Two words immediately came to mind after a white-nationalist gunman killed 22 people and wounded 24 others at an El Paso Walmart earlier this month: domestic terrorism.
News organizations, elected officials from both parties, and the Justice Department described the massacre as an act of terrorism after the gunman’s ideological motives became clear. “We’re going to do what we do to terrorists in this country, which is deliver swift and certain justice,” Federal Prosecutor John Bash told reporters.
But when the U.S. attorney’s office brings their case against alleged gunman Patrick Crusius, those two words won’t be part of the charges against him. While federal law provides ample tools to prosecute him, those measures don’t actually use the phrase “domestic terrorism.” Martha McSally, a Republican senator from Arizona, introduced a bill this week to fix that conundrum. Her proposed law may create worse problems than it solves.
The legislation takes aim at a strange disparity in federal law. When the Justice Department goes after jihadist terrorists, for example, their crimes are typically charged under federal laws aimed at international terrorism. But those laws don’t apply when the acts are purely domestic in nature. So while DOJ officials may describe white-nationalist murders as domestic terrorism in press conferences, as Jeff Sessions did after the murder of Heather Heyer in Charlottesville and as federal prosecutors did this month after the El Paso shooting, they cannot prosecute it as such in the courtroom.
The distinction may seem semantic, but words matter. Terrorism is an innately political category of crimes. Formally applying the term to some perpetrators but not others risks signaling that some forms of political violence are less serious than others. Supporters of a domestic-terrorism statute say it would fix that. “For too long we have allowed those who commit heinous acts of domestic terrorism to be charged with related crimes that don’t portray the full scope of their hateful actions,” McSally said in a statement. “That stops with my bill.”
McSally’s seven-page bill would add the crime of domestic terrorism to federal law for the first time. It covers a range of standard criminal offenses if they are committed “with the intent to intimidate or coerce a civilian population or influence, affect, or retaliate against the policy or conduct of a government.” Committing manslaughter or kidnapping under those terms could bring a life sentence; a person convicted of murder under the statute could face the death penalty. The statute also applies if a defendant conspires to commit one of the acts or makes an attempt to do so.
Murder and kidnapping are relatively easy to define. Other parts of the proposed statute, however, are troublingly vague. One provision allows federal prosecutors to bring charges if a defendant “creates a substantial risk of serious bodily injury to any other person by intentionally destroying or damaging any structure, conveyance, or other real or personal property.” Note that a person does not have to actually cause serious bodily injury to face charges. They merely have to create the possibility of it by damaging property for political reasons. The offense carries up to a 15-year sentence.
It’s not hard to imagine the government using these tools against Americans who take part in large-scale protests or who carry out acts of civil disobedience. Federal prosecutors spent a year and a half pursuing riot-related charges against a few dozen protesters who smashed windows and damaged cars during President Donald Trump’s inauguration. The Justice Department also brought charges against Native American activists who protested the Dakota Access pipeline in Standing Rock, North Dakota, in 2016, alleging they started fires and built illegal roadblocks. The extreme sentences attached to the crimes would give prosecutors significant leverage over defendants to strike a plea deal even if they believe the case is unjust.
History also gives pause. The federal government has a mixed record at best when it comes to defining what constitutes domestic terrorism. The Hoover-era FBI’s campaign to harass civil rights activists and infiltrate antiwar groups in the 1950s and 1960s is still within living memory. In the 1990s and early 2000s, the FBI described ecoterrorism as the “number one domestic terrorism threat” and faced criticism from its inspector general in 2010 for inappropriately monitoring nonviolent groups like Greenpeace and PETA. More recently, the Bureau responded to the Black Lives Matter movement’s rise by warning about the possibility of domestic terrorism from “black identity extremists,” a spurious category at best.
The risk of partisan abuse is also high. Texas Senator Ted Cruz recently called on the FBI to investigate Antifa, a highly decentralized anti-fascist movement, and said it should be labeled a terrorist organization. FBI Director Christopher Wray told Cruz in a congressional oversight hearing last month that the Bureau “considers Antifa more of an ideology than an organization.” Republicans intensified their criticism of Antifa last month after masked protesters punched and poured milkshakes on conservative journalist Andy Ngo during a protest in Portland, Oregon. If the proposed domestic-terrorism statute had been in force, those protesters might have faced up to 30 years behind bars for simple assault.
The most troubling portion of the bill is also one of its most succinct passages. Federal law currently allows prosecutors to charge people with providing material support to international terrorists if their assistance can be linked to certain crimes. McSally’s bill would add the new domestic-terrorism charges to that list. The average American might assume that material support means providing bomb parts to a terrorist or sheltering them from the police, and it sometimes does. But the Justice Department has historically taken a broad view of what constitutes “material support” when it comes to international terrorism.
Take the case of Tarek Mahanna, for example. Federal prosecutors brought material-support charges against the Pennsylvania-born man in 2009 for providing assistance to Al Qaeda. That assistance, according to prosecutors, came in the form of translating publicly available Al Qaeda documents into English. Prosecutors cast Mahanna as an Al Qaeda media operative who tried but failed to receive training during a 2004 Yemen trip; defense attorneys disputed this portrayal and said he traveled there in hopes of obtaining a religious education. He received a 17-and-a-half year prison sentence in 2012.
While Mahanna expressed verbal support for Osama bin Laden’s cause at times, the ACLU noted in 2012 that prosecutors offered no evidence that he was in communication with Al Qaeda or acted at the organization’s behest. His conviction rested on the theory that he had advanced their cause simply by translating their texts. That expansive interpretation raises serious First Amendment questions about drawing the line between learning about extreme ideologies and aiding their violent expression. Would 8chan trolls face similar charges for sharing white-nationalist memes? Would distributing PDFs of The Turner Diaries cross the line?
The absence of a federal domestic-terrorism law hasn’t let white-nationalist terrorists go unpunished when they’re captured alive. Federal prosecutors successfully brought hate crime charges against Dylann Roof for murdering nine black parishioners at a Charleston church in 2015. Robert Bowers, who allegedly killed eleven Jewish congregants at a Pittsburgh synagogue last year, faces trial on 44 counts ranging from firearm-related charges to obstructing the free exercise of religion through violence. And even if federal jurisdiction offers few solutions in future cases, state prosecutors could still bring murder charges under state laws. More narrow federal statutes may yet be worth pursuing—so long as they don’t raise more problems than they aim to solve.