For months, environmental and racial justice activists in Atlanta have challenged the destruction of a local forest for a police training facility. Following an extended draconian crackdown, the Atlanta Police Department on May 31 arrested three people who operated a bail fund providing legal support to demonstrators. This escalatory action directly targeted constitutional rights to free speech and legal representation, drawing widespread criticism from civil rights groups such as the NAACP Legal Defense Fund, which called the arrests a “discretionary misuse of law enforcement” to intimidate activists.
In its justification for the arrest, the state of Georgia cited the U.S. Department of Homeland Security (DHS)’s characterization of Atlanta activists as “domestic violent extremists.” DHS has denied that it made the decision to “classify or designate” protestors as domestic violent extremists, relying on a hypertechnical distinction that the U.S. government does not “designate” domestic groups as terrorist organizations in the way that it does with foreign groups. Yet DHS’s counterterrorism work is littered with reports where it has nonetheless described Americans as domestic violent extremists.
DHS’s own recent public terrorism bulletin does just that, asserting that violent extremists (its euphemism for terrorists), for a year have attacked the training facility construction site and its backers with “criminal activity” inspired by “anti-law enforcement sentiment” and various left-wing “extremist” views. Indeed, understanding DHS’s intent despite its technical maneuvering, the Atlanta Police Department appears to rely on this rhetoric in its arrest warrants, yet the warrants predate the public bulletin. (Recently revealed reports from DHS’s infrastructure agency also come after the initial arrests and use different labels.) So who is feeding Atlanta this DHS “extremist” branding?
The reference to the activists as domestic violent extremists most likely comes from DHS’s Office of Intelligence and Analysis (I&A), a troubled element of the U.S. Intelligence Community with a big impact on American policing. I&A shares intelligence nationwide with tens of thousands of government officials through online platforms and a network of fusion centers. Although this intelligence is often unverified and sometimes outright false, it bears the imprimatur of the federal government, which recipients rely on to justify policing actions. I&A’s authority to acquire information is mostly limited to what is publicly available—such as social media—or through overt exchanges with human sources. But this seemingly limited information, taken out of context and amplified, can result in exaggerated fears about social movements and serve as a justification for the unconstitutional or politicized suppression of activists and protestors.
During the 2020 racial justice demonstrations in Portland, Oregon, I&A officers shared dossiers on protestors with law enforcement, assembling them from social media and immigration, travel, and undisclosed databases. Then I&A wrote intelligence reports on journalists covering its illicit activities. And the unit claimed authority to surveil activists protesting confederate monuments based on a hyperbolic decree issued by President Trump depicting vandalism as a threat to “domestic tranquility.”
Even under President Joe Biden, I&A has surveilled Americans discussing abortion after the Supreme Court overturned Roe v. Wade and broadly monitored online “narratives and grievances”—people talking politics—in the name of thwarting domestic terrorist attacks.
Overbroad mandates and flimsy safeguards allow I&A to help facilitate arrests like those in Atlanta, as my colleague Faiza Patel and I explained in a recent report for the Brennan Center for Justice. Guidelines meant to ensure that I&A cannot abuse its authorities or violate constitutional rights have broad exceptions for proposed actions that advance I&A’s missions. But its missions are so vast—covering terrorism, threats to infrastructure, undefined “significant” threats to public safety, and more—that they can give cover for a range of illegitimate government activities, as occurred most notably in Portland. On top of that, DHS stretches the meaning of terrorism to include, in the case of Atlanta, any “criminal activity” such as “property damage” to a construction site.
I&A easily overcomes safeguards for constitutional rights. Its guidelines barely mention the First Amendment and allow I&A to monitor core political speech and activity so long as it asserts a mission purpose. It is all too easy for I&A officials to concoct a pretext for scrutiny, such as civil disobedience to block construction of a police facility. Once it has collected information, I&A may retain it indefinitely – so long as it continues to assert the information supports one of its sweeping mandates – and share this intelligence with thousands of federal, state, and local police who use it to justify investigations, crackdowns, and the prosecution of dissidents. This is what seems to be happening right now in Atlanta.
Policymakers should take urgent action to address these problems. Secretary of Homeland Security Alejandro Mayorkas should strengthen protections for Americans’ First Amendment rights to prohibit this type of targeting, throttle I&A’s reliance on Americans’ social media, and establish an independent oversight office to enforce these and other changes. Congress, for its part, should narrow I&A’s vast intelligence mandates. Those can serve as pretexts for illicit operations that generate material used to justify abusive crackdowns like those happening in Atlanta.
Today’s sprawling network of homeland security organizations injects federal spy agencies into local political matters, often without meaningful restrictions. Systemic change is necessary; the federal government must not be allowed to use its vast intelligence resources to enable local prosecutions of activists with the courage to take on the police and their corporate backers.