There has been a considerable difference in how the January 6th riot at the Capitol and the 2020 Black Lives Matter/Antifa riots were treated by law enforcement, media and our political leaders. Security Studies Group (SSG) did an analysis to determine what actual crimes were committed in each case and whether any of them deserved to be properly called Insurrection, Domestic Terrorism or Conspiracy Against Rights.
If you only follow the major media outlets you might be surprised to learn that January 6th was not an insurrection, but the seizure of six blocks in Seattle last June by BLM and Antifa was. Or that the Black Lives Matter riots constituted Domestic Terrorism according to the definition in the Patriot Act, but the groups involved with the Capitol riot did not meet that standard.
In order for the country to properly evaluate and determine fixative measures, we have to first properly classify the organizations and events. This paper does that and can serve as a tool for determining what changes we should consider.
The over-arching recommendation we make is that using the Patriot Act to designate groups involved with political dissent as domestic terrorists is a dangerous path. It is too easy for the party in control of the security apparatus to use this tremendous power against political opponents. There are plenty of available criminal charges to cover any crimes committed. The Patriot Act should be amended to apply additional controls to ensure it cannot be abused in this way. Download and read the report here
Insurrection in America- An Analysis Full
One of the biggest dangers our Founders tried to avoid was the ability of the state to criminalize dissent and political speech and activities. That is why the First Amendment is first. We must ensure that protected speech is not punished but also that actual violent activity does not enjoy unwarranted protection. The reactions to the recent politically-motivated violence has shown we are in danger of failing on both of those counts.
There have appeared to be two different standards applied to the violent acts of the political Right and Left in the 2020/2021 time frame. All Americans must be able to count on the guarantee of equal protection under the law and there is a growing impression that is not the case. This analysis will not take the political leanings or causes of the groups and actions evaluated into account, except to identify when those cause unwarranted disparate treatment.
The potential damage of the tremendous power of our security apparatus being used in the service of partisan political efforts is incalculable. If the citizenry no longer believe they will be fairly treated, the integrity of the Republic is at risk.
Insurrection, Domestic Terrorism, and Conspiracy Against Rights
First, we must get the proper definitions in play.
The actual crime under 18 U.S. Code Chapter 115, §2383 Rebellion or insurrection:
If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, 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 contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.
Domestic terrorism’s definition is derived from the Patriot Act, and is as follows:
“[A]ctivities that involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State; appear to be intended to intimidate or coerce a civilian population, to influence the policy of a government by intimidation or coercion, or to affect the conduct of a government by mass destruction, assassination, or kidnapping; and occur primarily within the territorial jurisdiction of the United States.”
Our analysis is that the Patriot Act provisions are ripe for abuse because of the political advantage of being able to define political opponents as “terrorists.” There is no specific crime of domestic terrorism defined. The main purpose of the definition’s inclusion in the Act was to allow additional investigatory and surveillance techniques. Any indictments must be based on existing underlying crimes.
We propose that any terrorist designations under the Patriot Act include all of the following:
• A conspiracy of two or more
• Communicated intent to influence or intimidate civilians or government
• Violent felony acts directly connected to the first two requirements
This is not currently included in the language of the Patriot Act and consequently it is too readily available for use against individuals and groups who are disfavored by whatever party is currently in power. This is a dangerous concession of power and should be rectified by amending the Act.
Prosecuting Americans as domestic terrorists for crimes related to political activity heightens the danger that the United States government will lose the consent of the governed and come to be seen as an illegitimate entity. This is especially true if prosecutions on this score appear to be handled on a partisan basis.
Conspiracy Against Rights
This is a crime defined by 18 U.S. Code § 241 – Conspiracy against rights.
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—
They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.
This statute was designed to allow prosecutions of civil rights violations where intimidation or violence was used to stop full participation of some groups in Constitutionally-protected rights. It has been successfully used when violence stops use of public accommodations which could include roads and highways.
January 6th Riot — This stemmed from a political rally that was clearly protected speech. The violent actions that followed were not planned and consequently should be treated as simple crimes. Those who committed violent acts should be charged under relevant criminal statutes. The numerous charges of impeding an official proceeding are unwarranted and should be amended to trespassing.
This does not meet the criteria for: Insurrection, Domestic Terrorism, or Conspiracy Against Rights.
Black Lives Matter and Antifa (George Floyd Riots) — These began as clearly protected political speech that led to violence that spread quickly. Had this been a one-time event it would not have met the criteria for any of the three designations. However, when the protests continued and the violence was essentially incorporated into them this changed matters.
BLM/Antifa used the violence and threats of violence to extract concessions and changes of policy from numerous governments. They also intimidated civilians across the United States. Just because the majority of the protests were not violent does not change the fact that planners of events in major cities included those who conducted violent attacks.
In addition, BLM/Antifa specifically planned and executed events designed to block roadways and highways and threaten and intimidate persons exercising rights guaranteed them under law. They also injured numerous persons during these actions.
These factors meet the criteria for: Domestic Terrorism and Conspiracy Against Rights.
Black Lives Matter and Antifa (CHAZ/CHOP Occupation)— During the 2020 riots there was a violent seizure of a six-block area of Seattle where a government building was taken by force. The combined BLM/Antifa militants declared it free of U.S jurisdiction and they created a quasi-government for several weeks. They called this the Capitol Hill Autonomous Zone (CHAZ) or the Capitol Hill Organized Protest (CHOP).
They opposed by force the authority of the United States, state and local government and by force prevented, hindered, and delayed the execution of the laws of the United States.
These factors meet the criteria for: Insurrection and Conspiracy Against Rights.
Unequal Treatment— The charges including Conspiracy against participants in the Jan. 6th Riot are significantly more severe than those for the 2020 BLM/Antifa Riots. Even the FBI now admits it has “scant evidence” of any conspiracy to commit violence on January 6th at all. This appears to show a biased and unequal application of prosecutorial discretion based on the political persuasion of the groups and individuals involved.