By Andrew C. McCarthy
Sunday, March 15, 2026
Yesterday, I addressed Thursday’s jihadist attack in Michigan. Today, I
turn to the jihadist attack the same day in Virginia, focusing on the knotty
legal issues it raises.
At Old Dominion University in Norfolk, a 36-year-old terrorist
named Mohamed Bailor Jalloh killed a former Army officer and wounded two cadets
in a premeditated attack on U.S. military trainees. Jalloh, an immigrant from
Sierra Leone, a country with an overwhelmingly Muslim population, was a
naturalized American citizen who himself had attended ODU and served in the
Virginia National Guard. More notably, he was at liberty to carry out the
attack despite having previously been convicted of a terrorism felony.
Situated near the largest U.S. naval base in the world,
ODU has close ties to the American armed forces. Many active-duty service
members, veterans, and their families attend classes. There are Reserve
Officers’ Training Corps (ROTC) programs for the Navy, Army, and Air Force.
Moreover, ODU offers courses of study, research, and training that are oriented
to military systems, defense technology, and maritime engineering.
CBS reports that Jalloh walked into a military science
class being conducted in Constant Hall, part of ODU’s business college. He
asked whether the class was affiliated with the ROTC; informed that it was, he
shouted, “Allahu Akbar” (“Allah is greater”) and opened fire. He murdered the class’s
instructor, Lieutenant Colonel Brandon A. Shah (retired), a native
Virginian and ODU alumnus who was providing aspiring military officers the
benefit of his experience and life of service to our country — which included
tours in Iraq and Afghanistan.
Jalloh also wounded two students. As he fired, he was set
upon by other students in the class, one of whom killed him with a knife.
What I most want to focus on is the question of why
Jalloh was not in federal prison and why he was still in the country.
As noted above, Jalloh was convicted of a terrorism
felony. He pled guilty in 2016, not long after being honorably discharged from
the National Guard. Terrorism is as heinous as criminal conduct gets so it
should be extremely rare, to say the least, for someone to live long enough and
remain active enough to be prosecuted twice for terrorism crimes.
Note, I said “should be.” As things are, two such
prosecutions, even more than two, are possible because of the combination of
prosecutorial undercharging, judicial under-sentencing, early release from
custody, and inadequate post-release supervision in terrorism cases.
Jalloh pled guilty in 2016 to the charge of material
support to terrorism. That’s a serious crime, but not as serious as conspiring
to commit terrorism.
Federal law features two material support offenses.
Jalloh was charged with the more serious one: providing material support to a
designated foreign terrorist organization (the best known in our law are ISIS,
al-Qaeda, Hezbollah, and Hamas) under Section
2339b). That offense is punishable by up to 20 years’ imprisonment, but
there is no minimum sentence (i.e., a judge could impose no term of
incarceration).
The other material support crime, under Section
2339a, is providing such support or resources to some person or group (not
necessarily formally designated), knowing that this support is to be used in
connection with various crimes commonly associated with terrorism. It is
punishable by up to 15 years’ imprisonment (again, no minimum sentence).
When Jalloh pled guilty, the Justice Department asked for
the maximum sentence of 20 years. Alas, Judge Liam O’Grady, an appointee of
President George W. Bush to the federal bench in the Eastern District of
Virginia, rebuffed the prosecutors. Besides Jalloh’s six years of military
service (2009–15), Judge O’Grady was apparently moved by defense claims that
Jalloh was plagued by substance abuse and mental health problems.
The federal system abolished parole in 1987, so
defendants are supposed to serve substantially all of the term of incarceration
meted out (meaning over 80 percent, as opposed to the ridiculous 33 percent or
less common in the parole era). Prisoners are still permitted to earn “good
time” (up to 54 days a year) if they are reasonably well-behaved in custody,
which can reduce the sentence by about 13 percent. (Terrorism convicts are not
supposed to be eligible for some additional benefits, such as time off for
completing drug treatment programs or the 2018 First Step Act’s anti-recidivism
programs.)
Jalloh was sentenced in 2017, but he was credited with
time served beginning with his May 2016 arrest. Still, it appears he should
have been in custody until the end of 2025. For reasons unexplained at this
point, he was released on December 23, 2024, about a year early. He was given a
five-year term of supervised release (post-sentence administration by the
Bureau of Prisons). As the atrocious events of Thursday demonstrate, it’s a
very passive form of supervision with no meaningful deterrent effect against
terrorists and hardened criminals.
I believe the Justice Department often charges defendants
with materially supporting terrorism when prosecutors should instead charge
them with actually committing or plotting to commit terrorism themselves.
The material support statutes do not provide for
sentences of life imprisonment or death because they are meant for people who
knowing contribute assets — usually money — to terrorist groups. That’s
heinous, but it’s not as heinous as scheming to do hands-on mass murder.
If the material support a jihadist provides to a terrorist group is himself,
that is not merely material support; it is substantive terrorism or conspiracy
to commit terrorism.
The distinction makes a big difference. For example, a
person convicted of conspiracy to commit terrorism that contemplates murder, as
most terrorism conspiracies do, can be sentenced to any term of years or life
imprisonment (under Section 2332). Ditto a person who conspires to use a weapon
of mass destruction (under Section
2332a) or who conspires to commit acts of terrorism that would cause
serious bodily injury (under
Section 2332b).
