Coalition Memo to the Senate Committee on Homeland Security and Governmental Affairs Regarding "Homegrown Terrorism"

To: Members of the Senate Committee on Homeland Security and Governmental Affairs

From: American Civil Liberties Union
Bill of Rights Defense Committee
Center for Constitutional Rights
Center for Democracy and Technology
Congress Against Racism and Corruption in Law Enforcement
Defending Dissent Foundation
DownsizeDC.org, Inc.
Equal Justice Alliance
Friends Committee on National Legislation
International Association of Whistleblowers
Liberty Coalition
National Judicial Conduct and Disability Law Project, Inc
OMB Watch
Pain Relief Network
Republican Liberty Coalition
Rutherford Institute
The Multiracial Activist
United for Peace and Justice
U.S. Bill of Rights Foundation

Re:       Homegrown Terrorism

Governmental efforts to deal with the problem of “homegrown terrorism” raise serious civil liberties concerns.  House and Senate committees charged with overseeing these efforts, the House Homeland Security Committee and the Senate Committee on Homeland Security and Governmental Affairs, have conducted a series of hearings on the matter and received some troubling recommendations.  Legislation to address the problem, the Violent Radicalization and Homegrown Terrorism Prevention Act (H.R. 1955) passed the House and companion legislation, S. 1959, is stalled in the Senate. We understand that the Senate Committee plans to issue a report based on the hearings. We encourage the committee to take the following concerns and issues into consideration in writing that report.   

We must be clear; the need to prevent criminal acts of violence is unquestionable. Studying and understanding the origin of terrorism and what provokes violence is an important element of prevention. But one of the greatest challenges to countering such movements is drawing the line between advocacy of ideas, including violence, and taking concrete steps toward carrying out a violent act.  It is also important to distinguish between violence that injures or kills people and minor acts of vandalism that are part of an act of civil disobedience.  Properly viewed, dissent can be an antidote to terrorism, not a precursor to it. 

Defining the Problem

The first challenge policy makers face is to define the problem that is to be addressed.  It is critically important that the articulation of the problem does not cause people merely exercising their First Amendment rights to fear being swept into the net of suspicion.  For example, any definition of the problem must recognize that it is perfectly permissible for Americans to hold and promote a system of beliefs that others might find “extreme,” and for those who hold those beliefs to seek, without violence, political, religious and social change based on those beliefs.  The reference in pending homegrown terrorism legislation to “the process for adopting an extremist belief system” raises concern that advocacy of particular beliefs would become the subject of study, instead of studying the causes of violence that a person engages in, citing such beliefs. 

A second challenge is to determine whether there even is an identifiable process that leads to terrorism.  A statistically and methodologically flawed study by the New York Police Department purports to identify a four-step “radicalization process” that terrorists go through, but even the authors of the study admit limitations to the application of their model, namely:

• that not all individuals who begin the process pass through all the stages;

• that many “stop or abandon this process at different points;” and finally,

• that “individuals do not always follow a perfectly linear progression” through the four steps. 

What is dangerous is that the four steps each involve religious conduct, and the authors fail to note that millions of people may progress through these “stages” and never commit an act of violence. 

The Government should not be in the business of trying to thwart the adoption of belief systems to which some in government object.  And, when assessing whether particular advocacy can be stifled – including objectionable advocacy of violence – it is useful to recall that the Supreme Court set a high bar to governmental prior restraint.  Under the Brandenburg v. Ohio incitement test, speech cannot be curtailed unless it is intended to and has the effect of causing imminent lawless conduct.  Mere abstract advocacy of violence, however objectionable, may not be barred.  

The Danger of Focusing on the Internet

Much of the discourse on homegrown terrorism has singled out Internet communications in a troubling way.  For example, the pending homegrown terrorism legislation notes, "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." The truth of this statement lies in its universality: the simple fact is the Internet has become an essential communications and research tool for everyone.  

Our concern is that this focus on the Internet could be a precursor to proposals to censor and regulate speech on the Internet.  Indeed, some policy makers have advocated shutting down objectionable websites.  The Senate Homeland Security and Government Affairs Committee heard testimony from a Dutch counterterrorism official whose government monitors mosques and works to take “the most radical” websites offline: “Our message is clear: we do not allow them to preach intolerance.”  This is not consistent with American values of free speech or the First Amendment.

