Against A Domestic Terrorism Law

We have enough cops, and they don’t need new laws. What happened on January 6 requires a political, not criminal response.

On Monday, Opposite Office, an “activistic architecture studio” based in Munich, released design materials for what it called “Capitol Castle,” a plan that would encircle the entire U.S. Capitol with 36-feet-thick brick walls. The concept was not serious—or, at least, it was “serious” but not intended to be built. It was, depending on how charitable you feel about “activistic architecture studios,” a design meant to spark a debate on democracy and division, or one meant to get written up by the architecture press and shared widely on social media.

But even if these German architects don’t sincerely propose physically walling off the Capitol after right-wing insurrectionaries stormed the building on January 6, it is far too easy to imagine a similar proposal being carefully considered, right now, by someone in Washington with the power to make it happen.

It seems inevitable that there will be additional physical security at and around the Capitol—the trend around federal government buildings and major financial centers has not exactly been “more public and open” since Oklahoma City in 1995 or the World Trade Center in 2001—raising the question of what additional security measures we can expect from our next president and a Congress still reeling from the attack.*

As with the physical space, if very recent history is any guide, the impulse of nearly everyone in official Washington will be to further enlarge the security state that failed them instead of examining how and why it came to fail them.

Joe Biden already supported passing a law making “domestic terrorism” a federal crime, and he reiterated that support soon after last Wednesday’s events. With right-wing violence a regular fact of American life, many liberals might be tempted to endorse the idea. But before anyone signs on to it, they should read this ProPublica report on America’s “weak” domestic terror laws. The story, sourced largely to current and former FBI officials, is sympathetic to the idea. But it also explains why “terrorism” is not currently defined as a federal crime: “The reasons date to 1975, when an inquiry by the Church Committee of the U.S. Senate documented that the FBI had abused its powers by engaging in a pattern of spying on American citizens in groups ranging from the Black Panthers to the Ku Klux Klan.

This lack of a federal law against “domestic terrorism” may explain why mass media and law enforcement agencies only define “terrorism” as something foreigners do, a fact they frequently mention after white Americans commit mass violence or other crimes designed to attract mass attention. But, just as activists would not demand that the police treat all political demonstrators with the same overwhelming force they used against Black Lives Matter protesters over the summer, the solution to this American hypocrisy cannot be to fight domestic terror with the same fervor and disregard for human rights with which we fight it internationally.

Here, from that ProPublica story, is how the FBI understands itself to be constrained by the lack of a federal “domestic terrorism” law:

Federal agents often cannot use laws that are applicable to international cases, in which charges of material support of terrorism can bring a sentence of 15 years in prison for the simple act of providing a phone card to a suspect linked to a foreign group. Civil liberties protections for Americans make it harder for investigators to persuade judges to authorize wiretaps and other forms of surveillance. Unlike al-Qaida, ISIS and other officially designated foreign terror organizations, U.S. groups such as the KKK are legal, and extremists cannot be prosecuted simply for belonging to or assisting them.

Taking a situation in which a “normal” police response—like the displays of overwhelming force, kettling, and mass arrests we repeatedly saw last year—would’ve been sufficient to stop a protest from escalating to a deadly riot, and using it to argue for things like making it even easier for the FBI to entrap people on bogus “terrorism” charges, makes little sense. It would be as absurd and counterproductive as using a terror attack that could have been prevented by extant intelligence and policing powers to justify enacting a law enforcement agency wish list of new surveillance powers previously rejected by Congress on obvious civil liberties grounds. Which is why it seems dangerously likely to happen.

The U.S. government already has the legal authority and actual power to stop what happened at the Capitol. It doesn’t need more manpower, more weapons, more checkpoints, more barriers and walls and surveillance equipment—there are enough troops and cops and weapons and equipment in Washington under the control of the federal government to repel a foreign invasion. The reason why a domestic uprising got so far is not because security forces lacked the resources to stop it.

As one Washington resident, bemoaning the inevitable expansion of Fortress D.C., put it: Our domestic security forces, including the police who are in charge of securing “public” spaces, “do the petty shit because it’s easy. And they don’t do the hard shit because either they couldn’t or didn’t want to.” That dynamic already accounts for a lot of American police behavior; considerations of what is or isn’t “against the law” hardly enter into it. It is easier to police a bicyclist than a mob, and easier to fight a self-avowedly nonviolent demonstration than an armed and insurrectionary mob. In that respect, and really only in that respect, the storming of the Capitol does resemble the burning of Minneapolis’s Third Police Precinct building. No new law—against, say, having political reasons for burning down police stations or sacking federal government buildings—could have prevented either.

“The NYPD never would have let the U.S. Capitol get taken by these losers,” a former press secretary to Mayor Bill de Blasio said on Wednesday as the chaos unfolded, an apparent endorsement of the unrest-suppressing expertise of a department that has become notorious—like police departments across the country—for meeting political demonstrations with overwhelming force. Of course, as the Proud Boys could already have attested, that expertise has really only been tested against the left. And the question of what the NYPD, or at least one element of it, would’ve done on Wednesday may not be purely hypothetical: On Monday, NYPD Commissioner Dermot Shea told local news station NY1 that the department was investigating an officer who may have participated in the riot.

The police (not to mention the rest of the state security apparatus in Washington) already have the ability to meet almost any demonstration with overwhelming force. They have developed and perfected methods of mass detention and arrest. The political question is whether and when and against whom we want them to be able to use these powers, and who commands them.

We don’t need to bring counterinsurgency home, not least because it’s already been here. Nearly 50 years ago, James Baldwin described domestic policing in precisely these terms: “The Panthers thus became the native Vietcong, the ghetto became the village in which the Vietcong were hidden, and in the ensuing search and destroy operations, everyone in the village became suspect.”

The state is extraordinarily good at using violence to suppress activists on the streets. It does not need more capability for violence. It has plenty. The problem (for democracy, at least) was less that the Capitol was breached than what the people breaching the Capitol intended to do—whether to “merely” interrupt the democratic process or potentially to do much worse. The answer to such a threat—especially in a country already as heavily policed as our own—is politics, not security.

What would a political response to January 6 look like? As my colleague Osita Nwanevu has written (and written), the only way forward for a democratic United States is for the liberal majoritarian coalition to treat the rotten contemporary GOP as a threat to the survival of liberal democracy and use whatever means possible to suffocate it.

To think of January 6 as a political event, and not a terrorist attack or National Security Issue, is to think almost instantly of ways it could have been prevented. Rigorous audits and reclassification of 501 nonprofits would do more to disrupt right-wing organizing than any new domestic terror law as interpreted and enforced by our current security state. The rally was funded by the same forces that fund the rest of the right. A wealth tax would do more to secure our democracy than any new terrorism law.

The answer, instead, will likely be more fences, and more funding for the very agencies and police departments currently investigating their own officers for insurrectionary sympathies. Just out of self-preservation, if nothing else, our elected officials ought to stop assigning every difficult political task to our hopelessly compromised security agencies.

* This article originally misstated the year in which the Oklahoma City bombing occurred.