In the wake of the insurrection on the nation’s Capitol, President-elect Joe Biden did not hesitate to refer to the far-right extremists who perpetrated the attack as domestic terrorists. "They weren't protesters. Don't dare call them protesters. They were a riotous mob, insurrectionists, domestic terrorists,” Biden said. “It's that basic. It's that simple.”
This is no light claim to make. Although US law defines domestic terrorism, it’s not a distinct crime that you can be charged with. That could change, as even before the attacks, Biden's transition team urged the passage of a law that would make it a federal crime to commit domestic terrorism. In 2019, Rep. Adam Schiff introduced a bill that would have made it a federal crime to commit violent acts in the US “with the intent to intimidate or coerce a civilian population, influence the policy of a government by intimidation or coercion, or affect the conduct of a government.”
However, lawyers and activists argue that a federal domestic terrorism law is unnecessary — and even dangerous.
Nicholas Grossman, an international relations professor at the University of Illinois, told BuzzFeed News a new federal domestic terrorism law would be a mistake.
“It's almost totally unnecessary,” Grossman said. “The United States federal government has a massive, terrifying law enforcement, intelligence, and national security capacity. And if anything, the arguments that it has too much are better than the arguments that it has too little.”
There’s an additional risk: A federal domestic terrorism law could jeopardize civil rights activists, such as Black Lives Matter protesters whom the FBI controversially termed “Black Identity Extremists.”
“Who do we really think these high-tech tools are going to be used against?” Myaisha Hayes, campaign strategies director at the activist group MediaJustice, told BuzzFeed News.
Last summer, as people peacefully marched to demand an end to police violence, police responded with violence. In addition to direct force, the FBI and Customs and Border Protection surveilled protests through planes flying overhead, and law enforcement used tools like Dataminr to monitor the protesters' social media posts.
For Hayes, the discrepancy in the immediate police response to Black Lives Matter activists and the Capitol insurrectionists highlights that the attempted coup wouldn't have been stopped if there had been new domestic terrorism legislation or broader surveillance.
“Technology is not going to be a solution to take to address the years of brutality and years of state-sanctioned violence that communities of color have experienced at the hands of the police through technology,” Hayes said.
Historically, the federal government has upped surveillance in response to national security concerns. After 9/11, it passed the Patriot Act, which led to a paradigm shift that permitted an unprecedented expansion of surveillance. India McKinney, director of federal affairs for the Electronic Frontier Foundation, told BuzzFeed News that how that law was subsequently used makes her concerned about the use of the word “terrorism.”
“We start from a position of extreme skepticism that the law enforcement community needs any additional powers to do the investigations that they can do about the people who planned the attack on the Capitol last week,” McKinney said.
Since then, federal authorities and local police departments have used an ever-growing array of surveillance tools. Police can use facial recognition to identify people in a crowd. They can use devices that intercept text messages and files. They can use a cell-site simulator to scrape identifying information from a phone. They can monitor social media. They can use GPS tracking devices to track cars or geolocation data to display the near-precise locations of phones.
The targets of police surveillance have little way of knowing they’re being watched, and few ways to combat it.
“The FBI's use of surveillance technology is not very well regulated,” Faiza Patel, director of the Liberty & National Security at the Brennan Center for Justice, told BuzzFeed News. “Oftentimes, it's only after you learn of the use for a long period of time that there's any rule set on what they're doing.”
Patel said that he doubted a domestic terrorism law would push the FBI to focus on right-wing extremism. “That seems, to me, not a particularly compelling argument — because that's just saying it's a failure of will, as opposed to a failure of the law,” Patel said. “And I believe that our lack of action for many, many years on the threat of far-right violence has been a lack of political will.”
And even without specific crime of domestic terrorism, federal authorities have no lack of crimes with which they can charge the Capitol Hill rioters. According to George Washington University, over 70 people have been charged with crimes relating to the insurrection, including illegal entry, illegal possession of firearms, civil disorder, assault, theft, and threats.
“A crime is a crime,” Grossman said. “If you get them, you get them.”