[ Federal law enforcement is under pressure to launch specious
terrorism investigations into pro-Palestinian protesters on college
campuses, based solely on their public statements. The GOP hearings,
led by Trump supporters, show the dangers.]
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TERRORISM INVESTIGATIONS ON CAMPUS AND THE NEW MCCARTHYISM  
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Anthony O’Rourke and Wadie E. Said
December 8, 2023
Dissent Magazine
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_ Federal law enforcement is under pressure to launch specious
terrorism investigations into pro-Palestinian protesters on college
campuses, based solely on their public statements. The GOP hearings,
led by Trump supporters, show the dangers. _

A march with two Columbia University student groups recently banned
from campus for their support of Palestine, (Photograph by Andrew
Lichtenstein/ Corbis // Dissent Magazine)

 

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
[[link removed]] 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
[[link removed]] 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
[[link removed]] and
[[link removed]] others
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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
[[link removed]] Florida’s
SJP chapters. (The ACLU of Florida and Palestine Legal have filed a
lawsuit
[[link removed]] against
the ban, and fears of personal liability may have led the chancellor
of Florida’s state university system to walk it back
[[link removed]].)

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
[[link removed]]” and in
one case without
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pretext. The University of Pennsylvania censored
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documentary critical of Israel. And several universities, including
Columbia and Brandeis, have suspended
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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.

The material support statute, for which the ADL vigorously lobbied
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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
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the United States for many years and even had their American
headquarters raided
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the FBI. Yet we know of no defendant who ever faced charges for
materially supporting Kach. Further, the State Department removed
[[link removed]] Kach
from the FTO list last year, and several of its members
have leadership
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Israel’s current government.

Even more alarming has been the expansion of what constitutes material
support. In 2010, the Supreme Court held in _Holder v. Humanitarian
Law Project_
[[link removed]]_ _that
the law did not violate the First Amendment, even when the material
support to an FTO takes the form of speech. Specifically, the
court’s decision stated that material support in the form of a
“service,” which encompasses “personnel” as well as “expert
advice or assistance” and “training,” were all legally within
the law’s ambit. It specifically noted that material support in the
form of speech can be criminalized even when that speech is geared
toward urging an FTO to use nonviolent means in service of its
political goals. The plaintiffs in _Humanitarian Law Project_ had
wanted to offer advice to two FTOs on how to use international law to
further their goals and lobby Congress and the United Nations. The
Court did recognize an important safeguard when it ruled that, for
material support as speech charges to attach, the material support
offered must be at the direction of, or in coordination with, an FTO;
independent advocacy remains protected. But this is still a far cry
from the financing-focused “money is fungible” logic behind the
statute when it first passed.

It is of little comfort that there is no public evidence
[[link removed]] any
SJP student members coordinated with Hamas or any other FTO in
protesting the Gaza war. The case law construing the material support
statute’s punishment of advocacy is so underdeveloped that there is
considerable room for investigative overreach. As one of us
argued previously
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the line between independent advocacy and material support as speech
in coordination with an FTO “remains unelaborated,” a gap that may
well be exploited by counterterrorism agents. And since the ADL is
one of the few civil organizations that trains federal law
enforcement on counterterrorism
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it can use the gap to advance its overreaching conception of the
material support statute.

Some recent cases of material support as “personnel” have targeted
individuals who offered to fight with the Islamic State organization
in the Middle East. These prosecutions often result from a sting
operation led by government agents and informants. This raises the
frightening specter of the government using informants to goad
vulnerable, and perhaps mentally unstable, students into pretending to
have a connection with an FTO while making public statements. Numerous
commentators have highlighted the many problems with the FBI’s use
of informants in terrorism investigations, which the bureau defends as
necessary to protect national security. This is not a purely
hypothetical concern: FBI Director Christopher Wray has repeatedly
[[link removed]] mentioned
[[link removed]] ramping
up investigations of Hamas activity in the United States since October
7.

Indeed, it is possible that the ADL itself may coordinate with groups
connected to Israeli intelligence to conduct its own campus spying
operations
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report the information to law enforcement. There is historical
precedent animating this concern: the ADL was implicated in
a large-scale operation spying
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Arab-American activists on the West Coast in the early 1990s.

