The leaked terrorist watch list contains language that criminalizes dissent

Reblogged from Sinking Ark:

Note: In order to provide some context to my argument I will first be summarizing and referring to many of The Intercepts’ remarks from their report on the US terrorist watch list, which I highly recommend reading. My original commentary will then follow below.

What is the watch list, and what did we learn in this leak?

About a month ago, The Intercept posted the unclassified but nonetheless “secret” government document that outlines that internal procedures to place someone on the terrorist watch list. This is the watch list that is shared across agencies that basically prevents you from ever flying if you end up on it, among other things.

It’s a very revealing, and – I’ve found myself using this word a lot lately – disturbing read. Following the 9/11 attacks the list only contained 16 people, and has since grown to include tends of thousand “known or suspected terrorists.” It is this latter phrase that is particularly worrying, because the watch list guidelines specifically notes that “irrefutable evidence or concrete facts are not necessary” to add someone to this watch list, but rather only a “reasonable suspicion”:

“In determining whether a REASONABLE SUSPICION exists, due weight should be given to the specific reasonable inferences that a NOMINATOR is entitled to draw from the facts in light of his/her experience and not on unfounded suspicions or hunches. Although irrefutable evidence or concrete facts are not necessary, to be reasonable, suspicion should be as clear and as fully developed as circumstances permit.” (From The Intercept)

Needless to say, “REASONABLE SUSPICION” is not succinctly defined anywhere in the document, and remains such a broad, elastic concept that it essentially grants any intelligence agency authority to place someone on the watch list without any “concrete facts.” Additionally, in case this definition isn’t broad enough for you, the document provides loopholes around even this unacceptably low standard, including the “threat-based expedited upgrade” that “gives a single White House official the unilateral authority to elevate entire ‘categories of people’ whose names appear in the larger databases onto the no-fly or selectee lists.'”

The watch list guidelines are obviously a clear subversion of the presumption of innocence until proven guilty that underlies the American justice system. In fact:

In a recent court filing, the government disclosed that there were 468,749 KST nominations in 2013, of which only 4,915 were rejected–a rate of about one percent. The rulebook appears to invert the legal principle of due process, defining nominations as “presumptively valid.” (From The Intercept)

If placed on this list, even as a suspected terrorist with no “concrete facts” found against you, but instead only with one agent’s “reasonable suspicion,” then, since this document is shared with all intelligence agencies, you will be treated like a terrorist by all the other agencies who refer to the list. In other words, there now exists a body of previously secret law (even though the Department of Justice has, humorously, pretended that these documents have not yet been leaked so that they can continue to claim “State Secrets” privileges in order to avoid disclosing them to a judge in an ongoing lawsuit) has the power to label and treat someone as a terrorist even if no evidence has been found whatsoever to support that claim.

Notice also that suspected terrorists are treated much worst than convicted criminals by the US, as they can be locked up for a decade without any criminal charge in US prisons and be tortured.

Further, the U.S. Government Accountability Office published a report indicating that there was no third party oversight agency responsible for measuring the effectiveness of this watch list. And, lastly, a federal judge has previously described the removal process for the watch list (i.e. how an individual can seek to remove his name from the list) as not only “wholly ineffective” but also unconstitutional.

Again, the point to remember here is that individuals placed on this watch list – with or without evidence, with or without an indictment, with or without a conviction – are nonetheless effectively labeled as terrorists and treated as worse than criminals by any intelligence or defense agency they interact with. This another worrying example of the US government claiming to have to eliminate our rights in order to protect them. I’ve said this before in a recent post, but: let that cognitive dissonance sit with you for a minute and reflect upon whether it is an ideology representative of a free society.

So now that you understand how convoluted, ineffective, unconstitutional and un-American the guidelines are for placing individuals on the terrorist watch list, let me return the title of this article and my own additional observation.

How is “terrorism” even defined in this watch list?

It seems to make sense that, in order to classify someone as a “terrorist” (TM), there must be a clear working definition of what encompasses terrorism. Well, let me show you how the watch list defines “terrorism:”

“1.14. While federal law contains numerous definitions of “terrorism”, for watch listing purposes under this Guidance, “TERRORISM and/or TERRORIST ACTIVITIES” combine elements from various federal definitions and are considered to:

1.14.1 involve violent acts or acts dangerous to human life, property, or infrastructure which may be a
violation of U.S. law, or may have been, if those acts were committed in the United States;, and,

1.14.2 appear to be intended – to intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion; or, to affect the conduct of a government by mass destruction, assassination, kidnapping, or hostage-taking.”

Let’s just touch briefly on what, in here, seems to make sense. I would argue that – affecting the conduct of a government by mass destruction assassination, or kidnapping, kinda makes sense for a “terrorist” act (although I will cover in a follow-up post to this one why I think the word “terrorism” has outlived its usefulness in civilized societies).

Notice, for a moment, before I move on to – the bold text, what 1.14.1 says: if you commit violent acts that might damage property, that could be construed as terrorism. This is insane, but, again, a topic I will cover in a follow up post.

How does the watch list’s definition of terrorism in section criminalize dissent?

The problem with “influenc[ing] the policy of a government by intimidation” as a definition for terrorism is 1) intimidation is not defined in the document and 2) in whose mind is the intimidation happening? The problem with 1) is obvious, but the problem with 2) is less apparent but more sinister. Let me show you an example:

I’m going to ask that you perform a thought experiment with me for a second. Imagine that you are a senior official in the U.S. government (remember, nominally, still a democratic one), and you have been publicly supporting some sort of law or action that is strongly disliked by a large majority of people. Imagine that you know that whatever law or action you’ve been supporting is largely unpopular, but you’re still defending it anyways. As a senior official in government, either you think it’s the right thing to do and to hell with everyone else, or you have more important interests to watch after than those of the masses (either your own or specific constituents). Assume you’ve been operating under the assumption that the mass’ opinion ultimately isn’t that important for a while, and then leave your Washington DC office one day to see this:

Those ~250,000 people are gathered there specifically to oppose you and the law or action you’ve been supporting. And they are all gathered there as a show of physical strength because all of the other means they’ve taken to oppose you have failed.

