The Senate Judiciary Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights scheduled a hearing on May 20, 2026, titled “Hidden in Plain Sight: Confronting the Muslim Brotherhood Network in America.” The timing of the hearing appeared to be an effort to support increasing anti-Muslim rhetoric by public officials and candidates in Texas and elsewhere in need of a new target to scapegoat now that border crossings are down. I was invited to testify as a minority witness, but the subcommittee chair Sen. Ted Cruz (R-TX) postponed the hearing after the horrific shooting at the Islamic Center of San Diego, in which three people died at the hands of two teenagers who authorities said left writings expressing “broad hatred” toward different religions and races.
I share my proposed testimony here, to explain why using the terrorist label against domestic organizations and faith communities both threatens constitutional rights and drives extremist violence, just like the shooting in San Diego.
Introduction
Domestic extremist violence, regardless of the ideology motivating it, is condemnable and often criminal. It includes not only physical attacks, but also the intimidation, threats, and harassment that inhibit civic participation and undermine the functioning of our democratic republic. It is often the result of false narratives and dangerous labels.
It is the federal government’s role to use intelligence- and fact-based assessments of terrorist threats to prioritize the use of its national security and law enforcement resources to keep our country safe while protecting constitutional rights.
It furthers neither goal for governments—whether federal or state—to misuse the terrorism label to suppress freedom of speech, association, and the right to petition the government. These are core First Amendment rights enjoyed by individuals and entities in the United States.
Yet that is what is happening when the administration labels “Antifa” a domestic terrorist organization, even where Congress has provided no authority or process for such designations. That is what is happening when National Security Presidential Memorandum-7 (NSPM-7) directs the federal government to focus resources against one ideological side of the political spectrum while ignoring threats from the other side. And that is what is happening when the 2026 United States Counterterrorism Strategy identifies the three “major types of terror groups” that threaten national security as “narcoterrorists and transnational gangs,” “legacy Islamist terrorists,” and “violent left-wing extremists, including anarchists and anti-fascists,” with no mention at all of extremists that espouse white supremacy and the Great Replacement theory, notwithstanding the record of lethal violence committed by adherents to these ideologies in the United States.
And that is what is happening when state governors use similar labels, executive orders, and proclamations to target disfavored groups, chilling First Amendment rights to speech and association and contributing to false narratives that actually stoke domestic extremist violence.
Terrorist Designations Are Ill-Suited to Domestic Organizations
Federal counterterrorism tools, including the designation of foreign terrorist organizations (FTOs) and prosecutions—or the threat of prosecution—for providing material support or resources to a designated FTO, are some of the most powerful and effective tools for protecting the United States and U.S. nationals at home and abroad. When I served as the Principal Deputy Assistant Attorney General for National Security at the U.S. Department of Justice in 2014, ISIS declared a caliphate and began engaging in acts of terrorism targeting U.S. nationals and our allies’ nationals. The Department, along with the FBI, the broader intelligence community, and our foreign allies, was working at its highest operational pace for counterterrorism investigations and prosecutions since the aftermath of 9/11. Tools like the material support statute that criminalizes providing resources to a designated foreign terrorist organization—at that time, ISIS—were used to thwart the travel of foreign terrorist fighters and those plotting terrorist attacks inside the United States.
But there is a reason that our statutes limit designations to foreign terrorist organizations. Foreign organizations do not have First Amendment rights. Penalizing a foreign terrorist organization with the consequences of an FTO designation does not raise First Amendment concerns even if the FTO engages in both terrorist activity that threatens U.S. national security and humanitarian pursuits. Penalizing a domestic organization that provides support to an FTO does have First Amendment implications, however, which were addressed, in part, by the Supreme Court in Holder v. Humanitarian Law Project (decided in 2010). The Supreme Court rejected a First Amendment challenge to the material support statute as it applied to domestic organizations that wished to provide training and expert advice for peaceful purposes to two designated FTOs. However, the Court was clear that the statute’s material support prohibition, consistent with congressional intent, did not extend to independent political advocacy not controlled by or coordinated with an FTO. It explained that such independent advocacy, even if for the same political causes as those asserted by an FTO, were First Amendment-protected.
