The Terrorism Enhancement: An obscure law stretches the definition of terrorism, and metes out severe punishments.

There’s no doubt about it: Daniel McGowan is a criminal. In January 2001, he stood lookout while other members of a radical environmentalist group set fire to the offices of the Superior Lumber Co. in the tiny southwestern Oregon town of Glendale. In statement issued after the fire, McGowan justified the after-hours assault, calling Superior “a typical earth raper contributing to the ecological destruction of the Northwest.” Five months later, in the northern town of Clatskanie, McGowan and others torched a farm that grew hybrid poplar-cottonwood trees, which they denounced in another public message as “an ecological nightmare threatening native biodiversity in the ecosystem.” At the scene, McGowan painted the letters ELF, the acronym of the Earth Liberation Front, an underground band of economic saboteurs responsible for a string of arsons across the Northwest and in Colorado and Wyoming. McGowan, fully committed to ELF’s violent tactics, caused more than $2 million in property damage. He is, by the letter of the law and by his own admission of involvement in the two fires, an arsonist.

But is Daniel McGowan a terrorist? As far as the law is concerned, yes. Last month, a U.S. District Court judge in Eugene, Ore., ruled that McGowan set the fire at the tree farm to intimidate state governments. Specifically, the Clatskanie statement had declared, “Pending legislation in Oregon and Washington further criminalizing direct action in defense of the wild will not stop us and only highlights the fragility of the ecocidal empire.” That one sentence, the judge found, showed that McGowan meant to influence the conduct of government by intimidation or coercion, a particular legal standard that elevated his crime from simple arson to terrorism. Under the law, that gave the judge the authority to increase McGowan’s sentence to life in prison. In the end, however, she gave him seven years for his role in the arsons, partly because McGowan helped to persuade his co-conspirators to plead guilty.

McGowan is one of the latest defendants to come under the so-called terrorism enhancement, an obscure measure that allows judges to dramatically increase a person’s sentence if his or her offense “involved, or was intended to promote, a federal crime of terrorism,” as defined by Congress. Enacted in 1995 after the bombings of the World Trade Center and the Alfred P. Murrah Federal Building in Oklahoma City, the law aimed to stiffen sanctions rather than create new categories of crimes.

There is no comprehensive accounting of how often the enhancement has been used, but in the last eight years, federal prosecutors have successfully applied it against at least 57 individuals, according to the U.S. Sentencing Commission and court records. (There is no way to determine how many times prosecutors might have been unsuccessful.) Some of their crimes fit the traditional concept of terrorism, at least the one that the public has come to know in the wake of the 9/11 attacks: indiscriminant assaults on civilian populations, usually inspired by a fundamentalist religious ideology, that are intended to cause mass casualties.

However, an extensive examination by National Journal of cases where the enhancement was in play suggests that the government more often targets individuals who didn’t commit a religiously motivated act of terrorism, or who consciously avoided human casualties. Some defendants were driven by political outrage, and specifically targeted government facilities. But their crimes, while serious and violent, were covered by well-established definitions and punishments.

“We already have a very solid sentencing structure that punishes people for their crimes. This is beyond that,” says Deborah Buckman, a lawyer and an author for the professional journal American Law Reports Federal, who wrote a lengthy report on terrorism enhancements.

Stretching the Limits

In addition to McGowan, judges have imposed the enhancement on criminals for whom the label “terrorist” strikes some lawyers and judges as dubious. They include two men who set fire to an Internal Revenue Service office to protest tax collection; an anti-abortion activist who concocted a plan to blow up abortion clinics but never carried it out; a mentally ill man who telephoned bomb threats against local government offices and a television station; and a man who threatened a federal judge who had ruled against him in a trademark infringement case. Because of his plea deal, McGowan did not receive a tougher sentence despite the judge’s finding. But in other cases, the enhancement has dramatically increased the defendant’s prison time—sometimes more than threefold.

National Journal reviewed 35 cases that were publicly available through legal databases or court records. Fewer than half—13—involved individuals accused of supporting or conspiring with radical Islamic organizations. Three defendants were found to have actively engaged in formulating plots—one to attack the New York City subway system, the other the foiled attack on Los Angeles International Airport during New Year’s celebrations in 1999. A judge also applied the enhancement to John Walker Lindh’s conviction for supplying services to the Taliban regime, and he received a 20-year sentence.

