“Not So Fast, My Friend”:[i]

Introduction

Idaho has a long-standing and painful history with bombings. On December 30, 1905, a bomb exploded killing Idaho Governor Frank Steunenberg as he opened the front gate to his residence in Caldwell. Steunenberg’s assassination by Harry Orchard spawned the “Trial of the Century” in the summer of 1907, with a list of participants rich in Idaho legal lore: William E. Borah, James H. Hawley, and Clarence Darrow.[ii]

More recently, on September 15, 1986, Catholic priest Bill Wassmuth, who, as chairman of the Kootenai County Task Force on Human Relations, helped lead the charge against white supremacists in north Idaho, was sitting in his living room about twenty feet from the explosion when a bomb shredded the back of his house at approximately 11:45 p.m. The sound of the bomb could be heard thirty blocks away. Wassmuth fortunately was not injured; however, the bomb caused about $4,000 worth of damage to Wassmuth’s home, the rectory of the St. Pius X parish.[iii] Wassmuth had earlier drawn the ire of Aryan Nations members in the area when, in July, he led nearly 1,000 people in a human rights celebration, countering a gathering of about 185 participants at a World Aryan Congress in Hayden Lake at the compound of the Church of Jesus Christ Christian.[iv]

This article explores the passage of Idaho’s Terrorist Control Act in the aftermath of the attempt on Reverend Wassmuth’s life and how the more recent efforts at amending that Act should carefully heed the historical context underlying the Act’s passage.

The Passage of Idaho’s Terrorist Control Act

In 1987, just months after Wassmuth’s house was bombed, the Idaho Legislature passed House Bill 353, entitled the “Terrorist Control Act” (hereinafter, the “Act” or “TCA”). Governor Cecil Andrus signed the bill into law, which is codified at Idaho Code section 18-8101, et seq. The TCA’s stated purpose is not to “interfere with exercise of rights protected by the constitutions of the state of Idaho or the United States,”[v] but instead to punish unconstitutional and “unlawful acts of violence against persons and property” that pose “a threat to public order and safety….”[vi]

The TCA criminalizes, among other behavior, conspiring with one or more persons “to injure, oppress, threaten, intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the constitutions or laws of the United States or the state of Idaho.[vii] A violation of the Act is punishable by up to ten years imprisonment and/or a fine not exceeding $50,000.[viii] The TCA also contains an exhaustive list of permissible (excluded) activities, ranging from karate and shooting clubs to law enforcement agency training.[ix]

Early Amendments to the Terrorist Control Act and Related Statutes

The Idaho Legislature amended the TCA in 2002, adding “Terrorism” to the list of defined terms (which the Legislature broadly defined) and the conspiracy “to commit an act of terrorism” to the list of prohibited activities under the Act.[x] The amendment additionally upped the potential punishment for the commission of a terrorist act, or the conspiracy to commit a terrorist act, to life in prison and/or a fine not exceeding $50,000.[xi]

The 2002 amendment also added a new section to the TCA making it illegal to provide “material support or resources” to terrorists.[xii] The TCA broadly defines material support to include such things as monetary support, lodging, equipment, weapons, and “other physical assets.”[xiii] Providing material support to terrorists is punishable by up to fifteen years in prison and/or a fine not exceeding $50,000.[xiv]

In 2006, the Idaho Legislature amended Idaho Code section 19-401 to add an act of terrorism to the list of felonies for which there is no statute of limitations.[xv]

Prosecutions Under the Terrorist Control Act

Prosecutions under the TCA have been scarce, but they do exist. In December 2019 Third Judicial District Judge Davis VanderVelde sentenced 22-year-old Grant Stevenson to fifteen years in prison after Stevenson made sarin gas threats in Nampa.[xvi] According to the probable cause affidavit in the case, Stevenson sent a Facebook message to the Nampa Police Department in March 2019, stating that some Nampa apartments had bombs planted in them and that the bomb contained deadly sarin gas.[xvii]

Stevenson threatened to detonate the bombs within one hour of his post and claimed that he had five deterrent car bombs in place.[xviii] Stevenson’s Facebook message culminated by stating that he wanted to watch as the bomb leveled everything within 400 yards and carried the deadly sarin gas across the Treasure Valley.[xix] Stevenson ended the message by stating, “death to America.”[xx]

