The Capitol Riot Was Bad Enough. New Domestic Terrorism Legislation Would Make It Even Worse

The police and national security state need far less power, not more. We should oppose any attempts, by both Democrats and Republicans, to use the Capitol riot to pass new domestic terrorism legislation expanding state surveillance powers.

Members of the National Guard gather outside the US Capitol on January 12, 2021 in Washington, DC. (Stefani Reynolds / Getty Images)

On January 6, the world watched a far-right mob force the US Congress to temporarily halt its proceedings and flee for cover. The group had gathered outside the Capitol, egged on by President Trump and nurtured by deranged conspiracy theories, believing they could install the loser of an election as the winner. And on live television, they were able to enter one of the most secure buildings in the world, ransack it, threaten lawmakers, and temporarily halt the counting of electoral votes. The insurrectionists brought zip ties, planted improvised explosive devices, and beat, on camera, a police officer. Five people ended up dead.

Since the September 11, 2001 terrorist attacks, the United States has erected a vast security apparatus in the name of “national security.” Yet this security apparatus completely failed to thwart a plot carried out in plain sight.

On top of that, just last summer, demonstrations against police violence and racism were repeatedly met with militarized police and wanton repression. In a country where you can’t even take expired suntan lotion past airport security, where Quakers organizing against the death penalty are surveilled in the name of “counterterrorism,” and where police that resemble an occupying army — because they are literally equipped with gear from an occupying army — greet peaceful protests, it’s rational to wonder just how all of this could have happened.

One thing is certain: the failure to prevent the Capitol attack is not because of a lack of police powers or anti-terrorism measures. Still, some people have wasted no time hijacking the moment to advocate new domestic terrorism legislation. A lawmaker in the solidly Democratic state of Maryland has proposed a state domestic terrorism statute, and others are sure to follow.

This is not the first time in recent memory that far-right violence has sparked calls for new domestic terrorism legislation. The general uptick in violence that has plagued the Trump years, including the horrific white supremacist shooting at a Walmart in El Paso, Texas, has produced a steady drumbeat of demands for a new domestic terrorism law. Joe Biden’s campaign website put him on record as backing a new domestic terrorism law, though it’s unclear where he currently stands.

Some of these calls for new laws will come from well-meaning people aghast at the rising tide of right-wing political violence; others will come from power-hungry officials who know to never let a good crisis go to waste. Regardless of the intent, a new domestic terrorism law is a disastrous proposal. There is no shortage of criminal statutes covering domestic terrorism in the United States. And any such law would clearly hit groups far beyond the far right — particularly those on the Left.

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.