File this one under the “learn something new every day” category. After the El Paso shooter had been taken into custody and identified, the local U.S. attorney quickly put out a statement saying the crime was being investigated as a potential case of domestic terrorism. Sounds about right to me, I suppose. But as the Washington Post pointed out yesterday, there’s a serious fly in the ointment when it comes to how they handle this. We don’t actually have a federal domestic terrorism statute.
Following the arrest of 21-year-old [El Paso shooter] on charges of killing 22 people in an El Paso shopping center, John F. Bash, the U.S. attorney for the Western District of Texas, was quick to declare: “We are treating the shooting as a domestic terrorism case.”
Just one problem: There is no such thing.
The Patriot Act passed in the wake of the 9/11 attacks includes a definition of national terrorism. But neither it nor the rest of the U.S. Code contains a domestic terrorism statute as such. All the federal prosecutions under U.S. terrorism laws have involved foreign defendants.
That is why, Bash’s rhetoric notwithstanding, if [the shooter] is prosecuted under federal law, it will be for hate crimes and firearms offenses.
So the only applicable terrorism statute covers “acts of terrorism transcending national boundaries. Since the alleged mass shooter was from Texas himself, this attack didn’t even cross state lines, say nothing of an international boundary.
The WaPo article is making the argument that this proves we need a domestic terror statute to match the one used for foreign attackers. So do we? Going strictly from an emotional level, it’s easy to be sympathetic to such an idea. Shooting up a large crowd of people with no identifiable motive beyond trying to create “shock and awe” against a particular group or influence government policy certainly sounds like terrorism to me.
But let’s game this out a bit further. Would you have to be a member of a group, religion or some other structured organization to qualify as a domestic terrorist? Many of these mass shooters are not, aside from perhaps participating in loosely configured internet chat sites. And even if you can be a solo terrorist and qualify for such charges, who would be eligible? Surely many will suggest Klan members and neo-nazis as candidates. But how about Antifa? What about the anarchists who show up at every economic summit and try to burn down the town? If they are American citizens, it sounds like the lines might start getting blurry pretty quickly.
I’d also ask if we’re really closing a gap in the law and solving an actual problem by doing this. The El Paso shooter is being charged with multiple counts of capital murder. In Texas. (He’ll also be charged with “hate crimes” but don’t get me started on those again.) If convicted, they’re going to execute this guy the moment his appeals run out. If he were charged with an additional “domestic terrorism” charge, what would they do… execute him twice? Then again, I suppose I can see the usefulness of such a statute if the attack takes place in a state with no death penalty, but that’s about it.
I’m not arguing that we definitely shouldn’t have such a statute. I’m simply suggesting that rushing into it headlong without addressing a lot of these questions could invoke the law of unintended consequences.