The tragic and horrific attacks on the Capitol on January 6 that rattled the country and left five dead have prompted calls to pass federal domestic terrorism laws. Prosecutions of those involved in the capitol attacks are underway under a variety of charges ranging from possession of weapons, disorderly conduct and violent entry, categorized as domestic terrorism cases. The chair of the House Committee on Homeland Security urged the TSA and FBI to place the perpetrators on the federal no-fly list. President Joe Biden called the perpetrators “domestic terrorists” and has indicated that passing a law against domestic terrorism was a priority in his new administration.
But the experiences of the Muslim community in the United States provide a sobering window into why expanding the scope of terrorism laws may be disastrous for civil liberties and still fail to address the underlying social fabrics causing policing double standards in the U.S.
The bizarrely tepid law enforcement response to the Capitol breach has already prompted significant dismay given the high stakes (a presidential transition), the location (the Capitol), and President Trump’s speech to his followers to “fight like hell” and “show strength.” Many quickly pointed out how members of the Muslim community and of communities of color have long faced aggressive and disproportionate police responses in public demonstrations. That observation was made, too, by Biden himself.
To be clear, those double standards have nothing to do with whether a domestic terrorism law exists.
It’s not a lack of domestic terrorism laws that led to inaction, as attacks on the Capitol were flaunted beforehand on public forums.
It’s not the lack of domestic terrorism laws that led the Capitol police to be disastrously underprepared.
It’s not the lack of domestic terrorism laws that led law enforcement to move barricades or take selfies with violent agitators.
And it’s not the lack of domestic terrorism laws that led to the very small number of arrests made at the scene. Anyone who witnessed the demonstrations following the murder of George Floyd, particularly in New York City, knows well the reality of mass arrests during protests.
Muslims in the United States have repeatedly been surveilled, targeted and harassed on account of their religion. Scores have been subject to undercover sting operations and faced imprisonment for over 20 years on terrorism charges in cases where nearly every element of the crime is fabricated by investigators. Law enforcement and prosecutors historically have treated Muslim communities as suspect despite committing no crime. The impacts of these terrible measures are still fought today. Just last month, in a unanimous Supreme Court decision, Muslim plaintiffs won the right to sue the FBI for blackmailing them to either become government informants or be put on a no-fly list. That case alone demonstrates the overwhelming danger of allowing decisions like no-fly placement to be made unilaterally by law enforcement without judicial oversight or safeguards.
Prosecutions for acts or plots involving ideological violence have disproportionately targeted Muslims or those simply perceived to be Muslim. And the penalties are nothing alike for Muslims and non-Muslims for effectively the same conduct. These are like the disparities we have seen manifest surrounding the failed law enforcement response to the Capitol attacks.
While some terrorism charges in the federal code require an affiliation with a designated foreign terrorism organization, others, like using or threatening to use “weapons of mass destruction,” do not. Indeed, what is counterintuitive — in fact, few know this — is that a “weapon of mass destruction” (WMD) under the federal criminal code has an incredibly broader meaning than the one image WMD might evoke in common sense. It could conceivably apply to some of the explosives found at the Capitol. But prosecutors choose to classify some cases involving bombs as weapons of mass destruction, and others as possession of explosives, and the distinction often turns in practice on whether or not the alleged perpetrator is Muslim. Will the heightened charges be weighed for those responsible for the Capitol attacks in possession of pipe bombs and other explosives?
This isn’t a call to automatically charge more people as terrorists, and more aggressive prosecution is not necessarily the answer to these inequalities. But these examples illustrate a point. The inequalities we see may not necessarily be the result of lack of tools but of implicit biases in how the existing tools are applied.
Creating terrorism offenses on account of beliefs of ideology is a dangerous business in light of the First Amendment. Criminal offenses based on ideology have led to some of the most repressive measures in U.S. history. The Alien and Sedition Acts, the Espionage Act of 1917 and the Smith Act were all laws attempting to address perceived threats of domestic insurrection. Those measures were ultimately used to stifle dissent. Granting powers under federal criminal law on the basis of perceived beliefs is dangerous. It is almost always subject to abuse. Imagine if President Trump had access to a domestic terrorism law to abuse. How many Black Lives Matter and Muslim Ban protesters would he have tried to throw in jail? Moreover, prosecutors already have plenty of laws to consider as they investigate and prosecute the Capitol attackers.
Designating groups we may personally abhor in the moment as terrorist groups may seem appealing, but is hardly a long-term solution to perpetuating unfairness. And it hands a blank check to the same forces that have promoted inequalities to do so further. What happens if domestic terrorism legislation is passed and Black Lives Matter is classified as a domestic terrorist organization? Despite extreme public resistance to it, that notion does have proponents in law enforcement.
The attacks on the Capitol were an attack on democratic values. But putting constitutional rights in jeopardy will only perpetuate the harm to democracy that the perpetrators tried to inflict. Let’s not allow that to happen with measures that ultimately fail to address the root causes.
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