Could Rosa Parks, who was arrested in Montgomery, Alabama in 1955 for violating segregation laws by sitting in the white-only section of a bus and refusing to move, be considered a “homegrown terrorist” by the U.S. government today? Under the terms defined in the Violent Radicalization and Homegrown Terrorism Prevention Act she just might be.
The Violent Radicalization and Homegrown Terrorism Act of 2007 (S.1959 / H.R.1955), with an estimated budget of $22 million over four years, would establish a national bipartisan commission to “[e]xamine and report upon the facts and causes of violent radicalization, homegrown terrorism, and ideologically based violence in the United States” through convening hearings and issuing reports and would establish a university-based “center of excellence” that would bring together academic specialists to recommend laws and other measures to combat homegrown terrorism and violent radicalization. The bill would also broadly define “violent radicalization,” “homegrown terrorism,” and “ideologically-based violence.” The intent and language of S.1959, its resulting commission, and its “center of excellence” will undoubtedly erode civil liberties. It poses a serious threat for the following reasons:
1. S.1959’s focus on ideology rather than criminal behavior threatens First Amendment-protected activity. Representative Jane Harman (D-CA), the author of the bill, said, “Our plan must be to intervene before a person crosses that line separating radical views from violent behavior.” It is precisely that line and that activity that the First Amendment protects, as the Supreme Court has made clear in the landmark decision in Brandenburg v. Ohio.
2. S. 1959 jeopardizes the Internet as a critical free speech zone. In a unanimous decision in Reno v. ACLU, the Supreme Court recognized the Internet as a free speech zone to be afforded no less First Amendment protection than books, newspapers, and magazines. This bill specifically targets the Internet for investigative scrutiny and, in doing so, will undermine the existing protections afforded to the Internet.
3. Rather than protecting civil liberties, S.1959 erodes them by misstating existing protections. Subparagraph a) of the bill’s section on civil liberties excludes undocumented resident aliens from protection. In doing so, this bill actually denies undocumented resident aliens entitlements to equal protection and due process that they are afforded under the Constitution. Subparagraph b) states that “rational basis” is the standard of protection to be extended in the application of this bill. “Rational basis” means that the government need only show that the targeting of a specific group of people is rationally related to serving a legitimate state interest. This standard is weaker than the constitutional standard of “strict scrutiny,” which protects people discriminated against based on race, religion, and national origin.
4. The overly broad definitions included in S.1959 open the door for investigation and surveillance of constitutionally protected political activity. The definitions of “violent radicalization,” “homegrown terrorism,” and “ideologically based violence” provided in S.1959 are so broad that they could be used by the commission to investigate movements and activists in violation of their constitutional rights. This concern is augmented by the ways in which the crime of “domestic terrorism” as defined in the USA PATRIOT Act has been misread and abused by law enforcement agencies thus far. A Justice Department report published in March 2007, for example, found widespread abuse and criticized the FBI for improperly and, in some cases, illegally using the USA PATRIOT Act to secretly obtain personal information about people in the United States.
5. The resulting commission’s membership qualifications suggest that Muslims and Arabs will be unfairly targeted. The bill specifically states a preference that members of the proposed commission have security clearance and expertise in, among other areas, Islam. This indicates that Muslim and Arab communities are likely to be targets of the investigation, yet the security clearance provision for membership will exclude most potential allies from the groups being studied by the commission.
6. S.1959 opens the door to preventive detention. The shameful history of the preventive detention of Japanese Americans during World War II should be reminder enough of the problems these types of policies engender. More recently, in the months after 9/11, law enforcement agencies called in 93,000 foreign nationals who came from predominantly Arab or Muslim countries for fingerprinting, photographing, and special registration, with some being interviewed by the FBI and others placed under preventive detention. The few, mostly minor criminal convictions that have resulted from these broad sweeps do not justify the cost to civil liberties.
7. The bill’s $22 million estimated budget creates unnecessary bureaucracy and wastes public funds. The Department of Homeland Security already has eight centers at academic institutions across the country. The existence of these eight centers raises the question of why an additional center is necessary.
8. Previous commissions, legislation, and surveillance have been grossly abused throughout American history. The Alien and Sedition Acts in the early 1900s, the HUAC investigations in the 1950s, and the illegal FBI counter-intelligence program (COINTELPRO) in the 1960s and 1970s ruined the lives of countless politically-engaged Americans, as the government abused the powers established through these previous commissions and laws. Fomenting fear, scapegoating, or recreating McCarthyism is not going to make America safer.
9. Policies recommended by the commission are likely to be enacted and negatively impact constitutional protections. Other similar commissions, such as the Gilmore Commission, have had the overwhelming majority of their policy suggestions implemented as law. Considering the overwhelming threat to civil liberties that exists in this bill’s definitions and research methods, the policy suggestions which originate from the bill’s commission and “center of excellence” will most likely undermine the constitutional rights of the American people.
