[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
INTERNET TERROR RECRUITMENT AND TRADECRAFT: HOW CAN WE ADDRESS AN
EVOLVING TOOL WHILE PROTECTING FREE SPEECH?
=======================================================================
HEARING
before the
SUBCOMMITTEE ON INTELLIGENCE,
INFORMATION SHARING, AND
TERRORISM RISK ASSESSMENT
of the
COMMITTEE ON HOMELAND SECURITY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
MAY 26, 2010
__________
Serial No. 111-67
__________
Printed for the use of the Committee on Homeland Security
[GRAPHIC] [TIFF OMITTED] TONGRESS.#13
Available via the World Wide Web: http://www.gpo.gov/fdsys/
__________
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63-091 WASHINGTON : 2010
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COMMITTEE ON HOMELAND SECURITY
Bennie G. Thompson, Mississippi, Chairman
Loretta Sanchez, California Peter T. King, New York
Jane Harman, California Lamar Smith, Texas
Peter A. DeFazio, Oregon Daniel E. Lungren, California
Eleanor Holmes Norton, District of Mike Rogers, Alabama
Columbia Michael T. McCaul, Texas
Zoe Lofgren, California Charles W. Dent, Pennsylvania
Sheila Jackson Lee, Texas Gus M. Bilirakis, Florida
Henry Cuellar, Texas Paul C. Broun, Georgia
Christopher P. Carney, Pennsylvania Candice S. Miller, Michigan
Yvette D. Clarke, New York Pete Olson, Texas
Laura Richardson, California Anh ``Joseph'' Cao, Louisiana
Ann Kirkpatrick, Arizona Steve Austria, Ohio
Bill Pascrell, Jr., New Jersey Vacancy
Emanuel Cleaver, Missouri
Al Green, Texas
James A. Himes, Connecticut
Mary Jo Kilroy, Ohio
Dina Titus, Nevada
William L. Owens, New York
Vacancy
Vacancy
I. Lanier Avant, Staff Director
Rosaline Cohen, Chief Counsel
Michael Twinchek, Chief Clerk
Robert O'Connor, Minority Staff Director
------
SUBCOMMITTEE ON INTELLIGENCE, INFORMATION SHARING, AND TERRORISM RISK
ASSESSMENT
Jane Harman, California, Chair
Christopher P. Carney, Pennsylvania Michael T. McCaul, Texas
Yvette D. Clarke, New York Charles W. Dent, Pennsylvania
Laura Richardson, California Paul C. Broun, Georgia
Ann Kirkpatrick, Arizona Peter T. King, New York (Ex
Al Green, Texas Officio)
James A. Himes, Connecticut Vacancy
Bennie G. Thompson, Mississippi (Ex
Officio)
Michael Blinde, Staff Director
Natalie Nixon, Deputy Chief Clerk
Meghann Peterlin, Minority Subcommittee Lead
C O N T E N T S
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Page
Statements
The Honorable Jane Harman, a Representative in Congress From the
State of California, and Chair, Subcommittee on Intelligence,
Information Sharing, and Terrorism Risk Assessment............. 1
The Honorable Michael T. McCaul, a Representative in Congress
From the State of Texas, and Ranking Member, Subcommittee on
Intelligence, Information Sharing, and Terrorism Risk
Assessment..................................................... 3
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Chairman, Committee on
Homeland Security.............................................. 4
Witnesses
Mr. Bruce Hoffman, Professor, Edmund A. Walsh School of Foreign
Service, Georgetown University:
Oral Statement................................................. 6
Joint Prepared Statement....................................... 9
Mr. Brian Michael Jenkins, Senior Adviser, The Rand Corporation:
Oral Statement................................................. 14
Joint Prepared Statement....................................... 16
Mr. Anthony D. Romero, Executive Director, American Civil
Liberties Union:
Oral Statement................................................. 19
Joint Prepared Statement....................................... 21
Mr. John B. Morris, Jr., General Counsel, Center for Democracy
and Technology:
Oral Statement................................................. 28
Joint Prepared Statement....................................... 30
Mr. John Philip Mudd, Senior Research Fellow, Counterterrorism
Strategy Initiative, New America Foundation:
Oral Statement................................................. 36
Joint Prepared Statement....................................... 38
INTERNET TERROR RECRUITMENT AND TRADECRAFT: HOW CAN WE ADDRESS AN
EVOLVING TOOL WHILE PROTECTING FREE SPEECH?
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Wednesday, May 26, 2010
U.S. House of Representatives,
Committee on Homeland Security,
Subcommittee on Intelligence, Information Sharing, and
Terrorism Risk Assessment,
Washington, DC.
The subcommittee met, pursuant to call, at 10:04 a.m., in
Room 311, Cannon House Office Building, Hon. Jane Harman [Chair
of the subcommittee] presiding.
Present: Representatives Harman, Carney, Green, Himes,
Thompson (ex officio), McCaul, and Dent.
Ms. Harman. The subcommittee will come to order. The
subcommittee is meeting today to receive testimony on the
question of ``Internet Terror Recruitment and Tradecraft: How
Can We Address an Evolving Tool While Protecting Free Speech?''
Let me say that again, ``How Can We Address an Evolving Tool
While Protecting Free Speech?''
I would like to welcome our witnesses.
Recent terror attacks and plots have taught us that the
lonely, vulnerable, or disaffected are just a few mouse clicks
away from terrorist recruiters. The anonymity of the internet
and the sheer speed of communications across it make it an easy
tool for recruiting and for streamlining terror group training
and operations.
According to the FBI, the Christmas day bomber, Umar Farouk
Abdulmuttalab, was recruited on the internet and trained in
just 6 weeks.
A Philadelphia woman, Colleen LaRose, who assumed the name
Jihad Jane on-line, apparently used YouTube and other websites
to post communications about staging attacks in the United
States, Europe, and South Asia.
The Fort Hood shooter, Major Malik Hasan, used e-mail to
recontact an American cleric in Yemen, Anwar al-Awlaki, who
just last weekend posted another internet video calling for the
death of more civilians modeled after Hasan's point-blank
assault of deploying service members in the medical units in
Fort Hood. To remind us, Hasan killed 13 and wounded 31.
Hasan's family attended the Dar al-Hijrah Islamic Center in
Falls Church, Virginia, where al-Awlaki was preaching in 2001.
Around the same time, two 9/11 hijackers worshipped at the
mosque.
Najibullah Zazi, who was arrested last year when his plot
to bomb the New York subway was uncovered, searched beauty
salon and home improvement store websites on multiple occasions
for chemicals to make a bomb. He also researched bomb-making
instructions from internet sites.
Adam Gadahn, an American citizen from California, now
serves as al-Qaeda's English language spokesman under the
pseudonym Azzam al-Amriki. He has produced propaganda videos
that are circulated over the internet which encourage Muslims
join the global extremist movement and take part ``in slitting
the throats of the infidel.''
The dilemma is that the internet is a forum for free speech
and global commerce. But the underside is that it can also be a
forum for violence and global terror. How to respect individual
freedom and access and yet find those who abuse the internet
and stop them before they act is a huge and difficult
challenge.
Let me be clear, and many have heard me say this over and
over and over again, liberty and security are not a zero sum
game. We don't get more of one and less of the other. We get
more of both or less. In fact, we must get more of both.
Security without the liberties that our Constitution protects
and Americans treasure is not security.
Our subcommittee has been wrestling with this problem for a
while, and as many know, this is our third hearing on the
threat posed to the U.S. homeland by violent extremism.
The purpose of today's hearing is to analyze the use of the
internet as a facilitator for recruitment training and
development of terror plots. The problem is the internet
combines speed and anonymity in a way that complicates law
enforcement and intelligence work exponentially.
I am very glad that Anthony Romero, the able Executive
Director of the ACLU and well-known commentator on this issue,
is here at my personal invitation to testify about how to guard
the privacy and civil liberties of individuals who use the
internet for the right reasons. I consult with Anthony
regularly, and I thank him for being here.
But I also thank our other witnesses, also friends and
colleagues, who have thought deeply and written extensively on
these topics. Dr. Bruce Hoffman, a professor at Georgetown
University, will discuss the evolving nature of the terror
network tactics on the internet. Your testimony is excellent,
Bruce.
Brian Jenkins, from California, a senior adviser at the
RAND Corporation, will discuss his latest report, ``Incidents
of Jihadist Terrorist Radicalization in the U.S. Since 9/11.''
Phil Mudd, who retired from the FBI this year as Associate
Executive Director of the National Security Branch, will
discuss U.S. efforts to conduct surveillance of internet
communications and how the FBI currently intervenes.
We will also hear from John Morris, General Counsel for the
Center for Democracy and Technology.
Welcome to you all.
As difficult and controversial as this subject is, we need
to find the right way and place to intercept those who would do
us harm. Developing a strategy around the internet is not
optional. It has to be part of the equation.
I now yield 5 minutes to the Ranking Member for an opening
statement.
Mr. McCaul. Thank you, Madam Chair. Thank you for having
this very timely and important hearing. I want to thank the
witnesses on our distinguished panel. You are among the top
experts in the country on this issue. Thank you for being here.
The threat of terror seen on the internet to recruit others
and spread their ideology is very real. While I know there is
debate about what we can do about it, I don't think anyone here
could dispute the fact that terrorists are successfully using
the internet to help spread their message.
The internet allows extremists the freedom to meet, work
together, research and plan attacks, and inspire others to
attack, without ever leaving their home. According to some
estimates, over 5,000 jihadists websites and web forums are
currently operational. This number continues to climb, with an
estimated 900 more appearing every year.
Terrorists once had to travel to terror camps in Pakistan
to receive indoctrination and training. Now, aspiring
terrorists only need to open their laptop and connect to the
internet. The internet and e-mail continue to play an integral
role in recent terror plots. One example that Madam Chair
underscored was the threat by Colleen LaRose, better known as
Jihad Jane, a blonde-haired, blue-eyed, native-born American
who actively solicited conspirators to travel abroad to commit
terror attacks; and at Fort Hood, just north of my district in
Texas, Nidal Hasan brutally murdered 13 innocent people after
exchanging e-mails with the radical cleric in Yemen. Al-
Awlaki's on-line lectures were cited as inspiring Shahzad, the
bomber in the recent Times Square attack. Al-Awlaki has
repeatedly posted messages and videos on-line encouraging the
murder of Americans.
As we continue to debate how to attack and defeat this
enemy, I believe the answer must include combating the jihadi
propaganda so readily available on the internet. We must work
with our private sector and community partners to counter the
terrorist narrative. At a more basic level, if we are going to
look seriously at terrorists' use of the internet, there are
issues that must be addressed in order to protect the
fundamental American rights guaranteed by the Constitution.
For instance, should the Government be monitoring jihadi
websites and chat rooms, and how can that be done effectively
while protecting Constitutional rights?
There is little expectation of privacy, in my judgment, on-
line, especially when the internet is used to spread violent
radical Islam or recruit others to participate in jihad.
Similarly, there is a debate among many counterterrorism
experts whether we should allow these websites to remain up and
running. Does shutting them down turn off an important source
of information for investigators? Or does it effectively
disrupt terrorists' communications?
