As workers clear debris from the U.S Capitol, congressional Democrats debate their next steps, and so, too, must President-elect Joe Biden. Wednesday’s insurrection creates an immediate crisis for the leaders of Biden’s party, who are now deciding whether to impeach Donald Trump for a second time less than two weeks before he’s due to leave office.
Biden, meanwhile, will likely face pressure to draft strong measures targeting right-wing extremism. As a Wall Street Journal report noted on Thursday, the next president has said in the past that “he plans to make a priority of passing a law against domestic terrorism.” A campaign working group also previously urged Biden “to create a White House post overseeing the fight against ideologically inspired violent extremists and increasing funding to combat them.”
Some experts have argued for years that federal law lacks the teeth to prosecute domestic terror. With violent right-wing activity on the rise, that demand is hard to ignore. There’s obvious merit to the argument that the U.S. government is not equally concerned by all forms of extremism; the emphasis, still, is on Islam, an obsession fixed in place by prejudice. But the prospect of a new domestic-terror law raises serious free-speech concerns. A White House role dedicated to monitoring domestic terror invites similar worries — though, in the absence of any detail, it’s difficult to know exactly what the incoming Biden administration intends. The instinct to create one, however, is the wrong instinct. We already know that the U.S. government can and will use any such law to punish protesters, critics, and whistleblowers as harshly as possible.
There’s a temptation, generally, to treat riots principally as criminal matters. A mass outburst is proof we need better security: more police, tougher crowd control, stiffer penalties. The arm of the state is not long enough, and the fist it makes is too weak. It’s a tendency that protects police departments from oversight. Applied to matters of national security, it can justify prosecutorial overreach. At the extreme end, there is Chelsea Manning, who leaked proof that U.S. troops murdered civilians in Iraq and spent years in prison for her efforts. Or Reality Winner, who leaked an NSA report on Russian attempts to interfere with U.S. elections and is now in prison, where she recently suffered through COVID-19 behind bars. My friend Daniel Hale faces up to 50 years in federal prison, a shocking penalty for a crime of conscience: He leaked information about our murderous program of drone warfare to the press.
To the security state and its defenders in both parties, whistleblowers like Manning and Hale are simply traitors. Their cases may not even seem relevant to a domestic event like an insurrection in Washington, D.C. But they must be seen as facets of a much larger problem, and they argue against granting the U.S. government more power to punish political activity. Citing security, the government excuses all kinds of bloodshed and repression both overseas and on U.S. soil. There is a link between the state’s persecution of whistleblowers and its treatment of protesters at home. The same administration that sent Winner to prison wasted a year and half trying to jail “J20” protesters for rallying against Trump’s inauguration. 230 protesters initially faced felony rioting charges; at one point, 59 were facing charges that carried over 60 years in prison. One was a journalist.
Though Trump’s quest to imprison people for protesting his government ultimately failed, the J20 prosecutions exist within a much older history of repression. At various ignoble moments in its history, the U.S. government has spied on and harassed civil-rights activists, trade unionists, and communists. After 9/11, federal and local law enforcement added American Muslims to the list. The NYPD illegally spied on Muslims for years. Law-enforcement officers across the country infiltrated Black Lives Matter protests this summer — when cops weren’t beating protesters, driving into crowds, or arresting journalists and legal observers for the crime of being present at a rally.
The state does not lack teeth. The state has too many at its disposal already. The state lacks discretion, and all sense of proportion, and that is by design. In the past, Biden himself has seemed to recognize this, at least a little: He has said he would end the Targeted Violence and Terrorism Prevention Program, which the Brennan Center for Justice described as a “permutation” of the Obama administration’s similarly discriminatory program Countering Violent Extremism. Biden’s objections to that program ought to inform whatever approach he takes to right-wing violence. A government convinced it should be able to kill Yemeni civilians with impunity, that trains its whole might on a handful of protesters, cannot be trusted with new powers. What happened in Washington on Wednesday is already illegal. If the incoming Biden administration wants to address the apparent security lapse that let rioters overrun the Capitol, it can’t do that by passing new laws. That lapse is not a legal problem. It’s not even a security problem, except in the most literal sense of the term. It’s a political problem, much like the riot itself. The Capitol police reacted as it did because it did not consider right-wing violence to be a serious threat. The government cannot prosecute such racial bias out of the nation’s police departments.
Instead, Biden could make a serious problem much worse. What happened on Wednesday may be understood best as a rehearsal for violence to come. When Biden takes office, he will inherit a democracy in crisis. One half of our two-party system appears hostile to the very notion of free and fair elections, and it is backed by a seething mob. For all his scheming and all his tantrums, Trump was too incompetent to live out his strongman fantasies. The J20 prosecutions, for example, were too flawed to succeed. But he set something dangerous in motion. Whatever powers Biden creates today can be used by the enemies of democracy tomorrow. Our civil liberties are simply too fragile, and the risk is much too great.