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Trump Can’t Designate Antifa — or Any Movement — Domestic Terrorist Organization

As some nationwide protests have turned violent, President Donald Trump pointed to the anti-fascist movement antifa, claiming: “The United States of America will be designating ANTIFA as a Terrorist Organization.” But there is no such official federal designation for domestic terrorism organizations.

Experts cited other reasons a designation — even if it were made possible — would be difficult or questionable. Antifa isn’t one organization but rather an umbrella term for far-left militant anti-fascism groups.

James J.F. Forest, professor in the University of Massachusetts Lowell’s School of Criminology and Justice Studies, told us in an email. “So, imagine the difficulty a prosecutor would face in a court of law ‘proving beyond a reasonable doubt’ an individual was a member of ANTIFA.”

As far as we know, antifa doesn’t have bank accounts or assets or infrastructure, Faiza Patel, director of the liberty & national security program at the Brennan Center for Justice, told us in an interview. Also there haven’t been any deaths attributed to anti-fascist violence, and one of the hallmarks of foreign terrorist organizations — a designation the U.S. government does make — is the acknowledgement of attacks that involve many fatalities.

Protests against police brutality and racial injustice have erupted in cities across the country following the May 25 death of George Floyd, a black man, after a Minneapolis police officer, who is white, kneeled on his neck for several minutes, as shown in a video of the arrest.

Some of those protests have turned violent, with businesses looted and fires set. Trump, and others in the administration, have blamed antifa “and the Radical Left,” as Trump put it, though state and federal officials have pointed to various groups or “outsiders” generally. “The violence and vandalism is being led by antifa and other radical left-wing groups,” the president said on May 30.

The next day, Trump made his statement about “designating ANTIFA as a Terrorist Organization.”

No Domestic Terrorist Designation

“There’s no legal process or meaning” for what the president said, Patel told us. “He’s reflecting on the process that we use for foreign terrorist organizations.”

The secretary of state has the legal authority to designate groups as foreign terrorist organizations under federal law. The federal government makes those FTO designations through a six-step process involving the State Department and other agencies. The designations enable the federal government to freeze assets, prosecute individuals for aiding those groups and restrict immigration for members of those groups, as the Government Accountability Office explains.

“[W]e have federal criminal statutes regarding ‘Acts of terrorism transcending national boundaries’, but no equivalent for domestic terrorism,” Forest told us. “As an example, Timothy McVeigh was prosecuted in federal court for the 1995 Oklahoma City bombing under a federal law addressing ‘weapons of mass destruction’ because the ideology that motivated his attack was not connected to any foreign entity.”

If there were a domestic terrorist designation, Patel said, it would “undoubtedly face a First Amendment challenge, which is likely to succeed.”

The nonpartisan Congressional Research Service also explained in a 2017 report that the “federal government lacks a process for publicly designating domestic terrorist organizations. In other words, there is no official open-source roster of domestic groups that the FBI or other federal agencies target as terrorist organizations.”

It, too, cited concerns about infringing on First Amendment freedoms if a domestic terrorist designation were possible. “Such a list might discourage speech and expression related to the ideologies underpinning the activities of named groups,” the CRS report said.

Mary McCord, legal director at Georgetown University Law Center’s Institute for Constitutional Advocacy and Protection and a former Department of Justice official, and Hina Shamsi, the American Civil Liberties Union’s national security project director, made similar statements to the press. “No current legal authority exists for designating domestic organizations as terrorist organizations. Any attempt at such a designation would raise significant First Amendment concerns,” McCord said.

We asked the White House about the president’s tweet but we haven’t received a response.

On the same day as Trump’s statement, Attorney General William P. Barr said in a statement: “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.”

Barr’s language isn’t an official designation but could indicate the resources the Department of Justice and FBI are going to put into investigating a particular threat, Patel said. She noted that the FBI “has long history of targeting protest groups” and said she would be “very worried” that by targeting antifa, an “amorphous term,” the Justice Department “would actually be infiltrating and targeting legitimate protest activity.”

The CRS report said that while there’s no domestic terrorist designation, the DOJ and FBI “have publicly named and discussed domestic terrorism threats—such as animal rights extremism or anarchist extremism—without illuminating exactly how they arrive at these categories.”

