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A Republican senator is putting forward a bill to criminalize domestic terror

But experts in the field aren’t sure such legislation will help the fight against white nationalist terror attacks like El Paso.

Sen. Martha McSally (R-AZ) speaks during a Senate Armed Service Committee hearing on prevention and response to sexual assaults in the military on March 6, 2019, in Washington, DC.
Mark Wilson/Getty Images

Republican Sen. Martha McSally wants Congress to criminalize domestic terrorism — a move that comes amid bipartisan calls for the federal government to do more about the threat of domestic terror (and bipartisan concerns that the move could have unexpected, and negative, consequences).

On Wednesday — 11 days after a white nationalist shot and killed 22 people at a Walmart in El Paso, Texas, injuring 27 others in an attack the shooter said was aimed at Mexican immigrants — the Arizona Republican released a discussion draft of a bill that would make domestic terrorism a specific federal offense. It would also require that the attorney general, the director of the FBI, and the secretary of homeland security submit a yearly report to Congress on domestic terror.

While politicians and pundits alike seem to agree that domestic terrorism is a real problem in the United States, criminalizing domestic terrorism poses unique challenges for legislators and law enforcement, from constitutional concerns regarding protected speech to practical concerns based on the FBI and Justice Department’s long and occasionally less-than-storied history of battling terrorism on the home front.

In a press release, McSally said of her legislation: “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. That stops with my bill.”

What McSally’s legislation does

In McSally’s home state of Arizona and 33 others (plus the District of Columbia), terrorism is a state crime. But under federal law, domestic terrorism is not a distinct crime for which an individual can be charged; rather, individuals who commit or attempt to commit domestic terror are charged under other existing criminal statutes. For example, the El Paso shooter was initially charged with capital murder but could also face federal hate crimes charges.

And historically, law enforcement agencies like the FBI have faced other challenges in the fight against domestic terror that they don’t in trying to stop international terror attacks.

As I detailed last week:

Unlike the fight to stop international terror — the terrorist group ISIS, for example — law enforcement in the United States faces specific constraints when battling white nationalist terror domestically. It’s not against federal law to join a white supremacist or white nationalist organization, or to espouse white nationalist viewpoints. Constitutionally, the right to associate freely with white nationalist individuals or groups in either physical or online spaces is protected.

As BuzzFeed News reporter Zoe Tillman points out, laws that bar American citizens from assisting foreign terrorist organizations don’t exist to prevent American citizens from donating money or supplies to domestic terror groups. And the conduits to white nationalist radicalization — from books like The Turner Diaries and The Great Replacement to white nationalist propaganda once circulated via newsletters and now shared online — are constitutionally protected.

In response, McSally’s bill (which you can read here) would enshrine domestic terrorism as a specific offense under federal law. In short, existing crimes — like kidnapping, murder, and assault — that are intended “to intimidate or coerce a civilian population or influence, affect, or retaliate against the policy or conduct of a government” would receive added federal penalties, as would efforts to provide “material support” to domestic terrorists. The bill would also penalize any attack on “the United States Government, a member of the uniformed services, or any official, officer, employee, or agent of the legislative, executive, or judicial branches, or of any department or agency” as domestic terrorism.

The bill would require that the FBI, Department of Homeland Security, and Department of Justice submit a yearly joint report on domestic terrorism that includes domestic terrorism investigations both initiated and closed by the FBI and detailed analyses of domestic terror incidents — an effort to respond to critics who have noted just how poorly the federal government has tracked domestic terror over the past two decades.

In addition, attempts to commit domestic terror or conspire to do so would, under McSally’s legislation, “be punished in the same manner as a completed act of such offense.” For example, under McSally’s bill, the men who conspired to blow up an apartment complex in Garden City, Kansas, that was home to Somali immigrants — an attempt foiled by an FBI informant — would be charged as if they had successfully blown up the complex.

Not everyone agrees the US needs a domestic terrorism law

But as I wrote last week, experts on domestic terrorism are divided on whether there needs to be a law against domestic terror at all.

There are two main concerns: one, that such an effort would be duplicative (as the acts committed by terrorists are generally already crimes), and two, that any domestic terrorism law would most likely be used to target nonviolent activists whom the federal government views as a threat.

“There are already 52 federal crimes of terrorism that apply to entirely domestic acts, five federal hate crimes statutes that address the bias crimes often committed by white supremacists ... and dozens of other statutes that can and have been used to prosecute domestic terrorists,” Michael German, a former FBI special agent, told me. “The Justice Department’s failure to prioritize the investigation and prosecution of white supremacists results from a policy choice, not a lack of authority.”

Moreover, civil liberties groups worry that a statute criminalizing “domestic terror” could become a cudgel wielded against more than the white nationalist communities that spawned the El Paso shooting and others.

German pointed out that under current statutes governing domestic terror, the Department of Justice is “most aggressively targeting groups like Black Lives Matter activists (which the FBI labeled as black identity extremists), Standing Rock water protectors, environmental activists, and anti-Trump protesters, who are far less violent than white supremacists and far-right militia groups that are consistently committing violence.”

Still, others with deep experience in the area of domestic terror — like David Gomez, a former terrorism task force coordinator — disagree, saying the US needs an “expanded legal jurisdiction in the form of new laws allowing proactive investigation” into white nationalist terror. And with McSally’s bill, that just might happen. McSally hopes to introduce her legislation in September. According to Politico, aides to the senator say the bill will have a number of high-profile co-sponsors.