The El Paso Shooting Is Being Treated As “Domestic Terrorism,” But The Suspected Shooter May Not Be Charged As A Terrorist

Officials are investigating a potential “hate crime” connection to the mass shooting. Even if there is, such crimes aren’t usually prosecuted under US terrorism laws.

WASHINGTON — The Justice Department is treating Saturday’s mass shooting in El Paso, Texas, that killed at least 20 people as a “domestic terrorism case” and exploring a hate crime connection, but the lack of a clear federal domestic terrorism law means these types of mass attacks aren’t usually prosecuted as such.

US Attorney John Bash told reporters Sunday that the Justice Department was treating the shooting as domestic terrorism, but also said that federal law enforcement officials were working on the investigation with an eye toward federal hate crimes and firearms charges — not terrorism explicitly.

“We’re going to do what we do to terrorists in this country, which is deliver swift and certain justice,” Bash said.

There are numerous federal and state crimes that prosecutors can turn to in cases of mass shootings. Defendants can be charged with murder, assault, or unlawfully possessing firearms, and the Justice Department can invoke federal hate crime laws where there’s clear evidence of a racist or otherwise prejudiced motive. But even though these attacks are often referred to as domestic terrorism, federal prosecutions under US terrorism laws have been limited to cases involving foreign actors or organizations.

The suspected shooter in El Paso has been identified by multiple outlets as 21-year-old Patrick Crusius. Local officials have said they’re investigating a potential “hate crime” connection, including a document posted online that they believe, but have not confirmed, was written by the shooter that featured anti-immigrant and white supremacist rhetoric.

El Paso District Attorney Jaime Esparza told reporters Sunday that his office expected to bring capital murder charges and would pursue the death penalty.

Federal law includes a definition of “domestic terrorism,” and federal terrorism laws don’t explicitly rule out prosecutions for domestic acts, but historically those laws have been used for cases with a foreign connection, from terrorism planned by overseas groups to US citizens trying to join groups such as ISIS. A section in the US code defining a particular term isn’t the same as a law criminalizing specific acts.

Some national security experts and legal scholars say that’s a big problem and not just one of semantics. For instance, defendants with white supremacist ties who are charged with stockpiling weapons and plotting — but not actually carrying out — mass attacks may only face lesser firearms offenses, said Mary McCord, a former senior national security official at the Justice Department.

There’s also what McCord calls a “moral equivalency” problem — that the American public and law enforcement agencies don’t treat domestic mass attacks, including in cases where there’s a racist, anti-Semitic, or other motive considered a hate crime, the same as attacks carried out by foreign actors, in terms of perception, attention, and resources.

“Americans tend to equate terrorism with Islamic extremism and, in today's polarized environment, with Muslims. But they don't tend to associate white supremacist violence with terrorism, and they should,” said McCord, a legal scholar at Georgetown University Law Center. “You can't prevent what you don't understand.”

There isn’t pending legislation to create a federal domestic terrorism law. In March, Democratic Sen. Dick Durbin introduced the Domestic Terrorism Prevention Act, which would direct the Justice Department, FBI, and Department of Homeland Security to prepare an annual report on the domestic terrorism threat, including white supremacist and neo-Nazi activities, and what agencies were doing to fight it. It would also create an interagency task force to explore white supremacist activities within the US armed forces.

Durbin’s bill has 19 cosponsors, none of whom are Republicans, which means for now it faces little chance of movement in the Republican-led Senate.

Under federal criminal law, “domestic terrorism” is defined as “acts dangerous to human life that are a violation of the criminal laws of the United States or of any States” and are intended to intimidate civilians, influence government policy through intimidation, or affect how the government functions through mass destruction or other violence.

The definition for “domestic terrorism” was added to the US code after the 9/11 terrorist attacks as part of the USA Patriot Act, at a time when lawmakers were looking for law enforcement tools to address foreign threats to the United States. In the nearly two decades since then, terrorism prosecutions have typically been framed in a foreign context.

Federal terrorism laws make it a crime to provide “material support” to terrorists or terrorist organizations, including personally joining in terrorist acts or recruiting others, financing terrorism, or providing weapons, training, or other resources. These laws make clear that people who join or support groups recognized by the US government as foreign terrorism organizations can be prosecuted for terrorism.

But the First Amendment’s free speech protections have complicated efforts to officially declare domestic groups, such as the Ku Klux Klan and other domestic white supremacist groups, as terrorist organizations, McCord said. That removes one way that people who carry out mass attacks in the name of racism or anti-Semitism can be prosecuted for terrorism, she said.

The laws that criminalize supporting terrorist acts generally also include limits that restrict how they can apply to domestic terrorism — for instance, McCord said that in cases that don’t involve US government employees or US property, mass attacks carried out using guns, as opposed to bombs or other weapons of mass destruction, wouldn’t normally qualify as terrorism offenses.

In February, US Coast Guard Officer Christopher Paul Hasson was arrested on firearms and drug charges. The government accused him of plotting a white supremacist attack, but he wasn’t specifically charged with terrorism. A federal magistrate judge recommended releasing Hasson, noting he hadn’t actually been charged with terrorism, notwithstanding those claims in the charging papers, but a US district judge disagreed and ordered Hasson held pending trial, citing allegations that he’d reviewed sections of a manifesto written by far-right Norwegian terrorist Anders Breivik about targeting "category A traitors” and allegedly made a hit list of Democratic politicians and media figures.

Citing the Hasson case, US Attorney Thomas Cullen for the Western District of Virginia wrote an op-ed in the New York Times supporting the passage of a federal domestic terrorism law. Cullen wrote that federal hate crime laws could be used in some cases, but prosecutors could rely on that only if there was clear evidence that an attack was motivated by certain viewpoints, such as racism or anti-Semitism.

“Although this evidence exists in many hate crimes, it proves elusive in others,” Cullen wrote. The federal hate crimes statute has to involve activity that crosses state lines, which is another limitation, he noted.

Other legal scholars have questioned the need for a new domestic terrorism law, pointing to the laws already on the books that allow for federal prosecutions of domestic terrorists, even if they aren’t called that. Michael German, a fellow with the Brennan Center for Justice’s Liberty and National Security Program and a former FBI special agent, wrote in a December article on the website Just Security, responding to McCord’s public calls for a domestic terrorism law, that the problem was that the Justice Department hadn’t prioritized tools already available to go after domestic terrorists.

Asked on Sunday about Attorney General Bill Barr’s position on a domestic terrorism law, a Justice Department spokesperson declined to comment.

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