The new “terror” bill

Transcript

The new “terror” bill 

This is Battling the IHRA Definition, a new podcast by the Institute for the Critical Study of Zionism. Today’s episode covers a new right-wing attack on Palestine-related organizations in the United States. Our guests, legal scholar Darryl Li and policy expert Lara Friedman, discuss a U.S. federal “anti-terror” bill. Without much scrutiny or due process, this proposed bill would strip progressive nonprofits of their tax exempt status to halt their ability to function.

We have previously released this episode in the feed of our other podcast called Unpacking Zionism. Starting next week, Battling the IHRA definition will be posting brand new original episodes that have not been published anywhere else so stay tuned for that.

You can find the transcript of this conversation, biographies of our speakers, and resources on the IHRA definition and how to resist it on our website https://criticalzionismstudies.org. Check out the episode notes for more details.

Here is the episode called “The new ‘terror’ bill.”

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EMMAIA: Welcome to Unpacking Zionism. I’m Emmaia Gelman, and this is a special episode where we’re bringing you a talk on new so-called “anti-terror” legislation moving through the U.S. Congress. It targets non-profit organizations that oppose Israel’s genocide of Palestinians. Related legislation also targets universities, immigrants, students, and protesters. We’ll hear how bills that purport to target “terror” are closely related to right-wing bills that purport to target “antisemitism”, and how they amount to new tactics to shut down progressive and left movements while leaving right wing movements untouched. Our speakers are legal scholar Darryl Li and US foreign policy expert Lara Friedman, with Heike Schotten and me as moderators.

The Institute for the Critical Study of Zionism has been been hosting episodes on keywords for Critical Zionism Studies, aiming to build deeper understanding of Zionism as a multi-faceted mode of power. We’d file this one as a study of the keyword “terror.” But there’s no studying anything if we don’t also resist efforts to jail, deport, or kill people who name and confront repressive power.

We’re grateful to our speakers who arranged to join us on short notice. A transcript of this talk is available on our website, criticalzionismstudies.org, along with Darryl Li’s recent report “Anti-Palestinian at the Core: The Origins and Growing Dangers of U.S. Antiterrorism Law”, published by Palestine Legal and the Center for Constitutional Rights. And we also post Lara Friedman’s most recent legislative round-up which she publishes at the Foundation for Middle East Peace website. Thanks for joining us.

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EMMAIA: I’m Emmaia Gelman. I’m the director of the Institute for the Critical Study of Zionism. We’re here to have a conversation about the legislation that’s targeting Palestine solidarity and universities and NGOs and in particular, the legislation that uses and expands terror law. So we’re going to hear about that from Darryl Li, and then we’re going to hear a sort of response and further information from Lara Friedman. And then Heike Schotten and I will be managing Q&A. 

Darryl Li is an associate professor of anthropology and also in law school, University of Chicago, and has done important movement and research work on the legal origins of antiterror law. Lara Friedman is the President of the foundation for Middle East peace and also a very important tracker and analyst of legislation especially around antisemitism-focused, IHRA-focused legislation. Heike and I will introduce ourselves afterward. We are both members of the collective of the Institute for the Critical Study of Zionism.

Darryl, please take it away.

DARRYL: Hi, everyone. It’s good to be with you. So I’ll just start off by trying to step back and give us, just try to wrap our heads around everything that’s going on. So my sense is that Zionist lawfare in the United States at the moment, I see two major strands. The first is an attack on institutions of higher education. And the second is an attack on nonprofits that support movement work. And for the first strand, the higher education strand, the main weapon, I guess, is allegations of antisemitism and federal civil rights law, title VI, things like that. And the main weapon for attack on the nonprofit sector is terrorism law.

This is at the broadest possible level just to, you know, kind of situate all the different things that are going on. Within each of those strands, what we see is attempts to engage all three branches of the federal government. So to involve the judiciary through lawsuits, to involve the executive branch by demanding or inciting that they use their investigative powers, right? So in the higher education context, these are letters that groups send to the Department of Education’s Office of Civil Rights to get them to open Title VI investigations against universities for antisemitism. On the nonprofit side, it’s things like the Yellen letter. And then, of course, there are attempts to engage the legislative branch in Congress, right, whether through Congress using its own sort of investigative powers, as you’ve seen with hauling in university presidents, getting them to testify and then having them engage in this sort of ritual submission, or through passing legislation. And there’s incredible number of rather insane proposals floating around in Congress. Lara can say a lot more about them than I can. I’ll just say that the general pattern is that because of the bipartisan consensus in support of Zionism in this country, it’s really a race to the bottom in terms of racist grandstanding. So every legislator basically has an incentive to outdo others with more outlandish proposals. 

