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US: Impeachment Not Enough

Justice Essential for Post-Election Rights Violations

People shelter in the House gallery as protesters try to break into the House Chamber at the US Capitol on Wednesday, Jan. 6, 2021, in Washington, DC.  © 2021 AP Photo/Andrew Harnik

(Washington, DC) – United States authorities should thoroughly investigate all rights abuses committed during efforts to overturn the November 3, 2020 US presidential election and culminating in the January 6, 2021 attack on the Capitol building in Washington, DC, Human Rights Watch said today.

In addition to the impeachment trial of former US President Donald Trump, slated to begin on February 9, the government should vigorously pursue criminal investigations into related events, hold those responsible to account, and ensure that abuses are not repeated.

“Impeachment may be one form of political accountability for Trump’s actions, but it is not enough,” said Nicole Austin-Hillery, US Program executive director at Human Rights Watch. “It neither covers all the people involved nor all of the abuses and crimes that occurred between the presidential election and the attack on the Capitol.”

Trump and many others – including members of his administration, Congress, and law enforcement – engaged in extensive efforts to overturn the will of the people as expressed in the November 3 election, infringing on all Americans’ right to vote and to have their vote respected, Human Rights Watch said. These efforts also led to violations of the rights to life and security of person, and infringed on the right to be free from discrimination. Federal and state authorities have an obligation to conduct thorough and effective criminal investigations of these events and ensure accountability for them.

The Justice Department’s inspector general has opened an investigation, and Senate Judiciary Committee members have signaled their own intention to investigate allegations of attempted interference by Trump and others in the election outcome, including with the right to vote. Federal and state authorities should investigate possible criminal law violations, including Trump’s multiple demands of state officials to alter the election results in Georgia, Human Rights Watch said.

The Federal Bureau of Investigation (FBI) has opened a criminal investigation, and charges have been brought against more than 175 people in connection with the attack on the Capitol, which led to deaths and injuries of security personnel. The Defense Department, DC Capitol Police, and the US House of Representatives also have opened investigations into law enforcement responses to the attack. These investigations should be broad in scope, focusing not only on the individuals who stormed the Capitol, but also those who may have colluded with or assisted them by action or omission, including officials’ failure to prepare for or respond effectively to the attack, Human Rights Watch said.

“The investigations underway show that the US government is taking some initial steps toward restoring respect for human rights in the United States,” said Austin-Hillery. “President Biden will need to make accountability for abuses of political rights, including the attack on the Capitol, a priority if he wants his word on democratic values to carry weight domestically and abroad.”

Given the participation of white supremacists and others on the extreme-right in the human rights violations between November 3 and January 6, the US government should address violent extremism in its response. Irrespective of a person’s opinion, acting on beliefs in ways that threaten or do violence to others is unlawful, including such actions as those involved in storming the Capitol or encouraging others to do so. Government failure to protect against foreseeable violence, including when prompted by extremist views, violates international human rights law.

“The violence on January 6 was foreseeable, including by people linked to extreme-right beliefs like white supremacy,” Austin-Hillery said. “The US government can and should address all forms of violent extremism that threaten public safety, including from the extreme right.”

US authorities should also investigate the overly militarized and violent responses to Black and allied activists protesting for racial justice over the summer of 2020, including in Washington, DC. The brutal crackdown on these protests contrasts starkly with the lack of preparation and inadequate response to the predictable attack on the Capitol by white supremacists, conspiracy theorists, and members of self-styled anti-government militias, made up primarily of white people. The difference in the responses requires close examination in the context of pervasive racial discrimination by US law enforcement agencies and frequent racist comments by Trump and members of his administration, Human Rights Watch said.

“Congress and the Biden administration should ensure that violent extremists don’t feel they can act with impunity because they are white or often enjoy support from law enforcement, and that no government official can elude accountability for unlawfully trying to subvert the election results,” Austin-Hillery said. “If violations of basic political rights, including the right to be free from racial discrimination, carry no consequence in the United States, then the door is wide open for future violence and abuse.”

For additional analysis, see below.

