The action would permit the surveillance of Americans in the absence of probable cause.
The action would permit the surveillance of Americans in the absence of probable cause.
A ccording to President Trump and his most ardent supporters, he is a “disruptor” here to shake up established Washington ways. Nevertheless, in announcing that he will “designate” Antifa, the far-left radical movement, as a terrorist organization, he is pulling a page from the Swamp’s playbook. It is political rhetoric portrayed as legally significant action to bring to heel an array of sociopaths that, to be sure, are playing their now familiar instigator’s role in the rioting that roils American cities.
The purported designation would be pointless, in that the means of taking aggressive enforcement action against Antifa, and against domestic terrorism generally, are plentiful and ready to hand. The president’s move would also be legally invalid because, under federal law and for very sound reasons, designation is available only for foreign terrorist organizations.
Antifa is a domestic enterprise. The name “Antifa” has a European pedigree, going back to the self-described anti-fascist movements of the radical Left, beginning in the 1920s. And there are some overseas groups that also use the name. To the extent, however, that Antifa has a relevant identifiable existence as an entity promoting seditionist violence in the United States, it is as a loosely knit, interstate American group (as much as Antifa itself would be repulsed at the thought of being part of AmeriKKKa and fancies itself as an agent of global anarchism).
As the New York Times has reported, Antifa is organized in local autonomous cells around the country. Though it is said to lack “official” leaders, it does have operatives who move across the country making mayhem. More significantly for present purposes, on Sunday (the same day the president’s imminent designation of Antifa was announced), the Trump Justice Department branded Antifa a domestic terrorist group. As Attorney General Bill Barr’s press statement put it, “the violence instigated and carried out by Antifa and other similar groups in connection with the rioting is domestic terrorism and will be treated accordingly.”
Federal counterterrorism law provides for the designation only of foreign terrorist organizations. It criminalizes material support to designated foreign terrorist organizations. The distinction between foreign and domestic terrorism has an important history.
There is no need to designate a domestic insurrectionist group as a terrorist organization, because there is an extensive panoply of laws, at the state and federal level, by which such groups can be investigated, prosecuted, and otherwise thwarted.
To take an easy example, in 1993, I led the prosecution of the U.S.-based jihadist cell run by the so-called Blind Sheikh (the late Omar Abdel Rahman), which carried out the World Trade Center bombing and was plotting other ambitious attacks in the New York metropolitan area. Concededly, though these terrorists operated domestically, they had ties to foreign terrorist organizations. This was of no moment, though, because the law that enabled the process of designating foreign terrorist organizations was not enacted until 1996.
The lack of a designation process did not matter a whit. Because the jihadists’ plotting and attacks took place on U.S. soil, the full scope of U.S. law applied to all their activities. We indicted them as terrorists (under the seditious-conspiracy statute that criminalizes conspiracies to levy war against the United States). They were convicted and sentenced as terrorists.
By contrast, foreign terrorist organizations operate, for the most part, outside the jurisdiction of American law-enforcement agencies and beyond the writ of the federal courts. The designation process was essentially an effort by Congress to impose some American jurisdiction and legal consequences on foreign actors. The designation, for example, makes alien members of a foreign terrorist organization inadmissible to enter the U.S., and it facilitates their removal. It enables the Treasury Department to freeze assets of foreign groups and block their financial transactions. It signals to the governments of the countries in which these foreign terrorist organizations operate that the United States regards the group they are hosting as hostile; the foreign government knows it must either deal with the problem or resign itself to the possibility that we will take forcible action.
None of this is necessary when a terrorist organization is domestic.
But what about the federal law barring material support to terrorist organizations? Wouldn’t it be useful to apply that to domestic terrorists? Yes . . . that’s why it already does apply. Our criminal law has two material-support provisions. One (Section 2339B), as already noted, makes it a crime to contribute resources to a designated foreign terrorist organization. But the other (Section 2339A) makes it a crime to give material support to terrorists — foreign or domestic. It does this by barring contributions of resources to various specified activities (e.g., bombing, attacking government officials) that are commonly associated with terrorism. A third law (Section 2339C) criminalizes the financing of terrorism. Again, there is no need for a formal terrorist designation; it is the terrorist conduct that matters.
Finally, the foreign–domestic distinction has a salient history — one that should resonate today, as we continue learning about investigative abuses in the Trump–Russia probe.
There were major spying scandals in the United States, beginning in the late 1960s, that involved the use against American citizens of national-security surveillance powers that are supposed to target agents of foreign powers. Unavoidably, politically motivated violence is bound up with constitutionally protected political dissent. Alien terrorists, especially those operating principally outside the U.S., have no constitutionally protected interests in seeking to overthrow or radically alter our constitutional system. Consequently, applying intelligence-gathering authorities to foreign persons and entities generally does not pose constitutional problems. By contrast, applying them to Americans inevitably results in the monitoring of constitutionally protected activity — including the activity of Americans who, though they may bitterly oppose our government or our society, protest peacefully and lawfully.
Thus, the line we draw in the investigation of Americans is at violence and lawbreaking. In fact, even though FISA (the Foreign Intelligence Surveillance Act) permits the court to issue surveillance warrants if the FBI shows probable cause to believe a person inside the United States is acting as an agent of a foreign power, the standard is different depending on whether the target is an American or an alien. If the government wants to monitor Americans, it must show not only that they are being directed by a foreign power but also that their activity appears to involve violations of federal criminal statutes.
Interestingly, President Trump and his supporters, who rightly complain about the abusive surveillance of the 2016 Trump presidential campaign, have recently argued that FISA must be reformed to make it more difficult, if not illegal, to subject Americans to national-security surveillance. They insist that, unless the FBI can show probable cause that Americans are guilty of crimes, the government should leave Americans alone.
Yet now, many of the very same Trump supporters want to designate a domestic group as a terrorist organization. Since we already have a slew of criminal laws for investigating terrorists, the only point of such a designation would be to permit the surveillance of Americans in the absence of probable cause that they have committed crimes. But that’s the very abuse these Trump supporters claim to find objectionable about FISA. Pardon me, but I’m confused.
We should absolutely treat Antifa as a terrorist organization. Some (mainly) anti-Trump commentators claim that Antifa is too amorphous to be regarded as an “organization.” That is specious. Our law does not require conspiracies and racketeering enterprises to be regimentally organized and hierarchical. Loosely knit groups that scheme to carry out violent criminal objectives qualify for enforcement action.
We can investigate Antifa as terrorists, prosecute them as terrorists, sentence them as terrorists, and give them harsh prison sentences befitting terrorists. But there is neither a need nor a legal basis to “designate” them as terrorists.