My general take is that we have to be vigilant about all of these laws or all these bills, I should say, but oftentimes it’s the ones that seem less crazy on their face that are the most dangerous because they’re the most likely to pass. And that’s how I see the proposed bill to strip nonprofits of their tax exempt status on the allegation of them being terrorist supporting organizations. Anyway, so that’s just the broad avenue, right? So higher ed, nonprofits, antisemitism, terrorism, and working through the different branches of the federal government. 

EMMAIA: Darryl, can I ask you to sort of take a step back and outline the bills that we’re concerned about and the Yellen letter just to not presume too much knowledge. 

DARRYL: Okay, so the, the letter, is from several key legislators, the Chairs of the House Committee on Oversight and Accountability, and the Committee on Education and the Workforce. The latter is chaired by Virginia Fox. She’s been running a lot of these congressional hearings we’ve been seeing with like the university presidents and so on. And this is a letter to the Secretary of the Treasury, Janet Yellen. And it asks that the Treasury Department hand over any so-called suspicious activity reports, SARs, which I’ll say a bit more about what that means in a minute, in connection to a list of organizations and this list includes Students for Justice in Palestine, which is not a registered legal entity, and includes American Muslims for Palestine, If Not Now, JVP, also like very mainstream organizations like Open Society Foundation, Rockefeller Brothers, Tides Foundation, the Bill and Linda Gates Foundation. It also includes Palestine legal. Anyway, so if you open the link, you can see the full list and it asks for suspicious activity reports. So an SAR is basically a document that banks are legally required to file the government whenever they see a transaction that could theoretically be considered suspicious.

And so essentially they’re legally mandated form of bureaucratic-ass covering. 96 or 97 percent of these SAR reports do not lead to any further investigated or law enforcement action. But they create this massive database and essentially, this is like, this is, this is a fishing expedition of like, you know, of the broadest possible kind like trawling an ocean of all of these documents, which, yeah, like the government itself is not particularly going to take action on many of them, but in the hands of these congressional committees, they will, you know, find things that they can spin in ways that fit their agenda. So I think that’s what’s particularly alarming about this letter. 

The fact that it includes such a wide range of organizations, including like very mainstream ones, I mean, I don’t know what, Lara, I don’t know what your sense is, but my sense is that this is a way to maximize the appeal of this campaign, especially within the Republican caucus because of course a lot of these, like, especially Open Society are, you know, they’re part of the standard sort of, they’re one of the boogeyman, right, of like a lot of the GOP stuff. And, you know, they’re very well resourced and are in a much better position to defend themselves than some of these other groups.

So I, you know, I think adding groups like this is helpful in sort of getting a broader coalition of right wing actors interested. And, but I also, I think, you know, we have to be very, very mindful of the groups on this list that are much more vulnerable than, like, the big time issues. So anyway, that’s what this letter is about.

In parallel the bill that I’m most concerned about now in Congress is the one, it’s passed the House, it’s currently under consideration in the Senate. And what this bill does is it allows the Secretary of the Treasury to declare any nonprofit to be a so-called terrorist supporting organization. And what does that mean? It means okay, so as we all know, there are already many lists of terrorist groups and terrorist individuals that the U.S. government maintains. And there’s like thousands of people, entities, and whatever, all these different lists. Under this bill, the Secretary of the Treasury can point to a non-profit and say, hey, we believe you are providing material support to one of these other groups or people that’s on a terrorism list. And therefore, you are a terrorist supporting organization. So it’s almost like a list that’s parasitical on the existing lists. And if you are placed on that list, then you will lose your tax exempt status. And if you want to challenge this in court, we, the government, have the right to use secret evidence in those proceedings.

So that’s kind of like the very, very broad outline of what the bill does. Now, we should note, of course, that providing material support to foreign terrorist organizations, which is one of the many lists that are out there, that, of course, is already a crime. So the government already has very expansive powers for shutting down nonprofits. The government also has the power to, so there’s the material support statute that I mentioned, which is a criminal the criminal law, criminal statute, but separately, the government has the power to seize the assets of any entity, including U.S. entities, that it deems to be terrorist organizations.

And if those entities are also nonprofits, of course, they also lose their nonprofit status. So, the government has already shut down nine NGOs, and unsurprisingly, they are all sort of like Muslim, you know, charities. So that power already exists on the books. I think what’s really, so obviously with the bill, there’s like your standard sort of civil liberties and the First Amendment concerns, right?

Like, no due process, use of secret evidence this can be used in a politicized way, like, yes, those are all, like, very, very serious concerns. What I think is really significant about this bill is that in a way, it would be the first real domestic terrorism blacklist that the United States has had.

So despite everything with the war on terror and despite everything with like January 6th, for example the structure of us terrorism law largely turns on a distinction between foreign and domestic. So there is no blacklist of domestic terrorist organizations. There’s a legal reason for that, which is the First Amendment and the right to association. And there’s a political reason for that, which of course is, you know, white supremacist groups, right, and people in the government not wanting that to be sort of treated as terrorist organizations. 