Also in 2019, the Owyhee County Prosecutor’s Office charged James Rushworth with violating the Act’s provision against going on the premises of any citizen “with one (1) or more persons, with the intent by use of violence against such citizen or his property, to prevent or hinder his free exercise or enjoyment of any right or privilege….”[xxi] Rushworth’s prosecution was related to a bizarre case in which Rushworth was alleged to have been part of a conspiracy to lure a Marsing farmer Rod St. Clair out of his house so that another man, Mark Warner, could attack St. Clair with a medieval weapon commonly known as a morning star.[xxii] St. Clair’s daughter entered the scene and shot Warner but also accidentally shot St. Clair in the fracas, killing him.[xxiii]  Rushworth eventually pleaded guilty to a charge of malicious injury to property and is serving time in the Idaho State Correctional Institute.

Proposed 2024 Amendments to the Terrorist Control Act

In 2024, for the third time in three years, the Idaho Legislature took up Senate Bill 1220, which contained proposed amendments to the TCA. The proposed 2024 amendments would have made significant changes to the TCA, most notably the creation of a definition for “Domestic terrorism.” Senate Bill 1220 proposed defining “Domestic terrorism” as “activities conducted within or that take effect within the geographical boundaries of the state of Idaho” that were “done in cooperation with any foreign terrorist organization, as defined in 8 U.S.C. 1189,[xxiv] that threatens the sovereignty of Idaho or the United States of America.”[xxv]

Similarly, Senate Bill 1220 proposed amending the definition of “Terrorism” to require that the activity in question be “done in cooperation with any foreign terrorist organization, as defined in 8 U.S.C. 1189, that threatens the sovereignty of Idaho or the United States of America.”[xxvi] Senate Bill 1220 also proposed adding a definition for the term “Terrorist,” which would have been defined as “a person who pleads guilty to or is found guilty of terrorism as defined in this section.” Senate Bill 1220’s Statement of Purpose indicated that the “legislation would prevent an Idahoan from being labeled a domestic terrorist or terrorist in Idaho with constitutionally protected due process.”[xxvii]

On January 19, 2024, the Senate Affairs Committee sent Senate Bill 1220 to the full Senate with a “do pass” recommendation.[xxviii] On January 24, 2024, the Idaho Senate passed Senate Bill 1220 by a vote of 27-8.[xxix] In the meantime, Senate Bill 1220 had garnered significant attention, leading to media coverage[xxx] and opposition, including former Idaho Attorney General and Chief Justice of the Idaho Supreme Court, Jim Jones, who wrote an op-ed urging Legislators not to pass the bill and consider the historical context which led to the TCA’s initial passing.[xxxi] Ultimately, the House Judiciary, Rules & Administration Committee did not advance Senate Bill 1220 to the full House after a tie vote of 8-8.[xxxii]

Conclusion

Had the Idaho Legislature passed Senate Bill 1220, would it have excluded those who made an attempt on Reverend Wassmuth’s life in 1986 from prosecution under the TCA? Perhaps.[xxxiii] How about Harry Orchard? Again, perhaps. Grant Stevenson? Likely, yes.

But the purpose of this Article is not to castigate the amendments (or their drafters). Instead, it is to highlight the paramount importance of examining the historical context underpinning laws like the TCA when contemplating whether or not to make such significant amendments. Laws like Idaho’s Terrorism Control Act stem from significant, complex, and, in the case of the TCA, oftentimes deeply troubling historical events.  And it is a wholly worthwhile endeavor to take a deeper dive into the historical context that helped drive the law’s enactment in the first place.

Drawing from the old adage, Winston Churchill in a 1948 speech to the British House of Commons said, “Those that fail to learn from history are doomed to repeat it.” In the case of Idaho’s TCA, and the looming possibility of a fourth attempt at amending the Act, one hopes that isn’t the case.

Christopher P. Graham is a partner at Brassey Crawford, PLLC. He graduated with a B.A. in history from Boise State University in 1995 and earned his law degree from the University of Idaho College of Law in 2000. Chris is currently chairperson of the Legal History Section of the Idaho State Bar.

Saylor O’Kelley is a legal intern at Brassey Crawford, PLLC.  She graduated from the University of Idaho in 2024 and plans on attending the University of Idaho College of Law starting in the fall of 2025.

The authors would like to thank Layce Silvey, Legislative Librarian with the Idaho Legislative Services Office’s Research and Legislative Division, for providing invaluable research and assistance in writing this article.

[i]See, generally, Lee Corso, College Game Day. 

