Indefinite Detention of Homegrown Terror Suspects, Citizens inside U.S. Unnecessary and Dangerous Erosion of Civil Liberties


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


Like it or not, the term “Jihadist” has become a commonly used term in today’s political lexicon.  In a Congressional Research Service (“CRS”) report titled “American Jihadist Terrorism: Combating a Complex Threat” and issued on November 15, 2011, the report’s author Jerome P. Bjelopera said the term “homegrown jihadist” describes “terrorist activity or plots perpetrated within the United States or abroad by American citizens, legal permanent residents, or visitors radicalized within the United States.” The analyst for the CRS in organized crime and terrorism said the term “jihadist” describes “radicalized individuals using Islam as an ideological and/or religious justification for their belief in the establishment of global caliphate, or jurisdiction governed by a Muslim civil and religious leader known as a caliph.”


The CRS’s report estimates there have been “53 homegrown violent jihadist plots or attacks in the United States since September 11, 2001.” Between May 2009 and October 2011, there were 32 arrests made in homegrown jihadist terror plots. And of the 53 terror plots since 9/11, only four were successful—and they were carried out by “lone wolves,” three of whom targeted military personnel through the use of firearms. There were three other lone wolf plots but they were unsuccessful as were the remaining plots that involved two or more participants.


The Fall issue of the Southern Poverty Law Center’s Intelligence Report also found that homegrown jihadist terror plots have risen since 9/11 with more than half occurring since May 2009. The Intelligence Report, like Bjelopera’s report, found that “most of those arrested were influenced by English-language jihadist websites that encourage violence in pursuit of a global caliphate ruled by Islamic fundamentalists.” The CRS cited eight terror plots in 2011 alone.


Discovery of most of these plots, and subsequent government efforts to shape their direction, were made pursuant to the Government’s chief strategy in combating homegrown terrorism: Government undercover operatives used “to infiltrate terrorist conspiracies.” The CRS report said that the Justice Department and FBI operate 104 Joint Terrorism Task Forces in this country, with 69 of them having been established since 9/11. These task forces include more than “4,000 federal, state, and local law enforcement officers and agents” who “’investigate acts of terrorism that affect the U.S., its interests, property and citizens, including those employed by the U.S. and military personnel overseas.’” The importance of this effort can be measured by the increase of 125 to 878 “top-secret security clearances” issued to local law enforcement between 2007 and 2009 alone.


With Bill S-1867, also known as the National Defense Authorization Act for Fiscal Year 2012, the U.S. Senate joined in the “combat” against homegrown terrorism. Passed by an overwhelming 93% of senators, Bill S-1867 would allow arrested homegrown terrorists to be indefinitely detained in military facilities like Guantanamo Bay without trial or due process, allowing their interrogation through “enhanced interrogation techniques” recognized by most countries as “torture.” Bill S-1867 effectively overrides the Posse Comitatus Act of 1878 which bars the use of the military in law enforcement efforts against American citizens, unless authorized by Congress.


Civil liberty groups and concerned citizens across the country have expressed deep reservations about the impact Bill S-1867 will have on American citizens. Christopher Anders of the ACLU told the Associated Press that “the bill is an historic threat to American citizens.” A staunch defender of the bill, Sen. Lindsey Graham (R-S.C.) stated that while terrorism suspects should be treated humanely, they “should not be read their Miranda rights [and] should not be given a lawyer.” Sen. Joe Lieberman (I-Conn.) took the harsh treatment of terrorism suspects a step further.


“When a member of Al Qaeda or a similar associated terrorist group, I want … them to be terrified about what’s going to happen to them in American custody,” the former presidential candidate said during a recent debate.


Although Congress with the 2005 Detainee Treatment Act and the 2009 Anti-Torture Act, which specifically outlaws such “enhanced interrogation techniques” as waterboarding and sleep-deprivation, some groups believe these interrogation techniques “will be added to a top-secret list of approved interrogation techniques that could be used on suspects, American or other.” Support for this concern can be seen in comments made many political candidates and current legislators like Sen. Kelly Ayotte (R-N.H.): “We need the authority to hold those individuals in military custody so we aren’t reading them Miranda rights.”


What Sens. Graham, Lieberman, and Ayotte are saying is that there should be congressional-based authority to torture. Anytime you advocate for indefinite military detention without a trial, loss of all civil liberties, no right to writ of habeas corpus, no Miranda warnings, and no right to counsel, you are blessing a system of torture. You’re asking for authority to transformed criminal defendants into military detainees who have, and probably still do, routinely endured systematic torture since 9/11.


The next logical step, of course, is that drug cartel members, bank robbers, and, yes, pedophiles will join the list of those in need of “military detention” because they also pose a national security threat. We suspect that many conservative lawmakers in Congress would even add Occupy Wall Street protestors to the list if they could. It is hard to believe, and even more difficult to accept, that there are a significant number of our leaders who favor a “police state” in which all individual rights and civil liberties are extinguished. This is a subject matter we have addressed on several occasions (here, here, here and here). In a series of articles in 2007, The Economist had this to say about our civil liberties being under threat by the “war against terrorism”:


“ … the past six years have seen a steady erosion of civil liberties even in  countries that regard themselves as liberty’s champions. Arbitrary arrest, indefinite detention without trial, ‘rendition’, suspension of habeas corpus, even torture—who would have thought such things possible?


