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The Lawfare Podcast
Lawfare Daily: Tom Brzozowski on Domestic Terrorism Investigations and Prosecutions
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- [00:00]
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- [01:06]
Benjamin Wittes
Hey there Lawfare listeners. Editor in Chief Benjamin Wittes here. It's the end of the year. You know, you got your holidays, you got your little break from whatever it is you do, school or work or whatever. And you've had your presents, you've had your stuff, you've had your Christmas or Hanukkah. And now we are here to ask for your support. Lawfare is a 501c3 nonpartisan nonprofit organization. We cover a broad range of issues on national security, law and policy to keep you informed. But we can't do it without your support. This year nearly a third of Lawfare's revenue has come from people like you. If you are not already contributing to Lawfare, please change that. Go to lawfaremedia.org support. You can be a monthly supporter on Patreon or substack, or you can make a donation on Give Butter on a one time basis. If you are already giving as much as you can or want to get involved in other ways, Please go to lawfaremedia.org getinvolved thank you for listening and thank you for supporting Lawfare.
- [02:34]
Tom Brzozowski
You know, when you have such a vague nebulous concept such as antifa, you can really sort of project anything you want onto that and technically be accurate because it's sort of a catch all for everything you want it to be, but it's actually nothing at the same time. So it's a bit of a paradox.
- [02:50]
Michael Feinberg
Michael, it's the Lawfare Podcast. I'm Michael Feinberg, senior editor at Lawfare, with Tom Brzozowski, who up until very recently headed domestic terrorism prosecutions and efforts at the Department of Justice.
- [03:06]
Tom Brzozowski
These folks operating, I'm not assigning any sort of malign intent to any of these entities. FBI, hsi, cbp, ice, any of them, local PD for sure. That's not what I'm getting at here at all. They're simply reacting to incentives and direction from above. They are like a loaded weapon with a ton of authority, a ton of latent authority that's sitting there that is simply being pointed in a particular direction.
- [03:32]
Michael Feinberg
Today we are talking about Attorney General Bondi's new memo with respect to investigations of ANTIFA as a domestic terrorist organization. So, Tom, we're going to get into the substance of what the Bondi memo does and why it's important, but perhaps if you wouldn't mind, based on your previous roles, give us a sort of overview of what drove domestic terrorism investigations prior to this administration.
- [04:04]
Tom Brzozowski
Sure. In the main, the genesis of the bulk of the work stemmed from the FBI's work that then would be translated, you know, those investigations, those ongoing FBI investigations run by the FBI domestically throughout the, you know, across the country would then translate into prosecutorial strategy across the street at the Department of Justice and also inform policy across the interagency and even vertically with our state and local partners. And then, believe it or not, it's kind of strange for to discuss this in a domestic terrorism context, but internationally, we would have quite a bit of contact with our international partners and multilateral institutions on issues related, broadly speaking, to domestic violent extremism or domestic terrorism. But really it all started with the FBI, as most things in the counterterrorism arena do.
- [04:58]
Michael Feinberg
So what is the Bondi memo, which was recently promulgated, do that is different? How has that process changed?
- [05:07]
Tom Brzozowski
So, okay, so just to kind of situate the bonding memo and the constellation of other, like, missives that have been issued of late by the administration, folks will remember, of course, this whole recent salvo started with an executive order that purported to designate ANTIFA as a domestic terrorist organization. So that's one thing that was an executive order. Then there was following quickly on the heels of that, there was a national Security Presidential memoranda that was issued NSPM 7, it was styled, that took up political extremism and domestic terrorism was, I believe, featured prominently in the title. And it directed agencies to work through the joint terrorism task forces across the country and leverage really a whole of government approach to root out again what the memo itself styled as antifa or antifa aligned extremism. Then after that there were four designations of antifa or antifa adjacent entities principally operating overseas in Europe. These were designated both as SDGTs or especially designated Global terrorist organizations and as foreign terrorist organizations. But again, these were foreign four entities that are small in scale, that operate almost entirely in Germany, two in Greece and one in Italy. So that's sort of the operating framework that we're dealing with. And then of course in the atmosphere around those actual documents was a lot of rhetoric by senior administration officials in official capacity from the White House that specifically took up or suggested that there was a widespread conspiracy that was essentially antifa aligned and that was being perpetrated by a number of philanthropical organizations and non governmental organizations and that the administration was committed to rooting that out using all means necessary.
