When a population is placed in a state of sufficiently grave fear and anger regarding a perceived threat, concerns about the constitutionality, legality and morality of measures adopted in the name of punishing the enemy typically disappear. The first priority, indeed the sole priority, is to crush the threat. Questions about the legality of actions ostensibly undertaken against the guilty parties are brushed aside as trivial annoyances at best, or, worse, castigated as efforts to sympathize with and protect those responsible for the danger. When a population is subsumed with pulsating fear and rage, there is little patience for seemingly abstract quibbles about legality or ethics. The craving for punishment, for vengeance, for protection, is visceral and thus easily drowns out cerebral or rational impediments to satiating those primal impulses.
The aftermath of the 9/11 attack provided a vivid illustration of that dynamic. The consensus view, which formed immediately, was that anything and everything possible should be done to crush the terrorists who — directly or indirectly — were responsible for that traumatic attack. The few dissenters who attempted to raise doubts about the legality or morality of proposed responses were easily dismissed and marginalized, when not ignored entirely. Typically, they were vilified with the accusation that their constitutional and legal objections were frauds: mere pretexts to conceal their sympathy and even support for the terrorists. It took at least a year or two after that attack for there to be any space for questions about the legality, constitutionality, and morality of the U.S. response to 9/11 to be entertained at all.
For many liberals and Democrats in the U.S., 1/6 is the equivalent of 9/11. One need not speculate about that. Many have said this explicitly. Some prominent Democrats in politics and media have even insisted that 1/6 was worse than 9/11.
Joe Biden's speechwriters, when preparing his script for his April address to the Joint Session of Congress, called the three-hour riot “the worst attack on our democracy since the Civil War.” Liberal icon Rep. Liz Cheney (R-WY), whose father's legacy was cemented by years of casting 9/11 as the most barbaric attack ever seen, now serves as Vice Chair of the 1/6 Committee; in that role, she proclaimed that the forces behind 1/6 represent “a threat America has never seen before.” The enabling resolution that created the Select Committee calls 1/6 “one of the darkest days of our democracy.” USA Today’s editor David Mastio published an op-ed whose sole point was a defense of the hysterical thesis from MSNBC analysts that 1/6 is at least as bad as 9/11 if not worse. S.V. Date, the White House correspondent for America's most nakedly partisan "news” outlet, The Huffington Post, published a series of tweets arguing that 1/6 was worse than 9/11 and that those behind it are more dangerous than Osama bin Laden and Al Qaeda ever were.
Trump Apology Corps in full apology mode.— S.V. Dáte (@svdate) May 25, 2021
The 9/11 terrorists and Osama bin Laden never threatened the heart of the American experiment.
The 1/6 terrorists and Donald Trump absolutely did exactly that. Trump continues that effort today. https://t.co/cDcOkXFeio
And ever since the pro-Trump crowd was dispersed at the Capitol after a few hours of protests and riots, the same repressive climate that arose after 9/11 has prevailed. Mainstream political and media sectors instantly consecrated the narrative, fully endorsed by the U.S. security state, that the United States was attacked on 1/6 by domestic terrorists bent on insurrection and a coup. They also claimed in unison that the ideology driving those right-wing domestic terrorists now poses the single most dangerous threat to the American homeland, a claim which the intelligence community was making even before 1/6 to argue for a new War on Terror (just as neocons wanted to invade and engineer regime change in Iraq prior to 9/11 and then exploited 9/11 to achieve that long-held goal).
With those extremist and alarming premises fully implanted, there has been little tolerance for questions about whether proposed responses for dealing with the 1/6 “domestic terrorists" and their incomparably dangerous ideology are excessive, illegal, unethical, or unconstitutional. Even before Joe Biden was inaugurated, his senior advisers made clear that one of their top priorities was to enact a bill from Rep. Adam Schiff (D-CA) — now a member of the Select Committee on 1/6 — to import the first War on Terror onto domestic soil. Even without enactment of a new law, there is no doubt that a second War on Terror, this one domestic, has begun and is growing, all in the name of the 1/6 "Insurrection" and with little dissent or even public debate.