“Governments argue that desperate times demand such remedies. They face a murderous new enemy who lurks in the shadows, will stop at nothing and seeks chemical, biological and nuclear weapons. This renders the old rules and freedoms out of date. Besides, does not international humanitarian law provide for the suspension of certain liberties ‘in times of a public emergency that threatens the life of the nation’?


“There is great force in this argument. There is, alas, always force in such arguments. This is how governments through the ages have justified grabbing repressive new powers. During the second world war the democracies spied on their own good citizens, imposed censorship and used torture to extract information. America interned its entire Japanese-American population—a decision now seen to have been a cruel mistake.


“There are those who see the fight against al-Qaeda as a war like the second world war or the cold war. But the first analogy is wrong and the moral of the second is not the one intended …


“If the war against terrorism is a war at all, it is like the cold war—one that will last for decades. Although a real threat exists, to let security trump liberty in every case would corrode the civilized world’s sense of what it is and wants to be.


“When liberals put the case for civil liberties, they sometimes claim that obnoxious measures do not help fight against terrorism anyway. The Economist is liberal but disagrees. We accept that letting secret policemen spy on citizens, detain them without trial and use torture to extract information makes it easier to foil terrorist plots. To eschew such tools is to fight terrorism with one hand tied behind your back. But that—with one hand tied behind their back—is precisely how democracies ought to fight terrorism.


“Take torture, arguably the hardest case. A famous thought experiment asks what you would do with a terrorist who knew the location of a ticking nuclear bomb. Logic says you would torture one man to save hundreds of thousands of lives, and so you would. But this is a fictional dilemma. In the real world, policemen are seldom sure whether the many (not one) suspects they want to torture know of any plot, or how many lives might be at stake. All that is certain is that the logic of the ticking bomb leads down a slippery slope where the state is licensed in the name of the greater good to trample on the hard-won rights of any one and therefore all of its citizens.


“Human rights are part of what it means to be civilized. Locking up suspected terrorists—and why not potential murderers, rapists and pedophiles, too?—before they commit crimes would probably make society safer. Dozens of plots may have been foiled and thousands of lives saved as a result of some of the unsavory practices now being employed in the name of fighting terrorism. Dropping such practices in order to preserve freedom may cost many lives. So be it.”


We wholeheartedly agree with The Economist. We strongly suspect that the “war against terrorism”, with such legislation as Bill S-1867, is actually a power grab by political conservatives designed to protect society’s elite while simultaneously repressing the majority, the poor. Our society is now two classes—the rich, one percent elite who control nearly a quarter of the nation’s wealth, and the 99 percent poor who become more economically challenged every year. To truly understand the power of the social elite all one must do is glance at the following three statistics. Between 2007 and 2009 when the nation faced its worst recession and stood on the brink of depression, the New York State Comptroller reports that Wall Street profits increased by 720% while the unemployment rate rose 102% (according to the Federal Bureau of Labor) and American home equity plummeted by 35% (according to the Federal Reserve). And, in  Congress, the legislative body’s top ten richest lawmakers with a combined wealth of $2.8 billion all voted to extend the Bush tax cuts.


Thus, legislation like the Bill S-1867 is not as much about protecting society from terrorism as it is about protecting the “super rich” from the poor. The decline of America’s middle class and the creation of a two-class society was well-documented in America’s Middle Class Crisis: The Sobering Facts. Aaron Task, writing for The Daily Ticker on September 23, 2011, provided the following supporting data:


  • The U.S. ranks #3 among all the advanced economies in the amount of income inequality.
  • In 2007, the top 10% of American earners pulled in 49.7% of total wages, the highest since 1917.
  • The top 5% of Americans by income account for 37% of all consumer outlays, according to Citigroup.
  • The Census Bureau reported the U.S. poverty rate rose to 15.1% in 2010, up from 14.3% in 2009 and its highest level since 1993.


We are not “conspiracy theorists.” We do not believe that a group of the “super rich” met in a Wall Street board room to devise Bill S-1867. But we are realists—legal and social observers with an interest in preserving civil liberties and protecting society with “criminal” not terrorism laws—and we understand the divide between the haves and the have-not is increasing. Social unrest is inevitable as evidenced by the Occupy Wall Street protect and the Tea Party Movement—both of whom adamantly opposed any “bail-out” for the Wall Street elite. Inherent in social unrest is the potential for violence against the existing governmental order as evidenced by the “Arab Spring” uprisings.


At this moment there are some state and federal lawmakers who would designate the Occupy Wall Street protestors as “terrorists” because they have challenged the existing social/financial order. Newt Gingrich, the current front-runner in the Republican presidential nomination process, has called them social bums who should take a bath and get a job—“jobs” that politicians of his ilk, through their Wall Street backers, destroyed with their greed to accumulate more and more wealth at the expense of the working poor. The Occupy Wall Street protest is just the beginning. There will be more social unrest as the divide between the haves and have-nots widens.


Ultimately the Government will resort to military detention without trials, elimination of civil liberties, denial of writ of habeas corpus, no Miranda warnings, no lawyers, and “enhanced interrogation techniques” to repress this social unrest. There is a very fine line between homegrown terrorism and social unrest in a society whose political and economic ideologies are under assault. Beyond the individual injustices Bill S-1867 will inevitably produce, we’re even more concerned about ugly potential applications the law could wreak on our freedom-loving nation.


A bitter election year is looming. The charges and counter-charges will be intense and emotional. We can only hope that President Obama will turn a deaf ear to the politics associated with the “war against terrorism” and veto Bill S-1867.


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization