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Jane Harman's War on the First Amendment

The Politics of Paranoia

by Col. DAN SMITH

Congresswoman Jane Harman has introduced legislation–H.R. 1955: "Violent Radicalization and Homegrown Terrorism"–that is expected to be referred to the House Rules Committee for assignment of floor time for debate by the House. This is a bill that is unneeded, unwise, and unfortunately will pass and be signed into law as it purports to be part of the response to 9/11 and the global war on terror.

At base, Harman’s proposal seems to be a direct attack on First Amendment rights. No where is this more clear than in the third introductory paragraph (the "where as" section) that provides the context for the action desired. Specifically, this legislation aims at the unregulated nature of the Internet:

"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."

Moreover, Harman is telling the American public, citizens and permanent residents, that they are too dumb to recognize hate speech, demonizing rhetoric, and propaganda, and are so morally immature that they are not capable of knowing when to "blow off" terrorists and their messages designed to incite large scale insurrection

One also gets the impression that Harman believes that terrorist criminality has become so wide and the number of people who mentally entertain thoughts of non-compliance with authority so numerous that the country is about to teeter into chaos

But looking at the FBI’s major violent crime trend lines over the past 20 years reveals, if not the opposite situation, at least a wash on violent crime frequency. I’ve chosen three reference points: 1987, before "terrorism" became an issue; 2001 (with September 11th fatalities not included in the murder rate); and 2006.

- In 1987, the U.S. population was 242.3 million; in 2001 285.3 million; and in 2006 299.4 million.

- In 1987, an estimated 1.484 million violent crimes were committed in the U.S.; in 2001, the total was 1.438 million; and in 2006, 1.418 million.

- In 1987, the violent crime rate per 100,000 was 612.5; in 2001 504.5; and in 2006 473.5. The 2006 rate was the000 third lowest in this 20 year comparison. violent crime in the U.S. rose 1.9% between 2005 and 2006, the second consecutive year the rate went up.

About the only statistic that has really gone wild is the number of people sent to jail in the U.S. As of June 30, 2006, U.S. prisons held 776,010 inmates, an increase of 2.5% over the previous June 30, 2005.
I am a bit surprised that more defenders of the constitution have not started a groundswell to ensure the legislation never gets to the floor of the House for discussion. I have already pointed out the First Amendment. There is more. To get to this "more," it’s necessary to reproduce three definitions contained in the bill.

VIOLENT RADICALIZATION- 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.

HOMEGROWN TERRORISM- the use, planned use, or threatened use, of force or violence by a group or individual born, raised, or based and operating primarily within the United States or any possession of the United States to intimidate or coerce the United States government, the civilian population of the United States, or any segment thereof, in furtherance of political or social objectives.

IDEOLOGICALLY BASED VIOLENCE- the use, planned use, or threatened use of force or violence by a group or individual to promote the group or individual’s political, religious, or social beliefs.

The key is in the last definition. The history of democracy is that over time, government encroaches so much into the lives of its people that government itself becomes the problem. Consider that in the 1770s, had the U.S. been a country with a law that criminalized the "threatened use of violence," every one of the Founding Fathers who participated in the Boston Tea Party organized into the Minute Men detachments or refused to accede to the British soldiers foraging on private property would have been guilty of "violent radicalization" and of promoting "ideologically based violence."

What has become an "extremist belief" in some circles within the government is democracy. Look again at the three definitions. Do they not directly challenge one of the most fundamental rights that many in the U.S. trace back to time immemorial: the right of citizens to "keep and bear arms"? Again, a people who have access to firearms inherently pose a "threat" to any government, even one with a standing army at its beck and call. And the more centralized the power of the ruler (e.g., the unitary presidency), the greater the temptation to seize the weapons–and the rights–of its citizens.

In fact, as she was drafting the legislation, Congresswoman Harman must have realized that she was, at best, on a slippery slope and at worst, in quicksand up to her neck and no solid footing play. In the eighth "where as" section, the proposed legislation reads:

"Any measure taken to prevent violent radicalization, homegrown terrorism,
and ideologically based violence and homegrown terrorism in the United States
should not violate the constitutional rights, civil rights and civil liberties of
United States citizens and lawful permanent residents" (emphasis added).

When it comes to safeguarding rights and liberties, I much prefer "will" to "should"–and so ought every member of Congress.

Terrorism is terrorism, whether foreign-inspired or homegrown, and is not acceptable. Congresswomen Harman has not made the case for distinguishing between "homegrown" and "foreign" ideologically-based terror, and there is no logical, moral, or legal reason to divide them; both are violations of morality and of law. But just as important is the point that to try to criminalize "radical thinking" is to deny the opportunity to citizens to re-invigorate democracy so that it does not descend into tyranny.

In this legislation as drafted, the underlying unacknowledged assumption is that "radicalized thought" can lead to only one outcome: an attempt to overthrow government by violence. One need only recall that it is through the airing of opinion that the falsehoods and lies become exposed and defused–which is what makes the British institution of "Speakers’ Corner" in London’s Hyde Park a model for democratic practice the world over. To which can be added Edward R. Murrow’s most succinct observation: "We must not confuse dissent with disloyalty."

Col. DAN SMITH is a military affairs analyst for Foreign Policy In Focus , a retired U.S. Army colonel, and a senior fellow on military affairs at the Friends Committee on National Legislation. Email at dan@fcnl.org.