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Civil Liberties and Terrorism

As a journalist who has spent some time reporting on — and in the process, studying — domestic terrorism, I’ve been long dismayed by the Bush administration’s political-marketing approach to terrorism, emphasizing the threat of foreign terrorists in the wake of 9/11 while displaying a distinct blindness to the ongoing threat from the domestic side.

So when I first heard about Rep. Jane Harman’s "Violent Radicalization and Homegrown Terrorism Prevention Act of 2007" — which looseheadprop has already discussed a bit — I was intrigued. After all, a cursory glance indicated that it represented a reprioritization of our anti-terrorism policies to a more comprehensive strategy, one that’s been lacking since George W. Bush’s presidential tenure began.

But a closer look at the bill — particularly the context in which it’s arising, the elements pushing it forward, and the significant incursion on civil liberties for which it potentially opens the floodgates — makes clear that, instead of offering effective tools to defeat terrorists, it’s likely if anything to make matters worse. Certainly, it’s nothing that serious progressives should support; the sooner it is shot down, the better.

I first heard about it a few weeks ago when I received an e-mail from Lindsay Beyerstein of Majikthise, who was in the process of writing a story about it, inquiring if I’d heard of the legislation. At the time, I hadn’t; and my initial response, based on a cursory examination, was that it looked, at least on the surface, like a potentially effective measure that would reorient our priorities on fighting terrorism.

Still, there were nagging issues, not the least of which was that the "national commission" that it would create would be exempt under the Federal Advisory Commission Act, which is designed to ensure transparency and openness to the public for its activities. Indeed, the more I looked, the more it became apparent the entity it would create would have little if any public accountability at all — and would actually resemble some of the witch-hunt commissions that have haunted past episodes of American history.

But in-depth policy analysis is not my bailiwick, so I consulted people in the civil-rights business what their opinions were, and what I heard back was more than enough to raise real doubts in my mind about the legislation.

Lindsay’s In These Times piece directly touched on these issues. Notably, she obtained assessments from people who are invovled in both researching and organizing against domestic terrorists, particularly the far-right variety, many of whom I consider research colleagues. And the response was uniformly negative.

Mike German:

“A chief problem is radical forms of Islam, but we’re not only studying radical Islam,” Harman says. “We’re studying the phenomenon of people with radical beliefs who turn into people who would use violence.”

That worries Mike German, policy counsel for the ACLU, who calls the legislation “wrongheaded” because it focuses on ideology, rather than criminal activity. The bill calls for heightened scrutiny of people who believe, or might come to believe, in a violent ideology. German wants the government to focus on people who are actually committing crimes, rather than those who are merely entertaining violent ideas, something perfectly legal.

Chip Berlet:

“The bill replicates what already exists without peer review and safeguards,” says Chip Berlet, a senior policy analyst for Political Research Associates, an independent non-profit research organization that studies political violence, authoritarianism, and homegrown terrorism.

Devin Burghart:

The broad wording of the bill leaves open many questions. If homegrown terrorism is defined to include “intimidation” of the United States government or any segment of its population—could the Commission or the Center of Excellence task itself with investigating groups advocating boycotts, general strikes, or other forms of non-violent “intimidation”?

“While we wholeheartedly support efforts to curtail terrorism, primarily coming from white supremacists, we would also like to see legislation that more vigorously defends civil rights,” says Devin Burghart, an expert on domestic terrorism at the Center for New Communities, a national civil and human rights organization based in Chicago.

Let’s be clear: The problems that America faces regarding domestic terrorism have little if anything to do with the lack of tools for dealing with it. The tools exist already. The problems we have with domestic terrorism are all about the failure to use, or the misuse, of the tools we do have. The lack of adequate funding and staffing to deal with the issue reflects the larger skewing of national priorities by our governmental leaders — and that remains the problem.

As Beyerstein observes:

The FBI already has a domestic terrorism unit. The U.S. intelligence community also monitors the homegrown terrorists and overseas networks that might be reaching out to US residents. The July 2007 National Intelligence Estimate included a section headed, “The Terrorist Threat to the U.S. Homeland.” But Harman argues that a national commission on homegrown terrorism could benefit the country in much the same way as the 9/11 Commission, the Silberman/Robb Commission or other high-profile national security inquiries.

Whatever the merits of a commission, they seem to be separate from the arguments for a center for excellence. After all, Congress can request testimony from the experts of its choice. There are other ways to fund research into domestic terrorism, including research grants awarded by peer review. One of the amendments to the bill emphasized the importance of international cooperation between U.S. authorities and experts in countries that have already contended with homegrown Islamic terrorist plots, but there is nothing stopping Congress from consulting with those experts now.

