America doesn't need new security laws to prosecute insurrection
President-elect Joe Biden is already suggesting new laws in response to the attempted right-wing putsch against the American government this week. The Wall Street Journal reports that "he plans to make a priority of passing a law against domestic terrorism ... [and has] been urged to create a White House post overseeing the fight against ideologically inspired violent extremists and increasing funding to combat them[.]"
It's obvious after this past week why he would suggest such a thing, but this is a wrongheaded approach. There are already plenty of tools at the government's disposal to crack down on far-right insurrection. Rather than new laws and more bureaucracy, Biden and incoming Attorney General Merrick Garland should enforce the laws that already exist, and reform the dysfunctional security apparatus so it will do what it is told. These are necessary preconditions to any fight against right-wing insurrection.
As Ian Millhiser writes at Vox, there are at least a dozen federal laws that were obviously broken by at least some of the putschists. Insurrection, sedition, conspiracy, riot, assault, murder (a Capitol Police officer died of wounds sustained during the attack), possessing or placing explosives on federal property, robbery, trespassing — these are all extremely illegal with major penalties. Given the fact that many of these yahoos were taking selfies and livestreaming themselves in front of dozens of reporters and photojournalists, any conscious federal prosecutor could put most of them away for 10,000 years if he or she felt like it.
Now, there is no law specifically against domestic terrorism, but "terrorism" is an extremely vague term that can and will be abused by prosecutors in future cases. It is already more than illegal enough to attempt to overthrow the government, we don't need to add more bans or punishment to the pile.
Because there is a much, much larger obstacle to Biden taking on the threat of right-wing insurrection: the political corruption of the security bureaucracy. We all saw on Wednesday how sympathetic police departments are to right-wing terrorists. Many rank-and-file Capitol Police did fight the insurrectionists, and one was killed by them, but others were posing for selfies or reportedly giving them directions to Senate Majority Leader Chuck Schumer's office. More importantly, the Capitol Police top brass and other law enforcement departments ignored warnings that this was being planned out in the open, leaving loyal officers hanging out to dry. The mob reportedly also contained many off-duty police and members of the military, who flashed their IDs as they stormed the Capitol.
Most police departments and security agencies are composed largely of conservative Republicans, and not a few open fascists. If you just charge the existing agencies with breaking up domestic insurgent networks, at best they will shirk, delay, and drag their feet, and at worst they will completely ignore the fascists while turning any new tools against Black Lives Matter and other left-wing protesters. Indeed, this is already happening — so far, the charges against the fascist mob have been trespassing or other minor crimes, rather than the felony riot charges the leftist J20 defendants faced for simply being near minor property destruction in downtown D.C. on the day of Trump's inauguration.
By the same token, neither do we need another security agency focused on domestic terrorism — on the contrary, we already have way too many security laws and institutions. The defense and intelligence establishment was already a tangled kudzu mess of overlapping agencies even before 9/11, after which the Department of Homeland Security — perhaps the worst-run agency in the government, and that is saying something — was layered over the top of everything like an old pancake flopped on a pile of rotting spaghetti. After 9/11, all these agencies spent years doing dragnet surveillance on ordinary Americans, torturing people for no reason, harassing Muslims, and otherwise violating people's civil rights. It was all abusive, much of it was illegal, and it did nothing to protect the country from any threat.
The key law enforcement task for Biden and Garland, therefore, is to reform the existing security apparatus and then aim it at the insurrectionist far right. Either Garland can create special enforcement units composed of politically reliable agents and prosecutors who will actually keep their eye on the real threat, or better still, purge the entire security apparatus of right-wing extremists. As wrote this week, the former option is what Attorney General Amos T. Akerman did to smash the first Ku Klux Klan in the early 1870s. And while creating a single new agency would be unnecessary by itself, it would be worth doing so as part of a top-to-bottom restructuring of the entire security apparatus. Fresh new agencies would allow for a clean org chart with clear lines of responsibility, and disrupt existing cultures of tolerance of extremism. We could even go hog-wild and require them to respect Americans' constitutional rights!
It's hard indeed to imagine Joe Biden getting behind a total restructuring of dozens of different agencies. But Garland was involved in the 1990s effort against violent right-wing militias, and spoke about the Akerman story in a speech accepting his nomination for Attorney General. Hopefully he can learn from both of those histories — for instance, the sacking of the Branch Davidian compound in 1993 was wildly excessive and counterproductive, but conversely, Akerman did not need to use brutal force to break the Klan. Minor prison terms or even the credible threat of prosecution largely did the trick.
Whatever the case, the situation is now in their hands.