Sen. Martha McSally drafts bill to make domestic terrorism a federal crime

Oh, this isn’t going to help Martha McSally with the gun toting patriot militias and the white nationalists in the Arizona GOP base, or Libertarians, or states’ righters, or the NRA … or Donald Trump. This will almost certainly draw another GOP senate primary challenger from the far-right, and maybe even a Libertarian.

Politico reports Sen. Martha McSally drafts bill making domestic terrorism a federal crime:

Sen. Martha McSally is seeking to make domestic terrorism a distinct federal crime, the latest sign that Republicans are increasingly serious about crafting a legislative response to recent mass shootings in Texas, Ohio and California.

The Arizona Republican is aiming to close a loophole in the law that prevents federal authorities from specifically punishing domestic terrorism, according to a discussion draft circulated to other offices. McSally, an Air Force veteran, said in releasing the draft that “domestic terrorism is in our backyard and we need to call it and treat it under the law the same as other forms of terrorism.” Authorities frequently charge domestic terrorism suspects with other offenses.

“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,” she said. “That stops with my bill. The bill I am introducing will give federal law enforcement the tools they have asked for so that they can punish criminals to the fullest extent of the law.”

The bill is likely to garner significant co-sponsors in the coming days, according to an aide familiar with the effort. The draft bill would criminalize politically motivated violence, recognize victims of terrorism and allow federal authorities to charge suspects with acts of domestic terrorism.

FBI Director Christopher Wray told senators last month that the FBI is “aggressively” fighting domestic terrorism, but some lawmakers contend that creating domestic terrorism laws would be another tool to fight homegrown terror.

McSally is running against Mark Kelly in Arizona’s 2020 special election for the late John McCain’s Senate seat, a contest in which firearms and fighting crime will loom large. Kelly is married to former Rep. Gabby Giffords (D-Ariz.), and the two have been fighting to push Congress to respond to mass shooting since Giffords was shot and seriously wounded in 2011. McSally has said she is open to expanding background checks but wants to preserve Second Amendment rights.

Well, there’s your problem Senator. Those patriot militias in Arizona believe that they are exercising their “god given” Second Amendment rights, “so don’t go classifying us as domestic terrorists, lady!”

Just how long do you think it is going to take Charles Heller from the Arizona Citizens Defense League to start calling for an opponent to defeat McSally in the GOP senate primary?

Or for Libertarians to start screaming about “criminalizing First Amendment political speech”?

Former federal prosecutor Harry Litman recently wrote at the Washington Post, A domestic terrorism statute doesn’t exist. Congress must pass one — now.

Just one problem: There is no [domestic terrorism law].

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 … if Crusius is prosecuted under federal law, it will be for hate crimes and firearms offenses.

By contrast, 18 U.S. Code § 2332b lays out a laundry list of “acts of terrorism transcending national boundaries,” — i.e., acts of international terrorism — with commensurately serious penalties, including sentences of death.

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If there were a domestic terrorism statute, would it provide a better fit for Crusius and the suspect in the other mass shooting in Dayton, Ohio, Connor Betts?

In Crusius’s case, arguably. Based on his writing, it appears easier to fit his mental state into an intent to “intimidate a civilian population or to influence the policy of government,” as opposed to particular animus against Hispanics. And “immigrant status” per se is not a protected class under the hate crimes statute.

As for Betts, whose attack killed nine people before he was shot and killed by police, preliminary evidence has not revealed any particular political or racial motive.

In any event, these two latest tragedies raise anew the need for Congress to pass a discrete domestic terrorism statute.

Opponents of a free-standing domestic terrorism statute point out that between federal hate crime law and state homicide statutes, law enforcement has extensive tools to prosecute domestic terrorists.

Ironically, the same argument was made by opponents of hate crime statutes when they were passed in the 1990s. Why load up the already bloated federal code when assault and homicide statutes were available?

But just as the social evil of hate crimes is particular to those offenses, domestic terrorism is its own evil, and it’s fitting for the legislature to recognize the threat and injury that terrorism occasions, and, in fact, to put it on relative equal footing with international terrorism. Fitting, too, that perpetrators of domestic terrorism be branded with the scarlet letter signifying particularly abhorrent crimes.

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And while it is doubtful whether the actors in such rampages are subject to normal forces of deterrence, it also is fair, and consistent with due process, for the law to call out the specific criminal conduct that the law forbids and the specific penalties the violations entail.

It also would, to some degree, increase social awareness of the domestic terrorism offenses. As Juliette Kayyem argued in a column for The Post, true “lone wolf” assailants are rarer than people think; many mass shooters emerge from an online social setting that nurtures their demented views.

But passage of a domestic terrorism law would have important substantive effects as well. It would also bring such crimes into the rubric of predicate offenses for providing material support to terrorists. And, as the FBI has pointed out, it would also provide more resources for the bureau on the data-gathering side as well as the prosecution side.