Following the post-9/11 script, anyone voicing such concerns about responses to 1/6 is reflexively accused of minimizing the gravity of the Capitol riot and, worse, of harboring sympathy for the plotters and their insurrectionary cause. Questions or doubts about the proportionality or legality of government actions in the name of 1/6 are depicted as insincere, proof that those voicing such doubts are acting not in defense of constitutional or legal principles but out of clandestine camaraderie with the right-wing domestic terrorists and their evil cause.
When it comes to 1/6 and those who were at the Capitol, there is no middle ground. That playbook is not new. "Either you are with us, or you are with the terrorists" was the rigidly binary choice which President George W. Bush presented to Americans and the world when addressing Congress shortly after the 9/11 attack. With that framework in place, anything short of unquestioning support for the Bush/Cheney administration and all of its policies was, by definition, tantamount to providing aid and comfort to the terrorists and their allies. There was no middle ground, no third option, no such thing as ambivalence or reluctance: all of that uncertainty or doubt, insisted the new war president, was to be understood as standing with the terrorists.
The coercive and dissent-squashing power of that binary equation has proven irresistible ever since, spanning myriad political positions and cultural issues. Dr. Ibram X. Kendi's insistence that one either fully embrace what he regards as the program of "anti-racism” or be guilty by definition of supporting racism — that there is no middle ground, no space for neutrality, no room for ambivalence about any of the dogmatic planks — perfectly tracks this manipulative formula. As Dr. Kendi described the binary he seeks to impose: “what I'm trying to do with my work is to really get Americans to eliminate the concept of 'not racist’ from their vocabulary, and realize we're either being racist or anti-racist." Eight months after the 1/6 riot — despite the fact that the only people who died that day were Trump supporters and not anyone they killed — that same binary framework shapes our discourse, with a clear message delivered by those purporting to crush an insurrection and confront domestic terrorism. You're either with us, or with the 1/6 terrorists.
What makes this ongoing prohibition of dissent or even doubt so remarkable is that so many of the responses to 1/6 are precisely the legal and judicial policies that liberals have spent decades denouncing. Indeed, many of the defining post-1/6 policies are identical to those now retrospectively viewed as abusive and excessive, if not unconstitutional, when invoked as part of the first War on Terror. We are thus confronted with the surreal dynamic that policies long castigated in American liberalism — whether used generally in the criminal justice system or specifically in the name of avenging 9/11 and defeating Islamic extremism — are now off-limits from scrutiny or critique when employed in the name of avenging 1/6 and crushing the dangerous domestic ideology that fostered it.
Almost immediately after the Capitol riot, some of the most influential Democratic lawmakers — Senate Majority Leader Chuck Schumer (D-NY) and House Homeland Security Committee Chair Bennie Thompson (D-MS), who also now chairs the Select 1/6 Committee — demanded that any participants in the protest be placed on the no-fly list, long regarded as one of the most extreme civil liberties assaults from the first War on Terror. And at least some of the 1/6 protesters have been placed on that list: American citizens, convicted of no crime, prohibited from boarding commercial airplanes based on a vague and unproven assessment, from unseen and unaccountable security state bureaucrats, that they are too dangerous to fly. I reported extensively on the horrors and abuses of the no-fly list as part of the first War on Terror and do not recall a single liberal speaking in defense of that tactic. Yet now that this same brute instrument is being used against Trump supporters, there has not, to my knowledge, been a single prominent liberal raising objections to the resurrection of the no-fly list for American citizens who have been convicted of no crime.
With more than 600 people now charged in connection with the events of 1/6, not one person has been charged with conspiracy to overthrow the government, incite insurrection, conspiracy to commit murder or kidnapping of public officials, or any of the other fantastical claims that rained down on them from media narratives. No one has been charged with treason or sedition. Perhaps that is because, as Reuters reported in August, “the FBI has found scant evidence that the Jan. 6 attack on the U.S. Capitol was the result of an organized plot to overturn the presidential election result.” Yet these defendants are being treated as if they were guilty of these grave crimes of which nobody has been formally accused, with the exact type of prosecutorial and judicial overreach that criminal defense lawyers and justice reform advocates have long railed against.
