Manhattan Institute Legal Policy Fellow Tal Fortgang and Rafael Mangual explore the differences between civil terrorism and civil disobedience. Fortgang explains how some organizations exploit legal loopholes to avoid accountability for lawless behavior, and why current laws often fail to address coordinated disruption and destruction.

Audio Transcript

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Rafael Mangual: Hello and welcome to another episode of the City Journal Podcast. I am your host Rafael Mangual, and I'm so happy to be joined by my wonderful colleague Tal Fortgang, who is a legal policy fellow here at the Manhattan Institute, someone whose work I've been following since he was in college, although we've already had this conversation on the podcast. Welcome back to the show, sir.

Tal Fortgang: Thanks. It's always great to be talking to you.

Rafael Mangual: So I don't know if you know, but we've been doing a kind of new series on the podcast called “Who We Are,” where we're kind of taking deeper dives into some of the core policy issues that Manhattan Institute scholars and City Journal contributors are kind of steeped in and I was really excited about doing that series. I'm really excited about having you on to talk about your work, which I think is very, very interesting and different from almost anything anyone does here. And so I want to get into that in a little bit. But first I just want to start with tell us a little bit about your journey. How did you end up at the Manhattan Institute? This is kind of a weird gig as someone who's been doing it for over a decade, and I'm always interested to just know was your path here circuitous? Were you just always a policy wonk? What happened?

Tal Fortgang: Well, it's weird in the best way, this job that we get to do and this wonderful institution that employs us, I pinch myself every day that I get paid to do the work that I do and we'll talk a little bit about the substance.

Rafael Mangual: I'm sure some of our critics have the same question.

Tal Fortgang: Yes, that's true and some conspiracy theories. By the way, don't read the comments. That's the moral.

Rafael Mangual: I never do, never do.

Tal Fortgang: I was interested in political theory when I was in college and I tried to connect the big ideas of political theory to the debates that my classmates and friends and I would have in class more frequently around the lunch table about the policy issues around us and connecting big ideas to mundane policy disagreements was always something I enjoyed doing. Always asking the question, why are we arguing about this thing? Trying to understand the arguments on both sides of an issue that always got my blood pumping. After college, I went to work at a different right of center think tank. I worked at the American Enterprise Institute for three years. I was a junior.

Rafael Mangual: I was just there for a conference two days ago.

Tal Fortgang: Did you leave more graffiti on their gym whiteboard? We're okay not supposed to tell.. Listeners, so the beautiful gym has been defaced.

Rafael Mangual: This is a great story. I was kindly allowed to work out in the AEI gym after speaking at a conference. Gosh, it's probably over a year ago now, and there was a whiteboard with a fun drawing on it and I snuck a Manhattan Institute logo in somewhere. So anyone who's worked out at the AEI gym can go see if they can find it.

Tal Fortgang: A friendly rivalry, a collaborative rivalry. I worked there for a few years. I had amazing, amazing mentors there who really opened my eyes to the ways that policy itself, even when not connected to the deepest questions of political theory, could be invigorating and interesting and always had to be fact-based. I worked for Robert Doar who's now the president of AEI for two years, and Robert would periodically pass by my desk and he'd kind of slap me on the back and say, “Facts, Tal, always facts. Remember, always facts.” And I don't know if that was a commentary on the draft I had just given him of something that he was working on or just generally good advice, but that led me to want to research anything that piqued my interest and just get to the facts. Facts of course are a backbone of good legal education and perhaps naturally, I went to law school after three years at AEI.

Rafael Mangual: “What are the facts of this case?” is a question that you get a lot in law skills.

Tal Fortgang: Law is the art of applying arguments to facts. It is the art of creatively characterizing and persuading others that they ought to similarly characterize the facts before you and when the facts are disputed, trying to figure out how you get to the bottom of them. That's what a trial is. I got an adequate legal education and went to clerk for a couple…

Rafael Mangual: He’s being modest everybody,

Tal Fortgang: A couple of stints on federal courts. But throughout that period in law school I started writing about policy issues, issues in theory, religion, culture, law, language, all the debates I really wished I was having in law school, which was not quite as intellectually engaging in experience as I had an undergrad and I kind of built a parallel career, which seemed to have gained the attention of one Reihan Salam, our fearless leader here at mi. And then I met him at a conference and he kind of gave me that very Reihan approach of “you know, we should really work together.” This is the greatest thing ever. I love mi. I've always admired mi. I've been reading City Journal for years. I know Reihan's work, I read his book a long time ago. He wants me to be his coworker. He thinks we should work together. That sounds amazing.

And here you are and here at MI where the adage that “you can just do things” really applies. Indeed. You could just do things here. You could just carve out a niche for yourself as a young policy scholar and for those who are listening and not watching, I'm doing air quotes. “Scholar” seems like a bit of an exaggeration, but someone who's interested in getting to the bottom of the facts and understanding arguments on both sides of the debate and trying to make sense of a complicated world and push it in a good direction. Yeah, you could just do things here.

Rafael Mangual: Yeah, I think that's a very apt description of the ethos here at the Manhattan Institute, which I have called home for going on 11 years now, but this I think is a perfect transition into a question about exactly what kind of niche you carved out for yourself and that's why we're here. I want to talk about the work that you've really kind of been pouring yourself into and you, despite not having been here as long as some other people, have the just really cool notch on your belt, which is that you have coined a term, that term being “civil terrorism.” Tell us a little bit about that.

