Why domestic terror designation in El Paso shooting likely won't result in terrorism charges

Federal authorities said they're treating Saturday’s mass shooting in El Paso, Texas, as a domestic terrorism case and weighing hate crime charges, but the suspect is unlikely to be charged as a terrorist because there isn't an actual "domestic terrorism" law on the books, experts told ABC News.

"We’re gonna conduct a methodical and careful investigation with a view towards those charges. We are also treating this as a domestic terrorist case," John Bash, U.S. Attorney for the Western District of Texas said on Sunday. "It appears to be designed to intimidate a civilian population to say the least. We are treating it as a domestic terrorism case, and we're going to do what we do [to] the terrorists in this country, which is deliver swift and certain justice."

Bash said the shooting, which killed at least 22, qualifies as domestic terrorism, noting that the suspect appeared intent on targeting people of Hispanic descent.

The deadly shooting came just days after a gunman killed three people, including two children, and wounded 13 others before killing himself, at the Gilroy Garlic Festival in Northern California. Federal authorities opened a full domestic terror investigation in that attack after discovering the suspect's plans to target churches, religious groups, governments, political parties and other organizations as well.

But legal experts pointed to past mass shootings, like the one at the Tree of Life Synagogue in Pittsburgh that left 11 dead, as an example of cases that were labeled as domestic terrorism, but not prosecuted as terrorism.

In recent congressional testimony in June, senior FBI officials said the agency had about 850 open domestic terrorism investigations -- down from around 1,000 a year ago. However, the number of actual attacks carried out by domestic terrorists has risen, and 40% are motivated by race, according to the FBI.

"Of the 850 [current cases], approximately half are anti-government, anti-authority. Another 40% are racially-motivated violent extremist cases," Michael McGarrity, an FBI assistant director, told lawmakers at a hearing in June of 2019. "Within that, a majority, but it's a significant majority, are racially-motivated extremists who support the superiority of the white race."

Overall, including efforts abroad, McGarrity said 80% of the FBI's counterterrorism cases are international terrorism cases -- tied to ISIS, Al Qaeda, Hezbollah, and other groups -- and 20% are domestic terrorism cases. Similarly, 80% of the FBI's counterterrorism agents in the field are working on international terrorism, while 20% work on domestic terrorism.

Some experts said the agency should be doing more to investigate and disseminate information about the rising threat of "homegrown," racially-motivated terrorism.

"We have a domestic terrorism definition, but there are no prohibitions against the acts of domestic terrorism. It's defined under U.S. law, but there aren't any penalties subject to it," said Jason Blazakis, a professor of practice at the Middlebury Institute of International Studies at Monterey, where he's also the director of the Center on Terrorism, Extremism and Counterterrorism.

The U.S. government designates overseas groups like ISIS as "foreign terrorist organizations," and it is a federal crime to offer them any material support. But the First Amendment makes it hard to treat groups based in America the same way.

"Designating domestic groups as 'domestic terrorism organizations' and picking out particular groups that you say you disagree with their views ... is going to be highly problematic, in a way that’s not when you’re designating Al Qaeda or ISIS or an international organization," Brad Wiegmann, a senior Justice Department official, recently testified to Congress.

Steven Gomez, a former FBI special agent in charge, told ABC News' "Good Morning America" he would also like to see the El Paso shooter charged as a terrorist, but cited the First Amendment as well.

"There has been a rise in attacks that were inspired by white supremacy activity, but the white supremacists and their ideology have been in existence for decades and that has not changed," Gomez said. "The federal agencies have some limitations on what they can do because a lot of the rhetoric that is espoused by the white supremacist groups is protected by the First Amendment."

Blazakis said the situation is unlikely to change without the enactment of some form of domestic terrorism statute.

"As much rhetoric as the government can throw at this issue in trying to describe it as domestic terrorism, that rhetoric falls short in what they can actually do in practice," he told ABC News in an interview on Sunday. "I think it illustrates the fact that Congress and the executive branch haven't done enough to actually try to amend the laws to ensure that the FBI or Department of Justice can actually go after individuals, like the El Paso shooter, with terrorism charges."

Under federal law, Americans with white supremacist ties who are charged with stockpiling weapons and plotting mass attacks often end up facing lesser firearms offenses. By comparison, suspects plotting support for an international a group such as ISIS can be charged with providing criminal support for a foreign terror group. There is no corresponding charge for people who provide material support to groups that could be classified as domestic terror organizations.

Bringing terrorism charges can widen the scope of an investigation, and potentially implicate additional suspects, including those who may have provided financial or other support.

"There's no question that charges against individuals who carry out mass murder events will likely lead to a full term in prison or the death penalty. There are a lot of cases that could occur -- where the evidence may not be quite as stark as you have with El Paso -- where it could be helpful to have an additional terrorism charge," Blazakis said.

"It also takes a tool away from the Department of Justice and FBI to use informants in a productive manner that would be able to actually go after domestic-based white supremacist groups,” he added.

At least six of those killed in El Paso were Mexican nationals, and the country said it plans to sue the U.S. for failing to protect its citizens.

"We consider this act an act of terrorism against the Mexican-American community and the Mexicans living in the United States," Mexican Foreign Minister Marcelo Ebrard said in a statement Sunday. "We are in communication with the Attorney General of Mexico to give them all the information needed so that they can initiate, if they decide to, a complaint for terrorism on Mexican nationals in the United States."

The El Paso suspect was identified by authorities as 21-year-old Patrick Crusius, of Allen, Texas. Crusius, who is white, is being held on a charge of capital murder, court records show.

It's too early to know the final charges against the El Paso suspect, but lawmakers in Texas said it's encouraging to know the Department of Justice is classifying the case as domestic terrorism, even if it is just symbolic.

Rep. Veronica Escobar, a Democrat who represents Texas' 16th Congressional District, said that while investigators must complete an investigation, what authorities are describing as the suspect's "manifesto" suggested the shooting was racially motivated. She said the community was "heartened" by the Justice Department's decision to investigate the shooting as domestic terrorism.

"We are heartened that this has been recognized for what it is: a racially-motivated terrorist attack on our safe and tranquil community," Escobar said during a Sunday evening news conference. "The shooter came into our community because we are a Hispanic community and because we have immigrants here. He came here to harm us."

She noted that the Department of Justice and local law enforcement had identified the shooting as one "motivated by hate" and urged Americans to do more to call out divisive rhetoric.

"The government should instruct federal agencies and law enforcement to draft a national plan to deal with white supremacy and domestic terrorism for what it is, a national crisis," she added, urging all Americans to support legislation and funding that will deal with the gun violence epidemic as well as the "hate epidemic that is plaguing our country."

Justice Department attorney Brad Wiegmann signaled that he would be open to discussing a domestic terrorism statute with federal lawmakers in his Congressional testimony in June.

"We're always looking to improve our authorities. And so I think we're certainly open to having a discussion with the Congress if there's interest in the Congress pursuing a domestic terrorism statute. We're certainly open to having that discussion," Wiegmann said. "From my perspective, whether I'm working gangs, MS-13 or terrorism, any tool in the toolbox helps me when I'm looking at that threat everyday as to what my options are and how I can disrupt that threat before an attack."