Internationally, the First Amendment concern doesn’t apply, right. So, Congress, the courts, whatever, they’re very comfortable with the executive branch having the power to designate whoever it wants internationally as a terrorist group or as a terrorist person, right? And of course those are used in the discriminatory ways that we are all familiar with. So there’s like incredible discretion internationally and there’s like some constraints domestically.

Now, the material support statute that was passed in 1996 created a kind of like, a little exceptional passageway between foreign land where the government can do whatever it wants and domestic land where it has some constraints, right? So under the material support statute, if you are accused of providing material support to a foreign terrorist organization, you can go to jail, right? And material support is defined in super, super broad ways. It can be money, it can be advice, you know, all of these things. So that has been criticized for, you know, for the past 25 plus years. That is the most commonly used charge that federal prosecutors throw at people in terrorism cases. It’s been used to send all of these, like, especially like American Muslims to prison, right?

So that’s the law that we’ve been familiar with and we’ve amply criticized. The one thing that I’ll say about that law, it’s like, saving grace is not the right word, but one of the things that’s, that’s cabined its, its impact is that you have to be accused of providing material support to a group on one list called the foreign terrorist organization list, right, which is not the biggest terrorism list that the government has. So there’s a few dozen groups on that list. 

But there’s a lot of other terrorism lists that are out there where you can’t be criminally charged for providing support to those people. So it’s really scary and it’s really expensive, but it’s, but what this bill that’s under consideration in Congress does now is it says if you provide material support to any group that’s on a whole bunch of other additional terrorism lists, you can lose your nonprofit status, right?

So it’s a much, much broader sort of potential field of applicability. And what’s really key here is that because it always comes down to the accusation that you are assisting a foreign organization, basically, because the baseline terrorism lists are custom designed for so-called foreign threats, right? What this bill does is it would say, okay, if you are a terrorist supporting organization, you can lose your nonprofit status. So it would be a domestic terrorism list but one that by design pretty much excludes domestic groups like white nationals, right? That I think is what’s really scary and significant about this bill.

It would be like, the government doesn’t want to have like a normal domestic terrorism organization list because they don’t want to run into the problem of like, what do you do with white nationalists? So instead they’ll say, here’s a list of domestic groups that support foreign terrorist threats, right. So that way they can bake in the anti-Muslim, anti-Arab, other people of color forms of discrimination in ways that seem like more legally or constitutionally justifiable.

I hope that made sense. I can, I can explain a bit more. The other thing about this that’s really important to keep in mind is that like I said, under existing law, the government can seize the assets of U.S. entities if they call them terrorist organizations. That power, as I said, it’s been used to shut down nine nonprofits since 2001.

You know, the way the people who drafted this current bill, the way they talk about it, it’s like, oh, you know, it’s only been used nine times. Clearly there’s a problem. It’s like not being used enough, blah, blah, blah. They sort of in a weird way have a point, which is that for the government to seize the assets of a U.S.-based organization without any due process, which I said, which again, the law already allows the government to do, that is the sort of thing that a lot of judges are skeptical of. And I think it’s fair to say that one of the reasons why the government has not used this power more is that they are afraid of having a case go to court in which a precedent is set that actually constrains their power. So in a weird way, they have super expansive powers on the books that I think a lot of lawyers in the justice department are probably reluctant to push as far as they can because they’re afraid they might end up getting more constraints placed upon them.

This bill gets around that problem because in the eyes of the law, losing your nonprofit status is much, much less severe than having your assets seized, right? If you lose your nonprofit status, in theory, people can still donate to you. You can still run your sharing. You can still do your thing. It’s like, quote unquote, not a big deal. Now we all know that practically speaking, the outcome is the same because if the government declares you a terrorist supporting organization, the stigma that’s involved will lead banks, insurance companies, other companies to refuse to do business with you. So you will probably have to shut down anyway.

It’s just that instead of the government telling you, you have to shut down, they just create conditions under which it’s impossible for you to operate. But at the same time, because it is at least in theory, a less severe form of sanction, it’s less vulnerable to being challenged by the courts. So like one analogy for thinking about this is like you know, when they started giving cops tasers, the idea was like, oh, well, you have less legal means at your disposal, therefore you won’t kill as many people. And what we see is that cops don’t kill fewer people, they just tase more people, right? So a less severe tool or weapon is introduced. And because it seems less severe on the surface, the incentives for using it are actually a lot stronger than some of the things that are like more, like more damaging or more powerful as it were.

So anyway, that’s my read on sort of like what’s happening with like the politics of the bill, why it has a fair bit of bipartisan buy-in. So I think there’s a fair number of things People in Congress who think of themselves as like pro-civil liberties. We’re saying things like, oh, well, the law is not so bad. This bill is not so bad. It has some protections. It has some guardrails. And not only are those protections cosmetic and bullshit they’re actually features, not bugs, like they’re designed to make the bill seem more palatable. And I think it’s for that reason that it is actually more dangerous. And in my opinion, it’s like the most dangerous domestic terrorism legislation in the United States.

