Terrorism Investigations on Campus and the New McCarthyism
A march with two Columbia University student groups recently banned from campus for their support of Palestine (Photograph by Andrew Lichtenstein/ Corbis via Getty Images)
Federal law enforcement is under pressure to launch specious terrorism investigations into pro-Palestinian protesters on college campuses, based solely on their public statements.
by Anthony O’Rourke and Wadie E. Said
In the 1960s, the FBI’s counterintelligence program (COINTELPRO) routinely infiltrated campus antiwar and civil rights groups, investigating thousands of students with the aim of discrediting their activism and destroying their career prospects. After a Senate committee led by Frank Church exposed this practice, the FBI disavowed it and applied a heightened standard for initiating investigations at universities. There is reason to believe, however, that federal law enforcement is facing pressure to relax its self-restraint and investigate pro-Palestinian student activists using a tool not at its disposal in the heyday of COINTELPRO: a nebulous federal statute that imposes prison sentences of up to twenty years for providing “material support or resources to a foreign terrorist organization.” This statute criminalizes public advocacy that is done under the direction of or in coordination with foreign terrorist groups. There are few legal constraints, however, that would prevent a motivated FBI from using pro-Palestinian speech as grounds for investigating students who have no connection to such a group.
In late October, the Anti-Defamation League (ADL) and the Brandeis Center published an open letter urging universities to investigate Students for Justice in Palestine (SJP), a student activist group with both national and local chapters, under the material support statute. According to this letter, SJP chapters merit investigation under the material support statute for “endors[ing] the actions of Hamas” and “voicing an increasingly radical call for confronting and ‘dismantling’ Zionism on U.S. college campuses.” As the ACLU and others have observed, the ADL offers no evidence that SJP students have done anything more than exercise their constitutionally protected speech rights. Still, the state of Florida has already obliged the ADL’s request, invoking the material support statute and its state analog to ban Florida’s SJP chapters. (The ACLU of Florida and Palestine Legal have filed a lawsuit against the ban, and fears of personal liability may have led the chancellor of Florida’s state university system to walk it back.)
It is tempting to read the ADL’s letter simply as offering universities a way to discipline anti-Israel activism that is continuous with the ongoing suppression of pro-Palestinian campus speech, often in ways that many would have found unimaginable just months before. Columbia University has canceled pro-Palestinian speakers, in one case under the pretext of “security concerns” and in one case without that pretext. The University of Pennsylvania censored a documentary critical of Israel. And several universities, including Columbia and Brandeis, have suspended or banned their chapters of SJP.
However, viewing the ADL’s letter simply as one of many university efforts to repress speech through intimidation elides a more serious risk that has become increasingly plausible in recent weeks: federal law enforcement has the capacity, and is under real pressure, to use the material support statute to launch specious federal terrorism investigations on college campuses, especially against students of Palestinian descent or Muslim faith, based solely on their public statements.
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The material support statute, for which the ADL vigorously lobbied, was flawed from its inception. It was passed by Congress in 1996 in the wake of violence in the Middle East and the Oklahoma City bombing. Congress alleged that foreign terrorist groups were raising money for terrorism under the guise of humanitarian activity and, because of “the fungibility of financial resources,” even donations to legitimate charitable programs connected to a terrorist group free up money for the group to buy weapons. Despite the opposition of the ACLU on free speech and association grounds, the law passed.
The statute calls for the secretary of state to make a list of designated Foreign Terrorist Organizations (FTOs) based on three characteristics: 1) a group is foreign; 2) it engages in terrorism or terrorist activity; and 3) its terrorist activity harms American national security, which includes the vague concept of American economic and foreign relations interests. Providing “material support or resources” to a designated FTO subjects a violator to federal felony charges and prison time of up to twenty years. Tellingly, Congress never took up the prospect of a domestic material support statute, despite the fact the Oklahoma City bombing was a decidedly domestic act. There is no list of homegrown white supremacist organizations that Americans could be imprisoned for associating with.
The material support statute accords unchecked power to the secretary of state, whose designation of a group cannot be challenged in court, except on narrow administrative grounds (such as that the secretary of state designated a group by the wrong name). FTOs arguing that they have no quarrel with the United States are precluded from challenging their designation on such a basis.
The State Department’s discretionary authority has led to the targeting of Muslims and people of color, even as it insulates white Americans from potential liability. First, there is the issue of who gets on the list of FTOs, as not all non-state actors engaging in political violence are represented—just those that the United States deems necessary to designate for its own interests. For example, when the first iteration of the FTO list came out in October 1997, seven of the twenty-eight groups designated were Palestinian, signaling that in American eyes, a full quarter of the world’s terrorist groups represented this particular stateless people. Incidentally, Al Qaeda was not designated until 1999.
Second, there is the problem of whom prosecutors choose to bring cases against. Even individuals who materially support FTOs that are active in the United States may escape criminal charges as a matter of judicial discretion. For example, until recently Israel’s right-wing extremist party Kahane Chai (Kach) was designated as an FTO. Kach followers openly operated in the United States for many years and even had their American headquarters raided by the FBI. Yet we know of no defendant who ever faced charges for materially supporting Kach. Further, the State Department removed Kach from the FTO list last year, and several of its members have leadership roles in Israel’s current government.