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U.S. laws fall short in confronting domestic terrorism, former DOJ official says

El Paso suspect may be charged as terrorist

Following the deadly shooting in El Paso, Texas on Saturday that left 22 dead and two dozen people injured, United States Attorney John Bash said it will be treated as a domestic terrorism case. But Mary McCord, a former Department of Justice official who served as acting assistant attorney general for national security from 2016 to 2017, says U.S. laws currently fall short when it comes to dealing with domestic terrorism.

"I'm very encouraged by U.S. Attorney John Bash to say this meets the definition of domestic terrorism, because it clearly does," McCord said Monday in an interview with CBSN's Alex Denis. "But that is just a definition and not a statute. Our code lacks a statute that allows this to be prosecuted as domestic terrorism."

McCord elaborated on what goes into determining whether violent acts committed in the United States are given the legal designation of terrorism. She said that label ultimately comes down to the intent and weapons used by the suspect — and because there isn't a specific domestic terrorism law on the books, some attacks won't qualify.

"There is not an offense in the U.S. code that applies to acts of terrorism on U.S. soil that are committed with firearms instead of weapons of mass destruction, unless they are committed in some limited circumstances such as on behalf or in furtherance goals of a foreign terrorist organization, like we've seen with all of the terrorists acts on behalf of ISIS, or Al Qaeda, or if they're directed toward a U.S. government official or U.S. government property," she explained.

McCord touched on the specific difference between prosecuting a case as murder rather than terrorism.  El Paso suspect Patrick Crusius, 21, had capital murder charges filed against him by the El Paso District Attorney, and is also expected to face federal terrorism charges. 

"First of all, murder is a different crime than domestic terrorism. Murder is an inherently local crime," McCord said. "Hate crimes might be very personal between a small group. Terrorism is done to intimidate or coerce the population or influence a policy of government through intimidation or coercion. So there are different federal interests at stake when it comes to terrorism. And a different reason to prosecute it as terrorism."  

McCord also touched on the "moral equivalency" of treating the crime committed in El Paso as terrorism, the same way we would if the attack had been committed in the name of ISIS.

FBI warns of "threat" of rising hate crimes

While the El Paso gunman allegedly wrote a manifesto filled with white supremacist and anti-immigrant rhetoric that gave a clear racist motive for the killings of 22 people, the FBI did not characterize it as a white nationalist or white supremacist crime in a statement Sunday.

"The attack in El Paso, Texas, underscores the continued threat posed by domestic violent extremists and perpetrators of hate crimes," the FBI said, adding that the El Paso investigation is being supported by the FBI's Domestic Terrorism-Hate Crimes Fusion Cell, which was established earlier this year. It also warned, "Violent extremists could become inspired by these and previous high-profile attacks to engage in similar acts of violence."

CBS News has reported the FBI says it has 850 open domestic terrorism investigations, 40% of which were motivated by racial extremism. Even so, the FBI is careful not to focus on a specific political viewpoint. 

In congressional testimony last month, FBI Director Christopher Wray said, "We, the FBI, don't investigate ideology, no matter how repugnant. When it turns to violence, we're all over it." 

White nationalism a growing danger in America, report says

On Tuesday, the FBI Agents Association called on Congress to take action to make domestic terrorism a federal crime.

"Domestic terrorism is a threat to the American people and our democracy. Acts of violence intended to intimidate civilian populations or to influence or affect government policy should be prosecuted as domestic terrorism regardless of the ideology behind them," Brian O'Hare, the president of the FBI Agents Association, said in a statement. Making domestic terrorism a federal crime "would ensure that FBI Agents and prosecutors have the best tools to fight domestic terrorism," he said.

McCord voiced her support for empowering the Department of Justice and FBI to focus on preventing acts of white supremacist terrorism before they occur. 

"I'm in agreement that the DOJ should be aggressively pursuing investigations that would help to prevent acts of terrorism, and working with state and local partners to do so," she said. "I think they should also work more collaboratively internationally, with foreign countries and their counterparts internationally, because we know after Christchurch and Sri Lanka, we know that this idea of white supremacist violence is not unique to the United States, it's occurring all over the country and white supremacists are gathering steam from it and they're following each other and they're referencing each other when they commit their acts of terrorism."   

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