Bomb-Making Online: Explosives, Free Speech, Criminal Law and the Internet

CRS Report for Congress
Bomb-Making Online:
Explosives, Free Speech,
Criminal Law and the Internet
September8,2003
CharlesDoyle
Senior Specialist
American Law Division

Congressional Research Service ˜ The Library of Congress

Bomb-Making Online: Explosives, Free S peech,
Criminal Law and the Internet
Summary
Subsection 842( p ) o f title 18 of the United S tates C ode outlaws teaching,
demonstrating, or distributing i nformation o n h o w to make or use ex plosives,
destructive d evices, o r weapons of mass destruction either when the o ffender i ntends
the i nstruction or i n f o r m a t i o n t o be used t o commit a federal crime of violence or
when the offender knows that person to whom the instruction or information has
been gi ven i ntends to use i t t o a commit a federal crime of violence.
Passage stretched over t hree Congresses, delayed i n p art b y First Amendment
concern s , but ultimately bolstered by submission of the J ustice Department report.
T h e report concluded t hat t errorists’ “cookbooks” were readily available – o n t h e
In ternet and elsewhere; t hat t he inform ation h ad been and would continue to be used
for criminal purposes ; t hat ex i sting federal law provided i ncomplet e coverage; and
that a l egis l a tive fix would b e possible without offending Fi rst Amendment free
speech pri n ci pl es.
Fi rst A mendment concerns centered o n t he Supreme C ourt’s Brandenburg
deci si on whi ch com e s w i t h a requi rem ent t h at any p roscri pt i o n o f t he advocacy of
crime must be limited t o cases where i ncitement is intended t o be and is likel y t o be
act ed upon imminently. S ubsequent judicial developments have been thought to
suggest greater flex ibility where t he advocacy takes t he form of instructing p articular
individuals in the commission of a s pecific o ffense.
C o m p l em ent ary federal offenses i n cl ude bans on instruction i n t he use of
ex plosives in furtherance o f a civil d isor der and on providing material assistance to
terrorists and terrorist organiz ations. Moreover, federal l aw outlaws aiding and
abetting, or conspiring to commit any federal crime, or soliciting another t o commit
any federal cri m e of vi ol ence. Bom b -m aki n g i nst ruct i o n m i ght be part and p arcel of
ai ding and abetting, conspiring to commit, or soliciting t he commission of a number
of underlyi ng federal crimes i nvolving the misuse of ex plosives or weapons of mass
destruction.
This report i s available i n an abridged version – without footnotes or appendix
as CRS Report R S21616, Bombs On L ine: An Abridged S ketch of Federal C riminal
Law.

Contents
In troduction ..................................................1
Overview of Subsection 842(p) ...................................2
PathtoPassage ................................................5
FirstAmendmentConsiderations .................................8
ComplementaryProhibitions ....................................13
Appendix ...................................................16
ComplementaryOffenses ...................................16

Bomb-Making Online: Explosives, Free
Speech, Criminal Law and the Internet
I ntr oducti on¹
W ithin hours o f t he tragedy i n O klahoma C ity, t he recipe for concocting a
similar homem ade bomb had been p o s t e d on t he Internet .² There followed an³
outpouring o f ex p losives “cookbooks” and ot her “how to” m anuals of destruction.
This in turn triggered apprehension over how such potentially lethal information
might be used by hate groups and o ther terrorists as well as b y j u v e niles with
ex aggerat ed fi recracker fasci n at i ons.⁴
In response, C ongress ultimately passed 1 8 U.S.C. 842(p)(2) which outlaws
instruction i n m aking or use of bombs (A) with the i ntent t hat t he informat i o n be
used to commit a federal crime of violence⁵ or (B) with the knowledge t hat another

¹ T his report was prepared with the assistance of Is a a c Na t t er, a summer l aw clerk i n t he
American Law Division.
² Rome r o , Terror i n Oklahoma City: Explosives Recipes Fill Books, Cyberspace . . . L^OS
A^NGELES T^IME^S 26 (April 23, 1995); see also, The Availability of Bomb-Making
Information on t he Internet: Hearing Before the Subcomm. on Terrorism, Technology , and
Gov e rnment Information of t he Senate Comm. on the J udiciary , 104th Cong., 1st Sess. 2
(1995)(statement of Sen. Specter)(the hearings were originally announced and convened as
Mayhem Manuals on t he Internet , but neve r printed under t hat caption).
³ C a rnahan, Stores Increase Stock of Books on Killing, Bombs . . . ,R^OCKY M^OUNTAI^N
N^EW^S , 4A (Feb. 12, 1996); Romero, Terror i n Oklahoma City ...There's NoSecret to
Making a M urderous Bomb, J ust Browse i n a Bookstore, or Surf t he Internet ,L^OS A^NGELES
T^IME^S, 26 ( April 23, 1995).
⁴ The Availability of Bomb- M a k i n g I n f o rmation on t he Internet: Hearing Before the
Subcomm. on Terrorism, Technology , and Gover nment I nformation of t he Senate Comm.
on the J udiciary , 104th Cong., 1st Sess. (1995); Bosworth, Teen Bomb-Builder Lost Fingers
. . . H e G o t Plans From Internet, Police Say ,S^T.L^OUI^S P^OST -D^IS^P^A^T^C^H, 16A (Dec. 11,
1996); Horiuchi, BombBuildingMade Easy on theInternet...BombMaking: TeensLearn
on Net Step by Step,S^ALT L^AKE T^RI^BUNE , A1 ( Aug. 11, 1996); Scheets, Derwood Teen-ager
Held on Bomb Charges ,W^ASHI^NGTON T^IME^S, A10 (Feb. 15, 1997); Susma n, Hate, M urder
and Mayhem on the Net ,U.S.N^EW^S &W^ORLD R^EP^ORT 62 (May 22, 1995).
⁵ “It s hall be unlawful f or any person – ( A) to teach or demonstrate t he ma ki ng or use of a n
explosive, a destructive device, or a weapon of mass destructio n , or to distribute by any
means i nformation pertaining t o, in whole or i n part, the manufacture or use of an explosive,
destructive device, or weapon of mass destruction, wi t h t h e i ntent t hat t he teaching,
demonstration, or information be used f or, or i n f urtherance of, an activity that constitutes
a Federal crime of violence,” 18 U.S.C. 842(p)(2)(A).

intends to use t he information t o commit a federal crime.⁶ This is a brief ex amination
of th e l e g i s l a t i on, of the p rocess t hat l ead to its enactment, o f First Amendment
issues , and of other rel at ed federal criminal laws that pro s cri b e t he dissemination,
particularly by means of t he Internet , of des tructive i nformation.
Overvi ew of Subsection 842(p)
The elements o f t he two cr imes p roscribed i n 18 U.S.C. 842(p) (2) might be
parsed as fol l o ws:
I. It is unlawful for
A.anypersonto
B.(1)teachor
(2) d em onst rat e o r
(3) distribute by any means i nformation pertaining i n whole
orinpartto
C.(1)makingor
(2)using
D. (1) an ex p losive or
(2) des tructive device or
(3) weapon of mass destruction
E. with the i ntent t hat
(1) t he t eachi n g, dem onst rat i o n o r i nform at i o n b e u sed
(a)foror
(b) i n furt h erance of
(2) an activity that constitutes a federal crime of
violence
II. It i s u n l a w f u l f o r
A.anypersonto
B.(1)teachor
(2) d em onst rat e o r
(3) distribute by any means i nformation pertaining i n whole
orinpart
C.toanyperson
D.(1)makingor
(2)using
E. (1) an ex plosive or
(2) des tructive device or
(3) weapon of mass destruction

⁶ “Itshall beunlawfulfor anyperson... (B) to teach or demonstrate t o a ny person the
maki ng or use of an explosive, a destructive device, or a weapon of mass destruction, or to
distribute t o any person, by any means, informa tion pertaining t o, in whol e o r i n part, the
manufactur e or use of an explosive, destructive device, or weapon of ma ss destruction,
knowing t hat s uch person i ntends to use t he teaching, demonstration, or information f or, or
in furtherance of, an activity that constitutes a Fe d e r a l c r i me of vi olence,” 18 U.S.C.

842(p)(2)(B).

“Anypersonwho...(2) violates subsection(p)(2)ofsection842, shall be f ined under
this title, i mprisoned not more than 20 years, or both,” 18 U.S.C. 844(a).

F. knowing s uch p erson i ntends
(1) t o u se t h e t eachi n g, dem onst rat i o n o r i nform at i o n
(a)foror
(b) i n furt h erance of
(2) an activity that constitutes a federal crime of
violence.
The s tatute imposes potential criminal liability on “any p erson,” that is, o n any
indivi d u a l as well as any nongovernmental, l egal entity.⁷ The p rohi bi t ed t eachi n g,
dem onst rat i n g o r d i s t ri but i n g o f i nform at i o n m ay be accom p l i s hed b y m eans o t h er
t h an t h e Int ernet , but i t seem s cl ear t h at In ternet distri b u t i o n i s covered. In other
contex ts, “distribution” has b een constr ued t o i nclude electronic d istribution ( e.g.,e-
mail).⁸ Perhaps m ore t o t he point, u se of the Internet as a means o f d istribution was
the focal point o f C ongressional d iscussion throughout its legi slative h istory.⁹
Although t he prov i s i o n e x p licitly refers to only t wo types of i nstructions – how to
make or how to use ex plosives and t he like, a cour t might conclude that the
prohibitions include instructions on where and how to obt a i n t he necessary
ingredients o r o n m ethods of escape following the forbidden u se. In any event, the
other elements having been satisfied, s uch i nstructions are likel y t o be prosecutable
either as conspi r acy, 18 U.S.C. 844(n), or as aiding and abetting, 18 U.S.C. 2,
doctrines discussed at greater length below.
The p rovisions borrow t he somewhat overl apping definitions of “ex plosives,”
“destructive d evices,” and “weapons of mass d estruction” from ex i sting l aw, 1 8
U.S.C. 842(p)(1). In doing so, t hey adopt the ex p ansions, contractions, and
duplications found there. The e x p losives d efinition, for i nstance, includes fire

