President Trump, senior members of Congress and others labeled this weekend’s mass shootings as domestic terrorism. Yet there is no official crime by that name.
There is, however, a growing consensus that it’s time for change. Supporters of the designation say it would give federal investigators a tool to try to stop attacks such as the El Paso shooting rather than having to respond afterward.
It would also open the door to stiffer federal penalties for those who plot attacks but are stopped or give up before they carry them out.
The approach is better than having to shoehorn a clear terrorism case into other criminal laws, say those who have been involved with investigations.
“If you can have a statute that speaks to the conduct at issue, that is better than borrowing pieces from other statutes,” said Henry E. Hockeimer Jr., a former federal prosecutor who served on the FBI’s Domestic Terrorism Task Force. “For people out there who may be planning something, it helps that there is a charge covering their conduct.”
For one thing, having a specific charge could make it easier for the FBI to win wiretaps or obtain warrants during an investigation to try to prevent an attack.
“Using undercover informants, running sting operations and disrupting a plot before it happens, that would come along with making this a federal crime,” said Mary McCord, a former senior official with the Justice Department’s national security division.
She said the opportunities are limited now.
“Unless a threat is lodged against a government official or property, it likely won’t qualify as a terrorism case,” she said.
Patrick Crusius, the man who police say posted a racist manifesto before attacking people at a Walmart in El Paso, Texas, faces capital murder charges in state court. The worst charges federal officials could have filed would be hate crimes and firearms offenses.
Mr. Trump, in addressing the nation Monday in the wake of the shooting in El Paso and another in Dayton, Ohio, said he has ordered the FBI to prioritize domestic terrorism investigations and said the bureau will identify what new resources are necessary.
“Whatever they need,” he said.
On Capitol Hill, Democrats for several years have been calling for a bigger focus on domestic terrorism. They argue that the threat from right-wing activists is particularly dangerous, more so than threats from Islamist terrorist groups such as al Qaeda and the Islamic State.
Rep. Bennie G. Thompson, Mississippi Democrat and chairman of the House Homeland Security Committee, demanded Tuesday that the FBI begin monthly briefings with Congress on “the deadly growth in domestic terrorist threats in the U.S.” He said he also will hold a hearing next month with FBI Director Christopher A. Wray, acting Homeland Security Secretary Kevin McAleenan and acting National Counterterrorism Center Director Russell Travers.
Some of the toughest anti-terrorism laws on the books make it a crime to provide or conspire to provide material support to terrorists or terrorist organizations. The laws define support as recruiting others, financing a plot, or providing weapons or training to others.
Federal prosecutors aggressively pursue those charges against people suspected of supporting foreign terrorist groups, but they are rarely invoked at the domestic level. Analysts contacted by The Washington Times could recall only one insistence when it was used: a 2015 case in which an engineer pledged to help another defendant build a weapon for killing Muslims.
“It is not used often at the domestic level because it is redundant,” said Michael German, a fellow with the Brennan Center and a former FBI special agent. “Conspiracy charges also apply the same legal authority.”
He estimated that more than 50 terrorism crimes already could apply to domestic terrorism.
He said the charges are rarely invoked because it requires prosecutors to prove motive or intent, a harder burden to meet than a mere weapons crime.
“This is a policy change the Justice Department could make tomorrow if they’d like,” he said. “What is a 53rd terrorism charge really going to do?”
Ms. McCord argues that the domestic terrorism charge is necessary because it would elevate the crime in the public’s eye. That would put suspected domestic terrorists on the same level as their foreign counterparts.
“It would help the people in this country understand that terrorism is not just about al Qaeda and ISIS, but also lethality from white extremists,” she said. “It sends a message that the American people condemn any kind of terrorism, whether it is far-right, far-left or Muslim extremism.”
Many officials labeled the fatal shootings of 11 people at a Pittsburgh synagogue last fall an act of terrorism, and the man accused, Robert Bowers, faces 44 federal counts, including some that could land him the death penalty. But he does not face a single terrorism charge.
Karen Greenberg, director of the Center on National Security at Fordham Law School, worried that creating a domestic terrorism statute would lead to prosecution over someone’s speech or sending a tweet in support of an unpopular view.
“If this is going to happen, it really needs to be done in a way more carefully than pundits are talking about,” she said. “It needs to be done with an emphasis on not criminalizing speech, not having a list of domestic terrorism organizations. That could go down a very dark road in the current political climate, and it would be another thing designed to protect us that gets swept up in an overly broad use.”
Mr. German said groups such as Black Lives Matter or those who organized to oppose the Keystone XL pipeline are the type that might face extra scrutiny.
He pointed to more than 200 charges that the Justice Department brought against protesters on Inauguration Day in 2017. The so-called J20 protests resulted in fires and property damage but no injuries.
He contrasted that with the 2017 race-fueled clashes in Charlottesville, Virginia, where initially only James Alex Fields was arrested for striking and killing a counterprotester with his car. A group of four California white supremacists later faced federal charges in connection with the riots, and some of the counterprotesters faced local charges.
“If you look at where the Justice Department has been most aggressive in prosecution, it is the protest groups rather than the groups that commit violent homicides,” Mr. German said.
Whether Congress moves to enact a domestic terrorism statute remains to be seen.
Mr. Thompson said he will move on legislation that would require the FBI to produce an annual report on domestic terrorism and would push the Department of Homeland Security to do more to study white supremacists and terrorist connections.
Sen. Richard J. Durbin and Rep. Bradley Scott Schneider, Illinois Democrats, have legislation to create domestic terrorism offices at the FBI, Justice Department and Homeland Security. It also orders them, along with the Pentagon, to create an interagency task force to combat white supremacist infiltration of the military.
“The threat posed by white supremacists and other violent far-right extremists is growing, and we need to update our laws to reflect this dangerous source of domestic terrorism,” Mr. Schneider said in a statement to The Times. “Our legislation is a necessary first step to improve coordination between federal law enforcement agencies and direct their attention to containing the threat.”
• Jeff Mordock can be reached at jmordock@washingtontimes.com.
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