The time is more than ripe for passage of a criminal domestic terrorism statute. This would be a small, constructive development to emerge from the recent rash of tragedies.

In a counterpoint, the Los Angeles Times recently editorialized, Editorial: Domestic terrorists can be prosecuted without a new federal law:

Legislation was introduced in Congress in March [not Martha McSally’s bill] that calls for the establishment of domestic terrorism units in the Justice and Homeland Security departments and the FBI as well as the creation of a Domestic Terrorism Executive Committee. But some have called for more sweeping legislation to ensure that the FBI could investigate domestic terrorism as aggressively as it does terrorism with international connections. Congress needs to proceed cautiously on any such proposals.

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It’s also true that, while federal law contains a definition of domestic terrorism, there is no statute that makes all domestic terrorism a federal offense with prescribed penalties. This week the FBI Agents Association, representing more than 14,000 active and former agents, reiterated its call for such a statute.

But Congress could run into constitutional problems if it seeks to combat suspected domestic terrorism using the same legal tools employed against foreign terrorist groups. Besides, it’s not clear that the laws already on the books prevent the FBI from aggressively investigating violent white supremacists or other domestic terrorists, or that they unduly hamper the U.S. Justice Department in prosecuting them.

David Cole, the legal director of the American Civil Liberties Union, told The New York Times that proposals for a new domestic terrorism law “tend either to be duplicative of laws that already exist or expansive in ways that violate 1st Amendment rights of speech and association.” An analysis by the Brennan Center for Justice at New York University Law School notes that “there are already dozens of federal statutes carrying severe penalties that are available to investigators and prosecutors pursuing these crimes.”

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Although federal law lacks a catchall criminal offense of domestic terrorism, Robert Chesney of the University of Texas Law School points out that several federal terrorism-related statutes, including one dealing with the use of explosives, apply in cases of home-grown violent extremism. Timothy McVeigh, who perpetrated the 1995 bombing of the Oklahoma City federal building that killed 168 people and injured several hundred more, was convicted of federal charges including use of a weapon of mass destruction and murdering federal agents.

Those who are calling for a new domestic terrorism statute argue that there are still gaps in federal law, including the inability of the Justice Department to prosecute some acts of domestic terrorism committed with some categories of firearms. Congress should determine whether that is actually a problem, but it needs to do so in a deliberative way.

Congress also needs to recognize that some approaches to the investigation of foreign terrorism raise constitutional questions when applied to domestic activities. For example, it’s a crime for Americans to provide “material support or resources” to designated foreign terrorist organizations. But criminalizing support for domestic political groups, however extreme, could threaten speech protected by the 1^st Amendment and the designations themselves might be subject to a constitutional challenge. Testifying before the House Homeland Security Committee, Deputy Assistant Atty. Gen. Brad Wiegmann acknowledged that “picking out particular groups [whose views] you say you disagree with … is going to be highly problematic.”

Some advocates of new federal legislation admit that their purpose is to send a message that Congress and the nation deplore terrorist acts by white nationalists as much as they do acts of violence committed by Islamic extremists. That is an important message, and one that Trump has been shamefully slow to embrace. But legislation is about more than symbolism; it has practical consequences.

The best way to demonstrate that the federal government is serious about terrorism by white nationalists, anti-Semites and other bigots is for the Justice Department and the FBI to make full use of the ample authority they already possess.

For a more detailed point/counterpoint analysis of this issue, see Robert Chesney, professor of law at the University of Texas School of Law, at Lawfareblog. Should We Create a Federal Crime of ‘Domestic Terrorism’? As to his principal question, Chesney answers “no”:

1. Do we need a federal domestic terrorism law in order to enable prosecution—or sufficiently serious punishment—of persons actually involved in terrorist attacks?

No. We do not have a situation in which persons who are involved in terrorist attacks somehow end up walking free, or getting improperly light sentences, due to a gap in the scope or calibration of criminal laws. This is true regardless of the scope of federal criminal law, for the states are the primary source of criminal law in the American system and every state has a wide array of general-purpose state criminal laws applicable to terrorist acts: murder, attempted murder, conspiracy, destruction of property and so forth. In some states, capital charges are available in some circumstances. I have no doubt that the district attorney in El Paso will pursue capital murder charges in that case, for example. The most one can say on this point is that many states do not have capital punishment, and Congress thus would be making a practical difference by providing a capital option via a new federal domestic terrorism offense.

Is that enough to carry the argument? As an initial matter, I’m very doubtful that this specific gap (the lack of the death penalty in some states) is playing a significant role in the calls for a new federal crime of domestic terrorism. Perhaps some are advancing that point, but not that I’ve seen.

Second, federal law already provides a capital option for some important domestic terrorism scenarios. What’s that you say? You thought that there was no federal crime of domestic terrorism? Read on.

I’m sure that Martha McSally thinks she is being oh so clever and is doing the right thing, but I see this move backfiring on her politically in the GOP.