Demonstrators in Georgia are fighting against a massive law enforcement training facility, dubbed “Cop City”, being built near Atlanta that they claim will further militarize the police and destroy dozens of acres of vital forest land. Since December, law enforcement has arrested over 40 Stop Cop City demonstrators under the state’s domestic terrorism statute, which carries a penalty of up to 35 years in jail. Law enforcement also raided a bail fund at the end of May that supports demonstrators and arrested three activists. The state’s Republican Governor Brian Kemp called those arrested from the bail fund “criminals [who] facilitated and encouraged domestic terrorism.”
While some of the arrested protesters have been accused of vandalism or throwing rocks at police, many, including a legal observer or those attending a concert in the forest, seem to primarily have been targeted because of their affiliation with the Stop Cop City movement.
Civil liberties groups and others have rightly criticized Georgia law enforcement’s use of state domestic terrorism charges against protesters as draconian and disproportionate. These events though also highlight the dangerous manner in which the federal government’s DVE policies are playing out on the ground – interacting with state domestic terrorism laws and aggressive local policing – to intimidate protesters and violate their rights. The Department of Homeland Security and the Biden administration should speak out against police overreach in Georgia, publicly correct the record on classifying domestic violent extremist (DVE) groups, and narrow their definition of domestic violent extremism.
Georgia’s DHS Justification for “Domestic Terrorism” Arrests
In justifying its arrests, Georgia law enforcement has repeatedly claimed that DHS had classified the Stop Cop City group, Defend the Atlanta Forest, as “domestic violent extremists.” Yet, in response to inquiries, including a letter last week from Senator Raphael Warnock (D-GA), DHS has denied that it classifies any specific group as “domestic violent extremists”.
A spokesperson, however, stated the department uses the term to refer to a U.S. actor “who seeks to further social or political goals, wholly or in part, through unlawful acts of force or violence” and regularly shares intelligence on these threats with local law enforcement.
The use of this nonexistent DHS classification is prominent in arresting documents. Consider an arrest warrant for a Cop City protester from December. Law enforcement describes the charged offense of domestic terrorism as: “participating in actions as part of Defend the Atlanta Forest (DTAF), a group classified by the United States Department of Homeland Security as Domestic Violent Extremists.” After listing the alleged unlawful acts of DTAF, the warrant concludes, “The accused affirmed their cooperation with DTAF by occupying a tree house while wearing a gas mask and camouflage clothing.”
Despite DHS denying they use this classification for specific groups, Georgia law enforcement have stuck by their guns. A Georgia Bureau of Investigation (GBI) spokesperson last week released a statement to the Atlanta Journal Constitution stating that, “Although DHS reports that they do not classify or designate any groups as domestic violent extremists, the description provided by DHS for a domestic violent extremist does in fact describe the behavior of the individuals of the group in question which is being investigated by the GBI multi-agency task force.”
A Dangerous Federal DVE Strategy
Georgia law enforcement is clearly in the wrong. They mischaracterized DHS intelligence for their own ends and, more to the point, as an FBI statement emphasized, “Membership in a group alone is not sufficient basis for a domestic terrorism investigation.” Yet in many of these warrants, protesters are seemingly being arrested for domestic terrorism not for actions they have taken, but because of their alleged affiliation with a group. This reads like an unconstitutional form of guilt by association.
DHS though is also at fault. They have been far too slow to respond as Georgia law enforcement has wrongly used DHS’s intelligence in the aid of charging dozens of Americans as domestic terrorists. Instead of a press conference or another concerted public effort to set the record straight, they have instead simply responded to inquiries from reporters or, eventually, Warnock.
The Georgia Senator has rightly called on DHS to share with state and local law enforcement partners that they do not classify groups as domestic violent extremists. DHS should do so clearly, forcefully, and publicly. Others, including Spencer Reynolds in a recent Just Security article have recommended that DHS strengthen its safeguards for intelligence gathering and sharing to protect Americans’ First Amendment rights and for Congress to check its overbroad intelligence mandate.
These events, though, also highlight another problem for the federal government’s DVE strategy: its definition of the term can too often incorrectly capture protesters.
DHS has frequently defined “domestic violent extremist” as a U.S. actor “who seeks to further social or political goals, wholly or in part, through unlawful acts of force or violence.” Similarly, a recent Justice Department report states, “Today, the Department defines domestic violent extremists as United States-based actors who, without direction or inspiration from a foreign terrorist group or foreign power, seek to further political or social goals through unlawful acts of violence.”
Yet, such a broad definition can capture many protests where there could be “unlawful acts of violence” like shoving between law enforcement and protesters or protesters committing acts of vandalism. There are already laws on the books in every state making violence against persons and property a crime, but generally people would not think most of these actions would constitute “domestic violent extremism.” However, if they are done at a protest, where participants are pressing their “political or social goals”, they can seemingly be transformed into “domestic violent extremism” under the federal government’s definition.
