Why Not Charge Eco-Terrorists As Terrorists?

Original Story

A number of Earth Liberation Front terrorists have been charged in a 1999 arson attack on Michigan State University. According to the above story, the terrorists were indicted for conspiracy to commit arson, aggravated arson and arson. I found this a bit humorous because I recall one of the first cases I ever read when I was in law school was a case invalidating a federal arson statute (obviously a different statute than what these terrorists were charged with). While I certainly applaud the authorities for bringing this scum to justice, I cannot help but wonder why these people were not charged as terrorists.

It is important to point out that, had the crime committed by these terrorists been committed today, that the punishment would be far steeper. There is an ex post facto clause issue in this case. Specifically, I would like to draw attention to the Animal Enterprise Terrorism Act, amended through bipartisan legislation in 2006, which is rather easy reading even for those not schooled in the field of law. Anyone can read the NEW text of the law by clicking here. The plain language of the statute clearly shows that the facilities damaged by the arsonists were constituted an "animal enterprise" and, assuming the article was correct in stating that the damages were 1.2 million dollars, this offense would be punishable by a term of up to 20 years in prison.

The problem is that the 20 year imprisonment provision was not the law at the time this crime was committed. That means that, in order to charge the ELF folks as terrorists, there must have been statutory authority to do so at the time the crime was committed. That brings us to the actual statute that was amended by the 2006 legislation, which is the Animal Enterprise Protection Act of 1992, which can be read by clicking here. Under this statute, the crime committed is actually a misdemeanor punishable by "not more than one year in prison." The fundamental changes to the law have been severe increased in penalties for persons who engage in this type of terrorist activity. The elements of the crime, however, remain the same. I believe that the prosecution of these individuals as terrorists under the law that existed at the time the crime was committed would not only be possible - but it would be prudent.

Why charge them with what amounts to a misdemeanor and spend the money to prosecute them? If for no other reason, as a deterrent. When I did my report on the new law while still a law student, I noted that there were no reports of anyone ever having been prosecuted under either the old or the new statute. This, of course, does not mean that such prosecutions did not occur. The fact that they were not widely reported is likely because, until the law was amended in 2006, these crimes were misdemeanors. In fact, if the damage was less than $10,000, the crime was not punishable as a federal offense. Not exactly front-page material.

But our attitudes on terrorism in the post-9/11 world have certainly changed. Prosecution of the ELF terrorists responsible for damaging the facilities at Michigan State University would send an important message. It would show that, even if it has to prosecute a terrorist act as a misdemeanor, that the US Dept. of Justice absolutely will not tolerate terroristic acts being committed by groups like ALF and ELF - and that if it is willing to prosecute such an offense as a misdemeanor that it would certainly be willing to prosecute future offenses (committed after passage of the new law) as serious federal felonies. At a May 2005 hearing before the US Senate Committee on the Environment and Public Works, John Lewis, Deputy Assistant Director for the FBI's counter-terrorism division testified about the grave danger posed by groups like ELF and ALF, stating "it is only a matter of time before someone dies from their dangerous tactics of arson, sabotage, and vandalism." According to the FBI, animal-rights related terrorism remains the top domestic terror threat to the United States of America.

If animal rights related terrorism truly is the greatest domestic terror threat to the United States of America, the US government should not be skiddish about prosecuting acts of terror for what they are. Although the prosecution would be largely symbolic in a case like this, it would still be extremely important to the preservation of the rule of law here at home. After all, the United States does a quite a bit of tough talk when it comes to prosecuting acts of terrorism committed overseas. What kind of message are do we send when, given the opportunity to prosecute acts of domestic terrorism as such, we fail to do so? Certainly not the right one.