Terrorism at Home and Abroad: Applicable Federal and State Criminal Laws

Congressional research reportSep 24, 2001

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Terrorism at Home and Abroad:

Applicable Federal and State

Criminal Laws

Updated September 24, 2001

-name redactedSenior Specialist

American Law Division

Congressional Research Service ˜ The Library of Congress

Terrorism at Home and Abroad: Applicable Federal

and State Criminal Laws

Summary

Terrorists’ attacks on the World Trade Center, the Pentagon, the Murrah

building in Oklahoma City and the American Embassies in Kenya and Tanzania have

stimulated demands that the terrorists responsible and those like them be brought to

justice. American criminal law already proscribes many of these acts of terrorism and

there have been proposals to expand that coverage. This is a brief overview of the

state and federal laws which now prohibit terrorism in this country and abroad.

Since terrorism is a creature of motive in whose name almost any wrong might

be committed, the interests of time and space require a more limited focus. For

purposes of this report, terrorism is conduct, committed or foregone, which instills

a fear of physical injury or of property damage or which is intended to do so.

Although ordinarily crime is proscribed by the law of the place where it occurs,

more than a few American criminal laws apply to terrorism committed outside the

United States. The power to enact such laws flows from the Constitution and is

usually limited by little more than due process notice. Reticence to offend another

sovereign, however, has traditionally limited American exercise of such authority to

instance where there is a discernible nexus to the United States.

In the United States, the conduct we most often associate with terrorism –

bombings, assassinations, armed assaults, kidnapping, threats – are generally outlawed

by both federal and state law.

The federal approach builds upon individual national interests: the protection of

federal officers, ensuring the safety of foreign diplomatic officials, guaranteeing the

safety and integrity of the mails and the channels of interstate and foreign commerce,

and honoring our international obligations. Consequently international terrorism is

first and foremost a matter of federal law.

Crime within the United States, however, has traditionally been the domain of

state law. It is therefore not surprising that the reach of state criminal law, concerning

terrorism as well as other matters, is more comprehensive than that of the federal laws

which supplement it. Where federal law condemns presidential assassination, state

law prohibits murdering anyone.

Until recently, the seemingly boundless reach of the Commerce Clause suggested

state primacy may have begun to erode. In a shrinking nation, few saw any activities

that could not arguable be characterized as affecting commerce, the threshold for

federal legislative authority. In at least two areas central to control of terrorism,

firearms and explosives, those assumptions may now be open to question as a result

of recent court interpretations.

Contents

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

TERRORISM COMMITTED WITHIN THE UNITED STATES . . . . . . . 3

Constitutional Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Commerce Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

First Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Statutory Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Specific Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Bombings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Murder and Armed Assaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Kidnapping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Poison . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Threats . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Federal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

State Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

General Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

TERRORISM COMMITTED IN OTHER COUNTRIES . . . . . . . . . . . . 38

Constitutional Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Limits on Legislative Authority: Generally . . . . . . . . . . . . . . . . . . . . . . . . 40

Due Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

First Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Bill of Attainder & Ex Post Facto . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Statutory Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Present Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Federal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

State Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

APPENDICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Federal Anti-Terrorist Criminal Laws

Which Apply Within the United States . . . . . . . . . . . . . . . . . . . . . . . 60

Homicide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Assaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

Kidnapping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

Bombing & Property Destruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

Threats . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

Piggyback Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

Federal Anti-Terrorist Criminal Laws With

Apparent Extraterritorial Application . . . . . . . . . . . . . . . . . . . . . . . . 71

Homicide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

Piggyback Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

Assaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

Kidnapping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

Bombing & Property Destruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

Threats . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

Piggyback Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

Model Penal Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

Restatement of the Law, Third:

The Foreign Relations Law of the United States . . . . . . . . . . . . 82

Military Extraterritorial Jurisdiction Act of 2000 . . . . . . . . . . . . . . . . . . . 84

Terrorism at Home and Abroad: Applicable

Federal and State Criminal Laws

INTRODUCTION

Terrorist attacks on the World Trade Center towers, the Pentagon, and the

American Embassies in Kenya and Tanzania raised questions about the adequacy of

the law’s condemnation of terrorism. American criminal law clear proscribes

terrorism in this country and reaches a surprising number of terrorist incidents

overseas.

This report is a brief overview of when American criminal law outlaws terrorism,

whether committed within the United States or beyond our borders. It examines the

constitutional power of Congress and of state legislatures to enact anti-terrorist

legislation and the extent to which they have done so.1

Definition

The definition of terrorism for purposes of American criminal law involves two

very different concepts both prominent in federal law – one violent and the other

threatening violence. The first, usually considered international but now too well

known in the United States, has a political stripe and consequently has proven

particularly resistant to consensus definition. It is the stuff of bombings,

assassinations, and air piracy, committed for political purposes.2

Other recent CRS terrorism-related products include Terrorism Briefing Book: Legislative

Issues, available at www.congress.gov/brbk; Perl, Terrorism, the Future, and U.S. Foreign

Policy, CRS ISSUE BRIEF IB95112 (updated regularly); Krouse & Perl, Automated Lookout

systems and Border Security Options and Issues, CRS REP.NO. RL31019 (June 18, 2001);

and Brake, Terrorism and the Military’s Role in Domestic Crisis Management: Background

and Issues for Congress, CRS REP.NO. RL30938 (April 18, 2001).

One of the difficulties in formulating a uniformly acceptable definition is that terrorism is

a term of opprobrium with adverse legal consequences; many are therefore reluctant to

endorse any definition which might apply the term to those they admire or support; “one man’s

terrorist is another man’s freedom fighter.” Extraterritorial Jurisdiction Under International

Law: The Yunis Decision as a Model for Prosecution of Terrorists in U.S. Courts, 22 LAW

& POLICY IN INTERNATIONAL BUSINESS 409, 410 (1991), quoting MURPHY, STATE SUPPORT

OF INTERNATIONAL TERRORISM: LEGAL, POLITICAL AND ECONOMIC DIMENSIONS 3 (1989).

Terrorism is described as:

[1] “activity, directed against United States persons, which – (A) is committed by an

individual who is not a national or permanent resident alien of the United States; (B) involves

violent acts or acts dangerous to human life which would be a criminal violation if committed

within the jurisdiction of the United States; and (C) is intended – (i) to intimidate or coerce a

civilian population; (ii) to influence the policy of a government by intimidation or coercion;

or (iii) to affect the conduct of a government by assassination or kidnapping,” 18 U.S.C.

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The second brand of terrorism, the more distinctly American cousin, although

at times violent and politically motivated or a harbinger of more serious misconduct,

need be no more than a threat designed to engender fear;3 it is blackmail or extortion

without their mercenary elements; it is at the heart of our contemporary stalking

laws.4 At various points the two share common ground,5 but the difficulty is to mark

921(22);

[2] “premeditated, politically motivated violence perpetrated against noncombatant

targets by subnational groups or clandestine agents,” 22 U.S.C. 2656f(d)(2);

[3] “an activity that involves a violent act or an act dangerous to human life that is a

violation of the criminal laws of the United States or of any State, or that would be a criminal

violation if committed within the jurisdiction of the United States or of any state; and appears

to be intended – (i) to intimidate or coerce a civilian population; (ii) to influence the policy of

a government by intimidation or coercion, or (iii) to affect the conduct of a government by

assassination or kidnapping.” BLACK’S LAW DICTIONARY 1473 (6th ed. 1990), citing, 18

U.S.C.A. §3077;

[4] “the use, or threat of use, of violence by an individual or group, whether acting for

or in opposition to established authority, when such action is designed to create extreme

anxiety and/or fear-inducing effects in a target group larger than the immediate victims with

the purpose of coercing that group into acceding to the political demands of the perpetrators.”

WARDLAW, POLITICAL TERRORISM 16 (1982);

[5] “premeditated, politically motivated violence perpetrated against noncombatant

targets by subnational groups or clandestine state agents, usually intended to influence an

audience.” Alexander, Maritime Terrorism and Legal Responses, 19 DENVER JOURNAL OF

INTERNATIONAL LAW AND POLICY 529 (1991);

[6] “a strategy of violence designed to inspire terror within a particular segment of a

given society.” Bassiouni, Terrorism, Law Enforcement, and the Mass Media: Perspectives,

Problems, Proposals, 72 JOURNAL OF CRIMINAL LAW & CRIMINOLOGY 1 (1981); and as

[7] “the systematic use of terror as a means of coercion” or “an atmosphere of threat or

violence.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH

LANGUAGE: UNABRIDGED, 2361 (1986).

E.g., Haw.Rev.Stat. §707-715 (“a person commits the offense of terroristic threatening if

he threatens, by word or conduct, to cause bodily injury to another person or serious damage

to property of another or to commit a felony; (1) with the intent to terrorize, or in reckless

disregard of the risk of terrorizing, another person, or. . .” ); MODEL PENAL CODE §211.3

(1985) (“a person is guilty of a felony of the third degree if he threatens to commit any crime

of violence [committed] with purpose to terrorize another or to cause evacuation of a building,

place of assembly, or facility of public transportation, or otherwise to cause serious public

inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience”).

E.g., Cal.Penal Code §646.9(a)(“any person who willfully, maliciously, and repeatedly

follows or harasses another person and who makes a creditable threat with the intent to place

that person in reasonable fear for his or her safety, or the safety of his or her immediate

family, is guilty of the crime of stalking. . .”).

Terrorism is “public, impersonal, repetitive violence or threats of violence that inspire fear

in people who have not yet been, but could be, victims . . . . [and includes] pathological

terrorism (solo psychotics and serial killers); hedonistic terrorism (motorcycle gangs tattooed

with the slogan ‘born to raise hell’ and ruffians who bully subway riders for fun and profit);

larcenous terrorism (‘enforcers’ for crime syndicates); . . . official terrorism (Hitler had his

Gestapo in Nazi Germany, ‘Papa Doc’ Duvalier had his Ton Ton Macoutes in Haiti) . . .

[and] transnational terrorism, whose advocates hope to achieve sociopolitical objectives by

creating such fear and suffering in targeted countries that senior officials find concessions

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the ground occupied by either.

If motive alone, whether to instill fear or to instill fear for a political purpose,

defines terrorism, only those crimes which defy such motivation are excludable. Few

crimes could escape the definition. Yet to define terrorism more narrowly risks

exclusion of misconduct which American criminal law embodies within its concept of

terrorism. Consequently for purposes of this report terrorism is conduct calculated

to instill a fear of physical injury or property destruction.6

TERRORISM COMMITTED WITHIN THE UNITED STATES

Constitutional Considerations

Federal law is a creature of the Constitution. Congress may enact only those

laws that the Constitution authorizes and none that it prohibits. The authority to

enact criminal laws ordinarily lies with the states, because the Constitution vests no

general criminal power in the federal government. The Constitution, however, does

grant Congress general powers over other areas, powers of sufficient breadth to

accommodate a fairly wide range of implementing criminal laws.

Commerce Clause

The Commerce Clause, U.S.Const. Art.I, §8, cl.3,7 provides the foundation for

much of contemporary federal criminal law, terrorism and otherwise. Until fairly

recently its bequest was considered virtually boundless. It’s outer limits, defined in

United States v. Lopez, 514 U.S. 549 (1995) and confirmed in United States v.

Morrison, 529 U.S. 598 (2000), although not beyond reach, remain fairly remote.

While Congress may not “regulate noneconomic, violent criminal conduct based

solely on that conduct’s aggregate effect on interstate commerce,”8 it may pass laws

preferable to continued chaos.” Collins, Transnational Terrorism and Counteractions: A

Primer, CRS REP.NO. 93-328S (March 18, 1993).

Consequently, commercial terrorism, cyberterrorism, and other variants as they are most

expansively understood are beyond the scope of this report. For a discussion of the federal

law proscribing various form of computer-related crime see, Doyle, Computer Fraud and

Abuse: An Overview of 18 U.S.C. 1030 and Related Federal Criminal Laws, CRS REP.NO.

97-1025 (Feb. 22, 2001).

“The Congress shall have Power . . . To regulate Commerce with foreign Nations, and

among the several States, and with the Indian Tribes.”

United States v. Morrison, 529 U.S. at 516, citing, United States v. Lopez, 514 U.S. at

568. So, it may not outlaw schoolyard possession of a firearm in the name of regulating

interstate commerce simply because such possession may result in violent crime which may

have an economic impact, which may feed an unwillingness to travel interstate, and which

may produce an adverse education environment with substantial future economic costs, United

States v. Lopez, 514 U.S. at 563-69. Nor may it proscribe gender motivated violence simply

because such violence may have some attenuated impact interstate commerce “by deterring

potential victims from traveling interstate, form engaging in employment in interstate business,

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to protect the channels of interstate commerce, or the instrumentalities of interstate

commerce, or the activities which affect interstate commerce.9 Criminal statutes

which either touch upon some economic activity or contain a jurisdiction element

anchored to interstate commerce tend to exemplify the valid regulation of activities

which affect interstate commerce.10 Of course, where a statute has such a

jurisdictional element, it must be satisfied. The federal statute which proscribes

bombing buildings “used in an activity affecting interstate commerce” covers a

building used as commercial property, Russell v. United States, 471 U.S. 858, 862

(1985), but not one used by its owner as a private residence rather than for

commercial purposes, Jones v. United States, 529 U.S. 848, 856-59 (2000).

and from transacting with business, and in places involved in interstate commerce, by

diminishing national productivity, increasing medical and other costs, and decreasing the

supply of and the demand for interstate products,” United States v. Morrison, 529 U.S. at

615.

“First, Congress may regulate the use of the channels of interstate commerce. See, e.g., .

. . Heart of Atlanta [Inc. v. United States, 379 U.S. 241, 256 (1964)](‘The authority of

Congress to keep the channels of interstate commerce free from immoral and injurious uses

has been frequently sustained, and is no longer open to question’). . . . Second, Congress is

empowered to regulate and protect the instrumentalities of interstate commerce, or persons or

things in interstate commerce, even though the threat may come only from intrastate activities.

See e.g., Shreveport Rate Cases, 234 U.S. 342 (1914)(upholding amendments to Safety

Appliance Act as applied to vehicles used in intrastate commerce); Perez [v. United States,

402 U.S. 146, 150 (1971)](‘For example, the destruction of an aircraft (18 U.S.C. §32), or

. . . thefts from interstate shipments (18 U.S.C. §659)’). Finally, Congress’ commerce

authority includes the power to regulate those activities having a substantial relation to

interstate commerce . . . i.e., those activities that substantially affect interstate commerce,”

United States v. Lopez, 514 U.S. at 558-59 (some internal citations omitted); accord, United

States v. Morrison, 529 U.S. at 609.

“[W]e have upheld a wide variety of congressional Acts regulating intrastate economic

activity where we have concluded that the activity substantially affected interstate commerce.

Examples include the regulation of intrastate coal mining; intrastate extortionate credit

transactions, restaurants utilizing substantial interstate supplies, inns and hotels catering to

interstate guests, and production and consumption of homegrown wheat. . . .” United States

v. Lopez, 514 U.S. at 559-60 (some internal citations omitted); accord, United States v.

Morrison, 529 U.S. at 609. The presence of a “jurisdictional element which [ensures],

through case-by-case inquiry, that the [activity] in question affects interstate commerce,” also

greatly enhances the claim that a criminal statute lies within Congress’ power under the

commerce clause, United States v. Lopez, 514 U.S.at 561; United States v. Morrison, 529

U.S. at 611-12.

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First Amendment

Prosecution of terrorists occasionally implicates the right to free speech,11 but

the First Amendment does not protect the use of violence as a form of expression.12

Threats, incitement, or instruction to violence pose only a slightly more serious

question. Historically, the Supreme Court’s treatment of the Smith Act, which

proscribes incitement to overthrow the government,13 and of the Presidential

assassination statute,14 together with lower court approval of the federal law which

prohibits instruction in explosives with an eye to furthering civil unrest, 15 supply the

basic concepts vital to understanding the permissible reach of anti-terrorist legislation.

Although R.A.V. v. St. Paul, 505 U.S. 377 (1992), teaches that even antiterrorist legislation, there a city ordinance against cross-burning, must nevertheless

be content neutral to survive a higher level of scrutiny which only the most compelling

governmental interest may overcome, Wisconsin v. Mitchell, 508 U.S. 476 (1993).

For instance, one of the defendants in the 1993 World Trade Center bombing claimed

unsuccessfully that seizure of sundry printed material including his “terrorist kit;” documents

entitled, “Rapid Destruction and Demolition” and “Facing the Enemies of God;” as well as

material which “bristled with strong anti-American sentiment and advocated violence against

targets in the United States,” United States v. Salameh, 152 F.3d 88, 111 (2d Cir. 1998).

Another unsuccessful argued that prosecution under the statute which outlawed advocacy of

violent overthrow of the government violated his free speech rights, United States v. Rahman,

189 F.3d 88, 114-16 (2d Cir. 1999) .

“[A] physical assault is not by any stretch of the imagination expressive conduct protected

by the First Amendment. ‘[V]iolence or other types of potentially expressive activities that

produce special harms distinct from their communicative impact . . . are entitled to no

constitutional protection.’” Wisconsin v. Mitchell, 508 U.S. 476, 484 (1993), citing, Roberts

v. United States Jaycees, 468 U.S. 609, 628 (1984), and quoting, NAACP v. Claiborne

Hardware Co., 458 U.S. 886, 916 (1982).

Dennis v. United States, 341 U.S. 494 (1951); Yates v. United States, 354 U.S. 298

(1957); Noto v. United States; cf., Brandenbury v. Ohio, 395 U.S. 444 (1969). The thrust

of these cases is that the federal and state government, consistent with the demands of the First

Amendment, may outlaw speech which urges the violent overthrow of the government in an

environment where there is a reasonable expectation that seed will bloom. See also, United

States v. Rahman, 189 F.3d at 116-17 (2d Cir. 1999)(“freedom of speech and of religion do

not extend so far as to bar prosecution of one who uses a public speech or a religious ministry

to commit crimes”).

Watts v. United States, 394 U.S. 705 (1969) overturned the conviction of a teenager who

in the midst of a speech at a protest rally on the Washington Monument grounds said “if they

ever make me carry a rifle the first man I want to get in my sights is [then President] L.B.J.”

While it found the statement protected as rough political hyperbole, it upheld the general

constitutionality of the Presidential assassination statute. Contemporary lower courts cases

have upheld application of the statute frequently distinguishing the “public rally” context of

Watts, see e.g., United States v. Barris, 46 F.3d 33, 35 (8th Cir. 1995); cf., United States v.

Daughenbaugh, 49 F.3d 171, 173-74 (5th Cir. 1995)(distinguishing Watts in context of

threats against various state and federal judges in violation of 18 U.S.C. 876).

United States v. Featherston, 461 F.2d 1119, 1122-123 (5th Cir. 1972); United States

v. Mechanic, 454 F.2d 849, 852-54 (5th Cir. 1991).

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And the lower federal appellate courts attest to the continued vitality of the traditional

tests: for “time, place or manner restrictions;”16 for over breadth and vagueness;17 and

the O’Brien test for the validity of statutes which regulate conduct with both speech

and nonspeech components.18

Statutory Provisions

Specific Crimes

More than a few federal criminal laws reach the politically motivated acts of

physical violence and property destruction that are the part and parcel of international

terrorism.19 Ted Kaczynski, the Unabomber, was charged with and pled guilty to

Van Bergen v. Minnesota, 59 F.3d 1541, 1553 (8th Cir. 1995)(“[e]xpression, whether oral

or written or symbolized by conduct, is subject to reasonable time, place, or manner

restrictions. We have often noted that restrictions of this kind are valid provided that they are

justified without reference to the content of the regulated speech, that they are narrowly

tailored to serve a significant governmental interest, and that they leave open ample alternative

channels for communication of the information, Ward [v. Rock Against Racism, 491 U.S. 781

U.S. 781 (1989)]; Turner Broadcasting [Sys., Inc. v. F.C.C., 512 U.S. 622 (1994)]”).

