The Thinnest Place: A Designation Architecture Without an Offense, and the Reasonableness of Fear

Abstract

Federal law defines domestic terrorism but creates no offense of domestic terrorism. What the definition supports is a sentencing enhancement and a set of investigative authorities, which means the label attaches without ever being submitted to a jury and therefore without ever being subject to acquittal. Federal law likewise provides no mechanism for designating a domestic organization a terrorist organization, though an executive directive has instructed the Attorney General to propose such designations. This article traces where an architecture built on an unchargeable label operates first, and argues that the answer follows from Fourth Amendment geography: it operates at the border, because that is the point at which a citizen’s protection against search is thinnest and the Eleventh Circuit requires no suspicion of any kind. A prosecution arising from an Atlanta airport encounter supplies the worked example. The article then identifies a second problem the same architecture creates. Whether a person was seized, whether an encounter was custodial, and whether consent was voluntary are each measured by what a reasonable person would believe, and each test assumes a background in which fear of federal officers is unreasonable absent particularized threat. Where a government has generated a documented record of lethal force against citizens and has publicly characterized political opposition as terrorism, that assumption fails, and a doctrine that continues to apply it transfers the cost of the government’s own posture onto the individual who felt its effect.

Keywords

• domestic terrorism designation
• unchargeable label
• border search exception
• objective reasonableness
• consent voluntariness
• custody analysis
• political association
• Joint Terrorism Task Force
• executive directive
• reasonable person standard
• state legitimacy baseline
• associational surveillance