Rare Civil War-era sedition law gains interest after Capitol storm

A Civil War-era sedition law being dusted off for potential use in the mob attack on the US Capitol was last successfully deployed a quarter-century ago in the prosecution of Islamic militants who plotted to bomb New York City landmarks.

An Egyptian cleric, Sheikh Omar Abdel-Rahman, and nine followers were convicted in 1995 of seditious conspiracy and other charges in a plot to blow up the United Nations, the FBI's building, and two tunnels and a bridge linking New York and New Jersey.

Applications of the law making it a crime to conspire to overthrow or forcefully destroy the government of the United States have been scant. But its use is being considered against the mob that killed a police officer and rampaged through the US Capitol last week.

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Michael Sherwin, acting US attorney for DC, has said “all options are on the table,” including sedition charges, against the Capitol invaders.

“Certainly if you have an organized armed assault on the Capitol, or any government installation, it's absolutely a charge that can be brought,” said Andrew McCarthy, a former federal prosecutor who secured convictions at Abdel-Rahman's 1995 trial.

The challenge, he said, is whether prosecutors can prove people conspired to use force.

“In our case, conspiracy was a layup because of the nature of the terrorist cell we were targeting. In this case, can they show conspiratorial activity or was it one of these things that spontaneously combusted, which makes conspiracy harder to prove?” McCarthy said.

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Karen Greenberg, director of the Center on National Security at the Fordham University School of Law, said sedition charges in an attack against the center of US government are even more appropriate than in the New York bombing plot.

“Of course we should use it here. That's what this is, seditious conspiracy,” she said.

Prosecutors had scant evidence against Abdel-Rahman when they arrested him months after a bomb exploded in February 1993 at the World Trade Center, killing six people.

Then-Manhattan US Attorney Mary Jo White went to Washington to convince the FBI and Attorney General Janet Reno that Abdel-Rahman should be charged with seditious conspiracy, a law enacted after the Civil War to arrest Southerners who might keep fighting the US government.