Melugin v. Hames, 38 F.3d 1478, 1483 (9th Cir. 1994), quoting Village of Hoffman

Estates v. Flipside, 445 U.S. 489, 494-95 (1982)(“[i]n a facial challenge to the over breadth

and vagueness of a law, a court’s first task is to determine whether the enactment reaches a

substantial amount of constitutionally protected conduct. If it does not, then the over breadth

challenge must fail. The court should then examine the facial vagueness challenge and,

assuming the enactment implicates no constitutionally protected conduct, should uphold the

challenge only if the enactment is impermissible vague in all of its applications. A plaintiff

who engages in some conduct that is clearly proscribed cannot complain of the vagueness of

the law as applied to the conduct of others”); United States v. Wunsch, 54 F.3d 579,586 (9th

Cir. 1995)(“[a] statute is void for vagueness when it does not sufficiently identify the conduct

that is prohibited. When the statute has a potentially inhibiting effect on speech, this standard

is ore strictly applied. Village of Hoffman Estates v. Flipside, 455 U.S. 489, 499 (1982). .

. . Laws that are insufficiently clear are void for three reasons: (1) To avoid punishing people

for behavior that they could not have known was illegal; (2) to avoid subjective enforcement

of the laws based on arbitrary or discriminatory interpretations by government officers; and

(3) to avoid any chilling effect on the exercise of First Amendment freedoms, Grayned v. City

of Rockford, 408 U.S. 104, 108-9 (1972)”).

American Life League, Inc. v. Reno, 47 F.3d 642, 651 (4th Cir. 1995), quoting United

States v. O’Brien, 391 U.S. 367, 377 (1968)(“a statute passes constitutional muster ‘if it [1]

furthers an important or substantial governmental interest; if [2] the governmental interest is

unrelated to the suppression of free expression; and if [3] the incidental restriction on alleged

First Amendment freedoms is no greater than is essential to the furtherance of that interest’”).

The law may condemn threats which promise to inflict physical injuries upon another

communicated under circumstances which would place a reasonable person in apprehension

that the threat will be carried out.

Bombings and fire bombings, armed assaults, assassinations, sabotage and property

destruction, product contamination, kidnapping, hostage taking, and hijacking have been

trademarks of international terrorism. SIMON, THE TERRORIST TRAP: AMERICA’S

EXPERIENCE WITH TERRORISM 348 (1994); U.S. DEPARTMENT OF STATE, PATTERNS OF

GLOBAL TERRORISM, 1993 (1994), reprinted in, INTERNATIONAL TERRORISM: A

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violations of federal explosives laws.20 As a result of bombing the Murrah Federal

Building in Oklahoma City, Timothy McVeigh and Terry Nichols were indicted and

convicted under federal laws outlawing the murder of federal law enforcement

officers, bombing federal buildings, and the use of weapons of mass destruction.21

Charges against the terrorists involved in the 1993 bombing of the World Trade

Center included violations of federal laws outlawing the interstate transportation of

explosives for unlawful use; bombing motor vehicles used in interstate commerce,

property used in an activity affecting interstate commerce, and federal property;

possession of a bomb during the commission of a federal crime of violence; assault on

federal officers; foreign travel in furtherance of a crime of violence; and conspiracy.22

At the state level, terrorism has traditionally been thought of as akin to state

crimes of harassment or menacing, a low grade form of assault. The law in some

states continues to reflect this view,23 but it has been recently augmented by scattered

COMPILATION OF MAJOR LAWS, TREATIES, AGREEMENTS, AND EXECUTIVE DOCUMENTS:

REPORT OF THE HOUSE COMM. ON FOREIGN AFFAIRS, 103d Cong., 2d Sess. 553, 615 (Comm.

Print)(1994).

Kaczynski was indicted for and pled guilty to violations of 18 U.S.C. 844(d)(interstate

transportation of an explosive device), 1716 (mailing an explosive device), and 924(c) using

an explosive device in relation to a federal crime of violence, United States v. Kaczynski, 239

F.3d 1108, 1110, 1113 (9th Cir. 2001).

18 U.S.C. 1114, 844(f), 2332a, United States v. McVeigh, 153 F.3d 1166, 1176, 1179

(10th Cir. 1998).

18 U.S.C. 844(d), 33, 844(i), 844(f), 924(c), 111, 1952, and 371, United States v.

Salameh, 152 F.3d 88, 152 (2d Cir. 1998). There were also charges and convictions for

seditious conspiracy, 18 U.S.C. 2384, possession of forged passports, 18 U.S.C. 1546,

conspiracy to assassinate and solicitation to assassinate Egyptian President Mubarak during

his visit to this country, 18 U.S.C. 1116, 1117, murder of Meir Kahane in order to maintain

a position in a racketeering enterprise, 18 U.S.C. 1959, United States v. Rahman, 189 F.3d

88, 111, 118, 125, 126 (2d Cir. 1999).

Ala.Code §13A-10-15 (terrorist threat); Alaska Stat. §11.56.810 (terroristic threatening,

i.e., false report of a dangerous condition that causes fear in another, evacuation of a building

or public inconvenience); Ariz.Rev.Stat.Ann. §§13-3110 (use of a simulated explosive device

to terrify, intimidate or threaten), 13-2308.01(terrorism: as any unlawful act including any

completed or preparatory offense involving the use of a deadly weapon or dangerous

instrument, or the intentional or knowing infliction of physical injury or criminal damage to

property, and involving extortion, kidnapping or riot committed for political or financial gain);

Ark.Code Ann. §§5-13-301 (terroristic threatening: threat of physical injury or property

damage in order to terrorize), 5-13-310 (terroristic act is sniping); Cal.Penal Code §422

(terrorist threat to injure resulting in reasonable fear), 11413 (use of explosives against

designated public buildings to cause fear), 11411 (using signs or symbols to terrorize a

property owner); Colo.Rev.Stat. §18-9-120 (terrorist training); Conn.Gen.Stat.Ann. §53a-62

(threat of physical injury); Del.Code Ann. tit.11 §621 (terroristic threat: threat to inflict injure

or damage or false alarm causing an evacuation, serious inconvenience or terror); Ga.Code

Ann. §16-11-37 (terroristic threats to injure or damage property in order to terrorize, cause

evacuation, or cause serious public inconvenience); Hawaii Rev.Stat. §§707-715 to 707-717

(threaten to cause physical injury or property damage with the intent terrorize); Idaho Code

§§18-6710, 18-6711 (telephone threats or terrorizing); Iowa Code Ann. §708.6 (terrorism:

threats to fire, launch, or discharge a dangerous weapon in order to provoke fear);

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provisions directed against paramilitary groups or street gangs and other more severe

Kan.Stat.Ann. §21-3419 (threat to commit violence with intent to terrorize); Ky.Rev.Stat.

§508.080 (terroristic threatening includes both threats to inflict injury or damage and false

alarms causing evacuation); La.Rev.Stat.Ann. §14:40.1 (terrorizing: false alarm to cause fear

of injury, evacuation, or serious public disruption); Me.Rev.Stat.Ann.tit.17-A §210

(terrorizing: threaten to cause fear or evacuation of a building or facility); Mich.Comp.Laws

Ann. §§750.205a, (placement of explosive or incendiary to terrorize), 750.209(possession of

a bomb in public with intent to terrorize); Minn.Stat.Ann. §609.713 (terroristic threats:

threaten to violently injury or damage in order to terrorize); Miss.Code Ann. §97-3-85(threat

with intent to terrorize); Mo.Ann.Stat. 574.115 (terroristic threats); Mont.Code Ann. §45-5221(civil rights related terrorist threats); N.H.Rev.Stat.Ann. §631:4(threat with intent to

terrorize); N.J.Stat.Ann. §2C:12-3 (terroristic threats: threat of violence to terrorize, cause

evacuation of a building or facility or otherwise cause serious public inconvenience);

N.D.Cent.Code §12.1-17-04 (terrorizing: threat of violence in order to frighten, to cause the

evacuation of a building or to cause serious public inconvenience); Pa.Stat.Ann. tit.18 §2706

(terroristic threats: threat to commit a crime of violence to terrorize or cause evacuation of a

building or facility or cause serious public inconvenience); S.D.Cod.Laws §22-14A-6

(possession of explosives with the intent to terrify or intimidate another); Tex.Penal Code

§22.07 (terroristic threat made with intent to create fear of injury, or cause evacuation of the

a build or facility); Wyo.Stat. §6-2-505 (terrorist threats: threaten to commit a violent felony

in order to cause evacuation of a building or facility or cause serious public inconvenience);

but see, Ariz.Rev.Stat.Ann. §13-2308.01 (outlawing as terrorism the unlawful use of a

dangerous weapon or the infliction of property damage or personal injury, committed for

political reasons with the intent to coerce a governmental entity or disturb public service);

Ind.Code Ann. §35-47-12-1 (outlawing as terrorism disseminating or detonating a weapon of

mass destruction).

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brands of terrorism.24 Of course, state law outlaws murder, assault, bombings,

kidnappings, and threats whether politically motivated or otherwise.

Bombings

No comprehensive federal explosive statute exists, but the weave of federal law

covering bombing is so extensive that most terrorist use of explosives will fall under

at least one and sometimes more than one federal law; many of which carrying

escalated penalties if death or serious bodily injury results. The proscriptions come

in three stripes: those that deal with the interstate transportation of explosives;25 those

Ala.Code §31-2-125 (unlawful military congregation); Alaska Stat. §§12.55.155(29),

12.55.137 (crimes committed in connection with a criminal street gang are more severely

punished); Ariz.Rev.Stat.Ann. §13-2308 (street gang participation); Ark.Code Ann. §§5-71301, 5-71-302 (instruction in firearms, explosives, or incendiaries); Cal.Penal Code §§11460

(same), 186.20-186.28 (street terrorism); Colo.Rev.Stat. §18-9-120 (terrorist training);

Conn.Gen.Stat.Ann. §53-206b (unlawful training in firearms, explosives, or incendiaries);

Fla.Stat.Ann. §§874.01 to 874.09 (street terrorism), 790.29 (training in explosives, firearms

or incendiaries); Ga.Code Ann. §§16-11-150 to 16-11-152 (antiterrorists training), 16-15-1

to 16-15-8 (street gang terrorism); Idaho Code §§18-8101 to 8104 (terrorist control);

Ill.Comp.Stat.Ann. ch. 720, §570/405.2 (street gang criminal drug conspiracies), ch.20,

§1805/94a; Ind.Code Ann. §§35-45-9-1 to 35-45-9-4 (criminal gangs); Iowa Code Ann.

§§723A.1 - 723A.2 (criminal street gang with terrorism as one of predicate offenses);

La.Rev.Stat.Ann. §§14:117.1 (paramilitary organizations), 15:1401 to 15:1407 (criminal

street gangs); Mich.Comp.Laws Ann. §750.528a (training in explosives, firearms or

incendiaries);Minn.Stat.Ann. §609.229 (crime committed for benefit of a gang); Miss.Code

Ann. §§97-43-15 to 97-43-17 (street gangs); Mo.Ann.Code §§45-8-401 to 45-8-408 (criminal

street gang), 45-8-109 (training in firearms, explosives or incendiaries); Neb.Rev.Stat. §§281480 to 28-1402 (paramilitary training); N.J.Stat.Ann. §2C:39-14 (training in firearms,

explosives, or incendiaries); N.M.Stat.Ann. §§30-20A-1 to 30-20A-4 (antiterrorism: training

others in use explosives); N.C.Gen.Stat. §14-288.20 (training explosives, firearms, or

incendiaries); N.D.Cent.Code §§12.1-06.2-01 to 12.1-06.2-04 (criminal street gangs);

Okla.Stat.Ann. tit.21, §1320.10 (training in explosives, firearms, or incendiaries);

Ore.Rev.Stat. §166.660 (paramilitary training); Pa.Stat.Ann. tit.18 §5515 (same);

R.I.Gen.Laws §§11-55-1 to 11-55-3 (same); S.C.Code §16-8-20 (training in unlawful use of

explosives or incendiaries); S.D.Cod.Laws §§22-10-14 to 22-10-16 (street gang); Tenn.Code

Ann. §39-17-314 (training in explosives, firearms, or incendiaries); Tex.Penal Code §§71.01

to 71.022 (criminal street gang); Va.Code §§18.2-46.1 to 18.2-46.3(street gang), 18.2-433.1

to 18.2-433.3(paramilitary activity); Wis.Stat.Ann. §§939.625(penalty increases for street

gang offenses), 939.648 (penalty increases for terrorist offenses).

The transportation offenses include: (1) transportation of stolen explosives, 18 U.S.C.

842(h); (2) shipment of explosives to juveniles, indicted or convicted felons, drug abusers, or

mental defectives, 18 U.S.C. 842 (i); (3) interstate transportation or receipt of explosives with

the knowledge of an intent to use them to kill, injure, intimidate or to damage property, 18

U.S.C. 844(d); (4) interstate shipment to or possess by – a juvenile, an indicted or convicted

felon, drug abuser, a mental defective, an individual under a domestic relations restraining

order or dishonorably discharged from the armed forces, an alien, or a former American who

has renounced his citizenship – of a destructive device, 18 U.S.C. 922(g); (5) interstate

transportation of a stolen destructive device, 18 U.S.C. 922(i); (6) interstate transportation

of a destructive device with the intent to commit a felony, 18 U.S.C. 924(b); (7) interstate

transportation of a destructive device to be used to commit a crime of violence, 18 U.S.C.

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that outlaw the use of explosives for purposes of intimidation,26 and those that

proscribe bombing certain types of property – federal property,27 commercial motor

vehicles and their facilities,28 railroad property,29 aircraft or aircraft facilities,30

924(h); (8) smuggling a destructive device to facilitate a crime of violence, 18 U.S.C. 924(j);

(9) transportation of an explosive or incendiary device in furtherance of a civil disorder, 18

U.S.C. 231(2); (10) the transportation (or use) of a biological weapon, 18 U.S.C. 175; (11)

transfer (or use) of a chemical weapon, 18 U.S.C. 229; (12) transfer (or use) of nuclear

material, 18 U.S.C. 831.

18 U.S.C. 242 (“Whoever, under color of any law . . . willfully subjects any person in

any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights,

privileges, or immunities secured or protected by the Constitution or laws of the United States

. . .shall be fined under this title or imprisoned not more than one year, or both; and . . . if such

acts include the use, attempted use, or threatened use of . . . explosives . . . shall be fined

under this title or imprisoned not more than ten years, or both; and if death results from the

acts committed in violation of this section or if such acts include . . . an attempt to kill, shall

be fined under this title, or imprisoned for any term of years or for life, or both, or may be

sentenced to death”); see also, 18 U.S.C. 245 (use of explosives to interfere with federally

protected rights).

“Whoever maliciously damages or destroys, or attempts to damage or destroy, by means

of fire or an explosive, any building, vehicle, or other real or personal property in whole or

in part owned or possessed, or leased to, the United States, or any department or agency

thereof shall be imprisoned not less than 5 years and not more than 20 years, fined under this

title, or both.” 18 U.S.C. 844(f)(1); see also, 18 U.S.C. 1864 (booby traps on federal lands);

18 U.S.C. 81 (property destruction by fire (presumably including incendiary devices like

molotov cocktails) in the special maritime and territorial jurisdiction of the United States); 18

U.S.C. 2332a (use of weapons of mass destruction (including bombs) against an individual

which affects interstate or foreign commerce).

“Whoever willfully, with intent to endanger the safety of any person on board or anyone

who he believes will board the same, or with a reckless disregard for the safety of human life,

damages, disables, destroys, tampers with, or places or causes to be placed any explosive or

other destructive substance in, upon, or in proximity to, any motor vehicle which is used,

operated, or employed in interstate or foreign commerce, or its cargo or material used or

intended to be used in connection with its operation; or

“Whoever willfully, with like intent, damages, disables, destroys, sets fire to, tampers

with, or places or causes to be placed any explosive or other destructive substance in, upon,

or in proximity to any garage, terminal, structure, supply, or facility used in operation of, or

in support of the operation of, motor vehicles engaged in interstate or foreign commerce or

otherwise makes or causes such property to be made unworkable, unusable, or hazardous to

work or use; or . . .

“Whoever willfully attempts to do any of the aforesaid acts – shall be fined under this

title or imprisoned not more than twenty years, or both.” 18 U.S.C. 33; if death results the

offense is a capital one,” 18 U.S.C. 34.

“Whoever willfully derails, disables, or wrecks any train, engine, motor unit, or car

used, operated, or employed in interstate or foreign commerce by any railroad; or Whoever

willfully sets fire to or places any explosive substance on or near, or undermines any tunnel,

bridge, viaduct, trestle, track, signal, station, depot, warehouse, terminal, or any other way,

structure, property, or appurtenance used in the operation of any such railroad in interstate

or foreign commerce or otherwise makes any such tunnel, bridge, viaduct, trestle, track,

signal, station, depot, warehouse, terminal, or any other way, structure, property, or

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property being exported,31 and particularly, property used in, or used in activities

affecting, interstate or foreign commerce.32

appurtenance unworkable or unusable or hazardous to work or use, with the intent to derail,

disable, or wreck a train, engine, motor unit, or car used, operated, or employed in interstate

or foreign commerce, or Whoever willful attempts to do any of the aforementioned acts or

things – Shall be fined under this title or imprisoned not more than twenty years, or both.

Whoever is convicted of any such crime, which has resulted in the death of any person, shall

be subject also to the death penalty or to imprisonment for life. 18 U.S.C. 1992; see also, 18

U.S.C. 2275 (relating to placing a bomb aboard a vessel in U.S. waters) and 18 U.S.C. 2277

(relating to unlawful possession of explosives aboard a ship of U.S. registry).

“Whoever willfully – (1) sets fire to, damages, destroys, disables, or wrecks any aircraft

in the special aircraft jurisdiction of the United States (i.e. in flight over the United States, 49

U.S.C. 46501(2)) or any civil aircraft used, operated, or employed in interstate, overseas, or

foreign air commerce;

“(2) places or causes to be placed a destructive device or substance in, upon, or in

proximity to, or otherwise makes or causes to be made unworkable or unusable or hazardous

to work or use, any such aircraft, or any part or other materials used or intended to be used

in connection with the operation of such aircraft, if such placing or cause to be placed or such

mailing or causing to be made is likely to endanger the safety of any such aircraft;

“(3) sets fire to, damages, destroys, or disables any air navigation facility, or interferes

by force or violence with the operation of such facility, if such fire, damaging, destroying,

disabling, or interfering is likely to endanger the safety of such aircraft in flight; or

“(4) with intent to damage, destroy, or disable any such aircraft, sets fire to, damages,

destroys, disables, or places a destructive device or substance in, upon, or in proximity to any

appliance or structure, ramp,, landing area, property, machine, or apparatus, any facility or

other material used, or intended to be used, in connection with the operation, maintenance,

loading, unloading or storage of any such aircraft or any cargo carried or intended to be

carried on any such aircraft; . . . or

“(7) attempts to do anything prohibited under paragraphs (1) through (6) of this

subsection shall be fined under this title or imprisoned for not more than twenty years or

both.” 18 U.S.C. 32. If death results, violations are capital offenses, 18 U.S.C. 34; 18 U.S.C.