The remaining defendants in those 13 cases provided “material support” to terrorist groups or engaged in preliminary plotting. In one case, the enhancement was applied to a young man who had backed out of a plan to blow up electrical substations in Florida. The government apparently has not sought the enhancement in some high-profile terrorism cases, including that of Zacarias Moussaoui, who was convicted of conspiracy in connection with the September 11 attacks and sentenced to life imprisonment without invoking the enhancement. However, prosecutors did use the law against the “Lackawanna Six,” a group of U.S. citizens in New York state who pleaded guilty to providing material support to Al Qaeda.

The application of the terrorism enhancement has largely been overlooked by the media, legal scholars, Congress, and terrorism analysts. The Justice Department is tight-lipped about how prosecutors determine when to seek it. Department officials declined National Journal’s request for an interview, and several federal prosecutors were reluctant to speak on the record about what motivates them to use it. Dean Boyd, the spokesman for Justice’s National Security Division, which oversees terrorism matters, said, “The decision by federal prosecutors to seek [the] enhancement depends on the facts and circumstances of each particular case. Ultimately, it is up to a federal judge to determine whether or not to apply the enhancement at sentencing.”

The enhancement has outraged some defense lawyers and judges, who see it as a government shortcut to label criminals as terrorists and to punish them in extraordinary ways. A judge, not a jury, decides whether the enhancement applies, based on a threshold of evidence lower than reasonable doubt. The enhancement automatically elevates a defendant’s criminal history—a key factor used to calculate sentences—to the highest possible level. It directs judges to increase the sentencing range at least “12 levels,” which can add 20 years. A defendant convicted of a relatively minor crime could suddenly find himself serving prison time on par with a hardened offender.

“It’s a very onerous enhancement, so when it applies, it’s really devastating,” says James Felman, a criminal defense lawyer and national authority on sentencing guidelines.

And it’s not just the enhancement’s severity that worries some experts. Courts have ruled that a judge can apply it even if a defendant wasn’t convicted of a terrorism act per se. The government need only convince a judge that the crime in question was aimed at the government and that it “involved, or was intended to promote” a specific act of terrorism—even one that was never carried out.

Congressional Confusion

Congress created the terrorism enhancement, not surprisingly, in response to terrorism. As early as 1991, but particularly after the World Trade Center bombing two years later, lawmakers and the Clinton administration realized that crimes involving terrorism—even if the act itself was already covered by statute—needed to be identified in law as such and accorded stiffer punishment. They wanted to account for the severity of the offenses, particularly the indiscriminant killing of civilians, and to deter future acts.

At the same time, lawmakers wanted to carefully define what qualified as terrorism. They had their work cut out for them. For starters, there was no crime of terrorism on the books. There still isn’t: Congress instead sought tougher sentences for a range of existing crimes when they were motivated by terrorist impulses.

Motive has always been a key to defining terrorism. That is, in fact, how society distinguishes the crime from other violent acts, such as murder or arson. Motivation and intent are also key factors in determining sentences. So, in the mid-1990s, Congress ordered the Sentencing Commission, which promulgates the guidelines, to include an anti-terrorism factor in the sentencing phase that accounted for specific crimes and required a basic motivation to affect, influence, or retaliate against government conduct.

Lawmakers gave explicit instructions that the enhancement had to meet two tests. First, there was the government-focused motive of the crime. That was broad, to be sure, but then Congress narrowed things a bit. The enhancement had to apply to one or more specific offenses enumerated in a section of the U.S. Code covering “acts of terrorism transcending national boundaries.” This was, in effect, a master list that Congress wanted judges to use. Today, it contains more than 55 discrete offenses that qualify as terrorism when the requisite motive is present, including destruction of aircraft; use of biological and chemical weapons; the burning or bombing of government property in a way that risks or causes death; providing material support to terrorists; attacks on energy facilities; and assassinating the president.

In so doing, lawmakers wanted to ensure that judges would not apply the terrorism label too broadly. In its conference report on the anti-terrorism legislation that established the sentencing enhancement, the House Judiciary Committee signaled Congress’s intent: “In order to keep a sentencing judge from assigning a terrorist label to crimes that are truly not terrorist, and to adequately punish the terrorist for his offense, it is appropriate to define the term.”