⁷ 1 U.S.C. 1 ( “In determi ning the meaning of a ny Act of Congress, unless t he context
indicatesotherwise...the words‘person’ and‘whoever’ include corporations,companies,
associations, f irms , partnerships, societies , a n d j o i nt stock companies, as well as
indivi duals”); Will v. Michigan Dept. of State Police, 491 U.S. 58, 61 (1989)(“in common
usage, the t erm ‘ person’ does not include the s overeign, and statutes employing t he word are
ordinarily construed t o exclude it”).
⁸ United States v. Simmons , 262 F.3d 468, 471-72 (5th Cir. 2001). Because the provi sion
in question once called f or a s entencing enha n c e ment f or distribution of pornography
including distribution for pecuniary gain, Simmons and s everal other cases involving Internet
distribution f ocus on whether t he enhan cement c ould be i mp o s e d o n l y i n t he face of
distribution f or ga in, an i ssue t hat has only s urfaced under t he sentencing guidelines in
pornography cases, United States v. Brown, 333 F.3d 850, 853-54 (7th Cir. 2003); United
States v. Probel , 214 F.3d 1285, 1290-291 (11th Cir. 2000); United States v. Hibbler , 159
F.3d 233, 237-38 (6th Cir. 1998).
⁹ 145 Cong.Rec. H6771 (daily ed. Aug.2, 1999)( r e ma rks of Rep.McCollum)(“With the
Internet, i t has become all t oo easy t o dissemi nate bomb-maki ng information t o anyone with
a personal c omputer ”); 142 Cong.Rec. S3448 (daily ed. Apr.17, 1996)(rema rks of
Sen.Biden)(“We have all heard about the bone-chilling i nformation making its way over t he
Internet, about explicit instructions about how to detonate pipe bombs and even, if you can
believe it baby food bombs. Senator Feinstein quoted an Internet posting t hat detailed how
to build and explode one of these t hings”).

bombs.¹⁰ Dest ruct i v e d evi ces on t h e o t h er hand are d efi n ed t o i n cl ude ex pl osi v es and
incendia r i es but ex clude those t hat are not design ed to be used as weapons.¹¹
Destructive d evices are also weapons of mass d e s t r u c tion along with chemical,
nuclear, and biological weapons.¹²

¹⁰ “[T ] he term ‘explosive’ means gunpowders, powders used for blasting, all f orms of high
explosives, bl a s t ing materials, f uzes (other than electric circuit breakers), detonators, and
other detonating a ge nts, smokeless powders, other explosive or i ncendiary devices within
the meaning of paragraph (5) of s ection 232 of this title, and any chemi cal compounds,
mechanical mi xture, or devi ce that contains any oxidizi ng and combustible units, or other
ingr edients, in such proportions, quantities, or packing t hat i gnition by f ire, by friction, by
concussion, by percussion, or by detonation o f t he compound, mi xture, or devi ce or any part
thereof may cause an explosion,”18 U.S.C. 844(j ) .
“T he term ‘explosive or i ncendiary device’ means ( A) dynami t e a n d all other f orms
of high explosives, ( B) any explosive bomb, gr enade, mi ssile, or s imilar device, and ( C) any
incend i a r y b o mb or grenade, f ire bomb, or similar device, including any device which (i)
consists of or includes a breakable container i ncluding a f lamma ble liquid or c ompound, and
a wick composed of any material which, when i gnited, is capable of igniting s uch f lammable
liquid or compound, and ( ii) can be carried or thrown by one indivi dual acting a lone,” 18
U.S.C.232(5).
¹¹ “T he term ‘destructive device’ means – (A) any explosive, incendiary, or poison gas –
(i) bomb, (ii) gr enade, (iii) rocket havi ng a propellant charge of more than four ounces, ( iv)
mi ssile havi ng an explosive or i ncendiary charge of more t han one-quarter ounce, (v) mine,
or (vi) devi ce similar t o any of the devices described i n t he preceding clauses;
“(B) any t ype of weapon (other than a s hotgun or a shotgun s hell which t he Secretary
finds is generally recognized as particularly suitable f or sporting purposes) by whatever
name known which will, or which may be readily converted t o, expel a proj ectile by the
action of an explosive or other propellant, and which has any barrel with a bore of more t han
one-half i nch i n diameter; and
“(C) any combinatio n of parts either designed or intended f or use i n converting any
devi ce into any destructive device described in subparagr aph ( A) or (B) and from which a
destructive device may be readily assembled.
“T he term ‘destructive device’ shall not include any device which is neither designed
nor redesigned for use as a weapon; any device, although origi nally designed for use as a
weapon, which i s r edesigned f or use a s a si gn a l i n g, p yrotechnic, line t hrowing, safety, or
similar de vi ce; surplus ordnance s old, loaned, or given by the Secretary of t he Ar my
pursuant t o t he provisions of section 4684(2), 4685, or 4686 of title 10; or any other devi ce
which t he Secretary of t he T r easury f inds is not likely t o be used as a weapon, is an antique,
or i s a r ifle which t he owner i ntends to use s ol ely f or sporting, recreational or cultural
purposes,” 18 U.S.C. 921(a)(4).
¹² “[T ] he term ‘weapon of ma ss destruction’ means – (A) any destructive device as defined
in section 921 of this title ; ( B) any weapon that is designed or intended t o cause death or
serious bodily injury through the release, dissemination, or impact of toxic or poisonous
chemicals, or their precursors; (C) any weapon involving a biological agent, toxin, or vector
(as t hose t erms are defined in section 178 of this title); or (D) any weapon that is designed
to release r adiation or r adioactivity at a l evel dangerous to human life,” 2332a(c)(2).
“[T ] he term ‘biologi cal agent’ means any mi croorganism (including, but not limited
to, bacteria, viruses, f ungi, rickettsiae or protozoa) or infectious substance, or any naturally
occurri ng, bioengi neered or synthesize d c omponent of any s uch microorga nism or infectious
substance, capable of causing – ( A) death, disease, or other biologi cal ma lfun c t i o n i n a
huma n, an animal, a plant, or another living organism; (B) deterioration of f ood, water,
equipme n t , supplies, or material of any kind; or (C) deleterious alteration of t he

An instructor or distributor ca n o n l y b e p rosecuted under t he provisions if he
either (I) i ntends the i nstruction o r i nfor mation t o b e u sed for or in furtherance o f a
federal crime of v i o l e n c e o r (II) knows t hat t he person to whom the i nstruction o r
information i s given intends it to be used for or i n furtherance of a federal crime of
v i o l ence. A federal cri m e of vi ol ence i s one t h at (a) “has as an el em ent t h e u s e ,
at t em p t ed u se, o r t hreat ened use o f physi cal force agai n st t h e p erson o r p ropert y o f
another,” o r ( b ) “ i s a felony and t hat, by its nature, i nvolves a subs tantial risk t hat
physical force against the p erson o r p roperty o f another m ay be used in the course of
committing t he offense,” 18 U.S.C. 16; see also, 1 8 U.S.C. 924(c)(3).
Offenders are punishable by imprisonment for not more than 20 years, and fine
of not more than $250,000 ($500,000 if the o ffender i s an o rganiz ation), 1 8 U.S.C.
844(a)(2); 3571. Anyone who conspires t o v iolate the p rovisions,¹³ or aids and abets
a violation, is subject to the sam e penalties.¹⁴
PathtoPassage
Passage did not come easily. Following the S enate h earings i n the 104th
Congress, the S enate approved a provision that focused o n t he problem of In t e r n et
bomb i nstruction as p a r t o f a comprehensive t errorism package, S. 735 (104th
Cong.). Offered as an amendment b y S enat or Feinstein, as passed b y t he Senate it
would h ave p rovided:
It shal l b e unl awful for any p erson t o t each or dem onst rat e t he m aki ng of
ex plosive m at erials, or t o distribute by any means i nformation pertaining t o, in
whole o r i n p art, the m anufacture o f ex p losives m aterials, i f t he person intends
or knows, that such ex plosive m aterials or information w i l l b e used for, or in
furtherance o f, an activity that constitutes a Federal cri m i nal o ffense o r a

environment;
“[T ] he t e r m ‘toxin’ means t he toxic mat erial or product of plants, animals,
mi croorganisms ( including, but not limited t o, bacteria, viruses, f ungi, ric kettsiae or
proto zo a), or infectious substances, or a recombinant or s ynthesized molecule, whatever
their origi n or method of production, include s – (A) a ny poisonous substance or biologi cal
product t hat may be engi neered as a r esult of biotechnology produced by a living organism;
or (B) a ny poisonous isomer or biological product, homolog, o r derivative of s uch a
substance;
***
“[T ] he term ‘vector’ means a living organism, or molecule, i ncluding a r ecombinant
or synthesized molecule, capable of carrying a biological agent or t oxin t o a host,” 18 U.S.C.

178(1),(2),(4).

¹³ “Except as otherwise p r o vi d e d in this section, a person who conspires t o commi t any
offense defined in this chapter s hall be subj ect to the s ame penalties ( other t han t he penalty
of death) as the penalties prescribed f or the offense t he commi ssion of which was the obj ect
of the c onspiracy, 18 U.S.C. 844(n).
¹⁴ “(a) Whoever commits an offense against the United States o r a ids, abets, counsels,
commands, i nduces or procures its commi ssion, is punishable as a principal. ( b) Whoever
willfully causes an act to be done which i f directly performed by him or another would be
an offense a ga inst the United States, is punishable as a principal,” 18 U.S.C. 2.

criminal purpose affecting i nterstate commerce. §901, S. 735, 1 4 1 Cong.Rec.
S7875 (daily ed. J une 7, 1995).
The provision, which would have m ade violations punishable by imprisonment
for u p t o t wenty years, was not unifor m l y a p p l a u ded. Beyond the reservations
ex pressed on behal f of l egitimate ex plosives manufact urers during S enat e debat e,¹⁵
comm en t a tors questioned t he provision’s constitutionality.¹⁶ The p roposal, as
amended, won S enate approval, 141 Cong.Rec. S7686 (daily ed. J une 5, 1995), but
was d ropped from t he bill that emerged from conference in favor of a s tudy.¹⁷ More
precisely, t he Antiterrorism and Effective Death P enalty Act o f 1996 in its final form
did not outlaw Internet bomb m aking i nstructions but i n s t ead called upon the
Attorney General t o s tudy the conflict bet ween the First Amendment’s protection of
communication and the u se of modern technology for instruction i n t he criminal use
of ex plosives.¹⁸
From that point on, Senate backers s ought a l egislative vehicle to carry to
passage their p roposal outlawing bomb- maki ng instruction. Later t he same year, t he
Senate agreed to add i t t o t he defense authorization bill, H.R. 3230 (104th C ong.),¹⁹
but again i t was stripped out during conference.²⁰ In t h e f i rst session of the 105th
Congress, the S enate i nserted i t i n t he defense authoriz ation b ill for t hat year, H.R.

