A Department of Homeland Security (DHS) intelligence assessment was published to the Internet this week, warning that opposition to federal government policies could foment a resurgence of “rightwing extremism.” The DHS report is the latest indication that many law enforcement agencies regard advocacy groups as intelligence targets and lawful political dissent as a potential sign of terrorism.
In addition to the recession and the election of Barack Obama, the DHS report identified opposition to illegal immigration, expanded social programs, abortion and gun control as factors galvanizing radicalization. No specific groups are listed; instead, the DHS report broadly characterizes these potential terrorists as either “primarily hate-oriented” or “mainly anti-government.” Some conservatives and libertarians take the report as an indictment of their values. However, this is not a left-versus-right issue, and those blogs framing it that way are missing the point. Rather, the real problem is figuring out how lawful dissent squares with efforts to fight terrorism and the persistent inability of domestic intelligence agencies to adequately draw the distinction.
This is at least the fourth time in three months that government domestic intelligence reports have been leaked to the public. Earlier this month, a report entitled “The 2009 Terrorism Threat Assessment” leaked from the Virginia Fusion Center to the Internet. The Virginia Fusion Center’s report lists a wide variety of groups (of which many are clearly associated with terrorism, but many others have terrorism connections that are speculative or nonexistent) and uniformly recommends that law enforcement investigate the groups and their affiliates. The Virginia report comes on the heels of a report leaked from the North Central Texas Fusion Center in February, and yet another from the Missouri Information Analysis Center in March. The Missouri and Texas reports have already been roundly criticized and retracted. None of these reports indicate a specific threat, just a never-ending array of potential hazards that are “likely to grow in strength.”
(To learn more about leaked fusion center reports and the oversight issues they raise, please see my previous blog post on the subject.)
A Pattern Emerges
The pattern that has emerged from these reports reveals a nationwide tendency to develop profiles of potential terrorists based on political beliefs, and then to encourage investigation of any individual or group fitting that profile. The problem is that, because the vast majority of people who fit the political profile (there are many) are not involved in criminal or terrorist activity, police agencies following such recommendations are likely to end up investigating lawful dissent and First Amendment expression.
These investigations can be quite serious, as recently demonstrated when the Maryland State Police spied on peaceful war and death penalty demonstrators from 2005-2006. In that case, dozens of protestors (including members of Amnesty International) who had no intention of breaking the law were labeled as terrorists in a police intelligence database. Documents obtained by the ACLU show the Maryland State Police covertly infiltrated the groups with undercover agents who collectively logged at least 288 hours of surveillance. Most significantly, the agents’ reports tarring these activists with the terrorist label were shared with a variety of other government agencies, increasing the risk of injury to innocent reputations.
The Virginia Fusion Center’s report seems to encourage similar activity. “The 2009 Terrorism Threat Assessment” associates a great deal of Constitutionally-protected activism with terrorism. In the report, this association is often made when a member of a group is alleged to have voiced support for radical causes, regardless of whether the member is only marginally affiliated with the group or whether the extremist cause is criminal or terrorist in nature. On this basis, as with the leaked reports from Missouri and Texas, the Virginia report considers it “essential” for law enforcement to investigate and report on legitimate lobbying and activism of the entire group.
Safeguards Absent From Reports
The DHS report is a bit more limited, recommending that officers report “suspicious” or “criminal” activity. Still, none of the reports mentioned in this article offers any guidelines or safeguards for distinguishing between actual criminality and lawful dissent or advocacy. In fact, none of the reports even points this out as a potential problem.
Developing safeguards for domestic intelligence that will help investigators and analysts to effectively separate true threats from legitimate political dissent is a crucial task for law enforcement agencies at all levels of government. The issue is particularly timely now because local, state and federal agencies are collecting more data on citizens than ever before, and have started sharing much of that data amongst themselves as a matter of policy. While information sharing might help law enforcement connect the dots that will prevent the next terrorist attack, it will also dramatically amplify the risks that erroneous data will be replicated and that information on innocent activity will be taken out of context and misinterpreted. This would not only have a chilling effect on Americans’ Constitutional rights, but such mistakes also squander the manpower and tax dollars police need to combat real threats.
Lawful dissent is supposed to be a political problem, not a law enforcement issue. Peaceful opposition to government policy should not be considered a terrorist threat. When pro-Islamic groups lobby in favor of Shariah law, or when conservative bloggers voice disagreement with immigration policy, their greatest fear should be that policymakers and the American public will consider and reject their positions, not that their lawful activities will subject them to police surveillance and data mining. The dread of arbitrary terrorist designations will marginalize peaceful contrarians, demoralize our marketplace of ideas, and cheapen our cherished freedoms. Focusing police surveillance powers on actual criminal threats without hindering the civil liberties of legitimate protesters will mean the difference between a domestic intelligence apparatus that enables our pluralistic democracy to thrive and one that could smother its vibrancy.