Something, it seems, got lost in translation. The Sentencing Commission’s final version of the enhancement includes a key phrase that never appears in the congressional record: “ … involved, or is intended to promote, a federal crime of terrorism.” On the basis of those 11 words, judges have applied the enhancement broadly—perhaps more broadly than Congress

An enhancement for “international terrorism,” which had been on the books less than a year, did contain the phrase “involved or is intended to promote.” But there is no indication that Congress intended it to apply to the subsequent version that more specifically defined a crime of terrorism. Still, based on this arguably broader guideline, judges have consistently ruled that a defendant need not be convicted of one of the enumerated crimes of terrorism for the enhancement to apply, so long as the motivation is there. These judges have exhaustively researched the definitions of “involved” and “intended to promote,” pulling out case law, precedent, and even the dictionary.

A Landmark Case

The U.S. Court of Appeals for the 6th Circuit upheld this reading of the guidelines in a landmark enhancement case, which it decided only a few months after the September 11 attacks. Randy Graham, a Michigan marijuana farmer and member of the North American Militia, had been convicted of conspiracy against the United States, as well as various weapons and drug violations. Graham had plotted to launch a “first strike” on the U.S. government by attacking various communications, transportation, and energy facilities, and killing certain federal officials. A District Court judge applied the enhancement to one of his convictions—for an offense not contained in the list of terrorism crimes—finding that Graham intended to promote an act of terrorism by plotting to attack various federal facilities. (He never carried out the plan.) The underlying offense carried a maximum penalty of five years in prison; the judge boosted Graham’s sentence to 55 years.

In a vigorous dissent, Judge Avern Cohn said that Congress never intended for people not convicted of a crime of terrorism to be subject to the enhancement. Senators, in their final conference report, gave the Sentencing Commission clear instructions: The new provision was “applicable only to those specifically listed federal crimes of terrorism, upon conviction of those crimes with the necessary motivational element.” Cohn said he was at a loss to determine why the Sentencing Commission included “involved, or was intended to promote” in the final version, because Congress never instructed it to do so. As he saw it, the commission had gotten it wrong, and the judge who sentenced Graham had made the same mistake.

Cohn had no sympathy for Graham. He wrote that his disagreement on the enhancement issue “should not be considered in any way a denigration of Graham’s crimes or in any way an attempt to simply ameliorate the severity of his sentence.” But to apply the enhancement “effectively labels Graham a terrorist and his activity as displayed in the record as terroristic activity,” Cohn wrote. And that was “grossly contrary to the language…defining a ‘federal crime of terrorism,’ as well as the congressional intent to keep the definition narrow.”

Even with the shock of the attacks on the World Trade Center and the Pentagon still fresh, Cohn found little comparison with Graham’s conduct. “Graham’s actions depict grossly less offensive, and qualitatively different, conduct than that displayed on September 11, 2001.” Cohn added that Congress’s concern in drafting the enhancement was “much like the concern of the delegates to the Constitutional Convention of 1787 over the definition of ‘treason,’ that ‘terrorism’ being a phrase which carries far-reaching connotations … is not to be used indiscriminately and must be carefully defined.”

Critics of the terrorism enhancement have seized on this issue of congressional intent to argue that the courts have veered into forbidden territory. Whether Congress agrees is hard to gauge. The lawmakers and staff involved in creating the enhancement have either retired or taken new jobs. Several former House Judiciary Committee aides contacted by National Journal couldn’t recall the details of the proceedings. By all accounts, Congress hasn’t examined use of the terrorism enhancement since it created it more than a decade ago.

The Punishment and the Crime

Many lawyers who have argued against the law had never heard of it until their clients were facing long prison terms. Sometimes they won partial victories.

William Mason, a criminal defense lawyer in Columbus, Ga., represented Eddie Garey, who was convicted of making several telephone bomb threats involving buildings in Macon. (The trial was moved to Columbus, 100 miles away, because of extensive publicity.) Garey objected to the government’s recommendation that the terrorism enhancement be applied. It was a first for Mason, his court-appointed attorney. “We don’t get any terrorism cases in Columbus, Georgia,” he says.

A jury convicted Garey, whom Mason describes as “mentally ill,” of 27 counts arising from threats to blow up the Macon City Hall, a shopping mall, and a local television station. According to the indictment, over a nine-day period in September 2003, Garey called the threats in to the local 911 center, altering his voice and making demands for cash. Authorities traced the calls to Garey’s home and caught him in the act. “My client was arrested standing in the hallway of his house buck naked making a 911 call,” Mason says.

