When All Protest Is Terrorism

The United States government doesn’t ban political organizations outright, but it does have a legal apparatus, put in place almost a quarter-century ago, for transmogrifying protesters into prosecutable terrorists. Following September 11, right-wing lawmakers saw an opportunity to broaden the definition of terrorists well beyond the likes of Al Qaeda members. A day after the attacks, Rep. Greg Walden (R-Ore.), took to the House floor to decry the Earth Liberation Front (ELF), which he said constituted a threat “no less heinous than what we saw occur yesterday here in Washington and in New York.” Starting in the mid-1990s, Earth Liberation Front cells across the United States had firebombed animal testing labs, ski resorts, and auto dealerships; released captive animals from industrial farms; and, central to Walden’s concerns, sabotaged logging and roading equipment. According to the FBI, the roughly 600 criminal acts attributed to the group between 1996 and 2002 resulted in more than $40 million in damages—but not a single injury or death.

Nonetheless, by 2005, ELF and associated saboteurs including the Animal Liberation Front (ALF) had been named by the FBI as “the No. 1 domestic terrorist threat.” The bureau’s Joint Terrorism Task Force issued a booklet regarding “terrorism imagery recognition” that depicted Osama Bin Laden, a Hamas suicide bomber, and a masked member of the ALF holding a primate. By 2012, Senator Rick Santorum (R-Pa.) inveighed against the “reign of environmental terror” by “radical environmental groups” that opposed his state’s fracking industry. Michael Loadenthal, a post-doctoral research fellow at the University of Cincinnati who studies the criminalization of dissent, posits that the figure of the “eco-terrorist” was a useful bogeyman for a government hell-bent on expanding its powers of surveillance and policing public protest.

“From the passage of the USA PATRIOT ACT, to the establishment of the federal DHS, increased electronic surveillance and the militarisation of domestic policing, the spectre of eco-terrorism has been touted at press conferences and in Congressional testimonies to shape budgets, craft policy and allow the State a freer hand in waging the ‘War on Terror,’” writes Loadenthal. At the same time, the eco-terrorist, by targeting industrial and commercial interests, was considered a genuine threat to the capitalist order.

The Animal Enterprise Terrorism Act, passed in 2006, marked the high point of the reactionary assault on environmental protest. Under AETA, crimes that had been prosecuted as misdemeanors punishable with fines or short stints in jail could be bumped up to felony “terrorism enhancements” that threatened punishments of decades in prison or even life sentences. Any person who engaged in any kind of disruption of a business that involved animals could be charged as a terrorist: throwing red paint on a meat processing plant; filming inside a slaughterhouse; picketing in front of the house of a researcher involved in animal testing—all prosecutable as acts of terror. 

AETA only added to an already formidable arsenal for prosecuting terrorists, supplementing statutes passed by Congress in the 1990s that provided for increased prison sentences if any vaguely defined “material support” for terrorism could be proven. According to one recent study by a criminology student at the University of Alabama, the number of counts of material support in all terrorism cases post 9/11 increased by 3,130 percent.

Fast-forward to 2016, when resistance against the Dakota Access Pipeline involved thousands of people at the Standing Rock Sioux Reservation who came under attack by militarized police and private security units for blockading construction. Catholic Worker activists Jessica Reznicek and Ruby Montoya secretly sabotaged the pipeline for more than a year before they went public with their crimes. In October of 2016, five members of Climate Direct Action simultaneously turned emergency shut-off valves in four American states and then awaited arrest. State governments rushed to expand the criminal penalties for those who protested or sabotaged oil and gas facilities.

In Florida, trespassing on property that houses pipelines became punishable by up to five years in prison, as opposed to 60 days if convicted of trespassing on any other property type. Ohio lawmakers mandated up to six years in prison for those brazen enough to graffiti a pipeline, and up to ten years for entering a pipeline facility with the mere intention of tampering with it. In Arkansas and Alabama, citizens who trespass in any area that contains “critical infrastructure” risk between one and six years in prison and up to a $10,000 fine. Louisiana prosecutors can now file RICO charges, which carry a possible 50-year sentence, against protesters who “damage” fossil fuel infrastructure. In Mississippi, a conviction for impeding access to a pipeline or a pipeline construction site carries a sentence of up to seven years. If you protest a pipeline in North Carolina and “impede or impair” its construction, you could face more than 15 years in prison and a mandatory $250,000 fine.

The new pipeline trespass laws constituted the first wave of repressive legislation that targeted dissent in the era of Trumpian authoritarianism. The second wave arrived shortly after the George Floyd rebellion of 2020-21, when lawmakers introduced more than a hundred bills to restrict protests and ratchet up potential prison time. Thirty-five of those bills passed in 19 states, effectively criminalizing groups that protest in concert; at least 20 other anti-protest laws came into effect between 2017 and 2020.

“Nearly half of all Americans now live in a state where it’s harder to protest than it was eight years ago,” said Elly Page, an attorney who runs the US Protest Law Tracker at the International Center for Not-for-Profit Law. Some of the bills mandated extreme punishments for those who slow-march in roadways and block motorists. If 25 or more people impede traffic in Florida, they can be charged with “rioting” and face 15 years. Tennessee mandates up to 12 years for people convicted of “knowingly” obstructing roadways. In Louisiana, if you help plan a protest that might impede traffic—even if the protest never comes to pass—you can be charged with conspiracy and get six months. In Iowa, a driver who rams into protesters is safe from prosecution if he can prove to authorities that “due care” was taken.

Congress followed suit with its introduction in June of the Safe and Open Streets Act, which would make it a federal crime, punishable by up to five years in prison, to “purposely obstruct, delay, or affect commerce…by blocking a public road or highway.” 

We are now in the midst of the third legislative wave, in which lawmakers have struck back at pro-Palestine encampments and rallies—though so far in the US there’s been little of the kind of sabotage that Palestine Action has mounted, and almost no property destruction beyond the occasional graffiti. Arizona and Texas this year enacted blanket bans on all protest encampments on the campuses of state universities and colleges, while New York has proposed mandatory sanctions for campus protesters. Republicans in Congress have introduced four new bills that would block financial aid to students who commit an ill-defined “riot” offense, bar many student protesters from federal loans and loan forgiveness, and provide for visa revocation and deportation of noncitizens involved in a protest “riot.” 

Naturally, the old bogeyman of the protester-as-terrorist has returned to center stage. “Many of our ‘elite’ academic institutions have become hotbeds for…pro-terror ideologies,” said Sen. Jim Banks (R-Ind.), sponsor of a bill that would make federal funds in colleges and universities contingent on tamping down on campus protest.

Trump’s attack on foreign students involved in pro-Palestine dissent on college campuses is tinged with the same protester-as-terrorist rhetoric. He declared Columbia University student Mahmoud Khalil, arrested in March and held without charge for three months, a “terrorist sympathizer.”

“This is the first arrest of many to come,” Trump wrote on social media. “We know there are more students at Columbia and other Universities across the Country who have engaged in pro-terrorist, anti-Semitic, anti-American activity.”

More arrests did come—not just of students, nor even domestic protesters. In July, an Ohio children’s hospital chaplain named Ayman Soliman was stripped of asylum and incarcerated based on his affiliation, well over a decade ago, with an Islamic charity once linked with the Muslim Brotherhood; Soliman now faces deportation to Egypt, a US ally that repeatedly tortured him as a dissident journalist.

The question now is whether the Trump administration will continue to expand the use of terrorism material support statutes to go after protest of all kinds—whether for Palestine, for racial justice, or for climate and the environment.