We need a domestic terrorism law. Call these crimes what they are, for victims and America.

In 1983, a racist anti-Semite named Robert Jay Mathews founded “The Order,” a white supremacist neo-Nazi group vehemently opposed to the federal government, which Mathews believed was controlled by “Zionists.” The Order sought to establish a homeland in the Pacific Northwest from which Jews and people of color would be excluded. To fund its operations, the group counterfeited currency and committed violent bank and armored car robberies.

The Order also established a “hit list” of enemies that included Alan Berg, a Jewish radio host whose barbed commentary antagonized white supremacist groups. In 1984, Berg was assassinated in front of his Denver home by members of The Order, shot a dozen times with an automatic weapon. 

The killing of Alan Berg was an act of domestic terrorism, but his assassins were not charged with the federal crime of domestic terrorism. Why? Because there is no federal crime of domestic terrorism. Instead, the killers were convicted in federal court of racketeering and violating Berg’s civil rights. While their federal sentences generally mirrored what they would have received for first-degree murder convictions in the state system, none of them was convicted of domestic terrorism. This is a problem.

We used to disagree on terrorism law

Though several members of The Order are dead and some are imprisoned, its vile progeny lives on in this country. As the 2017 rally in Charlottesville, Virginia, and the Jan. 6 riot at the U.S. Capitol demonstrated (yet again), these loathsome groups are desperate, dangerous and emboldened in ways we never could have imagined.

We spent most of our professional lives in federal law enforcement. For years we disagreed on whether the United States needed a federal statute to ensure that domestic terrorists were prosecuted and punished the same way we prosecute and punish international terrorists in federal court. Essentially, we disagreed on whether it mattered if white supremacists who killed someone like Alan Berg were convicted of murder in state court or convicted of a comparable crime in federal court.

Chuck, a former federal prosecutor, believed that even if the federal government could not prosecute members of The Order as domestic terrorists or as murderers for the Berg homicide (because federal murder statutes are jurisdictionally narrower than state murder statutes), their severe punishment in the federal system for their heinous conduct fit their crimes. And if the federal government could not prosecute a domestic terrorist for murder, then a state government could do so. Murder, after all, is illegal in every state and so domestic terrorists did not get away with … well … murder.  

For instance, Dylann Roof, a neo-Nazi white supremacist who killed nine Black church members in Charleston, South Carolina, in 2015, pleaded guilty to nine state murder counts following his federal conviction for hate-crime related offenses. Because the federal government could not prosecute the murders as murders (or Roof as a domestic terrorist), the state ably handled that part of the case. Holding Roof fully accountable and ensuring that he spends the rest of his life in prison, whether because of a federal prosecution or a state prosecution, was a just outcome.

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Tom, a former FBI agent who worked domestic terrorism cases, saw it differently: Although these criminals would be held accountable for their crimes, the nature and place of the conviction mattered. He wants to ensure that our federal criminal laws reflect our shared values — and that we identify and punish domestic terrorism clearly and directly.  

Call it terrorism no matter who attacks 

We now fully agree. Words matter. Characterizations matter. Labels matter. Properly accounting for domestic terrorism so that there is a clear picture of the scope of the problem in this country matters. There is a gap in the federal criminal code and in the different ways we describe these despicable crimes, and this gap needs to be closed. Similarly, victims of domestic terrorists — Alan Berg in Denver, Heather Heyer in Charlottesville, Brian Sicknick in Washington, D.C., and so many others — are not technically considered victims of terrorism in a federal court proceeding, though that is exactly what they are. This is also a problem and needs to change.

What cemented our agreement is a moral equivalency argument. The acts of The Order and like-minded hate groups, or of Dylann Roof, are every bit as contemptible and dangerous as the acts of international terrorists. Terror is terror, regardless of the nationality, race, religion, motive or warped ideology of the terrorist. 

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Creating a federal crime of domestic terrorism, targeting conduct and not thought, does not require more resources or more authorities for the FBI. It does not require designating domestic groups as terrorist organizations. It does not violate the First Amendment.

What it does do is close a moral equivalency gap in the law. It would provide a federal venue to prosecute these cases and would put all terrorists, foreign and domestic, on the same footing. Congress should pass this legislation quickly, and in bipartisan fashion.

Chuck Rosenberg is a former U.S. attorney, senior FBI official and head of the Drug Enforcement Administration. Tom O’Connor is a former FBI special agent and past president of the FBI Agents Association.