EMMAIA: Great. Thank you for that overview. And there are already some questions. And after Lara speaks, we’ll come back to them. And also, I’m sure people have questions about how this impacts higher ed spaces as well.

LARA: Thank you. And I think Darryl covered this all really well. I’ll just add a couple of things. I will put into the chat the running list I have, which I actually haven’t updated yet this week of legislation that’s pending. So what we’ve seen since October 7th has been a nonstop barrage of legislation. It seems to be sort of like a creative thinking exercise or sort of an auction to the, you know, trying to race to the bottom. All of this, though, is predicated on a shift in framing that we started to see immediately after October 7th, and we saw this with the ADL, which called for the FBI to investigate campus protesters insinuating, if not directly alleging, that they are being funded, or they are funding, or they are being puppeted by, or they are carrying the wishes of Hamas, which is a U.S. designated foreign terrorist organization, obviously.

Since really the beginning of this period, starting October 7th, but it’s been a constant escalation, we have seen a shift and an expansion or escalation in language from this is anti-Israel or this is antisemitic to this is pro-terrorist, which has very specific, you know, echoes for people. And this is what Darryl is talking about, and you should read the report on how antiterror law has been used in Israel on the Palestine sector previously. That this is pro-terrorist, and also increasingly we’re hearing the language of anti-American or un-American, which I tweeted a thread about yesterday and should give people pause for anyone who studied both McCarthyism and the Red Scare of the 1970s, seen to 1920, it is a clear and deliberate escalation of language and the terrorism piece is a key part of that.

And again, that fits into the sort of Red Scare and McCarthyist framing, which is, you know, you look for people who you say are being serving nefarious foreign interests. That’s a big piece of it. So we see that shifting of language. We see this in law, and you can look at the long list of laws, and there’s more of those this week, which I’ll add.

I agree with Darryl. I think some of the more, you know, I think a lot of these won’t pass. There was a lot, there was a bill introduced, not a lot of bills. There was a bill introduced, I think, last week which was, you know, shows you sort of the depths. This is a bill that basically says that students who are, I think, arrested or convicted of breaking U.S. law in the protests will be deported to Gaza. And that includes American citizens as I read the law. And it’s remarkable because the guys who back this law frame it explicitly as we don’t think they’ll survive a day there, but let them try. So effectively they are arguing that students should be sent into an active war zone.

You know, irrespective of the fact that Israel doesn’t really want pro-Palestine protesters anywhere near Palestinians. But it’s a snark law, but it does tell you where this, where this feeling is. With the broader laws, I think that the, you know, I think Darrell’s right. The key law that people should really, the key legislation that’s moving that people should pay attention to is the NGO bill. And I would encourage people to actually watch the hearing where this bill was marked up. And the framing in that hearing was very much what Darrell said, an argument that the wheels of justice, the criminal side of anti-terror law, are simply not effective, they’re not moving fast enough, they’re not used often enough, and that this is a way of kind of short, circumventing or short circuiting that process to something that’s much faster and that can take down these evildoers.

As I read the law, I think it actually is even more expansive than people understand because the Secretary of Treasury, and again, we don’t have, we’re not going to have, you know, clear due process under this law, but, you know, I read it to, to include perhaps, you know, going after organizations that are not directly funding anyone on the anti-terror list, but are funding groups that other people say the government of Israel allege are tied to groups on the anti-terror list. It’s the attenuated part of it worries me tremendously, and it’s clearly meant to be weaponized. And I would point out that shortly after this bill passed the House, we saw a statement come out from a right-wing group stating explicitly that the first target should be Open Society, Soros, for their alleged support for terror. 

As far as the Yellen letter goes, in the Yellen letter, I think has everybody paying, you know, at least waking up. I think, you know, anything that makes people wake up and pay attention is good because this is happening, you know, kind of quietly and it’s sort of like until it becomes a problem, you know, for me, most people think it’s not a problem for me, I’m not going to pay attention.

And I think, you know, those of us who watch sort of the free speech trends here would say, whoa, you need to be paying attention because it’s eventually going to be a problem for you, even if it isn’t already. If you look at the list of groups on the Yellen letter it appears to have been taken either inspired by or taken directly from a report from NGO Monitor, which is a very effective nonprofit organization based in Jerusalem, close to the Israeli government, which has been basically arguing for years that every organization in the Palestine sector nonprofit organization and every funder, including governments that fund in that sector are guilty of funding terrorism. That’s their bottom line. It’s all terrorism. And obviously, you know, they see this as a, as a great moment for them. 

But that letter seems to me, and I actually said this to a journalist, it seems to me to be a combination of, you know, a fishing expedition. This is what Darryl’s talking about. You get these SARS, which are normally confidential and normally go nowhere. And, you know, if there are SARS that come out of this, then they can say, see where there’s smoke, there’s fire. And I also think it’s just a mudslinging exercise meant to paint in the public consciousness, the idea that there is this sector that is tainted by support for terror.