An attack was prevented in Dallas when FBI agents
monitoring an extremist website forum noted violent messages
being posted by al-Smadi and set him up in a sting operation.
This shows there is value to monitoring these websites. But is
there a point where it is of greater value to shut them down,
and at what point does terrorist use of the internet cross the
line from free speech to illegal activity?
Al-Awlaki's radical lectures available on the internet are
known to inspire and incite terrorist acts. Are these lectures
protected as free speech?
Another issue I hope to address is the responsibility of
the private sector to self-monitor the content on their
websites for danger, much like the street vendor in Times
Square who saw something and said something to prevent an
attack. At what point does the responsibility lie with the web
host to identify and report potential threats? At what point
does terrorist use of the internet cross the line from free
speech to illegal activity?
Al-Awlaki's radical lectures available on the internet are
known to inspire and incite terrorist attacks. Are they
protected as free speech?
I believe this is similar to one of the issues raised in
the Supreme Court cases as to whether yelling fire in a theater
is covered under the First Amendment.
These are just a few examples of the complex issues that I
look forward to exploring at this hearing, and let me once
again thank Madam Chair for holding this important hearing.
With that, I yield back.
Ms. Harman. Thank you, Mr. McCaul. The Chair now yields 5
minutes to the Chairman of the full committee for an opening
statement.
Mr. Thompson. Thank you very much, Madam Chair, and I
compliment you for this hearing. As you know, a number of
things have occurred over the last 6 months that has put more
light on this situation.
One of the most important messages this committee has
worked to communicate is that the concept of homeland security
is more than just the sum of many working pieces. Yes, homeland
security is about stopping terrorist attacks. Yes, homeland
security is about responding to disasters, both natural and
manmade. But homeland security is also about giving the
American public, our citizens, a sense of security and freeing
them from fear.
Terrorists want nothing more than to shatter our security
and make us fearful. Their acts by design are intended to
create fear to draw attention to their message, regardless of
whether that message is hatred for a particular group of
people, a government, or a government policy. While we
understand why terrorists use fear in that way, what we have
struggled to understand is why individuals are drawn to
participate in these kinds of acts. What leads an individual
down the path from radical thought to violence?
Many of our homeland security-related policies are directed
towards prevention of terrorist acts and overcoming the fear
created by those acts themselves. However, very little of our
focus is upon any kind of fear, the fear generated by what we
do not understand.
Because we are seeing a trend involving cases of
individuals move from radical thought to violent action, we
already heard from just a few examples this morning an
important part of helping us free from fear is to strive to
understand and, if possible, disrupt the process.
As a communication tool, however, the internet is already
used in many ways as an important piece of that process that we
must work to understand. Because we are working to understand
the recruitment and radicalization process, it is equally
important that we understand the uses of which individuals
undergo are encouraging this process with tools like the
internet.
However, freedom from fear also means that people should
also not fear their Government and, in particular, should not
fear the homeland security and law enforcement organizations
that are working to provide that security. A person should also
be free from fear that their communication or free expression,
both on-line and off, are not subject to improper law
enforcement scrutiny. This is why it is so important that we
have the conversation like the one we are about to have today.
To free us from fear, we must develop our understanding of
terrorist recruitment and radicalization and the tools used to
facilitate that process, but we also ensure that we are
exploring the issues in a way that is protective of our rights
to hold and express radical or unpopular ideas and privacy.
For that reason, I welcome this panel of witnesses. I hope
you can help us shed some light on how we can go about managing
this delicate balancing act.
Thank you, and I yield back, Madam Chair.
Ms. Harman. Thank you, Mr. Chairman.
Other Members of the subcommittee are reminded that under
subcommittee rules, opening statements may be submitted for the
record.
I now welcome our witnesses this morning.
Dr. Bruce Hoffman is a Professor of Security Studies at
Georgetown University's Edmund A. Walsh School of Foreign
Service and a member of the National Security Preparedness
Group, the successor to the 9/11 Commission. Before working at
Georgetown, Professor Hoffman held the corporate Chair in
Counterterrorism and Counterinsurgency at the RAND Corporation
in its Washington office. Between 2004 and 2006, Professor
Hoffman was scholar in residence at the CIA, during which he
served in a variety of advisory roles. He has conducted field
work on terrorism in Afghanistan, Argentina, Pakistan, India,
Northern Ireland, and Iraq, among others.
Our second witness, Brian Michael Jenkins, is Senior
Adviser at the RAND Corporation and an expert on political
violence and sophisticated crime. He, too, is very
sophisticated, I should add. From 1989 to 1998, Mr. Jenkins was
the Deputy Chairman of Kroll Associates, an international
investigative and consulting firm. Before this he worked at
RAND as Chairman of its Political Science Department. He also
held the rank of Captain in the U.S. Army's Green Beret,
serving both in the Dominican Republic and Vietnam.
Anthony Romero, as I mentioned, is the Executive Director
of the ACLU. He took this position 4 days before September 11,
and the ACLU soon after launched the National Safe and Free
Campaign to Protect Basic Freedoms in a Time of Crisis. He is a
frequent commentator on virtually everything that has happened
in the legal domain and policy domain since 9/11, and the ACLU
has filed litigation on issues like the torture and abuse of
detainees in U.S. custody. He has also presided over the most
successful membership growth in ACLU history. During his
tenure, the staff has doubled and the budget has tripled.
Pretty impressive.
Mr. John Morris is the General Counsel at the Center for
Democracy and Technology, CDT, and Director of CDT's internet
Standards Technology and Policy Project. Prior to joining CDT
in 2001, Mr. Morris was a partner at Jenner & Block, where he
litigated ground-breaking cases in internet and First Amendment
law. He was the lead counsel in the landmark case Reno v. ACLU,
where the Supreme Court unanimously overturned the
Communications Decency Act of 1996 and extended the highest
level of Constitutional protection to free speech on the
internet. In 2009, Mr. Morris was appointed to the
Communication Security Reliability and Interoperability Council
of the Federal Communications Commission to ensure civil
liberties are considered in developing law enforcement
communications technologies.
Finally, Phil Mudd. Mr. Mudd is a Senior Research Fellow
for the Counterterrorism Strategy Initiative at the New America
Foundation. Most of us have known him a long time, as he served
as senior intelligence adviser at the FBI. In 2005, he was
appointed First Deputy Director of the FBI's National Security
Branch. He began his Government service when he joined the CIA
in 1985, served there in a variety of roles, including Deputy
National Intelligence Officer for Near East and South Asia and
as CIA detailee to the White House National Security Council
and ultimately Deputy Director of the Counterterrorism Center.
He has received numerous awards for his Government service,
including the CIA Director's Award, the George H.W. Bush Award
for Excellence in Counterterrorism, and the first ever William
Langer Award for Excellence in Analysis.
Without objection, your full statements will be inserted in
the record.
We will now ask Dr. Hoffman to summarize his statement in 5
minutes, more or less. I do understand that you have some
slides to show us.
Mr. Hoffman. Yes, actually videos.
Ms. Harman. Videos to show us.
STATEMENT OF BRUCE HOFFMAN, PROFESSOR, EDMUND A. WALSH SCHOOL
OF FOREIGN SERVICE, GEORGETOWN UNIVERSITY
Mr. Hoffman. Madam Chair, Mr. Chairman, Members of the
committee, thank you for the opportunity to testify today.
Twice in the past 6 months, the United States was just
minutes away from another tragedy of unmitigated horror. Once
again, terrorists had breached our security and nearly
succeeded in killing and harming Americans in the skies of our
country and on its streets.
In both instances had it not been for the malfunctioning of
the terrorist's explosive devices and the quick and effective
intervention of our fellow citizens, America would have fallen
victim to the worst terrorist attack since September 11, 2001.
These two incidents appear to be part of an emerging
pattern of terrorist threats in the United States. During 2009,
a record 10 jihadi or jihadi-inspired plots or incidents and
one tragically successful attack occurred. Furthermore, at
least two dozen persons were indicted in the United States on
terrorism charges last year, another record.
Thus far, in 2010, there have been four incidents. It is
therefore difficult to be complacent when an average of one
plot is now being uncovered per month for the past year or
more, and perhaps even more are being hatched that we don't
know about.
While it is easy to dismiss as amateurish many of these
plots, incidents, and failed attacks, we do so at our peril. In
point of fact, what appears to be amateurishness, such as the
most recent abortive car bomb plot in New York City's Times
Square and the attempt last Christmas day to affect the in-
flight bombing of a Northwest Airlines passenger jet, may be
more of a reflection of the attack having been rushed.
Fears that a would-be attacker might be identified and
interdicted by authorities may thus account for what appears to
be a more compressed operational tempo or faster soup-to-nuts
process by which a recruit is deployed operationally.
The sheer diversity of the perpetrators and nature of their
plots is also remarkable. But as disparate and diverse as they
may appear, the one thing that the majority of them had in
common was the role that the internet played in their
respective plots and often in their radicalization.
Terrorism has often been understood to be a violent means
of communication. Communication is essential for a terrorist
movement, not just for the obvious purposes of summoning
publicity and attention through their violence acts but also to
ensure their longevity and very survival.
Given this constellation of requisite sustainable
resources, motivated minions, energized recruits, along with
generous sympathizers and supporters, it is not surprising that
the weapons of terrorism today are no longer simply the guns
and bombs they have always been but now include computers, the
internet, and the world wide web.
Because of the internet, the art of terrorist communication
has now evolved to a point where terrorists can effortlessly
and effectively control the communication of their ideology of
hate, intolerance, and violence, determining the content,
context, and medium over which their message is projected and
towards precisely the audience or multiple audiences they seek
to reach.
The recent Times Square plot involving a naturalized
American citizen of Pakistani descent is a wake-up call. The
wishful thinking that the American melting pot provided a
firewall against the radicalization and recruitment of American
citizens along with U.S. residents arguably lulled us into a
false sense of complacency that homegrown terrorism couldn't
happen here. By stubbornly wrapping ourselves in this false
security blanket, we missed a rare chance 3 years ago to get in
front of this issue and potentially fully understand how
Americans might be radicalized and recruited to terrorism.
In 2007, the Chair of this subcommittee introduced House
Resolution 1955, the Violent Radicalization and Homegrown
Terrorism Prevention Act, which would have established a
National commission to study domestic terrorism. Although the
bill passed the House, it never came to a vote in the Senate.
Given that the terrorist threat has changed so appreciably
since the 9/11 Commission concluded its work 6 long years ago,
we require the same fresh look and new approaches that would
have been this commission's remit. In this case, such a body
would have provided a baseline assessment of terrorist
radicalization recruitment processes and make policy
recommendations about how to counter them by drawing on a
comprehensive survey of the experiences and best practices of
other countries.
Instead, 10 years into the war on terrorism, important
questions remain unanswered. The two most salient, in my view,
are who, in fact, is responsible in the U.S. Government to
identify radicalization when it is occurring and then to
interdict attempts at recruitment? Most critically, have
terrorists discovered our Achilles heel in that we currently
have no strategy to counter this type of threat or to interdict
radicalization and prevent terrorist recruitment?
Thank you, Madam Chair. May I show these two videos?