Equally important, the Supreme Court made clear that it was not suggesting “that Congress could extend the same prohibition on material support at issue to domestic organizations.” Whereas material support to an FTO is fungible—even the provision of support to the purely peaceful and humanitarian work of a designated FTO can free up resources that the FTO might use for terrorist activity—it would be much more difficult to parse the activities of a domestic organization because the organization itself, unlike a foreign organization, has its own First Amendment rights, as do its members. And while bad actors who may be members of a domestic organization can and should be prosecuted for terrorist acts that violate federal or state law when the evidence supports such charges, the designation of a domestic organization as a terrorist organization would infringe upon its rights to associate and advocate for political causes. Congress has rightly not enacted a regime for designating domestic terrorist organizations for this very reason. The potential for the government to misuse such a tool to discriminate against viewpoints with which it disagrees is too great in a country in which the First Amendment rights of the people are fundamental to the Framers’ design.
The President’s Executive Order labeling “Antifa” a domestic terrorist organization, and NSPM-7’s directive to the Attorney General to recommend groups for designation as domestic terrorist organizations, raise the very concerns about which the Supreme Court cautioned. Even putting aside that “antifa” is an ideology and not a cohesive organization with an identifiable leadership structure, the potential for the unlawful targeting of non-profit civil rights and activist organizations for designation based on their viewpoint is apparent from these texts. This is particularly so because NSPM-7 makes clear that its mandate is for the federal government—including the Department of Justice—to focus on groups with ideologies this administration perceives as “anti-Americanism, anti-capitalism, and anti-Christianity,” “extremism on migration, race, and gender; and hostility towards those who hold traditional American views on family, religion, and morality.” NSPM-7 states that “the groups and entities that perpetuate this extremism have created a movement that embraces and elevates violence to achieve policy outcomes” and relies for support on incidents such as the murders of Charlie Kirk and a health care executive, assassination attempts against the president and Justice Brett Kavanaugh, and “riots” in protest of ICE activity. Though murders and threats of violence against individuals are reprehensible and illegal, the examples do not justify the stark lack of parity in NSPM-7’s treatment of supposedly dangerous ideologies. There is no mention in NSPM-7 of the apparently politically motivated murders of Minnesota Democratic legislator Melissa Hortman and her husband; or the mass shootings committed in Buffalo, New York; El Paso, Texas; and Pittsburgh, Pennsylvania by white supremacists who justified violence based on the Great Replacement theory. The one-sided memorandum not only lacks legitimacy. It dangerously raises the stakes for organizations that hold views the administration perceives as hostile to White House policy. In other words, it has the strong potential to lead to the discriminatory targeting of organizations based on viewpoint – and to fuel the false narratives that drive white supremacist violence.
One-Sided Policies Increase the Risk of Violating Constitutional Rights
Former FBI Director Christopher Wray repeatedly spoke publicly and in congressional testimony about the Bureau’s elevation of two categories within the domestic threat landscape as national threat priorities: “racially and ethnically motived violent extremists—particularly those advocating for the superiority of the white race,” and “anti-government—anti-authority violent extremists,” including “militia violent extremists, anarchist violent extremists, and sovereign citizen violent extremists.” Historically, the lethality of non-Islamist domestic terrorism has exceeded that of Islamist extremist terrorism here in the United States. The Anti-Defamation League’s (ADL) Center on Extremism has tracked domestic extremist murders for more than 10 years. Of 429 deaths between 2015 and 2024, ADL concluded that far-right extremists had committed 76 percent, or 328, of those killings. According to ADL, domestic Islamist extremists were responsible for 18 percent, or 79 killings, over that same period. Indeed, during that 10-year period, those who ADL cataloged as right-wing extremists committed the majority of extremist-related murders in every year except 2016, when an ISIS-inspired shooter killed 49 people at the Pulse nightclub in Orlando, Florida. Three out of four killings by right-wing extremists during that period were allegedly committed by adherents of white supremacist ideology, according to the ADL;16 percent were driven by anti-government extremism; 4 percent by toxic masculinity extremism, and 5 percent by other right-wing extremism.
