By Andrew C. McCarthy
Monday, June 01, 2020
According 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.
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