COVID-19 and America’s Counter-Terrorism Response – War on the Rocks

Posted By on May 2, 2020

Ever since the Sept. 11 attacks, U.S. foreign policy and national security have been swallowed whole by counter-terrorism considerations, even as a number of counter-terrorism experts have cautioned against overemphasizing the terrorist threat.

If anything could ever shake the United States out of its counter-terrorism fixation it would be a crisis of even greater magnitude than 9/11. It seemed like that moment finally came with the COVID-19 pandemic, as the death toll in New York alone has been greater than the 9/11 attacks.

Yet what we have seen so far is the opposite. Instead of reorienting toward other paradigms and reexamining its strategic priorities, the United States continues to reflexively overextend its counter-terrorism tools to deal with some of the more problematic aspects of the virus spread.

The Department of Justice under Attorney General William Barr released a memo on March 24 advising that, because coronavirus appears to meet the statutory definition of a biological agent under 18 U.S.C. 178(1), such acts potentially could implicate the nations terrorism-related statute [including] 2332a (use of a weapon involving a biological agent).

In other words, the United States is expanding the definition of terrorism to encompass the intentional spread of the new coronavirus, and the Department of Justice memo outlines how federal terrorism charges could be brought against individuals who have threatened to spread the virus deliberately.

The COVID-19 pandemic, like many crises and emergencies in the past, has been exploited by extremist actors. The question is how to respond without confounding the definition of terrorism. No doubt this advice from the department was released in response to disturbing evidence emerging of the way right-wing extremist groups in particular are attempting to exploit this crisis to promote accelerationist fringe theories.

Even a cursory scroll through neo-Nazi forums and white supremacist Telegram channels shows how right-wing extremists are pushing disinformation and conspiracy theories to stoke extremist narratives and encourage mobilization.

In the United States, right-wing extremism has accounted for 70 percent of extremist-related killings in the past 10 years; in 2018, right-wing extremists killed more people than in 1995, which was the year of the Oklahoma City bombing.

The COVID-19 pandemic is affording right-wing violent extremists more opportunities to radicalize and mobilize. Federal Protective Services within the Department of Homeland Security highlighted in a leaked memo that white supremacists and neo-Nazis are advocating the obligation of infected members to spread the virus to law enforcement and minority communities. Civil society groups, like the Anti-Defamation League, that are tracking right-wing extremism have identified memes on right-wing forums like What to Do if You Get Corona 19, that say, visit your local mosque, visit your local synagogue, spend the day on public transport, spend time in your local diverse neighborhood.

The risk is not just limited to an increase in hateful rhetoric and conspiracy theories but is leading to actual attacks and plots. On March 24, FBI agents killed known right-wing extremist Timothy Wilson in a shootout during a sting operation. FBI agents honed in on at this time because Wilson was planning to use a car bomb to blow up a hospital treating a number of COVID-19 patients. It was also recently reported that the leading member of the U.S. coronavirus task force, Dr. Anthony Fauci, has needed extra security because of a number of credible threats against his safety. On neo-Nazi Telegram channels, extremists have urged followers to target essential businesses that serve minority communities, like grocery stores, with homemade chemical weapons.

The most recent attempted attack was by John Michael Rathbun, who was charged with attempting to target a Jewish assisted living facility in Longmeadow, Massachusetts, with an explosive device, after it was alleged that he posted on multiple online white supremacist forums that it was Jew killing day.

Governments must account for a potential uptick in extremism in their emergency management planning and responses during crises. Law enforcement must also use federal statutes at their disposal to prosecute and deter violent extremism and terrorism. But the way the Department of Justices prosecutorial advice is being taken is an overextension of counter-terrorism legislation and definitions. Instead of being used to prosecute COVID-19-related violence or threats committed on behalf of political or ideological causes, it is being used to address more common law-and-order issues during this pandemic.

Since Barr issued the guidance, two people have been charged with terrorism offenses related to COVID-19, so the guidance has not been widely applied yet. However, in the two instances where bioterrorism charges have been made, neither individual had known links to terrorist groups or extremist ideologies, nor were they deliberately spreading the virus to promote accelerationism, target minority groups, or take down the government.