Ms. Harman. Yes. Without objection, yes. Please show them.
They are not very long, are they?
Mr. Hoffman. No, and you can feel free to cut them off
because the message I think will be very clear in the first 15
to 30 seconds. The first video is very much the kind of thing
that you would see on MTV.
[Video shown.]
Mr. Hoffman. It ends with an image of the World Trade
Center collapsing.
[Video shown.]
Ms. Harman. Is this video still on the website someplace?
Mr. Hoffman. It is readily available. It has been on the
web for 6 years now. You can see it is geared to an audience of
people that are aren't terribly religious, but it hooks them
with an MTV-like presentation and a catchy beat. The second one
is more religious. It is a capella, so there is no music. It is
a traditional nasheed.
Ms. Harman. Thank you.
Mr. Hoffman. If I may say, the singer in that is an
American citizen, someone named Omar Hammami, who is from
Alabama, who was featured. If you saw the New York Times
Magazine article in January, by Andrea Elliott, he was the
jihad next door.
[The statement of Mr. Hoffman follows:]
Prepared Statement of Bruce Hoffman*
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* My affiliation with Georgetown University is for identification
purposes only. This testimony presents the views of the witness only
and does not nor is it meant to reflect those of Georgetown University.
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26 May 2010
Twice in the past 6 months, the United States was just minutes away
from another tragedy of unmitigated horror. Once again, terrorists had
breached our security and nearly succeeded in killing and harming
Americans in the skies above our country or on its streets. In both
instances, had it not been for the malfunctioning of the terrorists'
explosive devices and the quick and effective intervention of our
fellow citizens, America would have fallen victim to the worst
terrorist attacks since September 11, 2001.
These two incidents are part of an emergent pattern of terrorist
threats in the United States. During 2009, a record ten jihadi or
jihadi-inspired plots or incidents and one tragically successful
attack, at Fort Hood, Texas that claimed the lives of thirteen persons,
occurred.\1\ Furthermore, at least two dozen persons were indicted in
the United States on terrorism charges last year \2\--another record.
Thus far in 2010 there have been four incidents. It is therefore
difficult to be complacent when an average of one plot is now being
uncovered per month over the past year or more--and perhaps even more
are being hatched that we don't yet know about.
---------------------------------------------------------------------------
\1\ See Brian Michael Jenkins, Would-Be Warriors: Incidents of
Jihadist Terrorist Radicalization in the United States Since September
11, 2001 (Santa Monica, CA: RAND Corp., 2010), pp. 13-17.
\2\ One source puts this figure at 41 persons. See Steve Kroft,
``Homegrown Terror,'' 60 Minutes, CBS News, 9 May 2010 accessed at:
http://www.cbsnews.com/video/watch/
?id=6470178n&tag=contentMain;cbsCarousel.
---------------------------------------------------------------------------
While it is easy and perhaps also comforting to dismiss as
``amateurish'' these plots, incidents, and failed or foiled attacks, we
do so at our peril. In point of fact, what appears as
``amateurishness''--such as the most recent abortive car bomb plot in
New York City's Times Square and the attempt last Christmas day to
effect the in-flight bombing of a North West Airlines passenger jet--
may be more a reflection of the attack having been rushed. Terrorists,
we often forget, play the odds and pin their faiths and hopes on
eventually simply getting lucky. Over a quarter of a century ago, the
Irish Republican Army famously taunted then-Prime Minister Margaret
Thatcher after a bomb failed to kill her at the 1984 Conservative Party
conference in Brighton, England: ``Today we were unlucky, but remember
we only have to be lucky once. You will have to be lucky always.''\3\
Our terrorist enemies today doubtless embrace the same logic.
---------------------------------------------------------------------------
\3\ Quoted in Peter Taylor, Brits (London: Bloomsbury, 2001), p.
256.
---------------------------------------------------------------------------
Indeed, at a time, for example, when the capability of the Tehrik-
i-Taliban or Pakistani Taliban, (TTP)--whom both the U.S. Attorney
General Eric Holder and senior Obama administration counterterrorism
adviser John Brennan have gone on record as stating was behind the
Times Square plot, having provided money and direction to the hapless
bomber, Faisal Shahzad \4\--and al-Qaeda in Pakistan are being
relentlessly degraded by the U.S. drone attacks, both groups as well as
allied and associated organizations may feel pressed to implement an
operation either sooner or more precipitously than they might otherwise
prefer. Fears that a would-be attacker might be identified and
interdicted by authorities may thus account for what appears to be a
more compressed operational tempo or faster ``soup to nuts'' process by
which a recruit is deployed operationally.
---------------------------------------------------------------------------
\4\ Anne E. Kornblut and Karin Brulliard, ``U.S. blames Pakistani
Taliban for Times Square bomb plot,'' Washington Post, 10 May 2010.
---------------------------------------------------------------------------
The complaint sworn against Shahzad in Federal court, for instance,
reveals a very fast 4-month process from planning to training to Times
Square.\5\ He reportedly only received 3 to 5 days of bomb-making
training. The TPP, al-Qaeda and other terrorist groups may thus be
prepared to accept this trade-off between shorter training periods
leading to accelerated operations in order to dispatch ``clean skin''
recruits before they can be identified and detected. Indeed, this
likely represents a reasonable trade-off and excellent return on a very
modest investment. The terrorists groups have expended little effort
and energy training alleged ``walk-ins'' like Shahzad who present
terrorist organizations with a low-cost opportunity to strike in the
United States.
---------------------------------------------------------------------------
\5\ United States of America v. Faisal Shahzad, Defendant, Case
1:10-mj-00928-UA Filed 4 May 2010.
---------------------------------------------------------------------------
This is part and parcel of an al-Qaeda strategy that it also has
pushed on other groups. It is a strategy that is deliberately designed
to overwhelm, distract, and exhaust the terrorists' adversaries. There
are two components to this strategy: one economic and the other
operational. In terms of the economic dimension, al-Qaeda has never
claimed it could or would defeat U.S. militarily. Instead, it seeks to
wear us down economically through increasing expenditures on domestic
security and overseas military commitments. Given the current global
economic downtown, this message arguably now has greater resonance with
al-Qaeda's followers and supporters and indeed perhaps even with new
recruits. The operational dimension seeks to flood already stressed
intelligence and law enforcement with ``noise'': low-level threats from
``lone wolves'' and other jihadi ``hangers on''--e.g., the ``low
hanging fruit'' are designed to consume the attention of law
enforcement and intelligence in hopes that this distraction will permit
more serious terrorist operations to go unnoticed and thereby sneak in
``beneath the radar'' and in fact succeed.\6\
---------------------------------------------------------------------------
\6\ See Bruce Hoffman ``American Jihad,'' The National Interest,
no. 107, May/June 2010, pp. 17-27; and, idem, ``Al-Qaeda's New Grand
Strategy,'' Washington Post (Sunday Outlook section), 10 January 2010.
---------------------------------------------------------------------------
The sheer diversity of the perpetrators and nature of their U.S.
plots is also remarkable. These have included highly trained al-Qaeda
operatives like Najibullah Zazi, the Afghan-born U.S. resident who
sought to replicate the 7 July 2005 suicide attacks on London transport
in Manhattan; motivated, but less competent, recruits like Shahzad and
the five youths from a Washington, DC suburb who last December sought
training in Pakistan to fight in Afghanistan but, had they been
successful in establishing contact with a Pakistan-based terrorist
group, could just as well have been deployed back to United States;
dedicated sleeper agents like the U.S. citizen David Headley whose
reconnaissance efforts on behalf of Lashkar-e-Taiba (LeT), a
longstanding al-Qaeda ally, were pivotal to the November 2008 Mumbai,
India attack's success; bona fide ``lone wolves'' like Major Nidal
Hasan, the Fort Hood shooter, and other individuals with murkier
terrorist connections like Abdulhakim Muhammad (nee Carlos Bledsoe), an
African-American convert to Islam who returned from Yemen last year and
killed a U.S. military recruiter and wounded another in Little Rock,
Arkansas and has now claimed in court to have done so on behalf of
AQAP--the same group responsible for Christmas day plot; and, finally,
the incompetent, wannabe terrorists who are easily entrapped and
apprehended such as the four parolees and converts to Islam who
attempted to bomb 2 Bronx synagogues and an upstate air national guard
base, the Jordanian national who overstayed his U.S. tourist visa and
plotted to bomb a downtown Dallas office tower last September, and
another convert who wanted to blow up a Springfield, IL Federal
building that same month, among others.
Well over a year ago we became aware of radicalization and
recruitment occurring in the United States when Somali-Americans
started disappearing from the Minneapolis-St Paul, Minnesota area and
turning up in Somalia with an al-Qaeda affiliate called al Shabab
(``the youth''). Administration officials and others believed it was an
isolated, one-off phenomenon. But it was not restricted to a small
number of individuals in one place as the grand juries that have been
sitting in Minneapolis-St Paul and San Diego, California attest along
with the on-going FBI investigations in Boston and two locations in
Ohio, among other places. The number of Somali-Americans who left the
United States to train in Somalia was also far higher than initially
believed (numbering upwards of some 30 persons) and furthermore once
they were in Somalia they were in fact being trained by a senior and
long-established al-Qaeda commander.
In sum, the case of the Somali-Americans thus turned out to be a
Pandora's box. By not taking the threat of radicalization and
recruitment actually occurring in the United States more seriously and
sooner we failed to comprehend that this was not an isolated
phenomenon, specific to Minnesota and this particular immigrant
community, but that it indicated the possibility that an albeit
embryonic terrorist radicalization and recruitment infrastructure had
been established in the United States. Shahzad is thus the latest
person to jump out of this particular Pandora's box.
As disparate and diverse as the above list of individuals may
appear, the one thing that the majority of them had in common was the
role that the internet played in their respective plots and often their
radicalization. For example:
Zazi conducted several internet searches to identify and
obtain commercially available materials for the bombs he
intended to use in attacks on the New York City subway;\7\
---------------------------------------------------------------------------
\7\ United States District Court Eastern District of New York
against Najibullah Zazi, Defendant, Memorandum Of Law In Support Of The
Government's Motion For A Permanent Order Of Detention, 09-CR-663
(RJD), 24 September 2009, pp. 5, 7, and 11-12.
---------------------------------------------------------------------------
Hasan exchanged at least 18 e-mails between December 2008
and June 2009 with Anwar al Awlaki, an operational officer with
al-Qaeda in the Arabian Peninsula (AQAP);\8\
---------------------------------------------------------------------------
\8\ Brian Ross and Rhonda Schwartz, ``Major Hasan's E-Mail: `I
Can't Wait to Join You' in Afterlife,'' ABC News, 19 November 2009
accessed at http://abcnews.go.com/print?id=9130339.
