A domestic terrorism law is not enough to combat gun violence

A domestic terrorism law is not enough to combat gun violence
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In response to the mass shootings in El Paso and Dayton earlier this month, Americans are rightfully focused on legislative solutions to address the issue of gun violence. One idea that has resurfaced is that of establishing a federal crime of domestic terrorism, and similar bills doing just that have been introduced in the Senate by Republican Martha McSally of Arizona and also in the House by Democrat Adam Schiff of California. While I salute their efforts to step up and propose more than mere platitudes, the fact remains that these bills alone would do little to combat the threat of white nationalism and other extremist ideologies and nothing to address the scourge of gun violence in the United States.

As drafted, the bills would establish domestic terrorism as a standalone crime defined as committing murder, kidnapping, assault, or creating a substantial risk of serious bodily injury by destroying property with the intent to intimidate or coerce a civilians or influence government policy. They would impose harsh sentences on violators, including the death penalty or life imprisonment for attacks where a victim is murdered. The Senate version would impose new obligations on the Justice Department to report each year to Congress on the domestic terrorism threat, while the House version focuses on the civil liberties implications.

The problem is these bills effectively serve as solutions to a problem that does not exist. It is true that, much to the surprise of many Americans, domestic terrorism is defined but not criminalized in federal law. But this does not mean there are terror attacks that are going unpunished. The federal code criminalizes a wide range of violent acts, hate crimes, and civil rights violations to prosecute perpetrators of mass attacks. Most states also have their own domestic terrorism laws, and every state has the power and resources to prosecute murder, assault, and other violent acts. Even in state cases where there is no available federal crime, the FBI and other federal resources are still brought in to assist state law enforcement in investigating and prosecuting wrongdoers.

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Unlike federal laws that allow the government to designate groups such as Al Qaeda and Islamic State of Iraq and the Levant as foreign terrorist organizations, these bills would not create a parallel system for domestic groups. There is good reason for this. Designating domestic groups akin to foreign terrorist organizations raises a slew of legal and logistical hurdles that would likely not pass constitutional muster in court.

Domestic groups that spread hate speech, even if extreme, have First Amendment protections that prevent them from simply being shut down or individuals prosecuted for supporting them. Further, implementing a domestic surveillance program similar to what the Foreign Intelligence Surveillance Act permits for monitoring foreign agents raises more legal questions and the possibility of serious abuses. Aside from being a sentencing enhancer, the bills essentially do nothing to further develop tools for law enforcement to better combat domestic terror acts.

In addition, the domestic terrorism bills do not get our nation any closer to a national gun registry, a workable assault weapons ban, enhanced background checks, red flag provisions, or any of the various gun control efforts that should be on the table if a serious conversation is to be had. In fact, the domestic terrorism bills may not even cover firearms attacks where there is no evidence the shooter acted with a political agenda. While firearms attacks on minority religious or ethnic groups would likely fall within their scope, a disgruntled employee, school shooter, or mentally ill offender would likely not qualify as a domestic terrorist.

Some argue that passing a domestic terrorism bill has no downside. While public opinion has been gradually less supportive of capital punishment, there could be value in formulating a distinct domestic terrorism offense with tougher available sentences. Creating a new prosecutable federal crime may mean such investigations become a higher priority and open up additional resources from the FBI and other federal agencies. There may be merit in simply messaging that the federal government is taking seriously a threat that arguably has played second fiddle to foreign terrorism concerns in the years since the September 11 attacks.

But the danger is that once such a law is enacted and time passes we revert back to a state of complacency. Establishing a domestic terrorism crime alone will not provide new ways to infiltrate extremist groups or new mechanisms to identify would be attackers. More critically, it will do nothing to help stop firearms from getting into the wrong hands. If these domestic terrorism bills move forward, it must be as the start of a longer conversation on attacking our gun problem, not the final word.

Joseph Moreno is a former federal counterterrorism prosecutor with the Department of Justice, a former staff member with the FBI 9/11 Review Commission, and a United States Army combat veteran. He is now an attorney in Washington. You can follow him on Twitter @JosephMoreno.