Don’t Let Trump Use This Moment to Sneak in Domestic Terrorism Laws

There’s something ironic about a fascist president labeling an anti-fascist movement “terrorists.” It could be a joke, if it didn’t have such terrifying implications for civil liberties.

Yet in an attempt to deflect responsibility for kindling the flames of white nationalism and racism over the course of his administration, President Donald Trump’s scapegoat of the day is the left. He tweeted early Sunday: “The United States of America will be designating ANTIFA as a Terrorist Organization.” And on Monday, he spread a claim from “Fox & Friends” that there was no involvement of “white supremest [sic]” groups in the protests that have taken over cities nationwide over the past week.

For starters, there’s no authority to formally designate U.S. groups, so it’s unclear what direct legal weight the move would carry.

But more worrisome is that the attempted designation signals that more is likely to come, especially considering the administration and the Department of Justice’s years-long agenda.

The desire to associate a group on the left with terrorism predates this moment. Under any metric, it’s a farce to believe there’s new evidence in the current whirlwind to support a weighty label of terrorism for antifa — a decentralized collective of radical movements opposed to fascism. Activists arrested in solidarity have hardly even posted bail or faced hearings. There hasn’t been due process. And even if there was, we couldn’t possibly know the full story because journalists are getting beaten and arrested.

But terror labels for the left have been something the administration and many on the right have salivated over for years. Senators Ted Cruz and Bill Cassidy were sounding war drums against antifa, introducing a terrorism designation resolution last year. The FBI maintained a special designation for “Black Identity Extremists” which was pulled following outcry from civil rights leaders.

Federal harassment of the left has a long and sordid history. Most may be familiar with COINTELPRO, the infamous program advanced by FBI Director J. Edgar Hoover to surveil, infiltrate and disrupt groups on the left, from the antiwar movement to Black liberation groups. The FBI has continued to partner with the Department of Homeland Security, fusion centers (intelligence-sharing centers between federal and state agencies), local police and even private companies against movements such as Occupy Wall Street.

Focusing on antifa is a deflection from the reality that violent far right groups have killed more people inside the United States than any ideological group in nearly 20 years. The Justice Department has faced increased scrutiny for its double standards in how it pursues cases of violence when it involves actions by right-wing, predominantly white and Christian perpetrators, versus cases involving Muslims, often of color, or even just those perceived to be Muslim. For years, I have studied these double standards with the Washington, D.C.-based Institute for Social Policy and Understanding. Our data revealed enormous disparities in the legal and media treatment of ideological violence. Right-wing, typically white perpetrators of violence typically faced a fraction of the penalties that others did, and were almost never described as terrorists.

Perhaps due to mounting pressure, in April, the U.S. designated a white supremacist group — the Russian Imperial Movement — as a Foreign Terrorist Organization for the first time. That action followed on the heels of FBI Director Christopher Wray’s testimony before Congress that violent far right extremists are a “national threat priority,” describing their “unrelenting” nature and elevating these groups to the same threat level as ISIS (also known as Daesh) — a move that has its own problems, as ISIS shouldn’t be the benchmark for a threat that has been objectively more dangerous in recent years.

Those steps were progress. They did not provide quick fixes to any problems, but they were movements in a long process of addressing years of systemic inequity predating Trump.

But it’s unclear in light of Trump’s tweets what, if anything, is being done to address this “national threat priority.” The use of the word “terrorist” by an administration against its ideological opponents should always be met with skepticism.

What terrorist labels would likely allow in practice, especially against an entity so amorphously defined as antifa, is even greater surveillance powers under the PATRIOT Act for federal law enforcement against political movements the current administration disagrees with. What are the limits as to who gets investigated on suspicion for being part of antifa? The criteria, assuming there are any, would likely be opaque. And such labels would probably present significant First Amendment problems to the extent that they stigmatize individuals based purely on their political beliefs and ideological opposition to the Trump administration.

Attempts to use this moment to pass a domestic terrorism law would also be misguided. Terrorism laws like the PATRIOT Act have led to some of the worst infringements of civil liberties in U.S. history. They combine vague and broadly-worded prohibitions with severe penalties and virtually destroy any semblance of due process.

A domestic terror law would likely be used just like any other law — disproportionately against communities of color. Prosecutors already have tools to go after right-wing violence, racism and white nationalism. They do not need more. The problem is a not a lack of laws but a continuous and systematic refusal to apply existing laws equally, reinforcing double standards in the justice system.

If anything, the alarming responses to citizens and journalists in response to justifiable outrage prove the urgency of defunding the immense resources of, and curtailing the legal impunity of, prosecutors and law enforcement. The terrorists are those who continue to wage violence against communities of color.