---------------------------------------------------------------------------
Colleen LaRose used the online monikers ``Fatima La Rose''
and ``JihadJane'' allegedly to recruit others in the United
States and abroad, supposedly to carry out a terrorist attack
in Sweden.\9\ She boasted in e-mails how, given her
appearance--e.g., a petite, blue-eyed, blonde--she could
``blend in with many people.'' She also sought to recruit other
Western women who looked like her.\10\ David Kris, an assistant
attorney general in the Department of Justice's National
Security Division, was quoted in the Washington Post as stating
that the fact that a suburban American woman stands accused of
conspiring to support terrorists and traveling overseas to
implement an attack ``underscores the evolving nature of the
threat we face'';\11\
---------------------------------------------------------------------------
\9\ See United States District Court for the Eastern District of
Pennsylvania, United States Of America v. Colleen R. LaRose, 10-Cr-123,
4 March 2010, pp. 3-8.
\10\ Quoted in Ibid., p. 3.
\11\ Quoted in Carrie Johnson, ``JihadJane, an American woman,
faces terrorism charges,'' Washington Post, 10 March 2010.
---------------------------------------------------------------------------
Hosam Smadi, the young Jordanian national implicated in the
Dallas, Texas bomb plot, according to his indictment, allegedly
belonged to ``an online group of extremists . . . who espoused
violence.'' It further stated that Smadi ``stood out based on
his vehement intention to actually conduct terrorist attacks in
the United States'';\12\
---------------------------------------------------------------------------
\12\ Quoted in United States District Court for the Northern
District of Texas, United States Of America v. Hosam Maher Husein
Smadi, 3:09-MJ-286, 24 September 2009, p. 1. See also, Ibid., pp. 2 and
5; and, ``Jordanian accused in Dallas bomb plot goes to court,''
CNN.com, 25 September 2009 accessed at: http://
cnn.site.printthis.clickability.com/pt/cpt?action=cpt&title-Jordan.
---------------------------------------------------------------------------
Michael Finton, a U.S. citizen, implicated in a plot to bomb
a Federal building in Springfield Illinois, claimed both to
have been influenced by an al-Qaeda video and to have obtained
``all that he could . . . use the internet to look up all he
needed to know to conduct such an attack . . . ''.\13\
---------------------------------------------------------------------------
\13\ Quoted in United States District Court for the Central
District of Illinois, United States Of America v. Michael C. Finton,
09-3048-M, 24 September 2009, pp. 11 and 15. See also, Ibid., p. 17.
---------------------------------------------------------------------------
David Headley, the U.S. citizen who allegedly carried out
reconnaissance and surveillance operations on behalf of both
Pakistani jihadi terrorist organizations and al-Qaeda was
actively involved in on-line user groups and chat room forums
\14\ as was one of his alleged co-conspirators, Tahawur
Rana.\15\
---------------------------------------------------------------------------
\14\ See United States District Court for the Northern District of
Illinois, United States Of America v. Ilyas Kashmiri, et al., 09 CR 830
October 2009, pp. 13 and 20.
\15\ Idem., United States Of America v. Tahawur Rana, 18 October
2009, pp. 4, 8, 14, 24, and 42.
---------------------------------------------------------------------------
Tarek Mehanna, a U.S. citizen charged with conspiracy to
provide material support to terrorists allegedly made extensive
use of the internet, amassing, according to the criminal
complaint filed against him in Federal court, ``Video files,
audio files, images, stored messages, word processed documents
and cached web pages'';\16\
---------------------------------------------------------------------------
\16\ United States District Court of Massachusetts, United States
Of America v. Tarek Mehanna, 09-10017-GAO CR 830, November 2009, pp. 2-
3, 10-11, 14-30, 39-40, 43-49, & 56-73.
---------------------------------------------------------------------------
Bryant Neal Vinas, a U.S. citizen from Long Island, New York
who traveled to Pakistan to enlist in al-Qaeda and, in addition
to providing information to facilitate an al-Qaeda plot to blow
up a Long Island Rail Road train inside New York's Pennsylvania
Station, participated in an attack on U.S. military forces in
Afghanistan, is believed to have been radicalized as a result
of ``visiting jihadist Web sites'';\17\
---------------------------------------------------------------------------
\17\ Quoted in William K. Rashbaum and Souad Mekennet, ``L.I. Man
Helped Qaeda, Then Informed,'' New York Times, 23 July 2009.
---------------------------------------------------------------------------
Umar Farouk Abdulmuttalab, the AQAP operative who attempted
to bomb a North West airlines flight on Christmas day, 2009 was
in regular contact with the aforementioned Anwar al Awlaki;\18\
and,
---------------------------------------------------------------------------
\18\ Mark Hosenball, et al., ``The Radicalization of Umar Farouk
Abdulmuttalab,'' Newsweek, 2 January 2010.
---------------------------------------------------------------------------
Faisal Shahzad has been widely reported to have viewed
radical jihadi material on the internet and apparently has
admitted to having been inspired by al Awlaki as well.\19\
---------------------------------------------------------------------------
\19\ See Scott Shane and Souad Mekhennet, ``Imam's Path From
Condemning Terror to Preaching Jihad,'' New York Times, 8 May 2010.
---------------------------------------------------------------------------
TERRORISM AS COMMUNICATION AND THE INTERNET AS A CRITICAL MEANS OF
RADICALIZATION AND RECRUITMENT
Terrorism has long been understood to be a violent means of
communication. The terrorist act itself is of course designed to
attract attention and then, through the publicity that it generates, to
communicate a message. Indeed, nearly a quarter of a century ago, Alex
Schmid and Janny de Graaf observed that, ``Without communication there
can be no terrorism.''\20\ But communication is essential for a
terrorist movement not just for the obvious purposes of summoning
publicity and attention, but also to ensure its longevity and very
survival. Indeed, without effective communications, a terrorist
movement would be unable to recruit new members into its ranks,
motivate and inspire existing members to carry on with the struggle
despite formidable odds, as well as expand the pool of active
supporters and passive sympathizers from which the movement draws its
sustenance.
---------------------------------------------------------------------------
\20\ Alex Schmid and Janny de Graaf, Violence As Communication:
Insurgent Terrorism and the Western News Media (Beverly Hills, CA:
Sage, 1982), p. 9.
---------------------------------------------------------------------------
Given this constellation of requisite sustainable resources--
motivated minions, energized recruits, along with generous sympathizers
and supporters--it is not surprising that the weapons of terrorism are
no longer simply the guns and bombs that they always have been, but now
include the mini-cam and videotape, editing suite and attendant
production facilities; professionally produced and mass-marketed CD-
ROMs and DVDs; and, most critically, the lap-top and desk-top
computers, CD burners and e-mail accounts, and internet and world wide
web. Indeed, largely because of the internet--and the almost unlimited
array of communications opportunities that it offers--the art of
terrorist communication has now evolved to a point where terrorists can
effortlessly and effectively control the communication of their
ideology of hate, intolerance, and violence: determining the content,
context, and medium over which their message is projected; and towards
precisely the audience (or multiple audiences) they seek to reach.\21\
---------------------------------------------------------------------------
\21\ See, for example, the 2004 video clip, ``Dirty Kuffar,'' aimed
at British youth at http://video.google.com/
videoplay?docid=9083681522527526242#docid=-4283987610134255997; and, an
al Shabaab video clip aimed at Americans and Westerners in general from
2009 ``English Nasheed Rap by Shabab Al-Mujahideen (Blow by Blow)'' at
http://www.youtube.com/watch?v=ODGRd_DKchw.
---------------------------------------------------------------------------
The implications of this development have been enormous. The
internet, once seen as an engine of education and enlightenment, has
instead become an immensely useful vehicle for terrorists with which to
peddle their baseless propaganda and manifold conspiracy theories,
lies, and clarion call to violence.\22\ These sites alarmingly present
an increasingly compelling and indeed accepted alternative point of
view to the terrorists' variegated audiences.\23\ This was of course
precisely al-Qaeda's purpose in creating its first website,
www.alneda.com, and maintaining a variety of successor sites ever
since: To provide an alternative source for news and information that
the movement itself could exert total control over.
---------------------------------------------------------------------------
\22\ See, for instance, the ``Iraq'' tab at www.kavkazcenter.com
and the ``Iraqi Resistance Report'' tab at www.jihadunspun.com as well
as such sites as www.islammemo.cc/taqrer/one_news.asp?Idnew=292;
www.la7odood.com; www.balagh.com/thaqafa/0604ggpz.htm; and
www.albasrah.net: all accessed on 6 July 2005.
\23\ See, also, Dina Temple-Raston, ``Al-Qaeda media Blitz Has Some
On Alert,'' Morning Edition, National Public Radio, 8 April 2009
accessed at: http://www.npr.org/templates/story/
story.php?storyId=102735818.
---------------------------------------------------------------------------
Because of its geographical reach, ubiquity, modest costs, and
ability to communicate in real-time, the internet has thus become the
terrorists' favored means of propaganda dissemination and incitement to
violence. As Professor Gabriel Weimann of Haifa University notes in his
seminal study Terror on the Internet, when he began studying this
phenomenon nearly a decade ago, there were only about 12 terrorist
group websites. By the time he completed his research in 2005 the
number had grown to over 4,300--``a proliferation rate of about 4,500
percent per year.''\24\ And, by the time the book was published the
following year, the number had jumped to over 5,000 websites.\25\
Today, experts estimate that there are well over 7,000 such sites.
---------------------------------------------------------------------------
\24\ Gabriel Weimann, Terror on the Internet: The New Arena, the
New Challenges (Washington, DC: United States Institute of Peace Press,
2006), p. 105.
\25\ Remarks by Professor Gabriel Weimann, book launch event held
at the U.S. Institute of Peace, Washington, DC on 17 April 2006.
---------------------------------------------------------------------------
Thus, virtually every terrorist group in the world today has its
own internet website and, in many instances, maintain multiple sites in
different languages with different messages tailored to specific
audiences. The ability to communicate in real time via the internet,
using a variety of compelling electronic media--including dramatic
video footage, digital photographs, and audio clips accompanied by
visually arresting along with savvy and visually appealing web design--
has enabled terrorists to reach a potentially vast audience faster,
more pervasively, and more effectively than ever before. The changing
face of terrorism in the 21st Century is perhaps best exemplified by
the items recovered by Saudi security forces in a raid during on an al-
Qaeda safe house in Riyadh in late spring 2004. In addition to the
traditional terrorist arsenal of AK-47 assault rifles, explosives,
rocket-propelled grenades, hand grenades, and thousands of rounds of
ammunition that the authorities the police expected find, they also
discovered an array of electronic consumer goods including: Video
cameras, laptop computers, CD burners, and the requisite high-speed
internet connection. According to ``60 Minutes'' investigative
journalist Henry Schuster, the videos:
``had been part of an al-Qaeda media blitz on the web that also
included two on-line magazines full of editorials and news digests,
along with advice on how to handle a kidnapping or field-strip an AK-47
assault rifle. The videos mixed old appearances by bin Laden with slick
graphics and suicide bombers' on-camera last wills and testaments. They
premiered on the internet, one after the other, and were aimed at
recruiting Saudi youth.''\26\
---------------------------------------------------------------------------
\26\ Henry Shuster, ``Studios of Terror: Al Qaeda's Media
Strategy,'' CNN International.Com, Tracking Terror, 16 February 2005,
accessed at http://207.25.71.245/2005/WORLD/meast/02/15/
schuster.column/index.html.
