Portside

In the 1960s, the FBI’s counterintelligence program (COINTELPRO) routinely infiltrated campus antiwar and civil rights groups, investigating thousands of students with the aim of discrediting their activism and destroying their career prospects. After a Senate committee led by Frank Church exposed this practice, the FBI disavowed it and applied a heightened standard for initiating investigations at universities. There is reason to believe, however, that federal law enforcement is facing pressure to relax its self-restraint and investigate pro-Palestinian student activists using a tool not at its disposal in the heyday of COINTELPRO: a nebulous federal statute that imposes prison sentences of up to twenty years for providing “material support or resources to a foreign terrorist organization.” This statute criminalizes public advocacy that is done under the direction of or in coordination with foreign terrorist groups. There are few legal constraints, however, that would prevent a motivated FBI from using pro-Palestinian speech as grounds for investigating students who have no connection to such a group.

In late October, the Anti-Defamation League (ADL) and the Brandeis Center published an open letter urging universities to investigate Students for Justice in Palestine (SJP), a student activist group with both national and local chapters, under the material support statute. According to this letter, SJP chapters merit investigation under the material support statute for “endors[ing] the actions of Hamas” and “voicing an increasingly radical call for confronting and ‘dismantling’ Zionism on U.S. college campuses.” As the ACLU and others have observed, the ADL offers no evidence that SJP students have done anything more than exercise their constitutionally protected speech rights. Still, the state of Florida has already obliged the ADL’s request, invoking the material support statute and its state analog to ban Florida’s SJP chapters. (The ACLU of Florida and Palestine Legal have filed a lawsuit against the ban, and fears of personal liability may have led the chancellor of Florida’s state university system to walk it back.)

It is tempting to read the ADL’s letter simply as offering universities a way to discipline anti-Israel activism that is continuous with the ongoing suppression of pro-Palestinian campus speech, often in ways that many would have found unimaginable just months before. Columbia University has canceled pro-Palestinian speakers, in one case under the pretext of “security concerns” and in one case without that pretext. The University of Pennsylvania censored a documentary critical of Israel. And several universities, including Columbia and Brandeis, have suspended or banned their chapters of SJP.

However, viewing the ADL’s letter simply as one of many university efforts to repress speech through intimidation elides a more serious risk that has become increasingly plausible in recent weeks: federal law enforcement has the capacity, and is under real pressure, to use the material support statute to launch specious federal terrorism investigations on college campuses, especially against students of Palestinian descent or Muslim faith, based solely on their public statements.

The material support statute, for which the ADL vigorously lobbied, was flawed from its inception. It was passed by Congress in 1996 in the wake of violence in the Middle East and the Oklahoma City bombing. Congress alleged that foreign terrorist groups were raising money for terrorism under the guise of humanitarian activity and, because of “the fungibility of financial resources,” even donations to legitimate charitable programs connected to a terrorist group free up money for the group to buy weapons. Despite the opposition of the ACLU on free speech and association grounds, the law passed.

The statute calls for the secretary of state to make a list of designated Foreign Terrorist Organizations (FTOs) based on three characteristics: 1) a group is foreign; 2) it engages in terrorism or terrorist activity; and 3) its terrorist activity harms American national security, which includes the vague concept of American economic and foreign relations interests. Providing “material support or resources” to a designated FTO subjects a violator to federal felony charges and prison time of up to twenty years. Tellingly, Congress never took up the prospect of a domestic material support statute, despite the fact the Oklahoma City bombing was a decidedly domestic act. There is no list of homegrown white supremacist organizations that Americans could be imprisoned for associating with.

The material support statute accords unchecked power to the secretary of state, whose designation of a group cannot be challenged in court, except on narrow administrative grounds (such as that the secretary of state designated a group by the wrong name). FTOs arguing that they have no quarrel with the United States are precluded from challenging their designation on such a basis.

The State Department’s discretionary authority has led to the targeting of Muslims and people of color, even as it insulates white Americans from potential liability. First, there is the issue of who gets on the list of FTOs, as not all non-state actors engaging in political violence are represented—just those that the United States deems necessary to designate for its own interests. For example, when the first iteration of the FTO list came out in October 1997, seven of the twenty-eight groups designated were Palestinian, signaling that in American eyes, a full quarter of the world’s terrorist groups represented this particular stateless people. Incidentally, Al Qaeda was not designated until 1999.

Second, there is the problem of whom prosecutors choose to bring cases against. Even individuals who materially support FTOs that are active in the United States may escape criminal charges as a matter of judicial discretion. For example, until recently Israel’s right-wing extremist party Kahane Chai (Kach) was designated as an FTO. Kach followers openly operated in the United States for many years and even had their American headquarters raided by the FBI. Yet we know of no defendant who ever faced charges for materially supporting Kach. Further, the State Department removed Kach from the FTO list last year, and several of its members have leadership roles in Israel’s current government.

