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We Don’t Need New Terror Laws to Defeat the Far Right

Last week's riot was an attempt to undermine the nation’s democratic procedures. The response from some political elites is unwittingly trying to do the same through calls for unnecessary new terror laws.

Police officers in riot gear walk toward the US Capitol on January 6, 2021. (Tasos Katopodis / Getty Images)

You may remember Arkansas senator Tom Cotton’s op-ed. Surveying the chaos, carnage, and “mob rule” that had engulfed the country, Cotton asserted that “strong leaders maintain order not only to protect their people from criminal violence but also to preserve confidence in civilization,” and called for protesters and rioters to be put down with military force if need be.

“No quarter for insurrectionists,” he insisted, meaning the military and law enforcement were to kill, not capture, the protesters, an order that is unambiguously barred by both US and international law.

You may remember this. Or you may not. Because this wasn’t the infamous, unhinged op-ed Cotton published in the New York Times back in June 2020 in response to the George Floyd protests, which sparked widespread outrage and internal revolt within the paper that published it, leading to the resignation of an editor, and a retraction and apology, with Times management acknowledging that the piece was “incendiary,” “needlessly harsh, and falls short of the thoughtful approach that advances useful debate.”

No, this was a Wall Street Journal op-ed Cotton published just last week in response to the storming of the Capitol by Trump supporters. The new piece makes virtually the same arguments, and about virtually the same group of protesters. (Like the first op-ed, this one was heavily focused on the anti-police brutality movement of last year). What’s different is the accepting silence and lack of outrage that has greeted the more recent op-ed.

These very different responses to what are in essence identical op-eds calling for police and military violence against protesters aren’t a coincidence. They reflect an alarming and swiftly emerging consensus within the political and media elite in the wake of last week’s events, that the mass of Trump supporters who rushed the Capitol — not just the small number who came armed and appeared ready to carry out some sort of organized violence, but even those who merely walked around and took selfies — must be treated as terrorists and dealt with exactly as Cotton has fantasized about dealing with all civil unrest.

Long before the dust had cleared, CNN almost instantly approved the use of the label “domestic terrorism” for last week’s events, which its reporters wasted no time in deploying. Lawmakers and political figures, liberal and conservative, united to do the same, whether Lindsay Graham, Chuck Schumer, Hillary Clinton, Joe Biden, or the GOP communications director. Rep. Elissa Slotkin (D-MI), one of the group of CIA Democrats recruited by the party in 2018, told MSNBC it was now domestic terrorism — not Russia, as the party has been trying to terrify its constituents into believing for four years — that was the country’s biggest national security threat.

This framing was adopted almost immediately, meaning it was prompted by what commentators called the initial wave of “silly costumes, people taking selfies,” and not the “darker, more violent, more sinister” images that came to the fore later, depicting a smaller cabal of armed protesters apparently embarking on organized violence.

“Every person who forced their way into the Capitol should be arrested,” wrote Vox reporter German Lopez just hours after the incident. “Lock them all up.”

“There needs to be a vigorous effort to use the extensive available photography to identity as many mob members as possible, arrest them, try them, and punish them,” wrote liberal commentator Matthew Yglesias the day of. “If this goes down in the books as a fun day at the zoo for the people involved, we will see more of it.”

“The people who breached our capitol and vandalized it, urinating and defecating and smashing historic and precious artifacts that belong to the country, not to them personally, are criminals and terrorists,” wrote MSNBC anchor Joy Reid some days later. “Every one of them should be behind bars. No exceptions.”

Such comments weren’t referring to those protestors who have been suspected of planning to attack lawmakers or take them hostage. For these commentators, doing any kind of property damage in the Capitol, or even simply entering it, was what constituted serious lawbreaking, even terrorism, and needed be punished “with the full force of the law” (as Cotton put it) — a standard that would easily ensnare as terrorists everyone from labor rights campaigners and antiwar protesters, to anti-police brutality demonstrators, a small minority of whom have carried out property destruction and physical violence against police and even lawmakers.

Meanwhile, even as evidence increasingly indicated that police were involved in and supported last week’s events, the idea of vesting them with more power has emerged as the de facto response to them. Figures as disparate as conservative scholar Norman Ornstein and Politico contributing editor Bill Scher have come out in support of a domestic terrorism law, which Democratic Sen. Dick Durbin of Illinois is now swiftly introducing.

