January 20, 2021
From It's Going Down
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In the aftermath of the far-Right storming of the US capitol on January 6th, the political Center has escalated calls for expanded surveillance and policing powers to combat “domestic terrorism.” While its been years of inaction in the face of escalating far-Right violence, growing support for the far-Right and Trump among law enforcement, and an intense drive by the State to attack and demonize Black Lives Matter and antifascists protesters which has allowed fascist forces to grow both within the Republican party and on the streets, with Biden coming into power, there are increasing calls to resist a new push by the State to criminalize dissent, a move which will result in even greater repression against movements from below.

Wanting to know more about both the State’s recent moves against the far-Right after the riots at the capitol, what is being proposed currently in its aftermath in terms of repression, and how historically such repression has been leveled against autonomous anti-capitalist and anti-colonial movements, we caught up again with our legal correspondent to find out more.

IGD: While the centrist press seems to be having a field day with news of the attempted coup, in a bizarre way there seems to be a downplaying of the murder of the police officer and the planting of bombs outside of the RNC and DNC. Do you agree, and if so, what does this signal? 

Absolutely. It’s definitely bizarre what aspects of these actions the media picks up on and runs with. I think a lot of it has to do with what falls outside of people’s expectations enough to be frightening and sensational. I think most of America expects a certain level of violence and certain types of tactics from the political Right. Bombings, street brawls, even shootings and murdering police are all fairly common from the Right and I think it just doesn’t register with people as much.

But things approximating a riot, property destruction, militant mass action, these are things we are not as accustomed to seeing from the Right, and so it makes a better story. Throw in the word “coup” and it’s all packaged up to steal the show.

Then there’s the ideological aspect. Blue Lives Matter supporters killing a cop is pretty dissonant for most people, and coming to terms with that requires a deeper analysis than most mainstream media want’s to grapple with. CNN is never going to try to explain that Thin Blue Line flags are actually just symbols of white supremacy and anti-Blackness rather than total allegiance to police. Fox News isn’t ready to grapple with the revolutionary, insurgent nature of fascism.

It’s also important to remember that the media (including social media) is 100% image driven. A photo of a militia dude sitting in the Speaker’s chair will always go farther than a cop getting beaten to death with a fire extinguisher that wasn’t caught on camera.

Look at how relatively little attention the Nashville Christmas bombing got. Granted no one but the bomber died, but it seemed the only real story anyone was pushing there was “Cops Act Fast to Evacuate Hotel” and “Cell Service is Out.” The whole “Conspiracy Theorist Destroys Downtown Block with RV Suicide Bomb,” just didn’t hit. Also there just weren’t really good visuals for it. Compare that to car attack in Charlottesville that killed Heather Heyer. The Alt-Right had been stabbing and shooting and beating people for years, but this one attack was what really blew up. I think there are a bunch of reasons for that, but part of it was the dissonance between the tactics we expect from the Right and the tactic used in that attack, as well as the abundance of really dramatic and compelling visual material.

IGD: Many on the liberal-Left are pushing harder to label many these right-wing actions as “terrorism.” What do you think about that?

“Terrorism” is an empty and really problematic epithet that is mostly just a political designation. Using it reinforces the logic and theoretical framework of the “War on Terror,” which is a racist and imperialist project at its very core. We should be working to abolish the “War on Terror,” not arguing about how it is administered. Calling something terrorism is just a shorthand to designate it as a legitimate target for incredible state violence—surveillance, entrapment, sentencing enhancements, torture, indefinite detention without habeas corpus, extraordinary rendition, targeted extrajudicial killing, invasion, and occupation. This is not something we should engage in or legitimize.

I get that people want to highlight the double standard of how the “War on Terror” has predominantly targeted Muslim communities while the Right murders people with hardly any repercussions. But there is a way to talk about this without trying to debate who should be labeled terrorists. The most likely outcome of that debate is just more government violence against all movements and communities.

