Former FBI agent: ‘Major intelligence failure’ of US Capitol breach requires 9/11-style commission

Asha Rangappa: It’s hard for me to understand. Ordinary protests in the capital have more security than what this appeared to have. If you go back to, say, the Women’s March or the March for Science, things like that, which have no real expectation of turning significantly violent — and this one, there were signals in open forums that there was planned violence. And normally, this would result in a clear intelligence threat assessment. It would be shared among all of the internal agencies like the Department of Homeland Security, the FBI, sent to the Capitol Police. So, I think, basically, there was a major intelligence failure. And I think what’s going to need to happen is similar to what happened after 9/11. There is going to have to be a reconstruction of events and find out who dropped the ball and why.

They had to have. The director of the FBI, Christopher Wray, has testified multiple times in the last year to Congress that white nationalism, right-wing groups, were the greatest domestic terrorism threat. So, I can’t speculate. All I can tell you is that it doesn’t make sense. I don’t think it makes sense to anybody with any kind of intelligence or security background to understand what happened.

The FBI appears to have been waiting for the Capitol Police to request assistance. That is not clear when that happened — though that should have been coordinated beforehand. And then we do know that at the Department of Defense, they were denying explicit requests to call in National Guard assistance. Like I said, I think we’re in kind of the aftermath of 9/11. I think there should be a commission similar to what happened after 9/11, which really parsed through this over the course of a couple of years, basically, and was able to piece together how this occurred.

The whole thing failed. Yes. This was not solely the FBI’s responsibility. This was the FBI, this was Department of Homeland Security, the Capitol Police, the Department of Defense. This was the mayor of DC. And basically, this attempted coup failed.

And so, there are people, whoever they were, that were involved in either a negligent or intentional failure to secure the Capitol. They’re on the hook.

In terms of criminal liability, there are a couple of statutes. One is called rebellion and insurrection, and it criminalizes incitement of violence with the purpose of resisting the authority of the United States by force or impeding the functions thereof, which is clearly what was going on. And I think it’s not just the speech that he gave that day. His speech that he gave that day has to be seen in a longer pattern of encouraging violence, of endorsing violence, using words like civil war, not committing to a peaceful transition. “People will need to take matters into their own hands.” You know, he told them he was going to go with them to the Capitol and that they needed to show strength. And so, the criminal bar is a high one, that elements have to be met and it has to be convincing to a jury beyond a reasonable doubt.

That’s what he’s going to argue. But incitement is defined as anything that is likely to result in imminent lawless activity. In other words, if it’s foreseeable based on what you are doing and what you are saying, that this is the kind of fire in the crowded theater. This is the threshold at which speech becomes criminal.

What’s at stake is our democracy. This was a president of the United States who was unable to accept the outcome of a free and fair election and incited a mob to challenge the authority of the government — which he, by the way, leads — in order to stop it from functioning and to allow him to continue in power. If you don’t even create the documentation that that is unacceptable and will be punished, then you are essentially inviting future, would-be authoritarians to use the same playbook.