1211 (105th C ong.),²¹ only t o h ave i t removed once m ore during conference.²² In t h e

¹⁵ “T here are a l ot of explosives manufactur ers a nd personnel who do teach others how to
make explosives and how to use t hem l egitimately,” 141 Cong.Rec. S7684 (daily ed. J une

5, 1995)(remarks of Sen. Hatch).

¹⁶ The Comprehensive Terrorism Prevention Act of 1995 ,20S^ETON H^ALL L^EGI^S^LATI^VE
J^OURNAL 201, 245 (1996); Eaton, Closing t he Barn Door After t he Genie I s Out of the Bag:
Recognizing a " F u t i l ity Principle" in First Amendment J urisprudence,45D^EP^AUL L^AW
R^EVI^E^W 1, 45-9 ( 1995).
¹⁷ H.Rep.No. 104-518 at 121 (1996); 142 Cong.Rec. H3336 (daily ed. April 15, 1996).
During Senate consideration of t h e conference report, proponents t ried unsuccessfully to
have the r eport r eturned t o t he conference committe e w i t h i n s t ructions to include the
Feinstein a me ndment, 142 Cong.Rec. S3448-450 (daily ed. April 17, 1996).
¹⁸ “Study. – T he Attorney General, in consultation with such other officials and indivi duals
as the Attorney General considers appropriate, shall conduct a study concerning –(1) the
extent t o w h i c h t here is available t o t he public material in any medium ( including print,
electronic, or film) t hat provi des i nstruction on how to make bombs, destructive devices, or
weapons of mass destruction; (2) t he extent to which i nformation gained from s uch material
has been used in incidents of domestic or international t errorism; ( 3) the likelihood that such
information may be used in future incidents of t errorism; ( 4) the application of Federal laws
in effect on the date of enactment of this Act to such material; (5) the need and utility, if
any, for additional l aws r elating t o s uch material; and ( 6) an assessment of t he extent to
which t he fi r s t a mendment protects s uch material and its private and commercial
distribution,” §709, P.L. 104-132, 110 Stat. 1297 (1996).
¹⁹ 142 Cong.Rec. S7271-274 (daily ed. J une 28, 1996).
²⁰ H.Rep.No.104-724, at 801 (1996); 142 Cong.Rec. H9303 (daily ed. J uly 30, 1996).
²¹ 143 Cong.Rec. S5989-998 (daily ed. J une 19, 1997).
²² H.Rep.No. 105-340, at 813 (1997); 143 Cong.Rec. H9405 (daily ed. Oct. 23, 1997).

second session, it was apparently added during S enat e J udici ary C ommittee m arkup
to a H o u s e - passed p rivate bill for t he relief o f t he Kerr-McGee C o rporation, H.R .
1211 (105th C ong.), which was p laced on the S e n ate calendar without a written
report but which s aw no further action.²³
Supporters’ efforts wer e bolstered by th e J ustice Department’s submission of
the s tudy it had b een directed to conduct, Report on t he Availability of Bombmaki ng
Information, the Ext ent t o Which Its Dissemination Is C ontrolled by Feder al Law,
a n d the Extent t o Which Such Dissemination May Be Subject to Regulatio n
Consistent with the First Amendment t o t he United States C onstitution: Prepared by
the United States Department of Justice a s Required b y S ection 709(a) of the
Antiterrorism and Effective Death Penalty Act o f 1996 (April 199 7 ) ( DoJ Report).
The DoJ Report concluded t hat:
- “[ A] n yo n e i n terested in manufact uring a bomb, dangerous weapon, or a
weapon of mass destruction can eas ily obtai n det ailed i nstructions from readily
accessible s ources, s uch as l egitimate reference books, t he so-called
underground press, and t he In ternet”
- “Circumstantial evidence s uggests t hat, in a number of crimes i nvolving the
employment of such weapons and d evices, d efendants h ave relied upon such
material in manufact uring and use of s uch items”
- “Law enforcement agencies b e lieve that, b ecause the availability of
bombmaking i nformation i s b ecoming i ncreasingl y widespread (over t he
In t e r n et and from o ther sources), such published i nstructions will continue to
play a s ignificant role i n aiding t hose i ntent upon committing future acts o f
terrorism and violence”
- “While curren t federal l aws – such as those prohibiting conspiracy,
solicitation, aiding and abetting, provi ding material support f o r terrorist
activities, and unlawfully furthering ci vil disorders – m ay, i n s o m e i nstances ,
proscribe t he dissemination o f bombmak ing i nformation, no e x tant federal
s t a t u t e p rovi des a sat i s fact ory b asi s for p rosecut i o n i n cert ai n cl asses o f cas e s
that Senators Feinstein and Bi den h ave i dentified as p articularly troublesome”
- “The Department of J ustice agrees that it would be appropriate and beneficial
to adopt further l egisl a t i o n t o address t his p roblem directly, i f t hat can be
accom p l i s hed i n a m anner t hat does not i m p erm i ssi bl y rest ri ct t he whol l y
legitimate publication and teachi n g o f s u c h i n f o r m a t i o n , o r o t h e r w i s e v i o l a t e t h e
Fi rst Amendment”
- “The First Amendment would impose s ubs tantial constrai nts on any attempt
to proscribe i ndiscriminat el y t he diss emination of bombmaking i nformation.
The governmen t ge n e rally may not, ex cept i n rare circumstances, punish

²³ 144 Cong.Rec. S6697 (daily ed. J une 19, 1998); see also, 145 Cong.Rec. S2652 (daily
ed. M ar. 15, 1999) (remarks of Sen. Nickl es)(noting i nclusion of the Feinstein amendment
inH.R.1211).

persons either for advocating l awless action or for disseminating t ruthful
information – i ncluding information t hat would b e d angerous if used – t hat s uch
persons have obtai ned l awfully. However, t he constitutional analys i s i s quite
different where t he government punishes speech that is an integral part of a
transaction i nvolving conduct t he government otherwise i s empow e r e d t o
prohi bi t ; such ‘speech act s’ – for i n st ance, m any cases of i n choat e cri m es s uch
as aiding and abetting and conspiracy – m ay be proscribed without much, i f any,
concern about the First Amendment, since i t i s m erely i nci d e n tal t hat s uch
‘conduct’ takes t he form of speech”
- “Senator Feinstein's proposal can with stand constitutional m uster i n m ost, if
not all, of its possible applications, i f such l egislation i s slightly modified”
- “As modified, t he proposed legi slation would be likely t o m ax imize t he ability
of t h e Federal Governm ent – consi s t ent wi t h free s peech prot ect i ons – t o reach
cases where an i ndi vi dual d i ssem i n at es information on how to manufact ure or
use ex p losives o r weapons of mass destru ction either (i) with the i ntent t hat t he
information b e u sed t o facilitate criminal conduct, or (ii) with the knowledge
t h at a p art i cul ar reci pi ent o f t he i n form at i o n i nt ends t o use i t i n furt h erance of
criminal activity,” DoJ R eport, at i-ii.
In the 106th C ongress, the p roposal, m odified to r e f l e ct J ustice Department
recommendations, ret urned as part of t h e Kerr-McGee private relief bill, S. 606
(106th C ong.).²⁴ It subsequently passed both Houses with little comment,²⁵ and w as
sign ed by the P resident.²⁶
Fi r s t Amendment Consi der ati ons
Congress s hall make n o l aw . . . a b r i d g i n g the f reedom of speech, o r o f t he
press; or the r ight of the people peaceably t o assemble, and to petition t he
Government f or a r edress of gri evances. U.S.Const. Amend.I.
The First Amendment s peaks i n absolute t erms, but there i s litt l e dispute t hat
Congress may enact laws that regu late and even p rohibit s peech under s ome
ci rcum st ances. T he di ffi cul t y has al ways b een t o i d ent i fy t hose ci rcum s t ances wi t h
precision. T h is task has b een further compl i cat ed by t h e uni que ci rcum st ances
presented b y t he In ternet and b y t he array o f doctrines upon which t he Supreme C ourt
might rely to eval uate Fi rst Amendment compliance i n different fact ual s ettings .

²⁴ 145 Cong.Rec. S2651 (daily ed. M ar. 15, 1999). T he final version differed s omewhat
from t he J ustice Department r ecommendations which would have been predicated upon an
intent or knowledge t hat t he instruction would be used i n connection with a f ederal crime
or with a state crime i nvolvi ng interstate commerce; the f inal version dropped t he reference
to state crimes i nvolvi ng interstate commerce.
²⁵ 145 Cong.Rec. S8193-194 (daily ed. J uly 1, 1999); 145 Cong.Rec. H6770-771 (daily ed.
Aug.2,1999),.
²⁶ P.L. 106-54, 113 Stat. 398 (1999).