Forest said the “court cases against those individuals relied on laws against sabotage, vandalism, harassment, et al – but not ‘domestic terrorism’.” The language about such “threats” can also indicate what resources and priority groups would receive from the DOJ. “Technically, the FBI can’t really gain any law enforcement tools it didn’t already have simply by calling something a terrorist threat,” Forest said.

Patel said the FBI calling a group a “threat” was “mostly language” but “could also reflect what resources” they’re going to devote to an issue. “When we call something terrorism,” she said, “we’re suggesting it’s something very serious.”

Also, Forest said there are sentencing enhancements for terrorism-related acts that could bring added prison time to a conviction.

Some experts have argued Congress should enact a law to make domestic terrorism a federal offense.

McCord and Jason M. Blazakis, director of the Middlebury Institute of International Studies’ Center on Terrorism, Extremism, and Counterterrorism, wrote in the Lawfare blog on Feb. 27, 2019 that “designation of a domestic organization as a terrorist organization would raise serious concerns about infringing on First Amendment rights and cause legitimate fears that the designation tool could be used wrongly to target unpopular ideologies.” But making it a crime to materially support domestic terrorism — just as it’s a federal crime to provide material support to a foreign terrorist organization — “does not raise the same concerns.”

Patel, however, has argued the opposite. After House lawmakers, spurred into action by deadly white nationalists attacks, introduced legislation to make domestic terrorism a federal crime, she wrote, in October 2019, that such a law was “both unnecessary and creates serious risks of abuse.”

“The FBI already has all the authority it needs to investigate and prosecute perpetrators of white nationalist violence,” Patel said.

Unclear What Groups Have Incited Violence

Trump, Barr and National Security Adviser Robert O’Brien have pointed to antifa as driving or leading the violent acts that have erupted in some protests. We asked the White House if it could point to evidence of that, but we haven’t received a response. Various government officials have blamed different groups, or said they didn’t know who was behind it.

In a May 30 tweet, Minneapolis Mayor Jacob Frey said the city was “now confronting white supremacists, members of organized crime, out of state instigators, and possibly even foreign actors to destroy and destabilize our city and our region.”

Mark Bray, a historian at Rutgers University and author of “Antifa: The Anti-Fascist Handbook,” wrote in the Washington Post that he suspects some members of antifa groups have been involved in the protests but there aren’t enough of them to lead nationwide destruction tactics.

“[A]ntifa itself is not an overarching organization with a chain of command, as Trump and his allies have been suggesting. Instead, largely anarchist and anti-authoritarian antifa groups share resources and information about far-right activity across regional and national borders through loosely knit networks and informal relationships of trust and solidarity,” Bray said.

“Based on my research into antifa groups, I believe it’s true that most, if not all, members do wholeheartedly support militant self-defense against the police and the targeted destruction of police and capitalist property that has accompanied it this week. I’m also confident that some members of antifa groups have participated in a variety of forms of resistance during this dramatic rebellion,” he wrote. “Yet it is impossible to ascertain the exact number of people who belong to antifa groups because members hide their political activities from law enforcement and the far right, and concerns about infiltration and high expectations of commitment keep the sizes of groups rather small. Basically, there are nowhere near enough anarchists and members of antifa groups to have accomplished such breathtaking destruction on their own.”

Minnesota Attorney General Keith Ellison, when asked about Barr’s statement that “it appears the violence is planned, organized and driven by anarchic and left-extremist groups, far-left extremist groups using Antifa-like tactics,” said “the truth is nobody really knows.” He said on NBC’s “Meet the Press” on May 31 that there had been “very suspicious behavior,” including “cars with no license plates.”

“I’ve talked to people who are demonstrating, some of them say they think some of those folks are from Minnesota. And they also say some people have come from out of town. What the exact political motivation is is unclear at this point. We need to investigate it,” Ellison said.

St. Paul Mayor Melvin Carter and Atlanta Mayor Keisha Lance Bottoms also said those cities were investigating who was responsible for the violence. “We’re working to get to the bottom of that right now,” Carter said on CBS’ “Face the Nation.”

“It looked differently racially in our city than our normal protests looked,” Bottoms said on the same show. “And it was — it was just– it was a different group. So we don’t know who they were, but many of them were not locally based.”

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