Tal Fortgang: Yeah, I thought I was going to come here and work on civil rights and first amendment of free speech issues and constitutional theory and be like a legal scholar outside the academy and I ended up focusing most of my time and I will for the foreseeable future on this notion of civil terrorism.

Rafael Mangual: Which you define how?

Tal Fortgang: Which I define as the mass commission of seemingly minor crimes to intimidate or coerce a population into adopting unpopular political positions. I can draw some examples.

Rafael Mangual: Well, I'm trying to see if I can think up an example on my own. I mean look, just a couple of days ago here in New York City, we had a hotel that was apparently housing some Immigration and Customs Enforcement agents overrun by protestors who occupied the lobby, which is something that we saw happening in Minnesota as well. There was some property destruction, defacement, playing loud drums and blowing air horns outside to keep everybody awake. Does that constitute the civil terrorism?

Tal Fortgang: Yeah, I mean, in a sense it's a perfect example. All of those actions that you just described are indisputably illegal. Trespassing on hotel property, occupying it, not allowing people to pass, defacing property, violating noise ordinances and similar just the basic stuff that allows for order for regular life to proceed in a civilized country. Just breaking those rules in such large numbers that you are essentially daring law enforcement to remove you, arrest you and prosecute you for this seemingly minor thing. Who gets prosecuted for a noise ordinance? The answer is nobody. But if you do it all together, you can make people's lives really inconvenient and you say very specifically, we're doing this until our political outcome, our desired political outcome is reached. ICE out of New York, boycott a foreign country that we don't like, whatever unpopular thing, abolish the police. It can be any number of trendy issues. The point is we're not going to try to persuade you to do those things through the normal channels of argument and democratic debate and then trying to pass laws just legislating these things that are within the realm of legislation. You could if you wanted to. Bypassing that, subverting the democratic process by trying to, I say coerce or intimidate. A better colloquial term might be just annoy, to annoy people so much that they say, okay enough, whatever will get you to stop occupying hotels and blowing air horns in our streets in the middle of the night, whatever will get you to stop. We'll do it. We don't care that much. We'll just do it.

Rafael Mangual: And I think actually there's a bit of a successful track record, particularly in an area that I play close attention to, which is criminal justice. I mean after what seemed like a kind of six-year period marked by semi-regular riot episodes, I'm thinking here Ferguson, Missouri and Baltimore in 2015 with Freddie Gray and Chicago in 2016 with Laquan McDonald and then of course Minneapolis and the rest of the country in 2020 after George Floyd where you had these repeated episodes of incredibly bad and destructive behavior. I mean I forget now what the estimates were in terms of the damage done in a nationwide. It was billions and billions of dollars and that was met with sort of bending the knee on the policy front. I just remember thinking to myself, I mean obviously there were plenty of reasons to object to the policy proposals that were being advanced at that time, whether it was defunding the police like many jurisdictions actually did, or reducing jail or prison populations at an unadvisable rate. One of the things that bothered me most was that this seemed to be a response to agitation and that I thought was sending a kind of perverse message, right? You don't want to encourage this..

Tal Fortgang: Most of the groups that engage in this behavior will say outright, they'll use the term escalate all the time. They'll say, “we have to escalate our direct actions, we have to escalate our pushing the envelope with nonviolent, but law-breaking activity, we have to always escalate,” because at a certain point you will reach, you'll reach the point where whoever you're trying to influence will give in. And many people mistakenly think that these organizations are operating within the realm of regular democratic politics, which says if you alienate people, if you make them hate you, you're going to lose, you're going to quite literally alienate them from your cause. You're going to make them go farther away from your cause. That is not how this operates. The more annoying they are, the more effective they think they are being, the more agitating they are, the closer they feel they are to blackmailing you, which is essentially what you're describing, right? Agitation that leads to the powers that be bending the knee. So when people block the Brooklyn Bridge, the first response that you get from commentators who I think are not quite perceiving what's going on is like who do they think they're persuading with this? They're just going to make people hate them. Don’t they know this just makes them unpopular? No, that's the point. They know that.

Rafael Mangual: Yeah. I think a couple of months ago actually, which prompted some very surprising death threats directed my way during the Starbucks strike, I posted a couple pictures of myself buying Starbucks, which I don't drink very often, but I just wanted to kind of communicate my dissatisfaction with the obnoxiousness, with which the operation was being carried out and some people would say, well, this is why that's not going to work eventually. And I was like, no, actually I think it is going to work.

Tal Fortgang: Well, I would never endorse buying Starbucks. But the attitude, attitude is basically right, which is you have to respond with an equally demonstrative show that you're not giving an inch. Don't try these. The reason I call it civil terrorism is this is the essence of terrorism. It's “civil” because it doesn't use weapons, but it is terroristic in the sense that it is trying to make your life so inconvenient that you simply give them what they want and you do not negotiate with terrorists, right? You have to crack down Every time a group gathers to break the law and gets off scot-free, they are emboldened to continue escalating. That's a theory.

