Responding to the riots that have wracked America for close to a week, President Trump stated that he would designate Antifa as a domestic terrorist organization.
The United States of America will be designating ANTIFA as a Terrorist Organization.
— Donald J. Trump (@realDonaldTrump) May 31, 2020
Between local and federal law enforcement agencies, there appears to be ample evidence that outside agitators belonging at least in part (if not wholly) to Antifa, a Far-Left group, have played a huge part in transforming what began as peaceful protests against the murder of George Floyd at the hands of police into the violent rioting that is being seen today in the streets of American cities.
One Clarion source in Minneapolis reported how he watched the protests turn from demonstrations to organized riots, and how Antifa brought weapons to the protests. He estimated there were possibly between 10-12 outside groups. As Antifa is an amorphous group, it is hard to know how many of these groups were affiliated with Antifa.
Trump’s vow to designate Antifa as a domestic terrorist organization has been met with derision from the Left (which was predictable) as well as criticism from those who would also like to see white supremacists and neo-Nazi groups equally designated, as these groups are also dangerous, violent and act like terrorist organizations.
Yet today it is Antifa at the forefront. If we hadn’t seen the group’s true colors before (which we did), its current manifestation in the 2020 riots is one of violence and instigation to more violence. In fact, the group believes that their use of violence is actually justified as a self-defensive measure.
“The argument is that militant anti-fascism is inherently self-defense because of the historically documented violence that fascists pose, especially to marginalized people,” said Mark Bray, a history lecturer at Rutgers University and the author of “Antifa: The Anti-Fascist Handbook.”
Yet, before we run away with this idea of domestic groups (Left or Right) being designated as terrorist organizations, it is good idea to look at the issue with a cool eye — and not with the passions that might have been ignited within us by watching our cities burn and local businesses – most of them built from scratch with bone-breaking work — being destroyed.
We need to ask: What is the best way to combat them and (equally important) not have our own civil rights put in jeopardy in the process?
In an article written in August 2017 when there was also talk of designating Antifa as a terrorist organization, Andy McCarthy lays out the case against such a designation.
McCarthy is no lightweight. He served as an assistant U.S. attorney for the southern district of New York. In that capacity he led the successful terrorism prosecution against Sheikh Omar Abdel-Rahman (“The Blind Sheikh”) and 11 others who were on trial for the 1993 World Trade Center bombing and for planning a series of attacks on New York City landmarks.
While acknowledging that Antifa certainly engages in the legal definition of terrorist activity, here are the issues that McCarthy brings up regarding the designation issue:
Is designating Antifa as a domestic terrorist organization legal?
While we have laws that define “domestic terrorism” – categories that Antifa certainly falls into – McCarthy notes that it is not criminalized as such by federal law.
In fact, there is not even a law or legal process to designate a domestic group as a terrorist organization. This is in contrast to laws which clearly outline the procedure to designate a foreign terrorist organization.
Civil Rights Encroachment
American citizens and foreigners enjoy vastly different civil rights in America.
As McCarthy lays out:
“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 [FISA] 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.”
Americans, by contrast, enjoy constitutionally protected free speech and the rights to assembly and privacy.
“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.”
Speaking to those on the Right who were eager to see Antifa designated as a domestic terrorist organization in 2017, McCarthy doesn’t hold back in pointing out the crux of the civil rights issue:
“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?
What is the practical alternative?
McCarthy argues that, from a practical, law-enforcement perspective, those best able to counteract domestic terrorists are state and local police. A formal designation of a domestic terrorist group would put enforcement squarely into the hands of the feds, who have vastly understated numbers and less intelligence on the ground.
In 2017, New York City alone had 35,000 police officers in contrast to the FBI which employed 14,000 agents nationwide.
“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,” McCarthy points out.
In addition, while crimes committed by domestic terrorists usually violate state ordinances, they often lack clear jurisdictional hooks on a federal level.
So, why make life harder for law enforcement to get these thugs off our streets and engage in a protracted political battle that will further polarize the country?
Even if a move was made to even out the stakes by designating white supremacist and neo-Nazi groups as domestic terrorists, Antifa – like these other groups – is not a centralized organization.
Like all extremist groups that have amorphous qualities, some “members” range from those who “merely” subscribe to the group’s twisted ideology (still not a crime in America) to those who are able, willing and have proven their intention of “taking it to the streets” with two-by-fours and other deadly weapons.
Moving forward with any action to designate homegrown extremists as domestic terror organizations will have to answer all these serious issues raised above and find a way to get around such roadblocks.
Coronavirus lockdowns have shown us how quickly our civil rights can be taken away from us. Let us approach this issue with clear heads before we potentially give up some of those self-same rights ourselves.