And it is, again, it’s the Palestine sector, but in this letter, it goes much, much broader than that. The Gates Foundation is on it which I think goes to the last piece of this trend. And this goes back to my McCarthyism and Red Scare. There has always been a sector that is looking to shut down work around Palestinians. We’re not, nobody is surprised, right? That’s not new. And, you know, accusing people of supporting terror or being antisemitic has been part of that for a very long time. The difference now is that this has been, this line of argument now has been attached to a broader effort, which is going after everything that is so-called woke.

And that’s what we’re seeing with the attacks on academia. We’re seeing what the attacks on foundations and essentially at ESG, the ethical investing, DEI. It’s all part and parcel of the same sort of, we are going to get, we are going to take down woke America and everything that supports it. And by attaching this to antisemitism I think there is, in some ways, they’ve proven that it’s successful, it’s a way to to neutralize or at least somewhat quiet the opposition from the forces that normally would be out there defending the NGO sector and foundations and academia. 

I will say that that I don’t know if we’re quite at a tipping point, but I do think there is something of a there’s something happening now. We saw this with the NGO bill after it passed, and there was a little bit of coverage of the press. And now the NGO bill is the bill to take away the NGOs, the tax exempt status. That’s what I call the NGO bill. We started to see some noises from more conservative libertarian side saying, wow, this, this is, what are you doing? You know, this could, this could be bad for us. And this is the kind of thing that we oppose asking, you know, government to do when it’s aimed at us. 

We saw something similar with the Antisemitism Awareness Act, which wasn’t about terrorism, was about antisemitism. But after that bill passed the House, and I’ve said on a different call, you know, if for you know, the past 20 years the Israel, Palestine, rights, and human rights sector has been forced effectively to, to be the standard barrier, standard bearer of the free speech agenda to defend what we do and not always supported by people who claim to care about free speech.

After the Antisemitism Awareness Act passed, we saw just an outpouring of statements from, you know, the libertarian, the conservative free speech warriors basically saying, whoa, what in the world is this? This is a terrible idea. We support fighting antisemitism, but this is, this is effectively a new form of DEI put into law and this is unacceptable. So I do think we may be starting to hit something of a tipping point with that. 

Last thing I’ll say is on the Yellen letter, if people There was an article in Reason yesterday or this morning, one of those, I don’t remember, about the Yellen letter and, and the hook the journalist used for it was pointing out the hypocrisy of Republicans who have long objected to this kind of weaponizing of the IRS for ideological purposes. You know, whether that makes any difference, you know, I have for years noted these amazing speeches made by people like Marsha Blackburn on the Senate floor in defense of free speech on campus and even the ideas we don’t like.

And what she means is free speech for conservatives that she feels are under attack. And she doesn’t seem to be bothered later on voting for things that quash free speech of people on Israel-Palestine. But there is a contradiction. There is a blatant contradiction. And I don’t know if what we’re facing here is a galvanized anti-woke right that’s convinced that there will never again be anyone in power who doesn’t agree with them after this election, so they’re not worried about giving tools to a future president that might be used against them.

Or if we’re actually starting to see some shift from people who say, well, this is a really bad idea, and it conflicts with our our agreed on basic ideas of how you don’t weaponize government against free thought and against free speech and against the nonprofit sector. So I’ll leave it there. 

HEIKE: Thanks both of you so much. This is really informative. My name is Heike Schatten. I’m professor of political science at UMass Boston and part of the Institute for the Critical Study of Zionism. Maybe just a first question for you, Darryl. You’ve written for Palestine Legal about the innate or sort of ingrained anti-Palestinianism of antiterrorism law in the U.S. I was wondering if you could situate this particular proposed bill within that context for us, within that history for us. And also, if you could, at least for my ignorance, if no one else’s, also situate it in relationship to, my understanding is that some states have passed domestic counterterrorism laws. I know we don’t have federal domestic counterterrorism legislation, but like in Georgia, right, the Stop Cop City protesters have been convicted or have been charged with domestic terrorism. So if you could, if you could talk about this bill in relationship to both of those things it’d be great. 

DARRYL: Yeah. Thanks for that. So the document that I refer to is a briefing paper that I’ve worked on for Palestine Legal and the Center for Constitutional Rights. I think that I’ve mentioned both. It’s called “Anti-Palestinian at the Core,” and it basically just walks through the development of U.S. terrorism law before 9/11 and shows how pretty much every key step in the expansion of the terrorism law regime that opposition to Palestinian liberation was one of the main motivating goals. This is not particularly shocking, but I think just connecting the dots is a helpful exercise. 