The bill, which was overwhelmingly passed by the U.S. House of Representatives with a vote of 404 to 6 on October 23, 2007, is currently before the Senate Homeland Security and Governmental Affairs Committee.
The Senate version is under construction by Senator Susan Collins (R-ME), the ranking Republican on the Senate Homeland Security and Governmental Affairs Committee.
Bill Origin & History
In the House, the bill was sponsored by Representative Jane Harman (D-CA), Chair of the Subcommittee on Intelligence, Information Sharing, and Terrorism Risk Assessment. The bill, which had broad bipartisan support, was co-sponsored by Representative David G. Reichert (R-WA). The bill was introduced on April 19, 2007. According to Harman’s office, terrorist acts such as the Oklahoma City bombing, 9/11, a reported 2005 plot to bomb synagogues in Los Angeles, and the foiled car bomb plot at Los Angeles International airport inspired the legislation.
In its original draft, as introduced in the House in April, the bill would create a grant program to prevent homegrown terrorism through educational initiatives, community outreach, and social services. By the time the next draft was reported to the House, in October, the grant program had been replaced with the national commission described above.
The bill’s co-sponsor, Representative Reichert, stated that the commission would “focus exclusively on homegrown terrorism” and become “a gathering point” for knowledge gleaned from both government agencies and academia. Reichert also said the commission will look at white power groups, new-Nazis and other extremists as well. “We don’t want to focus on any one group or leave anybody out,” he said.
Harman has worked closely with the Rand Corporation, a government-affiliated think tank based near Harman’s district in Southern California, and Rand appears to have influenced the drafting of Harman’s bill. Two weeks prior to the bill’s introduction, Brian Michael Jenkins, a senior advisor at Rand, delivered testimony on “Jihadist Radicalization and Recruitment” to Harman’s congressional subcommittee. In 2005, Rand published a book by Jenkins that included a chapter called “Homegrown Terrorism Threats.” In that chapter, Jenkins posits that “[i]n their international campaign, the jihadists will seek common grounds with leftist, anti-American, and anti-globalization forces, who will in turn see, in radical Islam, comrades against a mutual foe.” He also mentions that the government should pay special attention to environmentalists, anti-globalization activists, and anarchists. Additionally, in his congressional testimony, Jenkins recognized that domestic anti-terror cases have succeeded thanks, in part, to laws being “interpreted broadly” by the courts.
The bill passed in the House almost unanimously (with only six dissenting votes) and with virtually no discussion. Although the subcommittee did hear ample testimony on the issues, there was virtually no debate on the bill itself within the House, and it was rushed through under “Suspension of the Rules.” Suspension of the Rules is generally applied for bills deemed uncontroversial and not needing extra debate.
In August 2007, while the grant program was being edited out of the House bill, the New York Police Department released a report called “Radicalization in the West: The Homegrown Threat,” which argues that the United States faces an immediate threat of homegrown terror. The report describes a four-step process of radicalization that leads people to “participate in jihad.” It refers to the “subtle and non-criminal nature of the behaviors involved in the process of radicalization” and goes on to suggest that the Internet, mosques, social justice organizations, NGOs, bookstores, prisons, student associations, and youth clubs are all potential sites of indoctrination and radicalization. The report casts a broad net, describing potential homegrown terror threats as coming from all walks of life; having “little, if any, criminal history; and appearing “as ‘ordinary’ citizens, who look, act, talk, and walk like everyone around them” in their “enclaves of ethnic, Muslim communities—communities that are dominated by Middle Eastern, North African, and South Asian cultures.”
While it is unclear what, if any, direct impact the NYPD report had on the editing of the bill, it received considerable positive attention from legislators. Senator Joe Lieberman (D-CT), who chairs the Senate committee where the bill currently resides, called the NYPD report a “breakthrough” in homeland security efforts.
CCR's Recommendations to Congress
The Center for Constitutional Rights believes that the Violent Radicalization and Homegrown Terrorism Prevention Act of 2007 should not be passed in any form. The proposed commission and “center for excellence” will not effectively combat terrorism; instead, they continue the trend of post-9/11 legislation and government action that encourage surveillance of constitutionally protected political activity and create a chilling effect on free speech. The Center for Constitutional Rights instead recommends:
* Congress should narrow the definition of terrorism to protect the American public from law enforcement abuse and unlawful targeting, while simultaneously encouraging the most effective use of limited resources. Terrorism is a word that has been exploited by the Executive branch repeatedly since 9/11 to provide rationale for going to war, unlawfully wiretapping U.S. citizens, and indefinitely detaining and torturing non-U.S. citizens in violation of the Constitution and international law. In doing so, the Executive has redirected the American people’s tax dollars away from critical domestic problems – such as healthcare, education, and truly preventing terrorism through safeguarding nuclear material or improving airport screening. In addition, it has encouraged law enforcement agencies to abuse their powers both domestically and internationally, through targeting, torturing and detaining political activists and Muslim and Arab individuals and communities.