Garey’s presentencing report, prepared by a local probation officer, recommended the enhancement because he was convicted of a crime involving the use of a weapon of mass destruction—an enumerated crime of terrorism—and because evidence at trial showed that Garey attempted to influence the conduct of government. The requisite elements were all there. Garey already faced a lengthy sentence based on the seriousness of his crimes, but the enhancement elevated his criminal history to the highest level. The probation report recommended a life sentence.

U.S. District Judge Clay D. Land found that a life sentence technically fit the guidelines. But there was a bigger principle at stake, he said, namely the overarching law that sentences must be based upon “the nature and circumstance of the offense and characteristics of the defendant.” The law directs a judge to impose a sentence that metes out appropriate punishment but not one that is more severe than necessary. In Garey’s case, a life term was excessive, regardless of what the terrorism enhancement dictated, Land ruled.

“In this case, the guidelines increase the defendant’s offense by 12 levels [approximately 20 years] for conduct of which he was not convicted by a jury,” the judge found. Garey was “arguably being held criminally responsible for conduct for which he was not indicted.” Because of the enhancement, Land pointed out, Garey faced a harsher punishment for threatening to blow up a building than would someone who actually followed through on that threat. “A violation for ‘threatening’ to commit an offense of international terrorism … has a maximum sentence of 10 years. Yet, this defendant, who ‘threatened’ to bomb various public facilities, faces life imprisonment.” The judge continued, “It is also troubling that another defendant who carried out a threat to bomb public facilities, injuring and maiming (but not killing) thousands of people, would face the same sentence as this defendant who did not cause physical injury to a single person.”

Land said that elevating Garey’s criminal history to the highest level “ignores the individual ‘history and characteristics’ of the defendant, and instead places too much weight on a questionable interpretation of what constitutes a federal crime of terrorism under the guidelines.”

Land reduced Garey’s criminal history level to the middle range and applied a new sentence—30 years.

Mason, Garey’s attorney, says that there’s no doubt his client’s behavior was “terror-invoking.” But he thinks that the enhancement is not being applied the way that Congress intended. “They want to be able to punish the guy who helped the [9/11 hijackers] sign up for flight school,” Mason says. Garey, by contrast, is an obviously disturbed man who never carried out his threats.

At least one other court has also balked at the dramatic sentencing increases imposed by the enhancement. In July 2004, the U.S. Court of Appeals for the 11th Circuit ruled on the case of Imran Mandhai, an apparently confused would-be jihadist who, over the course of several months, committed to and then backed out of a plot to blow up electrical substations in Florida. Whether Mandhai—who was 18 at the time—really intended to wage war against the government, he never followed through. But in May 2002, the government charged him with conspiring to blow up the stations; Mandhai pleaded guilty in exchange for a reduced sentence.

Federal prosecutors sought the terrorism enhancement, and a judge found that it applied. But he also reduced Mandhai’s sentence because the crime was inchoate. The government appealed to the 11th Circuit, which found that the district judge had acted improperly in the way he reduced Mandhai’s sentence but that he was right to consider the totality of Mandhai’s actions when deciding to deviate from the enhancement’s harsh penalty.

“The terrorism enhancement prevents the penalty from fitting the crime, based on the facts of this record,” the court ruled. “It is easy to forget that the sentencing guidelines are merely that—guidelines. Any attempt to remove all judicial discretion in sentencing would raise serious concerns about the separation of powers.”

The judges remanded Mandhai’s case, and he ultimately received a 14-year prison sentence. Last October, the Supreme Court denied his petition for a hearing. To date, the high court has not heard a single case involving the terrorism enhancement.

A Winning Streak

Taken on their own, the passionate objections and deep concerns surrounding the terrorism enhancement might suggest that the government is having a hard time getting the law to stick. In fact, the opposite is true.

The review of publicly available cases shows that judges uphold the government’s request for an enhancement far more often than they deny it. Prosecutors obtained the enhancement in 27 of the 35 cases that National Journal reviewed—more than 75 percent. To be sure, in a number of those cases the defendants did not object to the enhancement. The Lackawanna Six, for instance, agreed that it would be applied as part of their guilty pleas, and they were spared the 20-years-plus sentences because they cooperated with federal terrorism investigations.

But the government clearly wins on the enhancement more times than it loses, even when defendants object. Despite the skeptical opinions expressed by Cohn, Land, and the judges on the 11th Circuit, most judges appear to have had little problem accepting the guidelines at face value. This isn’t a leap of faith on their part. When it comes to matters of statutory interpretation, judges follow the language of the rule they’re given: They use it for a crime that “involved, or was intended to promote, a
federal crime of terrorism.”