Under t he current state o f t he l a w , i t appears t hat C ongress may only regulate
and p rohibit i nstruction o n t he means and methods of violence when the i nstructor
intends the l ess o n s t o be acted upon or knows t hat t hey will be with some level of
specificity.
In Dennis v. United States , 341 U.S. 494 (1951), t he petiti o n e r h ad been
convicted of conspiring to tea c h and advocate t he duty, necessity, d esirability and
propriety of the v iolent overthrow of the government. The Court observed t hat t he
“[ o] verthrow of the Government by force and v i o l en ce is certainly a substantial
enough i nterest o f t he Government to limit speech....IftheGovernmentisaware
that a group aiming at its overthrow is attempting t o i ndoctrinate its members and to
commit them t o a c o u r se whereby t hey will strike when the l eaders feel the
ci rcum st ances p e r m i t , act i o n by t he Government is required,” Dennis v. United
States , 341 U.S. at 509.
In a s ubsequent construction o f t he statute at i ssue i n Dennis , t he Court h eld t hat
t h e s t at u t e coul d not be const rued t o p roscri be advocat i n g and t eachi n g t he v i o l e n t
overthrow of the government a s an abstract pri n ci pl e unrel at ed t o any i nt ent t o
stimulate action t o t hat end, Y ates v. United States, 354 U.S. 298 (1957).
Brandenburg v. Ohio , 395 U.S. 444 (1969), confirmed t he reading o f Yates for
constitutional purposes. “[T]he constitutional guarantees of free speech an d f r e e p r e s s
do n o t p e r m i t a S t at e t o forbi d or proscri b e advocacy of t h e u se of force o r o f l aw
violation ex cept where such advocacy is di rected to inciting o r p roducing imminent
lawless action and is likely t o i ncite or produce s uch action....[T]hemereabstract
t eachi n g o f t he m o ral p ropri et y o r e v en m o ral n ecessi t y for a resort t o force and
violence, is not the s ame as p reparing a group for v iolent action and s t e e l i n g i t t o
such action. A statute which fails to draw this distinction impermi s sibly intrudes
upon the freedoms guaranteed by the Firs t a n d Fourteenth Amendments,”
Brandenburg v. Ohio , 395 U.S. at 447-48.²⁷
Although Brandenburg seems t he most logi cal point of reference i n t he Court's
Fi rst Amendment j urisprudence o n questions involving bomb-making lessons on the
In ternet, its ex clusive application i s h ardly i nevitable. It is not beyond the realm o f
possibility that t h e C ourt would draw from s ome other of its Fi rst Amendment
doct ri n es i n order t o j udge “dangerous” s peech avai l abl e el ect roni cal l y. C ert ai n l y,
both M embers of t h e C o u rt²⁸ and commentators²⁹ have questioned t he wisdom of

²⁷ Shortly thereafter, a f ederal statute outlawing instruction i n t he use of e xp l o s i ve s i n
furtherance of a civi l disorder withstood First Amendment challenge i n t he lower f ed e r al
courts, United States v. Featherston, 461 F.2d 1119 (5th Cir. 1972).
²⁸ “[A]s broadcast, cable, a nd the c yber-t echnology of t he Internet and t he W o r l d W i d e
Web approach the day of using a common r eceiver, we can hardly assume that standards f or
j udging t he regulation of one of them will n o t h a ve imme nse, but now unknown a nd
unknowable, e ffects on t he others.
“Accordingl y, in charting a course that will permit reasonable r egulation i n light of the
values in competition, we have to accept t he likelihood t hat the media of communi cation
will become less categorical and more protean. Because we cannot be c o n f i d e n t t hat f or
purposes of j udging s peech restrictions it will continue to make sense t o distinguish cable
from other technologies, and because we know that changes i n t hese regulated t echnologies

uniform application o f Brandenburg to the Internet.
Of course, o ther Fi rst Amendment l andm arks, s uch as content-based s tandards
or public forum doctrines , m ay be even less forgiving t hat Brandenburg . A content-
based s tandard, for instance, may impose m o r e d em anding criteria for legi slative
regulation t han Brandenburg : t he government has a compelling i nteres t i n protecting
the s afet y of Americans and thei r p ro p e rty from violent injury or damage, but
regulation would have t o be narrowly t ailored t o s ervice that interest.³⁰
Another possible s ource of analytical support for resolution o f First Amendment
q u e stions raised by the Internet i s t he public forum doctrine. The public for u m
doctrine refers t o t he Fi rst Amendment doctrine t hat d escribes the conditions under
which t he government may limit the use of certain public propert y b ecause of the

will enormously alter t he structure of r egulation itself, we should be s hy ab out sayi ng the
final word t oday a bout what will be accepted a s r easonable t omorrow. In my own i gnorance
I have t o accept t he real possibility that ‘if w e had to decide today ...justwhattheFirst
Amendment s hould mean in cyberspace,...wewouldget it fundame ntally wrong.’
“T he upshot of appreciating t he fluidity of the s ubj ect that Congress must regulate is
simply to accept t he fact that not every nu ance of our old s tandard will necessarily do for
the new technology, and t hat a proper c hoice amon g e x i s t ing doctrinal categories i s not
obvious,” Denver Area Ed.Comm.Consortium v . FCC, 518 U.S. 727, 776-77 (1996) (Souter,
J., concurring) ( quoting, Lessig, The Path of Cyberlaw, 104 Y^ALE L^AW J^OURNAL 1 7 43, 1745
(1995)).
²⁹ “In t he twenty-f irst century, however, i ncitement is not only possible on s treet corners
and at political rallies. Indivi duals wi sh ing t o present inciting messages now have new
avenues f or communication i n c yberspace. T he Internet i s no l ess dange rous and no more
worthy of constitutional protection t han a speaker who i ncites a riotous crowd t o vandalize
the streets or attack police officers. The difference, ho w e ve r , i s that inciteme nt over the
Internet is often more difficult to assess. T he unique speaker-audie n c e relationship i n
cyberspace requires courts to clarify t he immi nence r equirement and t o devise an i ncitement
standard that meets t he new demands of the Internet.” Cronan, The Next Challenge for t he
First Amendment: The Framework for an I ncitement Standard,51C^ATHOLI^C U^NI^VERSI^T^Y
L^AW R^EVI^E^W 425, 466 (2002); Planting t he Seeds of Hatred: Why I mminence Should N o
Longer Be Required t o I mpose Liability on Internet Co mmu n i c a tions,29C^AP^I^T^AL
U^NI^VERSI^T^Y L^AW R^EVI^E^W 835, 855 (2002) (“Indivi duals shou l d b e h e ld accountable for
what theyadvocate....[T]hosewhopublicly advocate i deas through t he Internet and other
forms ought to bear some responsibility if a causal link can be shown between their
advocacy and i nj uries t hat r esult t o others”).
³⁰ Simon & Schuster, Inc. v. Crime Victims Bd., 502 U.S. 109 (1991), i nvolvi ng as it did a n
a t t e mpted content-based r egulation on expressions of the means and manner of crimi na l
conduct, mi ght provi de a nexus to the Court's content-based r egulation line of cases. Simon
& Schuster, Inc. arose o u t o f a N ew York statutory procedure f or the confiscation of
prisoner literary royalties. T he proceeds were dedicated to vi ctim compensation, but only
the proceeds from t hose works that mentioned or described the commi ssion of a crime were
s eized. T his, the Court concluded, imposed a f inancial burden upon certain fo r ms o f
expression based s olely upon their content. Cont e nt-based r egulation of s peech can only
survive First Amendment s crutiny i f i t i s based upon a compelling s tate interest and i f i t i s
n arrowl y t ailored t o serve that interest. T he New York statute failed because it was not
narrowly t ailored only t o ensure victim compensation, Simon & Schuster, I n c . v. Crime
Vi ctims Bd., 502 U.S. at 121-23.

traditional u se of such locations for pub lic discourse. In t he case o f a public forum,
the government’s “r i gh t t o limit protect ed ex pressive activity is sharply
ci rcumscribed: it may impose reas onable, content-neutral time, place and m anner
re s t r i c t i o ns . . . but it may regulate ex p ressi ve content only i f s uch a restriction i s
necessary, and narrowly drawn, t o s erve a compelling s tate interest,” Capitol Square
v. Pinette, 515 U.S. 753, 761 (1995).
Al t hough not publicly owned, the government has l ong regulated telephone
communications, one of the essential components o f t he In ternet. M oreover, there
can be little doubt that under m any circumstances, t he In ternet is just as likely t o
provide the forum for public political debate as the city p a rk .³¹ A m aj ority of the
Members o f t he Court, however, h as recently announ c e d t h a t the public forum
doctrine does not apply t o t he In ternet when access i s p rovided t h r o u g h a public
library.³² If the Internet entered from a public library cannot be considered a public
forum, In ternet entrance from a private home p resumably cannot.
S o m e com m ent at ors h ave s uggest ed t h at Brandenburg should be adjusted i n an
Internet contex t t o m ute its imminence demands. The Brandenburg line consists of
cases involving the advocacy of a political ph ilosophy with violent attributes. The
Fi rst Amendment s tands as one of the p rincipal gu ar d i an s o f t he robust political
debate essential t o t he well being o f a democracy. S ome might argu e t hat t ouching
upon political discourse as they do, the p ri nciples t hese cases announce might not be
as readily applicable to instruction i n t he means and methods of violence unrelated
to any s uch political underpinnings.³³

³¹ See generally, Goldstone, The Public Forum Doctrine i n t he Age of t he Information
Superhighway (Wh e r e Are t he Public Forums on the I nformation Superhighway?),46
H^ASTI^NGS L^AW J^OURNAL 335 (1995).
³² United States v. American Library Ass'n, 123 S.Ct. 2297, 2304 (2003)(“Internet access
in public libraries is neither a t raditional nor a designated public forum”)(Rehnquist, Ch.J ,
with O'Connor, Scalia, a nd T homas, J J .)(announcing t he j udgme nt of the Court); 123 S.Ct.
at 2310 (“In determining whether the s tatute's condition s c o n s e q uently vi olate t he First
Amendment, the plurality first f inds the public forum doctrine i napplicable and t hen holds
that the statutory provisions are constitutional. I agr ee with both determi nations”) (Breyer,
J .)(concurring in the j udgment).
³³ See e .g. ,Redlich&Lurie, First Amendment I ssues Presented by t he "Information
Superhighway" ,25S^ETON H^ALL L^AW R^EVI^E^W 1446, 1456-457 (1995)(“Courts ma y have
to gr apple with the r egulation of c o mmu n i cations on the electronic s uperhighway that
advocate illegal c onduc t . This i ssue has arisen recently in c onnection with the use of the
Internet as an organizational and communications tool by anti-government militias. Existing
Supreme Court precedents – r ead restrictively – preclude the r e gu l ation of s peech
advocating illegal activity absent the demonstration of a risk of `i mmi nent' wrongdoing
accompanied by words of incitement. However, i t may be difficult to establish s uch a risk
of immi nent harm arising from t he electronic advocacy of criminal acts. It may be next t o
impossible t o establish how the potentially vast, but anonymous, aud ience f or a
communication s oliciting illegal conduct i s likely t o r espond. T hus, communications such
as the posting of bomb-ma ki ng instructions on the Internet duri n g t he weeks prior to the
Oklahoma City bombing mi ght f all outside the gove r n me n t ’ s regulatory power. On t he
o t h e r hand, the c ourts ma y f ind t hat t he current First Ame ndment doctrine, fashione d t o
some extent as a r e a c t i on t o t he McCarthy era, must be modified to take into account the