The broad definitions of “domestic terrorism” established in the USA PATRIOT Act and “animal enterprise terrorism” established in the Animal Enterprise Terrorism Act (AETA) have not effectively combated terrorism. They have, however, led to widespread abuse by the Executive and law enforcement agencies, which have used these policies as justification to investigate politically motivated activities that do not resemble terrorism in any way.
These definitions have also created a “chilling effect” on free speech. When people fear that their legal activity may be prosecuted as “terrorism” under these laws, they will often cease to engage in protected, legal activity. This often results in silencing minority or unpopular opinions that may be well placed to shed light on the nature of the threats we face. It is not only those people or groups directly silenced by this “chilling effect” that suffer but also America as a whole because of the erosion of basic constitutional rights.
Rather than continue to expand the definition of terrorism as S.1959 would do, the Center for Constitutional Rights recommends that Congress enact policies that protect the American public from abuse by the Executive and law enforcement agencies. The Executive has demonstrated its willingness time and again to exploit and abuse the powers given to it to combat terrorism. Congress should not encourage such abuse. Instead, Congress must prioritize counter-terrorism legislation that carves out a new direction to protect the American people: a direction where constitutionally protected political expression and activity can in no way be mislabeled “terrorism” and, thus, threatened by law enforcement abuse.
* Congress must aggressively promote constitutional rights and international standards in counter-terrorism policy. The Executive has a record of combating terrorism by undermining constitutional rights and international standards. In the name of the “war on terror,” the Executive has actively tortured and abused non-U.S. citizens, has refused non-U.S. citizens the right to challenge their detention in U.S. courts, has unlawfully wiretapped Americans’ phones, and has reinterpreted the Geneva Conventions and international law to the detriment of the American public. These actions have not protected the American people from terrorism. Rather, they have damaged the lives of hundreds of thousands of non-U.S. citizens and have tarnished the United States’ moral reputation in the global arena.
The U.S. Constitution, domestic criminal law, and international law already provide the government with a plethora of effective tools to investigate potential threats and protect its citizens against terrorism. The deficiencies that contributed to the failure to thwart previous acts of homegrown terrorism were not deficiencies in legal authority, but rather in the ways that the existing authority responded to intelligence information. There is no rationale, then, for Congress or the Executive to pursue unconstitutional avenues such as preventive and indefinite detention, torture and abuse, and unlawful surveillance to combat terrorism.
Instead of encouraging the further unnecessary surveillance and investigation of individuals with radical viewpoints as S.1959 does, Congress should prioritize counter-terrorism legislation that points the United States in a new direction: a direction where constitutional rights and international standards are not just acknowledged but are restored, where loopholes for Executive abuse of constitutional rights and international standards are closed, and where avenues for accountability for prior government abuse of these rights are increased. The American people do not need Congress to acquiesce to the Executive’s misuse of its authority and damaging, ineffective counter-terrorism policies. Rather, the American people need Congress to restore habeas corpus, prohibit torture and abuse of detainees, close legally suspect detention centers, and create mechanisms for accountability when laws are violated. These are dangerous and inexcusable results of the Executive’s counter-terrorism policy, and they must be reversed. It is imperative that Congress take action to reverse the Executive’s destruction of the United State’s moral reputation by aggressively promoting constitutional rights and international standards.
* Senator Jon Tester (D-MT) on the Senate committee that will consider the legislation has expressed his concern, writing with regard to S.1959: “Intruding on the lives and freedom of average Americans does not make us any safer.”
* Representative Dennis Kucinich (D-OH) has expressed his concern with the bill.
* Representative Ron Paul (R-TX) lambasted the legislation noting that it was rushed through under suspension of rules and saying, “This legislation will set up a new government bureaucracy to monitor and further study the as-yet undemonstrated pressing problem.”
* The Green Party of Washington State has called the bill “unconstitutional and a direct threat to our freedom.”
Help CCR make sure this bill dies in the Senate Committee and doesn’t become law. If you live in one of the following Senators’ states, please call their offices and let them know how S.1959 could hurt you and our constitutional freedoms. Try and set up a meeting with your Senator to discuss your concerns at length.
Check out "What your Senator needs to know about S.1959" below for a list of talking points to use in your discussion with your Senator.
Joe Lieberman, Chair (CT)
Daniel Akaka (HI)
Thomas Carper (DE)
Mary Landrieu (LA)
Carl Levin (MI)
Claire McCaskill (MO)
Barack Obama (IL)
Mark Pryor (AR)
Jon Tester (MT)
Susan Collins, Ranking Member (ME)
Tom Coburn (OK)
Norm Coleman (MN)
Pete Domenici (NM)
Ted Stevens (AK)
George Voinovich (OH)
John Warner (VA)
* What your Senator needs to know about S.1959