One man in Florida, James Jamal Curry, was charged with a federal terrorism offense perpetrating a biological weapons hoax and violating 18 U.S.C. 1038(a)(l) for claiming he had the coronavirus and spitting on a police officer who responded to a domestic violence incident.

In Texas, Christopher Charles Perez was also charged with violating 18 U.S.C. 1038, which criminalizes hoaxes related to weapons of mass destruction, for writing a Facebook post that claimed he paid someone to spread the coronavirus at grocery stores to deter people from visiting them. (He purportedly sought to scare people from going out in public, to prevent the virus broader dissemination through community transmission.)

Clearly, neither of these two individuals actions fall within the scope of weaponizing the virus to commit targeted violence for political purposes. The complaints have not outlined any evidence that Currys or Perezs threats to spread COVID-19 were committed on behalf of political or ideological causes.

Instead their offenses fall within the frame of terroristic offenses. Despite the similarity in nomenclature, there is a big difference between a terrorism offense and a terroristic offense. A terroristic offense is one where someone causes imminent fear of harm to an individual or the public at large. It is a fairly common criminal charge that often goes along with assault or threat of assault charges, or making other threats or hoaxes that cause a response by public authorities.

State and local authorities have already charged at least five individuals with terroristic offenses for intentionally spreading the virus or threatening to spread the virus. One man was charged with making a terror threat after he coughed in a grocery store clerks face and claimed he had the coronavirus. Another woman was charged with terroristic offenses for doing the same in a store in Pennsylvania. A Missouri man was arrested and charged with second-degree terror offenses for licking a row of deodorants in a local Walmart.

Most recently, a Texas teenager is now wanted by police and will be charged with making a terrorist threat as distinct from being charged under federal terrorism statutes for a string of videos she posted on social media threatening that she has the coronavirus and is intentionally spreading it around.

All of these individuals are likely either mentally disturbed, idiotic pranksters, or drunk and disorderly and with no known links to terrorist groups or political motivations behind their actions. It makes sense to charge them with the lesser terroristic offense.

Both Texas and Florida have terroristic offenses within their statutes, and the cases of Perez and Curry could, and arguably should, have been charged under them, not under federal terrorism statutes. The recent memo from the Department of Justice, however, means that states now have the option, and guidance, to use federal terrorism statutes instead of charging for terroristic offenses, assault, or disturbing the peace under state laws.

To charge individuals under federal terrorism statutes for threatening to spread the virus, if the government does not also prove that they did so on behalf of a terrorist cause or group, is a troubling expansion of our normative understanding of terrorism. It is also an example of the reflexive manner in which the United States continues to deal with every emergency through the counter-terrorism prism while at the same time not addressing the clear and present threat of domestic terrorism from far-right extremist actors.

It also raises the question: How can you equate a cough or a sneeze, even the threat of one to spread disease, with a manipulated biological agent? As former U.S. attorney Harry Litman has pointed out: Until now, the core concept of a biological agent in terrorism law is an engineered or synthesized toxin, like anthrax. Shifting that definition to a naturally occurring virus we all can catch and carry, and one we so far know so little about, is not just inapt, its overkill. Nevertheless, the complaint filed in U.S. District Court in Florida against Curry claimed that the COVID-19 virus satisfies the biological agent definition in Title 18 of United States Code because it is a virus capable of causing death.

The courts have checked federal prosecutors in previous terrorism cases when they have overextended statutes, such as the case of Carol Anne Bond v. the United States of America. In this case, Bond was charged under federal statutes put in place to implement the Chemical Weapons Convention because she used chemical agents in a domestic dispute between spouses. The Supreme Court found that the convention was not meant to cover local activities and that Bonds actions fell within the state criminal jurisdiction and therefore state laws were sufficient to prosecute an assault. The same argument could be made here that state laws are sufficient to prosecute individuals who have threatened assaults via the virus without any clear political or ideological agendas.

There is little precedent to make the case that the spread of a virus already in the human body is the same as the transfer of a harmful biological agent using an intentional vector or an engineered toxin. There will likely be difficulties in successfully prosecuting these charges in federal court. So expanding the definition of terrorism to deal with violations of government orders, absent a clear link to extremist groups or political motivation, makes little sense and has further problematic long-term implications.