The courts, however, s eem to continue to ac k nowledge t he prominence of
Brandenburg even in an In tern e t c o n t e x t. As the C ourt observed when i t found
constitutionally wanting t he Child Pornography Prevention Act 's efforts t o regulat e
“virtual” Internet pornography:
[ T ] h e C ourt’s First Amendment cas es draw vital distinctions between
words and deeds, between ideas and conduct. The government may not prohibit
speech because it increas e s t h e chance an unlawful act will be committed at
some indefinite future time. T h e government may s uppress s peech for
advocat i n g t he use o f for c e or a v i o l at i o n o f l aw onl y i f “such advocacy i s
directed to inciting o r p roducing imminen t l awless action and is likely t o i ncite
or produce s uch actions.” Brandenburg v. Ohio , 395 U.S. 444, 447 (1969) (per
curi am). Ther e i s her e no attempt, incitement, s olicitation, or conspiracy.The
Governm ent has s hown n o m ore t han a rem o t e connect i o n b et ween speech t h at
might encourage t houghts o r impulses and any resulting child abuse. Ashcroft
v. Free Speech Coalition , 5 3 5 U.S. 234, 253 (2002)(other internal citations
omitted and em phasis added).
Consistent with the s entiment italicized above – t hat Brandenburg is different
when t h ere i s conspiracy, attempt, incitement or solicitation – t he lower federal
courts have rejected Fi rst Amendment arguments grounded i n Brandenburg that
involve instruction knowingl y direct e d t o t he commission of a s pecific, concrete
offense: w h e r e t h e defendant’s advocacy or instruction was coupled with direct
assistan ce in the p reparation o f t ax fraud,³⁴ where t he i n st ruct i o n w as di rect ed t o t h e
efforts of a particular individ u a l 's m an ufact ure of illicit drugs,³⁵ and where the
defen d a nt taught members of a particular group how to construct bombs for use in
an ant i ci p at ed ci vi l d i s order.³⁶
The DoJ Report s ummariz i ng its understanding of the s tate of the l aw as of 1997
seem s t o r efl ect a l i k e v i ew:

transformation of communications technology” ). In this regard, however, i t i s difficult to
see how the Internet i s a ny different than a book, newspaper, pamphlet, each of which may
ultimately have a vast audience spread over a considerable period of time.
³⁴ United States v. Fletcher, 322 F.3d 508, 515 (8th Cir. 2003)(“T here was ample e vi dence
that Mr. Fletcher did not merely advocate, through s peech vi olation of t he tax l aws ....[A]s
a r esult of M r. Fletcher’s semi nars (where he explained how to convert ordinary personal
expenditures i nto [fraudulent] tax deductible business expenses) and his f ollow-up meetings
with c l i e n t s , h i s clients not only r etain [ his f irm’ s] tax s ervi ces for t he current year, t hey
began t he process of f iling amended t ax returns f or previous years. In these circums tances,
Mr. Fletcher’s speech is not entitled t o f irst amendment protection”); see also, United States
v. Knapp, 25 F.3d 451, 457 (7th Cir. 1994); United States v. Rowlee , 899 F.3d 1275, 1277-
278 (2d Cir. 1990); United States v. Kelley, 769 F.2d 215, 217 (4th Cir. 1985); United States
v. Freeman, 761 F.2d 549, 552 (9th Cir. 1985); United States v. Buttorff , 752 F.2d 619, 624
(8th Cir. 1978); United States v. Buttorff , 761 F.2d 1056, 1066 (5th Cir. 1985)(noting t hat
the t ax instructions cases frequently involved false or mi s l e ading s peech thus beyond the
pale for t hat r eason alone).
³⁵ United States v. Barnett, 667 F.2d 835, 842-43 (9th Cir. 1982).
³⁶ United States v. Featherston, 461 F.2d 1119, 1112 (5th Cir. 1972).

The distinction recognized in Brandenburg bet w een advocacy of , a nd
preparation for, unlawfu l conduct, was ex emplified i n Scales v. United States,
367 U.S. 203 (1961), a case i n which the C ourt carefully distingu ished b etween
teaching o f abstract d o c t r i n e – punishment of which i s s ubject to substantial
constitutional constraints – and t he teaching o f t he techniques of unlawful
conduct, which can much more easily be proscribed. Id. at 233-34. As t o the
former, t he Court h as developed t he Brandenburg test, which asks whether t he
danger is intended, likel y and imminent. But t he constrai nts of t he Fi rst
Am endm ent d o not appl y when t he t eachi n g goes b eyond t h e t h e o r y i t s e l f t o
ex pl anat i o n o f b asi c st rat egy. Scales , 367 U.S. at 244. At that p o i nt, t he
teaching – if it is done with the purpose o f p reparing a group for unlawful action
– i s not much different t h a n t h e i nformation conveyed i n a typical aiding and
abetting case; accordingl y, the Brandenburg protections should l argely b e
inapposite. See, Y ates v. United States, 354 U.S. 298, 331-33 (1957)(sys tematic
t eachi n g i n cl asses t o d evel op i n t h e m em bers of a group a readi n ess t o engage
in unlawful conduct at t he crucial time could b e punished, even i f t hat conduct
was to occur only the time was ripe). DoJ Report, at xxxiii-xxx iv (internal
quotation m arks omitted).³⁷
As noted earlier, the DoJ Report conclude d t hat “Senator Feinstein’s proposal
can withstand constitutional m uster i n m ost, if not all, of its possible applications, i f
such legi slation i s s lightly modified,” DoJ R eport, at ii.
Compl e mentar y P r ohi bi ti ons
Federal l aw has for some time prohibit e d i n s tructing others i n t he use of
ex plosives in furtherance o f a c i v i l d isturbance, 18 U.S.C. 231.³⁸ More recent l y,
C o ngress has outlawed p roviding material support t o t errorists o r t err o r i s t
organiz ations in language sweepin g enough t o i nclude support i n t he form of
instruction or i nformation on how to make or use ex plosives, destructive devices and
weapons of mass destruction, 18 U.S.C. 2339A, 2339B.
It i s al so a federal cri m e t o com m and, ai d and abet anot her i n t he com m i ssi on
of a federal offense, 18 U.S.C. 2,³⁹ to conspire with another t o commit such an

³⁷ Soon af t e r r e l ease of t he DoJ Report, the Fourth Circuit f ound that a how-t o-commit-
murder-f or-hire manual was not entitled t o First Amendment protection where the publisher
stipulated that it “intended t o attract and assist criminals and would-be criminals who desire
information and instruc t i o n on how to commi t crimes” and t hat i t “intended and had
knowledge t h a t [ t h e publication] would be u sed upon receipt, by crimi nals and would-be
c r i minals t o plan and execute the crime of murder for hire,” Rice v. Paladin Ent e r p r i s e s ,
Inc., 128 F.3d 233, 241-49 (4th Cir. 1997).
³⁸ T he t exts of various existing prohibitions have been appended at t he end of t his r eport,
arranged in the order in which t hey appear in the r eport.
³⁹ Section 2 actually outlaws aiding, abetting, commanding, and counseling t h e c o mmi s s i o n
of an underlyi ng federal c rime , but the J ustice Department has observe d t hat i t i s “ not aware
of any modern case i n which culpability under §2 was premised solely on counseling i n t he
form of encouragement ( or advocating t hat a crime be committed), without any actual aid
or assistance to the principal,” DoJ Report, at xxxiii n.61.

offense, 18 U.S.C. 371, or to solicit another t o commit a crime of violence, 18 U.S.C.
373. In s t r u ction i n t he construction o r u se of ex plosives may o ften occur under
ci rcumstances wh ere i t constitutes aiding or abetting, or conspiracy to commit, or
solicitation t o commit other federal crimes of violence.
In such cases the government would b e required t o p rove both t he elements of
instigational offense (conspiracy, s olicitation, or ai ding/abetting) as well as at leas t
some elements of the underlyi ng offense. Thus in order t o aid and abet, one must “in
some sort associ at e himsel f with the venture, participat e i n i t as i n s omet hing that he
wishes to bring about, [ and] seek by his action t o m ake i t s uccee d . ”⁴⁰ One m ay be
guilty of commanding or ai ding and abetting any federal crime, i n c l u ding those
involving the unlawful u se of fire or ex plosives.⁴¹ Li ability requires t he commission
of the crime by someone ot her t han t he defendant.⁴² Although one who aids and
abets n eed not participate i n all aspects o f t he underlyi ng crime, h e m ust “participate
at some stage accompanied b y knowledge o f t he result and i ntent t o b ring about that
result.”⁴³ On the other hand, mere presence or ev en knowledge is by itself
insuffici ent, the defendant must somehow have act ed to make crime enterprise
succeed.⁴⁴
The criminal liability of a co-conspirator i s comparable. A co-conspirator m ay
be hel d vi cari ousl y l i abl e for t h e reasonabl y foreseeabl e cri m es co mmitted in
f u r t herance o f t he conspiracy.⁴⁵ The government must es tablish an agreem en t
between the defendant and s ome other individual t o commit a federal crime, an i ntent
on the p art o f t he defendant that the underlyi ng crime be committed, and d epending
upon the s tatute perhaps an overt act in fu rtherance o f t he conspiracy committed b y
one of the conspirators.⁴⁶
In order t o establish t hat an accused h as committed s olicitation i n violation of

