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We Asked a Lawyer if Dylann Roof Could Face Terrorism Charges

The things the alleged Charleston shooter reportedly said to his victims might give prosecutors cause to bust out the T-word.

by Mike Pearl
Jun 19 2015, 3:30pm

Dylann Storm Roof after his arrest Thursday. Photo via Charleston County Sheriff's Office

As Anthea Butler of the University of Pennsylvania pointed out in the Washington Post, in the aftermath of Wednesday night's horrific shooting rampage in South Carolina, the media generally didn't refer to alleged gunman Dylann Roof as a "possible terrorist." Butler is one of many commentators who have complained about the way shooters are discussed differently depending on their race—if a person of color (especially a Muslim) commits a massacre, it's often assumed to be an act of terrorism, while white killers tend to be talked about in terms of their mental health.

Local authorities charged Roof with nine counts of murder Friday morning, along with possession of a firearm during commission of a violent crime. But Roof allegedly told his black victims that he was killing them in part because they were "taking over our country," which could make this a hate crime if he's also charged under federal law (South Carolina has no hate-crime statute on the books, but the feds are investigating). So is he legally a terrorist? What counts as "terrorism" under the law, anyway?

To find out, I talked to attorney Tarek Ismail, a former counterterrorism and human rights fellow at Columbia Law School's Human Rights Institute who co-authored a paper last year about bias in terrorism prosecutions.

VICE: To start with, are the laws for hate-crime charges and terrorism charges similar?
Tarek Ismail: A hate crime is an add-on to a crime. The same is true of terrorism. Often, they're one and the same. The difference is "intent to coerce." Someone writing the law would tell you that a hate crime is a normal, run-of-the-mill crime [that's] perpetrated against a group because of the nature of that group. But it doesn't have that extra element of also intending to scare the shit out of that group. [In the case of terrorism charges], that's the distinction that's made.

Are there examples of hate-crime convictions in cases that were clearly designed to scare the shit out of people?
In the town I grew up in—Toledo, Ohio—there was this guy who walked into our mosque in 2013 with a can of gas, poured it all over the prayer room, and tried to burn that huge mosque down. He was charged with a hate crime. Do I think that's terrorism? Probably. We don't know what his intent was. But when he was sentenced, he said the only things he knew about Muslims were from Fox News. What he knew was that they chop off people's legs, and they want our destruction, and he had to take care of business himself. That's telling, I think. That's where a hate crime and terrorism overlap.

What would the terrorism charge bring that a hate crime wouldn't?
The [sentencing] ranges escalate dramatically once you add the terrorism enhancement, so that plays a role. But I think people who are making the case that this was terrorism are trying to make a broader point that terrorism isn't reserved for a particular group. Others are capable of terrorism, and what the Black Lives Matter movement has been addressing has been that black communities are experiencing terrorism—intimidation and coercion of a civilian population.

Does terrorism have to be political?
The intimidation grounds doesn't have a political tie to it. That's one of the arguments people use when they make this decision: "There's no exclusively political tie here, so this is different from the sort of ISIS-y terrorism that we see." But the law is very clear that anything that's intended to coerce or intimidate a civilian population falls within what we consider terrorism under federal law.

So in this particular shooting, what's the case for the terrorism charge?
When this guy says, "You are raping our women, you are taking over the country," he can't mean exclusively those 20-odd people in the church. He's gotta mean some group that he's generalizing about based on the people in front of him. It's my sense that that probably means black people. That's what he meant by it. That's an extrapolation based on nothing except the population in that church, but it seems logical. As the federal government does more investigation into this—I saw a picture of him wearing Apartheid-era [South African] flags—that stuff goes with intent.

And what about the case against it, hypothetically?
There are stories about Mr. Roof being [evaluated] for his mental stability. This pattern is all too familiar. People who follow these shootings will tell you that this pattern is one that we can predict at this point. Something horrible like this happens, and if the person is white, we'll start to ask questions about their mental stability. If the person is black, they're lucky to get arrested [rather than shot].

But all things considered, compared with other recent shooting rampages, does this suspect seem like a stronger candidate for the terrorism charge?
The terrorism charge here is much clearer. If we're going to take seriously the idea that terrorism is a thing, then something like the Aurora [Colorado] shooting seemed to just be bloodlust—going into a theater and shooting writ large. But here, we're looking at something where the race problem is in your face. The guy says, I'm going into this church, and you can't be around anymore, because you're raping our women, and you're taking over our country. To me it's clear as day.

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