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The FBI labeled the Jersey City shooting as domestic terrorism. Why that's not a federal crime -- and how it may change

Posted December 18, 2019 7:17 a.m. EST

— The lack of a federal domestic terrorism statute is once again in the spotlight after last week's deadly attack at a kosher market outside New York City.

The FBI has announced that they're investigating the attack -- which officials have said was fueled by anti-Semitism and anti-law enforcement sentiment -- as a domestic terrorism incident with hate crime bias. It's one of several such high profile attacks in the last several years that have been classified as domestic terrorism.

However, had the two assailants who attacked the Jersey City, New Jersey, kosher market survived, federal prosecutors wouldn't have been able to charge them with federal domestic terrorism charges. That's because domestic terrorism is still not a federal offense.

The theory on why domestic terrorism doesn't need to be a federal crime is that the conduct associated with such an act -- homicide, for instance -- is already illegal under federal or state laws. The argument is there is no need for the additional label.

The other, less abstract, hurdle is a political one -- so far, there has not been broad enough bipartisan support to pass a bill making domestic terrorism a federal offense.

Some lawmakers are working to change that. Three bills that would designate domestic terrorism a federal crime remain stalled in congressional committees.

Nine days after a mass shooting in El Paso, Texas, in which a man who police say wrote a manifesto filled with racist and anti-immigrant thoughts killed 22 people, a bipartisan group of Texas congressmen -- Republicans Reps. Randy Weber and Michael McCaul and Democratic Rep. Henry Cuellar -- introduced bipartisan legislation to make domestic terrorism a federal crime. The bill is the only current legislation that enjoys bipartisan sponsorship and also has the backing of the FBI Agents' Association.

"We think it's important as a statement to say 'this was an act of terror,'" McCaul said. "The El Paso case will no doubt be a state death penalty case. He's charged with capital murder. But it's also important to identify to the American people that this is domestic terrorism in the United States. We're simply giving another tool in the toolbox to law enforcement and prosecutors."

Since a person can't be charged with domestic terrorism, law enforcement officials like the FBI have to find related crimes like murder, illegal weapons possession and hate crimes in order to arrest and charge suspects.

In July 2019, before the El Paso shooting, FBI Director Christopher Wray told the Senate Judiciary Committee that the agency made approximately 100 domestic terrorism-related arrests during fiscal year 2018, which ran from October 1, 2017, to September 30, 2018.

"I will say that a majority of the domestic terrorism cases that we've investigated are motivated by some version of what you might call white supremacist violence, but it does include other things as well," Wray said.

Wray added that the agency has limitations when it comes to domestic terrorism that don't exist for international terrorism.

"Our focus is on the violence. We, the FBI, don't investigate ideology, no matter how repugnant. When it turns to violence, we're all over it," said Wray.

The tools that the FBI and other law enforcement agencies want to use to combat domestic terrorism are available for investigating international terrorism through the USA PATRIOT Act, passed in the wake of the September 11, 2001, terrorist attacks.

While that law redefines domestic terrorism, it does not establish domestic terrorism as a crime. McCaul said his bill would add charges to that domestic terrorism definition.

"Interestingly, the domestic terrorism definition was included in the 9-11 legislation with international terrorism, but there are no charges or penalties associated with it," McCaul said. "So, the FBI will open up a case under domestic terrorism, but they don't have the ability to be able to charge a domestic terrorism case. We simply added charges to domestic terrorism to give the FBI a tool in addition to their crimes that they can charge whether it be capital murder to assault."

It's a move that has support from the FBI Agents Association, which called on Congress to make domestic terrorism a federal crime in the wake of the El Paso shooting.

FBI Agents Association President and current FBI Agent Brian O'Hare said the bipartisan bill will give the FBI more tools to track, and arrest domestic terrorists, and have those cases end up in domestic terrorism charges.

"When we investigate domestic terrorism at the end of the day, we're trying to find other related conduct which can be charged because there is no penalty for domestic terrorism," O'Hare said.

But there are concerns among civil liberties groups that expanding the PATRIOT Act's tools to fight terrorism to domestic cases could end up being harmful to Americans.

The ACLU doesn't support McCaul's bill or a bill sponsored by Sen. Dick Durbin, an Illinois Democrat. ACLU Senior Legislative and Advocacy Counsel Manar Waheed told CNN that the FBI already has enough power, some of which she believes they're abusing.

"The government has over 50 federal crimes related to domestic terrorism. They have an entire framework of hate crimes and they have expansive authority to investigate crimes before they're even committed," said Waheed.

Waheed said the new law would mean more surveillance and infringing upon First Amendment rights. The existing framework should be more than enough to fight domestic terrorism, especially white supremacist violence, she said.

Waheed alleged that the FBI is instead abusing its powers against marginalized communities instead of focusing on white supremacist violence.

"They have so many federal crimes they can charge with. They have expansive powers to conduct investigation long before a crime is committed, so why aren't they using those powers to address white supremacist violence?" Waheed said, adding that she's skeptical that the FBI can be trusted to label domestic terrorism groups and not just groups who are critical of the government.

McCaul said that he believes his bill can win over support from skeptical stakeholders, despite these worries

"I share (the ACLU's) concern but that's not what this legislation does. In the international terrorism space, we do delineate foreign terrorist organizations like Al Qaeda, like ISIS. In this bill, we don't do that. We're not into controlling freedom of thought, freedom of expression," said McCaul.

O'Hare argues there are checks and balances to ensure the FBI doesn't abuse its powers.

"All charges are public. All charges are taken to courts. There's a federal judge and jury who reviews all of our work and decide if the charge is appropriate," the FBI agent said.

O'Hare worries that since none of the three domestic terrorism bills addressing the issue have made it out of congressional committees so far, it's unlikely that any will pass the full Congress this legislative session.

"I pray that we do not wait until there is another incident. We have seen enough examples of domestic terrorism and the damage it can cause in different communities. It's unacceptable. The time to act is now," O'Hare said to CNN in an interview that took place before the Jersey City attack.

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