When Jalloh was apprehended in July 2016, the Justice
Department issued a press release describing the evidence against him. It says
he met in Nigeria with members of ISIS (referred to as “ISIL” in the Obama era)
and had an ISIS contact who brokered an introduction to someone he and his
contact believed was a terrorist but who turned out to be an FBI undercover
agent conducting a sting operation. This introduction was in furtherance of
scheming to carry out a terrorist attack in the United States. Jalloh, having
been in the armed forces, indicated that he had military training, including in
the use of firearms. For purposes of carrying out the attack, he contributed
$500 to the cause and ultimately obtained a firearm — the day after which he
was arrested.
That seems to me like enough to charge someone with
conspiracy. To be sure, as a matter of law, one cannot conspire with an
undercover government agent. Nevertheless, according to the government, Jalloh
met the agent only because he had already connected with ISIS in Africa. Jalloh
expressly said in the course of the planning that he wanted to commit a
mass-murder attack similar to the 2009 attack on U.S. soldiers at Fort Hood, in
which a jihadist shot 13 people to death and wounded another 30. And Jalloh took
concrete steps (overt acts) to try to carry out this objective.
That’s not just material support; it’s deep involvement
in a plot to personally commit mass murder.
Still, I can’t fault prosecutors much here. Even if they
had brought more serious charges against Jalloh, there is no guarantee that the
sympathetic Judge O’Grady would have imposed a more severe sentence.
Here is what we can say with confidence: Confronted with
a jihadist who’d sought to carry out a repetition of the Fort Hood attack, the
government charged him with a 20-year crime rather than crimes befitting a
would-be mass murderer; the judge then further discounted his terrorist conduct
by slicing nearly in half the available sentence, imposing just 132 months’
imprisonment instead of 240; the federal correction authorities then released
Jalloh almost a year early; and because, instead of being incarcerated as he
should have been, he was on post-incarceration “supervision,” Jalloh this time
was able to carry out a jihadist attack rather than be thwarted while plotting
one.
Finally, many have asked why Jalloh wasn’t denaturalized
when he pled guilty back in 2016. Had he been, then upon his release from the
2016 terrorism conviction, he could have been deported rather than released
back onto America’s streets.
It’s complicated and, as this is written, we lack some
necessary information.
For the most part, revocation of naturalized citizen
status is limited to situations in which a person procured naturalization by
fraud of some kind (e.g., by lying about or withholding material facts about
one’s background and qualifications). A criminal prosecution for such fraud
must be brought within five years of naturalization (see Section
1425 of the penal law); but even if such a case is charged, the statute
does not prescribe automatic denaturalization as a penalty.
To accomplish that, the government must file a civil
suit. There is no statute of limitations on such an action, but the
disqualifying conduct must be in connection with the naturalization process.
(See Section
1451 of immigration law.) That is, if a person becomes naturalized and
subsequently commits some crime, that is generally not a legal basis to
denaturalize.
That said, there is a provision in Section 1451 (in
conjunction with Section 1424) that says a person’s naturalization can be
revoked if, within five years afterward, he joins or becomes affiliated with a
subversive organization. This is a vestige of the Cold War, written with
membership in communist and anarchist parties or organizations in mind. But its
general language captures totalitarian organizations that advocate the violent
overthrow of the U.S. government. Consequently, there have been
denaturalization cases based on affiliation with ISIS and other jihadist
organizations.
Jalloh was born in Sierra Leone in 1989. So far, I have
not been able to find reporting about exactly when he immigrated to the U.S.
and when he was naturalized. He enrolled at ODU in 2006 when he was 17 years
old; how long he’d been here at that point, I cannot say. The Justice
Department’s press release indicates that his affiliation with ISIS, details
about which are murky, began on a six-month trip to Africa after he was
discharged from the military in 2015.
Bottom line: We’d need to know when Jalloh was
naturalized. If it was in his youth, years before his embrace of ISIS, there
would have been inadequate legal basis to seek his denaturalization. If his
naturalization was close in time to his embrace of ISIS as a 26-year-old, there
might be a basis to argue that the government should have sought
denaturalization when he pled guilty — on the theory that his pledge of loyalty
to the U.S. was fraudulent.
So we need more facts.
Personally, I believe any American convicted of
committing, conspiring to commit, or materially supporting terrorism should
have his citizenship revoked. In 1967, however, the Supreme Court ruled (in Afroyim
v. Rusk) that Congress has no constitutional authority to divest
citizenship from a natural-born citizen without that citizen’s consent. A
natural-born citizen can be divested only after renouncing U.S. citizenship.
For naturalized citizens, such as Jalloh, it’s a
different matter. They can be divested involuntarily. They should be; whether
they can be shouldn’t hinge on some inference about fraud or allegiance to be
drawn regarding the naturalization process itself. Affiliation with terrorists
who revile the American constitutional system, wage jihad against our nation,
and seek to violently supplant our governing framework with sharia should
suffice under any circumstances. But for that, we’d need to change the law.
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