DHS and the FBI have tightened their definition of domestic violent extremists in some documents, such as an October 2022 strategic assessment report to Congress, by limiting it to those engaged in “unlawful acts of force or violence dangerous to human life” (emphasis added). This is a stricter approach. However, given that a much more sweeping alternative definition is also circulating within the federal government, it is not surprising to see DHS sharing in a public terrorism advisory bulletin that alleged “DVEs” at Cop City engaged in activity like “property damage.”
Importantly, the phrase “dangerous to human life” in the stricter federal definition is also far from self-explanatory and is still far too sweeping. For example, it could be interpreted to include a range of negligent actions, such as protesters stopping traffic during a protest and potentially slowing someone heading to the hospital.
This overbroad, and unclear, DVE definition is even more dangerous when it is being used in a context where questions have repeatedly been raised about both bias and competence in DHS intelligence preparation. A DHS report on Cop City protests from December, for instance, seemingly copied language nearly verbatim from a right-wing news website.
“Terrorism” in an Era of Aggressive Policing Against Protesters
Amidst renewed concerns about far-right extremist groups after the January 6th attacks, the federal government has ramped up its efforts to clamp down on domestic violent extremism and terrorism. What events in Georgia show though is that its broad approach to DVE is a recipe for rights abuses in a country that has witnessed aggressive policing of protests.
This weaponization of terrorism charges should not come as a surprise. During the 2020 racial justice protests, President Donald Trump claimed he would designate antifa, a self-described anti-fascist organization, a domestic “terrorist organization” despite no such category existing in federal law. Under the guise of fighting terrorism, Trump also surged militarized federal law enforcement into Portland, OR. These federal officers, whose presence was resisted by local officials, were then accused of numerous rights violations, including seizing protesters off the streets in unmarked vehicles. A DHS report later found that a top DHS official called on analysts to label arrested protesters “Violent Antifa Anarchists Inspired” by default even though “sufficient facts” were never found “to support such a characterization.”
Just as concerning as the federal government abusing its anti-terrorism infrastructure is state and local law enforcement doing the same, normalizing practices that can easily spread across the country. Since 2017, 21 states have enacted at least 41 anti-protest laws, mostly in response to racial justice and environmental demonstrations. As part of this wave, several states have proposed new broadly worded terrorism offenses that target protesters. This year, for example, lawmakers in West Virginia introduced a bill that would have expanded their anti-terrorism law to be able to charge as “terrorists” nonviolent demonstrators who simply disrupted traffic.
While there is no federal crime of domestic terrorism, at least 34 states have their own anti-terrorism legislation. Some of these states take more limited approaches to criminalizing terrorism. California’s and Minnesota’s anti-terrorism statutes, for example, prohibit using weapons of mass destruction. Vermont’s includes an intent to cause a mass casualty event.
Many of these state laws, however, are dangerously overbroad. In Florida, where Governor Ron DeSantis has been criticized for a partisan legislative crackdown on protesters, state lawmakers expanded the state’s anti-terrorism law after the Pulse Nightclub shooting in 2016 before DeSantis was elected. Under the expanded law a person engages in “terrorism” if they undertake an unlawful “violent act” that is intended to “influence the policy of a government by intimidation or coercion.” This vague wording means that if law enforcement and protesters against police brutality in Miami got into a scuffle in which no one was injured the demonstrators could potentially be charged with “terrorism”, a first-degree felony punishable by 30 years in jail. The current Florida House Speaker has repeatedly equated property damage at protests with terrorism.
A Need for Leadership to Protect Protest Rights
The Biden administration should address this challenge head on. It is far too easy for the federal government’s domestic violent extremism policies to justify state criminal charges of domestic terrorism. The administration should speak out forcefully when state anti-terrorism laws are misused against protesters as well as at mischaracterizations of DHS intelligence. They also need to rework their larger approach to fighting DVE. This will, at a minimum, involve significantly narrowing what constitutes DVE so as to stop the label from being weaponized against protesters and social movements.
The stakes are high. Designating protesters as “terrorists” is a common tactic of authoritarian regimes from Egypt to China. The practice elevates certain social movements, chosen by government officials, into an existential threat against the country for which all types of draconian measures become justified. Even if those charged are not convicted of terrorism, such a visceral and stigmatizing label often delegitimizes the message of demonstrators. Such serious charges can also tie protestors up in court for months or years.
Protests are one of the most powerful tools for social change in a democracy. They have been critical in fights for justice from women’s suffrage to civil rights. Yet the right to protest is also one of the most fragile. The crackdown on the Stop Cop City social movement in Georgia should serve as a warning about the danger the country’s national and state anti-terrorism infrastructure, and the interaction of the two together, poses to our fundamental expressive rights.