Michael Tabman

Charleston Church Shooting. Is it Terrorism? Yes and No

In Crime and Security on June 22, 2015 at 9:06 am

That sounds as if I am sitting on the fence; unable to commit as to whether the Charleston Church Shooting was an act of terrorism.  But the answer is correct; it is both yes and no, depending upon the source of the definition and manner in which the definition is to be used.  Let’s first put this into some historical context.

Our constitution places restrictions on the power of the federal government, especially relative to criminal investigation.  As citizens, we cannot be compelled to self-incriminate and we are not to be arrested or subject to search without probable cause; these rights are well-known.

The powers provided to the federal government by the constitution are specific, and those that are not specifically ascribed to the federal government are deferred to the state.  We are all aware of our founding fathers’ desire to have a government with adequate power to rule a nation, but not enough power to emulate or evolve into a monarchy.

Consistent with these principles, crimes such as murder and robbery are prohibited by state law and investigated and prosecuted by state law enforcement.  There are exceptions, such as these crimes committed on federal property.  As crime evolved and became more complex and sophisticated, the government responded with new laws and powers.  For example, the RICO Laws were enacted to provide the federal government tools to attack the burgeoning power of organized crime. And of course, the PATRIOT Act followed 9/11 from our concern that federal agencies were ill prepared to fight this new phase of terrorism.

Another example of the federal government investigating and prosecuting crimes that are traditionally state criminal offenses, is the federal hate crimes statute: 18 U.S. Code § 249 – Hate crime acts.  This act empowers the federal government, via the FBI to investigate “Offenses involving actual or perceived race, color, religion, or national origin.”  In 2009, the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act was passed and expanded the scope of the Hate Crimes.  Federal hate crimes legislation are rooted in the Civil Rights Acts of 1964 which in part, “Prohibits willful injury, intimidation, or interference or attempt to do so, by force or threat of force of any person because of race, color, religion, or national origin…”   The Charleston Church Shooting is a tragic example of a hate crime – violence directed a person or persons solely due their race, color or ethnicity.

The commission of a hate crime which targets a class of people, whether due to ethnicity, sexual preference or other personal attributes, hurts not only the immediate victim, but strikes fear and terror in that community which transcends local, geographic borders.  It affects our country’s citizenry without regard to state borders, thus a federal statute authorizing federal investigation is appropriate and constitutional.

Hate crimes terrorize. The Charleston Church Shooting was clearly a hate crime; so was it terrorism?

Common use of the word terrorism implies widespread fear among the populace.  There are academic, military and law enforcement definitions of terrorism.  The United States Code defines terrorism, in part as an act intended, “…to intimidate or coerce a civilian population.”  This definition is also found on the FBI website.

That appears to answer the question.  Yet, FBI Director James Comey recently stated that the Charleston Church Shooting was not an act of terror, subjecting him to public criticism.  However, Director Comey is correct, because of the perspective of the FBI as the investigating body.

The federal crime that the FBI would investigate in this matter is the aforementioned hate crime which has the potential of a life sentence.  Why not investigate it as terrorism?

While a mass shooting is consistent with the definition of terrorism, there is no federal crime of domestic terrorism.  How can that be?

Irrespective of definitions, the accused must be charged with a specific federal criminal act, delineated by statute.  United States Code Title 18, Chapter 113B-Terrorism and Section §2332b list these crimes.  The Charleston Church Shooting was a horrific crime, but not included as a specific act of terrorism.

When the FBI arrests domestic terrorists such as neo Nazis, the charges are often hate crimes and weapons violations.  The state may charge the defendants with murder, assault or other violent crimes.  In 2014, in Overland Park, Kansas, Frazier Glenn Cross was charged by the state with murder for allegedly shooting three individuals at Jewish affiliated facilities. Cross has openly expressed anti-Semitic views.  Should the federal government charge him, he as Dylann Roof – the alleged Charleston Church shooter, will face federal hate crimes prosecution.

Timothy McVeigh, the Oklahoma City bomber was not convicted of domestic terrorism; he was convicted of Use of a weapon of mass destruction, Destruction by explosive and First degree murder (occurred on federal property). Of those, only Use of weapon of mass destruction is listed under the Title 18, Chapter 113B-Terrorism. Atlanta bomber Eric Rudolph and Boston Marathon Bomber Dzhokhar Tsarnaev were convicted of similar crimes.

The federal hate crimes statute carries the potential of the death penalty and is found in Chapter 13 – Civil Rights of United States Code Title 18.  The federal government, primarily through the FBI has successfully investigated domestic terrorist groups under the authority of these statutes.  However, if the public desires federal prosecution of these hate crimes as terrorism, there is an easy fix.  Congress should amend United States Code Title 18 to include these hate crimes in Chapter 113B-Terrorism.  Unless there are changes to the act itself, not much will be different – the FBI will investigate, the Justice Department will prosecute and the defendant will face potential life imprisonment.

If prosecuting these cases under the rubric of terrorism will provide meaning to the victims, the terror that is inflicted by these crimes justifies the change.

However, we need to be cautious about federalizing crimes.  Recently, communities have turned to the United States Department of Justice to investigate allegations of police officers using excessive force, having lost confidence in the police and local authorities to fairly investigate these matters. This growing trend of turning to the federal government to supplant state/local law enforcement should be done with caution.  Our founding fathers were careful not to create a federal police force – which the FBI is not.  Having served as both a police officer and FBI Agent, I see the wisdom of that principle.


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