I have a legal background but am not American so pinch of salt. But these are the main points from it that jump out to me. (Not a thorough analysis and not American, as another disclaimer).
This is not making being against fascism illegal, it’s designating Antifa specifically as a terrorist organisation. However, the document repeatedly demonstrates a conflation (almost certainly intentional) between Antifa and protestors generally. For example:
“[FBI] Director Christopher Wray stated in a testimony to the House Homeland Security Committee, ‘‘We have seen folks who subscribe or identify with the Antifa movement, who coalesce regionally into small groups or nodes and they are certainly organized at that level’’, proving these extreme, violent attacks, disguised under the name of protests, are coordinated, organized events that are orchestrated by Antifa.”
The conclusion drawn is an unjustified abstraction. The existence of fragmented regional nodes of individuals who identify with Antifa could mean a lot of things and an individual from the FBI making that claim doesn’t “prove” anything. As acknowledged in this quote, Antifa are not one cohesive group, which means the boundaries at the edges of what counts as being Antifa and what doesn’t are unclear.
This creates a danger that those few who do genuinely act under Antifa will simply stop using the name. As a result, law enforcement will have a basis to charge people as terrorists even if they haven’t openly identified with the designated group, as only a small number (even 1) of test cases would be needed to set this precedent. This opens the door to charging anyone associated with certain protests as a terrorist.
Most of the document is a list of previous events that attempt to add meat to the claim that Antifa is terrorist. These are almost all weak or at least questionable. For example:
“[In 2017], approximately 100 Antifa rioters incited violence during a peaceful rally in Berkeley, California, where these terrorists were repeatedly punching and kicking innocent people, sending several peaceful protestors to the hospital, and ultimately 13 rioters were arrested on a range of charges including assault with deadly weapons and obstructing a police officer;”
If only 13 were arrested and charged, how do you know 100 of them were Antifa members? What proportion of the overall group of protestors was Antifa? What proportion is needed for it to be an Antifa protest? Also, obstructing a police officer at a protest, while it is a crime, isn’t particularly unusual, even at a fully peaceful protest.
“Whereas the far-left militant organization held signs reading, ‘We are ungovernable’’ and ‘‘Abolish ICE, no cops, prisons, borders, presidents’’, illustrating their dedication to lawlessness;”
Sorry, is it terroristic to hold a sign with your political opinions on now? None of those examples are ‘illustrating their dedication to lawlessness’. Were any of them even charged with anything? I assume not, since the document would surely state that if so.
"Whereas, in response to the 2017 violent riots, an Antifa extremist stated, ‘‘Sometimes you have to use direct action to stop it because protesting, signs, yelling is not going to do anything. You have to make them afraid.’’;
This is one of the more compelling examples they’ve given, but even then it falls short. “An antifa extremist”? What does that mean? A leader? An organiser? An individual? It’s an important distinction, and if they were someone known formally as some sort of Antifa spokesperson then undoubtedly this document would specify that. But it doesn’t. If Antifa is so fragmented and locally organised, how can you take what one guy said and apply it to a whole nation where the label that some act under takes so many different forms?
"Whereas, in February 2021, the United States Attorney for the District of Oregon stated that Antifa caused more than $2,300,000 in riot damage to Federal property in Oregon, not including any damages to private businesses or State, county, and city buildings;
Whereas, over the summer of 2020, Antifa assisted in inflicting over $2,000,000,000 in damages against churches, Federal buildings, businesses, and other downtown struc-tures across 20 States, resulting in the death of at least 30 individuals as well as 700 injured police officers;"
I’ll put these two together. Antifa caused that damage? And killed those people? All of it? You identified and investigated every single person responsible and proved that they are acting on behalf of Antifa? No, you didn’t, which means you don’t get to state as fact that Antifa were responsible for every single crime associated with a protest, every death and every $ of damage, just because they were there too.
These are weak, cherry picked examples. And that is done on purpose. These cases haven’t been selected because they’re the strongest, they’ve been selected as examples to demonstrate the precise way in which the presence of Antifa can be used to label an entire protest as Antifa-affiliated. They are specific examples given in order to say: “these are the things we think should be classed as terrorist” - sign holding, attending a protest that Antifa has also attended, committing any sort of crime, apparently including misdemeanors, in the area of a protest that Antifa has become associated with.
