Opinion / Reform

Bad Idea: Domestic Terrorist Organization Designations

Bad Ideas in National Security Series

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On May 31, 2020, amid a wave of protests across the United States following the murder of George Floyd, President Donald Trump sparked controversy by tweeting, “The United States of America will be designating ANTIFA as a Terrorist Organization.” Attorney General William Barr issued a statement the same day declaring, “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.”

However, experts were quick to point out that there was no legal way for Trump to designate Antifa  — a decentralized movement that poses a relatively small threat — as a terrorist organization under current law. The United States only has the authority to designate foreign groups as Foreign Terrorist Organizations (FTOs) under the Immigration and Nationality Act (INA) or Specially Designated Global Terrorists (SDGTs) under Executive Order (E.O.) 13224. Both designations allow the government to target terrorist groups by freezing their assets, restricting travel, and signaling concern to other nations and the public though they differ in other key respects

Despite the spectacle surrounding the Trump administration’s comments on Antifa, individuals across the political spectrum have long called for the U.S. government to establish a domestic terrorism designation for various types of extremists operating in the homeland, including white supremacists. Advocates of this change argue that designations would provide law enforcement with additional tools to disrupt domestic terrorism, including increased information sharing, authority to open more investigations, and the potential to secure more resources. And there is precedent: other countries such as Canada, Germany, and the United Kingdom have all previously designated terrorist groups operating domestically.

However, establishing a formal designation for U.S. domestic terrorist organizations would be a mistake. Due to the decentralized nature of the terrorism threat in the United States, this would be an ineffective use of resources and could adversely affect already-marginalized communities. Instead of pursuing this largely symbolic act, the federal government should take data-driven steps to refocus resources and policy efforts on the subsets of domestic extremists that pose the greatest threat.

First, designating specific organizations as terrorists would be ineffective, as the primary terrorist threat in the United States comes from loose networks of extremists and individual actors rather than discrete, organized groups. These networks and individuals frequently radicalize and mobilize online — including through social media, encrypted platforms, and manifestos — but lack formal leadership or structure. Many of these movements are inspired by the concept of “leaderless resistance” as popularized by American white nationalist Louis Bream, which limits the risk of infiltration by law enforcement or prosecution of associated individuals. Without discrete groups to target, domestic terrorist designations would be ineffective at controlling financial flows or individuals’ activity.

Furthermore, it would be challenging to create a designation process that does not infringe upon first amendment rights and risk harming already-marginalized communities. In fact, designations could veer toward coding particular ideologies or grievances as terrorism — a standard that would be difficult to establish without curbing freedom of speech or demonstration. This could deter or unjustly target political dissidents, as well as groups advocating for equitable treatment that have historically suffered at the hands of law enforcement. These include racial and ethnic minorities and the LGBTQIA+ community — incidentally, individuals who are among those most likely to be the targets of terrorist attacks. These concerns have been raised by non-governmental organizations in the United States and echoed by experts from the Office of the UN High Commissioner on Human Rights.

Even worse, the politicized nature of terrorism studies and the polarized U.S. political climate could lead to intentional partisan abuse of a domestic terrorism designation. Definitions and applications of the term “terrorism” to describe domestic crimes are often controversial and can be shaped by political agendas. For example, Republicans have pushed to penalize far-left networks such as Antifa while Democrats have advocated for stronger restrictions on far-right groups such as the militia movement. Some individuals argue that the FBI has already disproportionately used surveillance and counterterrorism measures against left-wing dissidents and Black activists over the past century. Designations would provide another tool to quash political dissent, particularly if used to prosecute individuals providing broadly defined “material support” for dissident movements.

Ultimately, calls for the U.S. government to designate groups such as the Ku Klux Klan as domestic terrorist organizations are often less about the formal designation process than they are an expression of public frustration at real and perceived inaction toward countering the threat of white supremacist terrorism. One particular flashpoint is the current resource and policy focus on Salafi-jihadist terrorism, despite evidence — including from the FBI and Department of Homeland Security, as well as CSIS research — that the primary terrorist threat in the United States comes from white supremacist networks.

Instead, improving the U.S. response to domestic terrorism is a matter of recognizing and applying the existing definition of domestic terrorism under Statute 18 U.S. Code § 2331(5). There are also proposals to expand upon this definition, such as by attaching criminal penalties to the statute. The government should also mandate centralized data collection and transparent reporting on domestic terrorism, which should be used to direct federal counterterrorism resources to prioritize and respond to the greatest threats. U.S. intelligence and law enforcement have proven to be effective at protecting U.S. soil from Salafi-jihadist threats. Now, they should receive the resources and political support necessary to adapt their skills and techniques to respond to the evolving domestic terrorism threat landscape.

However, the United States should not be afraid to designate transnational groups operating in the United States as terrorist organizations using existing law. These include several larger and more cohesive white supremacist groups such as The Base and the Atomwaffen Division, as well rebrands of the latter, such as the National Socialist Order. These groups maintain a presence overseas, which would enable the U.S. government to designate them as FTOs or SDGTs under existing law as “foreign organizations.” Additional legal action may be necessary to close loopholes in the INA for groups with a partially domestic presence, but this would be a relatively straightforward process that avoids the complications a domestic designation would entail.[1]

Overall, U.S. action to counter domestic terrorism should focus not on establishing new domestic designations but on shifting priorities and resources toward the domestic actors that pose the greatest risk. It is true that the United States faces a growing threat from domestic terrorists, particularly white supremacist networks, and that federal attention is needed in response. However, pursuit of domestic terrorist designations would be more symbolic than effective and could risk harming the very groups it seeks to protect.

CSIS does not take specific policy positions; accordingly, all views expressed above should be understood to be solely those of the author.

(Photo Credit: Jonathan McIntosh, CC BY 2.0, via Wikimedia Commons)

[1] In fact, in April 2020 the Department of State designated the Russian Imperial Movement (RIM) under E.O. 13224. Though RIM has only conducted limited personal outreach among U.S. extremists, this was notably the first time the United States designated a white supremacist terrorist group. The department could follow this new precedent by designating other transnational white supremacist groups, including organizations such as The Base and the Atomwaffen Division that pose a more direct threat to the homeland than RIM.

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