So that’s what, so the report goes through that history. And yeah, the bills that we’re seeing are entirely consistent with that history. So everything that I said earlier about how there’s a bunch of crazy bills right now, we should pay special attention to the ones that seem less crazy. That is a lesson that I draw from the history that was reconstructed in that white paper.

So again, it’s interesting that it’s that like we don’t, you know, there was some discussion about a domestic terrorism statute after January 6. Didn’t go anywhere. So again, we have this thing where Palestine, because of the particular political configuration around Zionism in this country, where there are enough centrists and even kind of left progressive type folks who are willing to, you know, to align with the right, it creates this really strong sort of bipartisan sort of coalition in support of doing things to crush Palestine that may not exist on other issues, especially on taking action against like white nationalist groups. So that coalition is there now. I think Lara raised a really interesting point, which is that this sort of part of the configuration of this coalition, I mean primarily it’s the left center that’s being torn apart. This is why, like, you know, Biden is probably, well, I don’t know, probably, but it’s, you know, it’s in danger of losing.

And yeah, I mean, many people have written about like the progressive except Palestine sort of phenomenon. I also have a piece in Hammer and Hope magazine where I talked about this in terms of what I call boomers Zionism, baby boomers Zionism, and sort of compulsory Zionism. So there’s this way in which parts of the left and center align with the right around Zionism. But then I think to a lesser extent Zionism isn’t. There are cleavages around Zionism on the right as well. So like there are isolationists who are like, why are we sending billions of dollars to Israel? There’s like people whose antisemitism is like compatible with the strategic alignment with Zionism. And then there’s people whose antisemitism is not compatible with the strategic alignment with Zionism, right? And, yeah, I think everything that Lara said about these folks who are like, wait a minute, the thought policing around Zionism, insofar as we see a resemblance with like the DEI language or anti-racist language they are against that, that is part of this legacy, right? It’s part of the legacy of centrists and liberals being such an important part of the Zionist coalition and being part of the post-civil rights like grammar of like liberal multiculturalism or like neoliberal racial management in this country, that they, they have those kinds of tools, those kinds of sensibilities, right?

So that suspicion from some parts of the far right makes a lot of sense. So we’re in this sort of like weird moment of flux. But I do think it happens to be that the right is more cohesive on these issues and will be able to capture centrists in some parts of the progressive spectrum around scientists, much more so than the left will be able to consolidate. Which is why I think we’re in for some very, very scary times in the United States. I’m sorry, there was a second part to your question that I…

HEIKE: the connection with the some states having passed domestic. 

DARRYL: Okay, right. So I want to be clear about something. When I say we don’t have a domestic, like a serious, like there are laws that talk about domestic terrorism. What we don’t have is a legal mechanism to declare domestic groups to be terrorist organizations and outlaw. That’s where you have a First Amendment problem. So a lot of the state and federal laws that talk about domestic terrorism, there are things like, oftentimes it’s just like stiffer sentences on things that are already illegal. Or it’s like you know, stuff that pertains to like specific categories of like weapons, right? Like bombs and things like that. So in my opinion, like again, his is something that I am intending to do more research on, so I might be speaking out of ignorance and I might just recant everything I’m about to say, but I don’t see domestic terrorism laws as adding a lot of new things in terms of repressiveness. 

I think, like when I think about like repression of like radical movements, abolitionist movements, I’m much more concerned about like, things at the technological and policing and surveillance levels than about things like the level of like defining new clients and things like that. Again, I could be wrong and I, again, in the chat, there’s a really interesting point about the anti-masking bill in North Carolina, but it’s exactly that. It’s the fact that it’s not about terrorism as such, right? That it has to, that these efforts to oppress domestic groups have to like have other kinds of ideological justifications, other tools, right, that I think is, is what’s really interesting, that despite everything, terrorism, even though it gets applied and used against a bunch of other groups and a bunch of other causes, it still has a kind of institutional logic that’s connected to its origins in American imperialism and in the U.S. alignment with Zionism.

LARA: The question of domestic anti-terror law is super fraught for people who focus on terrorism. And part of the reason is we have really good criminal law that deals with all sorts of things that would be, that would fall under terrorism, right? The problem is that once you start getting trying to define terrorism in domestic law, you immediately get into an ideological discussion. And that’s really why we haven’t done this yet, right? There’s you know, this this it’s not a whole lot different than than trying to define, you know, what is what is going to be disallowed speech, right? There are gulfs and it really is a distraction from the fact that there is criminal law that addresses this.

And on top of that, that folks who want to politicize the prosecution of people for hate reasons, don’t need to call, don’t need terror law to do it. The anti-masking KKK laws are there. Folks who follow this closely, there was something from the Middle East Forum, they had a three part series just a couple weeks ago laying out how RICO and the KKK laws could be used to basically take down student protesters and their supporters. And I’m sure people are going to try that. I will note that I don’t remember which state, in some states, we’ve actually had charges under an anti-masking law that were, that were actually leveled against protesters and they were basically, the prosecutors basically just ignored them. The judges looked at them and said, we’ve never seen charges like this used in any comparable context. We’re literally just going to set them aside. That doesn’t mean that’s going to happen in other places. 

