On Terrorist Investigations on American College Campuses and the Neo-McCarthyism

Federal law enforcement has been pressured to launch a specious terrorism investigation into pro-Palestinian demonstrators on college campuses based solely on their public statements.

Two Columbia University student groups that were banned from campus for their support for Palestine recently marched (Photo by Andrew Lichtenstein/Corbis via Getty Images)

Source: Dissent

About the source: Dissent is a quarterly magazine based in the United States, founded in 1954. Focusing primarily on political and cultural issues, the magazine is known for its critical perspective and progressive political stance. Dissent is one of the leading forums of left-wing ideas and social democratic movements, dedicated to advancing public debate and providing insightful analysis and commentary on modern social, economic and cultural issues. He often deals with issues such as the trade union movement, racial and gender equality, environmental protection, and international labor rights, providing diverse and in-depth perspectives. Not only is it an important platform for political commentators and academics, but it also attracts a wide readership, including academics, students, writers, and the general public. The journal regularly publishes in-depth reports, opinion pieces, book reviews, and dialogues, as well as critical social and cultural analysis, seeking to provide a strong left-wing voice in public debate.

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IN THE 60S OF THE 20TH CENTURY, THE FBI'S COUNTERINTELLIGENCE PROGRAM (COINTELPRO) ROUTINELY INFILTRATED ANTI-WAR AND CIVIL RIGHTS GROUPS ON CAMPUSES IN THE UNITED STATES, INVESTIGATING THOUSANDS OF STUDENTS WITH THE GOAL OF DISCREDITING THEIR ACTIVIST POSITIONS AND UNDERMINING THEIR CAREER PROSPECTS. After a Senate committee led by Frank Church exposed the practice, the FBI denied it and applied a higher standard for initiating an investigation at the university. However, there is reason to believe that federal law enforcement is under pressure to loosen its grip on self-restraint and use a tool that was not available in the heyday of counterintelligence programs to investigate student activists supporting Palestinian: by a vague federal statute that provides for up to 20 years in prison for "providing material support or resources to a foreign terrorist organization." This statute criminalizes public information carried out under the direction or coordination of a foreign terrorist organization. However, there are few legal restrictions that can prevent the FBI from using pro-Palestinian rhetoric as a justification for investigating students who have no connection to such organizations.

In late October, the Anti-Defamation League (ADL) and the Brandeis Center published an open letter urging universities to investigate the student activist group Palestine Students for Justice (SJP) under material support regulations. According to the letter, the SJP's chapter deserves an investigation under the material support statute for "endorsing Hamas's actions" and "raising increasingly radical calls for confrontation and 'disintegration' of Zionism on American university campuses." As noted by the American Civil Liberties Union (ACLU) and other organizations, the ADL did not provide any evidence that SJP students did anything other than exercise their constitutionally protected right to speech. Nonetheless, Florida has met the ADL's request by invoking substance support regulations and state simulation laws to ban the Florida SJP chapter. (The American Civil Liberties Union of Florida and Palestine Legal have filed a lawsuit against the ban, and the president of the Florida State University System has withdrawn the ban for fear of personal liability.)

It is easy to interpret the reactionary coalition's letter simply as offering universities a way to discipline anti-Israel activity, in a vein that is in line with the current repression of pro-Palestinian campus speech, often in ways that many would have found unimaginable just a few months ago. Columbia University eliminated pro-Palestinian speakers, once under the pretext of "security concerns" and again without it. The University of Pennsylvania censored a documentary critical of Israel. Several universities, including Columbia University and Brandeis University, have suspended or banned their SJP chapters.

However, to view the Anti-Defamation League's (ADL) letter as one of many attempts by universities to suppress free speech through intimidation ignores a more serious risk. This risk has become apparent in recent weeks that federal law enforcement agencies are not only capable but also under intense pressure to use "material support" regulations to launch unsubstantiated federal terrorism investigations on university campuses against students of Palestinian origin or Muslim origin who speak out publicly.

