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FBI's Challenges In Fighting Domestic Terrorism


We're going to explore the difference now between combating terrorism abroad when it's compared to terrorism from within. Three recent mass shootings are being investigated as domestic terrorism. The shootings took place in Gilroy, Calif., El Paso, Texas, and Dayton, Ohio. But federal law and the nature of white nationalist extremism limit what the FBI can do to prevent attacks like this. And to talk about this, we're joined by former FBI official Dave Gomez. Thanks so much for taking the time.

DAVE GOMEZ: Thank you, David.

GREENE: So we look back to after 9/11. I mean, the FBI put all this focus on Islamist terrorism. And the agency, it seemed, got pretty good at preventing attacks here in the United States by groups like al-Qaida. Why is it harder to go after U.S.-based groups or people?

GOMEZ: Well, I think there's a couple of reasons. First of all, a lot of what we see as pre-event behavior is what the FBI considers protected First Amendment speech. So one of the rules in opening cases in the FBI on domestic terrorism subjects in cases is that none of them can be predicated on protected First Amendment speech alone. So you have to have the protected speech, which is the threatening words or actions online or live, along with some kind of overt act that connects the two things to a potential criminal act. So it's really...

GREENE: There has to be an act beyond what you say? I mean, if someone says or writes that they're going to shoot up a Walmart because they hate such and such a group, that's not enough for the FBI to take action against the person?

GOMEZ: It's not enough for them to open a predicate case. So what they can do is they can open a very short-term assessment to look at that specific behavior. But that is not enough to be able to use resources, particularly intrusive resources like sources, wiretaps, those kinds of things, to get to the heart of the matter as to whether a crime is about to be committed.

GREENE: And that is very different. I mean, if someone abroad said they are a member of al-Qaida or ISIS, I mean, it'd be much easier for investigators to start surveillance and go after someone.

GOMEZ: Right. And it's because of a change in the law post-9/11 that made - that gave the State Department the ability to designate specific terrorist groups. And once that group was designated, they fell under the Patriot Act. And we could investigate - the FBI could investigate specifically individuals both in the United States and overseas that were involved in any kind of transactional or transnational terrorism events with more - a greater ability, I guess, to utilize the techniques available to us.

GREENE: So what can be done? I mean, are there changes that can be made in the law that might help prevent an attack like the one we saw in El Paso?

GOMEZ: Well, there are a lot of laws that apply right now to domestic terrorism, but most of them are state laws. They're not federal laws. There is no federal murder statute, for example, unless you are a federal official of some sort and you are murdered or there's an attempted murder on you. So the El Paso case, for example, is probably going to be prosecuted as a local homicide case of 20 counts of homicide, 22, however many victims we have, by the local DA. It's not a federal case. At this point, the FBI is kind of peripherally assisting that investigation. But they're not specifically involved in or going to be involved in the prosecution. Now...

GREENE: Could the law change? I mean, could Congress pass a law that says that an act like this, when you kill this many people, is a federal crime?

GOMEZ: Yeah, exactly. And that's one of the things that I advocated, was that perhaps it's time for Congress to enact a mass murder law that gives the FBI jurisdiction to investigate politically motivated violence, like a mass murderer using a weapon.

GREENE: Would anyone oppose that? I mean, would anyone fight that law?

GOMEZ: Well, I think, you know, you always have factions that oppose expansion of the law, particularly by the FBI. A lot of people still see the FBI as an organization that is not necessarily trusted, particularly considering the recent events.

GREENE: OK. You're saying there could be political reasons that people would oppose it, but this would be a solution that would be a first step, at least, in stopping attacks like this.

GOMEZ: Right.

GREENE: Dave Gomez was Assistant Special Agent in charge of the Seattle office of the FBI, helping us understand what it's like to go after domestic terrorism within the agency. Thanks so much.

GOMEZ: Thank you. Transcript provided by NPR, Copyright NPR.