18 U . S . C . 373, the p rosecution m ust s how (1) t hat h e i ntended t hat s omeone else

⁴⁰ Nye & New v. United States, 336 U.S. 613, 619 (1949); United States v. Hamilton , 334
F . 3 d 170, 180 (2d Cir. 2003)(the gove rnme nt must prove t hat “ the underlyi ng crime w a s
committed by a person other t han t he defendant, t hat t he defendant knew of the c rime , a nd
that the defendant acted with the i ntent t o contribute t o t he success of t he underlyi ng
crime”).
⁴¹ United States v. Duke, 255 F.3d 656, 657 (8^th Cir. 2001); United States v. Arocena, 778
F.2d 943, 949-50 (2d Cir. 1985); United States v. Y ost , 24 F.3d 99, 104 (10th Cir. 1994).
⁴² United States v. Hamilton , 334 F.3d 170, 180 (2d Cir. 2003); United States v . Lozano-
Hernandez , 90 F.3d 785, 790 (11th Cir. 1996).
⁴³ United States v . Pasquantino, 336 F.3d 321, 335 (4th C i r . 2003); United States v.
Bennett, 75 F.3d 40, 45 (1st Cir. 1996).
⁴⁴ United States v. Downs-Moses , 329 F.3d 253, 261 (1st C i r . 2 0 03); United States v.
Griffin, 324 F.3d 330, 357 (5th Cir. 2003).
⁴⁵ Pi nkerton v. United States, 328 U.S. 640, 647-48 (1946); United States v. Curtis, 324
F.3d 501, 506 (7th Cir. 2003).
⁴⁶ Un ited States v. Ramirez-Velasquez, 322 F.3d 868, 880 (5th Cir. 2003); United States
v.De an , 55 F.3d 640, 647 (D.C. Cir. 1995); United States v. Josleyn, 99 F.3d 1182, 1189 (1st
Cir.1996).

commit a v iolent federal crime, and (2) that h e i nduced o r otherwise attempted t o
persuade the other person to commit the offen s e.⁴⁷ In doing so, i t m ust p resent
ev idence that “strongly corroborates” t he intent of the accused.⁴⁸ Li ke conspiracy and
unlike aiding and abetting, the c ri m e of solicitation does not require that the
underlyi ng offense h ave b een committed.⁴⁹
Federal l aw cont ai ns a fai rl y w i d e ran ge of statutes outlawing bombing, bomb
threats and other misconduct i nvolving ex pl osives and weapons of mass destruction
which might supply t he underlyi ng predicate o f f ense for an aiding and abetting,
conspiracy, o r s olicitation charge b ased on instructions in bomb construction or use.
It i s , for ex am pl e, a federal cri m e
t o bomb o r attempt t o bomb federal property, 18 U.S . C . 844(f);
t o possess a bomb i n an airport, 18 U.S.C. 844(g);
t o u se ex plosives to commit any o ther federal felony, 1 8 U.S.C. 844(h)(1);
t o carry a bomb across s tate lines with the i ntent t o i njure p erson o r p roperty,

18 U.S.C. 844(h)(2);

t o bomb p roperty t hat i s p art o f o r i s u sed i n i nt erst at e com m erce, 18 U.S . C .
844(i);or
t o s t eal ex pl osi v es from i nt erst at e com m erce o r from a l i censed d eal er, 1 8
U.S.C. 844(k),(l ).
There are al s o federal l aws coveri ng m at eri al s capabl e of produci n g catas trophi c
results. It i s, for ex ample, a federal crime
t o d evelop or possess biological weapons, 1 8 U.S.C. 175;
t o d evelop or possess chemical weapons, 1 8 U.S.C. 229;
t o possess nuclear material without o fficial authoriz ation, 18 U.S.C. 831; or
t o u se weapons of mass dest ruction, 18 U.S.C. 2332a.
Of course, t here are s ep a r a t e federal l a ws that proscribe m urder and assault
committed against federal offici al s or forei gn dignitaries , e.g., 18 U.S.C. 111, 112,
1114, 1116; committed during t he course of a b ank robbery, 1 8 U.S.C. 2113 ; o r i n
v i o l a t i o n of civil rights, 18 U.S.C. 241, 242, 245; or occurring in a host of o t h e r
jurisdictional circumstances , any of which co u l d b e, but need not be, committed
through t he use of ex plosives.

⁴⁷ United States v. Talley, 164 F.3d 989, 996 (6th Cir. 1999); United States v. Polk, 118
F.3d 286, 292 (5th Cir. 1997); United States v. Rahman , 34 F.3d 1331, 1337 (7th Cir. 1994);
United States v. Buckalew, 859 F.2d 1052, 1053 (1st Cir. 1988).
⁴⁸ United States v. Tal l e y , 1 6 4 F . 3 d at 996; United States v. Rahman , 34 F.3d at 1337;
United States v. M cNeill , 887 F.2d 448, 450 (3d Cir. 1989). T his might include evidence
that the accused s ought commi ssion of the underlyi ng offense by offering payment, by threat
or repeated solicitations, by provi ding tools or i nstrumentalities f o r commi ssion of the
underlyi ng offense, or by directing t he solicitations to one believed t o have previ o u s ly
committed a similar crime, United States v. M cNeill , 887 F.2d 1052, 1053 (1st Cir. 1988);
United States v. Gabriel , 810 F.2d 627, 634 (7th Ci r. 1987), both c iting, S.Re p.No. 97-307
at183(1982).
⁴⁹ United States v. Devorkin, 159 F.3d 465, 467 (9th Cir. 1998).

Appendix
Complementary O ffe nses.
18 U.S.C. 231. Civil Disorders
(a)(1) W hoever t eaches or dem onst rat es t o any o t h er person t h e u se, appl i cat i on,
or making of any firearm o r ex p losive or incendi ary d evi ce, or t echni que capabl e of
causing injury or death t o p ersons, knowing o r h aving reason to know or intending
t h at t h e s am e wi l l be unl a w f u l l y em pl oyed for u se i n , o r i n furt h erance of, a ci vi l
di sorder whi ch m ay i n any way or degr e e o b s truct, delay, or adversely affect
commerce o r t he movement of any article or commodity in commerce o r t he conduct
or performance of any federally protected function; or
(2) W hoever t ransports or manufactur e s for t ransportation i n commerce any
fi rearm, or ex plosive or incendiary device, knowing or having reason to know or
intending that the s ame will be used unlawfu lly i n furtherance o f a civil d isorder; .
..
Shall b e fined under t his title or imprisoned not more than five years, or both.
...
Fo r purposes of this chapter:
(1) The term "civil di s o r d er" m eans any public disturbance i nvolving acts o f
violence by assemblages of t hree or more persons, which causes an immediat e danger
of or results in damage or injury to the pr operty o r p erson o f any other i ndividual.
(2) The term "commerce" means commerce (A) between any S t ate or the
Di st ri ct of C o l u m b i a and any pl ace out si de t h ereof; (B) b et ween poi nt s wi t h i n any
State or the District of Columbia, but through any place outside thereof; or (C)
wholly within the District of C olumbia.
(3) T he t erm "federal l y prot ect ed function" means any function, opera t i on, or
actio n carried out, under t he laws of the United S tates, by any d epartment, agency,
or instrumentality of the United S tates or by an officer or em ployee thereof; and s uch
term shal l s peci fically incl ude, but not be limited t o, the collection and distribution
of the United S tates m ails.
(4) T he t erm "fi rearm " m eans any weapon whi ch i s d esi gned t o o r m ay readi l y
be conver t ed t o ex p e l any projectile by the action o f an ex p losive; o r t he frame or
receiver o f any such weapon.
(5) The term "ex plosive or incendiary device" means (A) dynamite and all other
forms of high ex plosives, (B) any ex plosive bomb, grenade, missile, or s imilar
device, and (C) any i ncendiary bomb or grenade, fire bomb, or similar device,
including any d evice which (i) consists of or includes a breakable container i ncluding
a flammable liquid o r compound, and a wick co mposed of any m aterial which, when
ignited, is capab l e o f i gn iting s uch flammable liquid or compound, and (ii) can be
carried or thrown by one individual acting alone.
***
(8) The term "S tate" i nclud e s a S t at e of t he United S tates, and any
commonwealth, t erritory, o r possession of the United S tates," 18 U.S.C. 232.
18 U.S.C. 2339A. Providing material support t o t errorists
(a) Offense. – W hoev e r p r o v i des m aterial s upport o r resources or conceals o r
disguises t he nature, l ocation, source, or ownership o f m aterial s upport o r resources,
knowing o r i ntending that they are t o b e u se d i n p reparation for, o r i n carrying out,
a v iolation o f s ection 32, 37, 81, 175, 229, 351, 831, 842(m) or (n), 844 ( f ) o r ( i ),

930(c), 956, 1114, 1116, 1203, 1361, 1362, 1363, 1366, 1751, 1992, 1993, 2155,

2156, 2280, 2281, 2332, 2332a, 2332b, 2332f, or 2340A of this title, s ection 236 of
the Atomic Energy Act o f 1954 (42 U.S.C. 2284), o r s ection 46502 or 60123(b) of
title 49, or in preparation for, o r i n carrying out, t he concealment of an escape from
the commission of any s uch violation, shal l b e fined under t his title, imprisoned not
more than 10 years, or both. A v iolation o f t his s e ction m ay be prosecuted i n any
Federal j udicial district in which t he underlyi ng offense was committed, or in any
ot her Federal j udi ci al di strict as provided b y l aw.
(b) Definition. – In t his s ection, the t er m "material support o r resources" m eans
currency or m onetary instruments or financi al securities, financial s ervices , l odging,
training, ex p ert advice and assistan ce, safehous e s , false documentation o r
identification, communications equipmen t, facilities, weapons, lethal s ubstan ces,
ex plosives, p ersonnel, transportation, an d o ther physical assets, ex cept m edicine o r
religious materials. 18 U.S.C. 2339A.
18 U.S.C . 2339B. Provi ding material support or r es ources to designated foreign
terrorist organizations
(a) P r o h i bited activities.– (1) Unlawful conduct.–Whoever, within the United
States or subject to the j urisdiction o f t he United S tates, knowingl y p rovides m aterial
support o r resources to a foreign terrorist organiz ation, or attempts or conspires t o do
so, s hall be fined under t his title or imprisoned not more than 15 years, or both.
***
(g) Definitions. – As u sed i n t his s ection . . . (4) t h e term 'm aterial s upport o r
resources' h as the s ame m eaning as i n s ection 2339A.
18 U.S.C. 2. Aiding and Abetting
(a) W hoever commits an offense against the Uni t e d S tates or aids, abet s,
counsels, commands, i nduces or procu res its commission, is punishable as a
principal.
(b) W hoever willfully causes an act to be done which i f d irectly performed by
him o r a n o ther would b e an o ffense against the United S tates, is punishable as a
principal.
18 U.S.C. 371. Conspiracy
If two or m ore persons conspire either to commit any offense against the United
Stat es , or t o defraud the United S tates, or any agency t h e r e o f in any m anner o r for
any purpose, and one or more of such persons do any act to effect the object of the
conspiracy, each shall b e fined under t his title or imprisoned not more than five years,
orboth.
If, however, t he off e n s e , t h e commission of which i s t he object of the
conspiracy, i s a misdemeanor only, the punishment for s uch conspiracy shall not
ex ceed the m ax imum punishment provided for such misdemeanor.
18 U.S.C. 373(a). Solicitation
Whoever, with intent that another perso n e n gage i n conduct constituting a
felony that has as a n element the use, attempted use, or t hreat ened use of physical
force against property or against the person of another i n violation of t he laws of the
United S tates, and under circumstances str ongly corroborative o f t hat i ntent, solicits,
com m ands, i nduces, o r o t h erwi se endeavors t o p ersuade s uch o t h er person t o engage
in such conduct, shall b e imprisoned not more than one-half t he max imum t erm o f

