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The MAGA Terrorism Trap

In the wake of the Capitol attack, Joe Biden proposed a new domestic terror law. But you’d be surprised who’s most likely to get caught in its net

As soon as the mob breached the borders of the U.S. Capitol, the T-word began to slip from the mouths of observers. This was no mere criminal breach — it was terrorism. 

And looking at images of politicians cowering on the Senate floor, the police who were overwhelmed and belligerent right-wingers armed with guns and zip-tie handcuffs, it’s easy to imagine why the word just feels right. 

“What happened yesterday is textbook terrorism,” Washington, D.C., Mayor Muriel Bowser declared the morning after the Capitol riot. “It is defined as ‘the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population or any segment thereof, in furtherance of political or social objective.’” 

The rhetoric reached the highest halls of government, from senators like Dick Durbin to President-elect Joe Biden himself, who seemed to lean into the tough talk. “Don’t dare call them protesters,” Biden said the same day. “They were a riotous mob. Insurrectionists. Domestic terrorists. It’s that basic. It’s that simple.”

And what followed was an impressive swell of rhetoric around the idea that calling the D.C. rioters “terrorists” wasn’t only technically correct, but necessary. It felt a lot like the last time this discourse absorbed America whole — in the aftermath of 9/11, when the nation’s collective rage and sadness led to a generational obsession with terrorism, and an overnight embrace of sweeping, intrusive “anti-terrorism” policies, many of which remain in place today. George W. Bush wielded the T-word like his very own political Excalibur, making grand proclamations of America’s “War on Terror” and the moral justness of the crusade. 

This time around, of course, the rallying cries are a little different: The suspects aren’t Muslim, but rather homegrown and largely lily-white. There’s a giddy kind of performative wokeness in turning the gun around on the shooter: Behold, a huge swath of white people who blamed Muslims and Mexicans for everything bad, now forced to confront their own, very real terrorism charges. 

To a bevy of criminal justice, civil rights and national security experts, however, the din of the crowd calling to expand the definition of domestic terrorism and add ways to prosecute people is concerning, to say the least. One of them is Diala Shamas, an attorney with the Center for Constitutional Rights who has extensive experience representing people who were targeted and surveilled by the federal government over suspicions of terrorism activity. 

I asked Shamas point-blank: What is terrorism, and who is a terrorist? 

She laughed under her breath, and noted that the easy answer is in the dictionary. “But it’s just not a useful definition, because in reality, so much political and ideological effort goes into what they mean in practice,” she warns. “It’s not a useful framing if what we’re trying to do is understand why these people felt like they could storm the Capitol without any kinds of repercussions. Just simply calling them terrorists makes it feel almost beyond comprehension and doesn’t really offer us a way of making sense of it.”

It never has, and it never will — just looking at the history is blurry enough. To be clear, acts that you could consider “terrorism” have existed pretty much as long as human politics has. But its modern usage stems from the deadly “Reign of Terror” in 18th-century France led by Maximilien Robespierre, the brilliant but impetuous and paranoid revolutionary. “Terror is nothing other than justice, prompt, severe, inflexible; it is therefore an emanation of virtue; it is not so much a special principle as it is a consequence of the general principle of democracy applied to our country’s most urgent needs,” he proclaimed in February 1794. 

And then he was beheaded five months later, thanks to the public and his fellow politicians all turning against his bloody campaign of executing anyone he considered a dissident to the revolution. As news spread, so did the term “terrorism,” with negative connotation intact; the English philosopher and writer Edmund Burke made a big show of using the term frequently as a drag on the French revolutionaries he disdained. 

Ever since, all types of people have realized the value of throwing around the words terrorism and terrorist, whether it applies to battles against colonialist forces in Southeast Asia, public atrocities between Muslim sects in the Middle East or the bombing of a federal building by a racist named Timothy McVeigh. Shamas notes that historically, public acts of mass violence like the Oklahoma City bombing or 9/11 lead to legislation and budgets that give power to the government and its various law enforcement agencies. 

“The reality is that DOJ officials, FBI, law enforcement and other agencies have been pushing for, and are always pushing for, more authority — the ability to investigate even more, and other expansions of their powers. And these moments are when they see opportunities to deliver on agency wish lists,” Shamas says. 

