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The FBI Agents Association is fed up with the limitations of federal terrorism laws and wants Congress to do something about it.
In a statement released Tuesday, the association’s president Brian O’Hare underscored the threat of domestic terrorism in light of two mass shootings over the weekend — one at a Walmart in El Paso, Texas, and another outside a bar in Dayton, Ohio, that left a combined total of 31 dead. But there’s currently no explicit domestic terrorism statute in the U.S.
“Acts of violence intended to intimidate civilian populations or to influence or affect government policy should be prosecuted as domestic terrorism regardless of the ideology behind them,” wrote O’Hare, who has worked as a special agent since 1999.
The gap in federal law means that when self-radicalized Americans target undocumented immigrants shopping at Walmart, Jews gathered at their local synagogue for Saturday prayers, or black worshippers at a Bible study session, their actions are prosecuted as hate crimes, not terrorism.
The El Paso shooter has been linked to a white nationalist manifesto posted on 8chan that suggests he was targeting Latinos. Police still haven’t identified a motive for the Dayton shooting, which took place in the early hours of Sunday morning.
The FBI said that it’s investigating the El Paso shooter as a domestic terrorist. But even if the bureau finds that he fits their definition of a domestic terrorist, the government lacks the tools to prosecute him as such.
Modern counterterrorism infrastructure in the U.S. was built post-9/11 to fight against the threat of foreign terror groups. The 2001 Patriot Act created a legal definition of “domestic terrorism” but that particular crime doesn’t exist under the federal penal code, except in a handful of narrow circumstances.
Former FBI agent Ali Soufan, who heads the Soufan Center, a global security research organization, penned an op-ed for the New York Times on Tuesday that warned about the growing danger of white supremacist terrorism.
“Twenty years ago, we grossly underestimated the rising threat of Islamist terrorism,” Soufan wrote. “That inattention cost us dearly on Sept. 11, 2001. We cannot afford to wait for the white-supremacist equivalent.”
How a domestic terror law would work
If Congress were to make domestic terrorism a federal crime, prosecutors could go after would-be terrorists with the “material support statute,” which currently criminalizes the act of plotting a terror attack in the name of, for example, white supremacy.
Proponents of the idea say that such a law would also establish a moral equivalence between white supremacist terror and terror by groups like Al Qaeda. But others have warned that a domestic terror law could open the door to First Amendment abuses.
O’Hare’s statement comes one day after Republican Sen. Ron Johnson from Wisconsin and Democratic Sen. Gary Peters from Michigan wrote to FBI Director Christopher Wray and Attorney General William Barr requesting specific information about their efforts countering domestic terror.
Specifically, the lawmakers wanted to know how the FBI tracks domestic terror, and how they share information with other agencies. The senators noted that Wray and Barr failed to reply to a similar request in May. Since their request, there have been mass shootings in Virginia Beach, Virginia, Gilroy, California, El Paso, Texas, and Dayton, Ohio.
“These continued mass attacks make it clear that the federal government has more work to do in preventing domestic terrorism,” the lawmakers wrote.
But Wray has assured lawmakers that the FBI is vigorously going after domestic terorrism. At a hearing last month, he said that the bureau made nearly 100 domestic terrorism arrests in the first half of 2019, many of them “motivated by some version of what you might call white supremacist violence.”
Because there’s no domestic terrorism statute though, officials would have had to find alternative ways to prosecute them.
“[The FBI Agents Association] continues to urge Congress to make domestic terrorism a federal crime,” O’Hare wrote Tuesday. “This would ensure that FBI Agents and prosecutors have the best tools to fight domestic terrorism.”
Cover image: Gloria Garces kneels in front of crosses at a makeshift memorial near the scene of a mass shooting at a shopping complex Tuesday, Aug. 6, 2019, in El Paso, Texas. (AP Photo/John Locher)