Discussions of terrorism focus too much on form and process over actual substance. There are dozens of good legitimate reasons to want to storm the Capitol, including Black liberation and ending police murder, indigenous sovereignty and ecological sustainability, or just getting those stimulus checks. As radicals, our critique should not be how they acted but why they acted. Who really cares about the windows at the Capitol or Nancy Pelosi’s podium anyway!?

The danger from January 6th was not really the tactics, but the ideologies, histories, and power behind those ideologies. I promise you we absolutely do not want to encourage the government to be any deeper in the business of policing ideology. Yeah, it’s dangerous when white supremacists storm the Capitol, but it’s also dangerous when white supremacists have a “peaceful” rally outside, or host a public recruiting meeting, or put flyers on windshields in a parking lot. This is the essence of radical antifascism after all.

An over-emphasis on their tactics distracts from the work that needs to be done to confront and defeat their substantive politics, which is the real goal.

There’s also a certain irony or hypocrisy from liberals here. They’ve spent years legitimizing the rise of fascism, always defending their public platforms, and scolding antifascists about the First Amendment/Free Speech rights of white nationalists. Now that the monster is at the gates, they are demanding the government—unlike antifascists, the one entity that’s actually supposed to be constrained by the First Amendment—to increasingly criminalize political movements and political First Amendment activity. You really can’t make this up.

IGD: From the outset, it seems that the charges related to January 6th are pretty low. Nothing compared to say what the J20 defendants were facing or what the hundreds of people arrested since the start of the George Floyd rebellion are facing. 

This is definitely true. As of this writing, The Prosecution Project has reported about 160 arrests in relation to the Capitol action, but the overwhelming majority of them are just curfew violations and various types of trespassing charges with a maximum penalty of a year or less—essentially misdemeanors. There have been a handful of more serious charges too. Twelve counts of civil disorder, four counts of assaulting a federal officer, a couple counts each of stealing or destroying government property, making threats, or obstructing an official proceeding. These all carry possible sentences in the 5-20 year range. But again, that is the minority of cases.

In contrast, the George Floyd uprisings have seen well over 300 federal cases, and the overwhelming majority of those cases are serious felonies with possible sentences of 5-20 years. And then there are cases in which people are facing mandatory 45-year sentences, up to possible life sentences, for essentially property destruction. To be fair, part of the reason for this disparity is tactics. A lot of the property destruction that happened during the George Floyd uprisings involved fire, and the federal statutes around arson and “destructive devices” (like Molotov cocktails) are extremely punitive.

But the disparity is mostly political. In most of the uprising cases, the decision to even bring federal charges is entirely discretionary by federal prosecutors. Arson is traditionally not a federal crime, and the federal arson statute, passed in 1970, is yet another reaction of the liberation movements of the 1960s. Many legal scholars argue, rightly in my opinion, that the decision to bring federal arson charges for, say, burning a police car is a form of overreach, even if it falls with in the strict definition of the statute. Also, a lot of those arson charges were brought for extremely minor conduct. For example, one woman charged with arson in federal court in Salt Lake City allegedly threw some fabric into a cop car that was already on fire, allegedly increasing the flames. Another man in Cleveland allegedly contributed “combustible materials” to a parking attendant booth that was already aflame. Both are now facing a mandatory 5-20 years.

Additionally, the decision to not bring more serious charges against the Capitol demonstrators is also a political decision. None of them have been charged under the federal riot statute, which, as I’ve discussed before, is extremely broad and been brought against quite a few uprising participants.

The double standard, despite all the tough words and public shock and outrage, is pretty evident. But I want to be clear that highlighting this double standard is not a call for more serious charges against the Right, and is certainly not a call for new laws to be enacted to prosecute people in these situations. Quite the contrary, I think the double standard highlights the allegiances and illegitimacy of law enforcement and really illustrates why we can’t rely on the government and law enforcement to protect us from fascism.

IGD: Do you think that the State will pursue charges against just people who ‘went viral’ or will there be an attempt to go after organizations and ‘dismantle networks,’ etc? 

