The Danger of Using “Terrorism” to Describe the Capitol Attack

By: Aashna Rao
Associate Editor, Vol. 26

On January 7, 2021, the day after the attack on the Capitol, President Joe Biden said of the Trump supporters who participated, “Don’t dare call them protestors. They were…domestic terrorists.”[1] Biden’s use of the word “terrorists” to describe the violent mob was intended to distinguish them from Black Lives Matter (BLM) protestors who gather to demonstrate in opposition to racial injustice and police brutality.[2] Biden also invoked the idea of domestic terrorism to underscore the mob’s role in what he called an “unprecedented assault on our democracy.”[3]

Though those who attacked the Capitol on January 6 committed horrific acts, we need to refrain from using the language of terrorism to label the rioters; doing so will only lead to disastrous consequences for Black and brown communities. Attorney Diala Shamas and law professor Tarek Z. Ismail agree. They explain, “As lawyers who have represented individuals the government has described as ‘terrorist,’ we urge caution” in using the descriptor.[4] For Shamas and Ismail, this is not a matter of merely saying the right words in a speech or being politically correct; they acknowledge that the actions of the predominantly white rioters that invaded the Capitol fit common-sense definitions of terrorism.[5] Instead, Shamas, Ismail, and countless others[6] are concerned about the legal conceptualization of domestic terrorism and, more importantly, the non-white communities that are most affected when the U.S. government doubles down on counter-terrorism measures in the wake of such an incident.[7]

            Professor Ramzi Kassem has long been critical of the use of “terrorist”—he calls it “a word we need to retire.”[8] Kassem points to the 1995 Oklahoma City bombing as a clear example of an instance that highlights why the use of the word is so dangerous for communities of color. Though the Oklahoma City attack was orchestrated by white supremacists, the U.S. government used the language of terrorism following the bombing to justify misguided “counter-terrorism” measures that ultimately hit Black and brown communities hardest.[9] A year after the bombing, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigration Response Act (IIRA-IRA).[10] The consequences of these acts have had a disparate impact on Black, Muslim, and immigrant communities who are disproportionately incarcerated, detained, and surveilled.[11]

Together, the acts increased penalties for undocumented immigrants who committed crimes,[12] subjected noncitizens living legally in the U.S.—including green card holders—to automatic deportation for minor offenses, and inhibited criminal defendants from accessing courts.[13] AEDPA is also infamous for having “gutted the federal writ of habeas corpus” thereby significantly increasing the likelihood of an individual’s wrongful execution under death penalty sentences.[14] In 2001, AEDPA was used as a foundation for the Patriot Act.[15]

            Now, the renewed push towards bolstering the government’s counter-terrorism agenda is already underway. On January 22, 2021, the Biden administration announced “a sweeping interagency effort to root out domestic extremism” following the Capitol invasion.[16] This effort will involve fortifying and expending the resources of the Office of the Director of National Intelligence, the Department of Homeland Security, the FBI, and the National Security Council.[17] Biden has also been urged to create a new White House post and bring on additional personnel dedicated to combatting “violent extremists,” all of which will require increased funding.[18] Meanwhile, some Republican legislators have exploited national sentiment following the Capitol attack to justify legislation aimed at cracking down on “violent agitators.”[19] Florida Governor Ron DeSantis claimed this bill was filed “in light of…the events at our United States Capitol;” in reality, the legislation was first drafted last fall in response to BLM protests this past summer.[20]

This language of “domestic terrorism” and “violent extremism” is the very kind U.S. law enforcement has utilized for decades to defend police brutality, the incarceration of Black activists, the use of undercover agents in mosques, and invasive monitoring of Muslim neighborhoods.[21] Within the last century alone, we have seen the government use these exact words to defend everything from the COINTELPRO era of the 1900s to the early 2000s creation of mass surveillance initiatives like the NYPD’s “Demographic Unit” to the FBI’s categorization of the “Black Identity Extremism movement” in 2017.[22] As Kassem explains, “Vesting more money and power in law enforcement would only exacerbate the problem of prejudice in policing. It would be the opposite of what millions of Americans called for…when they took to the streets nationwide demanding that police be defunded. And it would expand an already sprawling national security apparatus that must instead be diminished.”[23]

After all, law enforcement agencies had more than sufficient resources to forcefully disperse crowds in DC last June, when Trump wanted a photo in front of St. John’s Church mid-BLM protest.[24] It seems the issue is not that the government is under-resourced, but rather that brown, Black, and radical protest is and always has been “automatically treated as terrorism,” whereas white supremacist violence is rarely addressed using existing counter-terrorism frameworks.[25] Instead of reinforcing these harmful frameworks, advocates have long called for the diversion of public funding away from law enforcement agencies and towards education, healthcare, mutual aid, and restorative justice initiatives.[26]

            So, what should the Capitol attack be called, then? Ismail answers, “Call it a coup attempt. Call it insurrection. Call it a serious challenge to American exceptionalism. But there’s just no reason to propagate the meaningless terrorism label.”[27]  

[1] Adam Edelman, Biden slams Capitol rioters as ‘domestic terrorists’: ‘Don’t dare call them protesters’, NBC News (Jan. 7, 2021), https://www.nbcnews.com/politics/white-house/biden-slams-capitol-rioters-domestic-terrorists-don-t-dare-call-n1253335.