It risks distorting our understanding of terrorism in unproductive ways. The definition of terrorism has been debated for decades and is inconsistent across jurisdictions. But a general principle has applied: Terrorism is an act or threat of violence in pursuit of political or ideological aims.

The FBIs own published definition states that international terrorism is violent, criminal acts committed by individuals and/or groups who are inspired by, or associated with, designated foreign terrorist organizations or nations (state-sponsored), and domestic terrorism is the same violent or criminal act committed to further ideological goals stemming from domestic influences, such as those of a political, religious, social, racial, or environmental nature. The U.S.Code of Federal Regulations defines terrorism as the unlawful use of force and violence in furtherance of political or social objectives.

This is not to say that definitions cannot be changed or expanded. After 9/11, the USA Patriot Act expanded the definition of terrorism to include domestic terrorism as well as international terrorism and defined it as action that is dangerous to human life, that is a violation of state or federal criminal laws, and when the act is intended to (i) intimidate or coerce a civilian population; (ii) 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.

Yet the individuals who have been recently charged with federal terrorism offenses for intentionally spreading or threatening to spread the coronavirus as a weapon of a biological agent had no political or ideological aims. Nor were they seeking to influence the government. Nevertheless, the recent Department of Justice guidance equates transmission of the disease to a terrorist attack via chemical or biological agent and makes no mention of linking the intentional spread to broader political or ideological aims.

Health and security experts have been warning about a global pandemic for years, and there have been numerous tabletop exercises conducted on the transnational spread of flu-like viruses. The Department of Homeland Security and state and local governments have taken an all-hazards approach to disaster management to account for other emergencies besides a major terrorist attack and they should have thought through how to deal with criminal aspects of other types of emergencies like natural disasters and pandemics. Yet we have not been able to wrest ourselves out of the constraints of the counter-terrorism paradigm, and the Department of Justices advice reflects this reflexive thinking.

Its especially confusing when there are individuals who arguably should have been charged with terrorism, like Rathbun, who was alleged to have been motivated by white supremacist ideology in his attack against the care facility. But because such acts of targeted violence dont fall under U.S. federal terrorism statutes, Rathbun was charged with arson instead. Even though the Patriot Act expanded the definition of terrorism to include domestic terrorism, there are no domestic terrorism statutes per se or designated domestic terrorist organizations, and therefore his actions cannot be labeled or charged as domestic terrorism in court. Many counter-terrorism experts have argued that the lack of domestic terrorism statutes has hampered our ability to address the expansion of far-right violent extremism. If there is to be an expansion of Americas 9/11 counter-terrorism framework, it should be here.

As Bruce Hoffman and Jacob Ware have written, there are numerous challenges to addressing domestic far-right extremism, making it more politically expedient to focus on tackling still-present foreign jihadist threats. However, the United States is likely to face more, not less, violence and extremism from domestic far-right actors, particularly as they are seeking to exploit times of crises to accelerate the collapse of society or a coming race war.

Also true is the fact that terrorism definitions and statutes have changed and shifted over the years to address emerging threats. However, the new legal guidance addressing those threats has the potential to expand the definition of terrorism beyond what should be acceptable while also not addressing what needs addressing in the United States, which is the need for carefully constructed domestic terrorism laws to combat the expansion of right-wing extremism and violence while also protecting basic First Amendment rights.

Instead of continuing to squeeze the United States pandemic response through the narrow backdoor of the counter-terrorism edifice it has steadily built since 9/11, this crisis should help dismantle some of its excess and revise it to meet emerging terrorism threats and challenges. By treating common criminal threats and assaults absent political motivation as terrorism and not charging domestic extremists with domestic terrorism because there are no statutes, it is confusing and blurring our normative understanding of terrorism while leaving unaddressed the real threat of right-wing domestic terrorism.

Lydia Khalil is a research fellow at the Lowy Institute and a research associate at the Alfred Deakin Institute, Deakin University and the Centre for Resilient and Inclusive Societies.

Image: U.S. Navy (Photo by Ensign Alexander Perrien)

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COVID-19 and America's Counter-Terrorism Response - War on the Rocks

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