The "material support" regulation, which the ADL strongly promotes, has been flawed since its inception. In 1996, Congress passed the bill in light of the violence in the Middle East and the Oklahoma City bombing. Congress asserts that foreign terrorist organizations raise terrorist funds under the guise of humanitarian activities and that because of the "fungible nature of financial resources," they may finance the purchase of weapons by terrorist organizations, even if they are donated to legitimate charitable programs associated with terrorist organizations. Despite opposition from the American Civil Liberties Union on the grounds of freedom of speech and association, the bill was approved.

The statute requires the Secretary of State to compile a list of Foreign Terrorist Organizations (FTOs) based on three criteria:1. The organization must be foreign; The organization must be involved in terrorism or terrorist activities; The organization's terrorist activities must cause harm to U.S. national security, including impact on U.S. economic and foreign relations interests. Providing "material support or resources" to a designated FTO would result in violators facing federal felony charges, which can result in up to 20 years in prison. It is important to note that while the Oklahoma City bombing was clearly a domestic event, Congress never considered a domestic material support regulation. There is a lack of lists against homegrown white supremacist organizations that could incarcerate U.S. citizens for their affiliation.

The "material support" statute gives the Secretary of State a great deal of discretion. The Secretary of State's designation of a group cannot be challenged in court, except for a very few administrative reasons, such as the incorrect name of the group designated by the Secretary of State. Opposition groups that claim to have no grievances with the United States can also use this as a reason to question the legitimacy of their designation.

The State Department's discretion has led it to target Muslims and people of color, while also shielding white Americans from potential accountability. The first is the question of deciding who will be included in the FTO list, as not all non-state actors involved in political violence will be included. Only those actors that the United States deems necessary to designate for its own interests will be included. For example, seven of the 28 designated organizations on the first FTO list published in October 1997 were Palestinian organizations, reflecting the fact that about a quarter of the world's terrorist groups represent this particular stateless ethnic group in the eyes of Americans. It is worth mentioning that Al-Qaida was not included in the list until 1999.

The second issue is the prosecutor's choice to institute a lawsuit. Even individuals who provide material support to FTOs active in the U.S. may evade criminal charges due to judicial discretion. Kahane Chay, Israel's right-wing extremist party, was not recognized as an FTO until recently. Kahane's followers have been operating openly in the United States for many years, and their American headquarters have even been raided by the FBI. However, as far as is known, none of the defendants have been charged for materially supporting Kach. In addition, the United States Department of State last year removed the Kahane organization from the list of counter-terrorism organizations, and some of its members now hold leadership positions in the current Israeli government.

In 2010, the Supreme Court ruled in Holder v. Humanitarian Law Project that the Act does not violate the First Amendment, even if material support for the FTO takes the form of speech. The plaintiffs in the case wanted to advise two opposition groups on how to use international law to achieve their goals and to lobby Congress and the United Nations. The Court did recognize an important safeguard that, if material support is to be charged as expression, it must be provided at the direction of or in coordination with an opposition organization;

Although there is no public evidence that any members of the Student Palestine Solidarity (SJP) are collaborating with Hamas or other foreign terrorist organizations (FTO) opposing the war in Gaza, this fact is not reassuring. There are legal imperfections in the punitive interpretation of propaganda activities in the material support regulations, leaving a huge amount of room for excessive investigation. As we have said before, the line between independent propaganda and the material support that coordinates FTO rhetoric "remains blurred", and this ambiguity can be exploited by counter-terrorism operatives. Since the Association of Democratic Jurists is one of the few civil society organizations that provides counterterrorism training to federal law enforcement officers, it may exploit this legal gap to promote an over-reading of material support statutes.

