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We Don’t Need More Terrorism Laws After the Capitol Riot. Just Look At Our 9/11 Mistakes

While we must match the resolve with which we tackled Al Qaeda and ISIS in confronting the threat of far-right violence, we must avoid the counterterrorism playbook that led to so many grave mistakes and ineffective strategies.

February 16, 2021
a protestor holds a sign that reads "Muslims demand equal rights!"
Robert Nickelsberg/Getty

This origin­ally appeared in News­week.

As Congress begins to deal with the role that former Pres­id­ent Trump played in the attack on the Capitol, the Biden admin­is­tra­tion is grap­pling with the menace of far-right viol­ence. A high-level national secur­ity team has been tasked with conduct­ing an analysis of the threat and devel­op­ing a response.

In doing so, they will be temp­ted to turn to the coun­terter­ror­ism template developed in response to the attacks of 9/11. And yet, while we must match the resolve with which we tackled Al Qaeda and ISIS in confront­ing the threat of far-right viol­ence, we must avoid the coun­terter­ror­ism tactics that led to so many grave mistakes and inef­fect­ive strategies.

That template led to Muslims, minor­it­ies, and move­ments for justice bear­ing the brunt of the domestic “war on terror.” Muslim Amer­ic­ans have been as a result treated as a suspect popu­la­tion, over-surveilled and over-policed. The FBI has used its broad author­it­ies to open an invest­ig­a­tion with no suspi­cion of crim­inal activ­ity, create detailed maps of Muslim communit­ies, and ques­tion people about their polit­ical and reli­gious beliefs. It has deployed inform­ants to infilt­rate mosques, student groups, and community organ­iz­a­tions, and carry out sting oper­a­tions that often ensnared misfits who would never carry out an attack with the govern­ment’s help. Vastly expan­ded surveil­lance programs fed into this effort, and are also routinely deployed to suppress immig­ra­tion activ­ists, envir­on­mental campaigns, and the Black Lives Matter move­ment.

Perhaps the best lesson we can learn from the response to 9/11 is that over­reach can be just as danger­ous as under­reach. It’s a lesson our lawmakers must heed, espe­cially as some are poised to make it again.

An idea gain­ing ground as a response to the Capitol Riot is a new domestic terror­ism law. This would be both unne­ces­sary and poten­tially harm­ful. Prosec­utors already use an expans­ive arsenal of laws against viol­ent far-right actors. These include 51 terror­ism-related charges Congress has made avail­able for entirely domestic offenses, as well as hate crime laws and scores of regu­lar crim­inal stat­utes and wide-ranging conspir­acy offenses, all of which carry heavy penal­ties.

In addi­tion to these laws, Justice Depart­ment offi­cials have signaled upcom­ing indict­ments for the gravest crimes for those who attacked the Capitol: conspir­ing to over­throw or destroy by force the legit­im­ate govern­ment of the United States.

There is simply no need to intro­duce a new law—espe­cially one that would be a grave threat to minor­ity communit­ies and social move­ments. A prohib­i­tion modeled on the law most frequently used to prosec­ute inter­na­tional terror­ists would empower the govern­ment to desig­nate domestic groups as terror­ists, crim­in­al­iz­ing any form of support for them. Even leav­ing aside First Amend­ment chal­lenges, the selec­tion of groups is inher­ently polit­ical, invit­ing abuse.

To wit, Pres­id­ent Trump and Attor­ney General Barr repeatedly tried to brand crim­inal justice protests as the handi­work of Antifa domestic terror­ists. If they had the author­ity to crim­in­al­ize all support of Antifa, anyone who suppor­ted the anti-fascist move­ment, poten­tially includ­ing all those involved in protests along­side them, could be crim­in­ally prosec­uted.

Another model, cham­pioned by the Chair of the House Intel­li­gence Commit­tee Adam Schiff, would empower the attor­ney general to lay terror­ism charges against anyone who commit­ted an assault, damaged prop­erty, or threatened such an act if the Attor­ney General determ­ined it was inten­ded to intim­id­ate a civil­ian popu­la­tion or influ­ence govern­ment policy. If Schiff’s bill had been enacted last summer, Barr could have brought federal terror­ism charges against anyone who broke a window during the George Floyd protests.

Instead of push­ing for ill-considered new laws, law enforce­ment must make combatting far-right viol­ence their number one mission, just as they did with Al Qaeda and then ISIS. The new admin­is­tra­tion must follow through on its prom­ise to develop a strategy for execut­ing this mission, which should detail the steps the Justice Depart­ment and the FBI will take to fully invest­ig­ate and prosec­ute those who carry out viol­ent attacks and those who help them, and the resources they will dedic­ate to this effort. It must imme­di­ately rectify the fail­ure of the Trump admin­is­tra­tion to comply with the National Defense Author­iz­a­tion Act for FY 2020 which required that much of this inform­a­tion be repor­ted to Congress.

But the new admin­is­tra­tion should be care­ful not cast too wide a net. Not every person who was at Capitol Hill on 1/6 waving a Trump 2020 flag is a viol­ent white suprem­acist. And not every person who holds vile racist views poses a threat of viol­ence.

Programs target­ing Muslim Amer­ic­ans too often blurred the distinc­tion between belief and beha­vior. Govern­ment-sponsored coun­ter­ing viol­ent extrem­ism initi­at­ives have treated Muslims’ polit­ical views—such as concern about human rights abuses or U.S. foreign poli­cy—as the hall­mark of a person who might become a terror­ist. Even the exper­i­ence of discrim­in­a­tion is twis­ted into a propensity for carry­ing out viol­ent acts, as these programs expan­ded to cover refugees, asylum seekers, and black activ­ists. These initi­at­ives have failed to identify any terror­ists, but have created an enorm­ous back­lash among the communit­ies targeted. Replic­at­ing these failed efforts to identify poten­tially viol­ent far-right actors will only discredit legit­im­ate law enforce­ment meas­ures.

In eval­u­at­ing the 9/11 paradigm for the present day, we cannot ignore the impact of our national lead­ers in egging on viol­ence. While “terror­ism” has become short­hand for what has long been under­stood as “polit­ical viol­ence,” the latter offers a better frame for respond­ing to today’s threat. It focuses our atten­tion on the two issues that we need to solve: viol­ence, which merits a robust law enforce­ment response; and the polit­ical dimen­sion, which requires our elec­ted lead­ers to find a path forward for a deeply divided coun­try.

Tarring Trump support­ers as terror­ists will not help us achieve either.