On the surface it looks harmless enough, except perhaps as a source of potential pork. California's Dana Rohrabacher, one of three Republicans to oppose the bill, told Congressional Quarterly that he saw the creation of the commission as "the [worst] type of posturing. Is spending $20 million so people can talk more and pay for their hotel rooms and expenses really going to solve anything? I don't think so."
On the Democratic side, however, the legislation's three nay votes included Kucinich, who refers to it as the "thought-crimes bill." At campaign stops in New Hampshire, Kucinich cited the bill as yet another sign of government intervention in civil liberties. Earlier in his campaign, he said it "sets the stage for further criminalization of protest."
The bill raises the potential for government encroachments on civil rights in part through the way it defines some basic terms. The text of the bill says that "the term 'violent radicalization' means the process of adopting or promoting an extremist belief system for the purpose of facilitating ideologically based violence to advance political, religious, or social change." It gives no clue as to what would qualify, under this law, as an "extremist belief system," leaving this open to broad interpretation according to the prevailing political winds.
In addition, simply by designating the "process of adopting or promoting" belief systems as a target for government concern or control, the bill moves into dangerous territory. The director of the ACLU's Washington legislative office, Caroline Fredrickson, said in a statement on the bill, "Law enforcement should focus on action, not thought. We need to worry about the people who are committing crimes rather than those who harbor beliefs that the government may consider to be extreme."
The United States already has ample federal and state laws against violence of all kinds, and against conspiracy to commit violence. Participants in the handful of "homegrown terrorist" plots that have hatched since 9/11 are being prosecuted under these existing statutes. Certain kinds of direct incitement to violence are already illegal, as well, but within strict limits.
Robert Peck of the Center for Constitutional Litigation points out that some of the most significant First Amendment battles have been fought over precisely when "speech transgresses the line from mere advocacy, which is protected by the First Amendment, to incitement, which is not." Through the early twentieth century, when "incitement" was defined broadly as speech that had a "tendency" to cause illegal acts, it was used to prosecute nonviolent abolitionists, anarchists, socialists, and draft resisters. Gradually, the Supreme Court narrowed the definition, so that speech is protected unless it will "intentionally produce a high likelihood of real imminent harm."
What the Homegrown Terrorism bill does is bring back into the equation not just violent actions, and not just violent plots, but the words and ideas that may (or may not) inspire or encourage them somewhere down the road. It moves toward designating people as terrorists based not on what they do, but on what they say and what they think.
Other red flags appear in the bill's initial "findings"—among them, the charge that "the Internet has aided in facilitating violent radicalization, ideologically based violence, and the homegrown terrorism process in the United States by providing access to broad and constant streams of terrorist-related propaganda to United States citizens." "If Congress finds the Internet is dangerous, then the ACLU will have to worry about censorship and limitations on First Amendment activities," says the ACLU's Fredrickson. "Why go down that road?"
It's the "road" the bill lays out that worries civil libertarians. "This measure looks benign enough, but we should be concerned about where it will lead," Kamau Franklin of New York's Center for Constitutional Rights said when the bill passed the House. The National Commission it creates will have broad power to conduct investigations; one commentator dubbed it the "Son of HUAC"—the House Un-American Activities Committee—because it is supposed to travel around the country, holding hearings and questioning people under oath about their ideological beliefs. Wherever it may ultimately lead, the bill seems clearly part of a growing push toward expanding domestic intelligence operations—spying that is aimed not at any Al Qaeda members who may have slipped across the border, but at U.S. citizens and legal residents. The great civil libertarian Frank J. Donner, in his book The Age of Surveillance: The Aims and Methods of America's Political Intelligence System, argued that the true goal of domestic intelligence was not to prevent or punish criminal activity, but to protect existing power structures and suppress dissent. Unlike law enforcement, which deals with illegal actions that have already been committed, domestic intelligence is by nature "future-oriented": It is not looking for criminals, but potential criminals, and it does so by relying on "ideology, not behavior, theory not practice." Anyone who thinks the wrong way could at some point act the wrong way—so they have to be watched.
Donner was writing in the late 1970s, following congressional investigations that exposed the abuses of the FBI's COINTELPRO (Counterintelligence Program), which for more than a decade had conducted surveillance and planted informants to spy on and disrupt what J. Edgar Hoover had decided were "enemies of the American way of life"—including civil rights, anti-war, student, and women's liberation groups, as well as the John Birch Society and the Ku Klux Klan. During this period, the bureau tapped phones, opened mail, planted bugs, and burglarized homes and offices. At least 26,000 individuals were at one point catalogued on an FBI list of persons to be rounded up in the event of a "national emergency." In the end, the Bureau conducted more than half a million investigations of so-called subversives and maintained files on well over a million Americans—all of this without a single conviction for a criminal act.