Violations of the Right to Vote

The bloody January 6 attack on the US Capitol by Trump supporters, was the culmination of months-long efforts by Trump and others to overturn the outcome of the free and fair elections on November 3. Five people died during the attack, including one police officer; and at least 140 police officers were injured. These efforts violated the international human right to vote, which encompasses the principle that the basis for government authority should be the “will of the people” as ascertained through genuine periodic elections.

While disenfranchisement and voter suppression have been human rights problems in the United States for decades, elected officials and their supporters took unprecedented steps to interfere with the right to vote in the 2020 US election cycle. Trump’s aggressive campaign to promote false allegations of voter fraud, echoed by many officials in his administration and Republican members of Congress, among others, signaled these officials’ total disregard for the human right to vote and their willingness to flout the US democratic system of governance.

Many members of the mob that attacked the Capitol did so with a specific goal: to stop Congress from certifying the results of the presidential election, a formal but necessary step to then-President-elect Biden’s inauguration the following week. Republican Senate leadership disagreed with objections to the certification raised by Trump and Republican members of Congress, angering Trump and his supporters. At a January 6 rally at the park near the White House called the Ellipse, Trump and other speakers repeatedly called on Republican lawmakers and Vice President Mike Pence to stop the certification.

The attempt to stop the certification followed months of failed efforts by Trump and his supporters to overturn the election outcome, using legal means such as lawsuits and demands for recounts, and apparently illegal means, such as Trump’s phone calls to high-level officials in Georgia demanding they change election results. Trump supporters were organizing protests and, in some cases, threatening violence toward election officials, speaking about an apocalyptic “civil war,” and engaging in violent acts.

For example, in December, Trump supporters ripped and set fire to Black Lives Matter signs at two Black churches in Washington, DC, and engaged in violence that resulted in 33 people being charged with assault, weapons violations, resisting arrest, and disorderly conduct. Trump did not take steps to quell the danger, even as his rhetoric and claims of voter fraud inspired his followers’ actions. Most Republican officials remained silent as threats escalated, or they expressed support for Trump’s claims.

Accountability for Violations of the Right to Vote

The right to vote is provided for in article 25 of the International Covenant on Civil and Political Rights (ICCPR), which the United States ratified in 1992. This right encompasses the principle recognized in the Universal Declaration of Human Rights, that the “will of the people” as ascertained in genuine elections should be the basis for government. Violations of the right to vote require an effective remedy; in this case, that means there should be a full investigation and accountability.

The Justice Department’s inspector general has begun an investigation into whether any department officials tried to improperly influence the election outcome. In addition, members of the Senate Judiciary Committee asked Justice Department officials to preserve records related to allegations that Trump used his position to influence election results.

Investigations should also cover the full scope of alleged violations, including Trump’s repeated requests to high-level officials in Georgia to interfere with the election results, and “find” 11,000-plus votes. Multiple provisions of US, District of Columbia, and Georgia criminal law may be applicable to these events. Congressional investigation of these events through the impeachment proceedings against Trump, scheduled to begin on February 9, and under the 14th Amendment of the US Constitution for some former and current members of the US Congress, can also further political accountability.

The failure to bring to justice those responsible for human rights violations can itself be a breach of international law. Impunity for violations is a serious human rights concern that may contribute to their recurrence.

Violations of Rights to Life and Security of Person

Law enforcement, especially leadership within the Capitol Police, House and Senate security, the Defense Department, and possibly other federal agencies; as well as senior US officials, including Trump, failed to meet their obligations under international human rights law to protect the rights to life and security of person of lawmakers and others from a foreseeable attack on the Capitol on January 6.

Once the attack was underway, law enforcement officials were able to move lawmakers and staff to safety. But law enforcement leadership failed to adequately prepare for a foreseeable threat. During the attack five people died, including one police officer, Brian Sicknick; one woman who was trampled; and another woman who was shot by law enforcement. Eighty-one Capitol police officers and about 65 DC police officers were injured.