Berlet questions why the country needs the Secretary of Homeland Security to channel resources through a handpicked “center of excellence” when there are already so many scholars organizations studying political violence in America. He cited the Southern Poverty Law Center, the Anti-Defamation League, and the Simon Wiesenthal Center as long-established, institutional sources of expertise on homegrown terrorism. Their efforts are complimented by independent scholars and writers across the country.

“Congress could just read their books,” he says.

German, who I first encountered when he was an undercover FBI agent, has a substantial track record of blowing the whistle on the FBI’s misbegotten handling of domestic terrorism under Bush. And as he points out, we quickly lost sight of the reality that terrorism is an asymmetrical threat, in spite of the fact that right on the heels of 9/11, the nation was gripped by the very real threat of an anthrax attack — which in the weeks, months and years since has been clearly shown to be an act of domestic terrorism. That incident made all too clear that these terrorists are prone to "piggybacking" off other domestic terrorists in hopes of creating a cresting tide of terror.

It became publicly obvious, though, that the administration’s antiterrorism strategy was nigh-useless with the FBI’s insistence that the most dangerous domestic-terrorist threat to Americans is actually the Earth Liberation Front. As I noted at the time:

This is a crystalline example of the gross skewing of priorities for both law enforcement and intelligence in dealing with terrorism that has been a hallmark of the Bush regime.

While eco-terrorists are a serious problem, and deserve certainly serious prosecution under the law, the level of threat they represent is proportionally so much less than that from the far-right "Patriot" movement and white supremacists as to raise serious questions about the priorities of both the FBI and the Justice Department. Certainly it is worth observing, as does It’s a Crock, that "eco-terrorist" Jeff Luers — who torched three SUVs and took care to do so when it was unlikely anyone would be harmed — is serving a 22-year prison sentence, while William Krar — who built a cyanide bomb designed to kill perhaps a hundred people or more — is facing a mere 15 years. When left-wing terrorists begin actually killing and maiming people and blowing up federal buildings with day cares inside them, or even plotting to do so, perhaps then they will deserve the kind of focus being accorded them under the Bush and Ashcroft style of governance.

Moreover, lest anyone think that the American far right is incapable of serious damage and not really in al Qaeda’s class, it’s probably useful to recall that before Sept. 11, the most lethal terrorist attack on American soil was committed by American right-wing extremists, with a toll similar to Spain’s recent losses.

And contrary to those who argue that an emphasis on law enforcement is inadequate, the reality is that a one-two punch of intelligence and law enforcement is extraordinarily effective in stopping terrorism, at least domestically. One of the points that emerged from my in-depth work for MSNBC on domestic terrorism was that of the 40-plus cases of serious domestic terrorism we identified as arising in the 1995-2000 period, the vast majority had in fact been nipped in the bud by law enforcement before the would-be terrorists could act, largely through effective intelligence-gathering and aggressive arrests and prosecution. There is no reason this same approach would not be effective on a global scale — unless, of course, one were allergic to cooperating with the very concept of international law enforcement.

Not only is the Bush administration allergic to international law enforcement, the officials in charge of its subsequent "war on terror" seem to break out in hives at the very concept of Americans’ civil liberties, since the majority of initiatives it’s undertaken since — data mining, wiretapping, and placing "enemy combatants" not under the purview of normal law enforcement but new "military tribunals" — have been all about destroying constitutional and legislative protections of those rights.

It’s a profoundly counter-productive approach, because defeating terrorism — really defeating it, which ultimately means preventing it — requires not the brute and violent excision of terrorists but the removal of the conditions (typically unaddressed grievances) that inspires people to such lengths in the first place. And the American system of government, predicated on a Constitution dedicated to the political empowerment of ordinary citizens, is in the end one of the most powerful tools for defusing this threat.

As German, in his excellent book Thinking Like a Terrorist: Insights of a Former FBI Undercover Agent, puts it:

Luckily enough, the United States has the most practical counter-terrorism strategy ever written, and its record of effectiveness has lasted over 200 years. All we have to do now is take it off the shelf where it has been languishing since 9/11 and implement it. The counterterrorism strategy I’m referring to is called the Constitution of the United States.

