Some have argued that the attack on the Capitol shows that it is necessary to make domestic terrorism a standalone federal crime, supported by all of the national-security tools currently used to combat international terrorism. But no new laws are needed for prosecutors to treat the attack on the Capitol as the act of terrorism that it was. Although Congress assiduously avoided creating a standalone domestic-terrorism crime in 1996, AEDPA made terrorism of any kind one of the most significant enhancements in the U.S. Sentencing Guidelines.
The enhancement applies to anyone who commits any one of a list of more than 50 federal crimes with the intent “to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” That list includes crimes that nearly everyone who stormed the Capitol either committed, attempted to commit, or conspired to commit. And crucially for those who might have helped incite or orchestrate the attack on the Capitol from afar, it also applies to anyone who commits any other serious federal crime with the intent to “promote” such terrorism. In the 25 years that the terrorism enhancement has been on the books, federal prosecutors have used it to add decades to the sentences of Occupy protesters, anti-abortion-rights activists, militant environmentalists, self-styled militia members, and, in the large majority of cases, Muslims who often did far less than those who attacked the Capitol.