A Commission that Should Cause Concern by Donald A. Downs - Independent

March 03, 2008

Washington commissions typically elicit little more than a yawn. Their numerous unread reports gather dust on shelves all over the city, from Foggy Bottom to Capitol Hill. So why should we be concerned about legislation, approved by the U.S. House of Representatives in October and now pending in the Senate, to establish a bipartisan “National Commission on the Prevention of Violent Radicalization and Homegrown Terrorism”? Don’t we want to prevent these things?

Yes, we do. But we also want to prevent the government from engaging in ideological witch hunts or violating civil liberties, simply on the basis of what people believe.

Under the First Amendment, people enjoy the right to hold extreme beliefs so long as those beliefs are not used to incite unlawful action, or are not demonstrably connected to illegal or harmful action. Unfortunately, the language in the legislation establishing the new commission could jeopardize this right.

The bill defines “violent radicalization” as “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” is defined as “the use, planned use, or threatened use, of force or violence by a group” in the United States “to intimidate or coerce” the government or civilians to achieve the group’s objectives.

The commission would focus on research and data analysis and would have no explicit law enforcement or subpoena power. The commission’s tasks would include information gathering, coordinating and facilitating research, and analysis of data and information gathered by local, state, national and foreign governments, nongovernment organizations and academic sources. The bill also calls for establishing a university-based “Center of Excellence” for the study of such threats.

The jihadist terrorism we confront is indeed ideologically based, so better understanding the links between ideology and terrorist acts is a legitimate and important government activity. So why should we be concerned that the legislation threatens civil liberties?

First, because the commission’s mandate is not totally clear. While the pending Senate bill (S.1959) would seem to describe the commission’s mission with considerable care, it also seemingly gives the proposed commission a blank check to pursue “other purposes.” What other purposes? This is an invitation to mischief.

The legislation also provides that commission activities “should not violate the constitutional rights, civil rights, or civil liberties” of citizens and lawful permanent residents. This too should raise a cautionary flag: The bill says the commission “should not” violate civil liberties, rather than use a more definitive prohibition—such as “shall not.”

Besides, the bill leaves out important details about the commission and its duties. How will the commission’s findings be used? Will groups that hold extremist beliefs and use scary rhetoric find themselves subject to undue scrutiny and pressure, even if they pose no meaningful threat? Will the commission find itself in the business of “naming names” without proper provisions for due process and basic fairness? S.1959 and its House companion are silent about such matters.

In addition, the bill’s definitions of terrorism and radical violence—like similar definitions in the U.S.A. PATRIOT Act—are broad. They are not limited to al Qaeda-like violence that poses an existential danger to the United States. As presently defined, the commission’s mandate also could include such groups as People for the Ethical Treatment of Animals (PETA), violent anti-abortion coalitions and similar groups. Though such groups pose legitimate law enforcement concerns, they do not constitute a national security threat that justifies extraordinary measures.

The U.S.A. PATRIOT Act already facilitates information sharing between government agencies, and the Constitution permits governmental monitoring of extremist groups, so long as such monitoring does not transgress the First and Fourth Amendments. Courts have made the Fourth Amendment flexible in this area; and though First Amendment standards are strong, courts generally do not consider extensive monitoring a violation of its protections. Meanwhile, academic and government research on terrorism already have mushroomed.

Before the Senate takes up this legislation, the public needs more evidence such a commission is needed, its mission will be limited to meaningful national security threats, and safeguards will be put in place to protect free thought and civil liberties.

Gabriel Roth, Research Fellow at the Independent Institute, has pioneered scholarly work on market-based roads, parking, and transit.

William F. Shughart II is a Senior Fellow at The Independent Institute, Frederick A. P. Barnard Distinguished Professor of Economics, and holder of the Robert M. Hearin Chair of Business Administration at the University of Mississippi. A former economist at the Federal Trade Commission, Professor Shughart received his Ph.D.

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Alexander Tabarrok is Research Director for The Independent Institute, Assistant Editor of The Independent Review, and Associate Professor of Economics at George Mason University.

Donald A. Downs is Professor of Political Science, Law, and Journalism at the University of Wisconsin, Madison, and Research Fellow at The Independent Institute.

Mike Moore is Research Fellow at The Independent Institute, former editor of The Bulletin of the Atomic Scientists, and author of the book, Twilight War: The Folly of U.S. Space Dominance.

John Semmens is a research fellow at the Independent Institute, a research project manager in the Arizona Department of Transportation Research Center, and contributing author to the Independent Institute book, Street Smart: Competition, Entrepreneurship and the Future of Roads, edited by Gabriel Roth.