Moreover, testimony at the hearings indicates that such an approach not only fails muster under free speech principles, but is unlikely to be effective.  The Senate Homeland Security and Government Affairs Committee also heard testimony indicating that the content of many of the websites that are objectionable is “mirrored” on other websites, and that as a result, shutting down one or two will not make the information disappear.   Lt. Col. Joseph Felter, Ph D., Director of the Combating Terrorism Center at West Point, testified to the Senate Committee that “Attempts to shut down websites have proven as fruitless as a game of whack-a-mole.”  It can even be counter-productive.  Attempts to shut down websites often draw attention to the very content that may be objectionable.

If the Internet is a focus of efforts to stop “homegrown terrorism” it should be because it can be a tremendous tool for dissemination of vast amounts of material that could counter the messages of the terrorists.  The Internet, and the free speech it facilitates, can be an antidote to terrorism.

The Counterproductive Focus on Islam

Much of the discourse about homegrown terrorism in these hearings has focused on Muslims and Islam, even though perpetrators of terrorism in the United States have had many religious and ethnic backgrounds.  Suggestions have been made that Muslims need to be watched because any particular Muslim might at any time become a homegrown terrorist.  The Los Angeles Police Department, for example, launched a program to “map” mosques in the Los Angeles area as part of its efforts to counter homegrown terrorism. 

Focusing the discussion of homegrown terrorism on Muslims may actually increase the potential for violent radicalization in the United States.  Many witnesses before the Committee spoke of the growth of Islamophobia and the polarization of the Muslim community as risk factors that raise the potential for extremist violence.  Unfairly focusing suspicion on a community tends to create the very alienation these witnesses said could lead to homegrown terrorism. 

Moreover, there is not one monolithic Muslim community in the United States, according to Committee witness Farooq Kathwari, who co-chaired the Task Force for Muslim American Civic and Political Engagements.   Muslim Americans emigrated from many different countries across the globe, with many different religious, ethnic and social traditions, while a significant number, particularly African American Muslims, are not immigrants at all.   A focus on Muslims can create an impression that all adherents of Islam are suspect and lead to racial (or religious) profiling. 

Dr. Marc Sageman, who conducted research on terrorists in Europe and the United States, suggested religion may be less of a driving factor than local police actions: “It is important to realize that the terrorists are not – and I emphasize not – Islamic scholars.”

Discriminatory profiling is a counterproductive anti-terrorism strategy.  It shifts the locus inquiry away from indicia of violence to characteristics such as race and religion which are not predictors of terrorism.  Moreover, it can contribute to feelings of alienation that can be preyed upon by those who intend to do harm. 

Learning from History

A look back at U.S. history shows that many major social change movements advocated ideas that were considered radical at the time and used tactics that could fall into an overbroad definition of homegrown terrorism. Any plan of action to address the problem that suggests that “extremist beliefs” will become a subject of suspicion will discourage people from advocating their beliefs and ideas in an open and democratic process.  That result would harm our society, not protect it.  Indeed the civil liberties of U.S. citizens can be respected while protecting national security.  

Unfortunately, recent U.S. history is full of discouraging examples of nonviolent groups being subjected to unwarranted surveillance, even incarceration and deportation based not on any crime, but on political beliefs or ethnic identity:  the Palmer raids, the internment of Japanese Americans in World War II, and the FBI’s counterintelligence program (Cointelpro) of the 1960’s and 1970’s.  The legislative branch has a history of using innuendo and guilt by association to ruin reputations and silence dissent, from the New York legislature’s Lusk Committee (which published a report in 1920 entitled  Revolutionary Radicalism)  to the House Un-American Activities Committee hearings of the 1940’s, 50’s and 60’s.  Most Americans agree that these violations of civil liberties were more harmful than the threat from ‘radical’ groups.

Conclusion

Broad definitions of terrorism and radicalization, coupled with the public's knowledge of surveillance of nonviolent groups by the Justice Department, give cause to concern that Americans' ability to speak freely will be threatened by efforts to address homegrown terrorism.   We believe that efforts to prevent people in the United States from turning to terrorism can only succeed if we protect the free speech, religious and associational rights of those against whom these efforts are directed.  We strongly urge policy makers to tread lightly and carefully in this area, and to make every effort to preserve free speech and association rights.