The trend changed in 2025, largely because of the ISIS-inspired New Years Day attack in New Orleans that killed 14 people. In addition, killings by alleged left-wing extremists rose modestly last year, and included the murder of Charlie Kirk, the killings of two people who worked at the Israeli embassy in Washington, D.C., and two fatalities resulting from an attack on an ICE facility. These are serious offenses that violate criminal law and are inexcusable. But that uptick did not lift left-wing violence to the level of right-wing violence. In 2025, the ADL attributed 9 of the 17 killings allegedly committed by right-wing extremists to those espousing white supremacist ideology.
The small increase in left-wing extremist violence was also noted by the Center for Strategic and International Studies (CSIS), which determined that although left-wing violence has “risen in the last 10 years,” “it has risen from very low levels and remains much lower than historical levels of violence carried out by right-wing and jihadist attackers.” (Caveat: others have properly identified separate methodological flaws in the CSIS study.)
You wouldn’t know this from reading NSPM-7 or the newly released United States Counterterrorism Strategy. Although the Counterterrorism Strategy laudably promises that “counterterrorism operations will be executed apolitically and founded upon reality-based threat assessments,” and “will not be used to target our fellow Americans who simply disagree with us,” you will look in vain through the document’s 16 pages for any mention of right-wing extremism, white supremacist extremism, the Great Replacement theory, or Christian nationalism, an increasing driver of domestic extremist violence. Instead, as mentioned, the strategy identifies “narcoterrorists and transnational gangs,” “legacy Islamist terrorists,” and “violent left-wing extremists, including anarchists and anti-fascists” as the “three major types of terror groups.” With respect to the latter category, the strategy calls for prioritization of “the rapid identification and neutralization of violent secular political groups whose ideology is anti-American, radically pro-transgender, and anarchist.” “Neutralization” apparently refers to “using law enforcement tools to cripple them operationally before they can maim or kill the innocent.” This language is concerning both because it is one-sided, failing to acknowledge threats of extremist violence from the opposing viewpoint, and because it is unclear what counterterrorism and law enforcement tools may be used against domestic organizations in violation of their First Amendment and potentially other constitutional rights. The framework has other flaws such as its false connection between what it calls “radically pro-transgender” “ideology” and violence.
State Terrorism Designations Raise Additional Concerns
It is not only the use of federal counterterrorism tools that raise concerns as applied to domestic organizations. Recently, state governors have proclaimed or designated a domestic civil rights organization as a terrorist organization, triggering consequences to the organization and to those who support or do business with it. This is perilous not just for the reasons indicated by the Supreme Court in Holder v. Humanitarian Law Project, but also because states acting on their own, without the intelligence available to federal counterterrorism professionals, and without the procedural and due process safeguards built into the FTO designation regime, could both interfere with legitimate federal counterterrorism strategies and violate the constitutional rights of domestic organizations and their members. The targeting could also lead to increased violence against those perceived to be associated with the designated groups.
