What is a Terrorist?: The Criminalization of American Dissent in the 21st Century

General safety and openness, for much of the American public, feels permanent. For most Americans, there is an illusion that our safety, comfort, and freedoms rest on a foundation so large and protected as to be immune to collapse – at least in our lifetimes. Despite the rise of a kind of fascism, the constant teetering on the brink of economic collapse, the threats to our future by climate change, possibly nuclear weapons, and certainly permanent war, there is a feeling, mainly for those of us with privilege, that the way we live our lives – safely, comfortably, in many ways thoughtlessly – is deeply engrained into reality and will stay that way for the foreseeable future.

The structures that sustain our lifestyles, behavior, and even freedoms, are large and complicated structures. In some ways, they have proven rather durable, albeit often in the ugliest ways and at the expense of many. Maybe those structures will outlast those of us alive today. Maybe they won’t. The financialized economy, the largely privatized military industrial complex, the fossil fuel industry, the domestic security apparatus, the industrial agriculture industry, and more, could very well be our demise as a civilization. There is no reason to be coy about this.

There has been a great deal of speculation – as there should be – about how Trump will handle dissent. Most issues with Trump can only be explained by what the officials he places around himself have to say, since Trump himself has been pathetically unclear on every issue. Rather than the question of what Trump will do when the going gets tough for more and more of us, consider the question of how the culture of the American power- elite and its supporters is poised to handle dissent in a moment of rapid political and social tailspin. There have always been, since the nation’s inception, totalitarian mechanisms in place to handle dissent within the free society. Where do these mechanisms stand now? It is safe to assume, for the sake of this discussion, that climate change, economic insecurity, the dangers created by the military such as terroristic blowback, and internal conflict within the American population, to name a few, will, to some degree, begin to dictate the terms on which ordinary Americans live their lives in the near-future. The population is likely – in both constructive and regressive ways – to lash out at the power elite and at each other.

As of this moment, how is the power-class likely to respond to such blowback to crises?

Much of the language used and action taken after 9/11 handled American dissent ambiguously (at best) and revealed much about how dissenters are viewed by the power-class. It seems likely that nothing about how dissenters were viewed really changed after 9/11 within the security apparatus and the corporate-governmental world, but rather, it was easier to present that view and act upon it given the rattled state of the American public and the visceral reaction to words like “terrorism,” “security,” and “threat” at that time.

It is useful to start the analysis of this subject around the time of 9/11 and move closer to the present.

On February, 12th, 2002, the FBI’s Domestic Terrorism Section Chief of the Counterterrorism Division, James F. Jarboe, testified before the House Resources Subcommittee on Forest and Forest Health, mostly about what are now dubbed “eco-terrorists.” The definition of domestic terrorism was, “the unlawful use, or threatened use, of violence by a group or individual based and operating entirely within the United States (or its territories) without foreign direction, committed against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.” Note that the destruction of property constitutes terrorism in this definition.

With a truly brazen stroke of irony, Jarboe went on to say, “Special interest extremists continue to conduct acts of politically motivated violence to force segments of society, including the general public, to change attitudes about issues considered important to their causes. These groups occupy the extreme fringes of animal rights, pro-life, environmental, anti-nuclear, and other movements” (my emphasis). Though many of the crimes cited in this testimony are indeed criminal acts, 1) the relationship between the activists committing them to their role in the “terrorist groups” cited, like Earth First! and the Animal Liberation Front, is at times unclear, and 2) the enormous leap from property destruction to “terrorism,” given the word’s loaded undertones, especially at the time of the testimony in 2002, is dubiously polemic to say the very least. It feels almost condescending to note to the reader that the “special interests” these groups and activists are opposing fall more cleanly under the definition of “terrorists” than the groups and activists themselves — not that there was ever a time when we could expect such an observation to be noted in an FBI report. The term “eco-terrorist” has increasingly been used to justify the harassing and monitoring of environmental activists in general.

