The violent radical leftist group that goes by the Orwellian name “Antifa” (anti-fascist) “is thuggish in its tactics and totalitarian in its sensibility,” as Rich Lowry forcefully put it in a column on Tuesday. It also engages in terrorism. The eye-test leaves no doubt about that.
Neither does federal law. Section 2331(5) of the U.S. penal code defines domestic terrorism as activities that occur primarily within the United States; that “involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State”; and that “appear to be intended” to accomplish at least one of the following three objectives:
(i) to intimidate or coerce a civilian population;
(ii) to influence a state or federal government policy by intimidation or coercion; or
(iii) to affect such a government’s conduct by “mass destruction, assassination, or kidnapping.”
Antifa arguably intends all three.
No surprise, then, are the increasing calls that this — what to call it: movement? cabal? conspiracy? enterprise? network? — should be “designated” (or “labeled”) a terrorist organization. This is an understandable reaction, especially here on the political right, which Antifa targets. Still, the suggestion is misguided.
While domestic terrorism is defined in federal law, it is not criminalized as such — unlike international terrorism. Nor, significantly, does federal law prescribe a formal designation process for domestic terrorist organizations, as it does for foreign terrorist organizations. There are very good reasons for this, several of which I outlined in an NRO column during the Charlottesville mayhem.
There are federal-law processes for designating foreign and international terrorism because defending against foreign threats to national security is primarily a federal responsibility. The foreign-terrorist designation process helps the United States to deter and punish activities over which we might otherwise have no jurisdiction — including activities that occur completely or primarily outside U.S. territory (e.g., the 1998 bombings of U.S. embassies in East Africa and the 2000 bombing of a naval destroyer in Yemen). This is not something the states can effectively address. It makes international terrorism saliently different from domestic terrorism, the activities of which unquestionably violate a plethora of state laws.
The designation of foreign terrorist organizations exploits the fact that their operatives do not have the same degree of constitutional protection as American citizens. Much as we revile domestic terrorists, we do not want Americans — citizens, presumed innocent, fully protected by the Constitution — treated the same way, particularly when they are easily investigated, infiltrated, prosecuted, and imprisoned under domestic law, primarily state law.
For the most part, foreign terrorists are aliens. There is a smattering of U.S. nationals among them, but because foreign terrorist organizations are deemed foreign powers, Americans who act as their agents operate in an ambit of heightened federal national-security power.
The legal process of designating foreign actors as terrorists is designed to facilitate the surveillance of alien operatives. Unlike Americans suspected of crimes, these foreign agents may be subjected to eavesdropping and searches under the Foreign Intelligence Surveillance Act without showing probable cause of a crime. The designation of foreign terrorists and their facilitators further enables the government to track, freeze, and seize the assets of persons and entities suspected of foreign terror ties. In addition, once an organization is designated a foreign terrorist organization, it is a serious felony violation for any person to provide that organization with material support. There is no analogous crime of providing material support to domestic terrorism.
In the aforementioned column, I explained why we treat Americans differently:
Terrorism is often bound up with dissent against our country and our government’s policies. . . . When protest is internal, when it is engaged in by Americans against the government and other groups of Americans, it often involves constitutionally protected political speech and assembly. Moreover, our regard for the privacy interests of our fellow Americans — even those who have come to hold their own country in contempt — is considerably higher than it is for foreign actors, and that limits the degree of surveillance and other police intrusion we are willing to abide. After all, the Constitution is a guarantee of the inherent rights of Americans; it does not grant those rights, and therefore the government, in upholding the Constitution, does not get to pick and choose which Americans are protected.
When it comes to national security, then, we do not want the federal government investigating the constitutionally protected activities of Americans unless there are solid grounds to believe they are serving a foreign power (including a foreign or international terrorist organization). This is not just an airy theoretical position. There is a dark history of federal-government excess in investigations of sedition. Probes involving Communist penetration of our government and violent political radicalism in our streets have infamously resulted in domestic spying against innocent Americans who, however misguided their policy preferences may have been, were neither traitors nor insurrectionists.
Let’s put aside the civil-rights concerns for a moment. The principal effect of a formal, national designation process would be to federalize domestic anti-terrorism enforcement. That is a terrible idea.
We have approximately 35,000 police officers in New York City alone, but fewer than 14,000 FBI agents in the entire country.
From a law-enforcement perspective, the best protection we have against domestic terrorism is state, city, and municipal police. They are vastly more numerous than federal law-enforcement agents. (We have, for instance, approximately 35,000 police officers in New York City alone, but fewer than 14,000 FBI agents in the entire country.) The locals have more and often better intelligence sources at the street level, where domestic terrorism occurs, than their federal counterparts. Indeed, this is why the FBI invites robust local law-enforcement participation in its Joint Terrorism Task Forces, which are designed to combat both international and domestic terrorist operations on U.S. soil.
In the course of planning and carrying out their forcible intimidation, domestic terrorists commit many state crimes. These can be difficult for the feds to charge because they often lack a clear jurisdictional hook — e.g., some effect on interstate commerce. If domestic terrorism is going to be thwarted, local law-enforcement must be the point of the spear. This is not to say the feds do not have a role; in fact, they provide critical enforcement assistance, such as intelligence, interstate coordination, and prosecutions under RICO, civil-rights, and weapons-of-mass-destruction laws. If the feds nationalized domestic terrorism, however, it would deplete the sparse but essential resources necessary to combat international terrorism. State and local law enforcement would lack the jurisdiction to fill such a void.
Let’s close by getting back to the civil-rights concerns. I know this sounds crazy, but Donald Trump will not be president forever. In fact, he hasn’t been president that long . . . meaning, it was not so long ago that we were dealing with an Obama administration — and its media-Democrat pom-pom squads — that regarded limited-government conservatives, Second Amendment proponents, and many veterans returning from overseas military service as “right-wing extremists” who posed a threat of “domestic terrorism.” Someday, maybe sooner than we’d like to think, Democrats are going to be in power again. Do we really want to give them enhanced federal powers to harass ideological opponents under the guise of “designating” domestic terrorist threats?
Right this minute, in terms of confronting Antifa or any other domestic terrorist organization, we have a more robust array of state and federal law-enforcement powers than we have ever had. Moreover, coordination between federal and state law-enforcement and national-security officers is as good as it has ever been. All that is required to gut Antifa is the will to do it — the will to say, “Regardless of our disparate political views, we Americans draw the line at violent extortion that eviscerates our right to speak, assemble, and engage in constitutionally protected political activity.”
I’d humbly suggest we work on that, rather than wasting our energy on meaningless and potentially counterproductive theater like designating domestic terrorist organizations.