You Can’t Charge Someone With Domestic Terrorism?

What’s the story?

We asked you, our CountaUsers, if the killing in Charlottesville on August 12 was terrorism. The vast majority of you said yes. Monday Attorney General Jeff Sessions agreed, but that doesn’t actually mean the federal government can charge the man responsible for the attack with "domestic terrorism."

Why does it matter?

The New York Times reports Sessions stated clearly Monday morning during an interview with "Good Morning America" that the attack on Saturday was domestic terrorism and would be fully investigated:

"It does meet the definition of domestic terrorism in our statute...You can be sure we will charge and advance the investigation toward the most serious charges that can be brought because this is unequivocally an unacceptable evil attack."

But that doesn’t mean the attacker will be prosecuted for "domestic terrorism". According to the Lawfare blog, “Domestic terrorism does not exist as a substantive offense under federal law....There is no such crime.” The state has primary legal authority in the case and will bring the final charges.

At the same time, the Department of Justice investigating the attack as an "act" of domestic terrorism establishes the federal government’s jurisdiction and the scope of the inquiry. The Times puts it this way:

"Domestic terrorism is not, itself, a criminal offense that prosecutors could charge. But portraying the attack in Charlottesville that way could help enable federal jurisdiction for what would normally be the state crime of vehicular manslaughter. It could also trigger certain enhanced powers to obtain records or seize assets that are available in security investigations. Since Virginia has the death penalty, however, federalizing the prosecution might not trigger any greater set of penalties for a conviction.”

The addition of federal jurisdiction deepens and widens the security investigation, but doesn’t change the prosecution.

Whether or not the Department of Justice names the attack as an act of domestic terrorism also says something important about who the government is willing to protect and who they are willing to prosecute. Following a terrorist attack in June where a man ran a van into a crowd outside a London mosque Max Fisher wrote in the Times:

"Calling an attack terrorism has become a way of asserting that the targeted community feels terrorized and of asking society to take that threat as seriously as it does other forms of terrorism. The debate is less about legalistic definitions than a way to examine which groups society is willing to protect, and what kind of violence it is willing to tolerate.”

Legally, there are potential dangers if domestic terrorism were to become a crime unto itself. In the Lawfare blog Susan Hennessey argues that laws constructed to criminalize "domestic terrorism" as a separate charge might well lead to an infringement on civil liberties.

What do you think?

Should domestic terrorism be considered a federal crime? Or is the current designation, which triggers a federal investigation but leaves the formal charges up to the state, adequate? What more should the federal government be doing, if anything, to combat domestic terror organizations and attacks?

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— Asha Sanaker

(Photo Credit: ABC7News via Twitter)