“Terrorism” Is The Wrong Lens For The Capitol Attacks

Congressional leaders have devised a legislative response to the Capitol insurrection. What’s wrong with it?

The bill now before Congress, H. R. 350, aims to “authorize dedicated domestic terrorism offices within the Department of Homeland Security, the Department of Justice, and the Federal Bureau of Investigation to analyze and monitor domestic terrorist activity and require the Federal Government to take steps to prevent domestic terrorism.”

Let’s state up front that the insurrection involved violent crimes that ought to be prosecuted. One person defending the Capitol was killed, and no concept of protesters’ rights should include a right to kidnap, beat or intimidate elected officials into doing your will.

There Are Crimes Enough Already

However, the insurrection didn’t happen because of a lack of current legal authority to address political protests that turn violent. There are plenty of such authorities, up to and including an existing statute, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). AEDPA defines a “Federal crime of terrorism” that doesn’t require any nexus to foreign organizations or causes, and that covers 57 varieties of criminal activities, some violent (like bombing airports) and some not (like violating the Computer Fraud and Abuse Act). This statute is already being deployed in at least one Capitol insurrection case.

Terrorism Is Too Broad A Concept To Be Helpful

H. R. 350 doesn’t narrow the current set of crimes falling under the “Federal crime of terrorism” created in AEDPA; we think it should. As a civil liberties group, we’re suspicious of already-existing laws that give too much discretion to law enforcement to define non-violent activities as “terrorism.” We don’t think, for example, that non-violent direct action is “terrorism,” even if it results in non-violent crimes under federal or state law. The existing definition is capacious enough to include merely resisting arrest, trespassing on federal property, or being a member of a crowd where some other person commits violence.

Insofar as “terrorism” should exist at all as a concept in federal or state law, it should be narrowly defined, to extend only to the subset of acts of violence in which people are injured or killed, where the purpose of those acts is to influence government policy. The US government has made so much use of the overbroad concept of “material support for terrorism” to prosecute Muslims making charitable donations, translating documents, or allegedly making dumb boasts around a campfire, that using the term “terrorism” now obscures more than it illuminates. Using “terrorism” to describe an act stifles rational discussion about the accuracy and usefulness of the definition, and makes many people doubt whether the suspect deserves the rights endowed to all people under the Constitution.

Better Reporting on White Supremacist Violence Is A Good Thing

H. R. 350 would improve reporting to Congress by the FBI of its assessments, investigations, prosecutions and convictions relating to “domestic terrorism”, including specific reporting for the subset of those proceedings that relate to “White supremacism.” On the whole, this section is good. The FBI has a sorry track record of failing to adequately investigate white supremacist violence, and of ginning up investigations of Black people concerned about police brutality and civil rights under the general banner of “racially motivated violent extremism.” FBI agents should, as Mike German of the Brennan Center puts it, “evaluate threats based on objective evaluations of potential harm,” not based on whether a person’s politics differ from theirs, and should allocate their existing internal resources accordingly.

DHS I&A Cannot Be Trusted To Focus On White Supremacist Violence

More seriously, H. R. 350 gives a coordinating role on “domestic terrorism” to the Department of Homeland Security’s “Office of Intelligence and Analysis”, and directs DHS, FBI and DOJ to assign new units to work together around the issue. This is the very same office that, a mere few months ago, was compiling intelligence reports on journalists who reported on leaked documents relating to the protests in Portland. It has had poor leadership and, according to one of its former leaders, lacks a strong “organizational culture” that would prevent abuses. These weaknesses are not limited to the Trump administration; before Trump, I&A assisted other DHS units in conducting surveillance of the Standing Rock protests, among others. DHS’s internal oversight systems also seem broken. Therefore, we oppose any attempts to give DHS more power to coordinate more surveillance of Americans.

We Don’t Need To Use China As A Model

In August of 2020, the Congressional Research Service produced a review of Hong Kong’s infamous new “National Security Law”, which sternly denounced the People’s Republic of China for “mak[ing] vandalizing public property an act of terrorism” and “mak[ing] a broad range of political activities potentially vulnerable to a charge of terrorism.”