- [07:17]
Michael Feinberg
I'm going to do something I don't normally like to do and sort of cut you off before you finish your answer because I think there's a lot to unpack in what you just said with respect to each of those documents and occurrences. Let's sort of start by talking about Antifa as an organization. Now I think you left DOJ a little bit after I left the FBI, so you may be privy to more recent intelligence or an understanding than I was. But in my time working sort of national security and counterterrorism matters, you know, Al Qaeda, isis, isis, K Abu Sayyaf, these were organizations that had a structure, an architecture, a hierarchy. Does Antifa fit into that sort of chain of command model that other terrorist organizations have?
- [08:16]
Tom Brzozowski
No, it does not. And I think most scholars agree that antifa really is a stand in for a broad set or diffuse set of ideologies that are linked again through what is styled as anti capitalist, anti American values and the like. But it's really the only common denominator that holds the whole thing together. Amidst this sort of milieu of individuals and, and small cellular organizations is an ideology of sorts. And again, even the ideology doesn't really hang together cleanly. It couldn't run the gamut from Marxist ideology to again to anti capitalist, which is sort of like Marxism I suppose, but it's such a diffuse array of ideologies that again, that are the wide. I hesitate to even use the word network because there is no connective tissue amongst this purported network. So the short answer to your question is no, not in the sense of what we would typically assume when we're talking about organizations like as you said Al Qaeda, Al Shabaab, isis, what have you, or even other organizations in a purely domestic context like Atomwaffen or the base or similar organizations where there's a clear command and control, there's a hierarchical organization, there's a playbook, there are know, rules for drawing the patches, symbols, symbiology, like all that sort of thing. So the short answer is no. And I think that's, that's part of the problem here is because again, you know, when you have such a, such a vague, nebulous concept such as antifa, you can really sort of project anything you want onto that and technically be accurate because it's sort of a catch all for everything you want it to be, but it's actually nothing at the same time. So it's a bit of a paradox.
- [10:12]
Michael Feinberg
Okay, so that's the initial word that the White House puts out via an executive order. And then after that they put out the. They start naming international organizations, or rather foreign organizations that they think are loosely or closely affiliated with Antifa, and they start using the foreign terrorist organization designation. Right?
- [10:39]
Tom Brzozowski
Yeah, that's exactly right. So again, one of the things that I failed to mention that constitutes the atmospherics around these executive orders and presidential memoranda that have recently been issues was a Antifa roundtable that the White House held during the same time frame. The President was there, Secretary of State was there, the Attorney General was there, as well as a number of journalists, I suppose they would characterize themselves as journalists who were very much there to provide some like a gloss on the, on, on this, on this notion of antifa. They were there to, to bolster the administration's position of what antifa is and to suggest that it's a real, a real threat. Of course, in the same instance, you have senior administration officials comparing the threat of Antifa to that of Hamas. So it's, it's a bit nonsensical on its face. And so it's really difficult to kind of square with the reality on the ground. But that's the setting. And then during the course of that particular roundtable, of course, one of the individuals that was invited to participate suggested that the White House should designate Antifa as a foreign terrorist organization. The President indicated that that was a good idea and turned to the Secretary of State and more or less directed him to do just that. And then a couple weeks later we have these designations of these, again, these cells that operate primarily in Europe as both specially designated global terrorists and foreign terrorist organizations. So that again has the operative effect of casting this Antifa threat, not only as a domestic menace, if you will, but almost like a global conspiracy where there are elements that operate internationally. There's almost like an. It creates this notion of some sort of international cabal that is associated with antifa. Then it's not. What doesn't help is the fact that on the heels of these designations, of course Orban over in Hungary immediately jumps on the bandwagon and designates antifa or antifa elements within Hungary. And then there are other voices in Europe, not too many, but some that similarly echoed the administration's position on Antifa. Again, likely to curry favor with the current administration would be my supposition. But you know, I don't know that for sure. But what it does do is it creates this feeling or this, this notion that there is some sort of global conspiracy that relates to antifa or antifa aligned elements. And we should remind ourselves what ANTIFA actually stands for in the first place. It simply stands for anti fascism. And so of course, the real threat to this, and I suppose we'll get into this when we talk about the Bondi memo, is that most folks probably in the main would characterize themselves as anti fascist. I'm in that same camp. Does that mean I'm antifa? Because the definition that the administration puts forward is so vague and so all encompassing. In theory it could mean that. And if it does mean that, am I liable to all these sanctions that the administration has put in place that relate to antifa? Who knows? But again, I think here, the fundamental takeaway here is that ambiguity is itself a policy tool. Because again, we'll talk about this in detail. It creates compliance and compliance offices all around the country and all various facets of civic society are going to treat uncertainty as risk. And that's the real danger we're talking about here. And we can break this down here in a second. I'll give you a chance to do so. But I wanted to underscore that that's why this is important. No one, I'm not suggesting, I'm not like some kind of, you know, like a hair on fire type of person suggesting everyone's going to get rounded up and investigated by the FBI tomorrow and put in prison for material support. Not going to happen. But what's already happening is people are assessing their risk profiles and they should, because nobody knows for sure whether they're going to be targeted or under what circumstances.