As Tina Brown, the doyenne of post-modern media, has pointed out:
the ``conjunction of 21st-century internet speed and 12th-century
fanaticism has turned our world into a tinderbox.''\27\
---------------------------------------------------------------------------
\27\ Tina Brown, ``Death by Error,'' Washington Post, 19 May 2005.
---------------------------------------------------------------------------
CONCLUSION
The recent Times Square plot involving a naturalized American
citizen of Pakistani descent is a wake-up call. The wishful thinking
that the American ``melting pot'' theory provided a ``fire wall''
against the radicalization and recruitment of American citizens--
whether naturalized or born here--along with U.S. residents (green card
holders), arguably lulled us into a sense of complacency that home-
grown terrorism couldn't happen here. The British similarly believed
before the 7 July 2005 London suicide attacks that there was perhaps a
problem with the Muslim communities in Europe but certainly not with
British Muslims in the United Kingdom who were better integrated,
better education, and wealthier than their counterparts on the
continent.
By stubbornly wrapping ourselves in this false security blanket we
lost 5 years to learn from the British experience. Indeed, the United
States missed a rare chance 3 years ago to get in front of this issue
and potentially fully understand how Americans are radicalized and
recruited to terrorism. In 2007, the Chair of this same sub-committee
introduced House Resolution 1955, the ``Violent Radicalization and
Homegrown Terrorism Prevention Act of 2007,'' which would have
established a National commission to study domestic terrorism. Although
the bill passed the House of Representatives, it never came to a vote
in the Senate. Given that the terrorist threat has changed so
appreciably since the 9/11 Commission concluded its work 6 years ago,
we require the same fresh look and new approaches that would have been
this commission's remit. Moreover, these days it seems bipartisan
commissions are the only way our Government can accomplish anything
terrorism-related. In this case, such a body would have provided a
baseline assessment of terrorist radicalization and recruitment
processes, and made policy recommendations about how to counter them by
drawing on a comprehensive survey of the experiences and best practices
of other countries--and by better understanding how terrorist groups
might target and attract Americans and U.S. residents into their ranks.
Instead, 10 years into the war on terrorism, the big questions that
the commission proposed in H.R. 1955 may have shed critical light on
lamentably remain unanswered. What do we do when the terrorists are
like us? When they conform to the archetypal American immigrant success
story? When they are American citizens or American residents? When they
are not perhaps from the Middle East or South Asia and in fact have
familiar-sounding names? Or, when they are ``petite, blue-eyed,
blonde'' suburban housewives who, as the infamous Jihad Jane boasted,
``can easily blend in''?
Who in fact is responsible in the U.S. Government to identify
radicalization when it is occurring and then interdict attempts at
recruitment? Is this best done by Federal law enforcement (e.g., the
FBI) or State and local jurisdictions working closely with Federal
authorities? Is it a core mission for a modernized, post-9/11 FBI? Or
for the Department of Homeland Security (DHS)? Can it be done by the
National Counterterrorism Center (NCTC), even though it has only a
coordinating function and relies on other agencies for intelligence
collection, analysis, and operations? What is the role of the Office of
the Director of National Intelligence (ODNI) in home-grown terrorism
and recruitment and radicalization? Will coming to grips with these
challenges be the remit of the next FBI Director given the incumbent's
impending retirement?
And, finally and most critically, have terrorists discovered our
Achilles Heel in that we currently have no strategy to counter this
type of threat or to interdict radicalization and prevent terrorist
recruitment?
Ms. Harman. Thank you, Dr. Hoffman.
Mr. Jenkins, you are recognized for 5 minutes.
STATEMENT OF BRIAN MICHAEL JENKINS, SENIOR ADVISER, THE RAND
CORPORATION
Mr. Jenkins. Madam Chair, Mr. Chairman, thank you very much
for the opportunity to address this important topic.
I have submitted written testimony, but let me here just
underscore some of the aspects of current terrorist recruiting.
Nearly 9 years after 9/11, the principal terrorist threat
comes from a galaxy of jihadist groups that subscribe to al-
Qaeda's ideology of global arms struggle. Their terrorist
campaign has become more decentralized, relying more on al-
Qaeda's affiliates and on on-line exhortation to individual
followers to do whatever they can wherever they are. Such
attacks may take the form of operations planned from abroad
like the Christmas day airline bombing attempt or do-it-
yourself attempts by homegrown terrorists.
These attempts are not evidence of our failure to protect
the Nation. They reflect the fact that we are at war, and as in
any war, the other side attacks.
According to a recent RAND paper, there were 46 reported
cases of radicalization and recruitment to jihadist terrorism
in the United States between 9/11 and the end of 2009. A few
more cases have been added in 2010. In all, 125 persons were
identified in these cases. The number of cases and the number
of persons involved, as Dr. Hoffman has pointed out, both
increased sharply in 2009, underscoring the fact that
radicalization and the recruitment to jihadist terrorism do
happen here.
Fortunately, al-Qaeda's exhortations are not resonating
among the vast majority of Muslim Americans. There are veins of
extremism. There are handfuls of hotheads, but no apparent deep
reservoirs from which al-Qaeda can easily recruit.
The U.S. criminal justice system seems to be working. With
the exception of Jose Padilla, the individuals arrested in
these cases were brought before U.S. courts and convicted or
now await trial.
Most of these American jihadists appear to have radicalized
themselves rather than having been recruited in the traditional
sense.
The process of radicalization and recruitment to terrorist
violence reflects a combination of individual circumstances and
ideological motivation. Jihadists cite assaults on Islam to
justify their violence, as we saw in these videos, but the
volunteers also view jihad as a chance to gain status in a
subculture that exalts violence to be perceived as a warrior,
as a hero in an epic struggle. Again we saw in the videos here
use of the term ``glorious past'' or ``restoring honor.'' These
are recurring themes.
Al-Qaeda's ideology also has become a vehicle for revolving
individual discontents, an opportunity to transcend personal
problems, a path to glory. This individualistic quality of
self-recruitment suggests a strategy that focuses on dissuading
individuals from joining al-Qaeda's version of jihad. The
message to would-be terrorists should be that they will be
detected, apprehended, and treated as ordinary criminals. There
will be no applause. There will be no glory.
Reinforcing this message requires the active cooperation of
the American Muslim community, which is the target of this
jihadist recruiting. Community policing can facilitate that
cooperation. Now that doesn't involve the authorities in
religious or ideological debates, which remain matters for the
community. It simply requires building trust between local
communities and local authorities.
But community cooperation will not prevent all terrorist
attempts. The domestic intelligence collection is essential.
Only three of the 25 homegrown plots to carry out attacks in
the United States, including the failed Times Square bombing,
got as far as implementation. Only two of those attempts
resulted in casualties, both carried out by lone gunmen.
Now that is an undeniable intelligence success. But we have
to do better than that. Our current emphasis on information
sharing, which certainly has improved, shouldn't distract us
from the difficult and always delicate task of information and
intelligence collection.
Many homegrown terrorists begin their journey to violent
jihad on the internet. It is accessible to seekers, reinforcing
and channeling their anger, it creates on-line communities of
like-minded extremists, it facilitates clandestine
communications. Yet, it is important that we keep this in
perspective.
Despite the continuous, incessant on-line exhortations to
Americans from these jihadist websites, while they have
produced an army of on-line jihadists, that has resulted in
only a tiny cohort of jihadists in the real world. Moreover,
the internet has proved to be a source of valuable intelligence
leading to arrests.
One last point. I have no doubt that jihadists will attempt
further terrorist attacks in this country, and that some will
succeed; That is war. But needless alarm, divisive finger-
pointing, and unreasonable demands for absolute protection will
only encourage terrorists' ambitions to make America tremble in
fear and bankrupt itself in a quest for security, which is
precisely what our terrorist foes hope to achieve.
Thank you.
[The statement of Mr. Jenkins follows:]
Prepared Statement of Brian Michael Jenkins\1\
---------------------------------------------------------------------------
\1\ The opinions and conclusions expressed in this testimony are
the author's alone and should not be interpreted as representing those
of RAND or any of the sponsors of its research. This product is part of
the RAND Corporation testimony series. RAND testimonies record
testimony presented by RAND associates to Federal, State, or local
legislative committees; Government-appointed commissions and panels;
and private review and oversight bodies. The RAND Corporation is a
nonprofit research organization providing objective analysis and
effective solutions that address the challenges facing the public and
private sectors around the world. RAND's publications do not
necessarily reflect the opinions of its research clients and sponsors.
---------------------------------------------------------------------------
May 26, 2010
NO PATH TO GLORY
DETERRING HOMEGROWN TERRORISM \2\
---------------------------------------------------------------------------
\2\ This testimony is available for free download at http://
www.rand.org/pubs/testimonies/CT348/.
---------------------------------------------------------------------------
Madame Chair, Members of the subcommittee, thank you very much for
the opportunity to address this important topic. It is an honor to
again testify before Congress and, for the third time, before Members
of this subcommittee. The views I express are my own. I do not speak on
behalf of any department, agency, organization, or political agenda.
A Determined, Resilient, Opportunistic, and Adaptable Foe
Nearly 9 years after 9/11, the principal terrorist threat still
comes from a galaxy of jihadist groups that subscribe to or have been
influenced by al-Qaeda's ideology of a global armed struggle against
the West. The complexity of the movement defies easy assessment. The
ability of al-Qaeda's central leadership to directly project its power
through centrally planned and managed terrorist attacks has been
reduced. Terrorist organizations now confront a more hostile operating
environment: Al-Qaeda has not been able to carry out a major terrorist
attack in the West since the London bombings of 2005. For the time
being, it has concentrated its resources and efforts on the conflicts
in Afghanistan and Pakistan.
This should not imply that we are at a tipping point in the
struggle against terrorism. Al-Qaeda, its affiliates, and its allies,
remain determined to continue to attack, and they have proved to be
resilient, opportunistic, and adaptable, capable of morphing to meet
new circumstances. Complacency on our part would be dangerous.
A More Decentralized Terrorist Campaign
To carry on its international terrorist campaign, al-Qaeda now
relies on its affiliates, principally in North Africa, Iraq, and the
Arabian Peninsula, and on its continuous exhortation to followers to do
whatever they can, wherever they are. Other terrorist groups, while
concentrating on local contests, have adopted al-Qaeda's vision of a
global struggle and may launch their own attacks or assist volunteers
seeking support.
Emphasis on Do-It-Yourself Terrorism
The United States remains al-Qaeda's primary target. Some analysts
believe that al-Qaeda is under growing pressure to prove that it can
carry out another attack on U.S. soil in order to retain its
credentials as the vanguard of the jihadist movement. Such an attack
could take the form of an operation planned from abroad, like the
Christmas day airline bombing attempt, or it could be do-it-yourself
attempts by homegrown terrorists responding to al-Qaeda's call to
action. Inevitably, one or more of these attacks may succeed.
Terrorist attempts are not evidence of our failure to protect the
Nation from terrorism, nor should they be cause for feigned outrage and
divisive finger-pointing. They provide opportunities to learn lessons
and improve defenses. The attempts reflect that we are at war--although
the term has been largely discarded--and as in any war, the other side
attacks.