The January 6 Attack Was Foreseeable and Fueled by Trump’s Statements

Leading up to January 6, there was significant information indicating a real risk of attack. At a December “Stop the Steal” rally in Washington, DC, members of the Proud Boys and other militant Trump supporters engaged in vandalism and violent confrontations with counter-protesters. Meanwhile, public officials associated with Trump also spoke openly about civil war, urged Trump to declare martial law, and advocated the use of violent actions to maintain power. Prior to the January 6 attack, pro-Trump social media was filled with talk of a coming apocalyptic war.

In the weeks before the Capitol attack, accessible social media associated with QAnon conspiracists and other extremist movements gave ample warning of a Capitol attack. Intelligence assessments by the FBI and New York Police Department reported plans for violence at the Capitol, including communications telling Trump supporters to “Go there ready for war. We get our President or we die. Nothing else will achieve this goal.”

At the January 6 rally at the Ellipse, immediately preceding the attack on the Capitol, Trump and other speakers used inflammatory rhetoric and lies that they either knew or should have known would encourage many in the crowd to take violent action. They repeatedly made false claims that Democrats had stolen the election, that democracy was under attack, and that they had to do something to stop it. Alabama Congressman Mo Brooks proclaimed that, “today is the day American patriots start taking down names and kicking ass.” Trump’s personal attorney, Rudolph Giuliani, repeating that the election was stolen, encouraged supporters to “fight to the very end,” and exhorted “trial by combat.”

Trump said the crowd would be “marching over to the Capitol.” He told them to “peacefully and patriotically make your voices heard,” to “show strength” and “you’ll never take back our country with weakness.” After Trump’s exhortations, thousands tore down the inadequate fencing, and pushed past Capitol Police officers to enter the Capitol building.

There is evidence that many, though not all, within the crowd intended violence. Many carried weapons, including stun guns, crossbows, and chemical sprays that were used on police officers. Some of the attackers, including a retired Air Force colonel, carried flex-cuff restraints, suggesting an intent to take hostages. Police found bombs near the Capitol, raising questions about plans to inflict more violence.

The attackers were shown on video from the scene chanting, “Hang Mike Pence.” Some had erected gallows outside the Capitol building. Videos and news reports indicate that the attackers came very close to reaching Pence and that one left a threatening note on his desk. The attackers also targeted other Republican and Democratic lawmakers who refused to reject certification.

Inadequate Preparation for and Response to the Violence

On January 3, Capitol police generated an intelligence report predicting the attack. The “Stop the Steal” rally’s “propensity to attract white supremacists, militia members and others who actively promote violence, may lead to a significantly dangerous situation for law enforcement and the general public alike,” the report read.

Capitol police planned to deploy a routine daily force, around 1,400 officers, on January 6, the Washington Post reported. They requested DC National Guard support, but the 340 troops deployed were unarmed and mostly assigned to traffic and crowd control. The head of the Capitol Police said he asked for more national guard forces from House and Senate Sergeants-at-Arms, who had the authority to make such a request, but both refused, Roll Call reported. Further, the Pentagon removed the authority to rapidly mobilize troops from the DC National Guard commander, delaying their response.

Once the attack was underway, officials, including DC Mayor Muriel Bowser, the Capitol Police, and the DC Metropolitan Police, requested national guard back-up, requiring approval from the US Defense Department. The additional troops did not arrive to establish a secure perimeter around the Capitol until three hours later. Maryland’s Republican governor, Larry Hogan, said that federal officials repeatedly denied authorization when he offered to deploy his state’s national guard. Media reports indicate that officials responsible for House and Senate security, as well as Defense Department officials, delayed deployment. Defense Department officials said that Vice President Pence, not Trump, gave the order to deploy the DC National Guard. Some reports indicate that Trump refused to issue the order.

On January 26, acting Capitol Police Chief Yogananda Pittman stated that by January 4, the Defense Department “knew that militia groups and white supremacist organizations would be attending,” that “there was a strong potential for violence and that Congress was the target,” and that the department “should have been more prepared for this attack.”

Whether the lack of preparation and of an adequate response by each decisionmaker involved reflects incompetence, indifference to the threat, threat minimization due to bias, deliberate indifference, or complicity has yet to be established.