Dozens of the 1/6 defendants have been denied bail, thus being imprisoned for months without having been found guilty of anything. Many are being held in unusually harsh and bizarrely cruel conditions, causing a federal judge on Wednesday to hold “the warden of the D.C. jail and director of the D.C. Department of Corrections in contempt of court,” and then calling on the Justice Department "to investigate whether the jail is violating the civil rights of dozens of detained Jan. 6 defendants.” Some of the pre-trial prison protocols have been so punitive that even Sen. Elizabeth Warren (D-MA) — who calls the 1/6 protesters "domestic terrorists” — denounced their treatment as abusive: “Solitary confinement is a form of punishment that is cruel and psychologically damaging,” Warren said, adding: “And we’re talking about people who haven’t been convicted of anything yet.” Warren also said she is "worried that law enforcement officials are deploying it to 'punish' the Jan. 6 defendants or to 'break them so that they will cooperate.”
The few 1/6 defendants who have thus far been sentenced after pleading guilty have been subjected to exceptionally punitive sentences, the kind liberal criminal justice reform advocates have been rightly denouncing for years. Several convicted of nothing more than trivial misdemeanors are being sentenced to real prison time; last week, Michigan's Robert Reeder pled guilty to “one count of parading, demonstrating or picketing in a Capitol building” yet received a jail term of 3 months, with the judge admitting that the motive was to “send a signal to the other participants in that riot… that they can expect to receive jail time.”
Meanwhile, long-controversial SWAT teams are being routinely deployed to arrest 1/6 suspects in their homes, and long-time liberal activists denouncing these tactics have suddenly decided they are appropriate for these Trump supporters. That prosecutors are notoriously overzealous in their demands for harsh prison time is a staple of liberal discourse, but now, an Obama-appointed judge has repeatedly doled out sentences to 1/6 defendants that are harsher and longer than those requested by DOJ prosecutors, to the applause of liberals. In sum, these defendants are subjected to one of the grossest violations of due process: they are being treated as if they are guilty of crimes — treason, sedition, insurrection, attempted murder, and kidnapping — which not even the DOJ has accused them of committing. And the fundamental precept of any healthy justice system — namely, punishment for citizens is merited only once they have been found guilty of crimes in a court of law — has been completely discarded.
Serious questions about FBI involvement in the 1/6 events linger. For months, Americans were subjected to a frightening media narrative that far-right groups had plotted to kidnap Michigan Gov. Gretchen Whitmer, only for proof to emerge that at least half of the conspirators, including its leaders, were working for or at the behest of the FBI. Regarding 1/6, the evidence has been clear for months, though largely confined to right-wing outlets, that the FBI had its tentacles in the three groups it claims were most responsible for the 1/6 protest: the Proud Boys, Oath Keepers, and the Three Percenters. Yet last month, The New York Times acknowledged that the FBI was directly communicating with one of its informants present at the Capitol, a member of the Proud Boys, while the riot unfolded, meaning “federal law enforcement had a far greater visibility into the assault on the Capitol, even as it was taking place, than was previously known.” All of this suggests that to the extent 1/6 had any advanced centralized planning, it was far closer to an FBI-induced plot than a centrally organized right-wing insurrection.
Despite this mountain of abuses, it is exceedingly rare to find anyone outside of conservative media and MAGA politics raising objections to any of this (which is what made Sen. Warren's denunciation of their pre-trial prison conditions so notable). The reason is obvious: just as was true in the aftermath of 9/11, people are petrified to express any dissent or even question what is being done to the alleged domestic terrorists for fear of standing accused of sympathizing with them and their ideology, an accusation that can be career-ending for many.
Many of the 1/6 defendants are impoverished and cannot afford lawyers, yet private-sector law firms who have active pro bono programs will not touch anyone or anything having to do with 1/6, while the ACLU is now little more than an arm of the Democratic Party and thus displays almost no interest in these systemic civil liberties assaults. And for many liberals — the ones who are barely able to contain their glee at watching people lose their jobs in the middle of a pandemic due to vaccine-hesitancy or who do not hide their joy that the unarmed Ashli Babbitt got what she deserved — their political adversaries these days are not just political adversaries but criminals and even terrorists, rendering no punishment too harsh or severe. For them, cruelty is not just acceptable; the cruelty is the point.