America's Homegrown Terrorists
According to a recent RAND paper, there were 46 reported cases of
radicalization and recruitment to jihadist terrorism in the United
States between 9/11 and the end of 2009.\3\ This number does not
include attacks from abroad. In all, 125 persons were involved in the
46 cases. Two more cases and several more arrests in 2010 bring the
total to 131 persons. Half of the cases involve single individuals; the
remainder are tiny conspiracies. The number of cases and the number of
persons involved both increased sharply in 2009. Whether this presages
a trend we cannot yet say. But these cases tell us that radicalization
and recruitment to jihadist terrorism do happen here. They are clear
indications of terrorist intent. The threat is real.
---------------------------------------------------------------------------
\3\ Brian Michael Jenkins, Would-Be Warriors: Incidents of Jihadist
Terrorist Radicalization in the United States Since September 11, 2001,
Santa Monica: The RAND Corporation OP-292-RC, 2010.
---------------------------------------------------------------------------
No Deep Reservoirs of Potential Recruits
Fortunately, the number of homegrown terrorists, most of whom are
Muslims, is a tiny turnout in a Muslim American community of perhaps 3
million. (By contrast, several thousand Muslim Americans serve in the
U.S. armed forces.) Al-Qaeda's exhortations to violence are not
resonating among the vast majority of Muslim Americans. There are veins
of extremism, handfuls of hotheads, but no deep reservoirs from which
al-Qaeda can recruit. America's would-be jihadists are not Mao's fish
swimming in a friendly sea.
The cases do not indicate an immigration or border-control problem.
Almost all of those arrested for terrorist-related crimes are native-
born or naturalized U.S. citizens or legal permanent residents. Most of
them have lived in the United States for many years. There is no
evidence that they were radicalized before coming to the United States.
No armies of ``sleepers'' have infiltrated the country.
The Criminal Justice System Works
The cases also tell us that the U.S. criminal justice system works.
With the exception of Jose Padilla, who was initially held as an enemy
combatant, the individuals arrested in these cases (except for those
who left to join jihad fronts abroad) were brought before U.S. courts
and convicted or now await trial.
About a quarter of those identified have links with jihadist
groups--al-Qaeda, Lashkar-e-Taiba, or the Taliban--but there is no
underground network of foreign terrorist operatives, and there are no
terrorist gangs in the United States like those active in the 1970s,
when the level of terrorist violence was much higher than it is today.
Amateurs are Still Dangerous
Twenty-five of the 131 terrorists identified in the United States
since 9/11 received some kind of terrorist indoctrination or training.
Judging by the results, it was not very good. Al-Qaeda clearly has
quality-control problems. The plots have been amateurish. Only two
attempts succeeded in causing casualties--significantly, both were
carried out by lone gunmen, a problem in the United States that
transcends terrorism. But amateurs are still dangerous. There is no
long mile between the terrorist wannabe and the lethal zealot.
America's jihadists may suffer from substandard zeal. Only one
became a suicide bomber, although Major Nidal Hasan may not have
expected to survive his murderous rampage at Fort Hood. The rest
planned to escape.
Most American jihadists appear to have radicalized themselves
rather than having been recruited in the traditional sense. However,
itinerant proselytizing recruiters appear in some of the cases, and
active recruiting does occur in prisons. Many homegrown terrorists
begin their journey to violent jihad on the internet.
Diverse Personal Motives
The process of radicalization and recruitment to jihadist terrorist
violence is complex and reflects a combination of individual
circumstances and ideological motivations. Personal crisis and
political cause are often paired in the process.
What does the jihadist acolyte seek in terrorism? Although
recruitment may involve the rhetoric of religious belief, turning to
violent jihad does not seem to result from profound religious
discernment. Few jihadists appear to have more than a superficial
knowledge of Islam. On the other hand, radicalization and recruitment
do appear to be opportunities for an ostentatious display of piety,
conviction, and commitment to their beliefs, ultimately expressed in
violence.
Jihadists often use the need to avenge perceived assaults on
Islam--insults to the religion, atrocities inflicted upon its
believers, aggression by infidels against its people and territory,
anger at specific U.S. policies--to justify their actions. These
certainly are jihadist recruiting themes, but volunteer terrorists also
view jihad as an opportunity for adventure, a chance to gain status in
a subculture that exalts violence, to overcome perceived personal
humiliation and prove manliness, to demonstrate prowess, to be
perceived as a warrior in an epic struggle.
For lonely hearts, joining jihad offers a camaraderie that can
sweep the more malleable along to schemes they would otherwise not have
contemplated. For those who feel powerless, violent action offers the
secret pleasures of clandestinity and power that come with the decision
to kill.
Al-Qaeda's ideology also has become a vehicle for resolving
personal discontents, an opportunity to start life over, to transcend
personal travail and turmoil through bloody violence, to soothe a
restless soul with the spiritual comfort of an absolute ideology that
dismisses the now as a brief passage between a glorious mythical past
and eternal paradise. The jihadist may see terrorism as a path to glory
in every sense of that word.
The Message to Would-Be Terrorists: No Path to Glory
Dealing with domestic radicalization does not mean countering
jihadist propaganda. It means applying the law. What one believes is a
matter of conscience. What one does to impose his or her beliefs on
others concerns everyone. When a course of action involves the threat
or use of violence, it becomes a matter of law. America's response to
homegrown terrorism must, above all, be based upon the law.
The individualistic quality of radicalization and recruitment to
jihadist terrorism in the United States suggests a counter-recruitment
strategy that focuses on dissuading individuals from joining al-Qaeda's
version of jihad. This can be accomplished not through ideological or
theological debate with al-Qaeda's on-line communicators, but by
deterrence through arrests, by treating terrorists and would-be
terrorists as ordinary criminals, by stripping them of political
pretensions.
The message to would-be terrorists should be that they can trust no
one. They will fail. They will be detected and apprehended. They will
be treated as ordinary criminals and will spend a long time in a prison
cell. They will receive no applause. They will disgrace their families
and their communities. They will be labeled fools. Their lives will be
wasted. There will be no glory.
Authorities could go further and consider something like Italy's
so-called ``repentant program,'' in which convicted terrorists were
offered reduced sentences in return for their cooperation. This kind of
program differs from routine plea-bargaining and from efforts abroad to
rehabilitate terrorists. A ``repentant'' program would reward those who
not only provide authorities with operational intelligence, but also
contribute to understanding the recruitment process itself, and who
actively participate in efforts to discourage others from following the
same destructive path. It would let the denunciations of al-Qaeda
motivator al-Awlaki come from his own acolytes.
Local Authorities are Best Placed to Counter Recruiting
Preventing future terrorist attacks will require the active
cooperation of the American Muslim community, which is the target of
jihadist recruiting. It will require effective domestic intelligence
collection. Both are best accomplished by local authorities.
The first line of defense against radicalization and recruitment to
jihadist terrorism in the Muslim-American community is the Muslim-
American community. America's invasion of Iraq, its support for
Ethiopia's invasion of Somalia, and its current military efforts in
Afghanistan and Pakistan have created some pockets of resentment, but
polls indicate little support for al-Qaeda's jihadist fantasies among
American Muslims. Cooperation against terrorism means more than the
public denunciations of al-Qaeda that many non-Muslim Americans demand
as proof of Muslims' patriotism, nor should tips to police be the sole
metric.
Much of the defense against jihadist radicalization will be
invisible--quiet discouragement, interventions by family members and
friends, and when necessary, discreet assistance to the authorities.
Reports indicate that this is already taking place.
Community policing can maintain the cooperation that is needed.
This does not involve police in religious or political debates, which
are matters for the community. It requires building and maintaining
trust between the community and local authorities and understanding
local communities and diasporas, their problems, and their concerns.
Community cooperation will not prevent all terrorist attempts.
Respected community leaders may have limited influence over more
radical elements or may have no clue about tiny conspiracies or
individuals who are on an interior journey to terrorism.
Members of the community must realize that while they play an
important role in discouraging terrorism, they cannot be intermediaries
in criminal investigations or intelligence operations aimed at
preventing terrorist attacks. American Muslims should not regard
themselves or be perceived by others as targets because they are
Muslims. But being Muslim brings no privileged or separate status.
Disruption of Terrorist Plots: An Undeniable Intelligence Success
Twenty-five of the reported cases of homegrown terrorism involved
plots to carry out attacks in the United States. Only three--including
the failed Times Square bombing attempt--got as far as implementation,
an undeniable intelligence success. And no doubt, other terrorist plots
have been disrupted without arrests, while the publicized success of
authorities has had a deterrent effect on still other plotters.
Intelligence has improved since 9/11. Federal Government agencies
share more information with each other and with local police
departments and fusion centers, although there are still some problems.
But connecting dots is not enough, and the emphasis on information-
sharing should not distract us from the difficult and delicate task of
domestic intelligence collection.
Domestic Intelligence Collection Remains Haphazard
The diffuse nature of today's terrorist threat and the emphasis on
do-it-yourself terrorism challenge the presumption that knowledge of
terrorist plots will come first to Federal authorities, who will then
share this information with State and local authorities. It is just as
likely--perhaps more likely--that local law enforcement could be the
first to pick up the clues of future conspiracies.
Local police departments are best placed to collect domestic
intelligence. Their ethnic composition reflects the local community.
They know the territory. They don't rotate to a new city every 3 or 4
years. They report to local authorities. But they often lack an
understanding of intelligence and require resources and training.
Despite the clear need for improved domestic intelligence,
collection remains haphazard. The Joint Terrorism Task Forces are
extremely effective, but they are case-oriented, and investigation
differs from intelligence. The fusion centers are venues for sharing
information and have diverse responsibilities, but few collect
intelligence.
An Army of On-Line Jihadists but Few Terrorists
The internet plays an important role in contemporary terrorism, as
jihadists have effectively demonstrated. It allows global
communications, critical to a movement determined to build an army of
believers. It facilitates recruiting. It is accessible to seekers,
reinforcing and channeling their anger. It creates on-line communities
of like-minded extremists, engaging them in constant activity. It is a
source of instruction. It facilitates clandestine communication.
The internet, however, has not enabled al-Qaeda, despite its high
volume of sophisticated communications, to provoke a global intifada.
Its websites and chat rooms outnumber its Western recruits. Its on-line
exhortations to Americans have produced a very meager return--an army
of on-line jihadists, but only a tiny cohort of terrorists in the real
world. And while the internet offers would-be terrorists a continuing
tutorial on tactics and improvised weapons, again thus far, this has
not yet significantly improved terrorist skills.
Moreover, the internet provides insights into jihadist thinking and
strategy and has proved to be a source of intelligence leading to
arrests. This must be kept in perspective when considering
countermeasures. These might include ways to address the issue of
anonymity and facilitate investigations--and here, terrorist use of the
internet represents only one facet of a much larger problem of cyber-
crime.
I have no doubt that jihadists will attempt further terrorist
attacks. Some will succeed. That is war. But I also have no doubt that
these attacks will not defeat this republic or destroy its values
without our active complicity, as long as we do not yield to terror.
Ms. Harman. Thank you very much. Mr. Romero.
