Violent white supremacists pose a significant threat to the American public equal to or greater than the threat posed by foreign terrorists. Those who support such views or just remain silent, enable bigotry and hatred.
Michael C. McGarrity, assistant director of counterterrorism for the FBI testified before the U.S. House Homeland Security Committee in May saying, “We believe domestic terrorists pose a present and persistent threat of violence and economic harm to the United States; in fact, there have been more arrests and deaths caused by domestic terrorists than international terrorists in recent years.”
Yet, according to the Brennan Center, the “Justice Department regularly treats white supremacist violence not as domestic terrorism or hate crimes, but as gang crimes, which rank sixth on the FBI’s priority list.”
Domestic terrorism is defined by statute as any act occurring within the jurisdiction of the United States that is dangerous to human life, violates U.S. criminal laws and appears to be intended to intimidate or coerce a civilian population, influence the policy of a government by intimidation or coercion, or affect the conduct of a government by mass destruction, assassination, or kidnapping.
Although domestic terrorism is defined by statute there is no specific domestic terrorism law that can encompass acts such as the mass shootings in El Paso,Texas, Pittsburgh and San Diego.
Justice Department attorney Brad Wiegmann told ABC News that he would be open to discussing a domestic terrorism statute with federal lawmakers.
“We’re always looking to improve our authorities. And so I think we’re certainly open to having a discussion with the Congress if there’s interest in the Congress pursuing a domestic terrorism statute,” Wiegmann said.
Do we need a specific domestic terrorism statute?
There are several federal laws on the books that could be used to combat domestic terrorism. One law, the “Use of Weapons of Mass Destruction,” makes it a federal offense to use, attempt to use, or conspire to use nuclear, radiological, chemical or biological weapons - things that commonly come to mind when thinking of mass destruction. However, the law also covers the use of explosives. According to Bobby Chesney a law professor at the University of Texas School of Law, the statute “does not require any showing of a transnational or foreign element in the fact pattern ... and it is perfectly available for domestic terrorism cases that involve bombings.”
As we have seen in recent days, terrorist attacks can be devastating without the use of explosives. Federal law does not appear to reach most gun-based acts of terrorism. There is a provision in federal law that defines a destructive device as a weapon that “expel(s) a projectile by the action of an explosive or other propellant ... (using a) barrel with a bore of more than one-half inch in diameter.” None of the recent mass attacks on U.S. soil were carried out with instrumentalities that fit that definition.
Well it may be true that there is not a specific statute to deal with acts of domestic terrorism that involve mass shootings - it may be as easy as tweaking existing federal law so it does not distinguish between methods of violence.
Another possible tool against domestic terrorists - such as neo-Nazis and racist white supremacist - is to go after the people who materially support those groups, financially and otherwise. This tactic is commonly used in federal terrorism prosecution, but not available for domestic terror.
There are First Amendment concerns with regard to support for a movement as opposed to participation in a criminal act, but exploring a statute that make it illegal to materially support a group promoting and espousing domestic terrorism is worth the effort.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.