Case in point: She cites the 1996 Antiterrorism and Effective Death Penalty Act, passed with broad bipartisan support during the Clinton administration in the aftermath of the McVeigh bombing. The legislation was supposed to be tailored to respond to right-wing white violence, yet in practice, its provisions wrecked habeas corpus and diminished the civil rights of immigrants, criminalizing a broad range of conduct and opening people up to surveillance under the guise of preventing any “material support” for terrorists. Shamas says that the act has been “used disproportionately” against Muslims in the aftermath of 9/11, and fears a similarly crooked outcome for any Biden-era policies intended to look tough on white extremist violence. 

“The problem with these kinds of expansions of state authority is that it’s like a one-way ratchet. It’s really easy to grow it. All of these new agents, you give them all these new powers. It’s much more challenging to roll it back,” she adds. 

There is no doubt that right-wing extremism and violence is growing, whether you look at it through the lens of terrorism or good ol’-fashioned hate crimes. But as Shamas and others have argued, the U.S. government isn’t lacking the tools to prosecute D.C. rioters, Proud Boys or anyone else deemed a criminal insurrectionist. There is, however, a lot of gray area in how federal statutes on terrorism, most often used for “international” terrorism, can apply to the domestic variety; to that end, some experts say that civil protections for American citizens make it tricky to levy the same tools. 

But as the Brennan Center’s Michael German argues, there’s a more fundamental reason as to why many seeming acts of terroristic violence by white nationalists and other right-wingers don’t get tagged with terrorism charges: The Justice Department doesn’t try. That might seem strange, given that the FBI has identified American extremists as the biggest terror threat to the country. German argues that despite this, the DOJ has failed to properly track and prosecute hate crimes over the last decade, and simply doesn’t follow existing protocols to open domestic terror investigations when, say, a Nazi runs over a counterprotesting woman or shoots people in a synagogue. (What has the FBI done in recent years? Created a distinct criminal category for “Black Identity Extremist” in order to track and harass Black Lives Matter protesters, for starters.) 

“The FBI could treat hate crimes that meet the definition of domestic terrorism as a top priority. That the Justice Department took none of these steps, despite the mandates of Congress, suggests it may use any new domestic terrorism authorities against a different set of targets,” German, a veteran cop and FBI special agent, writes. 

When the people clutching the levers are compromised, isn’t value in the “terrorism” framework, too? Black activists and others fighting for radical criminal justice reforms have cried foul about this for a long time, but 2020 made it crystal clear that white extremism lives within the ranks of law enforcement in America, fueling its incompetence and corruption. The consequences of strengthening the powers of this monolith, under the guise of fighting terrorism, loom large, Shamas tells me. 

Meanwhile, the rousing cries to prosecute “terrorists” also leads to a more philosophical question of who a terrorist really is. Foreign policy experts widely consider terrorism to be a tactic, rather than a holistic descriptor of a group or its agenda. And the range of political tactics that fall under the legal definition of “terrorism” remain unfathomably broad. If the people who rushed inside the Capitol rotunda are terrorists, what about the people who urged them, in subtle and explicit ways, to do just that? 

Is Trump, who told his supporters to “fight like hell” because they can’t “take back [their] country with weakness,” guilty of organizing and inciting a domestic terrorism act? What about Oregon Rep. Mike Nearman, who literally opened the door for rioting right-wing chuds to get into the state capitol in December? Given his influence, is the religious loon known as Senator Josh Hawley, who raised his fist to salute the rioters and continues to claim the election was stolen, a terrorist? Conversely, would we label the progressive protesters who flooded into Chuck Grassley’s office to occupy it “terrorists”? What about the Republican political operative who yelled “Heil Hitler” at a public speech? 

The complexity is confusing, which maybe explains why terrorism as a subject has become its own cottage industry, with an endless array of consultants hired to create policies and theory around radicalization and extremism — much of it terribly lazy and debunked. This is the legacy of the post-9/11 surveillance state, in which America quietly consented to all manner of atrocities, believing it would be worth it for the war on terror. That energy is back in full force, even as we watch the GOP using the D.C. riot as justification to amp up policies that crack down on protest from communities of color

Paul R. Pillar, a leading expert on terrorism, once called the phenomenon “a challenge to be managed, not solved,” implying that it isn’t a singular entity that can be quashed with aggressive rhetoric. So it is today: Plenty of ways to tackle domestic terrorism, but very few good ideas when it comes to halting the spread of hateful, white nationalist rhetoric in the country for good. It’ll stay that way as long as we remain stuck in the quagmire of trying to define and punish “terrorists,” even while knowing the very real harms that fall on marginalized communities when we do so. 

In fact, maybe it’s best we don’t lob around the word “terrorist” at all.