- [14:47]
Michael Feinberg
So I'm going to raise one hair on fire possibility that occurred to me and if you can disabuse me of it, great. If not, maybe all of our listeners will have their hair on fire. But when I hear about foreign terrorist organizations and their investigation by the JTTFs, I immediately think FISA. And correct me if I'm wrong, but if a JTTF is investigating something that has been designated a foreign terrorist organization and they identify an American in communication or who they think is a member of that organization, all of a sudden they're not limited to Title 3 authorities. They can actually get, it's sort of popular to call them ex parte orders. I don't think that's entirely accurate. But essentially they can go to the FISA court instead of a regular Article 3 court in order to get legal process on an American citizen.
- [15:52]
Tom Brzozowski
No, you're right. And that's, that is one of the operational impacts of these designations of these small cells that operate principally overseas. It is straining credulity to think that these entities pose a national security threat to the United States, to be honest with you. And you can take a look at the write ups that supported these organizations if you want to get a better sense of who they are and what they do and what sort of violence has been attributed to them of late. But to your broader point, yes, for sure. So now all of a sudden the aperture is indeed opened. And now if you have an investigation by JTTF or what have you on an antifa individual, that again, it's silly to even use this term antifa, it's not even immediately clear to me what it is, but let's just say it falls into the bucket of what could be construed as antifa or antifa adjacent activity. Then per the other guidance, the guidance contained in both the NSPM7 and the original EO designating Antifa per se as a domestic terrorist organization, these government agencies, including the FBI and the interagency, and then not to overload you and kind of load up on this question, but other agencies that operate next to the FBI as part of the JTTF, like HSI, like, like CBP, like you know, other DHS elements, DoD elements, even that do not typically work domestic terrorism investigations as a general matter, are now working those domestic terrorism investigations because they are part of the JTTF and moreover they can now onboard their authorities in that effort because that's what they've been tasked to do through not only the NSPM7, but now the Bondi memo and then part of that process. And you know this way better than I do. Your agents have a checklist in the main, when they engage in their investigative activity, you tick through it. And if you're working an FTO case or where there's a presumed foreign link that's on your checklist, I mean you're going to work through it. And then layered over the top of that, and this is where the Bondi Memo comes into play, is a directive to do it aggressively. And we can talk about incentive structures and actually I'd like to hear more about, from you about like how that actually works, you know, from an agent's perspective. That's the process. And so you're absolutely right, it does open the aperture for that possibility.
- [18:15]
Michael Feinberg
Okay, so we've set the stage pretty well. The Bondi Memo, it's not coming out of left field. It's built on the foundation of the original executive order. And then NSPM7, what is the Bondi memo? Add to that landscape and then once we sort of understand that, I think we could get into the sort of natural consequences that will flow from it.
- [18:37]
Tom Brzozowski
Okay, so unlike the executive order that I Described before or NSPM7, those are more posturing documents. Like, those are policy heavy documents. The Bondi Memo functions more like an operational order. It tells agents and analysts and grant makers, notably with specificity what to build and what to prioritize. And the effect of that is that it, it translates into hitting people in real time very quickly. So again, it starts with a, you know, with a, with a recitation of the definition of domestic terrorism, which is an 18 USC 23315 plain language of that, that particular provision covers the whole waterfront of threats that are plausibly domestic in nature. But then the bonding member effectively narrows that the prism of what agents and analysts are directed to look at to include antifa aligned extremism, specifically naming ideological drivers and directing priority focus. So that's what it does. That's qualitatively different than the other documents that we discussed. It introduces antifa as falling within the broad spectrum of threats related to domestic terrorism. But then in the same breath it narrowly focuses people's attention specifically to only threats that relate to antifa or antifa aligned elements, like not taking up or considering any of the other vast array of threats that would typically fall within the construct of what we understand to be domestic terrorism. Including, and this is where it just gets, we get into some just frankly perplexing optics here because just a few days before the Bonnie memo was issued, you had the Director Kash Patel testifying that the number one threat, or at least one of the most significant threats, the FBI is Facing in a domestic context has nothing to do with antifa but is rather has a lot to do with nihilistic violent extremism or 764 that that ilk in fact doesn't even mention antifa in his test money before the subcommittee. And yet a couple days later you have the Attorney General issuing this memo directing agencies and organizations across the government, but specifically within the Department of Justice to narrowly focus their efforts specifically and only on. Well, they don't actually. I should pause here for a second. It's not only never says only, but it builds in machinery around an ideological bucket that is exclusively aligned to antifa and antifa adjacent ideology. And we'll talk about specifically what it does here. What does the machinery include? It includes things like secret lists and internal labeling. It directs the creation and maintenance of domestic terrorist organization lists and antifa aligned entities. Again, we don't know with any degree of specificity what sort of criteria go into an organization being on that list or off that list. There is no means of no obvious means of redress should an organization find itself on that list. And crucially, this list is not tethered to any operating statute that gives the government the authority to make the list in the first place.