In Daniel McGowan’s case, District Judge Ann Aiken noted that several judges before her—including those in the Graham and Mandhai cases—had offered no contrary statutory interpretation. Aiken applied the enhancement to one of McGowan’s crimes and to others committed by six of his co-defendants. The environmental saboteurs had been rounded up as part of the FBI’s Operation Backfire, a multi-agency investigation of ELF and the Animal Liberation Front.

The enhancement became a central focus of the Backfire cases. Environmental activists accused the government of trying to brand the defendants as “eco-terrorists” to advance the Bush administration’s security agenda. Defense attorneys strenuously objected to the enhancement, which they felt could land their clients in maximum-security penitentiaries with the most hardened criminals.

Echoing the sentiments of other Backfire defendants, the attorney for Kevin Tubbs, who pleaded guilty to multiple counts of arson and conspiracy, noted that the saboteurs took great pains to ensure that no one was harmed in the course of their crimes. (ELF and ALF are fundamentally opposed to taking any life, animal or human, their supporters say.) “A terrorist’s goal is to cause death, because death is the ultimate tool. Death is the ultimate source of fear,” Marc Friedman wrote in a 31-page objection
to the enhancement. “The government, and in particular this administration’s, use of the term ‘eco-terrorism’ and their efforts to tie these actions to domestic terrorism is misplaced. It seeks to place the actions of a loose group of animal rights and environmental activists on par with Timothy McVeigh [who blew up the Murrah Federal Building] and Al Qaeda.”

Friedman cited Judge Cohn’s dissent in the Graham case, arguing that Congress and the Sentencing Commission didn’t envision applying the law to defendants such as Tubbs, “defendants with no long history of association with international terrorist cells.” He portrayed his client as a passionate yet easily persuaded and manipulated man who, for a short period, engaged in “wrongful activities” for which he accepted full responsibility.

Judge Aiken was unmoved by Tubbs’s argument and those of his co-defendants. In sentencing Tubbs to 12 years and seven months’ imprisonment, she said that he had used fear as a tool. “You have created fear, made people fearful in their workplaces and homes,” she said. “Fear and intimidation can play no part in changing hearts and minds in a democracy.” Addressing the larger group of defendants, Aiken lamented, “You all seem to be very smart people. Why couldn’t kindness have been your tool? Stop destroying the Earth to send a message.”

In sentencing the activists under the terrorism enhancement, Aiken insisted that she was not trying to send a message. “The issue the court must decide is not whether the defendants are ‘terrorists’ as the word is commonly used,” she wrote in a lengthy ruling. “Nor is it appropriate for the court to speculate whether the government seeks to promote a particular political agenda or to punish a particular form of activism in requesting the terrorism enhancement.… The debate is about the defendants’ criminal conduct—not their political beliefs.”

Prosecutors spent considerable time and energy securing the enhancement. They refused to take it off the table during plea negotiations, says Amanda Lee, McGowan’s attorney. But in the end, none of the defendants received more prison time. In fact, the government recommended reductions equal to the enhancement’s increases. The terrorism label stuck—and McGowan, as part of his plea, agreed not to appeal—but it had no real effect on the sentences.

The government has recommended reduced sentences, usually for cooperative defendants, in a number of other cases where it sought the enhancement. In still others, prosecutors have sought the enhancement only after a defendant reneged on an agreement to cooperate. This has led some analysts to conclude that it’s not always policy and principle that guide the government’s decisions on whom to treat as a terrorist.

The Bargaining Chip

Deborah Buckman, the lawyer who studied the use of enhancements, says she always suspected that the government had some motivation other than punishing terrorism.

“I felt, all the way through, that there’s got to be some game going on here,” she says. “It’s so outrageous that you can take someone who would get five to 10 years and sentence them for the rest of their lives.”
Buckman says she sees a pattern in the government’s often inconsistent application of the enhancement. “In the end, it really is just a bargaining chip,” she says. The threat of 20 years or more in prison is enough to compel almost any defendant to cooperate. Indeed, in the cases in which prosecutors sought the enhancement, but also offered sentence reductions, the defendants usually pleaded guilty and agreed to provide the government with information about their crimes or conspiracies.

