WASHINGTON — The white man charged with slaughtering 10 Americans in Buffalo, New York, on Saturday was clear about his racist intentions. The politically motivated attack was conducted to send a message. The suspect wanted to intimidate and coerce a civilian population, influence political policy and affect the conduct of government.
In a prepared screed, 18-year-old Payton S. Gendron called his attack the definition of an act of terrorism. Yet even with that concession from the suspect himself, federal authorities have shied away from calling it an act of domestic terrorism.
And that’s likely because domestic terrorism isn’t actually a separate crime.
“The fact is, while the U.S. Code defines the phrase ‘domestic terrorism,’ there are currently no penalties attached to that definition,” explained Thomas O’Connor, a former FBI special agent who headed the FBI Agents Association. “Therefore ‘domestic terrorism’ is not a crime in and of itself under federal law.”
Attorney General Merrick Garland, whose career was shaped by his role in the prosecution of the bomber in the 1995 terrorist attack in Oklahoma City, said in a statement Saturday that the Justice Department was investigating the Buffalo massacre “as a hate crime and an act of racially-motivated violent extremism.” In a statement on Monday evening, FBI Director Christopher Wray struck the same note, saying the Buffalo shooting was being investigated as a “targeted attack, a hate crime, and an act of racially motivated violent extremism.”
President Joe Biden called the Buffalo massacre “terrorism” on Tuesday, as have other prominent political figures.
But the words used by law enforcement have and will continue to shape how this attack is absorbed by the American people. And one reason federal law enforcement officials aren’t calling it an act of terrorism is because they can’t charge it as such.
There’s no federal statute that makes acts of terrorism inspired by domestic ideologies illegal. While federal law includes a definition of domestic terrorism, and prosecutors can seek sentencing enhancements in cases of domestic terrorism after a defendant is convicted, domestic terrorism isn’t a stand-alone federal crime.
If the Justice Department follows the pattern it did after a white man killed nine Black churchgoers in Charleston, South Carolina, in 2015, or when a man killed 11 at a Pittsburgh synagogue in 2018, or when a white man targeting Latinos killed 23 people at a Walmart in El Paso, Texas, in 2019, the suspect in the Buffalo shooting will most likely face federal hate crime charges.
The contrast between “domestic” and “foreign” terrorism is stark, and it has nothing to do with the location of the attack, but rather the underlying motivation of the attack.
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If the Buffalo shooter were an Islamic extremist who supported a designated foreign terrorism organization, like al Qaeda or the Islamic State terrorist group, he could be charged with “material support” of a terrorist organization. For example, the widow of the Islamic extremist — who was an American citizen — who killed 49 people in the Pulse nightclub attack in Orlando, Florida, in 2016 faced a federal terrorism charge. She was found not guilty by a jury in 2018.
The charge of providing “material support” to a foreign terrorism organization can’t be applied to extremists backing domestic causes because the law requires that the act be done to aid one of the groups named on a list kept by the State Department.
When officials won’t call an act “terrorism,” it can shape the public narrative. Many news organizations require that when calling an individual a terrorist or an attack an act of terrorism, the terms must be attributed to a law enforcement or government official. That’s because, in criminal cases, caution is warranted when using a loaded term like “terrorist.”
The fear among federal officials like Wray and Garland is that labeling an attack like the one in Pittsburgh an act of terrorism may unnecessarily complicate what should be a fairly straightforward prosecution, agency veterans have long argued. A defense attorney may latch onto such proclamations, and there’s a general tradition at the Justice Department of speaking only through what’s known as the “four corners” of a criminal complaint or indictment, meaning not saying anything that isn’t already written down in court documents. If you can’t charge someone with terrorism, the argument goes, you can’t call them a terrorist.
“The only world I live in is when you bring charges against someone and charge them with something under a particular provision that is a terrorism statute,” former FBI Director James Comey said after the Charleston massacre. “That’s the framework through which I look at it, and I think that makes sense for someone in the government who is doing an investigation to look at it through that framework.”
Thomas Brzozowski, the Justice Department’s counsel for domestic terrorism matters, explained in 2018 why federal officials were so cautious about labeling acts of domestic terrorism as domestic terrorism, even when they clearly were.
“In many instances, the government is going to be constrained, to a certain degree, from stepping in front of a podium and saying, ‘Ladies and gentleman, we’re revealing domestic terrorism here,'” Brzozowski said. “The department is very judicious about deploying the term in the first instance, and typically will only do so in the backend of litigation when the facts and circumstances are going to be clear.”
Brzozowski pointed to the case of a white supremacist who attempted to bomb a 2011 Martin Luther King Jr. Day march in Spokane, Washington. At sentencing, prosecutors secured a terrorism enhancement, and he received 32 years in federal prison. But that was long after the public narrative had been shaped. He was initially charged with a hate crime.
“That is how the public took it up, that is how pundits referred to it, that is how folks outside of government viewed it. It was viewed through the prism of hate,” Brzozowski said. “Folks seize on that and view this almost exclusively in terms of hate. What they miss is the fact that his underlying criminal activity clearly meets the statutory definition of domestic terrorism … without a doubt.”
Since the Buffalo suspect hasn’t been charged federally, it remains to be seen whether federal officials could try to explain to the American public that the attack was terrorism, even if he isn’t charged that way.
There is some recent precedent for that. Former Attorney General Jeff Sessions noted after a man rammed his Dodge Challenger into a crowd of counter-protesters at the “Unite the Right Rally” in Charlottesville, Virginia, in 2017, killing one person, that the attack was “the definition of domestic terrorism.” (The assailant was ultimately sentenced to life in prison on federal hate crimes charges.) And after the El Paso shooting, the top federal prosecutor in southern Texas described the attack as an act of terrorism as well.
Former Justice Department national security chief Mary McCord, who had advocated for a narrowly written domestic terrorism law that could give prosecutors the option of bringing a terrorism-related charge against domestic terrorists, believes there’s value in society being able to clearly label acts of domestic terrorism as such.