- [22:06]
Michael Feinberg
All right, so help me understand something here or help our listeners understand something here. You and I both know that an FBI agent cannot make a move of any sort unless what he or she is contemplating is specifically authorized by a document called the Domestic Investigations and Operations Guidelines. DIAG for short. And if DIAG has one iron rule, it is that you cannot predicate investigative activity solely on the basis of first amendment protected activity. In other words, you can't open in FBI investigation for somebody with whatever the most reprehensible malicious views of the day are, regardless of whether it's un American, unpatriotic depending on your point of view, or anti governmental. You can only open an investigation or use an investigative authority if those beliefs are attached to an articulatable threat of violence. So what's going on here? Because the way you're describing the way the Bondi memo acts in concert with NSPM 7 and also the earlier antifa executive order, it sounds a lot like that line is very much starting to blur.
- [23:38]
Tom Brzozowski
Yeah. So again, a couple of things here, and I do want to get your perspective on this because what you're saying is obviously absolutely accurate. I mean you may not know this, but I was in the FBI too for. For a period of time.
- [23:51]
Michael Feinberg
Yeah. Under the Domestic Terrorism Operations section.
- [23:54]
Tom Brzozowski
Yeah, that's right. So, so it was, you know, I was an FBI lawyer, not, not an agent, but it was basically my job to tell the agents about the dialogue, all the stuff that you're talking about, you know, so I know it, you know, inside and out for sure. And you're absolutely, you're, you're absolutely spot on. That is the, that is the bedrock principle that pretty much everything else is predicated on in the dialogue. And there's a reason for that. It's rooted in history, which is actually quite fascinating in and of itself. But to your larger point, yeah, you gotta have a predicate. You can't just open in a case based on ideology alone. Right. That's, that's the root of it, essentially. But what's going on here with this, with this particular memo is that again, it creates machinery and an incentive structure. And I already alluded to one thing that it does that's part of that machinery, this internal secret list thing that they got going on that's very opaque. And no one really, you can't discern exactly what criteria are going to be used and who's on the list, et cetera, et cetera. There's no mechanism rooted in statute that gives them the authority to create this list. Already talked about that. But there's like, they also created a tip line for added incentives, rewards, if you will, for people to call in with antifa focused tips. So again, you have to imagine a scenario here where you've got, okay guys, here's a pot of extra money. Use it to induce people to call in tips or inform on. What are they supposed to inform on? Activity that is antifa aligned. We don't know what that is with any degree of precision. So, so you're going to get, you know, a ton of people that are incentivized to call in on their neighbors or friends or other organizations that blah, blah, blah, blah, blah. How valuable is that as an intelligence source? I'll leave that to you to comment on. But you know, so you got that structure. So that's number two. Then you got, on the intelligence side, you got a directive to analysts to build out a network associated with Antifa. Not, not, mind you. Analysts give me a strategic assessment of what's happening on the ground. But rather there's a network out there, analysts finish building it like, and come back to us and give us a pretty picture of what we're telling you to build, which is backwards as far as I understand the analytical process within the FBI. And then of course, additional funding incentives that are going to Reshape priorities, perversely turning on the spigot for grants that are associated with antifa related work. So you might recall that early in the administration all the grants the DOJ has a sizable grant making function. All the grants that were typically that had been turned on to the tune of several millions of dollars related to work to counter domestic terrorism were turned off. Now they want to turn it back on, but only for work that is related to antifa priorities. And so that's the machinery that I'm talking about right there. And so you will note, and those that choose to do so and get a copy of the Bondi memo itself, it does cite what you just noted, namely the FBI shall not initiate an investigation based solely on an individual's exercise of their First Amendment rights. Fair enough. It's a footnote like, and that's a reference to it. But in every other possible signal that's being sent to the workforce, to fba, federal prosecutors, to agents, to analysts, to grant makers is telling them in no uncertain terms what the new priorities are going to be, what the incentive structure is going to look like, what questions are going to be asked at meetings, what supervisors are going to prioritize, et cetera, et cetera, et cetera. So no, I'm not suggesting that FBI agents or anybody else for that matter, is going to willfully go out there with a view towards trying to violate people's civil liberties. But this is the insidious work that operates over time to erode the integrity of an organization. Not like that in a wink, but over time. Because incentives dictate where the institutional inertia of an organization is going to it's like gravity. It's going to pull it inexorably in one direction.