I think there will be some efforts to dismantle or disrupt networks but its hard to say how far that will go or how effective it will be. Just today we saw a local/regional leader of the Oath Keepers get arrested on conspiracy charges and another member of his group arrested on other charges. It’s not just the viral people that are at risk. There’s so much video of the whole thing that was publicly posted so even people who didn’t initially get much social media attention are at risk. Also, so many of these right-wing types are all too eager to cooperate with law enforcement, to the detriment of both themselves and their friends. I think we could see a pretty wide cross section of people getting charged. What that will mean for their larger movement and networks is an open question though.

IGD: Do you think there will be any attempt to go after those like Ali Alexander and Alex Jones who seemed be playing an intermediate role between the fascist base and the Trump administration? 

I seriously doubt it. They are mostly going to pursue low hanging fruit—people for whom they have solid video or photographic evidence actually participating in the Capitol events and taking specific actions. I would be extremely surprised to see anyone else get charged. And, obviously, we shouldn’t call for this to happen. If they can prosecute Alex Jones, they would probably go after IGD too!

IGD: Already Biden is pushing for new domestic terrorism laws. How should we approach this news? 

I think this is really dangerous and merits a lot of attention and opposition. There has been a significant faction of law-and-order liberals along with conservatives who have been pushing this issue for a while, especially in the wake of Charlottesville. This seems like a moment in which it could actually come to fruition.

The New York Times has run a number of news pieces the last few years advocating for domestic terrorism legislation and bemoaning the “limits” on the FBI’s powers. One article proposes criminalizing “a potential domestic terrorist who stockpiles weapons and indicates a desire to use them in a future attack, but who has not worked with others or taken a substantial step toward completing the envisioned crime.” What does it even mean to “desire” to use something in a future attack but not actually conspire or take a substantial step to make it happen? It boils down to literally policing people’s thoughts and feelings and ideas.

We can be absolutely sure that any domestic terrorism legislation will be disproportionately used against the Left, and especially Black and indigenous movements. That is the entire history of policing and repression in the United States. It is a white supremacist settler-colonial society, and policing will always enforce that and always come down hardest on those who challenge it. And certainly the author of the 1994 crime bill is not going to change that in the least.

Aspects of the proposed domestic terrorism law would give the FBI more ability for conducting sting operations and using informants against domestic organizations. Anyone who knows even a little bit of the recent history of anarchist and other radical Left movements knows that the FBI has never been particularly hampered in this regard. And most of their history with “anti-terrorism” sting operations have looked a lot more like simply entrapping people in terrorist plots that were pushed by the FBI informants themselves.

IGD: That’s a good point. What is the history of anti-terrorism enforcement against anarchists, environmental movements, and the Left?

With regard to anti-terrorism legislation, I think it’s good to look at the Animal Enterprise Terrorism Act (AETA). The AETA was enacted with broad bipartisan support in 2006 at the behest of animal exploitation industry groups. The early to mid-2000s were a period known as the Green Scare during which the FBI continually labeled earth liberation and animal liberation groups as the number 1 domestic terrorism threat in the U.S., all for actions that really only ever amounted to property destruction, aggressive protests, and sabotage—not violence against people.

The offense was defined as:

Whoever travels in interstate or foreign commerce, or uses or causes to be used the mail or any facility of interstate or foreign commerce (1) for the purpose of damaging or interfering with the operations of an animal enterprise; and (2) in connection with such purpose:

(A) intentionally damages or causes the loss of any real or personal property;
(B) intentionally places a person in reasonable fear; or
(C) conspires or attempts to do so.

The statute then has a penalty scale (max penalties anywhere from 1 year to life) depending on whether there was fear or injury and the amount of “economic damage” that was caused. But “economic damage” includes lost profits or increased costs. Even a boycott or the expose of unethical practices that cause a lot of extra PR costs and lost profits over $1 million could be considered terrorism and carry penalties up to 20 years in federal prison.