37 outlaws acts of violence at international airports.

“Whoever, with intent to prevent, interfere with, or obstruct, or attempt to prevent,

interfere with, or obstruct the exportation to foreign countries of articles form the United

States, injures or destroys, by fire or explosives, such articles or the places where they may

be while in such foreign commerce, shall be fined . . . imprisoned not more than twenty years

or both,” 18 U.S.C. 1364.

“Whoever maliciously damages or destroys, or attempts to damage or destroy, but

means of fire or an explosive, any building, vehicle, or other real or personal property used

in interstate or foreign commerce or in any activity affecting interstate or foreign commerce

shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title,

or both; and if personal injury results in any person, including any public safety officer

performing duties as a direct or proximate result of conduct prohibited by this subsection,

shall be imprisoned for not less than 7 years and not more than 40 years . . . and if death

results to any person, including any public safety officer performing duties as a direct or

proximate result of conduct prohibited by this subsection, shall also be subject to

imprisonment for any term of years, or to the death penalty or to life imprisonment.” 18

U.S.C. 844(i); see also, 18 U.S.C. 2332a (use of a weapon of mass destruction (including a

bomb) against an individual in the United States which affects interstate or foreign

commerce).

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A terrorist bombing may also breach federal laws that condemn property

destruction without regard the destructive means employed, for instance:

• causing more than $10,000 in damage to an animal enterprise, 18 U.S.C. 43

• destruction of certain religious property, 18 U.S.C. 247

• damaging abortion clinic property, 18 U.S.C. 248

• damaging federal property or property constructed or manufactured under

federal contract, 18 U.S.C. 1361

• damaging communications lines or systems operated or controlled by the

United States, 18 U.S.C. 1362

• destruction of property within the special maritime and territorial jurisdiction

of the United States, 18 U.S.C. 1363

• causing more than $5000 in damage to energy facility property, 18 U.S.C.

1366

• injury to a federal police dog or horse, 18 U.S.C. 1368

• commit an act of violence against the building or grounds of one under Secret

Service protection, 18 U.S.C. 1752

• destruction of harbor defenses, 18 U.S.C. 2152

• destruction of war material, 18 U.S.C. 2153

• destruction of defense material, 18 U.S.C. 2155

• destruction of maritime navigation facilities, 18 U.S.C. 2280

• destruction of maritime fixed platforms, 18 U.S.C. 2281

• use of weapons of mass destruction against an individual with an impact on

interstate commerce or against federal property, 18 U.S.C. 2332a

• destruction of property during the course of acts of terrorism transcending

national boundaries, 18 U.S.C. 2332b.

Bombings and fire bombings are crimes under the laws of every state in the

Union, usually under the state’s arson statutes. At common law setting fire to

someone else’s house constituted arson.33

Although a few states still limit their arson statutes to destruction by fire34 and

punish explosives offenses separately,35 most – in order to accommodate destruction

IV BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 220 (1769) (“Arson .

. . is the malicious and wilful burning of the house or outhouses of another man”); PERKINS

& BOYCE, CRIMINAL LAW 273-88 (1982).

“A person is guilty of arson when he or she willfully and maliciously sets fire to or

burns or causes to be burned or who aids, counsels, or procures the burning of, any structure,

forest land, or property. . . .” Cal.Penal Code §§450-457.1; see also, Md.Ann.Code art.27

§6-11; Mass.Gen.Laws Ann. ch.266 §§1-13A; Mich.Comp.Laws Ann. §§750.71 to 750.80;

Miss.Code Ann. §§97-17-1 to 97-17-13; Nev.Rev.Stat. §§205.005-205.055; N.C.Gen. Stat.

§§14-58 to 14-69.2; S.D.Cod.Laws §§22-33-1 to 22-33-10; Vt.Stat.Ann. tit.13 §§501-509;

W.Va.Code §§61-3-1 to 61-3-6.

“Whoever wilfully, intentionally and without right, by the explosion of gunpowder or

of any other explosive, unlawfully damages or destroys property or injures a person, shall be

punished by imprisonment . . . .” Mass.Gen.Laws Ann. ch.266, §101; see also, Cal.Penal

Code §§12301 -12312 (unlawful possession, possession of ingredients, use of destructive

devices; arson does not include destruction by explosives generally), 453 (possession of

CRS-13

by devices that are both explosive and incendiary – have redrawn their arson laws to

reach property destruction accomplished by either fire or explosives.36

explosives or firebomb); Md.Ann.Code art.27 §§139A to 139D (make or possess a Molotov

cocktail, destructive or incendiary devices), 11 (attempt to bomb); Mass.Gen.Laws Ann. ch.

266 §§101 (maliciously causing injury or damage by explosion), 102(wilful throwing or

placing of explosives or possession with such intent), 102B (possession of Molotov cocktail),

5A (placing flammable or explosive material, substance or device proximate to property in

order damage); Mich.Comp.Laws Ann. §§750.77 (wilfully and maliciously place or

distributing inflammable or explosive material near to a building), 750.200 - 750.212

(making, possessing or transporting explosives); Miss.Code Ann. §§97-37-21 to 97-37-25;

Nev.Rev.Stat. §§202.750 - 202.830 (unlawful possession, transportation, or use), 202.260270 (same); N.C.Gen.Stat. §§14-49 to 14-50.1; S.D.Cod.Laws §§22-14A-4 to 22-14A-22

(unlawful possession or use of explosives); Vt.Stat.Ann. tit.13 §§1601-1612 (unlawful

possession or use of explosives); W.Va. Code §§61-3E-1 & 61-3E-13 (unlawful possession

and use of explosives).

“Any person who willfully and unlawfully, by fire or explosion, damages: (1) any

dwelling, whether occupied or not; or (2) any structure, whether occupied or not, in which

persons are normally present, including without limitation: jails, prisons or detention centers;

hospitals, nursing homes or other health care facilities; department stores, office buildings,

business establishments, churches or educational institutions, or other similar structures; or

(3) any other structure which the actor has reasonable grounds to believe is occupied by a

human being; or (4) any other real or personal property, whether the property of the actor or

another, with the intent to deceive or harm any insurer or any person with a legal or financial

interest in the property, or obtain any financial gain for the actor or another; is guilty of arson

in the first degree . . . .” Idaho Code §18-802. Many jurisdictions also have explosive

specific laws: Ala. Code §§13A-7-40 to 13A-7-43 (arson), 13A-7-44 (criminal possession of

explosives with the intent to use to commit a violent crime); Alaska Stat. §§11.46.400 to

11.46.430 (arson), 11.61.240 (possession of explosives for a criminal purpose), 11.61.250

(knowing furnishing explosives for a criminal purpose); Ariz.Rev.Stat.Ann. §§13-3103

(improper storage of explosives), 13-3104 (placing explosives on, in or near a vehicle,

building or humanly frequented place), 13-1701 to 13-1705 (arson); Ark.Code Ann. §§5-73104 (commission of a crime using a bomb or other implement for inflicting serious physical

injury), 5-73-108 (possession of explosives for commission of a crime), 5-38-301, 5-38-302

(arson), 5-71-211 (threatening a fire or bombing), 5-71-302 (teaching or demonstrating

construction or use of explosives in furtherance of a civil disorder); Colo.Rev. Stat. §§18-4101 to 18-4-105 (arson); Conn.Gen.Stat.Ann. §§53a-111 to 53a-114 (arson); Del.Code Ann.

tit.11 §§1338 (possession or transportation of explosives with intent to injure or damage),

801-804 (arson); Fla.Stat. Ann. §§790.161 (making, possessing, throwing, placing or

discharging a destructive device), 806.01-806.111 (arson); Ga.Code Ann. §§16-7-60 to 16-762 (arson), 16-7-80 & 16-7-88 (possession of explosives for criminal purposes); Hawaii

Rev.Stat. §§708-820 to 824 (property destruction statutes apply regardless of the agent of

destruction); Idaho Code §§18-801 to 18-805 (arson); Ill.Comp.Stat.Ann. ch.720 §§5/20-1,

5/20-1.1 (arson), 5/20-2 (possession of explosives or incendiary devices for criminal use);

Ind.Stats.Ann. §35-47-5-8, 35-47-5-9 (possession of or hurling a bomb), 35-43-1-1 (arson);

Iowa Code Ann. §§712.1-712.5 (arson), 712.6 (possession of explosives for criminal use);

Kan.Stat.Ann. §§21-3718 to 21-3720 (arson), 21-3731 (possession of explosives for criminal

purposes); Ky.Rev.Stat. §§513.010-513.040 (arson); La.Rev.Stat.Ann. §§14:51-14:54 (arson),

14:54.2 (manufacture and possession of delayed action incendiary devices), 14:54.3

(manufacture and possession of a bomb); Me.Rev.Stat.Ann. tit.17-A §§1001 (criminal use or

possession of explosives), 1002 (criminal use or possession of disabling chemicals), 802

(arson); Minn.Stat.Ann. §§609.561-609.564 (arson); Mo.Ann.Stat. §§569.040-569.065

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In addition, at least sixteen states have supplemented their explosives provisions

with laws that address catastrophic use of fire, explosives or other destructive

forces.37

(arson); Mont.Code Ann. §§45-6-102 & 45-6-103 (arson), 45-8-332 to 45-8-335 (unlawful

use or possession of destructive devices); Neb.Rev.Stat. §§28-1213 to 28-1239 (explosive

regulation, unlawful making, possession, transportation, and use), 28-501 to 28-504 (arson);

N.H.Rev.Stat.Ann. §§634:1 (arson), 158:34 (malicious explosions), 158:35 (possession of

destructive devices (“infernal machines”)), 158:36 (throwing or placing explosives), 158:37

(use of Molotov cocktails); N.J.Stat.Ann. §§2C:17-1 & 2C:17-2 (arson), 2C:39-4 (unlawful

possession of explosives or destructive devices); N.M.Stat.Ann. §§30-7-5 (dangerous use of

explosives), 30-7-7 (unlawful possession of explosives), 30-5-16 (unlawful possession of

destructive devices), 30-5-18 to 30-7-19.1 (possession of explosives for unlawful purposes),

30-17-5 & 30-17-6 (arson); N.Y.Penal Law §§150.00-150.20 (arson), 145.12 (property

damage by explosive); N.D.Cent.Code §§12.1-21-01 to 12.1-21-04 (arson); Ohio Rev.Code

Ann. §§2909.01 - 2909.11 (arson); Okla.Stat.Ann. tit.21 §§1401-1405 (arson); Ore.Rev.Stat.

§§164.315 to 164.335 (arson), 166.382 & 166.384 (making or possessing a destructive

device); Pa.Stat.Ann. tit.18 §3301 (arson); R.I.Gen.Laws §§11-4-2 to 11-4-6 (arson);

S.C.Code §§16-11-110 (arson), 16-11-200 (placement of explosives or combustibles on the

property of another), 16-11-540 (property damage by explosive or incendiary); Tenn.Code

Ann. §§39-14-301 to 39-14-303 (arson), 39-14-702 (unlawful possession of explosive);

Tex.Penal Code §28.02 (arson); Utah Code Ann. §§76-6-101 to 76-6-104 (arson); Va.Code

§§18.2-77 to 18.2-82 (arson), 18.2-83 to 18.2-87.1 (unlawful possession or use of

explosives); Wash.Rev.Code Ann. §§9A.48.010 to 9A.48.060 (arson), 70.74.272 to

70.74.285 (malicious use of explosives); Wis.Stat.Ann. §§943.02 to 943.07 (arson ), 941.31

(possession of explosives in furtherance of a crime); Wyo.Stat. §§6-3-101 to 6-3-104 (arson),

6-3-111 (possession, transportation or sale of explosive or incendiary device).

Ark.Code Ann. §5-38-202 (causing a catastrophe by explosion, fire, flood, avalanche,

building collapse, distribution of poison, radioactive material, bacteria, virus, or other

dangerous and difficult to confine force or substance); Alaska Stat. §§11.46.480, 11.46.490

(criminal mischief in the first degree: causing property damage in excess of $100,000 by use

of widely dangerous means); Cal.Penal Code §§11418 possession, transfer or use of weapons

of mass destruction), 11419 (possession of restricted biological weapons);

Conn.Gen.Stat.Ann. §53-117 (causing property damage by fire, explosives, flood, avalanche,

collapse of a building, poison gas or radioactive material); Fla.Stat.Ann. §790.116

(manufacture, sale, possession or use of weapons of mass destruction); Ill.Comp.Stat.Ann.

ch.720 §5/20.5-5 (causing a catastrophe by explosion; fire; flood; collapse of a building; or

release of poison, radioactive material, bacteria, virus or other dangerous substance);

Ind.Stats.Ann. §35047-12-1 (dissemination or detonation of a weapon of mass destruction);

Me.Rev.Stat.Ann. tit.17-A §803 (recklessly causing catastrophe by explosion, fire, flood,

avalanche, collapse of a structure, release of poison, radioactive material, bacteria, virus or

other dangerous and difficult to confine force or substance); Mo.Ann.Stat. §569.070 (causing

a catastrophe by explosion, fire, flood, collapse of a building, release of poison, radioactive

material, bacteria, virus or other dangerous or difficult to confine force or substance);

N.J.Stat.Ann. §2C:17-2 (causing or risking widespread injury or damage by explosion, flood,

avalanche, collapse of a building, release of poison gas, radioactive material or other harmful

or destructive substance); N.C.Gen.Stat. §14-288.8 (manufacture, assembly, possession,

storage, transportation, sale, purchase, delivery or acquisition of a weapon of mass

destruction); N.D.Cent.Code §12.1-21-04 (release of destructive forces); Ohio Rev.Code Ann.

§2909.06 (create a substantial risk of injure or damage by fire, explosion, flood, poison gas,

poison, radioactive material, caustic or corrosive material or other inherently dangerous

agency or substance); Pa.Stat.Ann. tit.18 §§3302 & 3303 (causing a catastrophe by

CRS-15

Murder and Armed Assaults

Although many federal bombing statutes carrying increased penalties when the

bombs are used to commit a murder or assault, many others condemn homicide or the

infliction of physical injury regardless of the means used. The assassination of a

visiting foreign dignitary violates federal law whether it is accomplished with a car

bomb or a rifle. A list of some of the federal homicide and assault statutes which,

under the proper conditions, would reach a terrorist bombing or other terrorist attack

appears below:

• death or injury resulting from the destruction of aircraft or aircraft facilities

within the special aircraft jurisdiction of the U.S., 18 U.S.C. 32, 34

• death or injury resulting from destruction of interstate motor carriers or their

facilities, 18 U.S.C. 33, 34

• death or injury resulting from violence at an international airport, 18 U.S.C. 37

• death or injury result from animal enterprise terrorism involving interstate or

foreign travel or use of the mail or the facilities of interstate or foreign

commerce, 18 U.S.C. 43

• assault upon a federal officer, employee, or member of the U.S. armed forces

during or because of the performance of their duties, 18 U.S.C. 111

• assault upon foreign dignitaries, 18 U.S.C. 112

• assault within the special maritime or territorial jurisdiction of the U.S. 18

U.S.C. 113, 114

• murder or assault committed to influence, impede or retaliate against a federal

official, 18 U.S.C. 115

• death or injury resulting from chemical weapons offenses, 18 U.S.C. 229, 229A

• death or injury resulting from conspiracies to violate civil rights, 18 U.S.C. 241

• death or injury resulting from interference with federally protected civil rights,

18 U.S.C. 245

• death or injury resulting from certain obstruction of the free exercise of religion

by others, 18 U.S.C. 247

• death or injury resulting from interference with access to abortion clinics, 18

U.S.C. 248

• murder or assault upon a Member of Congress, the Supreme Court or the

Cabinet, 18 U.S.C. 351

• death resulting from nuclear material offenses, 18 U.S.C. 831

• death or injury resulting from the interstate transportation of explosives for

criminal use, 18 U.S.C. 844(d)

• death or injury resulting from the bombing of federal property, 18 U.S.C.

844(f)

• death or injury resulting from bombing property used in, or used in an activity

affecting, interstate or foreign commerce, 18 U.S.C. 844(i)

explosion, fire, flood, avalanche, collapse of building, release of poison gas, radioactive

material or other harmful or destructive force or substance); S.C.Code §§16-23-710,16-23720 (possession of weapons of mass destruction); Utah Code Ann. §76-6-105 (causing

widespread injury or damage by explosion, fire, flood, avalanche, collapse of a building,

release of poison gas, radioactive material, or other harmful or destructive force or substance).

CRS-16

• homicide committed while in possession of a firearm or dangerous weapon

within a federal building, 18 U.S.C. 930

• murder within U.S. special maritime and territorial jurisdiction, 18 U.S.C. 1111

• manslaughter within U.S. special maritime and territorial jurisdiction, 18 U.S.C.

1112

• killing a federal officer, employee, or member of the U.S. armed forces during

or because of the performance of their duties, 18 U.S.C. 1114

• killing foreign dignitaries, 18 U.S.C. 1116

• death resulting from a kidnapping in which the victim is transported in

interstate commerce; is a foreign dignitary; is a federal official, employee or

member of the U.S. armed forces; or which occurs in U.S. special maritime,

special aircraft, or territorial jurisdiction, 18 U.S.C. 1201

• death resulting from a hostage taking committed to compel federal

governmental action or abstention or in which the victim or offender is a foreign

national, 18 U.S.C. 1203

• death or injury resulting from tampering with consumer products, 18 U.S.C.

1365

• murder or assault committed against witness in federal proceedings, 18 U.S.C.

1512, 1513

• death or injury resulting from mailing letter bombs or other injurious articles,

18 U.S.C. 1716

• murder or assault upon the President, one in the line of Presidential succession,

or a senior White House official, 18 U.S.C. 1751

• death resulting from wrecking a train used in interstate or foreign commerce,

18 U.S.C. 1992

• death or injury resulting from stalking which occurs within the U.S. special

maritime or territorial jurisdiction or which involves travel in interstate or foreign

commerce, 18 U.S.C. 2261A

• death resulting from acts of violence committed against maritime navigation

facilities, 18 U.S.C. 2280

• death resulting from acts of violence committed against fixed maritime

platforms, 18 U.S.C. 2281

• death resulting from the use of weapons of mass destruction against federal

property or which affects interstate or foreign commerce, 18 U.S.C. 2332a

• death or injury resulting from acts of international terrorism transcending

national boundaries which involves the use of the mails or facilities in interstate

or foreign commerce; which affects interstate or foreign commerce; which is

committed against a federal officer or employer or member of the U.S. armed

forces; which is committed against federal property or within U.S. special

maritime or territorial jurisdiction, 18 U.S.C. 2332b

• death or injury resulting from air piracy or attempted air piracy committed

within U.S. special aircraft jurisdiction, 49 U.S.C. 46502

Federal statutes describing explosives and firearms offenses overlap somewhat

because for purposes of the general restrictions of 18 U.S.C. 921 to 930, “destructive

devices” are defined as firearms.38 Consequently, the laws such as those which ban

“As used in this chapter . . . (3) The term <firearm’ means . . . (D) any destructive

device. . . . (4) The term <destructive device’ means – (A) any explosive, incendiary, or poison

CRS-17

possession of a firearm in a federal building, 18 U.S.C. 930, or carrying a firearm

during the commission of a federal crime of violence, 18 U.S.C. 924(c), apply with

equal force to both bombs and other “firearms.” In fact, both the Unabomber and the

terrorists convicted of the 1993 bombing of the World Trade Center were convicted

under 18 U.S.C. 924(c) of carrying a firearm (i.e. a bomb) during the commission of

a federal crime of violence.39

gas – (i) bomb, (ii) grenade, (iii) rocket having a propellant charge of more than four ounces,

(iv) missile having an explosive or incendiary charge of more than one-quarter ounce, (v)

mine, or (vi) device similar to any of the devices described in the preceding clauses . . . .” 18

U.S.C. 921(a).