The Unconstitutionality of the 1/6 Committee
Civil liberties abuses of this type are common when the U.S. security state scares enough people into believing that the threat they face is so acute that normal constitutional safeguards must be disregarded. What is most definitely not common, and is arguably the greatest 1/6-related civil liberties abuse of them all, is the House of Representatives Select Committee to Investigate the January 6th Attack on the United States Capitol.
To say that the investigative acts of the 1/6 Committee are radical is a wild understatement. Along with serving subpoenas on four former Trump officials, they have also served subpoenas on eleven private citizens: people selected for interrogation precisely because they exercised their Constitutional right of free assembly by applying for and receiving a permit to hold a protest on January 6 opposing certification of the 2020 election.
When the Select 1/6 Committee recently boasted of these subpoenas in its press release, it made clear what methodology it used for selecting who it was targeting: “The committee used permit paperwork for the Jan. 6 rally to identify other individuals involved in organizing.” In other words, any citizen whose name appeared on permit applications to protest was targeted for that reason alone. The committee's stated goal is “to collect information from them and their associated entities on the planning, organization, and funding of those events": to haul citizens before Congress to interrogate them on their constitutionally protected right to assemble and protest and probe their political beliefs and associations:
Even worse are the so-called "preservation notices" which the committee secretly issued to dozens if not hundreds of telecoms, email and cell phone providers, and other social media platforms (including Twitter and Parler), ordering those companies to retain extremely invasive data regarding the communications and physical activities of more than 100 citizens, with the obvious intent to allow the committee to subpoena those documents. The communications and physical movement data sought by the committee begins in April, 2020 — nine months before the 1/6 riot. The committee refuses to make public the list of individuals it is targeting with these sweeping third-party subpoenas, but on the list are what CNN calls "many members of Congress," along with dozens of private citizens involved in obtaining the permit to protest and then promoting and planning the gathering on social media.
What makes these secret notices especially pernicious is that the committee requested that these companies not notify their customers that the committee has demanded the preservation of their data. The committee knows it lacks the power to impose a "gag order” on these companies to prevent them from notifying their users that they received the precursor to a subpoena: a power the FBI in conjunction with courts does have. So they are relying instead on "voluntary compliance" with the gag order request, accompanied by the thuggish threat that any companies refusing to voluntarily comply risk the public relations harm of appearing to be obstructing the committee's investigation and, worse, protecting the 1/6 “insurrectionists.”
Worse still, the committee in its preservation notices to these communications companies requested that “you do not disable, suspend, lock, cancel, or interrupt service to these subscribers or accounts solely due to this request,” and that they should first contact the committee “if you are not able or willing to respond to this request without alerting the subscribers." The motive here is obvious: if any of these companies risk the PR hit by refusing to conceal from their customers the fact that Congress is seeking to obtain their private data, they are instructed to contact the committee instead, so that the committee can withdraw the request. That way, none of the customers will ever be aware that the committee targeted their private data and will thus never be able to challenge the legality of the committee's acts in a court of law.
In other words, even the committee knows that its power to seek this information about private citizens lacks any convincing legal justification and, for that reason, wants to ensure that nobody has the ability to seek a judicial ruling on the legality of their actions. All of these behaviors raise serious civil liberties concerns, so much so that even left-liberal legal scholars and at least one civil liberties group (obviously not the ACLU) — petrified until now of creating any appearance that they are defending 1/6 protesters by objecting to civil liberties abuses — have begun very delicately to raise doubts and concerns about the committee's actions.
But the most serious constitutional problem is not the specific investigative acts of the committee but the very existence of the committee itself. There is ample reason to doubt the constitutionality of this committee's existence.
When crimes are committed in the United States, there are two branches of government — and only two — vested by the Constitution with the power to investigate criminal suspects and adjudicate guilt: the executive branch (through the FBI and DOJ) and the judiciary. Congress has no role to play in any of that, and for good and important reasons. The Constitution places limits on what the executive branch and judiciary can do when investigating suspects . . . . .