When politicians and law enforcement officials talk about the need for new domestic terrorism legislation, this is the kind of broad attack on speech and dissent and resistance that they have in mind. Will some fascists get charged? Sure. Will substantially more anarchists, leftists, Black liberationists, indigenous land and water protectors, abolitionists, and the like get prosecuted? Absolutely.

With regard to sting operations the cases of Eric McDavid and the Texas 2 are both pretty instructive. Eric McDavid was an anarchist who got embroiled in a plot with three others to supposedly bomb infrastructure targets in the western U.S. Except one of the people was a paid FBI informant known as “Anna Davies” who essentially manipulated, coerced, guilted, and pressured the others into continuing to participate in the plot even when it was pretty clear they were not really interested in going through with it. In Eric’s case, the government illegally withheld evidence about how Anna manipulated Eric’s romantic interest in her to keep him involved. He was sentence to 20 years but was released after 9 year when the government’s intentional suppression of exculpatory evidence was revealed by Eric’s support and legal teams.

The Texas 2 case arose out of the protests against the Republican National Convention in 2008 when notorious FBI informant Brandon Darby turned in two young men, Brad and David, to the FBI for a Molotov cocktail plot that he was deeply involved in fomenting and encouraging. As Darby’s involvement with the FBI became clear, the expansive breadth of his informing on radical communities in Austin and New Orleans became clear. In addition to Brad and David spreading several years in federal prison, another likely target of Darby’s, a local Palestinian activist Riad Hamad, committed suicide after his home was raided by the feds investigating alleged support for Hamas. At the time, Darby was still acting as a “confidant” for Riad.

In other areas we’ve seen, for example, federal terrorism sentencing enhancements used against anarchist and former earth liberation prisoner Daniel McGowan in 2006 and he was subsequently imprisoned in a special “Communication Management Unit,” essential solitary confinement on steroids; radical attorney Lynn Stewart (rest in power) was prosecuted and imprisoned for 8 years in 2005 for providing material support to a foreign terrorist organization in relation to her representation of the Blind Sheikh; and the RNC 8 in the Twin Cities were charged with Conspiracy to Riot in Furtherance of Terrorism in 2008. This list could go on and on and on.

This is what the “War on Terror” looks like for radical social justice and liberation movements in the U.S. It is the further criminalization of dissent, malicious prosecution, increased infiltration, entrap, solitary confinement and more.

IGD: Have we seen any evidence of this yet? A push for going after the Right being used as cover to go after the Left?

Yes. An antifascist and former YPG volunteer in Florida is facing federal charges for allegedly making threats against right-wingers about prospective actions at the Capitol there. And almost immediately after January 6th we started hearing about the FBI visiting antifascists, anarchists, Leftists, and the like, asking about events on January 6th, what they know about right-wing threats, things of that sort. It’s not entirely clear what their angle is, whether they are buying into nonsense right-wing conspiracy theories that it was antifascists who stormed the Capitol, whether they think we are also planning similar actions, or whether they just know we have better intelligence about the far-Right than they do because they’ve been ignoring it so long.

But regardless of their reason, its still best to always remain silent, always ask for a lawyer, and never let them in or consent to a search. We’ve talked about this before so I won’t belabor it again here, but people should brush up on what to do when an agent knocks.

We saw similar events after Unite the Right in Charlottesville. Several victims of the car attack were subpoenaed to a federal grand jury that was ostensibly investigating the right-wing actions. But, in a particularly courageous and principled stand, they all refused to cooperate. One of the grand jury resisters put out a short statement that was really powerful:

Being in Charlottesville is gut-wrenchingly hard. Sometimes there’s no way to avoid driving by the street where a Nazi tried to kill me. Or by the statue where some of the people I love most in the world were surrounded by a torch-bearing mob. Seeing cars that remind me of the one that hit me makes me catch my breath, again and again. I am surrounded by reminders of one of the scariest days of my life. I refuse to sell out the people I love. We have been burned with torches, pepper sprayed, and run over. We receive threats both from the Nazis and from the federal government. But we keep on going. Why? Because standing up for the powerless is what love looks like.