United States v. Kaczynski, 239 F.3d 1108, 1110, 1113 (9th Cir. 2001); United States

v. Salameh, 152 F.3d 88, 152 (2d Cir. 1998).

CRS-18

A bombing, assassination or attempted assassination that results in death may be

prosecuted as homicide in the state in which it occurs,40 and one that results in injury

will ordinarily violate the assault laws of the state in which it occurs.41

Homicide is ordinarily subdivided into several offenses distinguished by the offender’s

intent; e.g., “A person commits first degree murder if: 1. intending or knowing that his

conduct will cause death, such person causes the death of another with premeditation. 2.

Acting either alone or with one or more other persons such person commits or attempts to

commit . . . kidnapping, . . . arson . . . and in furtherance of such offense or immediate flight

from such offense, such person or another person causes the death of any person. 3. Intending

or knowing that the person’s conduct will cause the death of a law enforcement officer, the

person causes the death of a law enforcement officer who is in the line of duty.”

Ariz.Rev.Stat.Ann. §13-1105.A.

“A person commits second degree murder if without premeditation: 1. Such person

intentionally causes the death of another person; or 2. knowing that his conduct will cause

death or serious physical injury, such person causes the death of another person.”

Ariz.Rev.Stat.Ann. §13-1104.A.

“A person commits manslaughter by 1. recklessly causing the death of another person;

or . . . 4. committing second degree murder . . . while being coerced to do so by the use or

threatened immediate use of unlawful deadly force upon such person or a third person which

a reasonable person in his situation would have been unable to resist. . . .” Ariz.Rev.Stat.Ann.

§13-1103.A.

“A person commits negligent homicide if with criminal negligence such person causes

the death of another person.” Ariz.Rev.Stat.Ann. §13-1102.A. See also, Ala. Code §§13A-6-1

to 13A-6-4; Alaska Stat. §§11.41.100 to 11.41.140; Ark.Code Ann. §§5-10-101 to 5-10-105;

Cal.Penal Code §§187 to 199; Colo.Rev.Stat. §§18-3-101 to 18-3-107; Conn.Gen.Stat.Ann.

§§53a-54a to 53a-58; Del.Code Ann. tit.11 §§631 to 636; Fla.Stat.Ann. §§782.04 to

782.072; Ga.Code Ann. §§16-5-1 to 16-5-4; Hawaii Rev.Stat. §§707-701 to 707-706; Idaho

Code §§18-4001 to 18-4015; Ill.Comp.Stat.Ann. ch.720 §§5/9-1 to 5/9-3; Ind.Code Ann.

§§35-42-1-1 to 35-42-1-5; Iowa Code Ann. §§707.1 to 707.11; Kan.Stat.Ann. §§21-3401 to

21-3405; Ky.Rev.Stat. §§507.010 to 507.050; La.Rev.Stat.Ann. §§14:29 to 14:32.1;

Me.Rev.Stat.Ann. tit.17-A §§201 to 203; Md.Ann.Code art.27 §§387(manslaughter), 407 to

414 (murder); Mass.Gen.Laws Ann. ch.265 §§1 & 2 (murder), 13 (manslaughter);

Mich.Comp.Laws Ann. §§750.316 to 750.329; Minn.Stat.Ann. §§609.18 to 609.21;

Miss.Code Ann. §§97-3-15 to 97-3-47; Mo.Ann.Stat. §§565.020 to 565.040; Mont.Code

Ann. §§45-5-102 to 45-5-104; Neb.Rev.Stat. §§28-302 to 28-306; Nev.Rev.Stat. §§200.010

to 200.260, 200.390; N.H.Rev.Stat.Ann. §§630:1 to 630:3; N.J.Stat.Ann. §§2C:11-1 to

2C:11-5; N.M.Stat.Ann. §§30-2-1 to 30-2-9; N.Y.Penal Law §§125.00 to 125.27;

N.C.Gen.Stat. §§14-17, 14-18; N.D.Cent.Code §§12.1-16-01 to 12.1-16-03; Ohio Rev.Code

Ann. §§2903.01 to 2903.08; Okla.Stat.Ann. tit.21 §§691 to 722 (murder and manslaughter),

651 to 653 (attempt to kill); Ore.Rev.Stat. §§163.005 to 163.150; Pa.Stat.Ann. tit.18 §§2501

to 2504; R.I.Gen.Laws 11-23-1 to 1123-3; S.C.Code §§16-3-10 to 16-3-70; S.D.Cod.Laws

§§22-16-1 to 22-16-41; Tenn.Code Ann. §§39-13-201 to 39-13-218; Tex.Penal Code

§§19.01 to 19.05; Utah Code Ann. §§76-5-201 to 76-5-207; Vt.Stat.Ann. tit.13 §§2301 to

2311; Va.Code §§18.2-30 to 18.2-37; Wash.Rev.Code Ann. §§9A.32.010-9A.32.070;

W.Va.Code §§61-2-1 to 61-2-7; Wis.Stat.Ann. §§940.01 to 940.10; Wyo.Stat. §§6-2-101 to

6-2-107.

Penalties for assault are usually calibrated according to the extent of the injury caused,

the intent of the offender, the nature of any instrumentality used to accomplish the assault,

e.g.:

“A person commits the crime of assault in the first degree if (1) that person recklessly

causes serious physical injury to another by means of a dangerous instrument; (2) with intent

CRS-19

Firearms used by terrorists may also run afoul of state restrictions on carrying

to cause serious physical injury to another, the person causes serious physical injury to any

person; [or] the person knowingly engages in conduct that results in serious physical injury

to another under circumstances manifesting extreme indifference to the value of human life

. . . .” Alaska Stat. §11.41.200.

“A person commits the crime of assault in the second degree if (1) with intent to cause

physical injury to another person, that person causes physical injury to another person by

means of a dangerous instrument; [or] (2) that person recklessly causes serious physical injury

to another . . . .” Alaska Stat. §11.41.210.

“A person commits the crime of assault in the third degree if that person (1) recklessly

(A) places another person in fear of imminent serious physical injury by means of a dangerous

instrument; (B) causes physical injury to another person . . . ; or (2) with intent to place

another person in fear of death or serious physical injury to the person or the person’s family

member makes repeated threats to cause death or serious physical injury to another person,”

Alaska Stat. §11.41.220(a).

“A person commits the crime of assault in the fourth degree if (1) that person recklessly

causes physical injury to another person; (2) with criminal negligence that person causes

physical injury to another person by means of a dangerous instrument; or (3) by words or

other conduct that person recklessly places another person in fear of imminent physical

injury,” Alaska Stat. §11.41.230(a). See also, Ala. Code §§13A-6-20 to 13A-6-22; Alaska

Stat. §11.61.190 (drive by shooting) Ariz.Rev.Stat.Ann. §§13-1203 (assault), 13-1204

(aggravated assault), 13-1209 (drive by shooting); Ark.Code Ann. §§5-13-201 to 5-13-207;

Cal.Penal Code §§203 to 206.1 (mayhem); 217.1 to 219.3 (assault with intent to kill), 220

(assault with intent to commit mayhem), 240 to 247.5 (assaults and batteries), 12022.55

(drive by shooting); Colo.Rev.Stat. §§18-3-201 to 18-3-207; Conn.Gen.Stat. Ann. §§53a-59

to 53a-61a; Del.Code Ann. tit.11 §§, 611 to 614; Fla.Stat.Ann. §§784.011 to 784.08;

Ga.Code Ann. §§16-5-20 to 16-5-24; Hawaii Rev.Stat. §§707-710 to 707-712.5; Idaho Code

§§18-901 to 18-915; Ill.Comp.Stat.Ann. ch.720 §§5/12-1 to 5/12-4.6; Ind.Code Ann. §§3542-2-1, 35-42-2-1.5; Iowa Code Ann. §§708.1 to 708.5; Kan.Stat.Ann. §§21-3408 to 213416; Ky.Rev.Stat. §§508.010 to 508.040; La.Rev.Stat.Ann. §§14:33 to 14:39.2;

Me.Rev.Stat.Ann. tit.17-A §§207 to 208-B; Md.Ann.Code art.27, §§12 to 12A-6;

Mass.Gen.Laws Ann. ch.265 §§13A-16 (assault and battery), 18 to 18B (armed assault and

battery), 20 (simple assault), 29 (assault with intent to commit a felony), 39 (assault and

battery for purposes of intimidation); Mich.Comp.Laws Ann. §§750.81 to 750.89 (assault),

750.397 (mayhem); Minn.Stat.Ann. §§609.221 to 609.224 (assault), 609.66[1e] (drive by

shooting); Miss.Code Ann. §§97-3-7 (assault), 97-3-59 (mayhem); 97-3-61 & 97-3-63

(poisoning), 97-3-109 (drive by shooting); Mo.Ann.Stat. §§565.050 to 565.083; Mont.Code

Ann. §§45-5-201 to 45-5-205, 45-5-210, 45-5-213; Neb.Rev.Stat. §§28-308 to 28-310;

Nev.Rev.Stat. §§200.280 to 200.300 (mayhem), 200.400 & 200.471 to 200.490 (assault and

battery); N.H.Rev.Stat.Ann. §§631:1 to 631:2-a; N.J.Stat.Ann. §2C:12-1; N.M.Stat.Ann.

§§30-3-1 to 30-3-9; N.Y.Penal Law §§120.00 to 120.11; N.C.Gen.Stat. §§14-28 to 14-34.2,

14-34.5 to 14-34.8; N.D.Cent.Code §§12.1-17-01 to 12.1-17-02, 12.1-17-12; Ohio Rev.Code

Ann. §§2903.11 to 2903.14; Okla.Stat.Ann. tit.21 §§641 to 653 (assault and battery), 751

to 759 (maiming); Ore.Rev.Stat. §§163.160 to 163.213; Pa.Stat.Ann. tit.18 §§2701 to 2704;

R.I.Gen.Laws §§11-5-1 to 11-5-11 (assault), 11-29-1 (mayhem), 11-47-61 (drive by

shooting); S.C.Code §§16-3-610 to 16-3-625; S.D.Cod.Laws §§22-18-1 to 22-18-6;

Tenn.Code Ann. §§39-13-101 to 39-13-106; Tex.Penal Code §§22.01 to 22.02; Utah Code

Ann. §§76-5-101 to 76-5-105; Vt.Stat.Ann. tit.13 §§1021 to 1024; Va.Code §§18.2-51 to

18.2-57; Wash.Rev.Code Ann. §§9A.36.010 to 9A.36.045; W.Va.Code §§61-2-7 to 61-2-11;

Wis.Stat.Ann. §§940.19 to 940.21; Wyo.Stat. §§6-2-501, 6-2-502.

CRS-20

concealed weapons,42 on possession of firearms by various convicted felons,43 and on

possession of machineguns, silencers, armor piercing ammunition and the like.44

E.g., Ala. Code §13A-11-50; Ariz.Rev.Stat.Ann. §13-3102; Cal.Penal Code §12026.2;

Colo.Rev. Stat. §18-12-105; Del.Code Ann. tit.11 §§1442 & 1443; Fla.Stat.Ann. §790.01;

Ga.Code Ann. §16-11-126; Hawaii Rev.Stat. §134-51; Ill.Comp.Stat.Ann. ch.720 §5/24-1/6;

Iowa Code Ann. §724.4; Kan.Stat.Ann. §§21-4201, 21-4202; Ky.Rev.Stat. §527.020;

La.Rev.Stat.Ann. §§14:95 & 14:95.2; Mich.Comp.Laws Ann. §750.227; Miss.Code Ann.

§97-37-1; Mo.Ann.Stat. §571.030; Mont.Code Ann. §45-5-316; Neb.Rev.Stat. §28-1202;

N.H.Rev.Stat.Ann. §159:4; N.M.Stat.Ann. §30-7-2; N.D.Cent.Code §§62.1-04-01 to 62.1-0405; Ohio Rev.Code Ann. §2923.12; Okla.Stat.Ann. tit.21 §§1289.8 & 1290.4; Ore.Rev.Stat.

§166.240; S.C.Code §16-23-460; S.D.Comp.Laws §22-14-8; Utah Code Ann. §76-10-504;

Va.Code §18.2-308; Wash.Rev.Code Ann. §§9.41.050 to 9.41.075; Wyo.Stat. §6-8-104.

E.g., Ala. Code §13A-11-72 (possession of a pistol by one convicted of a crime of

violence, a drug addict, habitual drunkard); Alaska Stat. §11.61.200; Cal.Penal Code

§12021; Colo.Rev. Stat. §18-12-108; Conn.Gen.Stat.Ann. §§53a-217 (firearm possession by

a convicted felon), 53a-217d (possession of body armor by a convicted felon); Del.Code Ann.

tit.11 §1448; Fla.Stat.Ann. §790.23; Ga.Code Ann. §16-11-131; Hawaii Rev.Stat. §134-7;

Ill.Comp.Stat.Ann. ch.720 §5/24-1.1; Iowa Code Ann. §724.26; Kan.Stat.Ann. §21-4204;

Ky.Rev.Stat. §527.040; Mich.Comp.Laws Ann. §750.224f; Miss.Code Ann. §97-37-1;

Mont.Code Ann. §45-5-313; Nev.Rev.Stat. §202.36; N.H.Rev.Stat.Ann. §159:3;

N.M.Stat.Ann. §30-7-16; N.Y.Penal Law §265.01; N.D.Cent.Code §62.1-02-01;

Ore.Rev.Stat. §166.250; Pa.Stat.Ann. tit.18 §6105; S.D.Comp.Laws §22-14-15; Tex.Penal

Code §46.04; Va.Code §18.2-308.2; Wash.Rev.Code Ann. §9.41.040; Wis.Stat.Ann.

§941.291. Of course, possession of a firearm by a fugitive, convicted felon, or illegal alien

is also a federal crime, 18 U.S.C. 924(g).

E.g., Ala. Code §§13A-11-60 (possession of steel teflon-coated handgun ammunition),

13-11-61 (discharging a firearm into a building or conveyance), 13A-11-71 (commission of

a crime of violence while armed with a pistol); Ariz.Rev.Stat.Ann. §§13-3102 (possession of

silencer or a short barreled shotgun/rifle), 13-3116 (wearing body armor during the

commission of a felony); Ark.Code Ann. §§5-73-104 (possession of a machinegun, sawed-off

shotgun/rifle or silencer), 5-74-107 (unlawful discharge of a firearm from a vehicle), 5-74-101

(criminal possession of body armor); Cal.Penal Code §§12020 (possession of a short barreled

shotgun/rifle), 12022, 12022.3, 12022.5 (use of firearm to commit a felony), 12022.2

(possession of armor piercing ammunition or body armor during the commission of a felony),

12320 (possession of armor piercing ammunition), 12220 (possession of a machinegun),

12280 (possession of an assault weapons), 12520 (possession of a silencer); Colo.Rev. Stat.

§§18-12-102 (possession of a silencer, machinegun, short barreled shotgun/rifle), 18-12-107.5

(unlawfully discharging a firearm); Conn.Gen.Stat.Ann. §53a-211 (possession of a sawed-off

shotgun or silencer); Del.Code Ann. tit.11 §§1444 (possession of a silencer, sawed-off

shotgun, or machinegun), 1447 & 1447A (possession of deadly weapon during the

commission of a felony); Fla.Stat.Ann. §§790.221 (machine gun possession), 790.07 (use of

a firearm to commit a felony), 790.166 (possession of weapon of mass destruction), 790.31

(possession of armor piercing or exploding ammunition); Ga.Code Ann. §§16-11-122 & 1611-123 (possession of a machinegun, silencer, or sawed-off shotgun/rifle); Hawaii Rev.Stat.

§134-8 (possession of an assault pistol, short barreled shotgun/rifle, silencer or teflon coated

ammunition); Idaho Code §§18-3305, 18-3306, 18-3317 (unlawfully discharging a firearm);

Ill.Comp.Stat.Ann. ch.720 §§5/24-1 (possession of a machinegun or short barreled

shotgun/rifle), 5/24-1.2 to 5/24-1.5 (unlawful discharge of a firearm), 5/24-2.1 (possession

of armor piercing ammunition); Ind.Code Ann. §§35-47-5-8 (possession of a machine gun),

35-47-5-11 (use of armor piercing ammunition), 35-47-5-13 (unlawful use of body armor);

CRS-21

Iowa Code Ann. §§724.1 to 724.3 (unlawful possession of a machinegun, short barreled

shotgun/rifle, or silencer); Kan.Stat.Ann. §§21-4201, 21-4202 (possession of a silencer and

armor piercing bullets), 21-4219 (criminal discharge of a firearm); Ky.Rev.Stat. §527.080

(use of armor piercing ammunition); La.Rev.Stat.Ann. §§14:94 (Unlawfully discharging a

firearm), 14-95.3 (unlawful use of body armor); Me.Rev.Stat.Ann. tit.17-A §§1051-1054

(machinegun offenses), 1056 (possession of armor piercing ammunition); Md.Ann.Code art.27

§§372 to 383 (machinegun offenses); Mass.Gen.Laws Ann. ch.269 §10 (possession of a

machinegun); Mich.Comp.Laws Ann. §§750.224 (possession of a machinegun or silencer),

750.224b (possession of a short barreled shotgun/rifle), 750.224c (use of armor piercing

ammunition), 750.27b (possession of a firearm during the course of a felony), 750.227f &

750.227g (body armor offenses), 750.234a to 750.234c (unlawful discharge of firearm);

Minn.Stat.Ann. §§609.66[1a] (possession of a silencer), 609.67 (possession of machineguns

or short barreled shotguns); Miss.Code Ann. §97-37-31 (possession of a silencer);

Mo.Ann.Stat. §§571.015 (use of a weapon during the commission of a crime), 571.020

(possession of a silencer, machinegun, or short barreled shotgun/rifle), 571.150 (possession

of armor piercing ammunition); Mont.Code Ann. §§45-8-303 & 45-8-304 (possession of a

machine gun for an offensive or criminal purpose), 45-5-336 (possession of silencer), 45-5340 (possession of a sawed-off firearm); Neb.Rev.Stat. §28-1203 (possession of a machine

gun); Nev.Rev.Stat. §§202.275 (possession of short barreled shotgun/rifle), 202.280 to

202.287 (unlawful discharge a firearm), 202.441 to 202.446 (unlawful possession of

biological weapons); N.H.Rev.Stat.Ann. §§650-A:1 (carrying a firearm during the commission

of a crime), 650-B:1 & 650-B:2 (use of body armor during the commission of a felony),

159:18 (possession of armor piercing ammunition); N.J.Stat.Ann. §§2C:39-3 (possession of

a silencer, sawed-off shotgun, or armor piercing bullets), 2C:39-5 (possession of an assault

weapon); N.Y.Penal Law §§ 265.02 & 265.03 (possession of a machinegun), 265.08 &

265.09 (possession of a firearm during the commission of a violent felony); N.C.Gen.Stat.

