The Capitol riot and why domestic terrorism isn’t against the law
Some of those who entered the Capitol on January 6 face serious penalties, like criminal conspiracy. Others have been charged with misdemeanors, such as trespassing.
Since the siege on the Capitol first took place on January 6, the debate over introducing domestic terrorism charges has resurfaced. Though many were quick to label those present on Capitol Hill on January 6 domestic terrorists, prosecutors must look to other laws to hold those present accountable.
Calls for domestic terrorism to be a federal statute
Immediately after the siege on the Capitol, many were quick to declare the event an act of domestic terrorism. Then President-elect Joe Biden – whose election win members of Congress were, at the time of the siege, busy ratifying – immediately came out against those who had stormed the Capitol building, calling them “thugs” and “domestic terrorists” in a public address.
On his campaign website, Biden had stated that he would “work for a domestic terrorism law that respects free speech and civil liberties, while making the same commitment to root out domestic terrorism as we have to stopping international terrorism.”
On March 3, the director of the Federal Bureau of Investigation (FBI), Christopher Wray, warned of the influx of domestic terrorist incidents that the bureau has recently had to contend with.
In his opening statement addressing the Senate Judiciary Committee, Wray said, “That siege was criminal behavior, plain and simple. It’s behavior that we, the FBI, view as domestic terrorism. It’s got no place in our democracy and tolerating it would make a mockery of our nation’s rule of law.”
Wray later said that the incident at the Capitol was “not an isolated event” and that in 2019 the FBI had “elevated racially and ethnically motivated violent extremism to our highest threat priority on the same level as ISIS (Islamic State) and home-grown violent extremists.”
Despite defining these actions as domestic terrorism, there is no law that states domestic terrorism is a crime. Instead, prosecutors have to look for other charges. Some of those who entered the Capitol on January 6 face serious penalties, like criminal conspiracy. Others have been charged with misdemeanors, such as trespassing.
Representative Michael McCaul, a Republican from Texas, is pushing for legislation that would give broader powers to members of the FBI to fight domestic terrorism.
In an interview with The Washington Post, McCaul said, “[the FBI is] having more domestic terrorism cases than international terrorism.” He added, “During my career at Homeland [Security], it was the threat from al-Qaeda, now we’re looking at what happened January 6th.”
McCaul’s bill would allow Americans who carry out attacks in the United States to be charged with prison sentences, fines and even the death penalty.
“It gives the prosecutor more tools. The more charges you can put on a defendant, the stronger your case is,” McCaul explained.
For many, including progressives like New York Representative Alexandria Ocasio-Cortez, broadening domestic terrorism charges sets a dangerous precedent. Ocasio-Cortez and others claim that the systems to prevent events like the storming of the Capitol building are already in place.
“Our problems on Wednesday [January 6] weren’t that there weren’t enough laws, resources, or intelligence. We had them, & they were not used,” Ocasio-Cortez tweeted.
135 leading civil rights organizations signed a letter urging Congress to use the “statutes already in place” for their investigation of the attacks on the government body.
“We are concerned that a new federal domestic terrorism statute or list would adversely impact civil rights and — as our nation’s long and disturbing history of targeting Black Activists, Muslims, Arabs, and movements for social and racial justice has shown — this new authority could be used to expand racial profiling or be wielded to surveil and investigate communities of color and political opponents in the name of national security,” they said.
On the first day of his presidency, Biden ordered a sweeping assessment of violent extremism in the US in order to create policies that would better deal with the threat.
However, any legislation that Biden or Congress might try to get through to combat domestic terrorism will almost certainly be an uphill battle.
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