Guest Post: Shane Stansbury on renewing the debate on domestic terrorism legislation

Today’s post is by Shane Stansbury, the Robinson Everett Distinguished Fellow in the Center for Law, Ethics, and National Security (LENS) and a Senior Lecturing Fellow, here at Duke. He’s urging a renewal of the dialogue he discussed here back in March.  Here’s Shane’s update:

Last week’s mass shooting in El Paso has renewed public discussion about whether we need a new federal statute addressing crimes of domestic terrorism.  On Thursday, for example, Bobby Chesney posted a helpful piece on Lawfare that attempted to clarify some common misconceptions about what is and is not covered under current law.

I generally agree with everything in his post, and it overlaps substantially with a piece I posted here back in March in the wake of the shooting in Christchurch, New Zealand.  (Sadly, it seems that we find ourselves having the same debate every few months after an event like this occurs.)

I thought it would be worth restating my comments from March (here), as they are just as relevant now as they were then.

I continue to believe, as others do, that we are long overdue for strong national leadership on this front.  To be sure, there is no magic elixir.

Prof. Stansbury

As I discuss in the post, statutory solutions—like borrowing from the current definition of “domestic terrorism” to penalize a broader set of criminal acts (e.g., mass shootings)—can only go so far.

Consider, for example, the El Paso shooting as compared to the shooting in Dayton, Ohio that occurred on the same weekend.  Although the investigations are still ongoing, we know that in the former case the shooter allegedly posted a racist manifesto that has led DOJ to conclude that his actions appear to have qualified as “domestic terrorism.”

The Dayton shooter’s motives are, at least as of now, less clear, meaning the terrorism label might not apply, even if Congress were to expand the criminal laws in the way some have proposed.

But that should not keep Congress from at least considering whether changes to the criminal code—along with other measures that address the root causes of these horrific crimes—are necessary.

Prof. mcCord

Mary McCord and others have eloquently explained that even if a new domestic terrorism law would not cover every mass shooting (including, for example, the 2017 Las Vegas shooting and most school shootings), there still may be both moral and practical justifications for expanding the tools available to investigators and prosecutors in tackling the kind of ideologically and hate-driven violence that has victimized communities such as El Paso, Pittsburgh, and Charlottesville.

Reasonable minds can disagree about the merits of such proposals and whether the potential costs (which I describe in my original post) outweigh the potential benefits.  But this much is clear:  the status quo is untenable.

To read more about this issue, read Shane’s essay found here.

As we like to say on Lawfire^®, check the facts, assess the law and arguments, and decide for yourself!