§14-34.3 (possession of armor piercing bullets); N.D.Cent.Code §§62.1-05-01 (possession

of a machinegun or silencers), 62.1-02-03 (possession of a short barreled shotgun/rifle);

Okla.Stat.Ann. tit.21 §§1287 (use of firearm during the commission of a felony), 1289.18

(possession of sawed-off shotgun/rifle), 1289.26 (use of body armor), 1289.19 to 1289.22

(possession of armor piercing ammunition), 1289.17A & 1364 (unlawfully discharging a

firearm); Ore.Rev.Stat. §§166.272 (possession of a machinegun, silencer, or short barreled

shotgun/rifle), 166.350 (possession of armor piercing ammunition), 166.630 to 166.638

(unlawful discharge of a firearm); Pa.Stat.Ann. tit.18 §; 6121 (possession of armor piercing

ammunition); R.I.Gen.Laws §§11-47-3 to 11-47-5 (armed crimes of violence), 11-47-20

(possession of silencers), 11-47-20.1 to 11-47-20.3 (possession of armor piercing bullets);

S.C.Code §§16-23-210 to 16-23-250 (possession of a machine gun or sawed off

shotgun/rifle); S.D.Comp.Laws §§22-14-6, 22-1-2(8) (possession of a silencer, machinegun,

or short barreled shotgun), 22-14-12 to 22-14-14 (commission of a felony armed with a

firearm or stun gun), 22-14-20 (discharge of a firearm from a moving motor vehicle);

Tenn.Code Ann. §39-17-1302 (possession of a machinegun, silencer, or short barreled

shotgun/rifle); Utah Code Ann. §76-10-508 (unlawful discharge of a firearm); Vt.Stat.Ann.

tit.13 §1040 (possession of a silencer); Va.Code §§18.2-279, 18.2-280, 18.2-286, 18.2-286.1

(unlawful discharge of firearms), 18.2-287.2 (wearing body armor during the commission of

a crime), 18.2-288 to 18.2-298 (machinegun offenses), 18.2-299 to 18.2-301 (sawed-off

shotgun/rifle offenses); Wash.Rev. Code Ann. §§9.41.190 (possession of short barreled

shotgun/rifle or machine gun), 9.41.230 (discharging a firearm in a public place); W.Va.Code

§§61-7-9 (possession a machinegun), 61-7-12 (wantonly endangering another through use of

a firearm); Wis.Stat.Ann. §§941.26, 941.27 (possession of a machine gun or fully automatic

firearm), 941.28 (short barreled shotgun/rifle offenses), 941.296 (possession of armorpiercing bullet during the commission of a crime).

CRS-22

Kidnapping

Federal kidnapping and hostage taking laws are far less sweeping than the federal

explosives or assault provisions laws. They extend only to kidnappings where the

victim is transported in interstate or foreign commerce or taken in an aircraft

hijacking; where the kidnapping occurs within a federal enclave or “Indian country;”

where the victim is a foreign dignitary, federal officer or employee, or member of the

armed forces; where the offender is a foreign national or flees the United States; or

where the hostage is taken with an eye to influencing federal governmental action.45

In contrast, state kidnapping laws apply whenever a kidnapping occurs within

a given state, and often reserve their most severe penalties for the kinds of abductions

most likely implicated when terrorists are involved, i.e., kidnapping for hostage

purposes, to terrorize, or to compel some form of governmental action or inaction.46

“Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries

away and holds for ransom or reward or otherwise any person when (1) the person is willfully

transported in interstate or foreign commerce; (2) any such act against the person is done

within the . . . territorial jurisdiction of the United States; (3) any such act against the person

is done within the special aircraft jurisdiction of the United States as defined in section 46501

of title 49; (4) the person is a foreign official, an internationally protected person, or an

official guest as those terms are defined in section 1116(b) of this title; or (5) the person is

among those officers and employees designated in section 1114 of this title [relating to federal

law enforcement officers] and any such act against the person is done while the person is

engaged in, or on account of, the performance of official duties shall be punished by

imprisonment for any term of years or for life, and if death of any person results, shall be

punished by death or life imprisonment,” 18 U.S.C. 1201(a).

“(a) Except as provided in subsection (b) of this section, whoever, whether inside or

outside the United States, seizes or detains and threatens to kill, to injure, or to continue to

detain another person in order to compel a third person or a governmental organization to do

or abstain from doing any act as an explicit or implicit condition for the release of the person

detained, or attempts to do so, shall be punished by imprisonment for any term of years or for

life, and, if the death of any person results, shall be punished by death or life imprisonment.

“(b) . . . (2) It is not an offense under this section if the conduct required for the offense

occurred inside the United States, each alleged offender and each person seized or detained

are nationals of the Untied States, and each alleged offender is found in the United States,

unless the governmental organization sought to be compelled is the Government of the United

States.” 18 U.S.C. 1203(a), (b).

See also, 18 U.S.C. 115 (kidnapping or attempted kidnapping of a member of the family

of a federal law enforcement official); 18 U.S.C. 351 (kidnapping a Member of Congress, the

Cabinet or the Supreme Court); 18 U.S.C. 1153 (kidnapping in “Indian country”); 18 U.S.C.

1751 (kidnapping of the President or one in line of presidential succession). Federal statutes

which outlaw the use of force or violence in any form in a particular context may also be

violated by kidnapping, e.g., 18 U.S.C. 241-248 (civil rights violations); 18 U.S.C.1501-1516

(obstruction of justice); 18 U.S.C. 1951 (interference with interstate commerce by force or

violence).

“A person is guilty of kidnapping in the first degree when he abducts another person

and: (1) his intent is to compel a third person (A) to pay or deliver money or property as

ransom or (B) to engage in other particular conduct or to refrain from engaging in particular

conduct; or (2) he restrains the person abducted with intent to . . . (C) terrorize him or a third

person; or (D) interfere with the performance of a government function.” Conn.Gen.Stat.Ann.

CRS-23

§53a-92. See also, Ala. Code §13A-6-43 (includes kidnapping for ransom, as a hostage, to

in order to terrorize the victim or a third person, facilitate another felony, or to interfere with

a governmental function); Alaska Stat.§11.41.300 (restrain with intent to ransom, use as a

hostage, cause fear in the victim or a third person, or interfere with a government or political

function); Ariz.Rev.Stat.Ann. §13-1304 (restraint of another for ransom, as a hostage, to

instill fear in victim or third person, to interfere with governmental or political function, or as

part of an aircraft, train, bus, ship or vehicle hijacking); Ark.Code Ann. §5-11-102 (restraint

for ransom, as a hostage, to terrorize the victim or a third person, or to interfere with a

governmental or political function); Cal.Penal Code §§207 to 210.5; Colo.Rev.Stat. §§18-3301, 18-3-302; Del.Code Ann. tit.11 §§783 to 786 (restraint for ransom, as a hostage, to

facilitate flight, or to terrorize the victim or a third person); Fla.Stat.Ann. §787.01 (restraint

for ransom, as a hostage, to terrorize the victim or a third person, or to interfere with a

governmental or political function); Ga.Code Ann. §§16-5-40 to 16-5-44; Hawaii Rev.Stat.

§§707-720 (restraint for ransom, as a hostage, to facilitate flight from a crime, to terrorize the

victim or a third person, or to interfere with the performance of a governmental or political

function); Idaho Code §§18-2901, 18-2902, 18-4501 to 18-4505; Ill.Comp.Stat.Ann. ch.720

§§5/10-1 to 5/10-4; Ind.Code Ann. §35-42-3-2 (confine with the intent to ransom, facilitate

flight, as part of a hijacking, or as a hostage); Iowa Code Ann. §§710.1 to 710.4(confinement

for ransom, as a hostage, or to interfere with a governmental function); Kan.Stat.Ann. §213420 (confinement for ransom, as a hostage, to facilitate flight, to terrorize the victim or a

third person, or to interfere with a governmental or political function); Ky.Rev.Stat. 509.010 509.040 (restraint for ransom, to terrorize the victim or a third party, to interfere with a

governmental or political function, or as a hostage); La.Rev.Stat.Ann. §§14:44 to 14:45;

Me.Rev.Stat.Ann. tit.17-A §301 (confine for ransom, as a hostage, to terrorize the victim or

a third person, to facilitate flight, or to interfere with a governmental or political function);

Md.Ann.Code art.27 §§337, 338; Mass.Gen.Laws Ann. ch.265 §§26 to 27A;

Mich.Comp.Laws Ann. §§750.349 to 750.350; Minn.Stat.Ann. §§609.25 (confine for ransom,

as a hostage, to facilitate flight, or to terrorize the victim or a third person); Miss.Code Ann.

§97-3-53; Mo.Ann.Stat. §§565.110 (confinement for ransom, as a hostage, to interfere with

a governmental or political function, to facilitate flight, or to terrorize the victim or a third

person); Mont.Code Ann. §§45-5-301 to 45-5-303 (restrain for ransom, as a hostage, to

facilitate flight, to terrorize the victim or another, or to interfere with the performance of a

governmental or political function); Neb.Rev.Stat. §§28-313 (restraint for ransom, as a

hostage, to terrorize the victim or a third party, or to interfere with a governmental or political

function); Nev.Rev.Stat. §§200.310 to 200.350; N.H.Rev.Stat.Ann. §633:1 (confine for

ransom, as a hostage, or to terrorize the victim or a third person); N.J.Stat.Ann. §2C:13-1

(confinement for ransom, as a hostage, to facilitate flight, to terrorize the victim or a third

person, or to interfere with a governmental or political function); N.M.Stat.Ann. §§30-4-1

(confinement for ransom or as a hostage); N.Y.Penal Law §135.25 (abduct another for

ransom, to terrorize the victim or a third person, or to interfere with a governmental or

political function); N.C.Gen.Stat. §14-39(confinement for ransom, as a hostage, to facilitate

flight, or to terrorize the victim or a third person); N.D.Cent.Code §§12.1-18-02 (abduct

another for ransom, as a hostage, to terrorize the victim or another, or to interfere with the

performance of any governmental or political function); Ohio Rev.Code Ann. §§2905.01

(restraint of another for ransom, as a hostage, to facilitate flight, to terrorize the victim or

another, or to impede a governmental function); Okla.Stat.Ann. tit.21 §§741 to 747;

Ore.Rev.Stat. §163.235 (confinement for ransom, as a hostage, or to terrorize the victim or

another); Pa.Stat.Ann. tit.18 §2901 (confining another for ransom, as a hostage, to facilitate

flight, to terrorize the victim or another, or to interfere with a governmental or political

function); R.I.Gen.Laws §11-26-1 to 11-26-3; S.C.Code §§16-3-901 (kidnapping), 16-3-920

(conspiracy to kidnap); S.D.Cod.Laws §§22-19-1 to 22-19-6 (confinement for ransom, as a

hostage, to facilitate flight, to terrorize the victim or another, or to interfere with a

CRS-24

Poison

Congress has enacted broad legislation forbidding product contamination,47 and

has passed laws covering biological weapons,48 chemical weapons49 nuclear

materials,50 as well as poison gas and other weapons of mass destruction.51

governmental or political function); Tenn.Code Ann. §§39-13-304 (confinement to facilitate

flight, to interfere with a governmental or political function, or to terrorize the victim or

another); Tex.Penal Code §20.04 (confinement of another for ransom, as a hostage, to

facilitate flight, to terrorize the victim or another, or to interfere with a governmental or

pulicidal function); Utah Code Ann. §76-5-302 (restraint of another for ransom, as a hostage,

to facilitate flight, to terrorize the victim or another, or to interfere with a governmental or

political function); Vt.Stat.Ann. tit.13 §2405 (restraint of another for ransom, as a hostage,

to terrorize the victim or another, or to facilitate flight); Va.Code §§18.2-47 to 18.2-49;

Wash.Rev.Code Ann. §9A.40.020 (abduct another for ransom, as a hostage, to facilitate

flight, to terrorize victim or another, or to interfere with a governmental function); W.Va.Code

§61-2-14a to 612-14e; Wis.Stat.Ann. §§940.30 - 940.32; Wyo.Stat. §6-2-201 (confinement

for ransom, as a hostage, or to terrorize the victim of another).

“Whoever, with reckless disregard for the risk that another person will be placed in

danger of death or bodily injury and under circumstances manifesting extreme indifference to

such risk, tampers with any consumer product that affects interstate or foreign commerce, or

the labeling of, or container for, any such product, or attempts to do so, shall . . . be fined .

. . or imprisoned. . . or both,” 18 U.S.C. 1365(a).

“Whoever knowingly develops, produces, stockpiles, transfers, secures, retains, or

possesses any biological agent, toxin, or delivers system for use as a weapon, or knowingly

assists a foreign state or any organization to do so, shall be fined under this title or imprisoned

for life or any term of years, or both. . . .” 18 U.S.C. 175(a)

“As used in this chapter – (1) the term `biological agent’ means any micro-organism,

virus, or infectious substance, capable of causing – (A) death, disease, or other biological

malfunction in a human, an animal, a plant, or another living organism; (B) deterioration of

food, water, equipment, supplies, or material of any kind; or (C) deleterious alteration of the

environment,” 18 U.S.C. 178(1).

“(a) . . . Except as provided in subsection (b), it shall be unlawful for any person

knowingly – (1) to develop, produce, otherwise acquire, transfer directly or indirectly, receive,

stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon; or (2) to

assist or induce, in any way, any person to violate paragraph (1), or to attempt or conspire to

violate paragraph (1).

“(b) Exempted agencies and persons . . .

“(c) Jurisdiction. Conduct prohibited by subsection (a) is within the jurisdiction of the

United States if the prohibited conduct – (1) takes place in the United States . . . .” 18 U.S.C.

229.

“Any person who violates section 229 of this title shall be fined under this title, or

imprisoned for any term of years, or both. . . . Any person who violates section 229 of this

title and by whose action the death of another person is the result shall be punished by death

or imprisoned for life. . . .” 18 U.S.C. 229A(a).

“(a) Whoever, if one of the circumstances described in subsection (c) of this section

occurs – (1) without lawful authority, intentionally receives, possesses, uses, transfers, alters,

disposes of, or disperses any nuclear material or nuclear byproduct material and – (A) thereby

knowingly causes the death of or serious bodily injury to any person or substantial damage

to property or to the environment; or (B) circumstances exist, or have been represented to the

CRS-25

As noted earlier, several of the states have statutes which outlaw causing

catastrophes. A few have laws against product tampering52 and more than a few have

defendant to exist, that are likely to cause the death or serious bodily injury to any person, or

substantial damage to property or to the environment; (2) with intent to deprive another of

nuclear material or nuclear byproduct material, knowingly – (A) takes and carries away

nuclear material or nuclear byproduct material of another without authority; (B) makes an

unauthorized use, disposition, or transfer, of nuclear material or nuclear byproduct material

belonging to another; or (C) uses fraud and thereby obtains nuclear material or nuclear

byproduct material belonging to another; (3) knowingly – (A) uses force; or (B) threatens or

places another in fear that any person other than the actor will imminently be subject to bodily

injury; and thereby takes nuclear material or nuclear byproduct material belonging to another

from the person or presence of any other; (4) intentionally intimidates any person and thereby

obtains nuclear material or nuclear byproduct material belonging to another; (5) with intent

to compel any person, international organization, or governmental entity to do or refrain from

doing any act, knowingly threatens to engage in conduct described in paragraph (2)(A) or (3)

of this subsection; (6) knowingly threatens to use nuclear material or nuclear byproduct

material to cause death or serious bodily injury to any person or substantial damage to

property or to the environment under circumstances in which the threat may reasonably be

understood as an expression of serious purposes; (7) attempts to commit an offense under

paragraph (1), (2), (3), or (4) of this subsection; or (8) is a party to a conspiracy of two or

more persons to commit an offense under paragraph (1), (2), (3), or (4) of this subsection, if

any of the parties intentionally engages in any conduct in furtherance of such offense;

shall be punished as provided in subsection (b) of this section.

“(b) The punishment for an offense under – (1) paragraphs (1) through (7) of subsection

(a) of this section is – (A) a fine under this title; and (B) imprisonment – (i) for any term of

years or for life (I) if, while committing the offense, the offender knowingly causes the death

of any person; or (II) if, while committing an offense under paragraph (1) or (3) of subsection

(a) of this section, the offender, under circumstances manifesting extreme indifference to the

life of an individual, knowingly engages in any conduct and thereby recklessly causes the

death of or serious bodily injury to any person; and (ii) for not more than 20 years in any other

case; and (2) paragraph (8) of subsection (a) of this section is – (A) a fine under this title; and

(B) imprisonment – (i) for not more than 20 years if the offense which is the object of the

conspiracy is punishable under paragraph (1) (B) (i); and (ii) for not more than 10 years in

any other case.

“(c) The circumstances referred to in subsection (a) of this section are that –(1) the

offense is committed in the United States or the special maritime and territorial jurisdiction

of the United States, or the special aircraft jurisdiction of the United States (as defined in

section 46501 of title 49) . . . .” 18 U.S.C. 831.

“A person who uses, or attempts or conspires to use, a weapon of mass destruction . .

. (2) against any person in the United States; or (3) against any property that is owned, leased

or used by the United States or by any department or agency of the United States, whether the

property is within or outside of the United States shall be imprisoned for any term of years or

for life, and if death results, shall be punished by death or imprisonment for any term of years

or for life.

“For purposes of this section . . . (2) the term `weapon of mass destruction’ means – (A)

any destructive device as defined in section 921 of this title; (B) poison gas; (C) any weapon

involving a disease organism; or (D) any weapon that is designed to release radiation or

radioactivity at a level dangerous to human life.” 18 U.S.C. 2332a.

Ill.Comp.Stat.Ann. ch.720 §5/12-4.5; Ohio Rev.Code Ann. §2927.24; N.Y. Penal Law

§§145.35 to 145.45; Pa.Stat.Ann. tit.18 §3304(a)(2); R.I.Gen.Laws §11-16-7; S.C.Code §16-

CRS-26

laws against adding poison to food, water or medicines.53 In the remaining states,

proscriptions against reckless endangerment,54 and in the case of death, homicide

provisions, supra are available to prosecute terrorists who engage in product

tampering or releasing cataclysmic forces.

Threats

Federal Law.

Although there are a number of federal threat statutes including those that

proscribe threats communicated by mail or telephone,55 the prosecution of threats is

3-75; Tenn.Code Ann. §39-17-107; Tex.Penal Code §22.09; Wis.Stat.Ann. §941.327.

Ala.Code §22-23-47; Ariz.Rev.Stat.Ann. §13-7304; Ark.Code Ann. §5-72-101;

Cal.Pen.Code §347; Fla.Stat.Ann. §859.01; Idaho Code §18-5501; Ind.Code Ann. §35-45-31; Iowa Code §708.5; Md.Ann.Code art.27 §451; Mass.Gen.Laws Ann. ch. 265 §28

Mich.Comp.Laws §§750.397a, 750.436; Mo.Ann.Stat. §577.150; Nev.Rev.Stat. §202.170;

Okla.Stat.Ann. tit.21 §832; R.I.Gen.Laws §§11-16-5; 11-16-6; S.D.Cod.Laws §34-20-23;

Vt.Stat.Ann. tit.13 §2306; Wash.Rev.Code Ann. §69.40.030; Wis.Stat.Ann. §941.325.