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- [30:15]
Michael Feinberg
Right. And one thing that I think a lot of people don't realize about the FBI is that the field division heads, the special agents in charge or if it's a particularly large office, the assistant directors in charge, they actually get yearly bonuses and the yearly bonuses are based on how well their office meets certain health measures about training and more HR focused stuff, but also some metrics on operational accomplishments and you know, the FBI leadership, cash Patel, whoever ends up replacing Dan Bungie, you know, is going to make operational metrics based on DOJ priorities and SACs are going to be evaluated on how well they're forwarding these policies and, and having been enacting SAC for quite some time and having been an agent for a much longer time, I can tell you those priorities roll downhill to the line personnel. So it's not just a matter of incentives, it's going to be a matter of direction.
- [31:25]
Tom Brzozowski
I think now you're again spot on for sure. I mean again, if antifa and antifa adjacent activity is banded higher than whatever other other priorities and that that's how it works, how the process works, right? We can assume that it is banded pretty high.
- [31:43]
Michael Feinberg
I, I Never, I spent 17 years in the FBI. Sixteen, 17 years. And I am hard pressed to ever remember another AG memo directing resources to go to a specific group, even one as nebulous as antifa. You know, even during the height of the global war on terror, you would get language specific to Al Qaeda or later on specific to the Islamic State. But it's pretty unheard of, at least in my memory. And maybe, you know, different for a memo like this to target a domestic ideology.
- [32:30]
Tom Brzozowski
Well, no, I mean, it runs completely counter to, again, like that, that whole architecture of regulatory and statutory provisions that was born out of the church committee investigation, things like the Foreign Intelligence Surveillance act, things like the Dialogue, for example.
- [32:49]
Michael Feinberg
That is simply Attorney General guidelines.
- [32:51]
Tom Brzozowski
Yeah, you got the Attorney General guidelines. And of course the DIAG is simply a, you know, a subsidiary sort of document that flows from the Attorney General guidelines. But yeah, that's where they came from, the Privacy Act. I mean, a whole bunch of different things. Yeah, that's baked into those. That's why they were promulgated in the first place, to avoid situations like this. So this flies in the face of all of that and would suggest, as I said before, an institutional realigning of kind of doing it, skirting the regulatory and statutory provisions that are enshrined in those documents that are supposed to act as guardrails that are supposed to protect against that sort of mission creep. So that's why this thing is so dangerous. And then a quick note to your point about. Because we touched a little bit lightly on predication, because I noted, and you noted rightly, that the FBI can't just go around opening investigations based on somebody's ideology. Fair enough. But I think another facet of this, I didn't really dig into this a whole lot in the piece that I wrote on the bonding memo. But you know, and I know that the FBI doesn't really need to show a whole lot to initiate an investigation, especially if you're dealing with the lowest level investigation. This is all open source. You can find it anywhere. But like an assessment, for example, you simply have to state an authorized purpose and then you have to kind of make a showing that you're dealing with some kind of federal statute that could be in play. And so I offer up a scenario where what if the statute in place is 18 USC 2385, which is kind of the old Smith act, which is it outlaws a bunch of activity, it's sort of an art, kind of a relic, statutory relic, but it's still on the books, it's still there. A lot of it's been paired back, but even so, if you look at that, it criminalizes kind of a lot of stuff, an alarming amount of stuff. Now, if an FBI agent chose to, why not initiate an assessment based, use that statute as a Hook on activity related to antifa or antifa aligned threats or vulnerabilities in your aor. That's your, your authorized purpose is the bonding memo. In, in material respects you could just point to that and be like, hey, I'm just assessing threats or vulnerabilities. Now once you do that, that's not nothing because that opens the aperture and now all of a sudden you, you have access to confidential human sources. That's authorized in an assessment.
