Should Tiller's Assassin Be Charged As A Domestic Terrorist?
By Lindsay Beyerstein, RH Reality Check
July 21, 2009 - 10:00am
Readers may find a wide range of stories on Dr. Tiller's assassination, the reasons Dr. Tiller was highly regarded by both the patients (women and men) he served as well as by health providers throughout the country; the lives of women he saved; and analyses of the facts, politics and issues raised by late abortions. These links provide only a sampling of the many related articles that can be found on our site through use of the search function.
The assassination of abortion provider George Tiller appears to meet the legal definition of domestic terrorism under the U.S. Criminal Code, yet the U.S. Department of Justice (DOJ) has given no indication that it is considering charging his alleged assassin, Scott Roeder, with terrorism. Many in the pro-choice community wonder if the Justice Department would be so tentative if Roeder and his allies professed to be Muslims instead of Christians, yet many also are reluctant to see him labeled a domestic terrorist.
The Justice Department announced on June 5 that it was investigating whether Tiller's shooting violated any federal laws, including the Free Access to Clinic Entrances Act (FACE), a bill signed into law by President Bill Clinton in 1994 that makes it a federal crime to harm or threaten an abortion provider, vandalize a facility that provides abortions, or obstruct access to a reproductive health clinic.
Asked if the Justice Department had ruled out terrorism charges, DOJ spokesman Alejandro Miyar replied, "No, I wouldn't say that we're ruling out any federal charges." However, DOJ's public pronouncements to date suggest that potential violations of FACE are the agency's primary focus. In response to further queries from RH Reality Check, Miyar passed on a summary of the FACE Act and declined further comment.
After white supremacist James Von Brunn allegedly shot and killed a security guard at the U.S. Holocaust Memorial Museum just days after Tiller's slaying, Joseph Persichini, assistant director of the Washington field office of the U.S. Federal Bureau of Investigation (FBI), told the media that the guard's murder was an act of domestic terrorism. Yet when RH Reality Check asked the FBI whether the Tiller shooting was domestic terrorism, FBI spokesperson Susan McKee replied, "The FBI is not in a position to comment on the status of this investigation."
A month after Tiller was murdered, on July 1st, self-styled radical Islamist Corey Bledsoe shot two soldiers at a recruiting station in Little Rock, Arkansas. He said he did it in the name of Allah. He was promptly charged under Arkansas law with murder and with engaging in a terrorist act. Yet, like Bledsoe, Roeder and the Army of God believe that their Christian god compels them to "defend the unborn" with violence.
Prosecuting Roeder for domestic terrorism would signal that the government is "connecting the dots" on anti-choice extremism, terror and intimidation of legal medical services provided to women.
However, many civil libertarians and reproductive rights activists worry that charging Roeder as a domestic terrorist would legitimize a trend towards criminalizing entire groups based on ideology or affiliation, as opposed to zeroing in on those who actually commit crimes. They argue that the criminal justice system is already well equipped to deal with those who cross the line from inflammatory but constitutionally protected rhetoric to violent or disruptive behavior.
No one is more aware of threat of violent anti-choicers than Pam Chamberlain, a senior research analyst at Public Eye, a Massachusetts think tank that monitors the far right. Chamberlain specializes in keeping tabs on anti-abortion extremists. She has no doubt that doctor shooters and clinic bombers are domestic terrorists in the layman's sense of the word. Yet she is also concerned that labeling anti-choice extremists as terrorists might open the door to infringements upon civil liberties.
Since 9/11, much of the legal thinking on terrorism has been predicated on the assumption that terrorist groups like Al Qaeda are effectively foreign freelance armies at war with the United States. Bush administration officials used the war model to argue that alleged terrorists were more like soldiers in a war than suspects accused of crimes. The war model led some people to think that spying on alleged terrorists and their associates was equivalent to spying on enemy soldiers on the battlefield, as opposed to investigating allegations against citizens who are innocent until proven guilty. Even if you think the war model should apply to foreign terrorist groups at war with the United States, it's hard to see how it can be applied within the United States without putting everyone's civil liberties at risk.
"If you start applying those kinds of tactics to law enforcement to investigate what we consider a domestic terrorist from the point of view of reproductive justice, the government may apply the tactics to other people they may not agree with. It's a dangerous prospect," Chamberlain says.
That's not just a theoretical possibility. Animal rights activists convicted of non-violent offenses under the controversial Animal Enterprise Terrorism Act have been detained alongside alleged Islamic terrorists in closely guarded domestic prison facilities known as Communication Management Units in an attempt to limit their contact with media and their families. The ACLU warns that the AETA criminalizes not only violence in the name of animal rights but also non-violent, constitutionally protected activities like boycotts and leafleting intended merely to hurt the bottom line of an animal-related business.
Civil libertarians stress that there are already powerful laws on the books that could be used to crack down on anti-choice violence if the government were willing to allocate the resources. In fact, there is reason to believe that Tiller's assassination could have been prevented if the FBI had vigorously enforced the FACE Act.
According to an attorney who worked in the DOJ's Civil Rights Division under Clinton, the immediate impetus for FACE was a series of massive blockades in the early nineties. Hundreds of protesters would converge on clinics--including Tiller's--and block the doors with their bodies.
"Normal operations ground to a halt," the official recalled. "We were opening up separate police areas just to process these people. There were arsons and bombings. Murders. Butyric acid attacks."
Before FACE, blockading a clinic was a minor offense under local laws, but FACE made interference with clinics or providers punishable by up to a year in jail for a first offense.
