Our position isn’t that the mob that invaded the Capitol doesn’t fit the various definitions of terrorism. Nor is our position that such incidents are not terrifying — they are. Rather, we argue that our response shouldn’t be so fixated on getting the state to treat these actions as terrorism. Doing so will only backfire: Expanding whom we call terrorists supposes that more law enforcement means more justice or fairness. That is ahistoric. National crises and acts of terrible violence, no matter who perpetrated them, have always been used to justify the expansion of government authority — whether through legislation, budget inflation or the loosening of hard-won civil liberties protections.
The powers accumulated by the state in the service of broad-based wars on “terrorism” inevitably get turned on communities of color, even if they ostensibly aimed at White violence at first. In the end, those we serve — Muslim and immigrant communities, as well as social justice movements — will bear the brunt of the results.
Take, for example, the Oklahoma City bombing. The Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 was pushed through on the attack’s first anniversary. At the signing ceremony, President Bill Clinton boasted that the AEDPA “strikes a mighty blow” against terrorism.
The mighty blow came — not against the nebulous concept of “terrorism,” but against marginalized communities. It reduced criminal defendants’ access to courts; it made noncitizens who had lived legally in the United States for years suddenly subject to automatic deportation for minor offenses. The material support laws born in the AEDPA ballooned to encompass protected First Amendment conduct, landing hundreds of Muslims in jail. In 2010, the Supreme Court contorted itself to find that if a humanitarian organization gave legal advice to certain groups on peace negotiations, they would be committing criminally sanctionable material support to terrorists.
A similar dynamic is already afoot in response to the Capitol Hill invasion: Republican governors are on the move to use Wednesday’s violence as cover to crush protest movements and social justice advocacy, raising alarms with civil society organizations that have warned about just that.
The impetus behind the urge to apply a terrorism framing to the Jan. 6 mob is an understandable desire for accountability. But if the goal is to trigger accountability, there are many — probably too many — tools in the government’s toolbox to investigate and prosecute the litany of crimes committed during Wednesday’s attempted insurrection. As it is, the bloated terrorism chapter of the U.S. criminal code includes a large number of federal crimes. And, as our clients’ experiences show, FBI agents have no shortage of aggressive investigative and other tools already at their disposal, tools that they deploy with troublingly little oversight or transparency.
Advocates have rightly pointed to the hypocrisy on exhibit this past week, comparing the treatment and prosecution of Black Lives Matter protesters with the Capitol Police and National Guard’s hands-off approach toward Wednesday’s predominantly White mob. They have noted that Black protest is automatically treated as terrorism, citing the Justice Department’s aggressive posture from the summer. On the surface, it is tempting to seek to remedy that double standard by calling for forceful enforcement of criminal laws toward violence perpetrated by white supremacists. Some have replied that the answer to such abuses is to seek to equalize their application — to demand “equal opportunity” enforcement against white-supremacist protest and Brown, Black and leftist protest.
Such an approach doesn’t align with how we have come to address other discriminatory policies. Criticism of mass incarceration or the death penalty’s disproportionate effect on Black communities doesn’t lead to a call to increase the incarceration or death sentence rates of White people. Instead, it inspires us to question the fundamental value, effectiveness and morality of such practices.
Terrorism is not a neutral concept. It has always been given meaning and operationalized through a political process. That process is driven by an ideology that is often influenced by racism and white supremacy.
For example, the FBI (and the New York Police Department) have developed and propagated flimsy, sociologically debunked theories of “radicalization” to describe how regular Muslim behavior might at some point, suddenly, turn violent. More recently, we learned that the FBI labeled movements to protest police killings “Black identity extremists” and later “racially motivated violent extremism.” Once these frameworks are in place, law enforcement agencies are authorized to deploy a seemingly endless arsenal of investigative techniques and need to justify very little.
Our clients have borne the brunt of politically deployed abuses of the terrorism framing. Under the auspices of policing terrorism, federal and local police departments have engaged in extensive domestic surveillance programs, targeting Muslim communities and Black activists. They have sent informants and undercover agents into mosques.
Buoyed by a coterie of terrorism consultants who put meat on the bones of essentialist “radicalization” and “extremism” theories, they have engaged in campaigns of questioning community members and aggressively recruiting informants, sometimes threatening them with deportation or other punishment if they refused to cooperate. They have aggressively prosecuted women and men on barely constitutional theories of material support for terrorism — experts testifying at trial on the uniquely dangerous qualities of the communities from which they come. Our clients have been questioned for hours at the border by secret teams of U.S. Customs and Border Protection officers who rely on ‘‘instincts” nurtured by PowerPoint presentations bereft of any serious context.
Undergirding calls to label the Capitol mob “terrorism” is the misguided assumption that simply meeting the legal definition of terrorism — or simply winning the argument that White violence is also terrorism — will necessarily lead to consequences. Proponents note that white-supremacist groups meet the various legal definitions of terrorism. This view discounts the vast role that discretion, politics and power play in moving from statutes and definition to operationalization.
Using the right words doesn’t flip some magical switch that forces agencies to go after those plotting harm. Instead, the decision to do so or not is an active, ongoing choice, one that is largely determined by a combination of ideology and power.
So, should we abolish our appeal to a terrorism paradigm altogether? We think it’s time.
“Terrorism” as a legal construct is inseparable from its discriminatory legacy. It has been mobilized to fuel racist policies against Muslims, Black political organizing and other marginalized groups for decades. It has no inherent fidelity to its dictionary definition — its fidelity is to the state’s power to suppress marginalized communities.
Invoking “terrorism” only stokes fear and clouds our ability to talk about root causes. It is a conversation stopper, not a conversation starter. Wednesday made clear that we need to reckon with how we got here. Relying on the loaded and overfamiliar language of “terrorism,” and the experts and law enforcement agencies that give the term its meaning, will only make that harder.