by Ivan Greenberg
On September 12, 2012, a federal judge issued a permanent injunction against a counterterrorism provision of the National Defense Authorization Act (2012) that would have given the president the authority to indefinitely detain Americans suspected of support for terrorism. Federal district Judge Katherine B. Forrest ruled the "disappearance" of Americans for political reasons violates free speech rights under the First Amendment. Seven individuals, including Chris Hedges, Noam Chomsky, and Daniel Ellsberg, had sued the government claiming the language of the detention provision -- Section 1021 -- was overly broad and vague. It could be used to curtail their political activity.
The question of who is a terrorist and what is terrorist activity goes to the heart of this matter. After September 11, the USA Patriot Act (2001) and other security guidelines permitted the government to misapply the terrorist label to a broad range of legitimate dissent. In a recent example, newly declassified police and intelligence documents have begun to suggest the Occupy Wall Street movement was smeared as terrorist activity in order to legitimate security investigations.
What makes Section 1021 so troubling is that detention without charge could occur against people who “substantially supported” or “directly supported” terrorism. These terms are not defined. It could include financial contributions to controversial groups. Moreover, the support provision also applies to “associational forces” of terrorists, a term which is not defined. This could include attorney and media organizations critical of the government.
Internment plans for political dissidents are not entirely new. During the Cold War, the FBI secretly assembled a list or index of “subversives” to be detained indefinitely in the event of a national emergency. The list was established in 1939 under the Custodial Detention Program and continued under other names (Security Index, Administrative Index) until the late 1970s. During the 1980s, a plan known as Rex 84 also outlined detention policies for American radicals. At its height, the FBI put about 26,000 Americans on the list. Fortunately, these internment plans never were put into practice.
A major difference between those FBI efforts and the current plans is the public nature of the debate now taking place. In the past, the general public was unaware of the FBI's internment policy. But since Congress has taken the lead with legislative action, legal resistance now is possible.
After Judge Forrest's ruling, the Obama Justice Department sought an emergency appeal due to "irreparable harm to national security." The matter will be handled by an federal appeals court, with the prospect the U.S. Supreme Court eventually will rule on the domestic internment of American radicals.
Ivan Greenberg is a former adjunct instructor in the City University of New York college system and is currently an independent scholar. He is also the author of Surveillance in America Critical Analysis of the FBI, 1920 to the Present and The Dangers of Dissent The FBI and Civil Liberties since 1965.