There have been growing concerns about the monitoring of environmentalist groups by counter-terrorist programs and tactics, particularly since 9/11, up to the present day. Furthermore, the surveillance capabilities of the security apparatus are greater now than when Jarboe testified. A Vice report in 2015 on the FBI’s monitoring of environmentalists, mostly during the Keystone XL pipeline protests to the construction of the project’s southern leg in Texas, sheds light on the overlap between corporate and government surveillance of what are deemed potential “terrorist” threats. For example, Will Potter, author of Green is the New Red, points out in that piece, “At first, the assessment investigations were justified based on the specter of causing a loss of human life, that eco-terrorists were somehow going to kill innocent people […] That’s never happened. Then the justification became more and more that the FBI was investigating potential property destruction, and increasingly that doesn’t happen either.” If environmentalists are not threats to human life – even if they are threats to private property (which they are usually not) – then surveilling them can only be interpreted as protecting “threats” against big business, not against the population. It is, therefore, safe to assume that environmentalists are not targeted for their violence, but for their dissent.

In December of 2005, Eric Lichtblau reported in the New York Times that the FBI had conducted “numerous surveillance and intelligence-gathering operations that involved, at least indirectly, groups active in causes as diverse as the environment, animal cruelty and poverty relief, newly disclosed agency records show.” The piece also notes that “One FBI document indicates that agents in Indianapolis planned to conduct surveillance as part of a ‘Vegan Community Project.’ Another document talks of the Catholic Workers group’s ‘semi-communistic ideology.’” These surveillance operations were conducted after John Ashcroft, then Attorney General, lifted certain restrictions on the FBI’s surveillance capabilities and “president Bush had authorized some spying without warrants in fighting terrorism.” The FBI had even included anti-war groups among those being spied on as leads to terrorist threats. Lichtblau’s article points out that investigations into anti-poverty, anti-war, environmental groups, and others “are routinely handled by agents within the counterterrorism division.”

As the Guardian reported in 2013, “Since the 2008 economic crash, security agencies have increasingly spied on political activists, especially environmental groups, on behalf of corporate interests. This activity is linked to the last decade of US defense planning, which has been increasingly concerned by the risk of civil unrest at home triggered by catastrophic events linked to climate change, energy shocks or economic crisis – or all three.” The article cites the authorization of the military to respond on American soil during times of “emergency” or “civil disturbance.” (That article is highly recommended for this topic.)

Like 9/11, the financial crash of 2008 can be seen as a marker in the increase of dissent being labelled terrorism and/or crime, as issues involving the environment, poverty, the military and militarized police, and others, grew worse in the aftermath. There was probably never a time in American history when the domestic population’s attempt to create security through activism was not seen as a threat to the security of centralized power. But certain events, such as 9/11 and the 2008 crash, have given this attitude more legitimacy, both behind the closed doors of the security apparatus and in the public discourse.

In 2012, the Partnership for Civil Justice Fund released a report that, “FBI documents just obtained by the Partnership for Civil Justice Fund (PCJF) pursuant to the PCJF’s Freedom of Information Act demands reveal that from its inception, the FBI treated the Occupy movement as a potential criminal and terrorist threat even though the agency acknowledges in documents that organizers explicitly called for peaceful protest and did ‘not condone the use of violence’ at occupy protests.” (That contradiction also appears in the 2002 FBI testimony cited above). The report, which also notes the influence of corporate America on the intelligence communities, reveals that security forces all over the country treated Occupy as a terrorist threat, often working with counterterrorism organizations to surveil and police the movement.

Similarly, much of the response to Black Lives Matter – from officials and civilians alike – has suggested that Black Lives Matter should be labelled a terrorist group, such as the petition to the White House, which reads: “It is time for the Pentagon to be consistent in its actions – and just as they rightfully declared ISIS a terror group, they must declare Black Lives Matter a terror group – on the grounds of principle, integrity, morality, and safety.” A great deal of evidence on the surveillance of Black Lives Matter shows that they are treated as a terrorist organization. In 2015, The Intercept filed a Freedom of Information Act to the Department of Homeland Security (DHS) and obtained hundreds of documents on the surveillance of Black Lives Matter, revealed in a first rate piece by George Joseph. Among many other observations, the article inquires: “The tracking of domestic protest groups and peaceful gatherings raises questions over whether DHS is chilling the exercise of First Amendment rights, and over whether the department, created in large part to combat terrorism, has allowed its mission to creep beyond the bounds of useful security activities as its annual budget has grown beyond $60 billion.” The piece also notes, again as just one of many alarming observations, that the NYPD’s counterterrorism intelligence organization was monitoring silent vigils taking place in support of Black Lives Matter, and that the silent vigils were being monitored all over the country. There has also been speculation about Black Lives Matter being targeted with drone surveillance.

