Designating Antifa as terrorists would permit surveillance of Americans in the absence of probable cause

Interestingly, President Trump and his supporters, who rightly complain about the abusive surveillance of the 2016 Trump presidential campaign, have recently argued that FISA must be reformed to make it more difficult, if not illegal, to subject Americans to national-security surveillance. They insist that, unless the FBI can show probable cause that Americans are guilty of crimes, the government should leave Americans alone.

Yet now, many of the very same Trump supporters want to designate a domestic group as a terrorist organization. Since we already have a slew of criminal laws for investigating terrorists, the only point of such a designation would be to permit the surveillance of Americans in the absence of probable cause that they have committed crimes. But that’s the very abuse these Trump supporters claim to find objectionable about FISA. Pardon me, but I’m confused.

We should absolutely treat Antifa as a terrorist organization. Some (mainly) anti-Trump commentators claim that Antifa is too amorphous to be regarded as an “organization.” That is specious. Our law does not require conspiracies and racketeering enterprises to be regimentally organized and hierarchical. Loosely knit groups that scheme to carry out violent criminal objectives qualify for enforcement action.

We can investigate Antifa as terrorists, prosecute them as terrorists, sentence them as terrorists, and give them harsh prison sentences befitting terrorists. But there is neither a need nor a legal basis to “designate” them as terrorists.