- [35:22]
Michael Feinberg
Yes, let's spell this out for listeners because you and I spent a long time on this. But essentially there are different levels of investigations that the FBI can open. And as you get higher up in on the ladder of types of investigations, you have more and more techniques available to you. So you can't leverage a wiretap or a FISA right out of the gates in an assessment. But an assessment does give you access to a lot of information in a lot of databases that other cases have built up. So you very much are able to search sort of non public sources for the benefit of your investigation, even if you don't have access to the specific investigative techniques which populated those databases.
- [36:17]
Tom Brzozowski
Absolutely, for sure. And then moreover, I mean, think about, you're right in general. And then sometimes, my apologies for glossing over that, but yeah, an assessment is the lowest level type of investigation, typically that the FBI can open. And above that you have a preliminary investigation, and above that a full investigation. In broad strokes, that's what we're dealing with here. But it doesn't even take a whole lot to open the middle type of investigation, which is a preliminary investigation. You only have to, it's. You have to make a showing of information or allegations. Think about that, think about that term. What is an allegation?
- [36:52]
Michael Feinberg
If somebody calls into the tip line, even if it's entirely bogus, the mere fact that they made an allegation gives you enough predication to open the middle level of an investigation. A preliminary investigation.
- [37:07]
Tom Brzozowski
Absolutely. Potentially that is indeed the case. Now once that happens, there's a cascading. This is, I'm only talking about what's happening in government. We haven't even touched on how this affects what society is going to do. But in government, what happens then? If you open a preliminary investigation on either an individual, an organization, whatever the case might be, I mean, even if that organization goes nowhere, it's closed in six months for lack of predication, the entity or the individual is still indexed in a secret government database, which sentinel is forever. Right.
- [37:46]
Michael Feinberg
There's actual laws preventing the purging of information from the database.
- [37:51]
Tom Brzozowski
And so that translates into watch lists potentially, that translates into HR decisions downtrace potentially if you want to get a federal job or if you, if you're getting a security clearance of some kind. I mean there's all sorts of, of, of implications.
- [38:05]
Michael Feinberg
Let's move into what you alluded to. Let's say Joe Smith has an investigation open on him because his neighbor doesn't like him and alleged he is a member of Antifa. And that's enough to get the FBI to open a preliminary investigation into Joe Smith. There's consequences in the private sector.
- [38:31]
Tom Brzozowski
Yes. So again for Joe Smith for sure. You know, he is going to have some, some trouble with his, whatever financial institution he deals with because you know, anything that's linked to him now is going to be flagged in a, you know, sar.
- [38:46]
Michael Feinberg
And just so people know, SAR is a suspicious activity report which is essentially it's a route for a bank to provide information to the federal government absent a court order.
- [39:00]
Tom Brzozowski
That's right.
- [39:01]
Michael Feinberg
It's something that the bank sort of does sua sponte once they know that the person or the account holder is a person of interest. It's done for a lot of reasons. But one of the reasons is the account holder is known to be a person of interest to the federal government.
- [39:17]
Tom Brzozowski
Right. And then maybe their activity on whatever social media platforms they, they frequent is going to be impacted for sure. And so you know, those, those are the two big ones. But again that another kind of pivoting a little bit from the impact of this, from an investigative standpoint to the impact that this memo has absent any kind of investigation, like consider yourself as a compliance officer at a major financial institution. You're building the criteria that your organization is going to use to trigger those sars. And you're looking at this memo in conjunction with these, this set of other things, the EO and the NSPM 7 and you, it's your job to okay, what are the triggers that are going to trip a SAR for us to ensure that we are compliant, that we don't get in trouble. You're going to load that thing up with antifa or antifa aligned ideology all day long even though, because you don't know what it is specifically that's going to actually be of interest to the government because it's so opaque, it's so nebulous. So you're going to over rotate and load that thing up. And so what you're effectively doing is you are debanking any individual or entity who might be engaged in whatever activity might be even tangentially aligned with your mind you, your interpretation of what antifa is. It's so Kafkaesque, it's bizarre. Similarly, the same thing's happening with social media platforms. They're writing their terms of service, they're going to bait that in and it has a cascading effect all downtrace through society.
- [40:57]
Michael Feinberg
So let's, as another podcast or with a different organization sometimes says, let's go to the bad place. Let's spell out what some of this means. The Bondi memo actually lays out what it believes are sort of the underlying beliefs of Antifa. One of them is they don't phrase it this exact way but it's being anti. Anti immigration. In other words, being opposed to deportation roundups under this memo is a hallmark of antifa. So is it conceivable that somebody protesting ICE operations in Chicago or Charlotte who is doing so in a way that does not break any law but annoys law enforcement? You know, I'm thinking of things like videotaping or blowing whistles. Could they conceivably have an investigation opened on them or be negatively impacted as a result of this memorandum?