It is also worth mentioning that the “law and order” rhetoric of the current Republican Party, spoken most crudely by Rudy Giuliani and Trump, has been and will be a method of introducing a language into the public discourse that allows for the further criminalization of groups opposed to mass incarceration and police brutality, Black Lives Matter being first and foremost among them.

Recent developments also show that the movement for boycott, divestment from, and sanctions on Israel has become a target for criminalizing dissent as much or more than any other group. As Max Blumenthal, one of the great writers on the Israeli Occupation of Palestine, has pointed out, a push to “destroy the mounting grassroots BDS campaign to boycott, divest from and sanction Israel” has released warning signals to many activist groups and those concerned with the slow motion genocide of the Palestinians. Led in the congress byCongress, Rep. Ileana Ros-Lehtinen, and figures like Ted Cruz in the Senate, the movement to outlaw BDS has gained an increasing amount of traction. Ros-Lehtinen is quoted in Blumenthal’s piece as having said, “Free speech is being used in our country to denigrate Israel and we need to actively fight against that,” and the piece also cites Ted Cruz, who said to a crowd of tens of thousands of AIPAC supporters, “they [BDS] will be prosecuted to the fullest extent of the law.” Blumenthal writes, “From Washington to Paris to London, Israel lobbyists are extracting ritual denunciations of BDS from its political hand puppets and authoring new laws to forbid its implementation. Repressive legislative efforts are accompanied by legal subterfuge, high-tech sabotage, McCarthy-style online blacklists and carefully orchestrated smear campaigns against anyone who resists.” France and the UK have already introduced legislation outlawing BDS, and AIPAC is increasing pressure on American lawmakers to introduce such legislation. It has long been known that the movement has endured enormous attempts at sabotage and surveillance.

One of the latest stories around the criminalization of dissent came from Washington State Senator Doug Ericksen, who wants protests that he defines as going “too far” labeled acts of “economic terrorism” in new proposed legislation. Mr. Ericksen claims the legislation, which would make certain protests a felony, was in the process of being drafted before the anti-Trump protests sparked by the presidential election in November, but the story around it and many of those targeted by the legislation – including socialist Seattle elected official Kshama Sawant – are clearly related to the “Not My President” activities. The bill is unlikely to pass but serves as a precursor of what is to come, and an example of just how far down the road of criminalizing dissent we have gone.

There are many ways to explain and analyze the last two decades’ criminalization of American dissent, and the examples cited in this piece are admittedly only some examples. Of course, the future is forever uncertain and it is possible that the everyday lives of ordinary Americans will not be controlled or punished by this increasingly ominous trend. It is also possible that – particularly in the very likely event of an enormous crisis of some kind – more and more people will be targeted by more and more laws and punished in more and more heinous and brutal ways. I’ll end by noting that in December of 2011, a law was passed in the National Defense Authorization Act authorizing the indefinite detention of anyone, including American citizens, “who substantially supports or is a member of al-Qaeda, the Taliban or associated forces.” Neither “substantial support” nor “associated forces” have clear definitions, which is worrisome enough, and becomes more worrisome the more groups like Black Lives Matter and environmentalists are equated with — and treated as — terrorists.

Again, it is important to remember that we have been headed in this direction for a long time, and to consider that there have been times in our history when the punishment for dissent was worse. Public crises of the kind that occurred in 2001 and 2008 do not create this attitude; they re-legitimize it. It is also important to consider that the ability of the security apparatus to monitor and punish those who dissent has been on the rise in our more recent history and will become more naked the more public crises we encounter in the near future. Trump will be cruder about this than Obama has been or Clinton would have been, but we should continue to expect it to get worse for the foreseeable future no matter who holds power. There is no way to know for sure how brutal this could get because there is no way to calculate how large and pervasive the next crises will be. But, especially with the Trump team in power and every branch of the government controlled by the far right, the worst case scenario seems more likely than the best case scenario, even if it is impossible to say exactly what those scenarios are.

Matthew Vernon Whalan is a writer currently living in Vermont.