As to the actual core of the document, left to the end:
(1) this conduct of Antifa members, or any unlawful conduct performed at an Antifa-affiliated demonstration, is deemed to be domestic terrorism"
This is really worrying because it summarises my issues raised before. What does “an Antifa-affiliated demonstration” mean? If one Antifa member is arrested at a protest, is the whole protest now Antifa affiliated? How many does it have to be? Is it based on proportion? How do you measure that? At what point does a protest become an Antifa protest?
“Any unlawful conduct” - again, what does this mean? Including minor misdemeanors? Could I litter at a protest where a few Antifa members got arrested and all of a sudden I’m a domestic terrorist?
(3) the House of Representatives calls on the Department of Justice— (A) to prosecute these crimes of domestic terrorism (as such term is defined in section 2331 of title 18, United States Code) by Antifa; and (B) to use all available tools and resources to combat the spread of domestic terrorism (as such term is defined in section 2331 of title 18, United States Code) committed by Antifa."
This is simply calling on the DoJ so is pressuring but not legally binding. However, it signals intent, so I wanted to paste it anyway, given the context of the rest of the document before it. I’ll leave it open to interpretation.
It’s been a while since I analysed domestic US documents as part of my international law specialism. But overall this seems to be a pretty shoddily written document filled with vague definitions and plenty of scope to expand its meaning.
Now, I have enough experience in the legal field, especially looking at state conduct, to say with personal confidence: this is not due to incompetence. It is not written badly by accident. This is intentionally vague.
You missed the big one. Any affiliated groups. Could even mean that if an “Anifa” is a member of the Democratic party, the whole party is a terrorist organization.
On top of that there is evidence that right wing extremists have made claims that they are Antifa online calling for illegal actions. The quotes in the resolution could all be disingenuous. Furthermore, this opens the door for the right to pose as “antifa” in order to make protesting an act of terrorism.
I’m actually less concerned with that because it’s fairly typical for this sort of clause to be included in terrorism law and while I don’t know about the US specifically, most countries have some reasonable safeguards in place, especially via the judiciary, to make sure that only groups that are functionally one and the same are included. It’s to prevent designated organisations simply splintering and reforming under a new name. So I wasn’t really surprised to see that.
As I say, I’m less familiar with the domestic US laws and I don’t need to tell you that implementation is just as important as how reasonable the idea is.
What concerns me more than that is the other stuff this document is doing. It is overtly classifying all protestors as terrorists or potential terrorists purely on a basis that antifa have associated themselves with a protest in some vague, undefined way. That’s worse than the part you raise because it’s open ended: you don’t have to prove that the defendant is a member of any particular group, their mere presence at an “antifa-associated” protest (whatever that means) is enough. To me, that’s a bigger concern to the American citizen worried about their rights.
Again though, not an American and not involved in American law (though most principles are broadly similar to in my country), I’ve only looked at it as part of wider studies into international law. So just a worthless two cents in case anyone is interested in an international legal take.
I have a legal background but am not American so pinch of salt. But these are the main points from it that jump out to me. (Not a thorough analysis and not American, as another disclaimer).
This is not making being against fascism illegal, it’s designating Antifa specifically as a terrorist organisation. However, the document repeatedly demonstrates a conflation (almost certainly intentional) between Antifa and protestors generally. For example:
The conclusion drawn is an unjustified abstraction. The existence of fragmented regional nodes of individuals who identify with Antifa could mean a lot of things and an individual from the FBI making that claim doesn’t “prove” anything. As acknowledged in this quote, Antifa are not one cohesive group, which means the boundaries at the edges of what counts as being Antifa and what doesn’t are unclear.
This creates a danger that those few who do genuinely act under Antifa will simply stop using the name. As a result, law enforcement will have a basis to charge people as terrorists even if they haven’t openly identified with the designated group, as only a small number (even 1) of test cases would be needed to set this precedent. This opens the door to charging anyone associated with certain protests as a terrorist.
Most of the document is a list of previous events that attempt to add meat to the claim that Antifa is terrorist. These are almost all weak or at least questionable. For example:
If only 13 were arrested and charged, how do you know 100 of them were Antifa members? What proportion of the overall group of protestors was Antifa? What proportion is needed for it to be an Antifa protest? Also, obstructing a police officer at a protest, while it is a crime, isn’t particularly unusual, even at a fully peaceful protest.