Recent cases of material support targeting "personnel" have been directed against individuals who have offered to join the Islamic State group in the Middle East. These prosecutions are often the result of stimulus operations led by government agents and informants. This raises the frightening possibility that the government is using informants to induce vulnerable or mentally unstable students to pretend to have ties to the FTO in public statements. Many commentators have highlighted the FBI's use of informants in terrorism investigations, but the FBI argues that it is necessary to protect national security. This is not a purely hypothetical concern: FBI Director Christopher Wray has repeatedly mentioned that the FBI has stepped up its investigation into Hamas's activities in the United States since October 7. In fact, the ADL itself may also collaborate with organizations linked to Israeli intelligence to conduct its own campus espionage operations and report information to law enforcement. There is historical precedent for this concern: in the early '90s, the ADL was involved in a massive espionage operation against Arab-American activists on the West Coast.

Campus law enforcement agencies are unable to independently assess suitability to assist in the investigation of suspected violations of material support regulations, which does not prevent abuse. This lack of capacity is as much a matter of expertise as it is of information. The FBI considers universities to be a breeding ground for foreign agents to recruit individuals with ideologies hostile to U.S. interests and encourages campus law enforcement to participate in Joint Counterterrorism Task Forces (JTTFs). However, the FBI often treats even established local law enforcement agencies as secondary partners in the JTTF, and is especially unlikely to disclose sensitive intelligence (if it exists) to campus police. Section 507 of the Patriot Act allows the Attorney General to obtain an ex parte court order to collect private education records for authorized material support investigations without having to present evidence to the relevant judge.

Universities have good reason to consider the ADL· The Brandeis Center's letter is seen as a legitimate threat to its students and values. Shortly after the letter was released, the White House announced a series of measures to combat anti-Semitism and Islamist hate on college campuses and had the Justice Department and Department of Homeland Security "work with campus law enforcement to track hate-related threats and provide federal resources to schools." A subsequent White House press release confirmed that the Justice Department and the Department of Homeland Security "conducted a conference call with campus law enforcement as part of a broader liaison with state, local, tribal, and territorial officials to address the threat environment and share information about available resources."

The timing of the DOJ/DHS initiative and the specific agencies involved suggest that federal law enforcement may indeed be investigating whether SJP members provided material support. Five days after the open letter was issued, the head of the ADL held a closed-door meeting with the White House to make recommendations to improve campus safety. On the same day, the White House unveiled the DOJ/DHS initiative.

Typically, the Department of Education's role is to investigate and track whether universities are meeting their obligations under Title VI to protect students from anti-Semitic harassment on campus. However, the DOJ has exclusive statutory authority to lead investigations under federal material support regulations and generally coordinates with the Department of Homeland Security regarding foreign terrorism investigations. For example, FBI agents have the authority to conduct a "threat assessment" on national security grounds based on very lax factual grounds, and the FBI retains the results even after the investigation is over, potentially leaving students with an FBI dossier based solely on campus activism. Both the FBI and the Department of Homeland Security have long sought university cooperation in terrorism investigations, and both agencies have partnered with campus law enforcement to address terrorism.

Either agency, if it operates independently, can address campus safety in a number of ways that do not involve federal terrorism laws. (In fact, other initiatives in the White House's plan involve these agencies, including using the Department of Homeland Security's Cybersecurity and Infrastructure Security Agency to advise on campus safety at universities, and using Justice Department grants to "support the investigation and prosecution of hate crimes.") However, joint coordination between the two agencies and campus law enforcement suggests that the White House may adopt the Anti-Discrimination Association's recommendation to use material support investigations to address student protests.

The White House's use of the term "anti-Semitism" on other occasions gives more reason to fear that student activities could be the target of a federal criminal investigation, and the White House "accepts the International Holocaust Remembrance Alliance's working definition of antisemitism, which includes the type of speech critical of Israel, such as "denying Jews the right to self-determination, such as claiming that the existence of the State of Israel is a racist act, Some civil society groups, including the American Civil Liberties Union and some Jewish civil rights organizations, have warned that in practice, this definition has a "chilling effect, sometimes even suppressing nonviolent protests, activities, and speech critical of Israel and/or Zionism, including in the United States and Europe." For example, the definition could be used to "label anti-Semitic documents that show that the establishment of the State of Israel involves the dispossession of property from many Palestinians or the argument that "transforms Israel from a Jewish state into a multi-ethnic state that belongs equally to all its citizens."