Rafael Mangual: Look, I think I want to get your take on this because I do think, and I've grown up being taught at every level of school that I can remember that for example, the civil rights fight here in the United States is something to be lionized, right? The sit-ins at diners and crossing bridges, linking arms with your comrades and colleagues and calling for change through civil disobedience that this is all to be celebrated. What is the difference between what you're describing as civil terrorism and what I think some of these call them agitators, call them ideologues, but I think they would call themselves protesters. What's the distinction between protests and civil disobedience that comports with living in a democratic society and what you're describing here as civil terrorism?

Tal Fortgang: Great, so preliminarily, let me just say that I think the civil disobedience of the civil rights movement is lionized because its cause was not just, but perhaps the most just cause of the 20th century, a realization of our constitution's protection of all people equally. I do think that that has taken on a life of its own and people now lionize the notion of civil disobedience and protest even when done legally in a way that is not culturally so healthy. That's just the preliminary thing to say maybe our veneration for protest has gone a little bit far and protesting for the sake of protesting is not what we'd want to encourage our kids to do. Okay? With that out of the way, and with that said, civil terrorism and civil disobedience are different in several crucial ways.

Rafael Mangual: Okay, walk us through it.

Tal Fortgang: One, people who engage in civil disobedience are more than willing to accept the consequences of their action. If they're going to be arrested for sitting at a lunch counter where they are prohibited by an unjust law to sit, they will allow themselves to get arrested. They're not going to try to de-arrest anyone. They're not going to fight back against police. They're going to go, they're going to sit in jail and they're going to write very stirring letters from those jail cells.

Rafael Mangual: You're referring to MLK, Martin Luther King's jail…

Tal Fortgang: Among others. It was part of a genre of great literature.

Rafael Mangual: Nelson Mandela

Tal Fortgang: Right, which that

Rafael Mangual: Different story, yes,

Tal Fortgang: I'm not going to get into that. I'm not going to get into that. Which brings me to difference number two. The civil rights model of civil disobedience involves drawing attention to the injustice of the laws being violated. Black people being prohibited from sitting at certain lunch counters or sitting in particular seats on a bus being segregated against those laws are themselves unjust. And most civil disobedience in the civil rights context occurred with violations of those unjust laws so that the civilly disobedient could say, look, they're making me sit in prison for sitting at a lunch counter. I did nothing but sit in a place where I was told I could not sit because of the color of my skin, thus drawing attention to the injustice of those laws. Now with those two differences, which cover most of what we're talking about in any case, right? No one's drawing attention to the injustice of noise ordinances or trespassing laws or laws against vandalism or whatever. Okay? The civil rights movement did occasionally block roads march across bridges, closing it off to traffic in ways whose tactics parallel today's civil terrorist. That parallel is superficial. However, because of the one major difference, civil rights activists were protesting against their exclusion from the democratic process because of the laws in the Jim Crow South. Black Americans were deprived their right to use the system of democracy to advance their goals. Of course, they had to engage in other means. They didn't have access to the system. Today's civil terrorists have full access to democracy, to vote. They never claimed that they don't. They are simply choosing to subvert the democratic process.

Rafael Mangual: I think this is an important distinction, actually. We're having this conversation at the very tail end of January and I just published a piece at City Journal reacting to some of the goings on in Minneapolis with respect to the immigration enforcement debate there. And one of the things that I noted in that piece is that we should be encouraging those dissatisfied with the status quo to utilize the political process at their disposal. I mean, we are less than two years away from a midterm election cycle, like let's go ahead and have a debate and inspire some votes and maybe write some new legislation. But the idea that we should be deciding these questions through brute force on the street is one that I find deeply offensive, but I think that's actually a really important distinction that not a lot of people fully appreciate,

Tal Fortgang: Which is why I think that that in-app comparison comes up all the time, but you get a kind of response to the argument that you made in City Journal and I think almost all of us at institute have made that kind of do the hard work arguments at points in our careers because we believe in law and order. We believe that that progress and reform and change has to occur within the confines of a civilizational order that makes it all possible. And that if you erode the foundations of that civilization, which really strikes at the heart of what I'm talking about with this whole civil terrorism thing, if you cause civilization itself to crumble, if you tug at the norms and the rules and the structures of civilization, then you're not getting anything you want because it's just a war of all against all. It can't work.

Rafael Mangual: I mean that's actually a really important point because I think one of the best ways to kind of evaluate the soundness of a philosophical proposition is to extend it to, its almost the level of absurdity and ask the question, well, if everyone endorsed this principle at the same time, would it still work? And if the answer is no, then the principle is flawed in some fundamental way. And so the rule can't be, can it that anyone who's mad about something in the political sphere enjoys the right to disrupt traffic, to trespass, to make noise, to take over streets because everyone's mad about something every day and society couldn't possibly function if that was how we operate.

Tal Fortgang: If you're playing a game of pickup basketball, you can strategize, you can set a hard pick, you can play aggressive defense and if you foul, you're going to be penalized for your foul. But what you can't do is just take the ball and walk off the court. You can't just stop playing the game and then expect everyone to conform the game moving forward to whatever you're demanding. And so the response that we get is, oh, but the political process is it's so weak, it takes so long at the national level. You hear a version of this when you talk about constitutional law and you'll say, if you want that change to whatever the second Amendment or the first amendment, you have to amend the constitution. And people will say, oh, but it's so hard to amend the Constitution.

