Attack On Texas Shoppers To Be Handled As Domestic Terrorism

Speaker 1: 00:00 Federal officials say they are treating the mass shooting in El Paso, Texas as domestic terrorism, but what does that mean if there is no federal charge for domestic terrorism and how does that impact law enforcement's ability to investigate and stop mass shootings? Your to talk about that is Mary McCord. She is senior litigator and visiting professor of law at the Institute for Constitutional Advocacy and protection at Georgetown University law school. Previously she oversaw the US Department of Justice, his National Security Division. Mary, thanks so much for joining us. Speaker 2: 00:34 My pleasure. Thank you for having me Speaker 1: 00:36 and the law fair blog. You wrote a piece called it's time for Congress to make domestic terrorism a federal crime. In it, you say it's important to make the moral equivalence between domestic terrorist and international terrorist. Why do you think that's important? Speaker 3: 00:52 Well, I think it's important for several reasons. I mean one is just to um, actually treat them the same because they are the same. When violence is used as a means toward an end and extremist goal, whether it's Islamist extremism, which has been the bulk of the terrorism cases prosecuted since nine 11, or whether it's it's extremism inspired by white supremacy, um, they should be treated equally under our law. And right now the law heavily favors the prosecution of, um, those who are committing their acts of violence on behalf of a foreign terrorist organization. And the bulk of the foreign terrorist organizations designated by the u s government are our Islamic extremist organizations. I think is also important though for people in the u s to understand what terrorism is. I think since nine 11, it's probably pretty common when people think terrorists. They think as long as extremism, they think Muslims. But we have terrorists that, uh, whose extremism is grown up right here at home in white supremacy. And when they commit acts of violence, they should be in furtherance of their extremist goals. They should be called terrorists and they should be prosecuted that way. Speaker 1: 02:04 And you know, I mean, because long before nine 11 even white supremacist groups like the KKK terrorized African American communities all across this country, bombing churches, burning towns, and lynching people, while hundreds gathered to watch. To this day, 73% of terrorist attacks in this country have been linked to white supremacist organizations. That's according to the Anti Defamation League. So why is there no federal law against domestic terrorism? Speaker 3: 02:31 Great. So I think, I think historically, part of the reason has been because a lot of the acts of violence that are committed in the u s are crimes under state and local law, and they all, they continue to be. So murder is a crime in all 50 states, right? Assault with a dangerous weapon, a crime in all 50 states. And I think historically we've treated these crimes as local crimes, even with done either, you know, for racist purposes, like a hate crime or for terrorist purposes, which might overlap with hate crime might be a racist, a rationale, but it's intended to intimidate or coerce, which is what terrorism is. What's the definition in the Federal Code of terrorism? Is crimes committed to intimidate or coerce the civilian population. We're influenced the policy of government through intimidation or coercion. So historically I think that's one of the reasons. Speaker 3: 03:19 But then of course as we started to have the problem with international terrorism, and particularly I'll cuda nine 11, you know, the congress then created in some cases, you know, new statutes to deal with that and those focused very heavily on this international terrorist threat. Um, with, and, and to be clear, some of our terrorist terrorism statutes would apply to acts that are motivated by white supremacy and other, what we think of as domestic ideologies. Even though we know what's promising is not limited to us, it's, it's, it proliferates in western Europe and southeast Asia and other places like we saw with Christ church and with three Lunken other ex violence abroad. But the sum of the u s terrorism code would apply, but only in limited circumstances. So if it's, if it's, let's say a white supremacist act of violence, if it was committed with a bomb, which is a weapon of mass destruction, a nuclear device or radiological device, we get charged that as a terrorism fence. Speaker 3: 04:15 It was committed against US government officials or US men mass transit, we could charge it as terrorism. But what we see mostly certainly what we saw in El Paso, what we've seen in Poway and um, Pittsburgh and other places are mass shootings using firearms. And sometimes things as in, at, in Charlottesville, use of a vehicle. And, and right now our terrorism crimes don't apply to acts of violence committed domestically using firearms or vehicles and less, uh, those were targeted at a US national or US government property. And so that's a big gap sort of in, in our terrorism offenses currently. Speaker 1: 04:54 So how does not having a federal law against domestic terrorism impact law enforcement's ability to investigate and stop domestic terrorism? Speaker 3: 05:05 So, and I don't want to give the false impression that there's nothing law enforcement can do currently because they can, the FBI, um, is empowered to investigate, you know, potential