imprisonment or (notwithstanding section 3571) fined not more than one-half o f t he
max imum fine p rescribed for the punishment of the crime solicited, or both; or if the
crime solicited i s punishable by life imprisonment or death, shall be imprisoned for
not more than twenty years.
18 U.S.C. 844(f). Bombing Federal Property
W hoever m aliciously damages or des troys, or attempts to damage or destroy, by
means of fire or an ex plosive, any building, vehicle, or other p ersonal o r real property
in whole o r i n p art o wned, possessed, or used by, o r l eased to, t he United S tates, any
department or agency thereof, or any i ns titution o r o rganiz ation r eceiving Federal
financial assistance shall b e imprisoned f or not more than 20 years, fined t he greater
of the fine under t his title or the cost of repairing o r r e p l acing any property t hat i s
damaged o r d estroyed, o r both; and i f p ersonal i njury results to any p erson i ncluding
any public safety officer performing duties as a direct or prox imate result of conduct
prohibited by t his s ubsection, shall be imprisoned for not more than 40 years, fined
the greater of the fine under t his title or the cost o f repairing or replacing any p roperty
t h at i s dam aged o r d est royed, o r bot h; and i f d eat h resul t s t o any p erson, i n cl udi ng
any public safety officer performing duties as a direct or prox imate result of conduct
prohibited b y t his s ubsection, shall b e s ubj ect t o i m p ri sonm ent for any t erm o f years,
or to the deat h penalty or to life imprisonment.
18 U.S.C. 844(g). Possession of a Bomb i n an Airport
(g)(1) E x cept as p rovided i n p aragraph (2), whoever possesses an ex p losive in
an ai rport t hat i s s ubj ect t o t h e regul at ory a u t h o r i t y of t h e Federal Avi at i o n
Administration, or in any building i n whole o r i n p art o wned, possessed, or used by,
or l eased t o , t he Uni t ed S t at es o r any depart m ent or agency t h ereof, ex cept w i t h t h e
w r itten consent o f t he agency, d epartment, o r o ther person responsible f o r t h e
management of such building o r airport, shall b e imprisoned for not more than five
years, or fined under t his title, o r both.
(2) The provisions of this subsection s h a l l n ot be applicable to – (A) the
possession of ammunition (as that term is defined i n regulations issued pursuant t o
t h i s chapt er ) i n an ai rport t hat i s s ubj ect t o t h e regul at ory aut hori t y of t h e Federal
Aviation Administration i f such ammunition i s either in checked baggage or in a
closed container; or (B) t he possession of an ex plosive i n an airport i f t he packaging
and t ransport at i o n o f s uch ex p l o si ve i s ex em pt from , or subj ect t o and i n accordance
wi t h , regul at i ons of t h e R esearch and S peci al P roj ect s A dm i n i s t rat i o n for t h e
handling o f h azardous materials pursuant t o chapter 51 of title 49.
18 U.S.C. 844(h). Use of a Bomb During t he Commission of a Federal Offense
Whoever – (1) uses fire or an ex plosive to commit any fel ony w h i c h m ay be
prosecuted i n a court o f t he United S tates, or
( 2 ) carries an ex plosive during t he commission of any felony which m a y b e
prosecuted i n a court o f t he United S tates, including a felony which p rovides for an
enhanced punishment if committed b y t he us e o f a deadly or dangerous weapon or
device shall, in addition t o t he punishment provided for such felony, b e s entenced to
imprisonment fo r 5 years but not more than 15 years. In the case o f a second or
subsequent conviction under t his s ubsec tion, such person s h all b e s entenced to
i m p r i sonment for 10 years but not more than 25 years. Notwithstanding any o ther
provision of law, the co u rt s hall not place on probation o r s uspend the s entence o f
any p erson convicted of a v iolation o f t his s ubsection, nor shall t he term of

imprisonment imposed under t his s ubsectio n run concurrently with any o ther term
of imprisonment i ncluding t h a t i m p osed fo r t he felony in which t he ex plosive was
used or carried," 18 U.S.C. 844(h).
18 U.S.C. 844(d). Interstate T ransportation of a Bomb
W hoever t ransport s or recei ves, or at t em p t s t o t ransport o r recei ve, i n i nt erst at e
or foreign commerce any ex plosive with the knowledge o r i ntent t hat i t will be used
to kill, injure, or i ntimidat e a n y individual or unlawfully to damage or destroy any
building, vehicle, or other real or personal p roperty, shall b e imprisoned for not more
than ten years, or fined under t his title, o r bot h; and i f p ersonal i njury results to any
person including any public safety officer performing duties as a direct or prox imate
result of conduct p rohibited b y t his s ubsec tion, shall b e imprisoned for not more than
twenty years or fined under t his title, or both; and i f d eat h results to any person,
including any public safety officer performing duties as a direct or prox imate result
of conduct p rohibited b y t his s ubsection, shall b e s ub j e c t t o imprisonment for any
term of years, or to the deat h penalty or to life imprisonment.
18 U.S.C. 844(i). Bombing Interstate Property
W hoever m aliciously damages or des troys, or attempts to damage or destroy, by
means of fire or an ex plosive, any building, vehicle, or other real or personal p roperty
used in interstate or foreign commerce or i n any activity affecting i nterstat e or forei gn
commerce s hall be imprisoned for not more than 20 years, fined t he greater of the
fine under t his title or the cost of repairing or replacing any p roperty t hat i s d amaged
or destroyed, or both; and i f p e r sonal i njury results to any p erson, including any
public safety officer performin g duties as a direct or prox imate result of conduct
prohibited by t his s ubsection, shall be imprisoned for not more than 40 years, fined
the greater of the fine under t his title or the cost o f repairing or replacing any p roperty
t h at i s dam aged o r d est royed, o r bot h; and i f d eat h resul t s t o any p erson, i n cl udi ng
any public safety officer performing duties as a direct or prox imate result of conduct
prohibited by t his s ubsection, shall also b e s ubj ect t o i m p ri sonm ent for any t erm o f
years, or to the deat h penalty or to life imprisonment. No person shal l be prosecuted,
tried, or puni s h ed for any noncapital offense under t his s ubsection unles s t he
indictment is found or the information is instituted within 7 years after the date on
which t he offense was committed.
18 U.S.C. 844(k),(l). T heft of Explosives
(k) A person wh o s teals any ex plosives m at eri al s whi ch are m ovi ng as, o r are
a part of, or which have m oved i n, interstate or fo rei gn commerce s hall be
imprisoned for not more than 10 years, fined under t his title, o r both.
(l ) A person who s teals any ex plosive m at eri al from a l i censed i m por t e r ,
licensed m anufacturer, o r licensed d ealer , o r from any permittee s hall be fined under
this title, imprisoned not more than 10 years, or both," 18 U.S.C. 844(k),(l ).
18 U.S.C. 175. Biological Weapons
(a) In general. – W hoever knowingl y d evel ops, p roduces, s tockpiles, transfers,
acquires, retains, or possesses any biological agent, tox i n, or delivery s ys tem for use
as a weapon, or knowingl y assists a foreign s t a t e o r a n y o rganiz ation t o d o s o, or
attempts, t hreatens, or conspires t o d o t he same, s hall be fined under t his title or
imprisoned for life or any t e r m o f ye a r s , or both. There i s ex t raterritorial Federal

jurisdiction over an o ffense under t his s ection committed by or against a national of
the United S tates.
(b) Additional o ffense. – W hoever knowingl y posses s es any b iologi cal agent,
tox i n, or delivery s ys tem of a type or in a quantity that, under t he circumstances, i s
not reasonably j ustified b y a prophylactic, p rotective, bon a f i d e research, o r o ther
peaceful purpose, shall b e fined under t his title, imprisoned not more than 10 years,
or both. In this subsection, the t erms "biologi cal agent" and "tox i n " d o not
encompas s any biological agent or t ox in that is in its naturally occurring
enviro n m en t , i f the biologi cal agent or t ox in has not been cultivat ed, collect ed, or
otherwise ex t racted from its natural s ource.
(c) Definition. – For purposes of this section, the t er m " f o r u s e as a weapon"
includes t he development, production, transfer, acquisition, retention, or possession
of any b i o logi cal agent, tox i n, or deliver y s ys tem for other t han p rophylactic,
protective, bona fide research, o r o ther peaceful purposes.
18 U.S.C. 229. Chemical Weapons
(a) Unlawful conduct. – Ex cept as p r o v i d e d i n s ubsection (b), i t s hall be
unlawful for any p erson knowingl y –
(1) t o d evelop, produce, otherwise acqu i re, t ransfer directly or indirectly,
recei ve, s t o ckpi l e, r e t ai n, own, possess, or use, or t h reat en t o use, any chem i cal
weapon;or
(2) t o assist or induce, in any way, any person to violate p aragraph (1 ) , or to
attempt o r conspire to violate p aragraph (1).
(b) Ex empted agencies and persons. –
(1) In general. – S ubsection (a) does not apply t o t he retention, o w n ership,
possessi on, t ransfer, o r recei pt of a chem i cal w e a p on by a d epart m ent , agency, or
other entity of the United S tates, or by a person des cribed in paragraph (2), pending
destruction o f t he weapon.
(2) E x empted p ersons.--A person refe r r e d t o i n p aragraph (1) i s – (A) any
person, incl u ding a member of the Armed Forces of the United S tates, who i s
au t h o rized by law or by an appropriate officer of the United S tates t o ret ai n, o w n ,
possess, transfer, o r receive the chemical weapon; or (B) i n an emergency situation,
any o therwise nonculpable p erson i f t he person is attempting t o destroy or seiz e t he
weapon.
(c) J urisdiction. – C onduct p rohibited by s ubsection (a) is within the j urisdiction of
the United S tates i f t he prohibited conduct – (1) takes place in the United States;
(2) t akes place outside of the United S tates and is committed by a national of t he
UnitedStates;
(3) i s committed against a national of t he United S tates while the national i s
outside the United S tates; or
(4) i s commit t e d a ga i n st any p roperty t hat i s o wned, l eased, o r u sed b y t he
United S tates or by any d e p a rtment or agency of the United S tates, whet her t he
property i s within or outside the United S tates.