Rafael Mangual: They should read Federalist Number 10. There’s good reasons for that.

Tal Fortgang: There are good reasons for that. And also just do better, persuade more people, make a better argument, or consider the possibility that your argument is not getting through to people because it's not a good argument, because that's not what people…

Rafael Mangual: Or maybe it is a good argument and maybe it just takes time. I'm just thinking here of, not to introduce another third rail issue, but I'm thinking here of the abortion fight in this country. Roe vs Wade was decided in 1973 and you had a lot of people in this country who were very upset about the implications of that decision, and it's a decision that stood for more than 50 years during that 50 year period. I mean, sure, I'm sure you had one-off attacks on abortion clinics that no one endorsed, that were politically rejected, not just in the mainstream, but also even on the fringes. By and large, the effort was directed at making legal arguments to hopefully get to a place where that decision could be overturned. And 50 years later it was.

Tal Fortgang: I'll join you on that third rail and say Roe was exactly the kind of shortcut that we should not be encouraging people to take. Right? State legislatures were at that point in the early seventies, slowly adopting liberalized abortion regimes, and then the Supreme Court stepped in and said…

Rafael Mangual: They're not going fast enough.

Tal Fortgang: A hundred some odd years since the 14th Amendment was ratified, we're now going to just say that it contains a kind of vague but general protection for abortion. And by the way, here's what you can do trimester by trimester, kind of an absurd act of judicial legislation, which everyone acknowledged, but the point is that it shortcut the democratic process. And when Dobbs finally overturned Roe after 50 years, all it said was this issue goes back to the states. If you want to persuade your fellow citizens that they ought to have a liberalized or more restrictive abortion regime, don't expect a brass ring from the Supreme Court. Do the work persuade the people, and if you're not getting through, perhaps anthropology is perhaps your arguments about the nature of law are wrong or perhaps you need to change the nature of your argument, but just looking for shortcuts is kind of what we do these days. You get a, culturally, I work on a lot of issues related to directly or tangentially related to antisemitism, and people I think on my side of these issues will frequently just try to deem something antisemitic and then assume that that makes it verboten. That if you can just label something and antisemitic, it's that, oh, that person is now disqualified. That kind of argument is now disqualified. It's a shortcut, and that is not a good way to actually go about cultural debate. So now we've touched on 19 different substantive issues and we're all over the place here, but this is a recurring theme and pattern that I think really characterizes a culture that is so impatient with what it takes to actually have a democracy and a civilization.

Rafael Mangual: No, I think that's exactly right. And we have a colleague in common and Jim Copland who wrote a really fantastic book, I want to say it came out in 2018, just kind of illustrating the ways in which we have kind of twisted government into a pretzel to create these paths and run the political process, which is meant to be difficult to navigate. I mean, I've already mentioned it and I think I've mentioned it on this podcast before, but Federalist Number 10 by James Madison is my favorite of the Federalist Papers precisely because it makes the strongest case for why we should be weary of government by passionate factions and why we should make it difficult and require a high level of agreement across the entirety of the country before we can impose restrictions on our fellow citizens. But we've already kind of touched on a couple of the issues here, but I mean, the next question I wanted to ask you is, I mean, is there a discreet set of issues that you would say describes the people who engage in conduct that falls under the umbrella of civil terrorism or it, do they run the gamut?

Tal Fortgang: Yes, but no.

Rafael Mangual: Okay.

Tal Fortgang: The most frequent issue that stirs up this kind of civil terrorist activism is general opposition to Israel, and sometimes it's phrased as ceasefire now,” like “Stop Israel from committing what is wrongly characterized as a genocide in Gaza.” But sometimes it'll just be more specific than that. Like, oh, Israel is planning to invade the Gazan city of Rafah, all eyes on Rafah, and there'll be all of these materials printed up very quickly to hone in on this specific sub-issue. That's the big animating one. ICE recently, for obvious reasons, opposition to ICE and interference with its law enforcement operations is another big one. And we saw it in Los Angeles a few months ago…

Rafael Mangual: And that's actually really interesting because it just goes back to this issue of the political process. I was having a discussion with a friend about this recently, and I was resisting the framing of the issue as a dispute between the people and the state. In part because the state is representing the interests of a large group of people who sat through four years of their political preferences, not just being ignored, but actively undermined, went through an arduous and drawn out electoral process that they emerged victorious in, and now apparently outrageously expect that the fruits of that election get to be enjoyed through more immigration enforcement, which again, you don't have to take a position on the soundness or the propriety of the way that the Department of Homeland Security is going about this, but to acknowledge that it's probably a bad rule that we can sort of not just abrogate duly enacted federal law, but essentially rule null and void national elections that turned on a singular issue.

Tal Fortgang: We fought a big war over that a long time ago, and it's actually really striking how state and local officials inadvertently parallel pre-Civil war language about how certain federal laws do not enjoy the same status as other ones if we don't want them to. But my point on it is about certain discrete issues, and it's not at the same time, is that it seems to be the same organizations whose paraphernalia shows up at the Israel stuff, the ICE stuff, the pro-Maduro stuff…

Rafael Mangual: Who knew there were so many Venezuelan regime sympathizers here.

