Interview with Law Professor Peter Erlinder

REVOLUTION Interview
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On October 23, with very little notice in the media, the U.S. House of Representatives passed a bill called the “Violent Radicalization and Homegrown Terrorism Prevention Act of 2007” (HR 1955). This bill is an amendment to the 2002 Homeland Security Act which authorized the most massive re-organization of the federal government since World War 2 and dramatically increased its repressive powers. The bill is now in the Senate. Revolution recently interviewed Peter Erlinder, law professor at the William Mitchell College of Law in St. Paul, Minnesota and past president of the National Lawyers Guild, about this bill and its implications.

Revolution: You and others have been sounding the alarm about the “Violent Radicalism and Homegrown Terrorism” bill. Tell us what is so dangerous about this bill.

Peter Erlinder: A Congressperson named Harman, who is a conservative Democrat from California, promoted her draft of the bill, and it was taken up by the House leadership as something non-controversial. So the Democrats and the Republicans in Congress passed it 404 to 6 without much discussion and debate. It’s understandable why that would be, because it is called the “Prevention of Violent Radicalism and Homegrown Terrorism” bill, and it does two things. One is that it funds the Department of Homeland Security to carry out sort of academic research into “violent radicalism and homegrown terrorism.” And perhaps that is something that is within the ambit of government.

But the problem is that the way that it defines “violent radicalism and homegrown terrorism” is so broad that it subjects nearly any political activist or group of political activists to investigation by a legislative commission that is also established by the bill. Now the problem with the legislative commission, at least as it’s described in the bill, is that the face of the bill does not make clear what the inherent powers of this legislative commission are. And without that, the real danger in the bill is not apparent to someone who would read it for the first time and who doesn’t remember history.

The bill defines “homegrown terrorist” as anyone who “intimidate(s) or coerce(s) the United States government, the civilian population…or any segment thereof, in furtherance of political or social belief.” This would, or could very well, include Americans who organize mass marches on Washington for the purpose of coercing changes in government policy. It defines “violent radicals” as Americans—and this applies to citizens as well as non-citizens who are in U.S. territory—as those who “promot(e) extremist belief system(s) for the purpose of facilitating ideologically based violence to advance political, religious or social change.” In other words, this applies to Americans who haven’t done anything illegal, but who the commissioners believe have thoughts that might lead to violence. The bill doesn’t target all thoughts or all belief systems that might result in violence, but only those in which force or violence might be used to promote political or religious or social beliefs. And that’s exactly the kind of violence that might result whenever people gather to demonstrate for or against important issues. For example, the World Trade Organization demonstrations in Seattle would fit under this definition.

The commission that is set up is supposed to last for 18 months and have hearings around the country, and then report every six months as to what they’re finding about these “dangerous” people in our midst. What that means is that virtually any politically, socially, or religiously active person or group can be targeted by this commission to find out who is and who is not the “hidden enemy.” The problem is that witnesses who refuse to testify can be held in contempt of Congress, as former members of the Bush Administration, Harriet Miers and others, are finding out now. And if witnesses do testify and say things that the commissioners and the staff think are not true, they can be charged with perjury or lying to a federal official, like Scooter Libby was. In either case, it requires people to talk about their political associations and their beliefs on pain of jail if they don’t comply.

Revolution: You’ve compared these commission hearings to the House Un-American Activities Committee.

Peter Erlinder: The HUAC, yeah. It’s very much the same thing, because when HUAC was set up in 1938, it was originally supposed to investigate who the “dangerous” Americans were at that time. The Ku Klux Klan was mentioned as one, but once HUAC got rolling, it began to call before it people who the House Un-American Activities Committee thought knew something about communists or communism. And for 40 years, HUAC investigated all sorts of groups and individuals, and jailed people like the Hollywood 10 when they refused to talk, blacklisted other people like Arthur Miller, Paul Robeson, Pete Seeger, Richard Wright. And it required people to either inform on those they knew, or face ostracism, which is precisely what this commission has the power to do. George Santayana, the 20th-century American philosopher, said, “Those who can’t remember the past are condemned to repeat it.” It seems like the members of Congress who voted for this thing have forgotten history. Another great American philosopher, Yogi Berra, put it best when he said, “It seems like déjà vu all over again.” And of course, it is.

Revolution: Can you speak more to what the powers of this commission would be?

Peter Erlinder: The powers that are inherent in any legislative investigative body. Which means—and these are inherent in any committee investigations undertaken by Congress—they have the power to subpoena people to come to testify, and if they don’t come to testify they can be jailed for contempt of Congress, which is what is facing Harriet Miers now and the other members of the Bush administration who refuse to appear before Congressional committee. In addition to that, if someone swears to tells the truth and doesn’t, they can be charged with perjury. And even if they aren’t sworn to tell the truth, there’s a statute that has actually been enforced after HUAC was disbanded in 1975 that makes it a crime to lie to a federal official—or to say anything that a federal official thinks is a lie. So the general structure that exists inherently in this commission is the ability to compel attendance and testimony on pain of contempt—and if one does testify, facing prosecution for either perjury or lying to a federal official if the commissioners or their staff think the person is not telling the truth. But in any case, if the commission follows through on the mandate given it by the Congress, it will of necessity have to call people before it people who might have information about Americans who the commissioners think have these “extremist belief systems” or who might be connected with people or organizations that might have folks with “violent thoughts” in their circle. So for example, anyone in a mosque could be called to testify about what they know about everybody else in the mosque—or a church, or a social activist group, or a political group.

Revolution: This bill doesn’t specifically change existing laws or set up new punishment. But could this be a basis for repressive new laws?

Peter Erlinder: What it does is it creates a target for investigation. And the target it creates is so broadly defined that any person on American territory who does more than watch TV and go into the ballot box is subject to being investigated.

Revolution: You mentioned at the beginning the role of the Democrats and in particular Jane Harman, who has been in the news recently because it turns out she knew about the CIA torture tapes back in 2003. Can you talk a little about the role of the Democrats in this?

Peter Erlinder: The reason that the vote was so lopsided, according to a couple of Congresspeople from Minnesota that I’ve talked to, is that this was promoted by the House leadership as something that didn’t require much attention because it wasn’t controversial. And for people who have not studied HUAC, which was disbanded only in 1975, but still that’s 30-odd years ago, for people who aren’t familiar with what HUAC did and the damage it caused, and because the bill itself doesn’t mention the inherent powers of this commission, people who should have been concerned about this allowed it to slide through, apparently. But this is plainly a Democrat-sponsored bill pushed by the House leadership, Nancy Pelosi and Company.

Revolution: How do you see this bill in the context of the overall repressive climate in this country, the laws and actions of Bush like Patriot Act, wiretapping, legitimizing torture, and so forth?

Peter Erlinder: Well, I think a lot of people are familiar with the famous quote from Pastor Niemoller: “First they came for the Communists, and I wasn’t a Communist so I didn’t speak up…” And then they came for the labor organizers, and then they came for the Jews. And then they came for me and there was no one left to speak up. That is a description of a political reality that’s playing itself out, and we can see it happening. And it occurs whenever one group is targeted as being the “enemy.” Inevitably the boundary of that stain begins to blur. And we’ve seen it time and again in our history that once the process gets started, it requires conscious political opposition to turn it back.

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