The violent insurrection at the U.S. Capitol left the public reeling. And though we have a lot more to learn about the attack—the authorities from Capitol Police to the Justice Department continue to offer the public shockingly little information—it is clear that this was a threat the government had the ability to prevent but failed to.
President Biden and members of Congress have already expressed interest in potentially expanding counterterrorism laws in response to the attack. But the fundamental issue is not that officials’ hands were tied by the law, but rather that they took their finger off the pulse of the looming danger. Despite warning signs flashing red well before January 6—including out in the open—our government was shockingly unprepared.
Reports indicate the top tier of the FBI only learned of the attack already underway through a game of phone tag with staff in the building and a mutual friend acting as an intermediary. Most rioters were able to simply walk out of the Capitol, handing them the opportunity to discard or destroy evidence of unlawful activity, or potentially cause greater harm as days went by before they were tracked down and charged.
So we must be wary of impulses to respond to the assault on democracy by ramping up counterterrorism and surveillance powers. Our democracy came under threat last week by a mob of insurrectionists looking to stop the presidential election vote count. That justifiably brings anger, fear, and a desire for action. But such action must properly identify and remedy the true flaws in our system.
The most glaring flaw to address is government misdirection of an abundant set of existing law enforcement powers. Amping up these powers does little to make our government more effective; instead it facilitates unchecked discretion. This devolves into selective targeting by the federal government, which wields these powers primarily against marginalized groups and neglects genuine threats. Federal and state law enforcement agencies have spent years closely surveilling Black activists and journalists. Last summer, Black Lives Matter protesters were targeted with mass arrests and excessive prosecution. Meanwhile, these same agencies apparently ignored the right-wing groups that mobilized and publicly discussed their plans ahead of Jan. 6.
Since the attack, some officials have dubiously claimed that an obstacle to combatting right-wing insurrectionists is that laws against domestic terrorism are weaker than the laws against international terrorism. It is true that we subject terrorists associated with groups like al-Qaida to different law than terrorists associated with white supremacist groups—but that’s because international terrorism laws are already far too broad, not because domestic terrorism laws are insufficient.
We’ve seen time and again how ramped up security powers do little to improve the government’s capabilities to combat threats, and instead focus increasingly unchecked powers against disfavored groups. These powers include incredibly broad investigative and surveillance authorities, a secretive and unreliable system of terror “watchlists,” numerous provisions already on the books for prosecuting terrorism, sentencing enhancements, and nearly a trillion dollars spent on homeland security since 9/11, to name just a few. And in the wake of the Oklahoma City bombing, a terrorist attack by a white supremacist, Congress responded by enacting one of the most draconian laws on the books. The Antiterrorism and Effective Death Penalty Act of 1996 eviscerated access to courts for the wrongfully convicted, expanded the federal death penalty, and increased deportation and detention of immigrants, while doing very little to address the threat of domestic terrorism.
Grafting the problems of international terrorism laws onto domestic authorities would only make the most heavily policed, marginalized communities more vulnerable. Law against providing “material support” to international terrorist entities make up a huge portion of counterterrorism investigations, but can often be cudgel against individuals based on tenuous connections and associations. Extending this practice into the realm of domestic terrorism could open the door to broad scale intimidation and prosecution of peaceful antigovernment protesters. Meanwhile portions of the PATRIOT Act permit for mass surveillance for international terrorism investigations; these authorities need to be reined in, not extended in their use to domestic terrorism investigations. Such action would be manna from heaven for someone like former Attorney General Bill Barr, who last year craved the power to treat Black Lives Matter protesters as a national security threat and wanted to recast “antifa” not as a general ideology but rather as an organized terrorist network.
There is no lack of authority to disrupt or punish attacks like the one the Capitol suffered last week.
There is no lack of authority to disrupt or punish attacks like the one the Capitol suffered last week. As civil and human rights attorneys recently noted in a letter to Congress, the Department of Justice already has more than fifty federal statutes at its disposal to arrest and charge people who participated in the riot. The government is now considering prosecuting some individuals for sedition.
Instead of handing law enforcement yet more tools, Congress should be asking hard questions about the Justice Department’s bizarre focus on “black identity extremists” and “antifa,” even as the director of the FBI testified in September that white supremacists were a top tier “domestic terrorism threat.” Experts both in and outside of government have warned again and again and again that law enforcement is failing to take seriously the threat white supremacists pose, sometimes even within their own ranks.
In the weeks ahead we will likely hear more about how surveillance powers like cellphone tracking, face recognition, and web traffic monitoring were used to track down insurrectionists. Setting aside the fact that these tools are only being deployed because the attackers were allowed to walk free out of the Capitol, law enforcement is sure to misuse unchecked access to these powers just as international terrorism operations have. Reforms to build safeguards such as warrant requirements for these tools would prevent abuse and still allow the kind of investigative activities used to track down the insurrectionists. Requiring evidence of wrongdoing and court approval are simply checks against abuse and the type of indiscriminate focus that have become so toxic in U.S. enforcement agencies.
We do not need to hand the government more power. We need to demand that the government use the ample powers it already has to prioritize risks based on how strong a threat they present, not what level of risk the government assumes when it sees someone wearing a hijab or a MAGA hat.
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