This is all happening even as terrorism experts, usually the most bullish in using tragedies to push for vesting military and law enforcement with more powers and resources, are warning of the dangers to civil liberties that such a law would pose. And it’s mere months after collective alarm that Trump was using the national security state for an authoritarian or even fascist power grab, and widespread warnings that this exact kind of law is a threat to freedom, democracy, and people of color. It would be absurd if it wasn’t so alarming.

Make no mistake. The purpose of all of this is not merely to go after the participants in last week’s incident at the Capitol, but to empower the government’s repressive bureaucracies to clamp down on all types of civil unrest and protest. Some of those calling for J20-style mass arrests and prosecution of those involved last week are, helpfully, honest about this.

When Atlantic writer Conor Friedersdorf predicted that the measures and powers activated against those involved in the riot will be “also used in the future against leftists,” Yglesias responded that it “seems like an okay outcome,” because “the prolonged looting and vandalism across many cities [last summer] was also very bad and reeling it in on all sides would be appropriate.”

Cotton himself has recognized this shift, and is positively giddy. As he put it last week:

Some liberals appear to have shed their reservations about the use of force now that the mob carries different signs and chants different slogans. Some of the same pundits who called roughly half the country “fascists” last year for thinking troops may be necessary to restore order now ask where the troops were on Wednesday.

Poised to capitalize on this emerging liberal-conservative alliance is President-elect Joe Biden, whose vaunted ability to work with Republicans has been almost exclusively limited to increasing the size and power of the national security state. Biden has played major roles in at least three Republican-led assaults on civil liberties over his career, all justified initially by national security and terrorism, and all ultimately directed at nonviolent Americans for unrelated activities.

Biden was a key architect of the federal “war on drugs,” which has in practice become a civil liberties–shredding war on the poor and people of color, and resulted in state murders like those of Breonna Taylor. He played a major role in the Antiterrorism and Effective Death Penalty Act, passed in the wake of the 1993 World Trade Center bombing, later called “one of the worst statutes ever passed” for gutting habeas corpus and sending innocent men to the execution chamber. And he has relentlessly claimed credit, with good reason, for the Patriot Act, the widely criticized surveillance bill passed in the wake of the September 11 attacks that has been used to go after antiwar activists, law-abiding Muslims, and many others (Biden, in fact, was disappointed the bill didn’t go further).

Long before last week, Biden had quietly pledged to pass a domestic terrorism law that would grant Trump the kind of powers that civil libertarians have long feared Trump might have available to use, and he was quick to label the Capitol protesters “domestic terrorists” and “insurrectionists.” Biden’s major goals as president are to restore a sense of “normalcy,” and to demonstrate that the typically gridlocked US political system can still work.

Ramming through a domestic terrorism law could quickly fulfill both goals, allowing Democrats and Republicans to come together on a high-profile issue, and giving the government more power to clamp down on future civil unrest — including, as liberals like Yglesias and reactionaries like Cotton fervently hope, when that unrest is driven by issues progressives care about.

Don’t let anyone tell you that opposing such measures and raising these concerns means you support far-right terrorism, as some will inevitably charge. Such lazy talking points are the hallmark of authoritarians who wish to silence debate and use crises and tragedies as excuses to increase repressive powers as quickly as possible.

There are clear, narrow measures that can and should be taken in response to this incident, including investigating and prosecuting those who planned violence, launching an independent investigation into the security failures of last week, and running a broader inquiry into, and subsequent house-cleaning of, far-right elements in law enforcement throughout the country. Whether you decide to call last week a protest, a riot, an insurrection, or terrorism, it makes little sense to vest even more repressive powers in precisely those people who are suspected of being complicit in it.

There is a clear thread running through the protests of 2020 to what happened last week, and that’s the far right, authoritarian, and conspiratorial thinking that is more and more infecting US law enforcement. Unfortunately, for the political and media elite, the problem is a fear of protest and unrest more generally. The fears of authoritarianism under Trump weren’t crazy. Giving the next Trump everything he needs to pull it off is.