For months, President-elect Joe Biden has been considering new laws against domestic terrorism. Immediately after the storming of the Capitol, he called the insurrectionists “terrorists.” Norman Ornstein, an American Enterprise Institute scholar and Atlantic contributor, tweeted that “the House must as an immediate step pass a domestic terrorism statute, with a focus on white supremacist terrorism, and send it to the Senate,” arguing that “the FBI is very limited in what it can do because domestic terrorism is not a category in the way that foreign Islamic terrorism is. I want white supremacist groups treated the same.” But the anti-Islamic-terrorism model has too many problems to justify emulating it. After the 9/11 attacks, accused Islamist terrorists were tortured, put on secret kill lists, rendered to a secret prison system, and held for years without charges or trial. What’s more, existing laws appear sufficient to charge, convict, and sentence the men and women who breached the Capitol building. Let’s see how they work before judging them too weak.
Juliette Kayyem: How MAGA extremism ends
Certain provisions of current law could, moreover, already lead to overcharging. Murder charges are appropriate for insurrectionists who killed a police officer. But Democratic Representative Ted Lieu suggested charging that crime more broadly. “Every single #MAGA rioter who committed a felony in relation to the death of the US Capitol police officer can be charged with felony murder,” he tweeted. As Scott Shackford explains at Reason, “He’s referring to the rule of felony murder, a legal doctrine that allows prosecutors to charge a person with murder if somebody dies during the commission of a felony, even if the offender played no role in the person’s death and did not intend for anybody to die.” As Shackford argues, the felony-murder rule is frequently, if not always, unjust: “We should not be convicting people of murder when they did not, in fact, commit murder.”