acts of violence. So if they learn about something that might be trending toward the commissioner of a violent crime, they can open an investigation. And sometimes that means opening investigations that, uh, the assistant director for Counter Terrorism, Mike mcgarrity recently and the director of Christopher Ray recently testified to Congress that they have something like 800 open investigations, but that's not fully integrating, um, the investigation of domestic terrorism into the nationwide counterterrorism program. And by that I mean the program that was really, you know, aggressively pursued post nine 11. That means using undercover online personas to engage with people who may be starting to talk about using violence, a mean of expressing their, um, extremist goals, such as creating a white ethno state or, you know, eradicating people of color or things as heinous and horrible as that. Speaker 3: 06:08 That means running sting operations. That means, um, uh, you know, using these kinds of preventive techniques, which are very different than the way civil rights investigators and civil rights prosecutors look at things like hate crimes, which is more about let's bring justice to the victim because they've been a victim of a hate crime. There's is less about prevention and more about justice after the fact. So if we're going to present things and not just more than after we have the killings of 20 people and nine people and 11 people in 14 people in one foot, you know, in one fell swoop at one location. I think we need to integrate much more fully domestic terrorism into the already existing national counterterrorism program. And by creating a statute that's designed specifically to target that conduct, that kind of gives, first of all, congress is giving really a mandate to law enforcement. Speaker 3: 07:01 This is important. We've given you the statute, now go investigate it. It also, I think allows for law enforcement who now, you know, have, they have to meet certain predicates and they always would to investigate, but it allows them to say, here we have this crime that we're investigating and here's how we're going to investigate it. Here's how we're going to go about it. And I, and I should just add one more thing and I know I've been talking a lot, um, I get, um, very, um, and passionate about this is that not only do we need to share a lot of information domestically between federal law enforcement and state and local authorities, but this is now an international problem. As I was just indicating, you know, we've had now mass attacks internationally by white supremacists who are now talking about each other and inspired by each other. Yet most of our coordination internationally, historically has been with respect to Islamic extremism. And we need to make sure that our law enforcement agencies and intelligence agencies are talking to each other and sharing information that can help us better understand the extent of the threat internationally and domestically. Speaker 1: 08:02 How do you think creating a federal charge of domestic terrorism will stop the kind of attacks we've seen recently? Speaker 3: 08:10 Well, again, it's more about integrating it into the counterterrorism program and fighting it more aggressively. From a prevention point of view, when you're really trying to do prevention, what you're doing is you're paying attention. Again, we have to, we have two in the U s we have to support first amendment rights and the fact that people are entitled to say things that many of us would find a Corinth and be appalled by and, and, and, and make things should be illegal but are actually protected by our first amendment. We have to respect that, but that doesn't mean law enforcement can't be focusing in on what are the online social media platforms, what are the chat rooms, what are the places where white supremacists are talking about what their goals are? And those goals include violence. And when those goals include, or at least there's violence encouraged or, or invaded or even, you know, wink, wink, nod, nod, which we do see some of that and we see that even from our highest leadership, our president. Speaker 3: 09:06 Um, those are the things that, that, that then can be investigated by. Again, having undercover officers take on the persona of someone being involved in that chat room. Right? And, and, and just like we do when it comes to international terrorism, we have undercover officers who get into the chat rooms and, and take on a persona and they talk with other people who are thinking about Jihad. And then they sometimes put together sting operations. Now people criticize these types of aggressive law enforcement and, and there are a lot of complaints about aggressive law enforcement, but those are ways that crimes are prevented. So these are law enforcement tools that have, you know, they have their criticisms, but if you want to prevent things and not just prosecuted after the fact, these are the kind of tools that law enforcement needs to be using. And I'm sure they are using them. It's just to what? How many resources have they put toward them and does it need to be more, does it need to be more vigorous? Does it need to be more coordinated? I think so. Speaker 1: 10:05 I've been speaking with Mary B McCord, senior litigator and visiting professor of law at the Institute for Constitutional Advocacy and protection at Georgetown University law school. Mary, thank you so much for joining us. My pleasure. Thank you.