by Peter Erlinder

At the beginning of the last century American philosopher George Santayana famously observed: "Those who can't remember the past are condemned to repeat it."

The U.S. House recently confirmed that Santayana's warning about the danger of repeating the history we don't, can't or won't remember applies not only to ordinary mortals in the last century but to members of Congress in this century, too.

Under media radar, the Democrat-sponsored "Prevention of Violent Radicalism and Homegrown Terrorism" bill (H.R. 1955) passed the House at the end of October by a vote of 404 (including the entire Minnesota delegation) to 6. The bill was tagged as noncontroversial by the House leadership and is pending before the Senate. For those senators and citizens who remember history, the bill should be controversial, indeed.

Promoted as a relatively innocuous public safety measure, the bill directs money to the Department of Homeland Security for research on homegrown terrorist-Americans in our midst. While this may seem to make sense, the way the bill describes the "hidden enemy," and the powers inherent in the 10-member investigative commission it establishes, should raise concerns among Americans who remember history, no matter what their political leanings.

According to the bill, "homegrown terrorists" can be 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," a definition broad enough to include Americans who organize mass marches on Washington to "coerce" changes in government policy.

The bill defines "violent radicals" as Americans 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, Americans who have not yet done anything illegal but who, commissioners believe, have thoughts that might lead to violence.

The bill does not target all thoughts (belief systems) that might result in violence, but only thoughts leading to "... force or violence ... to promote political, religious or social beliefs," which is exactly the kind of violence that might result whenever people gather to demonstrate for or against important issues, such as the Iraq war or abortion.

For at least 18 months this "Homegrown-Terrorism and Extremist Belief Commission" will be required to hold congressional hearings around the country, to uncover Americans with "political, religious or social" concerns who commissioners think might be "extreme" and/or potentially violent, whether any of these Americans has committed a crime or not. Virtually any politically, socially or religiously active person or group could be targeted by the commission to find out who is, and who is not, one of the "hidden enemy" among us.

Witnesses who refuse to testify can expect to be held in "contempt of Congress," as former members of the Bush administration like Harriet Myers have learned recently, and jailed. Witnesses who do testify but say things that commissioners or their staff think are not true can be charged with perjury, or lying to a federal official, as "Scooter" Libby found out. Either way, noncooperative witnesses can face up to a 10-year sentence.

Members of suspect political, religious and social groups, or Americans who might even know people the commission suspects - which certainly will include nonmainstream political parties, certain public advocacy groups, some churches and many mosques - can expect the "commissioners" will want to know ... "are you now, or have you ever been ... associated with extremists, violent radicals or homegrown terrorists?"

For those who do remember history, this should sound uncomfortably familiar. These are the kinds of questions Americans were compelled to answer when testifying before another "legislative commission" during the anti-communist McCarthy-era witch-hunts.

In 1938, the House set up the House Un-American Activities Committee (HUAC) to find the dangerous Americans among us, which provided the model for Sen. Joe McCarthy's ideological purges based on accusation and innuendo. But HUAC lasted long after McCarthy passed from the scene, and it was busily investigating anti-Vietnam War and civil rights activists when it was disbanded as part of post-Watergate reforms in 1975.

During its 40-year life, HUAC was used by Richard Nixon to catapult himself into national prominence in the Alger Hiss case. Noncooperative HUAC witnesses like the "Hollywood 10" were jailed for contempt of Congress. Others were blacklisted from employment, including Arthur Miller, Paul Robeson, Lillian Hellman, Dashiell Hammett, Clifford Odets, Pete Seeger, Richard Wright and many others.

In Minnesota, the brother of J. Robert Oppenheimer (the "father" of the atomic bomb) lost his faculty job at the U for failing to "come clean" before HUAC.

HUAC-inspired "terror," that one's ideas or political associations would come under HUAC scrutiny, swept the country. And, once targeted, witnesses knew there was no escape except to accuse one's friends and colleagues, and many did. The careers of thousands of Americans were ruined.

Is it possible that the members of Congress have forgotten or don't know their own history?

If this "Son of HUAC" becomes law, any political, religious or social activist is fair game for HUAC-like congressional hearings. And, we can expect that any person or group preparing to do anything other than watch TV during the upcoming Republican Convention in St. Paul will be hearing from the commission ... and will have to be prepared to answer the famous question ... "are you now, or have you ever been...?" And also be prepared to face jail for refusing to answer, or for getting the answer "wrong."

Which brings to mind the trenchant observations of yet another famous American philosopher of the last century, the great and wise Yogi Berra, who once said,

"It seems like déjà vu all over again ...."

And, so it does.

Peter Erlinder, past president of the National Lawyers Guild [1], is a professor of constitutional criminal law at William Mitchell College of Law in St. Paul. His e-mail address is peter.erlinder@wmitchell.edu [2].
© 2007 Pioneer Press