How Tough-on-Crime Laws Became Linked to Anti-Terrorism

The strange legislative history that led to the standoff in Oregon.

Ammon Bundy, the leader of an anti-government militia, speaks to members of the media in front of the Malheur National Wildlife Refuge Headquarters on Jan. 5, 2016 near Burns, Oregon.

Justin Sullivan/Getty Images

As the armed militia’s occupation of Oregon’s Malheur National Wildlife Refuge approaches its fourth week, American media is moving beyond what now feels like a ritualized debate over whether the actual or threatened use of violence to secure political objectives counts as terrorism when white people do it. The latest terrorism narrative focuses on Dwight and Steven Hammond—the rancher-arsonists whose criminal sentencing served as pretext for the occupation. Many publications (including Slate) have run articles criticizing federal authorities for recklessly prosecuting the Hammonds as terrorists. This argument proceeds on serious misunderstanding of the criminal provision under which the Hammonds were actually sentenced.

Federal prosecutors charged and obtained arson convictions for the Hammonds under 18 U.S.C. § 844(f)(1), and such a conviction carries a sentence between five and 20 years. The Hammonds-were-mistreated-as-terrorists argument is a basic syllogism: Section 844(f) was part of anti-terrorist legislation, the Hammonds were charged under § 844(f), and so the Hammonds were prosecuted as terrorists. The problem is the major premise: Section 844(f) was ratified as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), but such legislative provenance does not mean that § 844(f) defines terrorism. As the legislation’s bizarre name suggests, AEDPA is actually a loose collection of tough-on-crime provisions, not a targeted anti-terrorism statute.

AEDPA’s legislative history happens to be in my area of professional expertise. For years, Republican lawmakers had tried unsuccessfully to pass extremely restrictive habeas corpus laws, which control the degree to which federal courts can reconsider state criminal convictions. Toward the end of the 20th century, executions that were delayed because of federal appeals became a powerful symbol of how federal courts interfered with the state prerogative to punish criminals. Still, until the mid-1990s, the legislative motive for a restrictive habeas statute did not coincide with sufficient legislative opportunity. On April 19, 1995, however, Timothy McVeigh and Terry Nichols detonated a bomb at the Murrah Federal Building in Oklahoma City, Oklahoma.

Contract-With-America Republicans, led by Speaker of the House Newt Gingrich, held the party’s first majority in the House of Representatives since 1946. Everyone in Washington knew that the legislative response to the Oklahoma City bombing would sail through Congress, and law-and-order interests did not squander the chance to stuff the responsive bill with as many provisions as they could get. Notwithstanding a basic misalignment between the content and the catalyst of the legislation—the habeas provisions were almost all about state convictions, whereas McVeigh and Nichols were to be tried in federal court—the first order of business was to staple the completely unrelated habeas provisions to the anti-terrorism bill. Nor was there reason to stop there. Republican lawyers from the Senate Judiciary Committee drafted the legislation, poring through 50 years of failed crime bills. There was little in the way of outside consultation, and virtually none with Democrats. It was a lawmaking bonanza for anyone with a tough-on-crime provision. President Clinton signed AEDPA into law on April 24, 1996. The A in AEDPA stands for anti-terrorism, but the idea that all of its criminal provisions are (or were intended as) devices to combat terrorists is a farce.

Acting U.S. Attorney Billy J. Williams is therefore correct, both technically and in spirit, when he explained: “The jury was neither asked if the Hammonds were terrorists, nor were defendants ever charged with or accused of terrorism. Suggesting otherwise is simply flat-out wrong.” The notion that anyone touched by an AEDPA provision is being treated as a terrorist involves some combination of (1) forgivable unfamiliarity with the legislation’s history and (2) more general naïveté about the sausage-making of federal law.

The most troubling feature of the argument, however, is its selectivity. Insofar as the Hammonds are subject to AEDPA, they join literally every single person subject to a criminal conviction in the United States. Yes, 28 U.S.C. § 2254 is the AEDPA–produced vehicle for state inmates to challenge their convictions in federal court, and 28 U.S.C. § 2255 is the parallel provision for federal inmates. Even though these provisions are equally part of “anti-terrorist legislation,” and even though their presence in AEDPA was clearly linked to the suggestion of punishment for the Oklahoma City bombers, there is no burgeoning angst about whether the criminals subject to them are being unfairly treated as terrorists. Robust cultural consideration of the phenomenon seems reserved for a scenario in which the aggrieved parties are eccentric white people violently contesting the authority of the federal government.

Americans now experience crime and terrorism through legal and cultural constructs that are most plainly disrupted by whiteness. The Hammonds are not a story about the abuse of anti-terrorist legislation; they are simply rural, white protagonists in what should be a much more familiar story about criminal punishment and the power of the American prosecutor. By all means, people should question how mandatory minimums and prosecutorial discretion affect justice and social welfare; had such reflection happened decades ago, it might have spared a generation from the damage of the war on drugs. If, however, that discussion touches on whether legal institutions too heavily rely on tools secured in the name of fighting terrorism, then it should have touched on that issue long before the Hammonds.

Read more of Slate’s coverage of the standoff in Oregon.