A mass shooting by a white supremacist in El Paso that killed 22 people has renewed calls to enlarge the government’s powers to prosecute “domestic terrorism.” Two similar bills introduced by Sen. Martha McSally (R – AZ) and Rep. Adam Schiff (D – CA) would allow federal prosecutors to charge a “domestic terrorism” offense for murders, assaults and property crimes carried out with the intent to intimidate or coerce civilian populations or influence government policy. It would also criminalize providing support – such as money, transportation, equipment, or training – to these crimes. While these proposals may be well-intentioned, they are likely to be ineffective because they misdiagnose the underlying problem. There is no lack of legal authority to investigate or prosecute perpetrators, but rather a lack of will and focus to do so. Moreover, these proposals would dangerously expand the definition of “terrorism” to include crimes that involve property destruction and threats, which could, especially in the current enforcement climate, harm political protests and advocacy protected by the First Amendment.

Proponents of these proposals, many of whom are former law enforcement officials, make two main arguments: that a new domestic terrorism statute would allow the Federal Bureau of Investigation (FBI) to catch perpetrators before they are able to carry out an attack, and that formal charges of “domestic terrorism” would demonstrate that the government treats white supremacists with the same seriousness that it treats those associated with ISIS or other groups overseas. Neither is convincing.

First, as laid out in a Brennan Center report on the Department of Justice (DOJ)’s Attorney General Guidelines for Domestic Investigations, the FBI can already open investigations based on next to nothing. FBI agents, without even a supervisor’s sign off, are authorized to conduct “assessments” without suspicion of criminal activity. As part of an assessment, agents can recruit covert informants, track a person’s public movements, and search private and commercial databases for information. The only constraint is that they must have an “authorized purpose” and a “clearly defined objective,” a requirement that has been interpreted broadly (in our view, too broadly) in investigating Muslims, but surely also covers proactively stopping planned killings of African Americans, Jews, and Latinos. The FBI can go further if it receives an allegation that a crime is being planned, opening a “preliminary investigation” to trace phone numbers, use grand jury subpoenas to get financial and internet records, conduct undercover operations and monitor private conversations with the informant’s consent. No new domestic terrorism statute is needed for the FBI to use these authorities, and there are indications that it has started doing so in cases involving white supremacists, as recent arrests illustrate.

Moreover, as set out in another Brennan Center report, Wrong Priorities on Fighting Terrorism, a multitude of existing laws already allow the federal government to formally investigate white supremacist attacks as domestic terrorism, even if those crimes are eventually prosecuted as murders, hate crimes or something else. Indeed, FBI policy requires it to open a domestic terrorism investigation in hate crime cases where a subject is linked to a white supremacist group. The choice of label is important because it affects how the FBI allocates resources, including how it staffs agents: the FBI treats countering terrorism as its top priority, yet civil rights violations like hate crimes only rank fifth out of eight mission priorities.

In many cases, the FBI has simply chosen to treat white supremacist violence as a hate crime even when it fits the definition of domestic terrorism. For example, both Dylann Roof’s murder of nine African Americans in a South Carolina church and James Fields’s killing of Heather Heyer at a white supremacist rally in Charlottesville, Virginia were investigated as civil rights matters rather than as terrorism, even though both were aimed at intimidating a civilian population. On the civil rights front – where prosecutions are likely to take the form of hate crimes charges – the Justice Department has an anemic record. Victim surveys indicate that about 250,000 hate crimes happen yearly, but studies estimate that the federal government prosecuted less than 40 of them a year between 2009 and 2016.

A new domestic terrorism law won’t fix this attention deficit. Only concerted pressure from Congress and the public to properly target violent white supremacists will force the FBI to do its job.

But a new domestic terrorism statute will undoubtedly magnify the impact of existing enforcement disparities, raising serious civil rights and liberties concerns. While members of Congress may be thinking about targeting white supremacists with these new bills, the FBI’s enforcement priorities will drive who actually gets investigated and prosecuted. Less than 15 years ago, the FBI called “ecoterrorists” – who haven’t killed anyone in the United States – the foremost domestic problem. Most recently, it has focused attention on the fictitious threat of “black identity extremists,” as a means of targeting people protesting police violence against minority communities.

The Schiff proposal tries to safeguard against such manipulation, but its requirements are far too weak.  For example, it would require the Attorney General to sign off on these prosecutions, which provides little reassurance given the increasing politicization of the Justice Department. (Schiff himself has called Attorney General Bill Barr the “second-most dangerous man in the country.”) The Schiff bill would also require the Privacy and Civil Liberties Oversight Board, an executive branch watchdog, to consult with Congress and issue a report to the public on civil liberties issues stemming from investigations and prosecution under a new law. But it wouldn’t be due until four years – a whole presidential term – after the law took effect. Moreover, if there’s anything we can be sure about, it’s that new laws to fight terrorism are tough to roll back once they’re on the books, even if they’re later found to be ineffective or constitutionally problematic.

The proposed laws also would dangerously broaden the definition of terrorism. The intent requirement – “seeking to intimidate or coerce civilian populations” – can easily be twisted to cover protestors or activists, especially when it comes to property damage. In the wake of El Paso, prominent U.S. Senators and the president have already sought to deflect attention from white supremacists by branding anti-fascist protestors as domestic terrorists. During protests following the 2017 presidential inauguration, the DOJ tried to use anti-rioting laws to prosecute over 200 people who were near places where cars were damaged and windows were shattered. The new bills would risk branding such protestors as terrorists.

Instead of a new law, what we need is a more robust accounting of white supremacist violence, and an appropriate focus on it. While the McSally proposal requires the DOJ, the FBI, and the Department of Homeland Security to give Congress and the public more information about domestic terrorism investigations and prosecutions, it does not go far enough. The bill requires a lookback report from 1995 to the present on the number of domestic terrorism incidents and the deaths and injuries resulting from them, but it doesn’t require details about the perpetrators or organizations involved, preventing an accounting of white supremacist violence. Since the FBI has long labeled most white supremacist violence as hate crimes or gang crimes rather than domestic terrorism, this historical data will present a skewed picture. Dylann Roof’s rampage and Heather Heyer’s murder, for example, would likely be excluded from such an accounting. The bill does a little better with annual forward-looking reports, which must also contain “a detailed explanation of each [domestic terrorism] incident.” But it doesn’t require the disclosure of the policy decisions that inform enforcement priorities or any information on how the FBI categorizes and classifies cases, which is critical to understanding who the FBI is targeting under its substantial counter-terrorism authorities. In contrast, the Domestic Terrorism DATA Act introduced by Rep. Bennie Thompson (D- MS) contains far more granular reporting provisions, which would actually give Congress more of the tools it needs to formulate effective and rights-respecting policies to address white supremacist violence.

Every first-year lawyer is told that hard cases make bad law. We agree that our nation’s law enforcement community needs to make addressing white supremacist violence a priority, and that Congress should ensure that happens.  However, we need to avoid going down a path that will not make minority communities any safer, but instead further open the door to discriminatory targeting.


IMAGE: People pray and pay their respects at the makeshift memorial for victims of the shooting that left a total of 22 people dead at the Cielo Vista Mall WalMart (background) in El Paso, Texas, on August 6, 2019. (Photo by MARK RALSTON/AFP/Getty Images)