S. Fred Singer, an atmospheric physicist, is Research Fellow at the Independent Institute, Professor Emeritus of Environmental Sciences at the University of Virginia, and former founding Director of the U.S. Weather Satellite Service. He is author of Hot Talk, Cold Science: Global Warming’s Unfinished Debate (The Independent Institute, 1997).

Dr. James L. Payne is Research Fellow at the Independent Institute and Director of Lytton Research and Analysis and author of numerous books, including A History of Force: Exploring the Worldwide Movement Against Habits of Coercion, Bloodshed, and Mayhem,and he has taught political science at Yale University, Wesleyan University, Johns Hopkins University, and Texas A & M University.

Randal R. Rucker is Research Fellow at the Independent Institute, Professor of Agricultural Economics and Economics at Montana State University, and co-author (with E.C. Pasour, Jr.) of Plowshares & Pork Barrels: The Political Economy of Agriculture.

Charles V. Peña is Senior Fellow at the Independent Institute as well as a senior fellow with the Coalition for a Realistic Foreign Policy, senior fellow with the George Washington University Homeland Security Policy Institute, and an adviser on the Straus Military Reform Project.

William Ratliff is Adjunct Fellow at the Independent Institute, Research Fellow at Stanford University's Hoover Institution, and a frequent writer on Chinese and Cuban foreign policies.

Ivan Eland is Director of the Center on Peace & Liberty at The Independent Institute and Assistant Editor of The Independent Review. Dr. Eland is a graduate of Iowa State University and received an M.B.A. in applied economics and Ph.D. in national security policy from George Washington University. He has been Director of Defense Policy Studies at the Cato Institute, Principal Defense Analyst at the Congressional Budget Office, Evaluator-in-Charge (national security and intelligence) for the U.S. General Accounting Office, and Investigator for the House Foreign Affairs Committee. Full Biography and Recent Publications

Jonathan J. Bean is Research Fellow at the Independent Institute, Professor of History at Southern Illinois University, and editor of the forthcoming book, Race and Liberty: The Classical Liberal Tradition of Civil Rights.

Anthony Gregory is a Research Analyst at The Independent Institute. He earned his bachelor's degree in American history from the University of California at Berkeley and gave the undergraduate history commencement speech in 2003. In addition to his work with the Independent Institute, he regularly writes for numerous news and commentary web sites, including LewRockwell.com, Future of Freedom Foundation, and the Rational Review.
Full Biography and Recent Publications

Dominick T. Armentano is professor emeritus in economics at the University of Hartford (Connecticut) and a research fellow at The Independent Institute in Oakland, Calif. He is author of Antitrust & Monopoly (Independent Institute, 1998).

Alvaro Vargas Llosa is director of The Center on Global Prosperity at The Independent Institute. He is a native of Peru and received his B.S.C. in international history from the London School of Economics. He is widely published and has lectured on world economic and political issues including at the Mont Pelerin Society, Naumann Foundation (Germany), FAES Foundation (Spain), Brazilian Institute of Business Studies, Fundación Libertad (Argentina), CEDICE Foundation (Venezuela), Florida International University, and the Ecuadorian Chamber of Commerce. He is the author of the Independent Institute books The Che Guevara Myth and Liberty for Latin America. Full biography and recent publications.

Pierre Lemieux is an economist and co-director of the Economics and Liberty Research Group at the Université du Québec en Outaouais and a Research Fellow at The Independent Institute in Oakland, California.

Alexander Tabarrok is research director at The Independent Institute, associate professor of economics at George Mason University, editor of the Independent Institute books, Entrepreneurial Economics, The Voluntary City (with D. Beito and P. Gordon), and Changing the Guard: Private Prisons and the Control of Crime.

Robert Higgs is Senior Fellow in Political Economy at The Independent Institute, author of Against Leviathan and Crisis and Leviathan, and editor of the scholarly quarterly journal, The Independent Review. Click here for a bio on Dr. Higgs, the noted economist and historian.

William Marina is Research Fellow at the Independent Institute in Oakland, Calif., and Professor Emeritus of History at Florida Atlantic University.

David T. Beito is a Research Fellow at The Independent Institute, Associate Professor of History at the University of Alabama, and co-editor of the book, The Voluntary City: Choice, Community and Civil Society.

William Marina and David T. Beito belong to "Liberty and Power," a group blog at the History News Network.

For further articles and studies, see the Center on Peace & Liberty and OnPower.org.

Nicolas Heidorn is a public policy intern at The Independent Institute in Oakland, California.

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