The federal FTO designation involves a multi-step process led by the State Department. By statute, the Secretary of State may designate an organization as a foreign terrorist organization if the Secretary determines that: 1) the organization is foreign; 2) the organization “engages in terrorist activity” or “retains the capability and intent to engage in terrorist activity or terrorism”; and 3) “the terrorist activity or terrorism threatens the security of United States nationals or the national security of the United States.” The State Department’s Counterterrorism (CT) Bureau is responsible for monitoring the activities of terrorist groups active around the world and identifying those that are potential targets for designation. The CT Bureau then spends “hundreds, in some cases thousands, of combined person hours” evaluating and compiling the underlying evidence for the designation package. By statute, the package is circulated to the Departments of Treasury and Justice for consultation, and if the Secretary of State decides to make the designation, he or she must give notice to Congress, which has seven days to take action to block the designation. Absent such action, the designation is published in the Federal Register, and the designated organization may seek judicial review in the U.S. Court of Appeals for the District of Columbia Circuit. Organizations that remain designated may petition for revocation of the designation after two years, and even absent such petition, the Secretary of State must review the designation after five years. A designation also may be revoked by act of Congress or set aside by a court order.
State processes for declaring an organization a terrorist organization do not appear to be so rigorous or provide comparable procedural safeguards. State governors’ offices will not regularly have access to the classified intelligence from which the State Department CT Bureau may draw in its assessment of whether a foreign organization meets the criteria for designation. There may be no built-in process for state legislative or judicial review of designations at the state level. Those designations could easily interfere with U.S. national security priorities. And perhaps most importantly, even if states adopted rigorous standards and procedural protections, these kinds of designations of domestic organizations—with their attendant legal consequences—would almost certainly run afoul of the First Amendment.
Labels and False Narratives Drive Extremist Violence
Terrorist designations are an inappropriate tool for use against domestic organizations, whether by the federal government or state governments. Beyond the constitutional concerns already identified, labels and false narratives scapegoat disfavored individuals and groups, including faith communities, and make them targets for domestic extremist violence. Using the terrorist label against domestic civil rights organizations, attacking certain ideologies as promoting terrorism while ignoring others with a history of driving terrorist acts, and promoting false narratives about immigrants and faith communities all provide justification for violence for those who seek it.
We have seen this at work before. The Great Replacement theory—which posits a conspiracy to replace majority white populations with non-white immigrants—was a driver of the deadly Unite the Right rally in Charlottesville, Virginia, in 2017. White supremacists, neo-Nazis, and neo-Confederates chanted “You will not replace us!” while marching on the University of Virginia campus and through the city of Charlottesville. A participant drove his car into a crowd of counter-protestors, killing Heather Heyer and seriously wounding dozens of others.
Domestic terrorists also embraced the Great Replacement theory, committing heinous mass killings like the shooter who killed 11 people at the Tree of Life synagogue in Pittsburgh, Pennsylvania, in 2018; the shooter who killed 23 people at an El Paso, Texas, Wal-Mart in 2019; and the shooter who killed 10 at a supermarket in Buffalo, New York, in 2022. Since 2020, members of “The Base,” a paramilitary organization that promotes the creation of a white ethno-state through terrorist acts of violence against minority communities (and whose name is the English translation of “al Qaeda”) have been prosecuted in Michigan, Virginia, and Georgia for plots ranging from creating terrorist training camps to kicking off a civil war.
False claims that Haitian immigrants in Springfield, Ohio, were eating people’s pets led to dozens of bomb threats and the closure of schools and government buildings in 2024. Since early 2025, portrayals of a Muslim-led housing development near Dallas, Texas, as “Sharia City” has led to increasingly hostile anti-Muslim rhetoric by elected officials and vulgar anti-Muslim demonstrations by far-right influencers like Jake Lang, an advocate of the Great Replacement theory who has also led anti-Semitic demonstrations. Just Monday, two suspects in an attack on a mosque in San Diego that killed three apparently had anti-Islamic writings in the car in which they were found, according to news reports. Their reported manifesto repeats the Great Replacement theory.
The scapegoating of domestic organizations and faith communities only adds fuel to this toxic situation, particularly in an election year. Labeling domestic organizations as terrorists not only puts targets on the backs of those disfavored by the government, it also suppresses their speech, association, and advocacy, and is likely to dampen civic participation, including voting. This is dangerous to public safety and to constitutional rights, and it weakens our democracy.