But you know, there’s a whole set of, you know, RICO and FARA and now these anti-masking laws, you’ve already got this. The challenge of starting to call things terrorism is one that is as difficult as you know, what you’re going to, is the, as the antisemitism discussion or what you’re going to call unacceptable free speech. And one of the challenges I think for folks who want, this is not, this is not a right-left issue, partly because you know, the left has not always been great at defending free speech that they don’t like, right? So then, yeah, you get both sides kind of playing this game. And this sort of goes to that sort of absolutist thing, which is you can’t start having, you know, you can’t have a test of, you know, things that you really dislike and what you’re going to make illegal, or it’s a very slippery slope for everybody.

EMMAIA: On the one hand, there, we’ve had this assessment that there’s a kind of falling away, a kind of like jumping the shark that these policies are becoming so obviously ridiculous that they are producing resistance, but that’s only in some quarters, right? So we have still on campuses, we have the threat of administrators, you know, adopting IHRA, even if the federal government doesn’t pass IHRA. And we have administrators trying to figure out, like, how are they going to shut students up when students are behaving in ways that they don’t like.

So I guess my question is, even if these things are untenable or if they look bad to, you know, bad legally or if prosecutors are deciding to ignore some charges that are made permissible by these kinds of laws. What is actually the impact? I mean, I guess I’m thinking specifically about campuses, both as places of academia and as places of organizing. Like, what is the impact on campuses of this? And Darryl, we had talked about maybe like bringing in the Title VI stuff as well, so if it makes sense to do that here, I think we’re interested to know, like, what do we need to be looking at in our backyards. 

DARRYL: These are just all different forms of pressure, indirect pressure or direct pressure, on the people who run these educational institutions to crack down on them. That’s pretty clear. I think on the Title VI front I’m sure many of you have heard about Title VI. So the way that this works is federal civil rights law, you know, the government, okay, so in the United States, the overwhelming majority of colleges and universities are either private or they’re run by states of the United States. They’re not, like, run directly by the federal government, right? So the federal government doesn’t, it can only, like, indirectly regulate what’s happening in the schools. So the way Title VI works and Title IX is the analog for sex based or gender based discrimination is to say, look, if you are an institution that receives federal funding we have the right to regulate you.

You can’t engage in discrimination, you can’t allow hostile environment, you can’t engage in retaliation, but how do you understand or translate or implement those obligations? There’s a lot of leeway that’s left to the schools themselves, right? So we have a kind of like neo-feudalist model of administration, if you will, where schools are kind of trying to decide with, in some cases more, in some cases less, guidance from the federal government, how to actually implement anti-discrimination law. That’s important for those of you on campuses because you should know that a lot of what the schools are doing and saying, oh, you know, we’re taking action against this because this is illegal, this is unlawful discrimination, in many cases they’re making stuff up as they go along and you should not give them any undue deference, and by undue deference I mean any deference in what they say the law is or is not.

And oftentimes the procedures that they’re coming up with, they’re also making up as they go along. Now, in many ways, the conversation around sexual harassment and sexual assault is, like, much more developed because it’s been going on really in a major way since 2011. So the Title IX stuff, a lot of schools have developed, like, these sort of, like many fake court systems, right, for dealing with this. So adjudicative bodies, investigative, whatever, whatever. I suspect that what’s going to happen is a lot of those mechanisms are going to be the templates for what happens with Title VI, so with all the, you know, antisemitism, anti-Arabism, racism, discrimination, things. Because it’s oftentimes the same parts of the university bureaucracy that are going to be handling these things.

So I suspect there’s going to be a lot of copy paste, a lot of path dependency in how those disputes are managed. But maybe not. I mean, in some ways it’s worse. So there’s a, the Department of Education put out a draft rule, it’s not yet finalized, but a draft rule that says that if students are accused of sexual harassment or sexual assault that they can’t be kicked out of campus housing without some form of like due process or ability to defend themselves first. If that rule passes, you know, we’ll be in a situation where like, yeah, if you were an accused campus rapist, you would have more rights than if you were someone who’s like protesting for Palestine, right? Like where you could be summarily kicked out of your dorm, you know, and made homeless, including in cities that are like the most expensive cities. We saw that with students. And the weaponization of housing against activists. 

So anyway, that’s just part of the, you know, so all of these attempts, so you know, people probably saw like shortly after October 7th, the ADL and the Brandeis Center, two very important Zionist organizations, sent a letter to over 200 presidents of colleges and universities demanding that they investigate their campus chapters of SJP for material support to terrorism. Now, on its face, that demand and that letter is laughable because you like, can you imagine like your Dean of students, you know, investigating student groups for, for violating federal criminal, like, it doesn’t make sense. It’s not their competence, right? Their job is not to do criminal investigations. So they write these letters, not because they expect that the colleges and universities are going to do what the letter demands, but they write these letters to produce this broader atmosphere of moral panic, right, around terrorism, antisemitism, and to basically induce a kind of like freak out mode where the various university administrators read the political signals in a way that the system demands, right. And then they act. 

