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Former DOJ Official On Why She Thinks Domestic Terrorism Should Be A Federal Crime


The man accused of stabbing people who were celebrating Hanukkah in New York this weekend has been charged with hate crimes. New York Governor Andrew Cuomo called the attack domestic terrorism. He wants to see a new state law that makes domestic terrorism itself a crime.


Federal law does define domestic terrorism, but there are no criminal penalties for it. Someone who's been long arguing to make domestic terrorism a federal crime is Mary McCord. She was a former acting assistant attorney general for national security under both President Obama and President Trump. She joins us now. Welcome.

MARY MCCORD: I'm glad to be here, Ailsa.

CHANG: How is domestic terrorism currently defined under federal law?

MCCORD: Well, it's actually defined almost identically to international terrorism - that is a crime of violence under state or federal law - so think things like murder, assault with a dangerous weapon, aggravated assault - when done with a specific intent, and that is the intent to intimidate or coerce a civilian population or influence the policy of government through intimidation or coercion. And so the primary difference then is where the act occurred. So if the act occurs overseas or even if it occurs in the U.S. but with a connection to overseas terrorists, that's considered international.

CHANG: So lay out the case briefly for why you think making domestic terrorism a federal crime would change the way it's prosecuted in the U.S..

MCCORD: So to be clear, there are a suite of terrorism statutes in the federal criminal code and many of these would apply to terrorism occurring domestically, but only in very specific circumstances, such as when a weapon of mass destruction like a bomb or nuclear device is used or when the attack is on a U.S. government official or government property.

CHANG: But in the case of a mass shooting or multiple stabbings like this weekend, domestic terrorism would not apply?

MCCORD: That's right. So when we're talking about a vehicle - which sometimes we see, such as during the Unite the Right rally in Charlottesville, Va., in 2017 - those criminal acts would not be chargeable as terrorism offenses if they were not linked to a foreign terrorist organization.

CHANG: But let me ask you - I mean, there are still other laws already on the books that punish the kinds of acts we're talking about. There are laws against murder. There are hate crime laws - firearms and explosives laws. Why are those current laws not enough?

MCCORD: You're absolutely right that, when we're talking about crimes of violence as the predicate for any act of terrorism, those crimes of violence already are illegal. So it's not an issue of there not being effective prosecutions, it's an issue of how do you drive resources toward prevention.

CHANG: But if prevention - or putting effort into prevention is part of the problem, isn't that just more of an issue of helping federal law enforcement agencies prioritize prevention efforts when it comes to, say, hate crimes?

MCCORD: Certainly some sort of retraining and reorganizing of how federal law enforcement approaches federal hate crimes is certainly in order, and I very much support that. It's just not the way it has been historically. And hate crimes - not all hate crimes are going to be domestic terrorism crimes, not all domestic terrorism crimes are going to be hate crimes. And that's because some terrorism crimes are not based on race or religion or anything protected under the hate crimes. They can be based based on anti-government sentiment and other types of extremism.

CHANG: The venn diagram between domestic terrorism and hate crimes is not a perfect circle.

MCCORD: That's exactly right.

CHANG: The main pushback from a lot of civil liberties organizations against making domestic terrorism a federal crime is that there are real First Amendment concerns here - the concern that politics could get mixed up in this. Some Republicans, for example, were demanding that the FBI investigate antifa and that antifa should be labeled a terrorist organization.

MCCORD: So I think that it's a very valid concern that I share with many civil rights and civil liberties organizations and advocates that there needs to be oversight to ensure that law enforcement appropriately uses its resources in a way that corresponds to the threat. So the threat, right now, is predominantly from white supremacist or white nationalist violence. So any new statute would need to come with oversight to ensure reporting to Congress and to the public of how the FBI is using its resources, and is it using its resources in a way that matches up with where the threat is?

CHANG: Mary McCord is the legal director of Georgetown University Law Center's Institute for Constitutional Advocacy and Protection. Thank you very much for joining us today.

MCCORD: It's my pleasure, Ailsa. Transcript provided by NPR, Copyright NPR.