This week, the House of Representatives overwhelmingly passed a resolution declaring that "anti-Zionism is anti-Semitism."

With such a broad definition of anti-Semitism, it is also worrying that the White House promised the Justice Department more than $38 million in grants to "civil rights groups, including organizations serving the Jewish and Arab American communities," to "support the investigation and prosecution of hate crimes." The American Civil Rights Association (ADL), which has long maintained close ties with the FBI, is presumably a major contender for this outsourcing of investigative responsibility. Thus, in the name of fighting antisemitism, the White House may end up relying on an organization that has been speciously accused of spying on college campuses and has made it clear that it wants to use the material support statute as an investigative weapon. The White House may be acting more cautiously than we feared. In the current situation, it should make it clear that it will not use material support regulations to suppress student activities. Moreover, in the short term, the possibility that the president will use the terrorism law as a tool to combat student enthusiasm may be constrained by institutional norms designed to curb such abuses. For example, the FBI treats campus investigations as "sensitive intelligence matters," which require a higher level of administrative approval before they can be initiated. At the same time, busy U.S. prosecutors may refuse to prosecute cases they deem frivolous or politically explicit, discouraging FBI agents from pursuing them.

However, as long as there is political will, these internal precautions may be ignored or revoked. Pressure to combat antisemitism on campus may prompt universities to desperately seek the FBI's power and resources. Last month, for example, American University in Washington, D.C., sought the help of the FBI to investigate an incident involving anti-Semitic and destructive posters on campus. In the context of the FBI's grasp of material support statutes as a means, this reliance on federal law enforcement for matters that would otherwise fall under the purview of campus police is extremely risky.

More importantly, the FBI is under tremendous pressure to use this tool. Congressional leaders and leading Republican presidential candidates have expressed their willingness to punish protesting Israeli students, including proposing a travel ban on Palestinian students and the cancellation of their visas. (Florida State University's SJP chapter, for example, was imposed at the direction of Gov. Ron DeSantis.) These calls signal that the White House is about to take action — both the current and the next — that could ignore the lessons of the Church Committee and use material support regulations against student protesters. University leaders should not ignore the possibility that the government, which today is calling for the closure of the SJP branch, may tomorrow ask for assistance in initiating criminal proceedings against SJP members.

First, all universities, including those that have taken extraordinary measures to close their SJP chapters, should publicly reject the ADL· Brandeis's letter and declared that any independent campus speech, no matter how inflammatory, should not be a legitimate basis for material support for the investigation. Regardless of the punitive measures they are willing to take against campus speech, they should at least publicly state that they protect students from criminal investigations based on speech.

Second, universities should not cooperate with federal or state investigations based on material support regulations in the absence of a court order. This means that universities should, to the extent permitted by law, deny DHS officials access to campuses to investigate whether students have violated material support regulations. This is consistent with the policies of numerous universities, including Columbia University, on immigration enforcement. At a minimum, a court order to obtain education records requires the attorney general to prove to a federal judge that the ongoing material support investigation was authorized and that some information has been gathered. Without this basic judicial review, universities should not allow law enforcement officers to spy on students on campus in the hope of gathering evidence for materially supported investigations.

Finally, universities should revisit the scope of their work with state governments and law enforcement on terrorism issues. If a university has signed a memorandum of understanding with state and federal law enforcement agreeing to cooperate in terrorism investigations, then universities should amend these agreements to exclude material support investigations, given the new risk of students being targeted for campus propaganda. In doing so, universities can signal that they will not allow law enforcement to use expansive and problematic criminal statutes to punish campus speech.

About the author: Anthony O'Rourke is the director of civil justice at the State University of New York at Buffalo School of Law. W. Beluk and Laura S. Professor L. Aswaard.

Wadi E. Saeed is a law professor and dean's fellow at the University of Colorado School of Law and the author of Terrorist Crimes.