- [42:07]
Tom Brzozowski
The likelihood is high and here's why. Because of the. The construct that's been created here. Again you, you recall that the JTTFs have been singled out as being spearheading this effort, this anti. Antifa effort in the first instance. And that's to the NSPM 7 and again as we discussed earlier, what is a JTTF is a. And you'd be a better position to describe this. I certainly don't.
- [42:32]
Michael Feinberg
Yes, so. So a jt, A JTTF is a counterterrorism squad situated in the FBI in an FBI field office. But unlike most investigative squads, it is made up of personnel and investigators from without exaggeration up to 20 or 30 different agencies. And they sit together and leverage each other's authorities to specifically for counterterrorism investigations. And there's a whole bunch of deputations and memoranda of understanding between the different agencies. But the whole point of the JTF, you know, was they started in the 70s originally and really got beefed up after 9 11. But the whole point was well, we're investigating somebody federal for a terrorism related offense. Wouldn't it be really helpful if we could just get them pulled over so we could have a pretextual conversation with them? Let's bring a local police officer onto our squad to widen the aperture of tools available to us so we're going to get state officers, we're going to get local officers, we're going to get individuals from the intelligence community like CIA and NSA to get us reports without having to go through the usual burdensome channels. It was really creating this like law enforcement omni group specifically for counterterrorism investigations. But the reason was that counterterrorism investigations, particularly on the international side, were different. You were dealing with things that really crossed borders and had international components and there was no way to actually stop them from launching an attack unless you had some ability to reach into overseas assets and some ability to respond to with local and municipal assets. So they created the jtfs.
- [44:54]
Tom Brzozowski
Yeah, well that was, yeah, that was far better than my description was going to be. I was going to be. It's a room full of federal agents with state, local partners and everybody in between, all focused on, as you said, the counterterrorism mission. Now in the main, you know that that's good in theory. However, to your, to your hypo, that jttf, maybe it's Chicago based. It's looking at the end. The, the bonding memo comes down. The overlay, of course the background overlay is the, the NSPM 7 which directs the JTTF to be. To kind of spearhead anti. Antifa effort. You've got a hodgepodge of folks who are not probably as well versed on the subtle nuances of the distinction between First Amendment protected activity and potential terrorist activity because this is not something that they would routinely be. They would fall within their purview in the main. And now added on to that there is this memo that comes down directing them to take a hard look at anything that could plausibly be antifa or antifa adjacent. And so that could and likely will translate into local PD on the ground at this protest that you just described, described seeing somebody standing next to somebody who gets into a scuffle with an ICE officer. You know, it looks like they know each other. So it gets written up in the report as this, you know, some dude, these two guys were involved in some kind of altercation with ICE that gets fed through the machinery into a, to a serial that becomes part of an FBI case, you know, case file and, and then you're in the system and that's how it works. And again, what's driving this in the main is the ambiguity. In the first instance, these folks operating. I'm not assigning any sort of malign intent to any of these entities. FBI, hsi, cbp, ice, any of them local PD for For sure. That's not what I'm getting at here at all. They're simply reacting to incentives and direction from above. They are like a loaded weapon with a ton of authority, a ton of latent authority that's sitting there that is simply being pointed in a particular direction. And that's the big concern that I have with all of this. And then moreover, they're doing so in an environment that is uncertain, ambiguous, with a lot of pressure to produce results.
- [47:22]
Michael Feinberg
There's another consequence which you haven't mentioned, but I do think we should point out, you know, most FBI offices, they're not New York or Los Angeles. They don't have 10 to 15 counterterrorism squads. They have maybe in a medium sized office, two or three, but in the majority of offices around the country, you probably just have one. And we know from a number of reports and from the government's own admission at any given point, 25 to 50% of the agents on those squads are being detailed to immigration enforcement matters. So they're already down. Add in that the FBI hasn't gotten a plus up in its funded staffing level or its budget in a number of years. By now I'm going to humbly suggest that those factors combined with the AG's direction to plus up the investigations on Antifa just frankly mean that other more actually violent terroristic groups are gonna get ignored or overlooked.