Tal Fortgang: So this world of researchers on domestic extremism that I have been inducted into over the last few years as I've taken up this issue as my own. They knew. They knew, and they've been tracking a lot of these groups and trying to understand their ideology. Is it anti-Israel? Kind of, not really. Is it anti-ICE sometimes, but not fundamentally. Is it pro-Maduro? Yeah, sometimes, but not really. Is it pro-Cuba? Is it pro-Iran? Is it pro-North Korea? Is it pro-Chinese Communist Party? Frequently. Those are how they express themselves. What are they? They are revolutionaries. They are anti-American revolutionaries.

Rafael Mangual: Was that the common thread then that runs across those issues?

Tal Fortgang: I mean, how could it not be? It's like the broadest, it's a very broad expression of the thread to say these are people who will cast Americans and the United States government as a villain in whatever it does, and who fundamentally want our constitution replaced with some kind of communist, third-world-ist utopia, and they're, for the most part, true believers. They really do not like the United States as the current constitutional republic, and they will work to undermine it. By the way, the so-called indigenous rights movement is deeply tied in with all of this, which says the United States was illegitimately founded from day one. It was built upon a genocide of indigenous people, and we're going to call it Turtle Island, which is kind of a funny term for many reasons. We're going to call it Turtle Island because fundamentally we reject the sovereignty of this nation called the United States over this territory. In that sense, it gels very nicely with the pro-Maduro anti-Israel stuff. They see western liberal democratic capitalist societies as fundamentally illegitimate and in need of revolution.

Rafael Mangual: I mean, that's a really, truly scary thought, but if there's a place where I might find some sense of security in what you've said, it's actually in a particular word, which is organizations, and it's a word that you mentioned a couple of times, which suggests that there is a kind of formal structure here, which some could say like, okay, well that makes it even more dangerous, and maybe it does, but to me it also communicates that to some extent this is sort of astroturfed, that it's not completely organic. What am I getting right or the wrong?

Tal Fortgang: You're right, you're right. And I agree with you that it's a cause for both optimism, and I don't know if pessimism per se, but it should strike a little bit of fear into our hearts that there are organized revolutionary efforts that we have been thus far unable to crack down on, even though that's kind of what a government should be doing first and foremost.

Rafael Mangual: And I want to get into why that is, but keep going.

Tal Fortgang: Yeah. Yes, it's organized. To a large part, it's astroturfed, which means that there is not, everything that we're seeing is not completely organic. However, there has to be some demand among Americans, mostly young disaffected, overeducated Americans. There has to be some latent desire that these organizations can activate in order to have foot soldiers, the kind of people who will trespass in buildings and block roads and engage in mass criminal activity for the cause. There have to be people who are actually willing to do that and who are generally chronically underemployed enough to do that. There's another cause for optimism though, is that because this is organized, it can be identified and targeted. If it really were a group of organizations that were kind of like Antifa, which we often hear like, “Antifa is just an idea, it's not really an organization,” and that's not totally true, but if it were, it would be very hard to crack down upon who do you prosecute, who do you investigate, who do you find? How do you trace money when it's just individuals showing up after Facebook messages go out, saying, all right-thinking people should be at this place ready to make noise. These organizations are actually tighter knit than that. They have, in some cases, command structures. In some cases they legally exist as entities that can be sued, and there is an opportunity here for law enforcement and our investigative agencies to step in and do something about this.

Rafael Mangual: So before we get to how this sort of thing might be cracked down, and I mean, tell us just a little bit more about who these groups are, right? I mean, you mentioned Antifa, which is kind of a quasi-group kind of not maybe, but are there other organizations that you have in mind and tell us a little bit about who they are and what they're doing?

Tal Fortgang: Yeah. If you look at pictures or watch videos of any civil terrorist event, and by the way, civil terrorists always film themselves doing what they're doing because they want people to know and be afraid, so they will post evidence of their criminal behavior to social media in no uncertain terms. They will also tell you frequently who they are, they will hold up banners that say things like, “until Palestine is free, shut it down,” “shut it down for Palestine,” whatever, and then at the bottom it'll say things like “Party for Socialism and Liberation,” or…

Rafael Mangual: Which is one of these groups.

Tal Fortgang: That's one of these groups, the Party For Socialism and Liberation is one entity within a network bankrolled by a man named Neville Roy Singham.

Rafael Mangual: Who I've heard his name before.

Tal Fortgang: Yeah, he has long been connected to the Chinese Communist Party.

Rafael Mangual: He's not a Chinese national.

Tal Fortgang: He is an American who now lives in China. He sold his tech company a few years ago for many hundreds of millions of dollars. He became a consultant for Huawei the, I guess...

Rafael Mangual: Well, he's a rich capitalist tech bro who became a communist party agitator.

Tal Fortgang: He is a rich anti-capitalist tech bro, right? He's willing to take advantage of the lucrative opportunities that a free market system has to offer in order to bankroll its demise, and this has been covered in institutions like the New York Times has written about Singham and his close connections to the CCP, and sometimes they'll connect the dots to organizations like the Party for Socialism and Liberation or to Code Pink, which is a group that harasses lawmakers and shows up at all these civil terrorist events. And they seem like a bunch of harmless old ladies. They're not. Actually the best explanation for what they do is a money laundering operation for these anti-Western radicals. Well, I have to go into some serious details about the way money flows from various Singham entities through groups like Code Pink, to foot soldiers, but the short version is that they basically act as an intermediary as far as we can tell. They act as an intermediary through which funding magically gets delivered to the people who will actually do the dirty work of civil terrorism. But that's just another head of this monster. There are others. There's a brick and mortar, I dunno what to call it. It's like a business and an organization. It's a building called The People's Forum here in New York City that is a openly pro-Venezuela pro-Cuba hub of activist training. They do these Leninist book clubs and de-arrest clinics, right?

