The acting U.S. attorney general for D.C. has suggested that his office is exploring sedition charges. But if prosecutors are truly serious about punishing those who attacked the Capitol to the fullest extent of the law, they will treat the attack as an act of terrorism.
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Although “domestic terrorism” is not a standalone federal crime, the United States Federal Sentencing Guidelines allow prosecutors to apply a “terrorism enhancement” to nearly every federal crime. Prosecutors have used this enhancement and the extraordinarily severe penalties it carries against any number of ethnic, religious, and political minorities over the past 25 years. Failing to apply it to those who stormed the Capitol in an effort to violently disrupt the peaceful transition of power simply because most are white and regard themselves as “patriots” would be deeply unjust.
Chuck Schumer called the attack on the Capitol “domestic terrorism” as soon as he retook the floor of the Senate, and Joe Biden echoed the point the following day when he announced his nomination of Merrick Garland as attorney general. Thus far, however, many in the outgoing Trump administration have been notably reluctant to use those words, a reticence that has troubling echoes of the past four years.
When a white supremacist mounted an Islamic State–style car attack on civil-rights protesters in Charlottesville, Virginia, for example, many politicians denounced what happened as “domestic terrorism.” President Donald Trump’s response was at best cagey. “Well, I think the driver of the car is a disgrace to himself, his family and his country. And that is—you can call it terrorism. You can call it murder. You can call it whatever you want.” This equanimity contrasted with his lack of hesitation two days later in calling a similar car attack in Barcelona, this time by a Muslim, a “terror attack.”
It would be tempting to chalk up Trump’s allergy to using the word terrorism to describe violent nationalists to his inability to criticize anyone who supports him. But limiting the definition of terrorism to the actions of people from “over there,” particularly the Muslim over there, has been a feature of right-wing politics since terrorism first entered federal law. In fact, one of the only times Republicans wax eloquent on the danger that the concept of terrorism poses to civil liberties is when terrorism has threatened to curtail their constituents’ gun rights.
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The first modern anti-terrorism laws were passed in the 1980s in response to the hijackings of TWA Flight 847 and the cruise liner MS Achille Lauro. Since that time, they have grown in scope and severity, but have always been limited to international terrorism. This constraint was challenged during the Clinton administration when the federal government found itself in routine confrontation with self-styled militias. The 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City, in which 168 people were killed, including 19 children in a day care, was a watershed tragedy and prompted the enactment of the Antiterrorism and Effective Death Penalty Act of 1996. But AEDPA—a still-controversial law due to a number of its “tough-on-crime” provisions—did little to address domestic terrorism directly and created no domestic-terrorism crime.