Why accused Brooklyn subway shooter Frank James can be tried as a terrorist

It’s a terrible fact of modern life, in this era of progressive anti-prosecution derangement, that when horrific violence occurs, one of the first things we wonder is whether the perp will be back on the street in short order due to the state’s lunatic “reform” laws.

That won’t happen with Frank R. James, the accused subway gunman whose case is being prosecuted federally, under the authority of US terrorism laws.

After the World Trade Center was bombed in 1993, and again after the Trade Center complex was destroyed in the 9/11 attacks, Congress made sweeping changes to anti-terrorism laws. This is why I always roll my eyes when Democrats theatrically pine that we need a “domestic terrorism” law. James’ prosecution is a case in point: There is no act of domestic terrorism that cannot be very effectively prosecuted by the Justice Department using the laws that are already on the books.

Generally speaking, terrorism is the use or threatened use of force in order to intimidate a civilian population and/or extort its government into changing policies. That is to say, motive is usually very important.

Alleged subway shooter Frank James has been hit with terrorism charges by federal prosecutors.

Nevertheless, there are some acts that are so patently efforts to make war on a population and its government that this motivation can fairly be assumed. One such special category of terrorist action is attacks on mass transit systems. Such attacks involve the potential of thousands of casualties, as well as the crippling of an urban center on which our nation relies for its commerce and prosperity.

Consequently, Congress has made such attacks a federal terrorism crime, carrying a potential of life imprisonment — or even death if death results, which fortunately did not happen in the Brooklyn mass shooting. Although the use of force and dangerous weapons are the hallmarks of terrorism, the trigger for federal jurisdiction over crimes tends to be the Constitution’s commerce clause, which empowers Congress to regulate facilities that are part of, or affect, interstate commerce. The clause also comes into play when criminals cross state lines with weapons and other implements used to facilitate their violent activities

To establish the terrorist offense that federal prosecutors in Brooklyn have charged against James, the government need not prove a particular motive beyond a reasonable doubt.

Brooklyn subway shooting

Attacks on mass transit systems can bring lifetime imprisonment or the death penalty.

Mass transit systems like New York’s uniquely vast and intricate subways, which connect to train and PATH lines, are innately facilities in interstate commerce. James, who has apparently been living in Milwaukee and Philadelphia, allegedly traveled to New York in a U-Haul he rented in Philly, transporting a Glock handgun that he purchased in Ohio — an apparent effort to obliterate the serial number was unsuccessful, so the weapon was easy for the feds to trace.

The evidence against James appears overwhelming, but he will get his day in court just like every American accused of a crime. All New Yorkers and all Americans, especially the victims of the heinous shooting rampage, are fortunate that that day will come in federal court, under strong terrorism charges.

Andrew C. McCarthy is a former federal prosecutor.



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