Even more alarming has been the expansion of what constitutes material support. In 2010, the Supreme Court held in Holder v. Humanitarian Law Project that the law did not violate the First Amendment, even when the material support to an FTO takes the form of speech. Specifically, the court’s decision stated that material support in the form of a “service,” which encompasses “personnel” as well as “expert advice or assistance” and “training,” were all legally within the law’s ambit. It specifically noted that material support in the form of speech can be criminalized even when that speech is geared toward urging an FTO to use nonviolent means in service of its political goals. The plaintiffs in Humanitarian Law Project had wanted to offer advice to two FTOs on how to use international law to further their goals and lobby Congress and the United Nations. The Court did recognize an important safeguard when it ruled that, for material support as speech charges to attach, the material support offered must be at the direction of, or in coordination with, an FTO; independent advocacy remains protected. But this is still a far cry from the financing-focused “money is fungible” logic behind the statute when it first passed.

It is of little comfort that there is no public evidence any SJP student members coordinated with Hamas or any other FTO in protesting the Gaza war. The case law construing the material support statute’s punishment of advocacy is so underdeveloped that there is considerable room for investigative overreach. As one of us argued previously, the line between independent advocacy and material support as speech in coordination with an FTO “remains unelaborated,” a gap that may well be exploited by counterterrorism agents. And since the ADL is one of the few civil organizations that trains federal law enforcement on counterterrorism, it can use the gap to advance its overreaching conception of the material support statute.

Some recent cases of material support as “personnel” have targeted individuals who offered to fight with the Islamic State organization in the Middle East. These prosecutions often result from a sting operation led by government agents and informants. This raises the frightening specter of the government using informants to goad vulnerable, and perhaps mentally unstable, students into pretending to have a connection with an FTO while making public statements. Numerous commentators have highlighted the many problems with the FBI’s use of informants in terrorism investigations, which the bureau defends as necessary to protect national security. This is not a purely hypothetical concern: FBI Director Christopher Wray has repeatedly mentioned ramping up investigations of Hamas activity in the United States since October 7.

Indeed, it is possible that the ADL itself may coordinate with groups connected to Israeli intelligence to conduct its own campus spying operations and report the information to law enforcement. There is historical precedent animating this concern: the ADL was implicated in a large-scale operation spying on Arab-American activists on the West Coast in the early 1990s.

Campus law enforcement agencies are not in a position to guard against such abuses through independently assessing whether it is appropriate to help investigate a student for violating the material support statute. This lack of capacity is a matter of both expertise and information. The FBI regards universities as rich soil for foreign agents to recruit people with ideologies hostile to U.S. interests, and it encourages campus law enforcement to participate in Joint Terrorism Task Forces (JTTFs). However, the FBI tends to treat even sophisticated local law enforcement agencies as second-class partners in JTTFs, and it is particularly unlikely to reveal sensitive intelligence—if it exists—with campus police. Indeed, Section 507 of the Patriot Act allows the attorney general to obtain an ex parte court order to collect private educational records for an authorized material support investigation without needing to even provide such intelligence to a relevant judge.

There is reason for universities to treat the ADL–Brandeis Center letter as a legitimate threat to their students and values. Soon after the letter’s release, the White House announced a set of actions to combat anti-Semitism and Islamophobia on college campuses by having the Departments of Justice and Homeland Security “[partner] with campus law enforcement to track hate-related threats and provide federal resources to schools.” The White House’s subsequent press release confirmed that DOJ and DHS have “hosted calls with campus law enforcement as part of broader outreach to state, local, tribal, and territorial officials to address the threat environment and share information about available resources.”

The timing of the DOJ/DHS initiative and the specific agencies involved suggest a real possibility that federal law enforcement will investigate SJP members for material support. Five days after issuing its open letter, the ADL’s director met with the White House in a closed-door meeting to deliver recommendations for improving campus safety. The White House unveiled its DOJ/DHS initiative the same day.

Ordinarily, it would be the Department of Education’s remit to investigate and track data on whether universities are fulfilling their obligations under Title VI to protect students from anti-Semitic harassment on campus. The DOJ, however, has the exclusive statutory authority to lead investigations under the federal material support statute and typically coordinates with DHS on foreign terrorism investigations. For example, FBI agents are authorized to open a “threat assessment” on national security grounds relying on a very loose factual basis, and the FBI will retain the results of that investigation even after it has been closed, potentially leaving students with an FBI file based solely on campus activism. Both the FBI and DHS have long sought universities’ cooperation on terrorism investigations, and both agencies cultivate relationships with campus law enforcement to address terrorism concerns.

Either agency, operating independently, might work to address campus safety in a number of ways that do not implicate federal terrorism laws. (Indeed, the White House plan involves other initiatives that involve those agencies, including the use of DHS’s Cybersecurity and Infrastructure Security Agency to advise universities on campus security and DOJ grants to “support the investigation and prosecution of hate crimes.”) The joint coordination of these two agencies with campus law enforcement, however, suggests the White House may follow the ADL’s suggestion and use material support investigations to address student protest.