Think that 250,000 angry people demanding that you change how you’re acting is going to be seen as intimidating to you, who have been ignoring their demands for a while? You bet your ass it is. And why exactly were these people there, presenting this intimidating show of unity? To get the Civil Rights Act of 1964 passed.

Or how about this?

Think that those 500,000 people demanding an end to the Vietnam War were not intimidating to politicians who wanted to keep it going? It was at least intimidating enough to launch a National Guard assault at Kent State that resulted in the death of 4 students.

Why use force unless the people wielding that force feel threatened or intimidated? Nixon certainly did (although the video from the protest above is from before Nixon’s presidency, the protests continued through to his term). In fact, he went so far as to call protestors hoodlums and thugs which, you will notice, are both synonyms for criminals. When wielding power, finding a way to legitimize the criminalization of those holding an opposing opinion is the first step towards rationalizing their oppression.

What about hanging a President in Effigy? Is that intimidation? (See 0:40 – 0:50 in video below)

If so, then maybe these women suffrage supporters were attempting to influence public policy by means of intimidation.

Free societies function not because we place our trust in incorruptible people who we assume will do no evil (obviously). No – while the last 3,000 years of human history has shown us a wide range of governance structures, man’s character has essentially remained unchanged (certainly in evolutionary terms – we’re the same animal). What has led us away from a world dominated by monarchs and autocrats to democracies is that those who are entrusted to lead are placed in those offices with restrictions on their power. These are either checks and balances imposed by other branches of the government, or the people. And when those men (or women, but historically usually men) who would let democracy slip to further accumulate personal power decide that the existing checks aren’t sufficient to restrain him, then the system is structured to allow people to accumulate in mass numbers to force him back into line. Hence, the 1st amendment’s guarantee of right to assembly.

In a way, all political structures function by intimidation. For better or for worse, there are types of people who will only respond to these sorts of incentives, and coincidentally (or not) it is these very types of people who often are drawn to politics and positions of power. Democracies are no different, except that they are structured to provide fundamental, mutually assured intimidation amongst different bodies of governing power. The mutual intimidation is supposed to keep people in check and ensure that violence doesn’t erupt in political struggles.

Anyone who thinks that protests are effective only because they are a way to broadcast public opinion is naive. Implicit in any mass gathering is a threat to those in power purportedly representing the crowd: “You’re not doing what we want, and if you don’t change, there’s enough of us here to remove you, whether your like it or not.” That is straight up intimidation – intimidation of the sort that led to President Assad firing on masses of peaceful protests in Syria and sparking a civil war. Why? Because he was being intimidated through protests to change policy (in that case, to step down).

Massive public assembly is one way that the public can effectively intimidate the guy (or girl) in charge in order to influence a change in public policy when he’s failing at his job. Read that last sentence again, and then re-read the definition of “terrorism” outlined in Section of the watch list:

“ to influence the policy of a government by intimidation

To repeat, the problem with the definition for “terrorism” in Section of the watch list guidelines is that it doesn’t clarify what intimidation is, or who needs to feel intimidated for something to classify as terrorism. If you’re President Nixon facing 500,000 protestors across town, feel intimidated, and wield the power of Section’s definition of terrorism, does that mean that those protestors, who are trying to influence government policy by intimidating you, are terrorists? I don’t have an answer to that question, because there’s not sufficient clarification in the document.

By criminalizing the desire to effect government policy through intimidation – which is a fundamental democratic process – the Obama administration has begun to criminalizing dissent. Maybe a reasoned argument could be made that this is a sin of omission rather than commission – the document is lacking a sufficient definition of the word “intimidation” or “coercion.” Perhaps, but the fact is that this document still represents active policy, and since it is part of a growing body of secret law, we are not sure who will be interpreting it. Maybe that interpreter is feeling increasingly threatened by people calling for more civil liberties, or restraint on the surveillance state, since it will force them out of a job, or worse, call for their indictment on violating the constitution. By that definition, anyone who publicly endorses an opinion that could be construed by an unknown federal official as intimidating – even if their opinion is completely unreasonable – is now at risk of being labeled a terrorist.

This is a dangerously slippery slope.


4 thoughts on “The leaked terrorist watch list contains language that criminalizes dissent

  1. Tens of thousands known or suspected terrorist living in the US

    I think not. This must mean our government has a very broad definition of what terrorism is and who a terrorist is. If it were true we had this many terrorist in the USA we would be having attacks all the time. This is a back-door attempt to slowly strangle dissent against the “homeland”. I hate that word homeland, it sounds so Hiterlesque. I hope this list gets leaked soon, someone should put it in the public domain so independent groups and journalist can determine how this list is being used. To hell with state secrets when the state is abusing the Constitution or the law. Bush led us on the path to fascism. It is the people who must fight back such forces through our vote and influence, to regain this lost liberty.

    • Don’t see the prior guy’s post now…

      But, yes, I agree with how you laid it out. I feel like the intercept has leaked some of this list, but selectively (as to not raise their own privacy concerns of people who are on it, but not suspect or related to any “suspected” terrorists whatsoever, and don’t want their info revealed).

      • Yes good point on privacy and potential ramifications of having your name exposed as being on the list. This could cause a lot of problems with a person’s personal life, job, and even potentially be dangerous if vigilantes decided to beat them up or worse. Perhaps at least Congress or a third party should see and study the list to see how it is being used, and if the people on the list should be there.

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