New York state prosecutors announced on Tuesday that they were charging Luigi Mangione, the alleged killer of United Healthcare CEO Brian Thompson, with murder “in furtherance of terrorism.” The law that they are citing, which was passed a week after the attacks of September 11, 2001, increases penalties for violent crimes meant to “intimidate or coerce a civilian population,” “influence the policy of a unit of government by intimidation or coercion,” or “affect the conduct of a unit of government by murder, assassination or kidnapping.”
Killing and kidnapping, of course, are already illegal. Thompson’s murderer would have gone to prison for a very long time, with or without terrorism laws. A few decades ago, authorities had all the power they needed to investigate and prosecute violent crimes. But the wave of counterterrorism laws, which began in the 1990s and ramped up after 9/11, has allowed the government to create a new realm of special crimes.
Terrorism enhancements, like hate crime enhancements, increase the penalties for certain crimes simply because the motive is politically controversial. Other counterterrorism laws allow the government to treat unpopular First Amendment activities—like talking to unsavory foreign rebel groups, or animal rights activism—as if they were associated with heinous crimes.
The first counterterrorism laws in the United States were concerned with foreign policy and immigration. The Export Administration Act of 1979 allowed the U.S. State Department to designate certain countries as “state sponsors of terrorism,” which subjected them to certain kinds of economic sanctions. The 1990 amendments to the Immigration and Nationality Act allowed authorities to ban any foreigner who “has engaged in a terrorist activity” or “is likely to engage after entry in any terrorist activity” in the United States.
But criminal law continued to treat terrorist crimes like regular crimes. Ramzi Yousef, who killed six people at the World Trade Center in 1993 and plotted to blow up several airliners, was thrown into solitary confinement for life. Timothy McVeigh, who killed 168 people at the Oklahoma City federal building in 1995, was executed. There didn’t have to be any special laws for political violence, because the normal laws against murder and explosives use were enough.
After the Oklahoma City bombing, however, Congress passed the Antiterrorism and Effective Death Penalty Act of 1996. The Clinton administration and its supporters, including the Anti-Defamation League, originally wanted a broad law to crack down on both foreign and domestic terrorism, but Republicans pushed back due to worries about expanding the power of federal law enforcement. As a compromise, the final law banned “material support” for foreign terrorist organizations, meaning that there would be no legal definition of “domestic terrorism.”
But even the ban on supporting foreign terrorists encroached on “activities that would ordinarily be considered constitutionally protected,” according to a February 2024 study by the Center for Constitutional Rights. The definition of “material support” is vague, and the definition of a “foreign terrorist organization” is completely up to the discretion of the U.S. State Department.
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