As aggressive protests sweep the country, President Donald Trump answered calls for action with, rather predictably, a tweet: "The United States of America will be designating ANTIFA as a Terrorist Organization," he wrote Sunday.
The word "antifa" refers to a loose collective of militant anti-fascist protesters. You find them often at far-right rallies or standing in solidarity with those protesting the death of George Floyd. But among Trump's base, antifa inspires a great deal of fear and revulsion.
Put those two things together and you get a declaration that legally means little but politically means a lot — and, ultimately, will likely put some people in danger, all while inflaming existing political and cultural divides at a pivotal moment. Already, we are seeing some of this, with rumors about fake antifa activity proliferating on social media, with no evidence. In at least one case, a fake post was actually created by a white nationalist group for the express purpose of sowing discord and paranoia.
Militant anti-fascist protesters have been around for nearly a century, but only recently have they become such a target of rage for conservatives. As white nationalists began to engage in the same political spaces as the larger Republican Party, so did anti-fascist protesters. Anti-fascist organizations and marches increased as the far right grew, becoming a large and visible force on the political far left. As the 2020 campaign ramps up and Trump pivots back toward his "law and order" persona, his hope is that white anxiety over riots will help energize his base. Whether or not white Americans — or any Americans — are in danger is beside the point.
"Federal law enforcement actions will be directed at apprehending and charging the violent radical agitators who have hijacked peaceful protest and are engaged in violations of federal law. To identify criminal organizers and instigators, and to coordinate federal resources with our state and local partners, federal law enforcement is using our existing network of 56 regional FBI Joint Terrorism Task Forces (JTTF)," Attorney General William Barr wrote in a statement the day of Trump's tweet. "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."
According to the Anti-Defamation League, which tracks fascist and white nationalist organizations, the far right killed at least 42 people in the United States last year, 53 in 2018 and 41 in 2017. Despite what you might hear on Fox News, there is no proof that anti-fascist activists have killed anyone during the same period.
Clearly, Trump is playing up the threat of antifa protesters for political gain. But legally, he can't do much to label a domestic organization as "terrorists," even if he tried. There are a couple of pathways to do this, but they would likely pose challenges for the administration. The authorities can use the Immigration and Nationality Act to designate a group as a "Foreign Terrorist Organization," and they can use Executive Order 13224, which expanded the ability to apply the terrorism label in the wake of the terrorist attacks of Sept. 11, 2001. For this label, they would need proof of foreign operations, such as training camps or foreign leadership, neither of which would really apply to anti-fascist organizations. Antifa would also have to show a clear and present danger to national security interests, which would be a stretch by any definition. On top of that, "antifa" is more an idea or an approach than an actual organization, which would fail to meet the standard of "terrorist organization."
Trump is playing up the threat of antifa protesters for political gain. But legally, he can’t do much to label a domestic organization as "terrorists," even if he tried.
"To explain a little: it's like calling bird-watching an organization. Yes, there are bird-watching organizations as there are Antifa organizations but neither bird-watching nor antifa is an organization," Mark Bray, author of "Antifa: The Anti-Fascist Handbook," said on Twitter.
But while using this language is mostly political theater, it could influence the actions of law enforcement agencies around the country. The president's statement arguably provides cover, however rhetorical, for police departments to respond even more aggressively to demonstrations. Where law enforcement and the courts have independent decision-making authority, this cultural shift could have massive consequences. Sentences for protest activity could deliberately be made harsher, police crowd control tactics could become more aggressive, and investigations and surveillance could expand. All of this would be done under the belief that anti-fascists present a clear and present danger of violence — no legal definition required.
This culture of fear could also motivate a sweeping "domestic terrorism" executive order or piece of legislation, which could in turn reshape how investigations and prosecutions proceed. If that happened, people thought to be involved in anti-fascist activism could have their bank accounts frozen and even potentially face jail time if support was given. All of this is theoretical at the moment, but these are the kinds of concerns that are relevant when accusations of terrorism are bandied about
Just as importantly, though, Trump's tweet misunderstands the entire point of this movement. Because anti-fascism is just a political descriptor, which can apply to church groups to anarchist "black bloc"-style formations, it would be difficult and unfair for authorities to apply any type of punitive label to antifa collectively. "As this tweet demonstrates, terrorism is an inherently political label, easily abused and misused. There is no legal authority for designating a domestic group. Any such designation would raise significant due process and First Amendment concerns," Hina Shamsi, director of the ACLU's National Security Project, said in a statement. The ACLU has raised concerns about the Joint Terrorism Task Forces that Attorney General William Barr cited, pointing out that they "have been collecting information about peaceful political activity having nothing to do with terrorism."
Just as importantly, though, Trump’s tweet misunderstands the entire point of this movement.
We've seen this happen before. In the early 2000s, there was a period that many activists called the Green Scare, when the FBI went after environmentalist and animal rights activists because of fears of "ecoterrorism." Citing a few exceptional cases of environmentally motivated arson, agents created a culture that viewed environmental groups with suspicion by claiming that a major terrorist threat was emerging from the environmental movement. This was followed by years of coercive investigations, undercover operations and sweeping prosecutions of activists.
In this case, the FBI could again influence priorities for state and local law enforcement agencies even without an official legal framework. Resources could be shifted from covering white nationalist organizations, which have a proven track record of terrorist murder, and toward largely peaceful left-wing protest movements.
District attorneys and other prosecutors can prioritize which cases are built and how laws are enforced. This in turn could create a chilling effect on speech, creating a culture of fear around progressive activism. It is uncertain how a shift in tone and priorities would affect protest movements immediately, but it is an escalation and a legitimization of the idea that anti-fascist protesters are uniquely dangerous.
So instead of addressing the underlying issues of police violence that led to these riots, the heavy-handed "anti-terrorism" response will likely instigate even more conflict. The protests in cities around the country have a historical precedent tracing back to the civil rights movement. If the White House and law enforcement continue to double down on criminalization, they are only going to stoke more tension and isolate local activists. And who will end up getting hurt the most? The marginalized communities that have historically borne the brunt of law enforcement abuses to begin with.