Violently Storming the US Congress Is Already Illegal

After 9/11, the Bush administration famously pushed through its wish list of repressive measures, including the Patriot Act. What’s less frequently remembered is that the Patriot Act had a predecessor: the Antiterrorism and Effective Death Penalty Act.

Enacted in 1996, the bill’s passage was in part a response to the Oklahoma City bombing, a domestic terror attack carried out by a far-right extremist. The law severely curtailed death row inmates’ ability to appeal their sentences and removed a 1994 restriction on the FBI’s authority to investigate First Amendment–protected speech. It also created a list of “Foreign Terrorist Organizations” and criminalized providing them with “material support,” something lawmakers in both parties had previously rejected as a dangerous intrusion on free speech.

The Antiterrorism and Effective Death Penalty Act has not been a blow to violent right-wing groups. The material support provisions, later expanded by the Patriot Act, have been used to entrap Muslim Americans and facilitate an FBI raid of left-wing, Palestinian solidarity activists. The biggest victim of the law has not even been people accused of “terrorism,” but the mass of mostly poor and working-class people sitting on death rows across the United States. During the campaign to save Troy Davis from the death penalty almost a decade ago, federal courts initially cited the law in refusing to hear claims of his innocence.

It’s also abundantly clear that a new domestic terrorism law is not needed. Killing a police officer, violently storming the US Congress, and destroying federal property are all already illegal. Capitol Police have arrested nonviolent protesters for far less. There also are already laws on the book covering domestic terrorism. Federal law designates fifty-seven federal crimes of terrorism. A study by the Brennan Center for Justice found that fifty-one of them, or 89 percent, applied to domestic terrorism as well as international terrorism.

In the age of abolition, it’s an open question as to whether law enforcement and intelligence agencies have any role to play in combatting white supremacist and far-right violence. But for the time being, these agencies do exist and will be tasked with the current threat. And far from needing more power, the police and national security state need much less. Their broad purview to initiate investigations has allowed agencies like the FBI to dedicate counterterrorism resources to spying on nonviolent political speech, including Occupy Wall Street and Black Lives Matter protests. Currently, the FBI can open an investigation called an “assessment” without any factual predicate to suggest the subject is involved in criminal wrongdoing.

While the FBI has repeatedly devoted substantial resources to monitoring the First Amendment–protected political expression of antiwar, racial justice, environmental, and economic justice movements, it has time and time again dropped the ball on actual violence. Why, then, shouldn’t their surveillance powers be restricted?

Civil libertarians have long proposed restricting FBI probes to instances where there is reason to believe a crime is going to be committed. While these arguments have primarily been rooted in a desire to end FBI political policing, frivolous and abusive investigations do take time and money from probes into actual violence. If there are to be any legislative changes to current surveillance powers, this should be at the top of the list. Although of course, even if law enforcement and intelligence agencies were forced to focus on actual law-breaking, there is no guarantee they would suddenly devote resources to curbing far-right violence.

Political Repression Is Political

Last week’s violence was plotted in plain sight. It was entirely predictable. So why was the initial law enforcement response so muted?

Political repression is political. The continued targeting of left-wing speech and persecution of opponents of economic exploitation, racial oppression, and empire reflects the political objectives of repression. In many cases, especially when it comes to hounding opponents of US foreign policy, the repressive agents are not so much setting the agenda as carrying out the policies of the US government.

In other cases, though, the answer is far more disturbing. Law enforcement agents across the country clearly have sympathies with the far right. Among the would-be putschists who entered the Capitol were off-duty police officers and active-duty military, some of whom allegedly flashed their badges in hopes of gaining entry.

And then there is the conduct of the Capitol Police themselves. One video that has circulated shows a Capitol Police officer opening the gates to let in the insurrectionists. Another shows Capitol Police taking selfies with the intruders. We still don’t know whether the Captiol Police were mostly underprepared or openly collaborated with the putschists. So far, two Capitol Police have been suspended. But a new domestic terrorism law isn’t going to solve far-right violence if those tasked with carrying it out are themselves part of the problem.

Instead of pushing civil liberties–gutting legislation that will backfire on the Left, we should recognize that the disparate treatment of left-wing and right-wing protest is a political problem requiring a political solution. And that means restraining the power of the security state, which has shown extraordinary animosity to leftist speech — and frequent indifference to far-right violence.