They were right; but they didn’t observe that the United States is already more or less there. We need to dial back our own security state, rein in the misguided “War on Terror,” and refocus our federal law enforcement’s counterterrorism activities on those who plan and commit acts of violence.

However, in honor of the fact that their National Security Law explicitly makes it an offense to “advocat(e) terrorism or incit(e) the commission of a terrorist activity,” we feel we should advocate that, through appropriate Congressional action, DHS must be destroyed.

We Have A Right To Breathe, Your Honor

“I can’t breathe.”

That was what Eric Garner said, and what George Floyd said, and what many more Americans have said when seized and restrained by police.

This is one of the many way police brutality harms our communities and causes them permanent loss. And Restore The Fourth was created to fight governmental intrusion on our bodies and our lives. The quickest way to do that is to end the incessant and reckless claim of “qualified immunity” at the federal level. If police cannot even respect our lives, they’re unlikely to respect our property and privacy.

Restore The Fourth has just filed a brief asking the Supreme Court to review the decision in Lombardo v. City of St. Louis. In this case, Mr. Nicholas Gilbert was arrested on “suspicion of trespassing and occupying a condemned building and for failing to appear in court for an outstanding traffic ticket.” After being booked into a cell, Mr. Gilbert began “waving his hands in the air, rattling the bars of his cell, throwing his shoe, bobbing up and down,” and apparently trying to kill himself. Officers entered his cell and tried to subdue him, shackling his limbs, and, according to one officer’s testimony, putting pressure on the “lower or middle part of his torso.” During this, Mr. Gilbert thrashed around, hurting his head; after “fifteen minutes of struggle in the prone position,” Mr. Gilbert died.

For needing shelter, and for the meaningless crime of “failure to appear,” he paid with his life. Now the question is whether US law will permit the officers in question to be held accountable. Restore The Fourth argues that the answer should be, Yes.

The Eighth Circuit found that the “Officers could have reasonably interpreted” Mr. Gilbert’s struggling in an “attempt to breathe and an attempt to tell the Officers that they were hurting him […] as ongoing resistance”, justifying their use of force, and enabling the Officers to use “qualified immunity” to avoid having them be liable.

The brief submitted by the Officers’ counsel argues that Mr. Gilbert was suicidal, violent, overweight and had heart disease and drugs in his system, and that officers used only “non-lethal physical force” in a “rapidly evolving emergency situation requiring [a] split-second reaction.” Therefore, they argue, there was no Fourth Amendment violation, that qualified immunity was reasonably awarded, and that those who argue otherwise and who note, most uncivilly, similarities to other Black men killed while restrained by police like Mr. Garner or Mr. Floyd, are engaging in “agitprop.”

Our brief argues that a proper originalist understanding of Fourth Amendment rests on an understanding of the common law familiar to the Founders; and that the common law, at least as expressed in Blackstone, necessitates that “Officers may not impose any hardships on pre-trial prisoners beyond those absolutely requisite for confinement only.” In Rex v. Huggins (1790), for example, a jailer was held liable for the death of a prisoner whom he had intentionally placed in an unhealthful space located over a sewer: “If a prisoner by duress of the gaoler [jailer] comes to an untimely end, it is murder. It is not necessary, to make it duress, that there should be actual strokes or wounds.” Rather, “[i]f a man die[s] in prison” and “the [coroner’s] inquisition” finds the jailer’s care brought “the person . . . nearer to death,” it is a “felony.” Apparently, even in 1790, courts were capable of recognizing that “[a] prisoner is not to be punished in gaol [jail], but to be kept safely.”

An analysis of the Fourth Amendment’s original public meaning points us here in the direction of a standard higher than the Eighth Circuit has admitted. We hope that the Supreme Court’s newest Justice will join the other originalist Justices, in recognizing that Mr. Gilbert’s Fourth Amendment rights were indeed violated, in a way so clearly established that the Founders would have had no difficulty recognizing it. That will bring all of us towards real justice.