18 U.S.C. 831. Nuclear Material

( a) W hoever, if one of the circumstances described i n s ubsection (c) o f t h i s
sect i o n o ccurs –
(1) without lawful authority, i ntenti o n a l ly receives, possesses, uses, t ransfers,
alters, d isposes of, o r d isperses any nucl ear material or nuclear byproduct m aterial
and – (A) thereby knowingl y causes t he death o f o r s erious bodily i n j u ry to any
person or substantial d amage t o p roperty o r t o t he environment; or (B) circumstances
ex i s t , or have been represent ed t o t he defendant t o ex i s t , t h at are l i k el y t o cause t h e
deat h of or s erious bodily injury to any person or s ubstantial dam age t o property or
to the environment;
(2) with intent to deprive another o f nuclear material, knowingl y – (A) t akes and
carries away nuclear material or nucl ear byproduct m aterial o f a n o t h er without
authority; (B) makes an unauthoriz ed use, di sposition, or transfer, o f nuclear material
or nuclear byproduct m ateria l b e l onging t o another; or (C) u ses fraud and t hereby
obtains nuclear material or nuclear byproduct m aterial b elonging t o another;
(3) kno w i ngl y – (A) uses force; or (B) t hreat ens o r p l aces anot her i n fear t h at
an y p er s on other than the actor will imminently be subject to bodily injury; and
t h ereby t akes nuclear material or nuclear byproduct m aterial b elonging t o a n o t h e r
from t he person or presence of any o ther;
(4) i ntentionally intimidat es any person and thereby obtai ns nuclear material or
nuclear byproduct m aterial b elonging t o another;
(5) with intent to comp el any person, international organization, or
gover n m ental entity to do or refrain from doing any act, knowingl y t hreatens t o
engage in conduct d escribed in paragraph (2) (A) o r (3) of this subsection;
(6) knowingl y t hrea t e n s to use nuclear material or nuclear byproduct m aterial
t o cause deat h o r s eri ous bodi l y i n j u ry t o any p erson o r s ubst ant i al d am age t o
property o r t o t he environment u n d e r c ircumstances in which t he threat may
reasonably b e understood as an ex pression of serious purposes;
(7) attempts to commit an offense under p aragrap h ( 1 ) , (2), (3), or (4) o f t his
subsection;or
(8) i s a party t o a conspiracy of two o r m ore p ersons to commit an offense under
paragraph (1), ( 2 ) , ( 3 ) , o r (4) of this subsection, if any o f t he parties i ntentionally
engages i n any conduct i n furtherance of such offense;
shall b e punished as provided i n s ubsection (b) of this section.
(b) The punishment for an o ffense under –
(1) p aragr a p h s (1) t hrough (7) of subsection (a) of this section i s – (A) a fine
under t his title; and (B) imprisonment – (i) for any t erm o f year s o r f or life (I) if,
while committing t he offense, the o ffender knowin gl y causes t he death o f any person;
or (II) if, while committing an o ffense under paragraph (1) o r (3) of subsection (a) of
this section, the o ffender, under circumstan ces manifesting ex t reme indifference t o
the life of an i ndivi dual, knowi n gl y engages in any conduct and thereby recklessly
causes t he deat h of or s erious bodily injury to any person; and (ii) for not more than
20 years i n any ot her case; and
(2) p aragraph (8) o f s ubsection (a) of this section i s – (A) a fine under t his title;
and (B) imprisonment – (i) for not more than 20 years i f t he off e n s e w hich is the
object of the conspiracy is punishable under p aragraph (1)(B)(i); and (ii) for not more
t h an 10 years i n any ot her case.
(c) T he ci rcum st ances referred t o i n s ubsect i o n (a) of t h i s sect i o n are t h at –

(1) t he offense i s committed i n t he United S tates o r t h e s p ecial maritime and
territorial jurisdiction of t he United S tates, or the s peci al ai rcraft jurisdiction of t he
United S tates (as defined i n s ection 46501 of title 49);
(2) an offender or a victim is – (A) a national of t he U n ited S tates; or (B) a
United S tates corporation or other legal entity;
(3) after the conduct r e q u i r e d for the o ffense o ccurs the d efendant is found in
the United S tates, even if the conduct required for the o f f e nse o ccurs outside the
UnitedStates;
(4) t he conduct required for the o ffense o ccurs with respect to the carriage o f a
consignment o f nuclear material or nuclear byproduct m aterial b y a n y m eans o f
transportation i n t en ded t o go beyond the t erritory of the s tate where t he shipment
originat es begi nning with the departure from a facility of the s hipper i n t hat s tate and
ending with the arrival at a facility of the receiver within the s tate of u l timate
destination and either of such stat es is the United S tates; or
(5) either – (A) the government entity under s ub s ection (a)(5) i s t he United
States; o r (B) the t hreat under s ubsection ( a)(6) i s d irected at the United S tates.
***
(f) As used in this section –
(1) t he t erm "nucl ear m at eri al " m eans m at erial containing any – (A) p lutonium;
(B) u ranium not in the form o f o re or ore residue that contains the mix ture of isotopes
as occurri ng i n nat u re; (C ) enri ched urani u m, defined as u ranium that con t a i ns the
isotope 233 or 235 or both i n s uch a m ount that the abundance ratio of the s um of
t h o s e i sotopes t o t he isotope 238 is greater than the ratio of the i sotope 235 t o t h e
isotope 238 occurring in nature; o r (D) uranium 233;
(2) t he term "nuclear byproduct m aterial" means any material containing any
radio a c t i v e i sotope created through an i rradiation p rocess i n t he operation o f a
nucl ear react or or accel erat or;
( 3 ) t he term "i nternational o rganiz ation" means a public international
o rganiz ation d esignated as s uch pursuant t o s ection 1 of t he International
O r ganizations Immunities Act (22 U.S.C . 288) or a public organization created
pursuant t o t reaty o r o ther agreement under i nternat i o n a l l a w as an instrument
through o r b y which two o r m ore foreign governments engage i n s ome aspect of their
conduct o f i nternational affairs;
(4) t he term "s erious bodily injury" m eans bodily injury which i nvolves – (A)
a s ubsta n t i a l r i s k o f d eath; (B) ex t reme physical pain; (C) protracted and obvious
d i s f i gurement; or (D) p rotracted loss or impairment o f t he function o f a bodil y
m em b er, o rgan, o r m ent al facul t y;
(5) t he term "bodily injury" m eans – (A) a cut, abr a s i o n , bruise, burn, or
disfigurement; (B) physical pain; (C) illness; (D) impairment o f a function o f a bodily
member, o rgan, o r m ental faculty; o r (E) any o ther injury to the body, n o m atter how
temporary;
(6) t he term "national of t he United S tates" has t he same meaning as i n s ection
101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22); and
(7) t he term "U n i t e d S tates corporation or other legal entity" m eans any
corporation o r o ther legal entity organi zed under t he laws of United S tates o r any
Stat e, Commonwealth, t erritory, possession, or district of the United S tates.
18 U.S.C. 2332a. Weapons of Mass Destruction
(a) Offense against a national of t he United S tates or within the United S tates.
– A person who, without lawful authority, u ses, threatens, or attempts or conspires

to use, a weapon of mass destruction (other t han a chem i cal weapon as t h at t erm i s
defined i n s ection 229F) –
(1) against a national of t he United S tates while such national i s outside of the
UnitedStates;
(2) against any person within the United S tates, and t he results of such use affect
interstate or foreign commerce or, in the cas e of a threat , attempt, or conspiracy,
would have affect ed interstate or foreign commerce; or
(3) against any p roperty t hat i s o wned, l eased or used by the United S tates o r b y
any departmen t o r agency of the United S tates, whet her t he property i s within or
outside of the United S tates,
sha l l b e i m p ri soned for any t erm o f years o r for l i fe, and i f d eat h resul t s , s hal l be
punished by death o r imprisoned for any t erm o f years o r for life.
(b) Offense by national of t he United S tates outside of the United S tates.--Any
national o f t he United S tates who, without lawfu l a u thority, u ses, or threatens,
at t e m p t s , o r conspires t o u se, a weapon of mass destruction (other t han a chemical
weapon (as t hat t erm i s d efined in section 229F)) outside of the United S tates s hall
be imprisoned for any t erm o f years o r for life, and i f d eath results, s hall be punished
by death, or by imprisonment for any t erm o f years o r for life.
(c) Definitions. – For purposes of this section – (1) the t erm "national of t he United
States" h as the m eaning giv en i n s ection 101(a)(22) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(22)); and
(2) t he term "weapon of mass destruction" means – (A) any destructive d evice
as defined i n s ection 921 of this title; (B) any weapon that is designed or intended t o
cause death o r s erious bodily injury through t he release, dissemination, or impact of
tox i c o r poisonous chemicals, or their precursors ; ( C ) any weapon involving a
biological agent, tox i n, or vector (as t hose t e r m s a r e d efined in section 178 of this
title); or (D) any weapon that is designed to release radiation or radioact i v i t y at a
level d angerous to human life.