[ii] For an excellent, albeit lengthy, recount of the assassination and subsequent trial, see J. Anthony Lukas, Big Trouble: A Murder in a Small Western Town Sets Off a Struggle for the Soul of America (1997).

[iii] See “Priest says bomb won’t stop work,” Idaho Statesman, Sept. 17, 1986, p. 29, 31.

[iv] Id.

[v] Idaho Code §18-8101. 

[vi] Id.

[vii] Idaho Code § 18-8103(1).

[viii] Idaho Code § 18-8103.

[ix] Idaho Code § 18-8104.

[x] Idaho Code § 18-8102(5); Idaho Code § 18-8103(5).

[xi] Idaho Code § 18-8103(5).

[xii] Idaho Code § 18-8106.

[xiii] Idaho Code 18-8106(2).

[xiv] Idaho Code 18-8106(21). In 2004, Senator Mike Burkett introduced Senate Bill 1235, which revised the definition of “terrorism” to require that the activity be a felony (as opposed to a misdemeanor) violation of Idaho criminal law.  Senate Bill 1235 did not make it out of committee, however.  S.B. 1235, 57^th Legislature, Second Reg. Sess. 2004 (2004), found at https://legislature.idaho.gov/sessioninfo/2004/legislation/S1235.

[xv] Idaho Code § 19-401(5).

[xvi] Ruth Brown, Idaho man sentenced to 15 years in prison for sending police a terrorism threat, Idaho Statesman, Dec. 2, 2019, found at https://www.idahostatesman.com/news/local/crime/article237959099.html.

[xvii] Id.

[xviii] Id.

[xix] Id.

[xx] Id.

[xxi] Idaho Code § 18-8103(2).

[xxii] Shira Matsuzawa, Marsing mystery: Four years ago Rod St. Clair was killed but there are still unanswered questions, Mar. 1, 2024, found at https://www.ktvb.com/article/news/crime/marsing-mystery-four-years-ago-rod-st-clair-was-killed-at-home-but-there-are-still-unanswered-questions/277-9dce9ee0-4fa9-4cf4-983a-544f3ee49d62.

[xxiii] Id.

[xxiv] S.B. 1220, 67^th Legislature, Second Reg. Sess. 2024 (2004), found at https://legislature.idaho.gov/sessioninfo/2024/legislation/S1220.

[xxv] Id.

[xxvi] Id.

[xxvii] Statement of Purpose, S.B. 1220, 67^th Legislature, Second Reg. Sess. 2024 (2024), found at chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://legislature.idaho.gov/wp-content/uploads/sessioninfo/2024/legislation/S1220SOP.pdf.

[xxviii] See Minutes, State Senate Affairs Committee, Jan. 19, 2024, at p. 2, found at chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://legislature.idaho.gov/wp-content/uploads/sessioninfo/2024/standingcommittees/240119_ssta_0800AM-Minutes.pdf.

[xxix] See Daily Journal, 67^th Legislature, Second Reg. Sess. 2024 (2024), found at https://legislature.idaho.gov/sessioninfo/2024/legislation/S1220/.

[xxx] See Idaho Senate Passes Bill to Define Domestic Terrorism as Activity Associated with Foreign Groups, Mia Maldanato, Idaho Capital Sun, Jan. 25, 2024, found at: https://idahocapitalsun.com/2024/01/25/idaho-senate-passes-bill-to-define-domestic-terrorism-as-activity-associated-with-foreign-groups/; This Idaho plan to get rid of domestic terrorism doesn’t involve fighting it, Frank Figliuzzi, MSNBC, found at: https://www.msnbc.com/opinion/msnbc-opinion/idaho-domestic-terrorism-definition-rcna136176.

[xxxi] See Opinion: Let’s not render Idaho’s domestic terrorism law useless, Jan. 24, 2024, found at: https://cdapress.com/news/2024/jan/24/opinion-lets-not-render-idahos-domestic-terrorism-law-useless/

[xxxii] See Minutes, House Judiciary and Rules Committee, Mar. 1, 2024, at p. 1-2, found at https://legislature.idaho.gov/sessioninfo/2024/legislation/S1220/.

[xxxiii] I say perhaps because Idaho Code section 18-8103(1) might still apply (prohibiting under the Act any person who “[c]onspires with one or more persons to injure, oppress, threaten or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the constitutions or laws of the United States or the state of Idaho, by the use of violence against the person or property of such citizen”).