Rafael Mangual: What's a de-arrest clinic?

Tal Fortgang: A D arrest clinic. Some videos of this surfaced from Minnesota recently. It is where people where trained activists share their training with people who want to get involved in effectively obstructing justice what to do if you see one of your comrades being arrested by law enforcement, how do you use your hands of feet and megaphones and whatever else is at hand to interfere with that process? Some would call this conspiracy to impede an officer of the United States or whatever state they're in, which is a felony. There might be other statutory terms to describe people like this and what they're doing. They do it pretty openly. They post videos of it. Our colleague Stu Smith, you can follow him…

Rafael Mangual: Fantastic follow, by the way.

Tal Fortgang: His X account @thestustustudio has been the place for finding these videos. That's what Stu does, is he insinuates himself into these webinars and trainings and pulls out the evidence of what these groups are up to when they think no one is watching. Stu is always watching.

Rafael Mangual: Remember that folks?

Tal Fortgang: Stu, are you listening? Yeah. That is their business model, and it is staggering. The kinds of things that these organizations do and the ways in which they try to shield themselves from legal accountability is actually very clever. That's really the heart of what I work on in my capacity as Manhattan Institute Fellow is trying to drive them out of the shadows so that they can be held legally accountable for what everyone recognizes is illegal activity.

Rafael Mangual: So how is it that they're avoiding legal accountability now?

Tal Fortgang: There are a few ways. There are a few ways, but the short way to explain it is they found a little bit of a soft spot in American law, which is the nonprofit sector. The nonprofit sector is a great place for money to flow in tax exempt and for relative opacity. It's not super transparent in the nonprofit sector, especially if you use an arrangement that is known as fiscal sponsorship, which sounds very wonky and in the weeds, but it's actually not very complicated. A 501(c)3 tax exempt nonprofit can help a new nonprofit get off the ground by essentially deeming it an arm of the existing nonprofit and saying, okay, we, the Manhattan Institute, we're a 501(c)3. We're going to fiscally sponsor the Mangual Project.

Rafael Mangual: Okay. I like sound of that.

Tal Fortgang: And yeah, and I'm sure it's what you're going to do is all above board, do very good work. Don't look at the records. Don't look at the records. Well, with fiscally-sponsored entities, there really are no records. You don't have to disclose precisely who you're fiscally sponsoring or how much money you're sending to them, and strikingly, the existing nonprofit is not held legally liable for unlawful things that the fiscally sponsored entity does. So the Manhattan Institute would not be held legally liable if the so-called arm of the Manhattan Institute, the Mangual Project went out and started assaulting cops. That's an oversight. Meanwhile, the Mangual Project would not even have to file a Form 990. It would not have to say who its officers are, where it's located. It's totally shielded from transparency because let's say I wanted to sue the Mangual Project and not Manhattan Institute. Well, I know where to find Manhattan Institute, but I can't hold them legally liable, and I don't even know where to serve you. I don't even know who to serve. I don't even know where I'm going with any of this. So the mechanisms that just the actual machinery of our systems of legal accountability just totally break down when it comes to these dark corners of the nonprofit sector. So fiscal sponsorship sounds like this esoteric tax provision that governs the nonprofit sector. It is actually a safe harbor right now as currently constructed. It's safe harbor for a lot of these civil terrorist organizations. That's why we're working to reform it.

Rafael Mangual: Okay. I was going to say, I mean, you mentioned earlier that it was difficult to crack down on some of the activity that sort of falls under the umbrella of civil terrorism, and my initial question, the second you mentioned that was, well, why? I mean, this seems pretty straightforward. You have criminal activity. Why not just intervene? But it sounds like part of the reason is is because there's actually a, there's enough legal distance between the sponsors of the activity and the people carrying it out and no real mechanism through which to identify the latter, but that's a loophole that we can close. So how do we close it?

Tal Fortgang: Totally. We're closing the loophole. I'm very lucky to have found receptive ears among lawmakers across the country at all levels and different branches of government.

Rafael Mangual: What about different parties?

Tal Fortgang: We'll see about different parties. I actually, I think there's some hope for bipartisan support for fiscal sponsorship reform.

Rafael Mangual: I would hope, because this is the kind of thing that seems like it could go both ways. Right? I mean…

Tal Fortgang: All we want lawmakers to do is press fiscal sponsors to be transparent about who these groups they are fiscally sponsoring are. Tell us, just give us a name and an address so that we know who to sue if we need to sue them, and if you are knowingly and repeatedly supporting them beyond just an initial boost as they're first getting off the ground, if you support and they continue to commit crimes, then we're going to hold the sponsoring entity legally liable. That seems like a common sense way for larger established nonprofits to police themselves and say, you know what? This group, we've been fiscally sponsoring, they've been occupying hotel lobbies, we're going to cut them off. We're not going to route donations to them, but through us, they can find a different fiscal sponsor who wants to take that risk. So it's not the heavy hand of the law coming down and crushing the nonprofit sector by any stretch. It's nothing like that. It is just police yourself.