Campus law enforcement agencies are not in a position to guard against
such abuses through independently assessing whether it is appropriate
to help investigate a student for violating the material support
statute. This lack of capacity is a matter of both expertise and
information. The FBI regards
[[link removed]] universities
as rich soil for foreign agents to recruit people with ideologies
hostile to U.S. interests, and it encourages campus law enforcement to
participate in Joint Terrorism Task Forces
[[link removed]] (JTTFs). However, the FBI
tends to treat even sophisticated local law enforcement agencies
as second-class partners
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JTTFs, and it is particularly unlikely to reveal sensitive
intelligence—if it exists—with campus police. Indeed, Section 507
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Patriot Act allows the attorney general to obtain an ex parte court
order to collect private educational records for an authorized
material support investigation without needing to even provide such
intelligence to a relevant judge.

There is reason for universities to treat the ADL–Brandeis Center
letter as a legitimate threat to their students and values. Soon after
the letter’s release, the White House announced a set of actions
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combat anti-Semitism and Islamophobia on college campuses by having
the Departments of Justice and Homeland Security “[partner] with
campus law enforcement to track hate-related threats and provide
federal resources to schools.” The White House’s subsequent press
release
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that DOJ and DHS have “hosted calls with campus law enforcement as
part of broader outreach to 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 a real possibility that federal law enforcement will
investigate SJP members for material support. Five days after issuing
its open letter, the ADL’s director met with the White House in
a closed-door meeting
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deliver recommendations for improving campus safety. The White
House unveiled
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DOJ/DHS initiative the same day.

Ordinarily, it would be the Department of Education’s remit
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investigate and track data on whether universities are fulfilling
their obligations under Title VI
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protect students from anti-Semitic harassment on campus. The DOJ,
however, has the exclusive statutory authority to lead investigations
under the federal material support statute and typically coordinates
with DHS on foreign terrorism investigations. For example, FBI agents
are authorized to open a “threat assessment” on national security
grounds relying on a very loose factual basis, and the FBI will retain
the results of that investigation even after it has been closed,
potentially leaving students with an FBI file based solely on campus
activism. Both the FBI
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cooperation on terrorism investigations, and both agencies cultivate
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campus law enforcement to address terrorism concerns.

Either agency, operating independently, might work to address campus
safety in a number of ways that do not implicate federal terrorism
laws. (Indeed, the White House plan involves other initiatives that
involve those agencies, including the use of DHS’s Cybersecurity and
Infrastructure Security Agency to advise universities on campus
security and DOJ grants to “support the investigation and
prosecution of hate crimes.”) The joint coordination of these two
agencies with campus law enforcement, however, suggests the White
House may follow the ADL’s suggestion and use material support
investigations to address student protest.

The White House’s use of the term “anti-Semitism” in other
contexts offers further reason to fear that student activism may be
targeted for federal criminal investigations. In its May 2023 National
Strategy to Counter Antisemitism, the White House “embraced” the
International Holocaust Remembrance Alliance’s working definition
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anti-Semitism, which includes types of speech critical of Israel such
as “[d]enying the Jewish people their right to self-determination,
e.g., by claiming that the existence of a State of Israel is a racist
endeavor.” A number of civil society groups, including the ACLU,
Amnesty International, and several Jewish civil rights organizations,
have cautioned
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in practice, this definition has served to “chill and sometimes
suppress . . . non-violent protest, activism and speech critical of
Israel and/or Zionism, including in the U.S. and Europe.” For
example, the definition can be used “to label as antisemitic
documentation showing that Israel’s founding involved dispossessing
many Palestinians” or arguments “to transform Israel from a Jewish
state into a multiethnic state that equally belongs to all of its
citizens.” Going beyond even this definition, the House passed a
resolution
[[link removed]] this
week by an overwhelming vote declaring “anti-Zionism is
antisemitism.”