The Constitution is a workable counterterrorism strategy because its authors were themselves terrorists — or freedom fighters, if you prefer — fresh from a successful asymmetrical war of attrition waged against the superpower of their day. The colonists knew what compelled them to fight and what enabled them to succeed. When they sat down to create their new government, they wanted to inoculate it against the abuses of power that drove their just rebellion. …

German cites the values expressed by Jefferson in his inaugural address:

Equal and exact justice to all men, of whatever state or persuasion, religious or political; peace, commerce, and honest friendship with all nations, entangling alliances with none; the support of the State governments in all their rights, as the most competent administrations for our domestic concerns and the surest bulwarks against antirepublican tendencies; the preservation of the General Government in its whole constitutional vigor, as the sheet anchor of our peace at home and safety abroad; a jealous care of the right of election by the people — a mild and safe corrective of abuses which are lopped by the sword of revolution where peaceable remedies are unprovided; absolute acquiescence in the decisions of the majority, the vital principle of republics, from which is no appeal but to force, the vital principle and immediate parent of despotism; a well disciplined militia, our best reliance in peace and for the first moments of war, till regulars may relieve them; the supremacy of the civil over the military authority; economy in the public expense, that labor may be lightly burthened; the honest payment of our debts and sacred preservation of the public faith; encouragement of agriculture, and of commerce as its handmaid; the diffusion of information and arraignment of all abuses at the bar of the public reason; freedom of religion; freedom of the press, and freedom of person under the protection of the habeas corpus, and trial by juries impartially selected.

As German says:

A nation guided by these principles could not produce a legitimately motivated terrorist group, especially the Thirteenth, Fourteenth, Fifteenth and Nineteenth Amendments guaranteed these rights to all men and women. And while extremist terrorist groups can rise from time to time to threaten the peace, the efficient enforcement of the law through the strict observance of constitutional rights ensures these groups will not grow into a movement that can threaten national security.

Unfortunately, the decision makers who set U.S. counterterrorism policies somehow got the idea the Constitution was an impediment to counterterrorism operations rather than an effective strategy to fight terrorism. They said the Bill of Rights unnecessarily handcuffed our law enforcement and intelligence agencies, and they could only effectively counter terrorism if they were freed from constitutional restraints. Further, the al Qaeda threat was so new and so grave it was beyond the capacity of traditional legal solutions. They even rendered the Geneva Conventions "quaint" in this new type of war. They told the American people and their allies we needed to go on the "dark side" if we wanted to fight this threat and win. Even worse, since the Global War on Terrorism began they have led us to believe our own rights threaten our survival. They have lured us into the false belief that we can only ensure our security by sacrificing our civil liberties.

These reactions are not unusual in times of crisis, as we’ve seen, nor is the United States alone in making the mistake of believing security can be maintained only by restraining liberty. It seems every generation faces threats it then uses to justify extraordinary actions. …

Over 200 years later the Constitution still protects us, and ours is still the strongest government on earth. Liberty is now a weakness, it is our strength. …

As we learned from reading the various terrorists’ strategies, they use tactics specifically designed to provoke an inefficient response. Terrorists want the victimized government to blame an entire community for the acts of a few and punish the innocent as well as the guilty. An effective counterterrorism strategy, then, requires efficiency, both in using allocated resources wisely and in focusing the counterterrorism strategy squarely on the terrorists. The Constitution is the perfect counterterrorism strategy because it is designed to compel efficiency in the way government power is exercised.

People involved in the work of monitoring domestic terrorists, hate groups, and other far-right extremists are motivated primarily by concern for the fundamental civil rights of our fellow citizens. After all, what these groups are about primarily is the extra-governmental denial of the civil rights of minorities and other target groups.

We’ll never defeat them by taking away their civil rights. What will work, in fact, is emphasizing our liberties and ensuring that they are protected from abuse both by the government and by their fellow citizens.

In that respect, passing a federal bias-crimes law will do more to protect Americans from acts of terrorism than creating an unaccountable national commission ever will, since it would seriously enhance the law-enforcement tools we already have. Jane Harman and the rest of the Democratic leadership recently had their chance to do something about that — and, well, we all know how that turned out, don’t we?

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David Neiwert

David Neiwert

David Neiwert is the managing editor of Firedoglake. He's a freelance journalist based in Seattle and the author/editor of the blog Orcinus. He also is the author of Strawberry Days: How Internment Destroyed a Japanese American Community (Palgrave/St. Martin's Press, June 2005), as well as Death on the Fourth of July: The Story of a Killing, a Trial, and Hate Crime in America (Palgrave/St. Martin's, 2004), and In God's Country: The Patriot Movement and the Pacific Northwest (1999, WSU Press). His reportage for MSNBC.com on domestic terrorism won the National Press Club Award for Distinguished Online Journalism in 2000.

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