In response to the mass shootings in El Paso, Texas, and Dayton, Ohio, President Donald Trump pledged to give federal law enforcement authorities “whatever they need” to investigate and prevent acts of domestic terror. Federal Bureau of Investigation Director Christopher Wray has ordered FBI field offices to conduct more affirmative outreach and proactive investigations to prevent large-scale gun violence. Many are calling for the enactment of a domestic terrorism statute, to empower federal law enforcement with the same tools currently available to investigate and prosecute individuals responsible for acts of international terror. However, the increased use of federal law enforcement resources to combat acts of domestic terror and the enactment of domestic terrorism statutes are not without controversy and raise constitutional concerns.

Following decades of combating threats of international terrorism after the attacks on 9/11, the United States appears more vulnerable than ever to incidents of mass violence more accurately described as domestic terrorism. However, while domestic terrorism is defined under the federal criminal code, there are no penalties for committing acts of domestic terror. Detecting and preventing such acts of domestic terror has therefore proven difficult for federal law enforcement. Though former Deputy Attorney General Rod Rosenstein recently indicated that “we need to catch them and incarcerate them before they act on their plans,” and “to be proactive by identifying and disrupting potential terrorists before they strike,” the tools available to federal law enforcement to investigate and prevent acts of domestic terror are simply not as broad as those available in international terrorism cases.

Classifying domestic groups as terrorist organizations and using wiretaps for intelligence-gathering, as is done to investigate international terrorism, could potentially allow the FBI to develop deeper intelligence networks about domestic terrorism groups and prevent acts of domestic terrorism. However, as Georgetown University law professor and former federal prosecutor Mary McCord noted in 2017, “That starts to get very close to the line of potentially infringing on free speech, freedom to associate and express one’s views, however abhorrent they may be to others in the population.”

In his testimony before the House Committee on Homeland Security in May 2019, FBI Counterterrorism Chief Michael McGarrity stated that the FBI was investigating some 850 cases of domestic terrorism and considered it to be a serious and persistent threat. Yet, McGarrity went on to state that, “In line with our mission to protect the American people and uphold the Constitution of the United States, no FBI investigation can be opened solely on the basis of First Amendment-protected activity. In order to predicate a domestic terrorism investigation of an individual, the FBI must have information that the individual is perpetuating violent, criminal actions in furtherance of an ideology.”

Without the benefit of domestic terrorism statutes, federal authorities rely on more traditional federal criminal statutes to prosecute individuals responsible for mass violence. In testimony before Congress in 2017, Wray said that, even when convicted under nonterrorism charges, domestic terrorists can face the same punishment—including death—as those convicted under international terrorism statutes. “There may be reasons why it’s simpler, easier, quicker, less resource-intensive and you can still get a long sentence with some of the other offenses,” Wray said. “And so, even though you may not see them, from your end, as a domestic terrorism charge, they are very much domestic terrorism cases that are just being brought under other criminal offenses.”

While there are penalties available under these more traditional criminal statutes to prosecute individuals responsible for mass violence, questions remain about whether federal law enforcement has sufficient power to detect and prevent such acts of violence from happening in the first place. No matter how the government decides to move forward, the urgency to take action will be key to prevent large-scale gun violence and to help with the healing process for all those affected.

Brian McEvoy is the Atlanta office managing partner and chair of the government investigations practice at Polsinelli. He is a former assistant U.S. attorney, serving five years in the Southern District of Georgia before entering private practice, where he focuses on white-collar criminal defense and health care fraud matters. Brian Rafferty recently joined the firm as a shareholder after serving as chief of the criminal division of the U.S. Attorney’s Office for the Southern District of Georgia.