorism more accountable and just.
*Associate Professor of Law and John A. Wilson Distinguished Faculty Scholar, Stan- ford Law School. For generous feedback on earlier drafts, I thank Amna Akbar, Rabia Belt, Devon Carbado, Jack Chin, Beth Colgan, Jen Daskal, Megan Ming Francis, Andrew Gilden, Jack Goldsmith, Aziz Huq, Darryl Li, Michael Malloy, Jenny Martinez, Anne O’Connell, Faiza Patel, Aziz Rana, Andrea Roth, Wadie Said, Aaron Simowitz, David Sklansky, Bob Weisberg, and workshop participants at the Seattle University School of Law, Willamette University Col- lege of Law, Southwest Criminal Law Workshop, the Grey Fellows Forum, University of Con- necticut School of Law, the Northern California International Law Scholars Workshop, the Critical Law and Security Studies Workshop, and the Harvard Law School Public Law Work- shop. I am grateful to Margot Adams, Meghan Koushik, Sarah Mahmood, Brynne O’Neal, and Leah Yaffe for superb research assistance; to Imran Maskatia, Eun Sze, and the Stanford Law librarians for continuing support; and to the editors of the Michigan Law Review for thorough and careful editing. I dedicate this Article to the memory of my 1L classmate and dear friend, Noera Ayaz, who lived her life in pursuit of equality and justice.