Update: Idaho bill redefining ‘domestic terrorism’ won’t move forward

UPDATE (March 1, 2024): Lawmakers introduced a revised version of the “domestic terrorism” bill in February. A House committee was split on advancing the bill on Friday, March 1. After two tied votes, the bill will not be sent to the House floor.

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Idaho lawmakers have introduced bills that civil rights organizations say weaken state laws aimed at combating homegrown, organized violence and extremist groups.

The two bills would remove Idaho’s ban on private armed militias and institute a definition of “domestic terrorism” that excludes most American groups conducting organized violence.

Senate Bill 1220, from Senate Majority Leader Kelly Anthon, R-Burley, would add a definition for “domestic terrorism” but would require such activities to be “done in cooperation with any foreign terrorist organization,” according to the bill. The legislation would also add a similar requirement for the definition of “terrorism.”

Anthon told lawmakers that his motivation for introducing the bill, which has failed to pass in three prior years, is to prevent Americans “exercising their rights” from being labeled as domestic terrorists.

Anthon noted a controversy in 2021, when the National School Boards Association sent a letter to President Joe Biden asking him to look into threats and intimidation of school board members. Threats against local elected officials rose in prevalence amid fierce debates about school curricula and COVID-19 policies. The association said at the time that some of the threats could be classified as domestic terrorism, and the U.S. attorney general later issued a memorandum that federal law enforcement would investigate criminal behavior directed at school staff members.

Anthon said the bill would prevent federal authorities from telling a local sheriff that a person who has not been charged or gone to trial is a domestic terrorist, and “you need to go round him up.” Anthon did not provide examples of Americans being labeled domestic terrorists and arrested without cause, but told the Idaho Statesman “you don’t have to be put in prison to have your life ruined by a label of domestic terrorism.”

“I think there have been policy decisions, particularly on the part of the federal government, that threaten our rights as American citizens,” Anthon told a legislative committee.

Civil rights groups: Bill erases meaning of domestic terrorism

Amy Marshak, legal director of the Institute for Constitutional Advocacy and Protection at Georgetown Law, said that the altered definition of domestic terrorism flips the federal definition “entirely on its head.”

While federal law can punish people for providing “material support” to a foreign terrorist organization, there is no comparable crime for domestic terrorism. But federal law nonetheless defines domestic terrorism, and the term can be used to increase the sentence of a person convicted of a related crime.

The federal definition of “domestic terrorism” includes acts that are “dangerous to human life” and appear to “intimidate or coerce a civilian population,” “influence the policy of a government by intimidation or coercion,” “affect the conduct of a government by mass destruction, assassination, or kidnapping” and occur primarily within the U.S.

Homegrown extremist groups could still potentially be penalized under Idaho’s Terrorist Control Act for “conspiring” to injure or threaten other citizens, Marshak said. But the proposed changes would make organized violence from groups like the Ku Klux Klan or the neo-Nazi group Aryan Nations, which was based out of North Idaho, subject to the statute’s lowest penalties — up to 10 years in prison versus up to life in prison — because they would no longer meet the definition of “domestic terrorism.” Only if the violence were in coordination with a foreign extremist group would the law’s harshest penalties apply.

“It would really fundamentally alter that law” and “turn it into the opposite definition from what it is generally understood as,” she said. In doing so, it would restrict “the prohibitions on dangerous, violent behavior that have been prohibited in Idaho for a long time now.”

The bill would also rescind a provision in the law aimed at combating “civil disorder” through organized violence that has been a part of Idaho law since the 1980s. Twenty-six states have laws on the books that prohibit such “civil disorder,” which the Anti-Defamation League, an organization founded in the early 1900s to combat antisemitism, pushed for to combat extremist violence. Idaho passed its own law in the late 1980s, when state officials were hoping to restrict the Aryan Nations. A splinter group later assassinated a Jewish radio host in Denver and bombed a synagogue.

“It’s stunning to me that we’re 40 years away and our memory is so short,” Stephen Paolini, the ADL’s associate regional director for the Pacific Northwest, told the Statesman. “This statute was designed to address groups like the Aryan Nations.” He added that the ADL has tracked a rise in extremist violence in recent years.

He said the altered definition would not only be inconsistent with federal law but also other law enforcement entities nationwide, which acknowledge terrorism grown in the U.S.

“You’re really just saying there is only one kind of terrorism, and it’s foreign terrorism,” he said.

Anthon specified that, in cases where extremist organizations like white supremacist groups commit organized violence, other state laws already criminalize that behavior.

Paolini argued that terrorism statutes are designed to bring additional penalties to bear on efforts to dismantle the government, or to terrorize minority groups, which the law change would undo.

Republican lawmakers Friday voted to recommend the bill’s passage and moved it to the Senate floor. Sen. Melissa Wintrow, D-Boise, opposed the recommendation, while Senate Minority Leader James Ruchti, D-Pocatello, supported it “with some reluctance.”

Idaho bill would allow private militias

At the same committee meeting, Sen. Dan Foreman, R-Viola, introduced a bill to repeal Idaho’s prohibition on private militias.

The law forbids a “body of men” outside of the government from associating “together as a military company or organization, or parade in public with firearms in any city or town of this state,” but the law is currently not enforced, according to previous Statesman reporting.

Foreman, who introduced a similar bill last year that failed, said he thinks the law infringes on Americans’ constitutional rights to bear arms and peacefully assemble.

“Freedom of assembly is a right that is not predicated on the citizens’ agreement to refrain from carrying firearms,” he said.

“If we try to limit constitutional rights for anybody … to enhance safety, we take the first step down the road where someday none of us will have constitutional rights,” Foreman said.

Senate Pro Tem Chuck Winder, R-Boise, said he wants to explore ways of implementing an “enhanced crime” when gun-toting bands intimidate groups of peaceful protesters.

Ruchti said he thinks that First Amendment rights of free speech and assembly can be threatened by guns and therefore can conflict with the Second Amendment.

“That’s what concerns me, is we’re somehow equating them,” he said. “We’re somehow saying that they can be used simultaneously when I don’t think that’s accurate. I just don’t think they mix well.”

Wintrow was the lone no vote on introducing the bill to the Senate.

Paolini, of the ADL, said his organization also had serious concerns about repealing the militia prohibition and pointed to an instance in 2022 when members of a far-right organization called the Patriot Front were arrested after descending on a Pride parade, many with shields and shin guards, according to The Lewiston Tribune. Some of those arrested have been convicted of conspiracy to riot.

“When groups are acting that way, particularly when they have these kinds of long-term, violent movements behind them, it really runs the risk of creating conditions for really serious violence in our communities,” he said.