- [48:45]
Tom Brzozowski
Yeah, that's, that's the real concern here, I think. You know, it is a function of manpower, as you rightly note, namely diluting the effectiveness of the agents on the ground because there's simply not enough of them to do what they've been trained to, like to do what they've been trained to do. But moreover, this is sort of extending beyond the, what we're discussing today. But you know, from a statutory perspective, if you look at the use of some of these tools that the administration has leveraged of late, principally the foreign terrorist organization designation of these entities overseas, you know, doing things like that, that dilutes the power of that authority, which is, you know, it was enacted with a view towards protecting the country primarily against threats related to international terrorism. And if you're starting to use it in a manner that is incongruous with the intent for which it was actually passed, inevitably over time, it's going to dilute the power of an effectiveness of that particular tool. And that's just one statute. I suspect that we're going to see other statutes similarly diluted. So you've got that going on. But then you rightly note, of course, that even on the ground, it's simple math. You know, field office that used to have 10 agents on a DT squad now has three dedicated. That's going to make a difference, like it or not. And moreover, just a quick point on this, at least from my work in the FBI, you know, domestic terrorism investigations, they weren't exactly the most attractive work for, for most FBI agents, it's not. And then there's a reason for this. They're not, they, they weren't sexy in the sense that they're not it cases. You know, nobody really probably gets is super animated about investigating other Americans, you know, for, for stuff that's kind of political in nature, a little bit vaguely, and they are just littered with pitfalls. It is super easy to get in hot water during the conduct of an FBI or a domestic terrorism investigation because so many of them sit uncomfortably close to the vanishingly thin line between what is protected activity under the First Amendment and that which is criminal in nature. And if you make one misstep, you're over the line. And then all of a sudden, gosh, I'm investigating this guy based on his exercise of a First Amendment right. Now I'm in trouble and so is the bureau. And that doesn't happen in all cases, but it happens a lot. And so the point I'm getting here is that it takes a lot of training and a lot of experience to do these properly. They got to be properly program managed from headquarters elements. And when you have folks at headquarters element, most of whom have been reassigned to other, you know, ICE functions or immigration or narco terrorism or whatever the case might be, and you got leadership cycling in every six months there's a new maybe section chief who has never worked these cases before that tells over time, in addition to all the other issues that we've discussed during the course of this podcast so far, it will bear eventually, if it doesn't do it tomorrow, it will over time. It's, it's inevitable. History teaches us this. This is precisely what happened in the run up to the church community investigation. You know, like you're going to have these systems that are now unfortunately being built around broad ideological labels that are going to predictably expand beyond a narrow focus on violence, which is where the focus should be, into association and speech. It's going to happen. It's unfortunate, but it's like history is rewriting itself here.
- [52:41]
Michael Feinberg
Yeah, and that's, that's probably a good place for us to end. I would just on that note, I would really urge our listeners, if they find this conversation interesting or alarming or both, go back and read Senator Frank Church's opening and closing remarks from those hearings. I think it was 76, 74. But there's also a new abridged volume of the entire hearings coming out in a couple of weeks, actually. It's really a good warning from history about where this road we're currently on may lead.
- [53:24]
Tom Brzozowski
Let me give you one just because this is so interesting to me. I actually was looking at that material recently and I jotted down one of his quotes and I'll share it with you now. This is from Senator Church, quote, if a dictator ever took charge in this country, the technological capacity that the intelligence community has given the government could enable it to impose total tyranny and there would be no way to fight back. And that's we're inching in that direction, I fear.
- [53:53]
Michael Feinberg
I concur with that foreboding. Look, the good news is we've had the Church committee, so there are people in the public eye, there are people in the government who know where this can lead and hopefully they have the wind at their backs.
- [54:14]
Tom Brzozowski
Amen. And folks are waking up to this, I think. And I've seen indications across civil society that this is starting to become, well, I mean, it's hardly been ignored, but it's being taken seriously and there are efforts underway to address it. And Mike, you and Lawfare, of course, are part of that. So I applaud you for your work and thank you for the opportunity to participate.
- [54:39]
Michael Feinberg
Yeah, and thank you for coming on the podcast and hopefully we will see more writings from you soon.
- [54:45]
Tom Brzozowski
Will do. Appreciate it.
- [54:49]
Michael Feinberg
The Lawfare podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter at our website, lawfaremedia.org you'll also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts. Look out for our other podcasts, including Rational Security, Allies, the Aftermath and Escalation. Our latest Lawfare podcast series about the war in Ukraine. Check out our written work@lawfairmedia.com work this podcast is edited by Jen Patya, and our audio engineer for this episode was Max Johnston of Goat Rodeo. Our theme song is from Alibi Music. As always, thank you for listening.
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