The deadly shooting in El Paso is being treated as investigation into the July shooting at the garlic festival in Gilroy, California., prosecutors there said. And the FBI said it has opened a "domestic terrorism"
But the individuals who commit these violent acts will ultimately be indicted on different federal charges — hate crimes or weapons possession. Here's why: Domestic terrorism is defined in the U.S. legal code but it is not codified as a law that can be prosecuted.
"It's confusing to the public to call someone abut not charge them with a crime of terrorism," said Mary McCord, a former Department of Justice official who served as acting assistant attorney general for national security from 2016 to 2017.
How is domestic terrorism defined?
The FBI defines domestic terrorism as acts "perpetrated by individuals and/or groups inspired by or associated with primarily U.S.-based movements that espouse extremist ideologies of a political, religious, social, racial, or environmental nature."
The USA Patriot Act from 2001 defines domestic terrorism as a dangerous act occurring within U.S. territory that violates criminal laws in ways that are "intended to intimidate or coerce a civilian population; influence the policy of a government by intimidation or coercion; affect the conduct of a government by mass destruction, assassination or kidnapping." That definition is also in the U.S. Government Code, the 53 title compilation of federal legal statutes.
According to McCord, domestic terrorism was first defined in the federal code in 1992. Prior to that period, McCord is doubtful domestic terrorism was even a part the public consciousness or law enforcement radar. "I don't think people back then were even using that verbiage. We didn't even have internal terrorism at that time," she said.
How does "terrorism" differ from "domestic terrorism"?
Acts of terrorism that "transcend national boundaries" are federal crimes. The U.S. Code of laws lists several violent crimes under the umbrella of terrorism that can be prosecuted if committed against persons within the U.S.
In a 2008 speech to the Anti-Defamation League, Jonathan Solomon, special agent in charge of the FBI's Miami, Florida division, explained this difference:
"What makes domestic terrorism different is that domestic terrorists are based or operate solely in the U.S., and their acts target the U.S. government or U.S. citizens," Solomon said. "They can be 'right-wing' or 'left-wing' extremists, such as white supremacists, anti-government militias, or anarchists. They can be 'single-issue' groups, such as animal rights or environmental rights extremists. And they can be 'lone wolves' with their own agendas. Think of Unabomber Ted Kaczynski."
Under the Patriot Act, the federal government has multiple resources to combat international terrorism. It has the authority to conduct surveillance of suspected terrorists, and can mount undercover sting operations and obtain financial records.
They have fewer tools to investigate domestic terrorism.
According to a recent op-ed by McCord in the Washington Post, "these techniques, though, are limited when it comes to preventing domestic terrorist attacks. FBI guidelines forbid agents from deploying them solely on the basis of First Amendment-protected activity."
The First Amendment protects free speech, including the right to openly espouse any ideology, even hateful ones. So domestic extremists have greater legal latitude to express their views.
There is less free speech protection when domestic actors provide "material support" for international terrorist groups. Material support can involve providing financial or logistical assistance for international terrorist groups.
But Jason Blazakis, who teaches terrorism studies at the Middlebury Institute, told CBS News that material support provisions don't extent to domestic terrorists unless a domestic terrorist group is linked to a foreign-based organization.
There still are some tools investigators can use. According to testimony given to Congress in May by Deputy Assistant Attorney General Brad Wiegmann, judges can issue property search warrants and warrants for tax and educational records in cases involving domestic terrorism. Law enforcement may also intercept communications on information that reveals "a threat of terrorism, including domestic terrorism."
How prevalent is domestic terrorism?
The FBI has recorded close to 100 domestic terrorist arrests in the first nine months of this year, according to the Washington Post, citing Senate testimony in July from FBI Director Christopher Wray.
And it has 850 open investigations tied to domestic terrorism, a senior FBI counterterrorism official told CBS News.
In his testimony, Wray said the FBI is most concerned with "lone offender attacks, primarily shootings." In his testimony, which can be seen on CSPAN video, the director also said, "A majority of the domestic terrorism cases we've investigated are motivated by some version of what you might call white supremacist violence."
Can white supremacists and other extremist groups be charged with domestic terrorism?
"Designating domestic groups as domestic terrorism organizations and picking out particular groups that you say you disagree with their views and so forth is going to be highly problematic," said Wiegmann in his May testimony. The FBI "opens cases on suspected criminal violations, not ideologies. The FBI may not investigate solely on the basis of First Amendment-protected activity."
This leaves law enforcement officials to search for ways of prosecuting violent extremism through other means. For instance, in 2018 four white supremacist members of the Rise Above Movement group were charged with conspiring to riot and some of those men have pleaded guilty.
What charges were filed in other domestic terrorism cases?
James Fields Jr., who intentionally drove a car into a crowd during the United the Right rally in Charlottesville, Virginia, in August 2017, killing one person, faced 28 federal hate crime charges. He was sentenced to.
Robert Bowers, who allegedly at the Tree of Life Synagogue in Pittsburgh in October 2018, was indicted on 63 counts of hate crime and firearm offenses as well as murder charges. He not guilty and is awaiting trial.
, who was arrested in October 2018 for mailing multiple explosive devices to 13 people, including Democratic politicians, was charged with using a weapon of mass destruction, among other felony charges. He pleaded guilty and was in prison.
"In the minds of many people, it's the charges that matter the most," said Jason Blazakis, a professor in terrorism studies at the Middlebury Institute. "You don't see that word terrorism anywhere in the actual sentencing. They aren't labeled terrorists pursuant to law."
That is even the case for two of the most notorious domestic terrorists in recent history.
Timothy McVeigh, the charges of using a weapon of mass destruction and murdering federal officials for the 1995 attack that killed 168 people. He was executed in 2001., faced
Ted Kaczynski, the Unabomber, was indicted on charges centered around transporting and mailing an explosive device for his decades-long, deadly mail-bomb campaign. He's now serving a life sentence in the federal "Supermax" prison in Colorado.
The words "terror" or "terrorism" do not appear in either McVeigh's or Kaczynski's indictment.