Robert Bowers is facing 29 federal criminal charges in connection with the fatal shooting of 11 worshipers at the Tree of Life synagogue in Pittsburgh, Pa. on Saturday.

The charges include 11 counts of using a firearm to commit murder and several counts of hate crimes.

Domestic terrorism is not among the charges for Bower’s alleged crime, which the Anti-Defamation League dubbed the deadliest anti-Semitic attack in American history, and which Pittsburgh Mayor Bill Peduto said marked the “darkest day” in his city’s history.

The week that ended with the Pittsburgh mass shooting began with the delivery of explosive devices to liberal philanthropist George Soros. Former Democratic presidential nominee Hillary Clinton, former president Barack Obama, the CNN bureau in New York City and actor Robert De Niro were among the many recipients of packages allegedly sent by registered Republican and avid Trump supporter Cesar Sayoc.

Sayoc was hit with five charges including interstate transportation of an explosive and assaulting federal officers.

He, too, is not being charged with domestic terrorism, even though former U.S. director of national intelligence James Clapper — one of his reported targets — and New York City Mayor Bill De Blasio both said the bomb deliveries were acts of terrorism.

Domestic terrorism — an act, but not a crime

Why are neither Bowers nor Sayoc being charged with domestic terrorism? Simple: domestic terrorism doesn’t exist — in the eyes of U.S. law anyway.

The U.S. Code of Federal Regulations defines terrorism as “the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.”

The U.S.A. Patriot Act, signed into law by former president George W. Bush in the wake of the 9/11 attacks, defines domestic terrorism as any illegal activity carried out on U.S. soil that threatens human life, intimidates civilians and looks to influence government policy and affect government conduct through the use of mass destruction, assassination or kidnapping.

However, these working definitions of terrorism and domestic terrorism are only that — definitions. Federal authorities never created crimes to match acts of domestic terrorism.

“There is no federal crime labelled domestic terrorism,” a spokesperson for the U.S. Department of Justice told Global News in an email on Monday.

“There is not a domestic terrorism crime as such,” FBI director Christopher Wray previously said in a Senate hearing in September. “We in the FBI refer to domestic terrorism as a category, but it’s more of a way in which we allocate which agents, which squad is going to work on it.”

In other words, under U.S. law, domestic terrorism is defined as an action or conduct but does not exist as a standalone criminal charge.

A fixation with Islamist extremism

The most common terrorism-related charge seen in U.S. courts has to do with providing “material support” to foreign terrorist organizations, according to the Center on Law and Security. Material support can mean anything from financial, transportation or communications help to training, advice or personnel.

There’s nothing stopping U.S. law enforcement authorities from wielding generic “terrorism” charges against domestic actors, but such instances are rare, according to the online national security think tank Just Security.

Daniel Byman, senior fellow in the Center for Middle East Policy at the Brookings Institute, suggests that this is due to the United States’ heavy focus on Islamist extremism since 2001 coming at the cost of paying due attention to far-right violence.

“That was a mistake,” Byman wrote on Monday.

“As a result of the country’s skewed perception of terrorism, its legal framework offers little guidance for how to handle terrorist acts not committed by jihadis.”

By all accounts provided by authorities and investigators, both Bowers and Sayoc acted alone and not in collaboration with any terrorist group in the U.S. or abroad. This means that under existing U.S. law, there are no legal grounds to charge them with terrorism.

However, while neither man will face terrorism charges, that doesn’t mean they won’t get a stiff sentence — Bowers could face the death penalty, while Sayoc is expected to spend the rest of his life in prison.

Byman argues that although the hypothetical use of a domestic terrorism charge wouldn’t significantly alter the sentences handed down to Bowers and Sayoc, it would still have the impact of boosting the political will to tackle far-right extremists.

He points out that only a tiny proportion of the FBI’s counterterrorism budget is devoted to tackling right-wing actors and that the Trump administration last year stopped all funding to a Department of Homeland Security program that provided grants to communities to counter radicalism through outreach, as reported by Reuters.

Upon cancelling that funding, the Trump administration redirected resources towards law enforcement efforts focused on tackling Islamist extremism.

According to Byman, naming and prosecuting crimes such as the Pittsburgh synagogue shooting as domestic terrorism would mean more resources for counterterrorism programs, greater pressure on governments to act at the first signs of possible violence, and more willingness on the part of social media companies to take down hateful content.

“It is hard to imagine armed Islamic State supporters marching through town singing the praises of Islamic law while the government claims it has no power to act due to the First and Second Amendments. It is easier to do so if the slogans are anti-Semitic and racist,” Byman wrote. 

“By calling right-wing terrorism what it is, that will change.”

FBI agents in favour of domestic terrorism law

The FBI Agents Association also seems to be in favour of re-casting domestic terrorism as a federal crime, rather than just a throw-away phrase used to condemn acts of homegrown violence.

The group, which comprises current and former agents, has spent the last two years lobbying Congress to create a law specifically dedicated to making domestic terrorism a crime with specific penalties that is free of the current legal and political uncertainties in which it is mired.

Josh Zive, a legal advisor for the group, said the absence of such a law makes it more difficult for investigators to track and analyze these crimes.

On Saturday, a spokesperson for the association told CNN that it’s high time domestic terrorism was treated as a legitimate threat to the U.S. and made a federal crime.

“Winning the fight against domestic terrorism is not about parties or political views; it is about ending political violence,” the spokesperson said.

Government officials past and present have said that FBI agents’ hands are tied when it comes to investigating right-wing domestic extremists because such work doesn’t currently fall under the purview of the CIA and the National Counterterrorism Center unless a link to international terrorist groups is established.

An ongoing debate

Ambiguity over what constitutes domestic terrorism versus a hate crime existed long before the Pittsburgh synagogue massacre and the pipe bomb deliveries.

Dylann Roof, who gunned down nine people at a historic black church in South Carolina in June 2015, was convicted of hate crimes and sentenced to death, but was never charged with terrorism.

CNN national security analyst Peter Bergen opined that the reaction might have been different had the church attack been conducted by a Muslim yelling “Allahu Akhbar.”

Stephen Paddock, who killed 58 people at a Las Vegas outdoor concert in what was the worst mass shooting in modern U.S. history, was accused by President Trump of perpetrating “an act of pure evil.” Police used terms like “disturbed” and “lone wolf” to describe Paddock, who killed himself after the shooting.

The investigation into the mass shooting was officially closed in early August, with Paddock not liable to go down as a terrorist because authorities said they were unable to isolate his motives.

“It’s a debate that has been ongoing, tragedy after tragedy, with many minority groups feeling a sense of unease around how and who we label a terrorist,” Global Toronto anchor Farah Nasser wrote a few days after the Las Vegas massacre.

“It also begs the question, if the Vegas shooter was foreign-born, brown or black — would we be calling him a terrorist?”

Rhys Machold, an international relations expert and assistant professor of politics at York University in Toronto, told Global News that the current ambiguity surrounding the term “terrorism” is rooted in the fact that the word itself is political in nature.

“The naming of some attacks as ‘terrorism’ and others as other things like ‘mass shootings,’ etc. is almost universally determined by the background of the assailant,” Machold said.

Megan Boler, chair of the department of social justice education at the University of Toronto, said the selective use of the term “terrorism” has its roots in racist thinking.

“The fact that the term is being preserved only to describe ‘racially profiled’ violence reveals how deeply embedded racism and Islamophobia have become in our language and, disturbingly, even in our legal system,” Boler said.

— With files from Reuters and Global Toronto anchor Farah Nasser

Follow @Kalvapalle

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