STATEMENT OF ANTHONY D. ROMERO, EXECUTIVE DIRECTOR, AMERICAN
CIVIL LIBERTIES UNION
Mr. Romero. Good morning, Chairman Harman, Ranking Member
McCaul and other Members of the subcommittee. Thank you for the
opportunity to testify on behalf of the American Civil
Liberties Union about the need to preserve our rights to
privacy and free speech even in times of threat to our Nation.
We commend you, Chair, for recognizing that our founding
principles must not be sacrificed in the name of National
security.
However, by billing this hearing as an examination of
recruitment of new terrorists using internet facilities, the
subcommittee suggests an inherent evil in allowing the internet
to continue without some change to its current open forum. We
are here to implore this committee to resist leveling its
legislative guns at the most democratic form of modern
communication.
The internet is our most important communications medium.
It has been and must remain the most open marketplace of ideas.
Any suggestion to limit this marketplace will not only be a
direct and immediate harm to the speech and privacy rights of
law-abiding Americans, but it would also erode the very
principles that make our country the beacon of freedom to
people around the globe.
To be clear, the internet is not our enemy. Terrorists are
our enemies.
Now some suggest taking down websites containing terrorist-
laden material is necessary like the ones we saw today. But
such discretion is exactly the kind of censorship that the
Supreme Court has repeatedly cast aside in more than 20 years.
In 1984, Justice Blackmun cautioned ``By placing discretion in
the hands of an official to grant or deny a license, such a
statute creates a threat of censorship that by its very
existence chills free speech.'' In the landmark case of Reno v.
ACLU the Court again clearly extended protection to internet
speech saying ``Our cases provide no basis for qualifying the
level of First Amendment scrutiny that should be applied to
internet speech.''
Our history, our Nation's history is replete with
regrettable Government actions restricting free speech and
privacy rights in the name of National security. Consider the
Alien and Sedition Act of 1798 during a time of conflict with
France. One measure made it a crime to publish false,
scandalous, and malicious writing against the Government or its
officials.
The Sedition Act of 1918 in which Congress prohibited the
use of ``disloyal, profane, scurrilous, or abusive language
about the government, the flag, or the Armed Forces.'' It also
outlawed anything that caused others to view the Government or
its institutions with contempt.
The Cold War brought about a red scare characterized by
Congressional witch hunts orchestrated by Senator Joseph
McCarthy and the House Un-American Activities Committee, which
ruined the careers of thousands of loyal Americans based purely
on their associations or their beliefs.
The COINTELPRO spying program, in which the FBI opened over
500 domestic intelligence files between 1960 and 1974 targeting
people solely on their political affiliations and beliefs and
created a list of 26,000 individuals who would be rounded up in
an event of National emergency.
Now if our history is any indication, some of the policies
adopted in the wake of 9/11, such as lowering the threshold for
electronic surveillance or efforts that might try to rein in
certain kinds of on-line communications, that these two will be
ultimately seen as a stain on our Nation's reputation as the
leading protector of individual rights.
The best antidote to harmful speech is not censorship, but
more speech. Not only will we stand by the principles we hold
dear, but we will show the world and ourselves that we are not
afraid of dissent. We will show that we are not afraid of the
cacophony that must be our democracy.
On a practical level, by keeping the internet free from
censorship, we will provide new clues to our law enforcement
and intelligence personnel tasked with the difficult and
necessary job of seeking out those who would do us real harm.
We must also not forgo our traditional notions of privacy
in the mad scramble to provide false notions of security. Our
system, based on the existence of probable cause and judicial
oversight, provides an appropriate balance that preserves
personal privacy while providing law enforcement and
intelligence officials with the tools they need.
Fear, or fear mongering, must not drive Government policies
any longer. Protecting the First and Fourth Amendments,
honoring our values, and making sure that we keep this country
both safe and free is the only way to approach the crisis that
does, in fact, confront us.
Thank you very much.
[The statement of Mr. Romero follows:]
Prepared Statement of Anthony D. Romero
May 26, 2010
Good morning Chair Harman, Ranking Member McCaul, and Members of
the subcommittee. Thank you for the opportunity to testify on behalf of
the American Civil Liberties Union (ACLU), its more than half a million
members, countless additional supporters and activists, and 53
affiliates Nation-wide. The ACLU is one of the Nation's oldest and
largest organizations committed to defending the Constitution and Bill
of Rights in the courts and before the Executive and Legislative
branches of Government. The ACLU is concerned about the need to
steadfastly preserve our rights to privacy and free speech even in
times of threat to our Nation. We all acknowledge the Government's
legitimate interest in protecting the Nation from terrorism and in
stemming actions that further the unlawful, violent acts of terrorist
groups. But just because a threat exists does not justify the erosion
of principles that are at the core of our Constitutional identity. The
Constitution requires precision in pursuing legitimate Government goals
to ensure the Government properly distinguishes between confederates of
terrorist groups who seek to facilitate their unlawful aims, and others
whose legitimate First Amendment-protected activity brings them into
association with such groups. Sacrificing our civil liberties in the
pursuit of security is unwise, unnecessary, and counterproductive to
preventing extremist violence.
We commend this subcommittee for recognizing that our founding
principles must not be sacrificed in the name of homeland security.
Merely by billing this hearing as an examination of recruitment of new
terrorists using internet facilities, however, the subcommittee
suggests an inherent evil in allowing the internet to continue to exist
in its current open form. Since terrorists use the internet to recruit
new terrorists, as the narrative goes, Congress must do something to
stop such on-line activity. We leave it to others to debate whether
evidence shows that terrorists' use of the internet makes them more
effective or simply more vulnerable to interception of their
communications. Instead we are here to implore this subcommittee not to
level its legislative guns at this most democratic of communications
tools. The internet is merely a communications medium. It should remain
the most open marketplace of ideas, where those who believe in the
American system of individual rights should out-argue those who would
advocate harm to our homeland. Any suggestion to limit this marketplace
would not only be a direct and immediate harm to the speech and privacy
rights of law-abiding Americans, it would also erode those very
principles that make our country the beacon of freedom to people around
the globe.\1\
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\1\ Our statement before this subcommittee in December 2009
addressed our concern that some envisioned an overly rigid ``path to
extremism'', whereas the best evidence suggests there is no fixed path
and that there are many ways that individuals come to take violent
action--whether based on extremist beliefs or not. In that hearing, we
argued for a focus on how individuals become predisposed to violence
and not on the nature of any ideology, since ideology--even extremist
ideology--need not be inherently violent. Statement of Michael W.
Macleod-Ball, House Committee on Homeland Security, Subcommittee on
Intelligence, Information Sharing, and Terrorism Risk Assessment,
Violent Extremism: How Are People Moved from Constitutionally-Protected
Thought to Acts of Terrorism? (Dec. 15, 2009).
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Without doubt, the rise of communications technologies presents
challenges to those interested in preserving traditional civil
liberties standards. Nearly 50 years ago, in a case involving the
wearing of an undercover ``wire'', Chief Justice Earl Warren
anticipated many legal disputes of the more recent past. ``The
fantastic advances in the field of electronic communication,'' he wrote
in 1963, ``constitute a greater danger to the privacy of the
individual.''\2\ Four years later, the Chief Justice also foresaw that
measures adopted in the name of National security often posed special
dangers to individual rights--an argument that bears directly on any
proposal to limit the internet in the name of fighting terrorism. In
U.S. v. Robel, he wrote:
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\2\ Lopez v. U.S., 373 U.S. 427, 441 (1963) (Warren, J.,
concurring).
``This concept of `National defense' cannot be deemed an end in itself,
justifying any exercise of legislative power designed to promote such a
goal. Implicit in the term `National defense' is the notion of
defending those values and ideals which set this Nation apart . . .
[O]ur country has taken singular pride in the democratic ideals
enshrined in its Constitution, and the most cherished of those ideals
have found expression in the First Amendment. It would indeed be ironic
if, in the name of National defense, we would sanction the subversion .
. . of those liberties . . . which make the defense of our Nation
worthwhile.''\3\
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\3\ U.S. v. Robel, 389 U.S. 258, 264 (1967).
Today, we urge this subcommittee to stand strong for freedom as you
work to protect our Nation from harm. If you find that our enemies are
using the internet to recruit, we encourage use of the internet to
dissuade. At the same time, we can and should be using their on-line
communications to learn as much as is lawfully possible about those who
would do us harm and their activities and motives, following proper law
enforcement and intelligence procedures and with appropriate judicial
oversight. We urge you to leave the internet alone as an unfettered
place of freedom and anonymity--and preserve the rights to speech and
privacy for all those law abiding Americans who use these ``fantastic''
forms of electronic communications.
I. FIRST AMENDMENT FREEDOMS
The First Amendment to the United States Constitution guarantees
freedom of religion, speech, press, petition, and assembly.\4\ These
protections are based on the premise that open and unrestrained public
debate empowers democracy by enriching the marketplace with new ideas
and enabling political and social change through lawful means.\5\ These
freedoms also enhance our security. Though ``vehement, caustic and
sometimes unpleasantly sharp attacks on Government and public
officials'' have to be endured under our Constitutional system of
Government, the uninhibited debate these freedoms guarantee is
recognized as ``essential to the security of the Republic'' because it
ensures a Government responsive to the will of the people.\6\ Moreover,
as Justice Louis Brandeis explained, our Nation's Founders realized
that the greater threat to security lay not in protecting speech, but
in attempting to suppress it:
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\4\ U.S. Const., amend. 1: ``Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof;
or abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the Government for a
redress of grievances.''
\5\ See U.S. v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y.
1943); Roth v. U.S., 354 U.S. 476, 484 (1957).
\6\ See New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964),
quoting Stromberg v. California, 283 U.S. 359, 369 (1931).
``Those who won our independence . . . knew that order cannot be
secured merely through fear of punishment for its infraction; that it
is hazardous to discourage thought, hope, and imagination; that fear
breeds repression; that repression breeds hate; that hate menaces
stable Government; that the path of safety lies in the opportunity to
discuss freely supposed grievances and proposed remedies, and that the
fitting remedy for evil counsels is good ones. Believing in the power
of reason as applied through public discussion, they eschewed silence
coerced by law--the argument of force in its worst form. Recognizing
the occasional tyrannies of governing majorities, they amended the
Constitution so that free speech and assembly should be
guaranteed.''\7\
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\7\ Whitney v. California, 274 U.S. 357, 375-376, (1927),
(Brandeis, J., concurring).
Some who seek to curtail the use of email and websites by purported
terrorists would do so by taking down websites. In order to do so,
though, someone in Government would have to be assigned the job of
deciding what sites to censor and what sites to leave in place. Such
discretion is exactly the kind of censorship that the Court has
repeatedly cast aside. Justice Harry Blackmun addressed the notion of
such discretionary censorship. ``By placing discretion in the hands of
an official to grant or deny a license, such a statute creates a threat
of censorship that by its very existence chills free speech.''\8\ More
specifically, the Supreme Court has held that internet speech is
protected to the full extent of the First Amendment.\9\ ``[O]ur cases
provide no basis for qualifying the level of First Amendment scrutiny
that should be applied to this medium.''\10\ There is simply no fair
and just way to draw a line that protects the rights of those who are
merely controversial from those who are pursuing a more sinister
objective.\11\ Accordingly, such recommendations must yield to the
enduring power of our First Amendment.
