Federal authorities investigating the El Paso shooting call it an act of domestic terrorism, but they cannot apply the same terrorism law that prosecutors have used for years against supporters of the Islamic State and al-Qaida.
The federal government defines domestic terrorism roughly as politically motivated violence designed to coerce or intimidate a civilian population. The assault on a shopping area seemed to qualify after the emergence of a rambling screed posted to an online message board about 20 minutes before the shooting. The note said the massacre was in response to an “invasion” of Hispanics coming across the southern border. Investigators increasingly believe those words were written by the suspect.
The FBI is using a specialized domestic terrorism fusion cell to investigate the killing of 20 people, and law enforcement officials said they are considering bringing charges that could result in the death penalty.
“We’re going to do what we do to terrorists in this country, which is deliver swift and certain justice,” U.S. Attorney John Bash, the top federal prosecutor in West Texas, said Sunday at a news conference.
But if the shooting underscores the threat of racially based violence, it also exposes a legal gap: Though federal prosecutors can bring international terrorism charges against supporters of the Islamic State and other foreign groups, there’s no comparable domestic terrorism statute for people who target blacks, Jews, Hispanics or other minority groups in the U.S.
That forces the Justice Department to rely on a collection of other laws that do not have the terrorism label but can still result in equally harsh sentences. In the El Paso case, for instance, officials say they are considering hate-crime and weapons charges against 21-year-old Patrick Crusius.
The shooting was likely to reinvigorate calls for a new domestic terrorism law and for heightened government focus on domestic security threats that officials say are on the rise. A group of former National Security Council counterterrorism directors issued a statement urging the government to address domestic extremism with the same urgency it used to confront international risks in the years after the Sept. 11 attacks.
That means “providing a significant infusion of resources to support federal, state, and local programs aimed at preventing extremism and targeted violence of any kind, motivated by any ideology or directed at any community,” the statement said.
Some civil liberties groups say the U.S. government already has the investigative tools it needs to ensure convictions and lengthy prison sentences for domestic extremists, but that’s not the point, said Mary McCord, the former head of the Justice Department’s national security division. She supports adopting a federal domestic terrorism law for acts meant to intimidate civilians or affect government policy, saying it could demonstrate the government’s seriousness about the threat.
“When you use terrorism as a means to further your goals, whatever they may be, regardless of their content, that should be prosecuted as terrorism,” McCord said.
After Sept. 11, the FBI shifted resources to combat international terror groups and their followers in the United States. In the years since, national security prosecutors have relied hundreds of times on a law that makes it a crime to lend material support to any federally recognized foreign terrorism organization. But there’s no domestic equivalent, in part because the U.S. does not regard any U.S.-based group – including the Ku Klux Klan – as a terror organization nor treat mere membership as a crime.
The last 12 months have produced an uptick in acts deemed domestic terrorism, with the number of deaths outpacing those caused by individuals inspired by foreign groups. Most notable was the October killing of 11 people at a Pittsburgh synagogue. Robert Bowers, a man who officials said expressed hatred of Jews during the rampage and later told police that “all these Jews need to die,” has been charged in that massacre.
FBI Director Chris Wray told lawmakers last month that domestic terrorism is a “persistent serious threat.” The Justice Department in recent years has tried to confront that threat by appointing a domestic terrorism co-ordinator and creating the specialized unit that will investigate the El Paso attack. It also investigated an April shooting at a California synagogue.
The FBI has also begun classifying domestic terrorism acts into four main categories: racially motivated extremism, anti-government extremism, animal rights extremism and abortion extremism.
It was unclear when Crusius might be charged federally or what specific charges he could face. Attorney General William Barr announced last month that the Justice Department would resume federal executions for the first time since 2003.
In the meantime, McCord said, it is imperative that the government call shootings like the one on Saturday terrorism.
She said there is concern on the right about calling white supremacist violence terrorism “because of who may turn up to be the target of these investigations. Shame on them.”