The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Justice Department is Failing American Jews
Hamasnik protestors are violating various federal laws, and the Justice Department is doing nothing about it
[Cross-posted with my Times of Israel blog]
As Times of Israel readers are well-aware, since October 7, anti-Israel groups have launched widespread assaults on the rights of Jewish Americans, especially but not exclusively on college campuses.
I regularly tweet (@ProfDBernstein) about these incidents and comment, "Where is the Justice Department? Where is the FBI?"
I often get responses like, "isn't the Department of Education investigating some of these colleges? What can the feds really do?"
The answer is that "the feds," and the Department of Justice in particular, could do a lot to protect American Jews, and they are doing little to none of it.
Here are some examples.
(1) The Ku Klux Klan Act prohibits conspiracies to deprive Americans of their civil rights. This Act could be invoked against student groups that are blocking Jewish students from traversing their campuses, as at UCLA, and against groups that blockade public roads, depriving people of their right to travel. The Act has been invoked in private lawsuits, but the Justice Department has not brought a single case.
(2) The FACE Act prohibits "the use of physical force, threat of physical force, or physical obstruction to intentionally injure, intimidate, interfere with or attempt to injure, intimidate or interfere with any person who is exercising or trying to exercise their First Amendment right of religious freedom at a place of religious worship." Hillel buildings serve as houses of worship, and various campuses have seen acts of intimidation of and interference with those students trying to enter or exit Hillel buildings. No one involved in these incidents has been charged under the act.
(3) Various complaints and lawsuits against universities have documented threats and assaults against Jewish students in violation of their civil rights. The Justice Department has not brought any criminal or civil charges against the perpetrators, with the exception of a Cornell student who threatened to kill Jewish students. Lower-level and less well-publicized threats, harassment, and assaults have not attracted Justice Department intervention.
(4) American intelligence officials have revealed that anti-Israel protesters are getting money from Iran, in violation of US sanctions laws. Despite this public revelation, no one has been indicted for receiving or serving as a conduit for this money. [Indeed, I wonder whether this information was released precisely because the intelligence folks are frustrated that Justice hasn't done anything about it.]
(5) For political reasons, police departments in cities including DC, Philadelphia, and Baltimore have refused requests by university officials to clear illegal, antisemitic campus encampments. This inaction violates the Fourteenth Amendment's guarantee of equal protection of the law. More narrowly, this abuse of police discretion violates the conditions on which cities receive billions of dollars in federal funds. The Justice Department seems entirely quiescent in the face of this malfeasance. Similarly, local prosecutors across Virginia and elsewhere have told police that they will not prosecute Hamasnik protesters who violate state laws by wearing masks to intimidate the public. Again, no intervention against discriminatory law enforcement from the Justice Department.
(6) There are strong indications that antisemitic groups like American Muslims for Palestine and National Students for Justice in Palestine have illegal ties to Hamas. Several state attorney generals, most prominently Virginia's Jason Miyares, are investigating these ties. There are also civil lawsuits pending against these organizations for material support for terrorism that has killed Americans. There is no indication that the Justice Department is seriously investigating.
(7) Jewish-owned businesses have been vandalized in New York and other cities. No federal civil rights charges have been filed against the vandals.
(8) Universities such as Yale have illegally failed to disclose massive donations from Qatar, Hamas's ally. The legal consequences of this failure have been minimal.
(9) Finally, while the Department of Education has been investigating allegations of universities discriminating against Jewish students via a hostile environment, double standards, or otherwise, every one of these complaints has been filed by a private party, giving the Department of Education a legal obligation to investigate. The department does not appear to have opened a single investigation of its own, nor has it referred even the most egregious cases to the Justice Department for potential civil litigation. Every lawsuit that has been filed has been the product of private rather than government efforts.
One can speculate as to why the Justice Department has been so quiescent in the face of the largest outbreak of antisemitism in the United States in decades, failing to use existing legal tools when the antisemitism turns illegal. But what we can say for sure is that despite Attorney General Merrick Garland's stated commitment to protecting the American Jewish community from hate crimes, his Justice Department has been an almost complete failure in combating such crimes inspired or committed by anti-Israel activists.
