Two words immediately came to mind after a white-nationalist gunman killed 22 people and wounded 24 others at an El Paso Walmart earlier this month: domestic terrorism.
News organizations, elected officials from both parties, and the Justice Department described the massacre as an act of terrorism after the gunman’s ideological motives became clear. “We’re going to do what we do to terrorists in this country, which is deliver swift and certain justice,” Federal Prosecutor John Bash told reporters.
But when the U.S. attorney’s office brings their case against alleged gunman Patrick Crusius, those two words won’t be part of the charges against him. While federal law provides ample tools to prosecute him, those measures don’t actually use the phrase “domestic terrorism.” Martha McSally, a Republican senator from Arizona, introduced a bill this week to fix that conundrum. Her proposed law may create worse problems than it solves.
The legislation takes aim at a strange disparity in federal law. When the Justice Department goes after jihadist terrorists, for example, their crimes are typically charged under federal laws aimed at international terrorism. But those laws don’t apply when the acts are purely domestic in nature. So while DOJ officials may describe white-nationalist murders as domestic terrorism in press conferences, as Jeff Sessions did after the murder of Heather Heyer in Charlottesville and as federal prosecutors did this month after the El Paso shooting, they cannot prosecute it as such in the courtroom.
The distinction may seem semantic, but words matter. Terrorism is an innately political category of crimes. Formally applying the term to some perpetrators but not others risks signaling that some forms of political violence are less serious than others. Supporters of a domestic-terrorism statute say it would fix that. “For too long we have allowed those who commit heinous acts of domestic terrorism to be charged with related crimes that don’t portray the full scope of their hateful actions,” McSally said in a statement. “That stops with my bill.”
McSally’s seven-page bill would add the crime of domestic terrorism to federal law for the first time. It covers a range of standard criminal offenses if they are committed “with the intent to intimidate or coerce a civilian population or influence, affect, or retaliate against the policy or conduct of a government.” Committing manslaughter or kidnapping under those terms could bring a life sentence; a person convicted of murder under the statute could face the death penalty. The statute also applies if a defendant conspires to commit one of the acts or makes an attempt to do so.