FBI Agents Association urges Congress to make domestic terrorism a federal crime in the wake of Dayton and El Paso mass shootings

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• The FBI Agents Association released a statement Tuesday calling on Congress to make domestic terrorism a federal crime in the wake of two mass shootings in Dayton, Ohio, and El Paso, Texas.
• US law enforcement agencies have far more power to investigate foreign terrorism than homegrown violent extremism, particularly since the Patriot Act was signed into law following the September 11, 2001 attacks.
• But civil rights activists have expressed concerns that broadening the government's powers to address domestic terrorism could test the limits of free speech.
• It could also test whether Americans approve of aggressive oversight when the targets are white and not Muslim.
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The FBI Agents Association (FBIAA) called on Congress to classify domestic terrorism a federal crime in a statement released Tuesday.

"Domestic terrorism is a threat to the American people and our democracy," the statement said. "Acts of violence intended to intimidate civilian populations or to influence or affect government policy should be prosecuted as domestic terrorism regardless of the ideology behind them."

It continued: "FBIAA continues to urge Congress to make domestic terrorism a federal crime. This would ensure that FBI Agents and prosecutors have the best tools to fight domestic terrorism."

The FBIAA's statement comes in the wake of two mass shootings over the weekend - there have been 255 so far this year in the US - in Dayton, Ohio, and El Paso, Texas. The Dayton shooting killed at least 31 people, and the El Paso shooting killed at least 22 people.

The 21-year-old white, male suspect in the El Paso shooting may face hate crime and capital murder charges, officials said, after they discovered that he posted a racist manifesto online that railed against Hispanics and immigrants and blamed them for taking away jobs in the US.

The motive behind the Dayton shooting is not yet clear, authorities said. But former friends and an ex-girlfriend told NBC News the 24-year-old suspect had hit lists, often talked about mass murders, and was fixated on people from his past.

Read more: A former senior FBI official said agents are hamstrung in fighting white nationalist violence because they're 'wary of pissing off the guy in the Oval Office'

The two mass shootings shifted the national spotlight back to the rising threat posed by white supremacist violence in the US.

The FBI currently has 850 open domestic terrorism investigations. Of that number, 40% involve racially motivated violent extremism, and a majority of those cases involve white nationalists, the bureau said. FBI director Christopher Wray also told Congress last month that the agency counted 100 domestic terrorism arrests in the last nine months.

The bureau is facing renewed criticism for inadequately combating domestic terrorism and failing to address it as vigorously as it does international terrorism. A big part of that, current and former officials say, is that there's no federal penalty for domestic terrorism, and that US law enforcement agencies have far more power to investigate foreign terrorism than they do homegrown extremism.

After the Charlottesville white nationalist riots in 2017, Thomas O'Connor, the president of the FBIAA, wrote in an op-ed for The Hill in that current US law leads to too much confusion and uncertainty for law enforcement and the public, officials have to rely on city codes to prosecute domestic terrorists.

The charges also depend on the type of weapons used in the attacks, and authorities are forced to pursue only non-terrorism charges, O'Connor wrote. To rectify the problem, he suggested Congress should pass legislation that makes it a crime for a person to "commit, attempt, or conspire to commit an act of violence intended to intimidate or coerce a civilian population or to influence government policy or conduct."

Read more: Conspiracy theories pose a new domestic terrorism threat, according to a secret FBI document

Mary McCord, a former national security prosecutor, echoed that view, writing in Lawfare last year that such a law would provide for better record-keeping and analysis. She added that it would also push back on the widely held view that the federal government doesn't care as much about domestic terrorism and white nationalism as it does about foreign terrorism, particularly that which is influenced by radical Islam.

That said, there are significant concerns among civil-rights activists that broadening the federal government's powers could test the limits of free speech.

Martin Stolar, a New York civil rights lawyer, told The New York Times that a sharpened focus on white supremacist violence would also test whether Americans approve of aggressive oversight when the targets are white and not Muslim.

"If they did the same thing that they did with the Muslims, they'd say every white guy is a potential terrorist," Stolar told The Times. "You can't do that with white people. The blowback would be outrageous."