They’re not already? Not exactly, no, and questions remain as to whether that can change. Yesterday afternoon, Donald Trump responded to riots breaking out all over the US by promising to classify Antifa as “a terrorist organization,” a designation that usually only applies to international groups:
The United States of America will be designating ANTIFA as a Terrorist Organization.
— Donald J. Trump (@realDonaldTrump) May 31, 2020
From what we’ve seen over the last few years, the label fits — generally and philosophically speaking, if not legally. Antifa uses street violence to intimidate its critics and opponents and to press its political agenda, classic hallmarks of terrorism. Its roots go back at least as far as the 1999 WTO riots in Seattle, which looked not all that dissimilar to what we are seeing in the Twin Cities and other states around the country at the moment.
Legally, however, Trump has one problem with this pledge — the designation doesn’t exist, at least domestically. The US designates foreign groups and networks as terrorists as a means of using extrajudicial force against them, such as military and diplomatic power and seizing assets. None of that can be done against US persons domestically without going through a criminal process that would have to specify charges for each individual involved. The ACLU pointed out that flaw almost immediately:
Terrorism is an inherently political label, easily abused and misused.
Let’s be clear: There is no legal authority for designating a domestic group. Any such designation would raise significant due process and First Amendment concerns. https://t.co/SJpT7sHs4p
— ACLU (@ACLU) May 31, 2020
ACLU’s first point is nonsense; Antifa has earned that label in every sense but in the narrow way Trump suggested yesterday. They’re right, though, that the federal government has no way to use the State Department process Trump apparently cited against domestic groups of any kind. Any pursuit of such groups would have to be through the criminal code, and any other “designation” would be purely rhetorical.
That doesn’t mean that the FBI can’t treat the specific individuals or even groups in the US as terrorists, of course, but there’s no need for a “designation” to do that, either. One has to suspect that Antifa has already been on their radar for quite some time, at least in this administration. Attorney General William Barr announced Saturday that the FBI and its Joint Terrorism Task Force would go after anyone crossing state lines to organize riots, authority that the Department of Justice already has. That’s not the only authority it has, a point to which we’ll return in a moment.
The issue of “designation” might just be Trump’s way of shaping the election as a law-and-order referendum, NPR suggests:
In 2016, Trump declared himself the “law and order candidate.” Expect him to try and exploit that again as a wedge issue in an effort to win over moderate whites upset by the video of Floyd’s death, but disapproving of the violent demonstrations.
He said as much Sunday. He called for “Law & Order in Philadelphia, NOW!” and announced that the United States would be designating Antifa a terrorist organization.
Expect Biden and other Democrats now to have to answer if they agree or disagree with the Antifa designation.
Indeed. Biden’s already getting criticism for taking too long to speak out against the riots and looting taking place around the country. Trump’s tweet forces that issue into a higher profile, even if it also steps on Biden’s silence a bit, too.
Besides, the DoJ has a more powerful tool than a “designation” anyway. They have RICO — the Racketeer Influenced and Corrupt Organizations Act. It has been routinely used to break up criminal syndicates, and Antifa certainly qualifies. If the DoJ can prove any kind of coordination to commit felonies, then suddenly anyone in the organization becomes criminally liable for all of the felonies committed, at least in theory. If Trump and Barr really want to take down Antifa, that’s their best bet, not an essentially meaningless “designation.”