Ala. Code §13A-6-24 (reckless conduct which creates risk of a serious physical injury

to another); Alaska Stat. §11.41.250 (reckless conduct creating a substantial risk of physical

injury of another); Ariz.Rev.Stat.Ann. §13-1201; Colo.Rev.Stat. §§18-3-208 (recklessly

creates a substantial risk of serious bodily injury), 18-9-115 (endangering public

transportation); Conn.Gen.Stat.Ann. §§53a-63, 53a-64(recklessly risking physical injury of

another); Del.Code Ann. tit.11 §§603, 604 (recklessly creates a substantial risk of serious

bodily injury); Ga.Code Ann. §16-5-60 (reckless conduct causing great bodily harm); Hawaii

Rev.Stat. §§707-713, 707-714 (recklessly causes a risk of great bodily injury);

Ill.Comp.Stat.Ann. ch.720 §5/12-5 (reckless conduct causing risk to bodily safety); Ind.Code

Ann. §35-42-2-2 (recklessly creating a substantial risk of injury); Ky.Rev.Stat. §§508. 060,

508.070 (wanton endangerment: create a risk of physical injury); Me.Rev. Stat.Ann. tit.17-A

§211 (recklessly creating a risk of substantial injury); Md.Ann.Code art.27 §12A-2

(recklessly causing a risk of substantial injury); Mont.Code Ann. §§45-5-207 & 45-5-208

(creates a substantial risk of serious injury); N.H.Rev. Stat.Ann. §§631:3 (recklessly causes

risk of serious injury); N.Y.Penal Law §§120.20 & 120.25 (recklessly causes risk of serious

injury); N.D.Cent.Code §12.1-17-03 (creates a substantial risk of serious bodily injury); Ohio

Rev.Code Ann. §2909.06 (create a substantial risk of injure or damage by fire, explosion,

flood, poison gas, poison, radioactive material, caustic or corrosive material or other

inherently dangerous agency or substance); Ore.Rev.Stat. §163.195 (recklessly causing a

substantial risk of serious injury); Pa.Stat.Ann. tit.18 §2705 (recklessly causing risk of

injury); Tenn.Code Ann. §39-13-103 (placing another in imminent risk of serious injury);

Tex.Penal Code §22.05 (deadly conduct: placing another in imminent danger of serious

injury); Utah Code Ann. §76-5-112 (reckless endangerment); Vt.Stat.Ann. tit.13 §1025

(recklessly placing another in danger of serious injury); Wash.Rev.Code Ann. §§9A.36.045

& 9A.36.050 (creating a substantial risk of injury); Wis.Stat.Ann. §§940.23 (recklessly

injuring another), 941.30 (recklessly endangering the safety of another); Wyo.Stat. §6-2-504

(recklessly placing another in danger of serious injury).

“. . . Whoever knowingly so deposits or causes to be delivered [by mail] as aforesaid,

any communication without or without a name or designating mark subscribed thereto,

addressed to any other person and containing any threat to kidnap any person or any threat

to injure the person of the addressee or of another, shall be fined under this title or imprisoned

CRS-27

primarily a matter of state law. Federal law, however, does feature a number of threat

statutes, even though they are relatively infrequently violated. Some cover false

rumors;56 others are extortionate threats;57 several track provisions, like the civil rights

laws or the obstruction of justice statutes, which outlaw physical violence or property

damage as well;58 and some simply outlaw threats.59

not more than five years, or both. . . .” 18 U.S.C. 876.

“Whoever – (1) in the District of Columbia or in interstate or foreign communications

by means of telephone . . . (B) makes a telephone call . . . without disclosing his identity and

with intent to annoy, abuse, threaten, or harass any person at the called number . . . shall be

fined . . . or imprisoned . . . or both.” 47 U.S.C. 223. “For purposes of this chapter . . . (e)

`interstate commerce’ . . . shall not, with respect to the provisions of subchapter II of this

chapter (other than section 223 of this title), include wire or radio communication between

points in the same State. . . .” 47 U.S.C. 153(e).

“Whoever, though the use of the mail, telephone, telegraph, or other instrument of

commerce . . . willfully makes any threat . . . concerning an attempt . . . to kill, injure, or

intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other

real or personal property by means of fire or an explosive shall be imprisoned not more than

10 years or fined under this title, or both,” 18 U.S.C. 844(e).

“(b) Whoever willfully and maliciously, or with reckless disregard for the safety of

human life, imparts . . . false information, knowing the information to be false, concerning an

attempt or alleged attempt being made or to be made, to do any act which would be a crime

prohibited by this chapter [relating to the destruction of aircraft and motor vehicles] or chapter

97 [relating to railroads] or chapter 111 of this title [relating to shipping] – shall be fined

under this title or imprisoned for not more than five years, or both.” 18 U.S.C. 35(b); see also

18 U.S.C. 32(a)(6)(false threat concerning the destruction of aircraft or their facilities).

The general mail threat provision, for example, is nestled among two “with intent to

extort” offenses and a paragraph address to the use of the mails to convey ransom demands

in kidnapping cases, 18 U.S.C. 876. The interstate commerce statute is similarly worded:

“(a) Whoever transmits in interstate or foreign commerce any communication containing

any demand or request for a ransom or reward for the release of any kidnaped person, shall

be fined under this title or imprisoned not more than twenty years, or both.

“(b) Whoever, with intent to extort from any person . . . any money or other thing of

value, transmits in interstate or foreign commerce any communication containing any threat

to kidnap any person or any threat to injure the person of another, shall be fined under this

title or imprisoned not more than twenty years or both.

“(c) Whoever transmits in interstate or foreign commerce any communication containing

any threat to kidnap any person or any threat to injure the person of another, shall be fined

under this title or imprisoned not more than five years, or both.

“(d) Whoever, with intent to extort from any person . . . any money or other thing of

value, transmits in interstate or foreign commerce any communication containing any threat

to injure the property or reputation of the addressee or of another or the reputation of a

deceased person or any threat to accuse the person of a crime, shall be fined under this title

or imprisoned for not more than two years, or both.” 18 U.S.C. 875; see also 18 U.S.C. 878

(threats and extortion addressed to foreign dignitaries).

E.g., “Whoever – (1) by force or threat of force or by physical obstruction, intentionally

injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any

person because that person is or has been, or in order to intimidate such person or any person

or any class of persons from, obtaining or providing reproductive health services; (2) by force

or threat of force or by physical obstruction, intentionally injures, intimidates or interferes

with or attempts to injure, intimidate or interfere with any person lawfully exercising or

CRS-28

State Law.

The states have a complementary range of threat statutes. Most outlaw false

alarms, particularly bomb scares,60 as well as varying forms of conduct inducing

seeking to exercise the First Amendment right of religious freedom at a place of religious

worship; or (3) intentionally damages or destroys the property of a facility, or attempts to do

so, because such facility provides reproductive health services, or intentionally damages or

destroys the property of a place of religious worship, shall be subject to the penalties provided

in subsection (b). . . .” 18 U.S.C. 248(a).

“Whoever corruptly, or by threats or force, or by any threatening letter or

communication, endeavors to influence, intimidate, or impede any grand or petit juror, or

officer of any court of the Untied States, or officer who may be serving at any examination

or other proceeding before any United States magistrate judge or other committing magistrate,

in the discharge of his duty, or injures any such grand or petit juror in his person or property

on account of any verdict or indictment assented to by him, or on account of his being or

having been such juror, or injures any such officer, magistrate judge, or other committing

magistrate in his person or property on account of the performance of his official duties, or

corruptly or by threats or force, or by any threatening letter or communication, influences,

obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration

of justice, shall be punished as provided in subsection (b).” 18 U.S.C. 1503(a); see also 18

U.S.C. 112 (violence and threats against foreign dignitaries); 18 U.S.C. 115 (influencing or

retaliating against a federal law enforcement officer by threatening or injuring the officer’s

family); 18 U.S.C. 241 (conspiracy against civil rights); 18 U.S.C. 245 (use of force or

threats to injure, intimidate or interfere with federally protected activities); 18 U.S.C. 247

(damage to religious property and obstruction of free exercise of religious beliefs); 18 U.S.C.

1512 (tampering a federal witness or informant); 18 U.S.C. 1951 (interference with commerce

by threats or violence).

“Whoever knowingly and willfully deposits for conveyance in the mail . . . any letter .

. . containing any threat to take the life of, kidnap, or to inflict bodily harm upon the President

of the United States . . . or other officer next in the order of succession to the office of

President . . . or knowingly and willfully otherwise makes any such threat against the

President . . . other officer next in the order of succession to the office of President . . . shall

be fined under this title or imprisoned not more than five years, or both.” 18 U.S.C. 871(a);

see also, 18 U.S.C. 879 (threats against former Presidents and others guarded by the Secret

Service).

E.g., “It is unlawful for any person to make a false report, with intent to deceive

mislead, or otherwise misinform any person, concerning the placing or planting of any bomb,

dynamite, or other deadly explosive. . . .” Fla.Stat.Ann. §790.163. See also, Ala. Code §13A10-8 (false alarms); Alaska Stat. §11.56.810 (terroristic threatening, i.e., false report of a

dangerous condition that causes fear in another, evacuation of a building or public

inconvenience); Ariz.Rev.Stat.Ann. §13-3110 (placing a simulated explosive with intent to

terrify); Ark.Code Ann. §5-71-210 (communicating a false alarm); Cal. Penal Code §148.1

(false report of explosive or facsimile bomb), Colo.Rev.Stat. §§18-8-110 (false report of

explosives, chemical or biological agents, radioactive substance); Conn.Gen.Stat.Ann. §§53a180 to 53a-180b (false bomb scare or report of like catastrophe); Del.Code Ann. tit.11 §621

(terroristic threat: threat to inflict injure or damage or false alarm causing an evacuation,

serious inconvenience or terror); Fla.Stat.Ann. §§790.166 (threatening to use weapon of mass

destruction or a hoax weapon of mass destruction), 790.163 to 790.165 (bomb scares);

Ga.Code Ann. §§16-11-37 (terroristic threats to injure or damage property in order to

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another’s fear of physical injury, property damage or both.61 Many also have

terrorize, cause evacuation, or cause serious public inconvenience – need not be false), 16-1028 (false bomb scare); Hawaii Rev.Stat. §710-1014 (false report of an emergency); Idaho

Code §18-3313 (false reports of explosives in public or private places); Ill.Comp.Stat.Ann.

ch.720 §5/26-1 (bomb scares); Ind.Stats.Ann. §35-44-2-2 (false bomb scares or false reports

of product contamination); Iowa Code Ann. §712.7 (false alarm concerning the placement of

a bomb or incendiary device); Kan.Stat.Ann. §21-4110; Ky.Rev.Stat. §508.080 (terroristic

threatening includes both threats to inflict injury or damage and false alarms causing

evacuation); La.Rev.Stat.Ann. §§14:40.1 (terrorizing: false alarm to cause fear of injury,

evacuation, or serious public disruption); 14:54.1 (false alarm concerning arson), 14:54.5

(possession of a fake explosive device); Me.Rev.Stat.Ann. tit.17-A §§210 (terrorizing: threaten

to cause fear or evacuation of a building or facility – threat need not be false), 509 (false

report or alarm); Md.Ann.Code art.27 §151A (false statement of rumor as to bomb);

Mass.Gen.Laws Ann. ch.269 §14 (false report of explosives or other dangerous substances);

Mich.Comp.Laws Ann. §§750.411a (bomb scares), 750.204a (sending or placing a fake bomb

with intent to terrorize or threaten); Minn.Stat.Ann. §609.713 (bomb scares); Miss.Code Ann.

§97-37-21 (false report of explosives); Mo.Ann.Stat. §§575.090 (false bomb report), 574.115

(terrorist threat: false report of a felony or catastrophe); Mont.Code Ann. §45-8-101 (false

report of life endangering catastrophe); Neb.Rev.Stat. §28-907 (false bomb report);

Nev.Rev.Stat. §202.840 (false bomb threat); N.H.Rev.Stat. Ann. §§644:3 (false alarm of fire,

explosion or other catastrophe); N.J.Stat.Ann. §2C:33-3 (false warning of fire, explosion,

bombing, crime, catastrophe or emergency); N.M.Stat.Ann. §§30-20-16 (bomb scares), 30-720 (mailing or sending a facsimile or hoax bomb), 30-7-21 (false report concerning fire or

explosives); N.Y.Penal Law §§240.50 to 240.60 (false report, like to cause alarm, of crime,

catastrophe or emergency); N.C.Gen.Stat. §§14-69.1 (false bomb report), 14-69.2(preparing

a false bomb); N.D.Cent.Code §12.1-11-03 (false report to law enforcement officers of

situation requiring emergency action); Ohio Rev.Code Ann. §§2917.31 (causing evacuation

or serious public inconvenience by false warning of fire, explosion, crime, or other

catastrophe), 2917.32 (false warning of fire, explosion, crime, or other catastrophe);

Okla.Stat.Ann. tit.21 §§1767.1, 1767.2 (false bomb scares); Ore.Rev. Stat. §162.375

(initiating false alarms to officials responsible for emergencies); Pa.Stat.Ann. tit.18 §4905

(false report of agencies responsible for public safety); R.I.Gen.Laws §11-35-18 (telephone

bomb threats); S.C.Code §§16-17-725 (false report of agencies responsible for emergencies);

16-11-550 (false threat to injure or damage by explosive or incendiary), 16-11-555 (fake

bombs); S.D.Cod.Laws §22-14A-22 (falsely reporting a bomb); Tenn.Code Ann. §39-16502b (false bomb scare); Tex.Penal Code §§42.06 (false bomb scares), 46.08 (hoax bombs);

Utah Code Ann. §76-9-105 (false alarms concerning fires, bombings, or catastrophes);

Vt.Stat.Ann. tit.13 §§1751 to 1754; Va.Code §18.2-83 (false information concerning property

damage by bomb or incendiary); Wash.Rev.Code Ann. §9A.84.040 (false reporting of fire,

explosion, crime, catastrophe, or emergency likely to result in evacuation of a building or

facility or to cause public inconvenience); W.Va.Code §§61-6-17 (false reports concerning

bombs and other explosives), 61-6-20 (false report of an emergency due to explosion, crime,

catastrophe, accident, illness or other emergency); Wis.Stat.Ann. §§941.13 (false alarms made

to public officials), 947.015 (bomb scares); Wyo.Stat. §6-5-210 (false alarms made to public

officials).

E.g., “A person commits the offense of harassment if, with intent to harass, annoy, or

alarm another person, that person: (a) strikes, shoves, kicks, or otherwise touches another

person in an offensive manner or subjects the other person to offensive physical contact; (b)

insults, taunts, or challenges another person in a manner likely to provoke an immediate

violent response or which would cause the other person to reasonably believe that the actor

intends to cause bodily injury to the recipient or another, or damage to the property of the

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recipient or another; (c) makes a telephone call or a facsimile transmission without purpose

of legitimate communication which would cause the recipient to reasonably believe that the

actor intends to cause bodily injury to the recipient or another, or damage to the property of

the recipient or another, or (d) makes a communication anonymously, or at an extremely

inconvenient hour, or in offensively coarse language which would cause the recipient to

reasonably believe that the actor intends to cause bodily injury to the recipient or another, or

damage to the property of the recipient or another; [or] (e) makes repeated communications,

after being advised by the person to whom the communication is directed that further

communication is unwelcome.” Hawaii Rev.Stat. §711-1106. See also, Ala. Code §§13A-623 (menacing: by physical conduct causing another to reasonably fear imminent serious

physical injury); Alaska Stat. §§11.61.120 (threatening telephone call); Ariz.Rev.Stat.Ann.

§§13-2916 (telephone threats to injure person or property), 13-2921 & 13-2921.01

(harassment,i.e., continuous following or repeated threatening communications or actions);

Ark.Code Ann. §§5-71-208 (harassment: threaten to subject another to offensive physical

contact), 5-71-209 (harassing communications are those calculated to annoy or alarm);

Cal.Penal Code §§422 (threat to commit a crime resulting in great bodily harm), 11418.5

(threat to use weapons of mass destruction); Colo.Rev.Stat. §18-3-206 (menacing: placing

another in fear of bodily injury); Conn.Gen.Stat.Ann. §§53a-182b & 53a-183 (harassment:

threat of physical injury in order to terrorize); Del.Code Ann. tit.11 §§602 (menacing: causing

fear of imminent injure by physical action), 1311 & 1312 (harassment: communicating in a

manner likely to alarm); Ga.Code Ann. §§16-11-39.1 (telephone threats of bodily harm);

Fla.Stat.Ann. §§790.162 (threatening to bomb), 784.011 (assault: threatening to commit

violence against another); Hawaii Rev.Stat. §§711-1106 (harassment: telephone threat of

bodily injury or damage); Idaho Code §§18-7901 to 18-7904 (malicious harassment: threat

to cause injury or damage); Ill.Comp.Stat.Ann. ch.720 §§5/12-9 (threaten a public official),

135/1-1 (threatening phone calls); Ind.Stats.Ann. §§35-45-2-2 (harassment: communication

made with the intent to alarm); Iowa Code Ann. §§708.7 (harassment: communicating a threat

or false alarm), 712.8 (threaten or attempt to place an explosive); Kan.Stat.Ann. §21-4113

(harassment by telephone: phone threats); Ky.Rev.Stat. §§508.050 (menacing: placing another

in fear of imminent injury) 525.070 (harassment: subjects another conduct causing alarm),

525.080 (harassing communication: communicates in a manner designed to cause alarm);

La.Rev. Stat.Ann. §14:285 (threatening telephone communications); Me.Rev.Stat.Ann. tit.17A §§506(harassment by telephone includes making threatening calls), 506-A (harassment:

threatening conduct after being warned by law enforcement officer); Mass.Gen.Laws Ann.

ch.265 §43A (harassment: pattern of misconduct likely to cause emotional distress);

Mich.Comp.Laws Ann. §§750.540e (telephone threats of injury or damage), 750.207 (placing

a bomb with intent to terrorize or threaten); Minn.Stat.Ann. §609.713 (terroristic threats:

threats of violence in order to terrorize); Miss.Code Ann. §97-29-45 (telephone threats of

injury or damage); Mo.Ann.Stat. §§565.090 (harassment: written or telephone threat),

574.115 (terroristic threat: threat to commit a felony); Mont.Code Ann. §45-5-203

(intimidation: threat to inflict injure); Neb.Rev.Stat. §28-311.01 (terroristic threat)

Nev.Rev.Stat. §§200.571 (harassment: threaten injury or damage), 199.300 (threatening

public officials); N.H.Rev.Stat. Ann. §644:4 (harassment: threat of injure); N.J.Stat.Ann.