Now, closing that loophole is pretty easy. I think it could have bipartisan appeal and that would deal with a lot of the problems. Some of the organizations that engage in civil terrorism are not fiscally sponsored entities, and that is not to say that all hope is lost in terms of holding them legally accountable for what they do. Recall that what they do is break the law. All the time. You could theoretically arrest them all for disorderly conduct each time they engage in disorderly conduct. But there's a very good reason that that doesn't happen even in jurisdictions where prosecutors may not be so sympathetic, which is it's not always worth prosecutors' time to prosecute a thousand misdemeanor disorderly conduct charges. It's just we don't prosecute that many misdemeanors in this country as it is. Maybe we should, or maybe we could raise the transaction costs of engaging in that kind of unlawful behavior. We can raise the penalties and the deterrent effect of engaging in things like disorderly conduct en mass, such that if you consciously engage in disorderly conduct in groups of three or five or 10 or more or with certain other aggravating circumstances, then we're talking about a felony and then the incentives change.

Rafael Mangual: As I'm listening to you talk, I'm just thinking about, and this is my criminal justice brain, but there are other entities that exist in our world that are engaged in systematic violations of the law. We tend to call them gangs. They don't identify themselves as gangs. They don't register necessarily.

Tal Fortgang: Are you going to RICO this conversation?

Rafael Mangual: Right. Are you a, you see where I'm going? I mean, is that not an option? Is that something that we have seen an example of be successful? What are the particular challenges there?

Tal Fortgang: Yeah, so RICO is the anti-gang statute.

Rafael Mangual: RICO is an acronym that stands for racketeering, influencing and corrupt organizations. Correct?

Tal Fortgang: You better be right about that

Rafael Mangual: I had trouble, but don't hold me to it.

Tal Fortgang: Something like that. R is definitely for “racketeering.” Yes, that's for sure. But you lose me after that. And states have analogous anti-organized crime laws. That is the kind of theory that gets talked about a lot in my line of work and it's possible. But there's a reason that there are multiple reasons that prosecutors and former prosecutors will talk about RICO as, excuse me, a bomb. It's a big high bar. Tough to prove. The core of RICO is a kind of predicate act, a serious criminal act that the conspiracy formed around. With civil terrorism, it is difficult to identify exactly the predicate act that could give rise to a RICO conspiracy. So disorderly conduct is not a predicate crime. You cannot charge someone or group of people under RICO for conspiring to commit disorderly conduct. It's usually got to be a little bit more serious than that. There was some proposed legislation I think from Senator Ted Cruz a while back that would add riot as a predicate for RICO. That did not seem to get any traction. I don't know if the legislation is dead in the water or what. I hope it's not. I think that would be a good thing to do and something that states could take on for their state RICOs, just add predicate acts at the federal level. I'm not so confident that that's going to happen. What this reveals really what the difficulty of applying RICO reveals is the way that these civil terrorist groups actually do plan and conform their law breaking to the law as it stands. They have pretty good legal counsel that tells them you are very likely to get away with these things, but don't engage in that other thing that's going to get you into hot water. A vivid example of this is video that I want to give credit to. I think it was Stu, our colleagues, Stu Smith who surfaced this video, one of the law firms that frequently advises civil terrorist groups a webinar on doing encampments on college campuses.

Rafael Mangual: Do you know which law firm?

Tal Fortgang: I don't want to….

Rafael Mangual: Okay, if you don't know for sure, don't say it.

Tal Fortgang: I don't know for sure. I know a bunch of these public interest law groups that do this kind of work. I don't recall exactly which one this one was, but it was someone advising students at Columbia on how to break campus rules in ways that would lead to the fewest possible consequences.

CUNY Clear Legal: Another question, what if somebody just pretends complete ignorance to Hamas. Don’t know what you're talking about. So I think this question is really like, yeah, I would answer the same way. I mean first of all saying I don't know when you do know or feigning ignorance when that's not the reality could be construed as a misrepresentation or a lie and you find yourself in the sort of situation that you want to avoid that we were speaking about earlier of criminal and potential immigration consequences flowing, and that's why silence is better, better and more protective for you.

Tal Fortgang: And one thing that they said was don't talk about how you support Hamas. Don't give out Hamas propaganda. Don't reference the Al-Aqsa martyrs brigade.

Rafael Mangual: I will just go back, sorry to the slider. There are certain kinds of things that we want to make sure that will create risks for you if you're not a citizen. So that's inciting, advocating, or declaring public approval or support for terrorist activity. And terrorist activity is defined very broadly to cover many acts including the taking of hostages, assassinations or the use of any weapon with the intent to endanger the safety of others or to cause substantial damage of property.

Tal Fortgang: I don't know for sure. I know a bunch of these public interest law groups that do this kind of work. I don't recall exactly which one this one was, but it was someone advising students at Columbia on how to break campus rules in ways that would lead to the fewest possible consequences. And one thing that they said was don't talk about how you support Hamas. Don't give out Hamas propaganda. Don't reference the AA martyrs brigade.

