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 towards 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 crimes 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 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 on Sunday that his office expected to bring capital murder charges and would pursue the death penalty.
Federal law includes a definition for “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 considerd 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 don't they tend to associate white supremacist violence with terrorism and they should,” said McCord, a legal scholar at Georgetown Univerity 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 co-sponsors, 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.