Sorry, is it terroristic to hold a sign with your political opinions on now? None of those examples are ‘illustrating their dedication to lawlessness’. Were any of them even charged with anything? I assume not, since the document would surely state that if so.
This is one of the more compelling examples they’ve given, but even then it falls short. “An antifa extremist”? What does that mean? A leader? An organiser? An individual? It’s an important distinction, and if they were someone known formally as some sort of Antifa spokesperson then undoubtedly this document would specify that. But it doesn’t. If Antifa is so fragmented and locally organised, how can you take what one guy said and apply it to a whole nation where the label that some act under takes so many different forms?
"Whereas, in February 2021, the United States Attorney for the District of Oregon stated that Antifa caused more than $2,300,000 in riot damage to Federal property in Oregon, not including any damages to private businesses or State, county, and city buildings;
Whereas, over the summer of 2020, Antifa assisted in inflicting over $2,000,000,000 in damages against churches, Federal buildings, businesses, and other downtown struc-tures across 20 States, resulting in the death of at least 30 individuals as well as 700 injured police officers;"
I’ll put these two together. Antifa caused that damage? And killed those people? All of it? You identified and investigated every single person responsible and proved that they are acting on behalf of Antifa? No, you didn’t, which means you don’t get to state as fact that Antifa were responsible for every single crime associated with a protest, every death and every $ of damage, just because they were there too.
These are weak, cherry picked examples. And that is done on purpose. These cases haven’t been selected because they’re the strongest, they’ve been selected as examples to demonstrate the precise way in which the presence of Antifa can be used to label an entire protest as Antifa-affiliated. They are specific examples given in order to say: “these are the things we think should be classed as terrorist” - sign holding, attending a protest that Antifa has also attended, committing any sort of crime, apparently including misdemeanors, in the area of a protest that Antifa has become associated with.
As to the actual core of the document, left to the end:
This is really worrying because it summarises my issues raised before. What does “an Antifa-affiliated demonstration” mean? If one Antifa member is arrested at a protest, is the whole protest now Antifa affiliated? How many does it have to be? Is it based on proportion? How do you measure that? At what point does a protest become an Antifa protest?
“Any unlawful conduct” - again, what does this mean? Including minor misdemeanors? Could I litter at a protest where a few Antifa members got arrested and all of a sudden I’m a domestic terrorist?
This is simply calling on the DoJ so is pressuring but not legally binding. However, it signals intent, so I wanted to paste it anyway, given the context of the rest of the document before it. I’ll leave it open to interpretation.
It’s been a while since I analysed domestic US documents as part of my international law specialism. But overall this seems to be a pretty shoddily written document filled with vague definitions and plenty of scope to expand its meaning.
Now, I have enough experience in the legal field, especially looking at state conduct, to say with personal confidence: this is not due to incompetence. It is not written badly by accident. This is intentionally vague.
You missed the big one. Any affiliated groups. Could even mean that if an “Anifa” is a member of the Democratic party, the whole party is a terrorist organization.
On top of that there is evidence that right wing extremists have made claims that they are Antifa online calling for illegal actions. The quotes in the resolution could all be disingenuous. Furthermore, this opens the door for the right to pose as “antifa” in order to make protesting an act of terrorism.
I’m actually less concerned with that because it’s fairly typical for this sort of clause to be included in terrorism law and while I don’t know about the US specifically, most countries have some reasonable safeguards in place, especially via the judiciary, to make sure that only groups that are functionally one and the same are included. It’s to prevent designated organisations simply splintering and reforming under a new name. So I wasn’t really surprised to see that.
As I say, I’m less familiar with the domestic US laws and I don’t need to tell you that implementation is just as important as how reasonable the idea is.
What concerns me more than that is the other stuff this document is doing. It is overtly classifying all protestors as terrorists or potential terrorists purely on a basis that antifa have associated themselves with a protest in some vague, undefined way. That’s worse than the part you raise because it’s open ended: you don’t have to prove that the defendant is a member of any particular group, their mere presence at an “antifa-associated” protest (whatever that means) is enough. To me, that’s a bigger concern to the American citizen worried about their rights.
Again though, not an American and not involved in American law (though most principles are broadly similar to in my country), I’ve only looked at it as part of wider studies into international law. So just a worthless two cents in case anyone is interested in an international legal take.