Law Enforcement and Military Involvement in the Capitol Attack

Many officers risked their lives to resist the Capitol attack, including one who was killed and 140 more who were injured. Yet there is also evidence that individual Capitol police officers were sympathetic with the attackers, and possibly complicit. Two officers have been suspended for their behavior during the attack and disciplinary investigations are ongoing concerning approximately 17 others, though Capitol Police have not disclosed the nature of the conduct under investigation.

Media investigations have also revealed that current and former law enforcement members had strong representation at the rally, and several were among those who entered the Capitol. Two Rocky Mount, Virginia police officers sent a photo of themselves inside the Capitol to others in their department, and have been criminally charged. One claimed that Capitol officers opened the door for him and gave him water. Additionally, military veterans and some active-duty military personnel were among the crowd that stormed the Capitol. As of January 21, one in five of the people charged in the attack had a connection to the military.

Failure to Protect from Foreseeable Harm by Violent Extremists, Including White Supremacists

The title of the January 6 rally was “Save America,” and the rhetoric of the stolen election, as with many of Trump’s communications to his supporters, appealed to racist resentment. Just as Trump’s “law and order” campaign stoked fear of racial justice protestors, his challenge to the legitimacy of votes, especially from predominantly Black cities in contested states like Georgia, Pennsylvania, Wisconsin, and Michigan, stoked fears among many white people that changing US demographics were eroding their political dominance. Trump’s presidency, rhetorically and in policy, was largely grounded in white supremacy.

While the January 6 rally was not violent, it included
large contingents of people supporting or part of extreme-right, racist, conspiracist, or apocalyptically minded movements and ideologies; many of them overlapping or violent. Among those linked to past violence, including at Black Lives Matter protests, were the anti-immigrant, self-described “pro-Western chauvinist” Proud Boys, and self-styled, anti-government militias with current and former military and law enforcement members like the 3 Percenters and Oath Keepers. Others included anti-Semitic, anti-LGBT conspiracy theorists from QAnon, and extreme-right white Christian nationalists.

Many of the people arrested so far for storming the Capitol building are members or supporters of one or more of these movements or ideologies. The FBI alleges that members of the Oath Keepers had planned their role in the attack and intended to harm lawmakers; and the Department of Justice has filed conspiracy and other charges against two members of the Proud Boys. Attackers displayed obvious symbols of white supremacy, including Nazi paraphernalia and the Confederate flag, inside the Capitol building.

While active, off-duty or former law enforcement and military personnel have been charged and are under investigation in the Capitol attack, the degree to which they were also violent extremists, including white supremacists, has yet to be determined. Many police forces across the United States have substantial connections to white supremacist organizations and ideologies. Studies also indicate rising expressions of white nationalism in the military.

While President Biden has asked his national security staff for a “threat assessment” on US-based violent extremism, comprehensive investigations are also needed to expose and address the white supremacist ideology that motivates much of the movement behind the January 6 attack.

Accountability for Violations of the Right to Life and to Personal Security

The right to personal security is provided in article 9 of the ICCPR. The United Nations Human Rights Committee, which is tasked with interpreting the covenant, says that this right “obliges States parties to [the ICCPR] to take appropriate measures in response to death threats against persons in the public sphere, and more generally to protect individuals from foreseeable threats to life or bodily integrity proceeding from any governmental or private actors. States parties must take both measures to prevent future injury and retrospective measures, such as enforcement of criminal laws, in response to past injury.”

As with the right to vote, violations of the right to personal security require full and prompt investigations and steps to hold those responsible to account, as well as reparations when appropriate. The FBI has begun a criminal investigation into the conduct of rioters who stormed the Capitol building. Federal criminal charges had been brought against 172 individuals. Investigations also have been opened by the Department of Defense, the DC Capitol Police, and the US House of Representatives into the failure to prepare and inadequate response. The acting US attorney for the District of Columbia, Michael Sherwin, is investigating “seditious conspiracy” charges. Multiple other agencies are also investigating such potential charges, including against some members of Congress.

The United States should investigate and hold accountable, including through criminal prosecutions, not only all those involved directly in the attack, but also those who may have been complicit in them by their actions or failure to act; including law enforcement officers, members of the military, and senior US officials.