So they, of course, they’re not going to say like, we charge SJP with terrorism, they’ll look at their own like policies and rules and if they’ll find something like, oh SJP or JVP, they didn’t ask for permits in the right way or what we often see is they’ll make up a policy and then the next day being like, you guys didn’t follow the policy. And so that is where, I mean, anyway, I think this is stuff that most people are already aware of because you’re leaving it and you’re struggling through it, but that’s kind of the, that’s the way in which the signals that are coming from the federal government are kind of filtering down into the actual struggles and contestations on and around the campuses.

EMMAIA: Great. We have just a few minutes left. So first, I just want to say many, many thanks to you both. Many thanks. We wanted to ask you about resistance. So, there are Potential avenues that suggest themselves legal avenues organizing avenues. I’m curious to know what you think is like a workable avenue of resistance and how that shifts after the Trump election, the inevitable Trump election. And Heike wanted to expand on this question. 

HEIKE: I just wanted to throw in my perennial question for all people on this subject, which is you know, Lara pointed out that if we actually, you know, talk about the content of terrorism or who a terrorist is, we’re going to get into the ideological discussion, right? And that even the antisemitism discussion is verging on this. And I guess my impulse is always to say, yeah, let’s do it. Let’s take on, let’s talk about what terrorism is, who’s a terrorist, where this term comes from, what it means, how it functions and not allow the moral panic, exactly that Darryl is describing, to defang it, to divest it of its power. And so, I mean, I’m not exactly sure how we go about doing that, but that’s always been my impulse, and so I’m curious to hear both of your thoughts on that as well.

LARA FRIEDMAN: I’ll go first because I don’t have much to say on this because I’m not an organizer. And I will say on the like, I respect very much where you’re coming from. My, my gut is that no, that there be dragons, I don’t see that actually leading to anything but empowering the worst elements on both sides of the spectrum with this.

You know, we’ve already seen antisemitism weaponized across this country. There are multiple states that have taken the IHRA definition and its examples and put them into their hate crimes law. I said on an earlier call that we’re still waiting to see if some of the students who are being charged for the protests in Arizona will face enhanced sentencing because under IHRA, which literally is now part of the hate crimes law, they can face enhanced sentencing for hate crimes because they have Palestinian stuff, you know, around whatever they’ve been charged with. I really think that, that is a fraught, a fraught place to go.

And I guess, I mean, I’m Jewish American. I was raised in a, you know, very, I think, run of the mill, reform, progressive Jewish American household. And I was raised that Jewish Americans are very much almost free speech absolutists. This is why, you know, our relatives years ago supported the right of Nazis to march in Skokie. And it’s because we know that if free speech is not protected for everyone, including people we hate, then it’s not protected for anyone. And we know what it feels like to be the most vulnerable who will feel the hammer. So I wouldn’t go that direction, but  that’s just me. And I’m not a lawyer and I’m not a free speech advocate.

As far as resistance. Look, the bottom line for me, and I think I said something like this on the other on a previous call is, you know, I think it’s critical that people right now center Palestinian rights and defending Palestinian rights and Palestinian organizations. The tip of the spear, I said, this is literally already going through the bodies of Palestinians figuratively and literally. I also think though, this is a time to be widening the aperture and doing co-resistance. And you know, the idea, it shouldn’t just be the libertarians and free speech absolutist Republicans, anti-DEI people who look at this and say, wow, this could be expanded to screw all of us. I don’t understand actually why people on the left aren’t having the same conversation.

And I’ve talked to people who are ostensibly free speech defenders on the left who are like, well, you know, it’s not that bad. There’s guardrails on this and this antisemitism stuff actually is pretty narrow. Like, are you high? I mean, it’s as if we’re supposed to assume only the best possible intentions of people who are introducing legislation and policies when those people say, I don’t have the best possible intentions and I intend to weaponize it, say, well, I don’t literally say they’re going to weaponize it. I don’t get that. And I think this has got to be a broader battle and it’s got to, it’s weird. I mean, I don’t know exactly the politics of everybody on this call, but I think it’s a battle that is not partisan. And, it’s fundamentally, do you believe in a healthy, that healthy democracy includes defense for free speech and defense for functioning of organizations, even if you don’t like their objectives, and even if you disagree with what they’re saying. That that’s what we’ve got to land on and academia as well.

EMMAIA: Thank you so much to everyone for being here, to Darryl and to Lara. Thank you a lot, Heike, for tag teaming on the questions. We hope to see you again. Thanks so much, everyone.