IGD: What about charges of sedition? There’s been a lot of talk about that as well.

Sedition, like terrorism, has always been a politically defined crime, and goes back to the earliest days of the U.S. The Sedition Act of 1898 criminalized “opposing or resisting any law of the United States” or publishing “false, scandalous, and malicious writing” about the President or the U.S. Congress. It was primarily used against anti-Federalist opponents of President John Adams, and repealed a few years later.

People tend to be more familiar with the Espionage and Sedition Acts of 1917-18. These laws, among other things, made it a crime to spread false news of the U.S. military with an intent to disrupt its operations, to foment mutiny, or to obstruct recruiting; and to use “disloyal, profane, scurrilous, or abusive language” about the U.S. government. It was aimed squarely at anarchists, communists, and other opponents of World War I. Probably the most famous prosecution under it was socialist Eugene V Debs for opposing the draft. Hundred of Industrial Workers of the World organizers were also prosecuted, as well as anarchist Mollie Steimar. Mexican anarchist Ricardo Flores Magón was sentenced to 20 years in prison under the law for an anti-war pamphlet in which he wrote “The death of the old order is at hand. It is being whispered in the bars, theatres, streetcars and homes, especially in our homes, the homes of those at the bottom.”

The Espionage and Sedition Acts became inoperable at the end of the war, but Attorney General Mitchell Palmer advocated for a new peacetime sedition law. He was unsuccessful in this, but still orchestrated the infamous Palmer Raids to arrest and deport anarchists and communists.

Another law, the 1940 Alien Registration Act, made it a crime to publish or distribute any written material advocating for the overthrow of the government or to be a member of an organization that advocates such. It was primarily targeted at communists. Subsequent court decisions over the next three decades effectively invalidated this on First Amendment grounds.

When people talk about sedition now, the charge they are generally referring to is the Seditious Conspiracy statute which makes it a crime for “two or more persons …[to] conspire to overthrow, put down, or to destroy by force the Government of the United States, … or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States.”

It’s a statute that hasn’t been used widely, but the times it has been successful versus the times it hasn’t are instructive. Predominantly it has been used against Puerto Rican Independistas and members of the FALN in the 1930s and the 1980s. Oscar López Rivera served 36 years of a 70 year sentence from the early 1980s until 2017. Also in the 80s, eight members of the left-wing United Freedom Front were charged with seditious conspiracy and other crimes, but were acquitted of the seditious conspiracy charges. After Tom Manning died in prison in 2019, Jaan Laaman is the last UFF member still in prison (write to him!).

Also in the 80s, ten white supremacists affiliated with underground militant groups like The Order were charged with seditious conspiracy but acquitted. Ten people including Sheik Omar Abdel-Rahman were convicted of seditious conspiracy in 1995 for their roles in the first World Trade Center bombing in 1993. Most recently, nine members of the right-wing Hutaree militia were charged with seditious conspiracy in 2010 for planning attacks on law enforcement. Over a month into trial though, the judge dismissed all the seditious conspiracy charges because the alleged conspiracy was too vague and amounted to little more than just hatred of law enforcement.

There was discussion from Bill Barr and others at the Justice Department last summer about seditious conspiracy charges against uprising participants, but to my knowledge none have been brought.

The burden for a seditious conspiracy case seems pretty high, especially for white right-wing groups. All the convictions for seditious conspiracy above were Puerto Ricans or Muslims, two racialized groups that are perceived as foreign “others,” regardless of their citizenship or country of origin.

Sedition really feels like another political buzzword like terrorism that I think we should be wary of. And who would take serious an anarchist accusing others of sedition anyway!?

IGD: From what we can tell, so far Biden has only proposed setting up a new advisory committee that would investigate online activity and how it relates to extremism and also implement so-called “Red Flag Laws.” 

The “Red Flag Laws” remind me of several years ago when liberals were chomping at the bit for a law that would prohibit people on “terrorism watch lists” from buying firearms. But we know how subjective and racist those terrorism watch lists are. It’s only a slight exaggeration to say that almost every activist I know has been on a terrorist watch list at one point or another. I know that I have.