The government’s obligation to protect against foreseeable harm stemming from violent extremism requires stepped-up efforts to break law enforcement or military ties to white supremacist or other right-wing extremist groups. As the FBI has stated previously, “the government can limit the employment opportunities of group members who hold sensitive public sector jobs, including jobs within law enforcement, when their memberships would interfere with their duties.”

Right to be Free from Racial Discrimination

In carrying out its obligation to protect against violence, the US government should treat everyone equally “without distinction as to race, colour, or national or ethnic origin,” according to article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination, which the United States ratified in 1994. Similar protections are enshrined in the ICCPR. Racial discrimination encompasses policies and practices that have discriminatory purposes or effects.

The failure of federal and local law enforcement, including Capitol police, as well as Trump and members of his administration, to protect rights during the Capitol attack contrasts starkly with their overly militarized and violent response to racial justice protesters.

Over the summer of 2020, when people throughout the country protested for racial justice, multiple police departments, including at the Capitol in Washington, DC, responded with massive deployments of riot-prepared officers, the national guard, and other federal agencies, including using excessive tactics, and taking violent actions toward protesters. By contrast, the crowd that breached the Capitol on January 6 appeared emboldened to attack unprepared and under-deployed police officers. Most of the attackers were allowed to leave without being arrested, searched, questioned, or even identified.

In light of this contrast, US authorities should also investigate the overly harsh federal response to the racial justice protests over the summer of 2020.

The contrast is an example of the different standards that US law enforcement routinely applies toward Black and white people, and may represent violations of the right to be protected against racial discrimination in policing in purpose or effect. It underscores the importance of addressing longstanding racial discrimination and the legacy of slavery in the United States, as well as a fundamental rethinking of the expansive role of police in US society.

Given the responsibilities and powers of law enforcement and the military, the government should ensure that the people it hires will respect equal rights and protect everyone from discrimination, and are not affiliated with violent extremist organizations. More broadly, given the role of law enforcement in structural racism, governments should reduce their reliance on law enforcement as a response to societal problems and as the sole response to public safety concerns.

What US Authorities Should Do to Address US-based Violent Extremism

Federal and state law enforcement agencies’ resource allocation and congressional oversight should appropriately prioritize white supremacist and other far-right movements. This requires a revision of the dangerous US government trend of paying far less attention to threats from the extreme-right than from Islamist armed extremists or other extremist strands. While the threat from groups such as Al-Qaeda and the Islamic State remains, the majority of violent extremist plots and attacks in the United States since 1994 have been linked to US-based, extreme-right individuals and movements. In October 2020, the Department of Homeland Security (DHS) warned that US-based violent extremism, particularly white supremacists and anti-government movements, “remain the most persistent and lethal threat” to national security and might target the election process.

US agencies including the FBI and DHS, as well as local police forces, have disproportionately targeted Muslims in the US through surveillance, raids, and prosecutions, prompting credible allegations of entrapment. Since at least 2018, the FBI has adopted a terrorist threat category for “racially motivated” violent extremism that appears to exclusively refer to what the agency calls “black identity extremists.”

Outrage over the Capitol attack is increasing support for a “domestic terrorism” bill that would greatly expand policing and surveillance powers. However, such a law would be a mistake; it is both unnecessary and dangerous, potentially violating activists’ rights to privacy, freedom of speech and assembly. Law enforcement had warning and ample tools to prevent the Capitol attack, but essentially chose not to heed or use them. Additional powers would not change these failings. Rather, they could enable further abuses by some in law enforcement who have proven that they are all too willing to direct their repressive powers against perceived enemies, most recently, Black and allied activists.

Many police officers acted bravely on January 6, but law enforcement overall, especially leadership, did not defend democracy. They failed to counter a mob motivated in large part by white supremacist ideology to subvert the democratic process. Giving more power to police will not strengthen democratic institutions or heal divisions. Instead, a full reimagining of policing in the United States in tandem with robust accountability for efforts to overturn the election outcome culminating in the Capitol attack, including those who instigated both, will protect democracy and human rights.

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