Given these expansive definitions of anti-Semitism, it is also
concerning that the White House is promising over $38 million in DOJ
grants to “civil rights groups, including awards to organizations
serving Jewish and Arab American communities,” to “support the
investigation and prosecution of hate crimes.” The ADL, which has
close and long-standing connections to the FBI, would presumably be a
prime contender for this outsourcing of investigative responsibility.
Thus, in the name of combating anti-Semitism, the White House may wind
up relying on an organization that has plausibly been alleged to spy
on college campuses, and has expressly avowed a desire to wield the
material support statute as an investigative weapon.

The White House may be acting with more restraint than we fear—in
which case it should affirm it will not use the material support
statute to target student activism. Moreover, a president’s zeal to
weaponize terrorism laws against students may be tempered in the short
term by institutional norms meant to safeguard against such abuses.
For example, the FBI treats campus investigations as “sensitive
intelligence matters
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that require higher levels of administrative approval to launch. And
busy U.S. attorneys may decline to prosecute cases they deem frivolous
or politically problematic, and thus disincentivize FBI agents from
pursuing them.

These internal guardrails, however, can be ignored or eliminated when
there is political will to do so. The pressure to combat
anti-Semitism
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campus may make universities eager to enlist the power and resources
of the FBI. Last month, for example, American University in
Washington, D.C. sought the FBI’s assistance
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investigate an instance of anti-Semitic vandalism of posters on
campus. This eagerness to rely on federal law enforcement for matters
that were once the province of campus police is dangerous when the FBI
has the material support statute to wield as a tool.

What’s more, the FBI is facing considerable pressure to wield this
tool. Both congressional leaders and the leading GOP presidential
candidates have expressed their desire to punish
[[link removed]] student
protesters of Israel, including with proposed travel bans and visa
cancelations for Palestinian students. (The Florida chancellor’s ban
of state university SJP chapters was at the behest
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Governor Ron DeSantis.) Such calls suggest forthcoming moves—if not
by this White House, then by the next—to discard the lessons of the
Church Commission and use the material support statute against student
protesters. University leaders should not ignore the possibility that
today’s call to shut down SJP chapters will be followed by a
government request to assist in the criminal prosecution of SJP
members.

How should university leaders respond? To begin, all of them, even
those who took the extraordinary step of shutting down their SJP
chapters, should publicly reject the ADL-Brandeis letter and affirm
that no independent campus speech, no matter how incendiary, serves as
a legitimate basis for a material support investigation. Whatever
disciplinary measures these universities may be willing to impose on
campus speech, they can at least draw a public line at protecting
students from criminal investigations based on that speech.

Second, universities should not cooperate with federal or state
investigations under the material support statute without a court
order. This means that universities should, to the extent allowed by
law, refuse to allow DHS officials on campus to investigate students
for material support violations. This is a simple extension of the
policy many universities, including Columbia
[[link removed]],
have adopted with respect to immigration enforcement. Obtaining a
court order for educational records at least requires the attorney
general to certify to a federal judge that an authorized material
support investigation is underway and has generated some information.
Without even this meager judicial check, universities should not
permit law enforcement officials to surveil students on campus in the
hope of generating fodder for a material support investigation.

Finally, universities should reconsider the scope of their cooperation
with state and law enforcement on terrorism matters. If universities
have memoranda of understanding with state and federal law enforcement
agreeing to cooperate on terrorism investigations, they should modify
these agreements to exclude material support investigations, given the
new risk that students will be targeted based on campus advocacy. By
doing so, universities can signal that they will not give law
enforcement the license to use an expansive and problematic criminal
statute to punish campus speech.

_[ANTHONY O’ROURKE is the Joseph W. Belluck & Laura L. Aswad
Professor of Civil Justice at the University at Buffalo School of Law,
State University of New York._

_WADIE E. SAID is a Professor of Law and Dean’s Faculty Fellow at
the University of Colorado Law School and the author of Crimes of
Terror
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* Protest
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* new McCarthyism
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* McCarthyism
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* Anti-Defamation League
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* ADL
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* Israel
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* Palestine
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* Palestine solidarity
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* zionism
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* Anti-Zionism
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* Israel-Gaza War
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* Students for Justice in Palestine
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* Jewish Voice for Peace
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* anti-Semitism
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* Islamophobia
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* campus speech
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* MAGA
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* Elsie Stefanik
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