[2] Ken Thomas & Sabrina Siddiqui, Biden Says Rioters Who Stormed Capitol Were Domestic Terrorists, Wall St. J. (Jan. 7, 2021), https://www.wsj.com/articles/biden-says-mob-that-stormed-capitol-were-domestic-terrorists-11610046962.

[3] Edelman, supra note 1.

[4] Diala Shamas & Tarek Z. Ismail, Calling the Capitol riot ‘terrorism’ will only hurt communities of color, Wash. Post (Jan. 10, 2021), https://www.washingtonpost.com/outlook/2021/01/10/capitol-invasion-terrorism-enforcement/.

[5] Id.

[6] See e.g., Lea Kayali (@LeaKayali), Twitter (Jan. 7, 2021, 5:06 PM), https://twitter.com/LeaKayali/status/1347303745206575108?s=20; Ramzi Kassem, Domestic terrorism? Not so fast: Those looking to bring down the hammer on the Capitol rioters should be careful what they wish for, N.Y. Daily News (Jan. 12, 2021), https://www.nydailynews.com/opinion/ny-oped-domestic-terrorism-not-so-fast-20210112-gbsrw5zfwvcrja37havo2if3bu-story.html; Hina Shamsi & Manar Waheed, After Capitol riot, Biden backs domestic terror law. It’s a predictably misguided response., NBC News (Jan. 15, 2021), https://www.nbcnews.com/think/opinion/after-capitol-riot-biden-backs-domestic-terror-law-it-s-ncna1254330.

[7] Shamas & Ismail, supra note 4.

[8] Ramzi Kassem, ‘Terrorism’: A word we need to retire, N.Y. Daily News (Nov. 8, 2017), https://www.nydailynews.com/opinion/terrorism-word-retire-article-1.3619971.

[9] Shereen Marisol Meraji, What Does It Mean To Call The Capitol Rioters ‘Terrorists’?, NPR (Jan. 14, 2021), https://www.npr.org/sections/codeswitch/2021/01/14/956881738/what-does-it-mean-to-call-the-capitol-rioters-terrorists.

[10] Id.

[11] Kassem, supra note 6.

[12] Illegal Immigration Reform and Immigration Responsibility Act, Cornell L. Sch.: Legal Info. Inst., https://www.law.cornell.edu/wex/illegal_immigration_reform_and_immigration_responsibility_act (last visited Jan. 24, 2021).

[13] Shamas & Ismail, supra note 4.

[14] Lincoln Caplan, The Destruction of Defendants’ Rights, New Yorker (June 21, 2015), https://www.newyorker.com/news/news-desk/the-destruction-of-defendants-rights.

[15] Liliana Segura, Gutting Habeas Corpus, Intercept (May 4, 2016), https://theintercept.com/2016/05/04/the-untold-story-of-bill-clintons-other-crime-bill/.

[16] Jonathan Easley, White House launches sweeping review of domestic terror threats, Hill (Jan. 22, 2021), https://thehill.com/homenews/administration/535438-white-house-launches-sweeping-review-of-domestic-terror-threats.

[17] Id.

[18] Thomas & Siddiqui, supra note 2.

[19] Matt Dixon, Florida’s DeSantis moves long-stalled protest crackdown on heels of Capitol riots, Politico (Jan. 7, 2021), https://www.politico.com/states/florida/story/2021/01/07/floridas-desantis-moves-long-stalled-protest-crackdown-on-heels-of-capitol-riots-1352933.

[20] Id.

[21] Shamas & Ismail, supra note 4.

[22] See e.g., Michael German, The FBI Targets a New Generation of Black Activists, Brennan Center (June 26, 2020), https://www.brennancenter.org/our-work/analysis-opinion/fbi-targets-new-generation-black-activists; Factsheet: The NYPD Muslim Surveillance Program, ACLU https://www.aclu.org/other/factsheet-nypd-muslim-surveillance-program.

[23] Kassem, supra note 6.

[24] Tom Gjelten, Peaceful Protestors Tear-Gassed to Make Way for Trump Church Photo-Op, NPR (June 1, 2020), https://www.npr.org/2020/06/01/867532070/trumps-unannounced-church-visit-angers-church-officials.

[25] Shamas & Ismail, supra note 4.

[26] See e.g., Kassem, supra note 6; see also Mariame Kaba, Yes, We Mean Literally Abolish the Police, N.Y. Times (June 12, 2020), https://www.nytimes.com/2020/06/12/opinion/sunday/floyd-abolish-defund-police.html.

[27] Tarek Z. Ismail (@tarekzismail), Twitter (Jan. 6, 2021, 3:25 PM), https://twitter.com/tarekzismail/status/1346915812070850562.