When defendants renege on their agreements, case history suggests that the government punishes them by applying the enhancement stringently. Randy Graham, for example, initially agreed to cooperate with investigators and plead guilty to one count of conspiracy against the United States, which carries a five-year penalty. Graham’s co-conspirator, Ken Carter, who was the commanding officer of their North American Militia, pleaded guilty to the same charge in exchange for total cooperation with the government. In outlining the sentencing guidelines for Carter and Graham, prosecutors never mentioned the terrorism enhancement. It surfaced in Graham’s case only after he withdrew his plea and went to trial.

The first reference appeared in the government’s presentencing report after a jury found Graham guilty. Prosecutors—apparently without written justification—recommended that the enhancement be applied to not one but four of Graham’s offenses, three of which were not enumerated crimes of terrorism. The judge applied the enhancement to one of the unlisted crimes; Graham appealed, and the 6th Circuit Court’s ruling against him became a national precedent.

But what about Carter’s case? Likewise, the government never mentioned the terrorism enhancement until it submitted a presentencing report. But when the court used those recommendations to determine Carter’s punishment, it departed from the guideline range—that potentially 20-year increase—“because the count of conviction carries a five-year maximum statutory penalty.” Carter got a lesser sentence than Graham, even though he was the militia leader and their conspiracy crimes were the same. The court also recommended to the Bureau of Prisons “that [Carter] be placed in a less-secure facility than may be indicated by criminal history category VI,” the highest level, which the enhancement requires. “In fact, his true criminal history is I.”

Assessing the disparity in sentences between Graham and Carter, Judge Cohn questioned whether the government really thought either man was a terrorist. “Approving a plea agreement which limited [Carter’s] sentence to 60 months was a recognition of the fact that the district court did not believe that Carter committed a ‘federal act of terrorism,’ ” Cohn wrote. “The government also did not consider Carter a terrorist, as evidenced by his plea agreement. Likewise, the government did not view Graham as committing a ‘federal crime of terrorism’ until after it received the [presentencing report].”

Constitutional Stakes

The terrorism enhancement could open a veritable Pandora’s box of constitutional concerns, in light of recent Supreme Court rulings that judges need only consult the sentencing guidelines—they are no longer mandatory. Terrorism enhancement is applied at the judge’s discretion, says Bobby Chesney, an associate professor of law at Wake Forest University Law School, who specializes in national security issues. Because judges can choose when to use the enhancement, Congress’s intent when it crafted the law is less important, Chesney says.

Some experts say that a bigger question is whether a jury should decide when to apply the enhancement. In the landmark case U.S. v. Booker, the Supreme Court ruled that under the Sixth Amendment a jury must determine any facts that increase a criminal defendant’s sentence beyond the customary range for his or her particular crime—which is what the terrorism enhancement does. The standard of evidence is the same as at trial: beyond a reasonable doubt. However, the Court stopped short of requiring juries to review sentencing enhancements. Instead, the sentencing guidelines are now only advisory—judges still have to consult them, but they are no longer required to sentence defendants according to the ranges that the guidelines recommend. So far, judges have ruled that the terrorism enhancement requires a lower evidentiary threshold than reasonable doubt, and no jury has been involved in an enhancement decision. This uneasiness over judges, rather than juries, applying the sentencing law goes to the heart of the Supreme Court’s decision to hear Booker, as well as Washington v. Blakely, which concerned state sentencing guidelines. There, the Court ruled that judges couldn’t
enhance sentences based on facts that a jury didn’t decide.

Felman, the sentencing expert, notes that those rulings didn’t require juries to decide enhancements. Instead, they required sentencing judges to use discretion, and to keep in mind the nature of the crime. “They should not consider themselves bound to sentence within a range determined by the guidelines where it results in a sentence greater than what is necessary to achieve the purposes of punishment,” he says.

Looking to the future of the terrorism enhancement, Felman and other experts ponder the possibilities. In the wake of an event on the scale of 9/11, might prosecutors use the enhancement to label more people as terrorists, or to punish a wider variety of offenses that they believe were “intended to promote” violence against the government?

“Absolutely,” Felman says. “There aren’t too many examples in our history of prosecutors not using power given to them.

“A line prosecutor doesn’t need to get anyone’s permission to go ask for an enhancement. They just do it,” Felman says. That’s problematic, he thinks, when grappling with a concept as amorphous as terrorism. “The word terrorism is kind of a dangerous one,” Felman says. “It’s just inherently going to result in some unfair applications. Any time you have an adjustment that is that large, the potential for abuse is great.”

Reporting Interns Alexander Burns and Candace Mitchell contributed to
this article.

Published in National Journal.