§2C:33-4 harassment: repeated or alarming conduct committed to cause alarm);

N.M.Stat.Ann. §§30-3A-2 (harassment: pattern conduct intended to terrorize), 30-20-12 (use

of the telephone to terrorize); N.Y.Penal Law §§240.25 to 240.31 (harassment: repeated acts

causing fear of injury), 120.15 (menacing: cause fear of imminent serious injury);

N.C.Gen.Stat. §14-277.1 (communicating threats of physical injury); N.D.Cent.Code §§12.117-05 (menacing: threat of imminent serious injury), 12.1-17-07 (harassment: threatening

telephone call); Ohio Rev.Code Ann. §§2903.21 (aggravated menacing: cause another to fear

of serious injury), 2903.22 (menacing: cause fear of injury), 2917.21 (telephone threats of

injury or damage); Okla.Stat.Ann. tit.21 §§1767.2 (threatening to use an explosive during the

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provisions forbidding intimidation based on racial, religious or ethnic grounds.62 Of

all of the threat statutes, those proscribing stalking, the newest strain, are perhaps the

most prevalent.63

commission of a felony), 1172 (threatening telephone calls); Ore.Rev.Stat. §§163.190

(menacing: place another in fear of imminent serious physical injury), 166.065 (harassment:

conveying threats of serious injury); Pa.Stat.Ann. tit.18 §2709 (harassment: threatening

physical conduct or conduct design to alarm with no legitimate purpose); R.I.Gen.Laws §1142-4 (threatening public officials with injury); S.C.Code §16-17-430 (threatening telephone

calls); S.D.Cod.Laws §49-31-31 (threaten telephone calls); Tenn.Code Ann. §39-17-308

(harassment: telephone or written threats); Tex.Penal Code §42.07 (harassment: telephone

threats, false alarms); Utah Code Ann. §§76-5-107 (threats against life or property), 76-5-106

(harassment: written threat to commit a violent crime); Vt.Stat.Ann. tit.13 §1027 (threatening

telephone calls); Va.Code §§18.2-60 (written threat to injure), 18.2-427 (telephone threats);

Wash.Rev.Code Ann. §§9A.46.020-9A.46.060 (harassment: threats of injury or damage),

9.61.230 (telephone threats); Wis.Stat.Ann. §§947.013 (harassment: threatening physical

contact), 947.012 (telephone threats); Wyo.Stat. §6-2-505 (threat to commit a violent felony

with intent to cause a building evacuation).

E.g., “Whoever, verbally or by a written or printed communication, maliciously

threatens any injury to the person, reputation, or property of another with the intent to

terrorize that person by reason of their race, religion, or national origin, shall be punished by

imprisonment. . . . .” R.I.Gen.Laws §11-42-3. See also, Alaska Stat. §11.76.110; Cal.Penal

Code §§422.6 to 422.95; Colo.Rev.Stat. §18-9-121; Conn.Gen.Stat.Ann. §§53a-181j to 53a181l; Idaho Code §18-7902; Ill.Comp.Stat.Ann. ch.720 §5/12-7.1); Ind.Stats.Ann. §35-36-21; Iowa Code Ann. §729.5; Kan.Stat.Ann. §21-4003; Me.Rev.Stat.Ann. tit.17 §§2931, 2932;

Md.Ann.Code art.27 §470A; Mass.Gen.Laws Ann. ch.265 §§37, 39; Mich.Comp.Laws Ann.

§750.147b; Minn.Stat.Ann. §609.28; Mo.Ann.Stat. §§574.090, 574.093; Mont.Code Ann.

§§45-5-221 & 45-5-222; N.J.Stat.Ann. §2C:33-4[d]; N.Y. Penal Law §§240.30, 240.311;

N.D.Cent.Code §12.1-14-05; Ohio Rev.Code Ann. §2927.12; Okla.Stat. Ann. tit.21 §850;

Ore.Rev.Stat. §§166.155 & 166.165; Pa.Stat.Ann. tit.18 §2710; S.C.Code §16-5-10;

S.D.Cod.Laws §§22-19B-1 to 22-19B-3; Tenn.Code Ann. §39-17-309; Vt.Stat.Ann. tit.13

§§1455 to 1457; Va.Code §§18.2-423 & 18.2-423.1; Wash.Rev.Code Ann. §9A.36.080;

W.Va.Code §61-6-21; Wis.Stat.Ann. §§943.012, 939.645; Wyo.Stat. §6-9-102.

E.g.,”A person commits stalking when the person, on more than one occasion, willfully

follows, pursues, or harasses another person and, while doing so and without legitimate

purpose, makes a credible threat against the other person. A person may commit stalking by

harassing another person without committing the offense of harassment pursuant to section

708.7.

“As used in this section, unless the context otherwise requires: (1) `credible threat’

means a threat made with the intent to place a reasonable person in like circumstances in fear

of death or bodily injury, coupled with the apparent ability to carry out the threat. (2)

`Harasses’ means repeated, intrusive, or unwanted acts, words, or gestures that are intended

to adversely affect the safety, security, or privacy of another person, regardless of the

relationship between the offender and the intended victim. . . .” Iowa Code §708.11. See also,

Ala.Code §13A-6-90 to 13A-6-94; Alaska Stat. §§11.41.260, 11.41.270; Ariz.Rev.Stat.Ann.

§13-2923; Ark.Code Ann. §5-71-229; Cal.Penal Code §646.9; Colo.Rev.Stat. §18-9-111;

Conn.Gen.Stat.Ann. §53a-181c to 53a-181e; Del.Code Ann. tit.11 §1312A; Fla.Stat.Ann.

§784.048; Ga.Code Ann. §§16-5-90 & 16-5-91; Hawaii Rev.Stat. §711-1106.5; Idaho Code

§18-7905; Ill.Comp.Stat.Ann. ch.720 §§5/12-7.3, 5/12-7.4; Ind.Stats.Ann. §§35-45-10-1 to

35-45-10-5; Iowa Code Ann. §708.11; Kan.Stat.Ann. §21-3438; Ky.Rev.Stat. §508.130 to

508.150; La.Rev.Stat.Ann. §14:40.2; Me.Rev.Stat.Ann. tit.17-A §210-A; Md.Code Ann.

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General Crimes

Under federal law and the laws of most states there is a distinct class of crimes

like conspiracy which builds or rests upon other crimes. Sometimes, these

“piggyback” crimes, like solicitation or attempt, are embryonic forms of other crimes.

Other times, as in the case of money laundering, they are the byproducts of other

crimes. In some instances they establish criminal liability where it would not

otherwise exist; in others they enlarge the penalties imposed.

Among their common threads is the idea that under some circumstances the law

ought to punish an individual for a crime actually committed by someone else; murder

and arson ought to be crimes, but so should hiring an assassin, or planning a terrorist

bombing. And this should be so in some cases even if the procurement or planning

efforts fall short of success.

Thus, schemers may become liable for each other’s misdeeds, committed in the

name of the common project. In this arrangement, the individual who commits the

underlying substantive crime is known as a principal. Those who contribute to the

principal’s criminal enterprise are called accomplices or accessories before the fact.

Once the underlying crime is committed each is liable as if he himself the committed

the offense.

In addition to the prospect of liability for the crimes of a joint venture,

preparation to commit a crime or an agreement to commit a crime is generally a

separate offense. The separate general crimes include attempt, conspiracy,

solicitation, facilitation, racketeering, and various forms of money laundering.

The mix of general principles of liability and general crimes varies from

jurisdiction to jurisdiction. At federal law, an accessory before the fact is treated the

same as a principal.64

art.27 §121B; Mass. Gen.Laws Ann. ch.265 §43; Mich.Comp.Laws Ann. §§750.411h &

750.411i; Minn.Stat.Ann. §609.749; Miss.Code Ann. §95-3-107; Mo.Ann.Stat. §565.225;

Mont.Code Ann. §45-5-220; Neb.Rev.Stat. §§28-311.02 to 28-311.05; Nev.Rev.Stat.

§§200.575-200.601; N.H.Rev.Stat.Ann. §633:3-a; N.J.Stat.Ann. §2C:12-10; N.M.Stat.Ann.

§§30-3A-3, 30-3A-3.1; N.C.Gen.Stat. §14-277.3; N.D.Cent.Code §12.1-17-07.1; Ohio

Rev.Code Ann. §2903.211; Okla.Stat.Ann. tit.21 §1173; Ore.Rev.Stat. §§163.730 to

163.755; Pa.Stat.Ann. tit.18 §2709; R.I.Gen.Laws §§11-59-1 to 11-59-3; S.C.Code §§16-31700, 16-3-1720 & 16-3-1730; S.D.Cod.Laws §§22-19A-1 to 22-19A-7; Tenn.Code Ann.

§39-17-315; Tex.Penal Code §42.072; Utah Code Ann. §76-5-106.5; Vt.Stat.Ann. tit.13

§§1061 to 1063; Va.Code §18.2-60.3; Wash.Rev.Code Ann. §9A.46.110; W.Va.Code §61-29a; Wis.Stat.Ann. §940.32; Wyo.Stat. §6-2-506.

“Whoever commits an offense against the United States or aids, abets, counsels,

commands, induces or procures its commission is punishable as a principal,” 18 U.S.C. 2(a).

It is fairly easy to understand when an individual can be said to have commanded or

procured a crime, but elements of aiding and abetting may not be as obvious. As a general

rule, an individual “aids or abets” the crime of another when he embraces the crime of another

as his own and contributes to its commission. “While a conspirator is almost always also an

aider and abettor, an aider and abettor is often not a conspirator. . . . The canonical definition

of aiding and abetting a federal offense, stated by Judge Learned Hand in United States v.

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An accessory after the fact is not held liable for the underlying crime,65

but instead his assistance is treated as a separate crime.66 It is a separate federal

offense to conspire to commit a federal crime, any federal crime.67 Moreover,

conspirators are punishable for any of the crimes committed by their co-conspirators

in foreseeable furtherance of their common criminal design.68

Unlike most state criminal codes, federal law features no general attempt

provision, although sundry attempts or “endeavors” to commit several federal crimes

have been outlawed as part of the definition of the specific offenses. There is likewise

Peoni, 100 F.2d 401, 402 (2d Cir. 1938) . . . requires not only that the defendant have aided

his principal to commit a crime but also that he have wanted the principal to succeed in

committing it . . . . Obviously this . . . rules out cases in which the defendant was a mere

accomplice after the fact, who did not assist the principal to commit the crime and therefore

could not have been supposed to be acting out of a desire that the crime be committed.”

United States v. Ortega, 44 F.3d 505, 506 (7th Cir. 1995); see also, United States v. Ray,

250 F.3d 596, 601 (8th Cir. 2001)(“[t]o support a conviction for aiding and abetting, the

government must show: 1) that the defendant associated with an unlawful venture, 2) that he

participated in it with the goal of bringing it about, and 3) that he sought by his actions to

make it succeed”). For a general discussion, see 1 WORKING PAPERS OF THE NATIONAL

COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS 153-61 (1970).

United States v. Brown, 33 F.3d 1002, 1004 (8th Cir. 1994) United States v. Graves,

143 F.3d 1185, 1190 (9th Cir. 1998).

“Whoever knowing that an offense against the United States has been committed,

receives, relieves, comforts or assists the offender in order to hind or prevent his apprehension,

trial or punishment,” and is punishable by imprisonment for not more half the maximum term

to which his principal might be sentenced, 18 U.S.C. 3. Misprision of a felony which

punishes the affirmative concealment of a felon resembles the accessory after the fact

proscription, 18 U.S.C. 4, but is only rarely prosecuted, perhaps because of the greater

flexibility of the accessory provisions.

18 U.S.C. 371 (“[i]f two or more persons conspire either to commit any offense against

the United States, or . . . and one or more of such persons do any act to effect the object of

the conspiracy, each shall be fined under this title or imprisoned not more than five years, or

both. . . .”); in order to avoid the overt act requirement (“do any act to effect”) or to punish

conspiracy as severely as the underlying offense, Congress has occasionally established

individual conspiracy provisions for specific crimes, see e.g., 18 U.S.C. 351(d)(conspiracy

to assassinate a Member of Congress, the cabinet, or the Supreme Court), 18 U.S.C.

1951(a)(conspiracy to interfere with commerce by threats or violence).

For a more extended discussion see, Sixteenth Survey of White Collar Crime: Federal

Criminal Conspiracy, 38 AMERICAN CRIMINAL LAW REVIEW 777 (2001); Developments in

the Law – Criminal Conspiracy, 72 HARVARD LAW REVIEW 920 (1959).

Pinkerton v. United States, 328 U.S. 640, 646-48 (1946); United States v. Barnes, 244

F.3d 172, 176 (1st Cir. 2001)(“Once a participant knowingly helps to initiate the agreement

and set it in motion, he assumes conspirator’s responsibility for the foreseeable actions of his

confederates within the conspiratorial agreement, whether or not he is aware of precisely what

steps they plan to take to accomplish the agreed goals”); United States v. Smith, 240 F.3d

732, 737 (8th Cir. 2001).

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no general federal solicitation – attempted conspiracy – statute, but Congress has

passed a fairly sweeping solicitation to violence provision.69

The federal racketeering provisions are less universal. The racketeering

provisions, which condemn the patterned use of violent crimes to conduct the affairs

of an enterprise whose activities affect interest commerce,70 however, seem

particularly relevant to a discussion of a subject centered in violence and the threat of

violence. The list of racketeering or RICO predicates includes many of the crimes

which characterize terrorism – “any act or threat involving murder, kidnapping, . . .

arson,” as well as obstruction of justice and violent interference with commerce, 18

U.S.C. 1961, and nexus of the enterprise to commerce need only be slight.71

Early case law suggested that RICO could not reach terrorism or any other

criminal enterprise that was not commercially motivated,72 a view the Supreme Court

subsequently rejected.73 The applicability of RICO necessarily raises also the possible

implication of the prohibition against the commission of violent crimes in aid of

racketeering.74

“Whoever, with the intent that another person engage in conduct constituting a felony

that has as an element the use, attempted use, or threatened use of physical force against

property or against the person of another in violation of the laws of the United States, and

under circumstances strongly corroborative of that intent, solicits, commands, induces, or

otherwise endeavors to persuade such other person to engage in such conduct, shall be

imprisoned not more than one-half the maximum term of imprisonment . . . prescribed for the

punishment of the crime solicited . . . if the crime solicited is punishable by life imprisonment

or death, shall be imprisoned for not more than twenty years,” 18 U.S.C. 373(a)

“It shall be unlawful for any person employed by or associated with any enterprise

engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or

participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern

of racketeering activity. . . .” 18 U.S.C. 1962(c).

United States v. Farmer, 924 F.2d 647, 651 (7th Cir. 1991); R.A.G.S. Couture, Inc.

v. Hyatt, 774 F.2d 1350, 1353 (5th Cir. 1985).

United States v. Ivic, 700 F.2d 51, 59 (2d Cir. 1983)(conspiracy of Crotian terrorists

convicted of transportation, receipt and attempted use of explosives and conspiracy to violate

civil rights did not constitute a RICO violation because the group had no “mercenary

motive”).

National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 261

(1994)(“Congress has not, either in the definition section or in the operative language required

that an `enterprise’ in §1961(c) have an economic motive”).

“Whoever, as consideration for the receipt of, or as consideration for a promise or

agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering

activity [as defined in 18 U.S.C. 1961 with respect to RICO], or for the purpose of gaining

entrance in or maintaining or increasing position in an enterprise engaged in racketeering

activity, murders, kidnaps, maims, assaults with a dangerous weapon, commits assault

resulting in serious bodily injury upon, or threatens to commit a crime of violence against any

individual in violation of the laws of the any State or the United States, or attempts or

conspires so to do, shall be punished . . . .” 18 U.S.C. 1959(a).

CRS-35

Particularly if terrorism is defined to include economic terrorism or

narcoterrorism or activities in support of the more traditionally defined form of

terrorism, then the list of general crimes must include money laundering and tax

evasion. The money laundering provisions are diverse, covering not only the

transactions themselves,75 but numerous reporting requirements76 including one for

those carrying currency into or out of the United States, 31 U.S.C. 5316 (reports on

exporting and importing monetary instruments).

Consistent with the federal approach, most states impose criminal liability upon

accessories before the fact and many treat conduct involving accessories after the fact

as a separate crime.77 Similarly, general conspiracy statutes are common,78 but in

18 U.S.C. 1956 (laundering of monetary instruments), 1957 (engaging in monetary

transactions in property derived from specified unlawful activity) The predicate offenses for

sections 1956 and 1957 include the RICO predicates; violations of foreign law involving

controlled substances, kidnapping, robbery or extortion; counterfeiting, smuggling, theft of

federal property, espionage, kidnapping and hostage taking, and various violations of

American foreign trade law, 18 U.S.C. 1956(c)(7), 1957(f)(3).

26 U.S.C. 6050I (IRS information return required from any trade or business

concerning any transaction or related transactions involving $10,000 or more in cash); 31

U.S.C. 5313 (financial institution reports on individual or related coin and currency

transactions involving $10,000 or more); 31 U.S.C. 5315 (Americans must report foreign

currency transactions involving $10,000 or more); 31 U.S.C. 5322 (criminal penalties for

reporting requirements of the chapter); 31 U.S.C. 5324 (structuring transactions to evade

reporting requirements); 31 U.S.C. 5325 (financial institution reports concerning bank checks,

cashiers checks, traveler’s checks, or money orders in amounts of $3000 or more).

“Whoever aids in the commission of a felony, or is accessory thereto before the fact by

counselling, hiring or otherwise procuring such felony to be committed, shall be punished in

the manner provided for the punishment of the principal felon,” Mass.Gen.Laws Ann. ch. 274

§2. See also, Ala.Code §13A-2-23; Alaska Stat. §11.16.110; Ariz.Rev.Stat.Ann. §13-303;

Ark.Code Ann. §5-2-403; Cal.Penal Code §31; Colo.Rev.Stat. §18-8-105;

Conn.Gen.Stat.Ann. §53a-8; Del.Code Ann. tit.11 §271; Fla.Stat.Ann. §777.011; Ga.Code

Ann. §16-2-20; Hawaii Rev.Stat. §702-222; Idaho Code §18-204; Ill.Comp.Stat.Ann. ch.720

§5/5-2; Ind.Stat.Ann. §35-41-2-4; Iowa Code Ann. §703.1; Kan.Stat.Ann. §21-3205;

Ky.Rev.Stat. §502.020; La.Rev.Stat.Ann. §14:24; Me.Rev.Stat.Ann. tit.17-A §57;

Md.Ann.Code art.27 §592A; Minn.Stat.Ann. §609.05; Miss.Code Ann. §97-1-3;

Mo.Ann.Stat. §562.041; Mont.Code Ann. §45-2-302; Neb.Rev.Stat. §28-206; Nev.Rev.Stat.

§195.020; N.H.Rev.Stat.Ann. §626.8; N.J.Stat.Ann. §2C:2-6; N.M.Stat.Ann. §30-1-13;

N.Y.Penal Law §20.00; N.C.Gen.Stat. §14-5.2; N.D.Cent.Code §12.1-03-01; Okla.Stat.Ann.

tit.21 §172; Ohio Rev.Code Ann. §2923.03; Ore.Rev.Stat. §161.155; Pa.Stat.Ann. tit.18

§306; R.I.Gen.Laws. §11-1-3; S.C.Code §16-1-40; S.D.Cod.Laws §22-3-3; Tenn.Code Ann.

§39-11-402; Tex.Penal Code §17.02; Utah Code Ann. §76-2-202; Vt.Stat.Ann. tit.13 §3;

Va.Code §18.2-18; Wash.Rev.Code Ann. §9A.80.020; W.Va.Code §61-11-6; Wis.Stat.Ann.

§939.05; Wyo.Stat. §6-1-201. For a general discussion see, AMERICAN LAW INSTITUTE,

MODEL PENAL CODE: PART I §§1.01 TO 2.13, 295-329 (1985); 2 LAFAVE & SCOTT,

SUBSTANTIVE CRIMINAL LAW, 125-78 (1986 & 1995 Supp.).

“(a) A person is guilty of criminal conspiracy if, with the intent that conduct

constituting an offense be performed, he agrees with one or more persons to engage in or

cause the performance of such conduct, and any one or more of such persons does an overt

act to effect an objective of the agreement.

