Building an effective 9/11 commission for the Capitol riots

Now that the impeachment is over, the question is: what next? 

Some will say we should move on. But we cannot move on without a reckoning. This reckoning must determine the failures that led to the Capitol riot, prevent future crises and facilitate national reconciliation.

Speaker Nancy Pelosi has championed a “9/11-type commission” to investigate the Capitol riot. Her recommendation is correct, but her reasons are not. Pelosi told members of Congress that the issue is “about you.” She told them it is necessary to address “your safety as you serve in Congress, your safety in your district and your safety when traveling to and from Washington.”

Pelosi is wrong, because the issue is not just about Congress. It is about all Americans. The problem at hand is not only what Pelosi called “serious and ongoing security threats facing members” of Congress. The Capitol riot was also a law enforcement breakdown, an act of domestic terrorism according to President Biden and a wakeup call about anti-Semitic and racist hate groups. 

Some will argue that the next step should be the courts. But I believe courts are not built for this. A Biden Justice Department investigation would smell of political bias. Trump’s legal challenges in different states, already underway, will not address the fundamental policy issues that a commission can resolve.

Others will urge congressional investigations. Congressmen are already bickering over committee jurisdiction and personnel. A Democratic senator has charged that three Republican senators “need to be off all relevant committees reviewing this matter” due to what he calls their “massive potential conflict of interest.” Republicans will probably counter charge that Democratic senators are themselves biased. Partisan disputes, while endemic to parliamentary bodies, are antithetical to the needs of fair investigation.

A proper reckoning will succeed only if it provides complete transparency, develops comprehensive solutions, garners widespread support and enjoys unquestioned legitimacy. An effective investigation must not be swayed by the considerations which properly drive politically-elected officials or the limitations which necessarily constrain state and federal courts. Such investigations are the work of commissioners, not congressmen or courts. 

Lawmakers from both parties have introduced bills to create one based on the 9/11 commission. A successful commission must have a broad mandate, a bipartisan membership and a threefold emphasis. Specifically, it must address the riot’s character as a breakdown of law enforcement, a failure of antiterrorism efforts and a resurgence of fringe hate groups.

First, the commission must examine the systemic breakdowns that permitted a mob to breach Capitol defenses and overwhelm Capitol Police. They will need to explore, for example, whether Mayor Muriel Bowser urged federal agencies on Jan. 5 not to send additional forces. By some reports, Bowser wished to avoid the heavy law enforcement footprint that some believe inflamed protest situations last year. Similarly, commissioners should examine why Capitol Police declined offers of National Guard assistance. At a time when some urge defunding police departments, the commission must address whether law enforcement must instead be strengthened.

Second, the commission must consider whether antiterrorism networks designed to defend against attacks from abroad are capable of preventing future incidents of domestic extremism. This remains one of America’s most serious threats. Commissioners should explore the Department of Homeland Security’s failure to produce analytical products to predict and prevent what happened on Jan. 6. Commissioners must understand and fix the structural limitations that prevented intelligence and anti-terrorist experts from coordinating adequate prevention and response.

Third, the commission must examine evidence of planning and collaboration among far-right organizations such as the Proud Boys — which was recently declared a terrorist organization by Canada —Three Percenters and Oath Keepers. It is important to protect the constitutional right of all groups to espouse dissenting political perspectives, even if extreme; but it is no less critical to ensure that such views are not expressed through violence. In particular, the commission must explore the coordination of groups displaying notorious symbols of hate: Confederate flags, the white nationalist “Kekistan” flag, and a “Camp Auschwitz” shirt. Commissioners should determine whether action is required to prevent further violence aimed at racial minorities or religious institutions.

In short, Congress must avoid two opposite mistakes. On the one hand, it must avoid pressures to politicize the riot, use it to partisan advantage, or examine only narrow aspects of interlocking problems. On the other, it must avoid the urge to move on prematurely before we have learned the lessons that the crisis has to give. 

If cool heads prevail, we will use this opportunity to address serious challenges facing law enforcement, antiterrorism policy and civil rights.

Kenneth L. Marcus chairs The Louis D. Brandeis Center for Human Rights Under Law. He served in the Trump administration as assistant secretary of Education for Civil Rights and is a former staff director of the U.S. Commission on Civil Rights.