The White House’s use of the term “anti-Semitism” in other contexts offers further reason to fear that student activism may be targeted for federal criminal investigations. In its May 2023 National Strategy to Counter Antisemitism, the White House “embraced” the International Holocaust Remembrance Alliance’s working definition of anti-Semitism, which includes types of speech critical of Israel such as “[d]enying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor.” A number of civil society groups, including the ACLU, Amnesty International, and several Jewish civil rights organizations, have cautioned that, in practice, this definition has served to “chill and sometimes suppress . . . non-violent protest, activism and speech critical of Israel and/or Zionism, including in the U.S. and Europe.” For example, the definition can be used “to label as antisemitic documentation showing that Israel’s founding involved dispossessing many Palestinians” or arguments “to transform Israel from a Jewish state into a multiethnic state that equally belongs to all of its citizens.” Going beyond even this definition, the House passed a resolution this week by an overwhelming vote declaring “anti-Zionism is antisemitism.”

Given these expansive definitions of anti-Semitism, it is also concerning that the White House is promising over $38 million in DOJ grants to “civil rights groups, including awards to organizations serving Jewish and Arab American communities,” to “support the investigation and prosecution of hate crimes.” The ADL, which has close and long-standing connections to the FBI, would presumably be a prime contender for this outsourcing of investigative responsibility. Thus, in the name of combating anti-Semitism, the White House may wind up relying on an organization that has plausibly been alleged to spy on college campuses, and has expressly avowed a desire to wield the material support statute as an investigative weapon.

The White House may be acting with more restraint than we fear—in which case it should affirm it will not use the material support statute to target student activism. Moreover, a president’s zeal to weaponize terrorism laws against students may be tempered in the short term by institutional norms meant to safeguard against such abuses. For example, the FBI treats campus investigations as “sensitive intelligence matters” that require higher levels of administrative approval to launch. And busy U.S. attorneys may decline to prosecute cases they deem frivolous or politically problematic, and thus disincentivize FBI agents from pursuing them.

These internal guardrails, however, can be ignored or eliminated when there is political will to do so. The pressure to combat anti-Semitism on campus may make universities eager to enlist the power and resources of the FBI. Last month, for example, American University in Washington, D.C. sought the FBI’s assistance to investigate an instance of anti-Semitic vandalism of posters on campus. This eagerness to rely on federal law enforcement for matters that were once the province of campus police is dangerous when the FBI has the material support statute to wield as a tool.

What’s more, the FBI is facing considerable pressure to wield this tool. Both congressional leaders and the leading GOP presidential candidates have expressed their desire to punish student protesters of Israel, including with proposed travel bans and visa cancelations for Palestinian students. (The Florida chancellor’s ban of state university SJP chapters was at the behest of Governor Ron DeSantis.) Such calls suggest forthcoming moves—if not by this White House, then by the next—to discard the lessons of the Church Commission and use the material support statute against student protesters. University leaders should not ignore the possibility that today’s call to shut down SJP chapters will be followed by a government request to assist in the criminal prosecution of SJP members.

How should university leaders respond? To begin, all of them, even those who took the extraordinary step of shutting down their SJP chapters, should publicly reject the ADL-Brandeis letter and affirm that no independent campus speech, no matter how incendiary, serves as a legitimate basis for a material support investigation. Whatever disciplinary measures these universities may be willing to impose on campus speech, they can at least draw a public line at protecting students from criminal investigations based on that speech.

Second, universities should not cooperate with federal or state investigations under the material support statute without a court order. This means that universities should, to the extent allowed by law, refuse to allow DHS officials on campus to investigate students for material support violations. This is a simple extension of the policy many universities, including Columbia, have adopted with respect to immigration enforcement. Obtaining a court order for educational records at least requires the attorney general to certify to a federal judge that an authorized material support investigation is underway and has generated some information. Without even this meager judicial check, universities should not permit law enforcement officials to surveil students on campus in the hope of generating fodder for a material support investigation.

Finally, universities should reconsider the scope of their cooperation with state and law enforcement on terrorism matters. If universities have memoranda of understanding with state and federal law enforcement agreeing to cooperate on terrorism investigations, they should modify these agreements to exclude material support investigations, given the new risk that students will be targeted based on campus advocacy. By doing so, universities can signal that they will not give law enforcement the license to use an expansive and problematic criminal statute to punish campus speech.

[Anthony O’Rourke is the Joseph W. Belluck & Laura L. Aswad Professor of Civil Justice at the University at Buffalo School of Law, State University of New York.

Wadie E. Said is a Professor of Law and Dean’s Faculty Fellow at the University of Colorado Law School and the author of Crimes of Terror.]