Controversies accumulate four days after the killings in El Paso and Dayton, which killed 31 people in the United States. Protesters in Dayton (Ohio) and El Paso (Texas) welcomed President Donald Trump, who came to pay tribute to the victims on Tuesday, August 7, accusing him of acting as a firefighter arsonist, he who multiplies anti-immigrant outflows. Both attacks also rekindled calls for tougher legislation on the possession and sale of firearms. But another controversy rages behind the scenes: the lack of legal means available to the authorities to fight the rise of extreme right-wing terrorism in the United States.
In the aftermath of the El Paso Wal-Mart attack, the decision of the Justice Ministry to regard the shooter's action as a "domestic terrorism case" was widely applauded. But this qualification is largely symbolic: there is indeed no crime of domestic terrorism in the American legislative arsenal.
Two-speed terrorism ?
The law confines itself to a definition in section 802 of the Patriot Act of 2001. It is a violent act perpetrated on the American territory to intimidate the population or to put pressure on the government to change policy, unrelated to an international terrorist group. But no sanction is attached to it. The perpetrator of the Charleston killings, which resulted in 15 African-American victims in 2015, was simply sentenced for murder, despite the fact that the Justice Ministry had described the facts as domestic terrorism.
This legislative gap may be surprising for a country that, after the attacks of September 11, 2001, adopted a wide range of measures - within the Patriot Act - that served to combat Islamist terrorism. Criticized, this two-speed regulation tends to stigmatize the Muslim community "and pushes Americans to equate terrorism with radical Islam," says Buzzfeed site Mary McCord, former advisor to the Ministry of Justice who has made the creation of 'a law on domestic terrorism is his workhorse. A difference in treatment all the more flagrant with time, the threat of domestic terrorism has become increasingly urgent: 850 investigations are currently underway at the FBI.
The wave of attacks by white supremacists in the United States in recent months has prompted Brian O'Hare, president of the FBI agents union, to publicly call on Tuesday, August 6, to "create a federal crime of domestic terrorism." to provide the agents with the best tools to combat this threat.
The impossible list of national terrorist groups
Because this legislative gap at the federal level has concrete consequences for the fight against these repeated killings. The FBI must be content to assist local authorities, whose means are often less important, unless it is established that the attack may be considered a hate crime, an offense that falls under the federal agency. But for that, it is still necessary that everyone agrees on this qualification, as highlighted by the CBS channel which has devoted an investigation to the difficulties of countering the threat of white supremacist terrorism.
Without a law regulating domestic terrorism, there is also no body responsible for drawing up a list of national terrorist organizations, like the one existing for international groups such as al-Qaeda, Boko Haram and others. the Islamic State organization. As a result, the authorities do not have the powers to, for example, establish close supervision for a person linked to a group of supremacists and suspected of preparing a violent act.
Since September 11, intelligence officials have tried unsuccessfully to draw the attention of the legislator to the rise of the internal threat. In 2009, the Department of Homeland Security (DHS) warned against the risk of violence by extreme right-wing groups after the election of Barack Obama. This warning had not only been ignored by Congress, but in the following months, the DHS unit responsible for monitoring these movements had been disbanded. Politicians, especially on the right, "do not want to talk about it in public for fear of weakening their rhetoric about terrorism that would be the prerogative of Islamists," said in the Washington Post Daryl Johnson in 2017, a former DHS analyst who wrote a report in 2008 on the terrorist threat of the extreme right.
Sacrosanct freedom of expression
The sacrosanct freedom of expression is also a thorn in the shoes of defenders of a law on domestic terrorism. "Supporting hateful, supremacist and anti-immigrant theses is protected by the first amendment to the US Constitution," the New York Times recalls. In other words, any list that targets extremist groups "might be perceived by the Supreme Court as an illegal limitation to freedom of expression," points out the US channel CNN.
But the right does not have the monopoly of criticism against the idea of legislation specific to domestic terrorism. Some influential associations for the defense of individual freedoms, such as the ACLU (American Union for Civil Liberties), oppose it for fear that the draconian provisions of the Patriot Act will be found in a law against domestic terrorism.
The price to be paid in terms of personal freedom would be too important, in their eyes, considering the contribution of a possible law that "could be redundant in many ways with what already exists," said New York Times David Cole, Legal Officer of the ACLU. After all, the perpetrators of mass killings are, when they survive, always condemned to the heaviest penalties possible. For the defenders of individual liberties, the main advantage would be to bring the political world to finally recognize formally that far-right terrorism has become today as serious a threat as that of radical Islam. What, at a time when the White House is occupied by a president who put on an equal footing neo-Nazis and anti-racist protesters, would still be quite a feat.