Politico | Trump says he’s naming Antifa a ‘Terrorist Organisation’. Can he do that?
- For one thing, the US president lacks the legal authority to designate a purely domestic group.
This story is published in a content partnership with POLITICO. It was originally reported by Betsy Woodruff Swan on politico.com on May 31, 2020.
US President Donald Trump tweeted on Sunday that the US government would be “designating ANTIFA as a Terrorist Organisation.”
There were just two problems with that. First, he doesn’t appear to have the legal authority to do so. And second, it’s by no means clear the loosely defined group of radical activists is an organisation at all.
The Trump administration’s push to crack down on Antifa – short for “anti-fascist” – comes as large and small businesses in a host of American cities were looted and vandalised as people protested the death of a black man, George Floyd, at the hands of a white police officer in Minneapolis.
The president and his top officials, including Attorney General William Barr and national security adviser Robert O’Brien, have blamed Antifa for violence and property damage. In an on-camera statement Saturday, Barr said the Justice Department wouldn’t hesitate to prosecute people who crossed state lines to participate in violence, citing his authorities under anti-riot legislation.
Barr did not invoke laws against terrorism, which do not let the US government designate purely home-grown groups as terrorist organisations.
Under current law, the State Department can designate foreign organisations as terrorist groups. But the US has no domestic terrorism statute, and the FBI uses other legal authorities to prosecute domestic terrorism here. State Department spokespersons did not respond to requests for comment on whether Foggy Bottom was involved in the president’s move.
Shortly after the president’s tweet on Sunday, Barr released a second statement on the unrest.
“With the rioting that is occurring in many of our cities around the country, the voices of peaceful and legitimate protests have been hijacked by violent radical elements,” he said. “Groups of outside radicals and agitators are exploiting the situation to pursue their own separate, violent, and extremist agenda. It is time to stop watching the violence and to confront and stop it.”
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Barr said the FBI’s Joint Terrorism Task Forces (JTTFs) would work to identify suspects and coordinate the efforts of federal, state and local law enforcement agencies. Those task forces handle both foreign and domestic terrorist threats. And they’ve faced criticism for monitoring domestic political groups, including - as the ACLU has detailed - Greenpeace and the Catholic Workers Group. A 2010 Inspector General report found that some JTTFs’ reasons for opening investigations of domestic groups were “factually weak”.
“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 concluded.
Barr did not mention the president’s tweet, nor did his statement legally designate Antifa as a terrorist organisation. Designating a terrorist group is typically a lengthy process requiring careful legal review, as well as proof of foreign ties.
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“There currently exists no legal authority to designate domestic organisations as terror organisations, and any such designation would raise serious First Amendment concerns,” said Mary McCord, who heads Georgetown University’s Institute for Constitutional Advocacy and Protection and who formerly helmed the Justice Department’s National Security Division.
McCord said she found the last sentence of Barr’s statement – quoted above – to be troubling, since the attorney general did not cite evidence or intelligence connecting Antifa or others on the left to the violence.
Even defining Antifa can present challenges.
“To explain a little: it’s like calling birdwatching an organisation,” tweeted Mark Bray, author of Antifa: The Antifascist Handbook. “Yes, there are birdwatching organisations as there are Antifa organisations but neither birdwatching nor antifa is an organisation.”
That hasn’t stopped senior Trump administration officials from using the term to describe those they blame for the violence.
“It’s the violent Antifa radical militants that are coming out, under cover of night, travelling across state lines, using military-style tactics to burn down our cities,” O’Brien said on ABC’s This Week.
“We’re calling on the FBI to investigate Antifa and get to the bottom of these violent rioters,” he continued. “And I don’t want them confused with peaceful protesters that have every right to go out to the streets. That’s what makes America different from any other countries around the world.”
Nahal Toosi contributed reporting