In the week before the shooting of Dr. Tiller, Roeder attempted to obstruct access to a clinic by gluing its locks. Clinic vandalism is also illegal and considered a federal crime under FACE. The manager of a Kansas City abortion clinic told Amy Goodman of Democracy Now! that he called the FBI a week before the shooting to report that Roeder had been caught on tape vandalizing the clinic. According to the manager, an FBI agent didn't act, saying that the video was probably too blurry to get a conviction and that the manger had contaminated the DNA evidence by touching the lock. The manager said he went out and bought a brand new color video camera. The day before the shooting he called the FBI again to say that a nurse had caught Roeder in the act, even copying down his license plate number: 225 BAB. The FBI still didn't act. The next day, Roeder drove to the Reformation Lutheran Church and shot George Tiller in the face.
Even if FACE were applicable, it wouldn't necessarily preclude domestic terrorism charges. So, the question remains why DOJ and FBI are so reluctant even to discuss the possibility. No doubt the decision would be extremely controversial. Given what we know so far, it seems as if DOJ would have a good case if it chose to pursue domestic terrorism charges, but it's not clear that this strategy would make it any easier to punish Roeder or trace his links to other anti-choice extremists.
Under federal law, an offense must meet three criteria in order to count as an act of domestic terrorism:
- It must be a lethal or potentially lethal violent crime;
- The violence must appear to be intended to coerce a civilian population or influence the government; and
- The crime must take place in the United States.
By those standards, a terrorism charge would appear to be an option for Roeder. After all, Tiller was a nationally prominent abortion provider and longtime bête noire of the anti-abortion movement. Roeder has a 20-year history of anti-choice and anti-government activism.
Roeder has a number of troubling associations with other radical anti-choicers. He is even corresponding from prison with Rev. Donald Spitz, a leader of the Army of God (AOG), a shadowy network of anti-choicers that explicitly endorses the killing and maiming of abortion providers. The AOG published an encyclopedic how-to guide for terror tactics that included instructions for bombing, arson, staging car accidents and even destroying buildings with chemical demolition agents. AOG members have been convicted of crimes ranging from arson to murder. Another AOG member, Shelley Shannon, is still in jail for shooting Tiller in 1993. Shannon got her start blockading Tiller's clinic with Operation Rescue.
At the time of his arrest, Roeder had in his car the phone number of the senior policy advisor for Operation Rescue Wichita (ORW), Cheryl Sullenger who admits that she gave Roeder the dates and times of Dr. Tiller's court appearances. Sullenger herself was convicted of conspiracy to bomb a California abortion clinic in 1988, though she claims to have since renounced violence.
ORW has taken pains to distance itself from Roeder. But that didn't stop the group's president Troy Newman from floating the idea of buying Tiller's shuttered clinic.
Operation Rescue's founder, Randall Terry, is just one of many anti-choice leaders who "denounced" the killing out of one side of their mouths while underscoring he "reaped what he sowed" out of the other, giving what could only be considered a coded message to their supporters.
Terry was back in the headlines this week when he all but threatened violence if Supreme Court nominee Sonia Sotomayor is confirmed. "Let all those in government be warned: They cannot order people to pay for the murder of babies, and betray God Himself, without horrific consequences," Terry's press release said.
Of course, he went on to stress that he personally doesn't condone apocalyptic violence.
He's just sayin'.
Maybe Roeder acted alone, but he clearly has many supporters and Kansas's authorities aren't taking any chances. Prosecutors in Wichita convinced a judge to raise Roeder's bond from $5 million to $20 million. A deputy district explained to a Wichita TV reporter that she asked to have the bond increased "based on the very public nature of this and the activist groups, if you will, that might be willing to assist in posting the bond and/or assist in helping Mr. Roeder escape the consequences of moving through a court system."
Charging Roeder with terrorism would pack a powerful rhetorical punch, but practically it's unlikely to affect his fate much. He is already charged with first-degree murder under Kansas state law. If he is convicted, as he almost certainly will be, he will spend the rest of his life in prison.
It's all very well to debate these issues at a safe distance. But what do the providers on the front lines have to say about preventing clinic violence? Jen Boulanger is the Executive Director of the Allentown Women's Center, a Pennsylvania clinic that provides abortions and other reproductive health services. After Tiller's assassination she published a widely read essay entitled "Come Together to Prevent My Murder" in which she described a rising tide of hostility from the protesters outside her clinic. One protester likes to drop hints about ammonium nitrate, a key ingredient in the bomb Tim McVeigh used to blow up the federal building in Oklahoma City. The Army of God pickets her home on a regular basis. People call her a baby killer and predict that she and her husband are going to hell together.
Re-labeling violent protesters as domestic terrorists wouldn't do much to stop the day-to-day harassment endured by clinic workers. That Roeder wasn't stopped after two acts of vandalism shows that what's lacking is methodical enforcement of existing laws that might thwart disruptive and threatening protesters before they become violent. Boulanger wants the federal government to work more closely with state and local authorities to enforce FACE and other laws routinely flouted by violent protesters, including laws against stalking, trespassing, and disorderly conduct. All levels of law enforcement need to establish a clear plan for responding to incidents at clinics, she says.
"Without clear guidelines and strict enforcement, prevention efforts will fail," Boulanger wrote in an email to RH Reality Check, "There need to be more deterrents for aggressive behavior."
Some pro-choice groups are working now toward this end. NARAL is urging President Obama to support DOJ's National Task Force on Violence Against Health Care Providers in its efforts to work with state and local authorities to enforce FACE.