Who decides who is on a watch list? Who decides who gets red flagged? The very same law enforcement that we have been fighting to defund and disempower because they can’t stop murdering and brutalizing and harassing people of color.

Advisory committees by themselves seem relatively innocuous, but it’s just one more form of surveillance that again gets selectively focused. There was an attempt back in 2007 to pass a law to set up programs to study and prevent domestic terrorism. It got overwhelming bipartisan support in the House but never made it anywhere in the Senate. But again, it had this hugely broad definition of terrorism that was “the use, planned use, or threatened use, of force or violence by a group or individual … to intimidate or coerce the United States government, the civilian population of the United States… in furtherance of political or social objectives,” or to “promote the group or individual’s political, religious, or social beliefs.”

IGD: This seems to be a situation in which we should point out that giving the State even more of a pass to surveil political thought and ideology is a bad idea, but also that antifascist activity, doxxing, counter-recruitment is a better strategy than whatever the State has been doing? 

Absolutely. These strategies work because they rely on a dispersed social power that creates norms in society, rather than centralized coercive force. One way to look at it is that maybe both of these—radical antifascism and government law enforcement—can disrupt and constrain fascist organizing in various ways, but only radical antifascism builds counter-power outside of the government. This maybe isn’t a convincing argument for people who are just through and through liberals, but anyone who is generally interested in grassroots left-wing organizing and autonomy and people power should care. The power that we build in one struggle applies to other struggles as well, whether it is defunding police and abolishing the prison industrial complex or fighting for health care and raising the minimum wage.

Also talking not just about how various parts of the government collude with fascists, but how the very forces that animate the government—authority, white supremacy, nationalism, etc.—create the foundation from which fascism emerges. Like, if you’re trying to get rid of weeds, you can heap a mountain of compost on top of them and cover them up, but ultimately that is a counter productive strategy and those weeds will multiply and grow back.

IGD: As we saw with Charlottesville, there seemed to be this small window in which those on the far-Right could be pushed out of the political mainstream. If we only have a small window do take certain actions with the upmost impact, what should we be doing? 

All the things we did in the wake of Charlottesville were really effective: doxxing, de-platforming, continuing to oppose and confront the fascists in the streets and online. I think what’s really unique here that we need to take advantage of is the social conditions that allow these tactics to be really effective against this sector of the far-Right. Historically, doxxing has not been very effective against the so-called “Patriot” movement and more generic MAGA chuds. They had just enough social legitimacy and plausible deniability around their white supremacy to make doxxing ineffective at, say, getting them fired or creating pressure from their social networks.

Now that legitimacy has been fractured and simply showing involvement in the actions at the Capitol is sufficient to create real material social costs. That feels like the real window of opportunity.

However, I think it is just as important right now, if not more so, to really be confronting and opposing liberalism and the government’s attempt to consolidate power and increase repression. There are plenty of liberals and moderate conservatives that are trying to make a break from the far-Right at this moment and it’s important that we don’t position ourselves in the same camp as them. And frankly I think state repression is a bigger threat in both the short and long term.

IGD: Anything else you’d like to add?

The far-Right is pivoting from four year in power to a much more system oppositional insurgent posture. This shift is messy and will have both flashpoints like January 6th but also demoralization and demobilization in response to internal conflicts and also repression.

Antifascists need to keep up with this shift in our analysis, propaganda, and organizing. We don’t want to get left behind in the shifting terrain, or give ground to either the far-Right and fascists or the authoritarian neoliberal state. We have sharp and necessary critiques of both of these poles and we need to work to bring those critiques to the forefront of how we organize.

And even if Trump isn’t in office anymore, all cops are still Trump supporters. That’s really why the Right was able to do what they did at the Capitol. So we shouldn’t expect law enforcement to protect us from fascism any more under a Biden regime than a Trump regime.

We keep us safe.

photo: Warren Wong via Unsplash

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