CUNY Clear Legal: I will just go back, sorry to the slider. There are certain kinds of things that we want to make sure that will create risks for you if you're not a citizen. So that's inciting advocating or declaring public approval or support for terrorist activity. And terrorist activity is defined very broadly to cover many acts including the taking of hostages, assassinations or the use of any weapon with the intent to endanger the safety of others or to cause substantial damage of property.

Tal Fortgang: And then of course the students at Columbia just went ahead and did it and then one of them quite prominently was detained and was going to be deported.

Rafael Mangual: And you're making reference here to Mahmoud Khalil.

Tal Fortgang: And Khalil was doing exactly what legal counsel told him not to do. Now whether the state department and Department of Homeland Security actually present that evidence in a way that's actually going to help the deportation that's going to see it through is to be seen. But one of a great piece of evidence against him is that he was a leader of Columbia University Apartheid Divest, which gave out straight up Hamas propaganda and repeatedly said things that indicated that they were aligned with Hamas.

Rafael Mangual: By the way, which is a designated foreign terrorist organization.

Tal Fortgang: Yes, it is it illegal to materially support Hamas. This was not necessarily a material support case. The standard for deportation is lower, but the point is that they have webinars that tell them go this far but not farther. And sometimes useful idiots are just idiots, but frequently they will do things that are illegal but only so illegal that they're probably going to get off scot-free.

Rafael Mangual: I see. I could talk about this for a long time. I'm super interested in all of the work that you're doing, but I don’t know if I necessarily want to close with this, but I want to spend some time getting to the following question, which is what do you tell people who have maybe a longer historical memory than your typical 20- or 30-something, who might say that, “well, listen, yes, the civil terrorism stuff that you're talking about is annoying, but listen, remember in the 1970s we had the weather underground setting off bombs. You had FALN shooting up Congress and setting off bombs and Fraunces Tavern and you had the Black Liberation Army doing these shootouts with the police. And are things really that bad in historical context?” What do you say to people who discount the danger that some of these civil terrorist groups pose now compared to their brothers and sisters a generation or two ago?

Tal Fortgang: There are a few things I'll say, starting with the 1970s weren't so great.

Rafael Mangual: No, they're not.

Tal Fortgang: So saying that today is not as bad as the 1970s is damnation by faint praise. I don't want to go back to the 1970s and I agree we're not at a point where it's as bad as when the Weather Underground was trying to blow up police dances and ended up blowing themselves up, when there were bombings of Congress and all kinds of shootings. Revolutionary movements.

Rafael Mangual: Yeah.

Tal Fortgang: And it was just generally like a dangerous, horrible time. I like to joke like how did anyone survive the seventies? I don't want to go back there. I want to go to a peaceful, more prosperous era. That's one thing. The other thing is that there are certain elements of, I'd say the technological age that make the threat of escalation more worrisome in particular as it pertains to transnational efforts to undermine the United States. What I mean by that is that China sees itself as being locked in a great power collision with the United States and through various technological means, can support civil terrorists and help them make good on their threat to escalate in ways that perhaps the Weather Underground could not find support from the Soviets, even though the Soviets were quite interested in supporting them. So if we're going to draw a Cold War parallel and say, well, what's more dangerous, taking nuclear weapons out of the equation for a second, being locked in a cold war with Soviet Russia in the 1970s or being locked in a cold war with China in the 2020s, I say that today's Cold War is more dangerous, not because of the threat of nuclear holocaust, but because China is quite savvy, quite well moneyed and quite interested in undermining and subverting the United States from within.

Rafael Mangual: Alright, well I'm now terrified and I don't think I'm going to sleep for the next week. So, thank you for that…

Tal Fortgang: The good people of the Manhattan Institute are on the case, and like I said, we found a lot of receptivity to this theory in the halls of power.

Rafael Mangual: I'm, we're going to make complain bitterly to that bit of optimism.

Tal Fortgang: We're going to be okay,

Rafael Mangual: But I want to close with this, which is give us some good news, give us some hope. What is your sense of the likeliest positive outcome and when we can expect it, what form does it take and how quickly do you think you can get it done?

Tal Fortgang: I would not be surprised if there are multiple pieces of legislation and executive action that target the different elements and state action by the way, that target the different elements of this civil terrorism phenomenon and its entanglement within foreign affairs and the foreign threat to American sovereignty that do so in ways that are effective, that garner bipartisan support and pass into law and lead to investigations of the bad actors at the heart of this, leading to criminal prosecutions of their leadership for engaging in all kinds of malfeasance and bankrupting the groups that so much money has been poured into. Now, whether that's staves off Cold War with China, I am not going to weigh in on that. I do think it is good news that the law is just, law is on the side of decent Americans and it might take a little bit of time, but the law will be applied and I think we're going to breathe sigh of relief in not too long once those efforts really, really get started in earnest.

Rafael Mangual: Well, I am rooting for you about as hard as I could root for anything. I really appreciate the work that you're doing. I think it's incredibly important. I hope you all agree and that you enjoyed this conversation, which I'm incredibly grateful to Tal for having with us. Please do not forget to like, comment, subscribe, ask us a question, drop us a note, shoot us an email, do all the things for the algorithm and let us know how you're doing and what you're thinking of this new series. We are so excited to drop new episodes which come every Wednesday. Don't miss them. And until the next time you have been watching the City Journal Podcast, thank you.

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