CRS-36

contrast to federal law, the majority of states have enacted generally applicable

attempt provisions79 and many have passed a general solicitation statute as well.80

“(b) If a person knows or should know that one with whom he agrees has in turn agreed

or will agree with another to effect the same criminal objective, he shall be deemed to have

agreed with such other person, whether or not he knows the other’s identity.

“(c) A person is not liable under this section if, under circumstances manifesting a

voluntary and complete renunciation of his criminal purpose, he gave a timely and adequate

warning to law enforcement authorities or made a substantial effort to prevent the enforcement

of the criminal conduct contemplated by the conspiracy. Renunciation by one conspirator,

however, does not affect the liability of another conspirator who does not join in the

abandonment of the conspiratorial objective. . . .

“(d) It is no defense to a prosecution for criminal conspiracy that: (1) the person, or

persons, with whom defendant is alleged to have conspired has been acquitted, has not been

prosecuted or convicted, has been convicted of a different offense or is immune from

prosecution, or (2) the person, or persons, with whom defendant conspired could not be guilty

of the conspiracy or the object crime because of lack of mental responsibility or culpability,

or other legal incapacity or defense, or (3) the defendant belongs to a class of persons who by

definition are legally incapable in an individual capacity of committing the offense that is the

object of the conspiracy. . . .” Ala. Code §13A-4-3; to similar effect, Alaska Stat.§11.31.120;

Ariz.Rev.Stat.Ann. §13-1003; Ark. Code Ann. §§5-3-401 to 5-3-407; Cal.Penal Code §§182

to 184; Colo.Rev.Stat. §§18-2-201 to 18-2-206; Conn.Gen.Stat.Ann. §53a-48; Del.Code

Ann. tit.11 §§511 to 523; Fla.Stat.Ann. §777.04; Ga.Code Ann. §§16-4-8 & 16-4-9; Hawaii

Rev.Stat. §§705-520 to 705-526; Idaho Code §18-1701; Ill.Comp.Stat.Ann. ch.720 §5/8-2;

Ind.Stat. Ann. §35-41-5-2; Iowa Code Ann. §§706.1 to 706.4; Kan.Stat.Ann. §§21-3302, 213302a; Ky.Rev.Stat. §506.040; La.Rev.Stat.Ann. §14:26; Me.Rev.Stat.Ann. tit.17-A §151;

Md.Ann.Code art.27 §38; Mass.Gen.Laws Ann. ch.274 §7; Mich.Comp.Laws Ann.

§§750.151 to 750.157a; Minn.Stat.Ann. §609.175; Miss.Code Ann. §97-1-1; Mo.Ann.Stat.

§564.016; Mont.Code Ann. §45-4-102; Neb.Rev.Stat. §§28-202 & 28-203; Nev.Rev.Stat. §§

199.480-199.500; N.H.Rev.Stat.Ann. §629:3; N.J.Stat.Ann. §2C:5-2; N.M.Stat.Ann. §30-282; N.Y.Penal Law §§105.00-105.35; N.C.Gen.Stat. §14-2.4; N.D.Cent.Code §12.1-06-04;

Ohio Rev.Code Ann. §2923.01; Okla.Stat.Ann. tit.21 §§421 to 424; Ore.Rev.Stat. §§161.450

to 161.485; Pa.Stat.Ann. tit.18 §903; R.I.Gen.Laws §11-1-6; S.C.Code §16-17-410;

S.D.Cod.Laws §22-3-8; Tenn.Code Ann. §39-12-103; Tex.Penal Code §15.02; Utah Code

Ann. §§76-4-201 & 76-4-202; Vt.Stat.Ann. tit.13, §§1404-1409; Va.Code §§18.2-22 to 18.223.1; Wash.Rev.Code Ann. §9A.28.040; W.Va.Code §61-10-31; Wis.Stat.Ann. §939.31;

Wyo.Stat. §6-1-303.

For an examination of the intricacies of the law of conspiracy, see, Developments in the

Law – Criminal Conspiracy, 72 HARVARD LAW REVIEW 920 (1959); 2 LAFAVE & SCOTT,

supra at 60-124; I WORKING PAPERS, supra at 381-401.

“(a) A person attempts to commit an offense if he: (1) purposely engages in conduct that

would constitute an offense if the attendant circumstances were as he believes them to be; or

(2) purposely engages in conduct that constitutes a substantial step in a course of conduct

intended to culminate in the commission of an offense whether or not the attendant

circumstances are as he believes them to be.

“(b) When causing a particular result is an element of the offense, a person commits the

offense of criminal attempt if, acting with the kind of culpability otherwise required for the

commission of the offense, he purposely engages in conduct that constitutes a substantial step

in a course of conduct intended or known to cause such a result.

“(c) Conduct is not a substantial step under this section unless it is strongly

corroborative of the person’s criminal purpose.” Ark.Code Ann. §5-3-201. See also, Ala.

Code §13A-4-2; Alaska Stat.§§11.31.100 Ariz.Rev.Stat.Ann. §13-1001; Cal.Penal Code

CRS-37

§§663 to 664; Colo.Rev.Stat. §§18-2-101; Conn.Gen.Stat.Ann. §53a-49; Del.Code Ann.

tit.11 §§531 to 533; Fla.Stat.Ann. §777.04; Ga.Code Ann. §§16-4-1 to 16-4-6; Hawaii

Rev.Stat. §§705-500 to 705-502; Idaho Code §§18-305 to 18-307; Ill.Comp.Stat.Ann. ch.720

§5/8-4; Ind.Stats.Ann. §35-41-5-1; Kan.Stat.Ann. §21-3301; Ky.Rev.Stat. §506.010;

La.Rev.Stat.Ann. §14:27; Me.Rev.Stat.Ann. tit.17-A §152; Mass.Gen.Laws Ann. ch.274 §6;

Mich.Comp.Laws Ann. §750.92; Minn.Stat.Ann. §609.17; Miss.Code Ann. §§97-1-7 to 97-19; Mo.Ann.Stat. §564.011; Mont.Code Ann. §§45-4-103, 45-4-101; Neb.Rev.Stat. §28-201;

Nev.Rev.Stat. §193.330; N.H.Rev.Stat.Ann. §629:1; N.J.Stat.Ann. §2C:5-1; N.M.Stat.Ann.

§30-28-1; N.Y.Penal Law §§110.00 to 110.10; N.C.Gen.Stat. §14-2.5; N.D.Cent.Code

§12.1-06-01; Ohio Rev.Code Ann. §2923.02; Okla.Stat.Ann. tit.21 §41-44; Ore.Rev.Stat.

§§161.405 to 161.430; Pa.Stat.Ann. tit.18 §901; S.C.Code §16-1-80; S.D.Cod.Laws §§22-41, 22-4-2; Tenn.Code Ann. §39-12-101; Tex.Penal Code §15.01; Utah Code Ann. §§76-4101, 76-4-102; Vt.Stat.Ann. tit.13, §9; Va.Code §§81.2-25 to 18.2-28; Wash.Rev.Code Ann.

§9A.28.020; W.Va.Code §61-11-8); Wis.Stat.Ann. §939.32; Wyo.Stat. §6-1-301.

See generally, AMERICAN LAW INSTITUTE, MODEL PENAL CODE AND COMMENTARIES

PART I, §§3.01 TO 5.07 293-382 (1985); 2 LAFAVE & SCOTT, supra at 3-60; I WORKING

PAPERS, supra at 351-79.

“(a) A person solicits the commission of an offense if, with the purpose of promoting

or facilitating the commission of a specific offense, he commands, urges, or requests another

person to engage in specific conduct which would (1) constitute that offense; (2) constitute an

attempt to commit that offense; (3) cause the result specified by the definition of that offense;

or (4) establish the other person’s complicity in the commission or attempted commission of

that offense.” Ark.Code Ann. §5-3-301; see also: Ala. Code §13A-4-1 (request, command or

importune); Alaska Stat.§§11.31.110, 11.81.900(59) (solicit or command another to commit

a crime); Ariz.Rev.Stat.Ann. §13-1002 (commands, encourages, requests or solicits);

Colo.Rev.Stat. §18-2-301 (commanding, inducing, entreating or otherwise attempting to

persuade); Del.Code Ann. tit.11 §§501 to 503 (commands, request, importunes or otherwise

attempts to cause); Fla.Stat. Ann. §777.04 (commands, encourages, hires or requests));

Ga.Code Ann. §16-4-7 (request, command, importune, or otherwise attempt to cause); Hawaii

Rev.Stat. §§705-510 to 705-510 (command, encourage or request); Idaho Code §§18-2001

to 18-2004 (importune, command, encourages or requests); Ill.Comp.Stat.Ann. ch.720 §5/8-1

(commands, encourages or requests); Iowa Code Ann. §705.1 (command, entreat or otherwise

attempt to persuade); Kan.Stat.Ann. §21-3303 (command, encourage or request another to

commit a felony); Ky.Rev.Stat. §506.030 (commands or encourages); La.Rev.Stat.Ann.

§14:28 (inciting a felony); Me.Rev.Stat.Ann. tit.17-A §153 (commands or attempts to induce);

Mich. Comp.Laws Ann. §750.157b (solicitation of murder or other felony: hires another to

commit a felony); Mont.Code Ann. §45-4-101 (command, encourage or facilitate the

commission of a crime by another); Nev.Rev.Stat. §199.500 (counsels, hires, commands or

otherwise solicits); N.H.Rev.Stat.Ann. §629:2 (command, solicit or request); N.M.Stat.Ann.

§30-28-3 (solicit, command, request, induce, employ or otherwise attempt to promote or

facilitate); N.Y.Penal Law §§100.00 to 100.20 (solicit, request, command importune or

otherwise attempt to cause); N.C.Gen.Stat. §14-2.6 (solicitation); N.D.Cent.Code §12.1-0603 (commanding, inducing, entreating or otherwise attempting to persuade another to commit

a crime); Ore.Rev.Stat. §161.435 (commands or solicits); Pa.Stat.Ann. tit.18 §902

(solicitation: command, encourage, or request); R.I.Gen.Laws §11-1-9 (solicitation);

Tenn.Code Ann. §39-12-102 (command, request, or hire); Tex.Penal Code §15.03

(requesting, commanding or attempting to induce); Utah Code Ann. §§76-4-203, 76-4-204

(solicit, request, command, offer to hire, or importune another to commit a felony);

Vt.Stat.Ann. tit.13, §7 (inciting a felony: endeavor to incite, procure or hire); Va.Code §18.229 (commands, entreats, attempts to persuade); Wash.Rev.Code Ann. §9A.28.030 (offer of

payment); Wis.Stat.Ann. §939.30 (advising another); Wyo.Stat. §6-1-302 (commands,

CRS-38

TERRORISM COMMITTED IN OTHER COUNTRIES

Constitutional Considerations

For reasons of both national sovereignty and practicality, terrorism and most

other crimes are usually outlawed, tried and punished according to the laws of the

place in which they occur.81 Under a limited number of circumstances, a country’s

laws will apply beyond the confines of its own territory.

The Constitution governs when the Congress may pass laws applicable overseas.

It neither explicitly permits nor forbids the passage of terrorism laws with

extraterritorial reach. Yet it does gives Congress broad general authority over other

matters under which such laws may be enacted. In fact, Congress enjoys greater

legislative latitude with respect to foreign affairs. Terrorism in this country will

almost always offend state law; terrorism committed overseas is more likely to be a

matter of federal law. Yet the threshold remains the same, Congress may only act

within the powers the Constitution furnishes it.

The Constitution grants Congress the power to regulate commerce between and

among the states and with foreign countries, U.S.Const. Art.I, §8, cl.3.82 It empowers

Congress to “define and punish Piracies and Felonies committed on the high Seas, and

Offences against the Law of Nations,” U.S.Const. Art.I, §8, cl.10,83 and to enact laws

encourages or facilitates). A few have complementary facilitation statutes e.g.,

Ariz.Rev.Stat.Ann. §13-1004 (providing the means for commission of a crime by another);

Ky.Rev.Stat. §§506.080 to 506.100 (knowingly provides another with the means or

opportunity of commit a crime); N.Y.Penal Law §§115.00 to 115.15 (facilitation: provide the

means or opportunity for the crime of another); N.D.Cent.Code §12.1-06-02 (providing

substantial assistance for the commission of a crime by another).

See generally, AMERICAN LAW INSTITUTE, MODEL PENAL CODE AND COMMENTARIES

PART I, §§3.01 TO 5.07 293-382 (1985); 2 LAFAVE & SCOTT, supra at 3-60; I WORKING

PAPERS, supra at 351-79.

“The general and almost universal rule is that the character of an act as lawful or

unlawful must be determined wholly by the law of the country where the act is done,”

American Banana Co. v. United Fruit Co., 213 U.S. 347, 356 (1909).

The commerce power includes the authority “[t]o regulate Commerce with foreign

Nations, and among the several States, and with the Indian Tribes.” It is a power of

exceptional breadth domestically, see e.g., Perez v. United States, 402 U.S. 146 (1971)(the

clause permits Congress to outlaw extortionate credit transactions (loansharking)); Heart of

Atlanta Motel v. United States, 379 U.S. 241 (1964)(it permits Congress to ban

discrimination in places of public accommodation), and perhaps even more far ranging in an

international context. California Bankers Ass’n v. Shultz, 416 U.S. 21 (1974)(it permits

Congress to require Americans to report foreign financial transactions to the federal

government); United States v. 12,200-Ft. Reels of Film, 413 U.S. 123 (1973)(it permits

Congress to bar importation of obscene material even if importation is sought exclusively for

noncommercial use).

Although the “offense clause” might seem a logical to ban overseas terrorism and

similar crimes, Congress has relied on the clause relatively infrequently. It has more often

CRS-39

“necessary and proper” to carry into execution the powers which the Constitution vest

in it or in any other branch of the federal government, U.S.Const. Art.I, §8, cl.18.84

In the case of terrorism, Congress has often invoked this last authority, particular

to activate the powers deposited with the President and the Congress in the fields of

foreign affairs and military activities,85 powers which the courts have described in

particularly sweeping terms.86

called upon the “high seas” component of the clause which, when coupled with its authority

to define the admiralty and maritime jurisdictions of the federal courts, accepts the application

of federal criminal law even to an American vessel at anchor well within the territory of

another nation. United States v. Flores, 289 U.S. 137 (1933).

“The Congress shall have Power . . . To make all Laws which shall be necessary and

proper for carrying into Execution the foregoing Powers and all other Powers vested by this

Constitution in the Government of the United States, or in any Department or Officer thereof.”

E.g., “The President shall be Commander in Chief of the Army and Navy of the United

States, and of the Militia of the several States . . . . He shall have Power, by and with the

Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators

present concur; and he shall nominate, and by and with the Advice and Consent of the Senate,

shall appoint Ambassadors . . . . He . . . shall receive Ambassadors and other public

Ministers; [and] he shall take Care that the Laws be faithfully executed . . . .” U.S.Const.

Art.II, §§2, 3.

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises

. . . ; To establish an uniform Rule of Naturalization’ . . . To declare War, grant Letters of

Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and

support Armies . . .; To provide and maintain a Navy; To make Rules for the Government and

Regulation of the land and naval Forces; . . . [and] To make all Laws which shall be necessary

and proper for carrying into Execution the foregoing Powers and all other Powers vested by

this Constitution in the Government of the United States, or in any Department or Officer

thereof.” U.S.Const. Art.I, §8, cls.1, 4, 11-14, 18.

United States v. Curtiss-Wright Corp., 299 U.S. 304 (1936); Ex parte Quirin, 317

U.S. 1 (1942); Parker v. Levy, 417 U.S. 733 (1974).

Some judicial authorities have suggested that in the area of foreign affairs the

Constitution’s establishment of the federal government as a sovereign entity vested it with

authority, defined by standards recognized by the law of nations, beyond its constitutionally

enumerated powers. United States v. Rodriguez, 182 F.Supp. 479, 490-91 (S.D.Cal. 1960),

aff’d sub nom., Rocha v. United States, 288 F.2d 545 (9th Cir. 1961): “The powers of the

government and the Congress in regard to sovereignty are broader than the powers possessed

in relation to internal matters, United States v. Curtiss-Wright Export Corp., 1936, 299 U.S.

304 . . . .

“The broad statement that the federal government can exercise no powers

except those specifically enumerated in the Constitution, and such implied powers

as are necessary and proper to carry into effect the enumerated powers, is

categorically true only in respect to our internal affairs. Id., 299 U.S. at page 315.

...

“It results that the investment of the federal government with the powers of

external sovereignty did not depend upon the affirmative grants of the Constitution.

Id. 299 U.S. at page 318.

“. . . To put it in more general terms, the concept of essential sovereignty of a free

nation clearly requires the existence and recognition of an inherent power in the state to

protect itself from destruction. This power exists in the United States government absent

CRS-40

Limits on Legislative Authority: Generally

The powers granted by the Constitution are not without limit. The clauses

enumerating Congress’s powers may carry specific or implicit limitations. The

authority to punish offenses against the law of nations, for example, appears to be

limited by what constitutes an offense under the law of nations.87

The need to harmonize potentially conflicting constitutional grants of authority

impose other constraints on Congress’ legislative authority. For instance, although

the Constitution reserves to the people and the states the residue of governmental

powers which it does not vest elsewhere, U.S.Const. Amends. IX, X, the

predominance of the federal government in the area of foreign affairs conditions state

activity principally to those areas where they are acting with federal authority or

acquiescence.88

express provision in the Constitution and arises from the very nature of the government

which was created by the Constitution.”

“It would seem, although there are no clear decisions of the Supreme Court upon this

point, that, although Congress is given a general authority to define as well as to punish, it

may not relay upon this grant for authority to include within the Federal criminal jurisdiction

offences which cannot be fairly said to be within the purview of what is commonly known as

international law or the law of nations.” 2 WILLOUGHBY, THE CONSTITUTIONAL LAW OF THE

UNITED STATES 1122-23 (2d ed. 1929); Defining and Punishing Abroad: Constitutional

Limits on the Extraterritorial Reach of the Offenses Clause, 48 DUKE LAW JOURNAL 1305,

1331 (1999)(“The history, constitutional structure, and case law all indicate that the

Constitution requires that the reach of the Offenses Clause be limited by the jurisdictional

principles of customary international law”); Lowenfeld, U.S. Law Enforcement Abroad: The

Constitution and International Law, 83 AMERICAN JOURNAL OF INTERNATIONAL LAW 880,

891-92 (1989) (asserting that the creation of subject matter and personal jurisdiction over an

alien defendant for an offense committed overseas and not otherwise connected to the United

States by forcibly bringing him into the United States is “not clearly within any constitutional

grant of power to Congress, and in particular, . . . does not, as written, come within the power

to define and punish offenses against the law of nations”). This question was apparently not

raised when the Supreme Court rejected a contention that a federal district court lacked

jurisdiction to try a Mexican national brought before it for trial, not pursuant to the extradition

treaty between Mexico and the United States, but after being forcibly kidnaped in Mexico,

United States v. Alvarez-Machain, 504 U.S. 655 (1992) (Dr. Alvarez-Machain had been

indicted for complicity in the murder of a federal DEA agent in Mexico).

The Supreme Court provided another example when it held that authority to regulate the

armed forces did not carry with the power to allow military tribunal to try civilians, Toth v.

Quarles, 350 U.S. 11 (1955) (court martial trial of a civilian for crimes he allegedly

committed in Korea while in the military exceeded the authority granted Congress by art.I, §8,

cl.14 a

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