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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.

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