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\8\ Secretary of State of Md. v. Munson Co., 467 U.S. 947, 964 n.
12 (1984).
\9\ Reno v. ACLU, 521 U.S. 844, 870 (1997).
\10\ Id.
\11\ ``[T]he mere abstract teaching . . . of the moral propriety or
even moral necessity for a resort to force and violence, is not the
same as preparing a group for violent action and steeling it to such
action.'' Brandenburg v. Ohio, 395 U.S. 444, 448 (1969) (per curiam)
(quoting Noto v. U.S., 367 U.S. 290, 297-98). The Brandenburg opinion
set aside a state statute that barred advocacy of the propriety of
violence or voluntary assembly for such criminal purposes. Id.
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II. THE RIGHT TO PRIVACY
The Fourth Amendment to the U. S. Constitution establishes the core
of our understanding of our right to privacy.\12\ In short, government
may not invade an individual's privacy without justifying the need for
doing so to a court. Courts have applied this basic principle to
different forms of communications, including letters, telephone
conversations, and other more advanced forms.\13\ Anticipating the
oncoming development of privacy law, Justice William Douglas asserted
that the right to be let alone is ``indeed the beginning of all
freedoms''.\14\
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\12\ U.S. Const., amend. 4: ``The right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or
things to be seized.''
\13\ See Ex parte Jackson, 96 U.S. 727, 733 (1877) (letters and
sealed packages); Katz v. U.S., 389 U.S. 347, 352 (1967) (telephone
communications); Kyllo v. U.S., 533 U.S. 27, 34 (2001) (changing
technology should not erode society's expectation of privacy).
\14\ Public Util. Comm'n v. Pollak, 343 U.S. 451, 467 (1952)
(Douglas, J., dissenting).
---------------------------------------------------------------------------
Some have argued that the on-line presence of websites advocating
terrorist causes justifies casting aside the Fourth Amendment standard
to chase down anyone who might have visited any such site. Just as the
mere use of the internet as a tool does not justify setting aside our
speech rights, so too should the privacy right remain untouched. No
court will stand in the way of a legitimate and well-founded Government
application for a search of electronic communications when probable
cause exists to believe that wrongdoing has occurred or is about to
occur. To now further blur the line that defines when law enforcement
may secretly invade one's personal communications will inevitably lead
to abuse--as it has already done.\15\
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\15\ Substantial exceptions to the norm of requiring judicial
approval for such searches have already been adopted. The USA PATRIOT
Act and amendments to the Foreign Intelligence Surveillance Act provide
major loopholes to traditional standards. We oppose those exceptions
and have challenged some of them in court. Numerous reports, including
those of the DOJ Inspector General, document abuses of these special
authorities. Their existence serves as even further basis to argue
against any form of additional extrajudicial surveillance authority for
the purpose of seeking out those who visit websites relating in some
way to terrorism or terrorist activities.
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III. GOVERNMENT INFRINGEMENT ON CIVIL LIBERTIES IN TIMES OF CRISIS
As Congress grapples with determining what it can do to help reduce
the threat of terrorism within our borders, it is important to keep in
mind that our Nation's history is replete with regrettable Governmental
actions restricting speech and privacy rights in the name of protecting
the country. Indeed the ACLU was founded in 1920 to come to the defense
of immigrants, trade unionists, and political activists who were
illegally rounded up by the thousands in the infamous Palmer raids
during America's first ``red scare,'' a period of significant anarchist
violence. Rather than focusing on finding the perpetrators of the
violence, the Government sought anyone who supported similar political
views, associated with disfavored organizations or wrote or spoke in
opposition to Government policies. Lawyers who complained of the abuse,
which included torture, coerced confessions, illegal searches and
arrests, were subject to investigation themselves.\16\
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\16\ SELECT COMM. TO STUDY GOVERNMENTAL OPERATIONS WITH RESPECT TO
INTELLIGENCE ACTIVITIES, U.S. SENATE, 94TH CONG., FINAL REPORT ON
SUPPLEMENTAL DETAILED STAFF REPORTS ON INTELLIGENCE ACTIVITIES AND THE
RIGHTS OF AMERICANS (BOOK III), S. Rep. No. 94-755, at 385 (1976),
available at: http://www.aarclibrary.org/publib/church/reports/book3/
html/ChurchB3_0196b.htm.
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We are able to see such actions for what they are when they occur
in foreign lands. When Google was the subject of a sophisticated
cyberattack and subsequently revealed that the Chinese government
wanted its cooperation in blocking access to sites based on political
content, the world was naturally aghast.\17\ But in contemporaneous
public discourse we tend not to apply the same standards when our own
Government attempts to take similar actions to restrict civil liberties
in the name of National security. It is only well after the
precipitating crisis has passed that we tend to see our own
Government's actions in a clearer light.
---------------------------------------------------------------------------
\17\ ``Google Said to Have Made No Progress in China Dispute,''
Bloomberg Businessweek (Mar. 23, 2010) (available at http://
www.businessweek.com/news/2010-03-23/google-said-to-have-made-no-
progress-in-two-month-china-dispute.html).
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The pattern of abusive Government action in the United States in
times of crisis goes much further back than the Palmer raids of the
1920s and continues to today.
Alien and Sedition Acts.--Congress enacted four bills in
1798 during a time of conflict with France. The Federalists in
the John Adams administration strongly objected to the
dissenting voices of those led by Thomas Jefferson and other
Democratic-Republicans, who were generally sympathetic to the
French cause. Of the four laws, the Sedition Act made it a
crime to publish ``false, scandalous, and malicious writing''
against the Government or its officials. Negative reaction led
to Jefferson's election in 1800 and the laws ultimately expired
or were repealed.\18\
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\18\ An Act for the Punishment of Certain Crimes against the United
States, ch. 74, 1 Stat. 596 (available at http://avalon.law.yale.edu/
18th_century/sedact.asp).
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Anarchist Exclusion Act.--Congress passed this law to
authorize the deportation of immigrants who subscribed to
anarchist ideas. Adopted at a time of unrest concerning
immigration into the United States, the Anarchist Exclusion Act
was re-adopted following the assassination of President
McKinley by the American son of Polish immigrants. The law's
authorities were expanded to allow wider discretion for
deportations in the Immigration Act of 1918.\19\
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\19\ An Act to Regulate the Immigration of Aliens into the United
States, ch. 1012, 32 Stat. 1222.
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Sedition Act of 1918.--Congress prohibited the use of
``disloyal, profane, scurrilous, or abusive language'' about
the Federal Government, the flag, or the armed forces. It also
outlawed anything that caused others to view the Government or
its institutions with contempt. It was repealed in 1920 after
the war ended, but those convicted under its terms generally
received sentences of 10 to 20 years.\20\
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\20\ Stone, Geoffrey R., Perilous Times: Free Speech in Wartime
from the Sedition Act of 1798 to the War on Terrorism (2004)
(hereinafter Stone, Perilous Times).
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Justice Department GID.--Following World War I, the
Department of Justice General Intelligence Division (GID), the
precursor agency to the Federal Bureau of Investigation (FBI),
collected 150,000 secret files ``giving detailed data not only
upon individual agitators connected with the radical movement,
but also upon organizations, associations, societies,
publications and social conditions existing in certain
localities.''\21\ By the GID's own account the warrantless
searches, arrests, and deportations were not useful in
identifying suspected terrorists or other criminal activity.
Rather, its claimed success was in ``wrecking the communist
parties in this country'' and shutting down ``the radical
press.''\22\
---------------------------------------------------------------------------
\21\ SELECT COMM. TO STUDY GOVERNMENTAL OPERATIONS WITH RESPECT TO
INTELLIGENCE ACTIVITIES, U.S. SENATE, 94TH CONG., FINAL REPORT ON
SUPPLEMENTAL DETAILED STAFF REPORTS ON INTELLIGENCE ACTIVITIES AND THE
RIGHTS OF AMERICANS (BOOK III), S. Rep. No. 94-755, at 386 (1976),
[hereinafter, CHURCH REPORT] available at: http://www.aarclibrary.org/
publib/church/reports/book3/html/ChurchB3_0196b.htm.
\22\ Id. at 387.
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State investigations.--The New York State Legislature
initiated a 2-year investigation from 1919 to 1920 into the
spread of radical ideas. The Joint Legislative Committee to
Investigate Seditious Activities (commonly referred to as the
Lusk Committee) ultimately produced a report, Revolutionary
Radicalism: Its History, Purpose and Tactics, which ``smeared
liberals, pacifists, and civil libertarians as agents of
international Communism.''\23\ Though thousands were arrested,
few were prosecuted or deported and little incriminating
information was obtained during the committee's
investigation.\24\
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\23\ Samuel Walker, In Defense of American Liberties: A History of
the ACLU (1990) at 16.
\24\ The Lusk Committee: A Guide to the Records of the Joint
Committee to Investigate Seditious Activities: A Guide to the Records
Held in the New York State Archives, available at: http://
www.archives.nysed.gov/a/research/res_topics_bus_lusk.shtml.
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Smith Act.--Congress outlawed the publication of any printed
matter advocating the overthrow of the Government and required
the registration of all non-citizen adult residents in 1940.
The law was used for a number of high profile political
prosecutions against isolationists, pro-fascists, and
communists in the 1940s and 1950s, including one of the early
leaders of the ACLU. The law fell into disuse after several
convictions were set aside by the Supreme Court in the late
1950s.\25\
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\25\ 18 USC 2385. See also Stone, Perilous Times.
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McCarthy hearings and House Un-American Activities
Committee.--The Cold War brought about a new red scare
characterized by Congressional witch hunts orchestrated by
Senator Joseph McCarthy's Permanent Subcommittee on
Investigations and the House Un-American Activities Committee,
which ruined the careers of many loyal Americans based purely
on their associations. In particular, their work helped to
blacklist people from certain industries and in particular the
entertainment industry in the late 1940s and 1950s based solely
on political views of those who were targeted.\26\
---------------------------------------------------------------------------
\26\ Goodman, Walter, The Committee (1968); Whitfield, Stephen J.,
The Culture of the Cold War (1996).
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COINTELPRO.--The FBI ran a domestic counter-intelligence
program that quickly evolved from a legitimate effort to
protect the National security from hostile foreign threats into
an effort to suppress domestic political dissent through an
array of illegal activities. The Senate Select Committee that
investigated COINTELPRO (the ``Church Committee'') said the
``unexpressed major premise of . . . COINTELPRO is that the
Bureau has a role in maintaining the existing social order, and
that its efforts should be aimed toward combating those who
threaten that order.''\27\ Instead of focusing on violations of
law, these investigations targeted people based on their
beliefs, political activities and associations. FBI opened over
500,000 domestic intelligence files between 1960 and 1974, and
created a list of 26,000 individuals who would be ``rounded
up'' in the event of a National emergency.\28\ The FBI used the
information it gleaned from these improper investigations not
for law enforcement purposes, but to ``break up marriages,
disrupt meetings, ostracize persons from their professions and
provoke target groups into rivalries that might result in
deaths.''\29\
---------------------------------------------------------------------------
\27\ CHURCH REPORT, at 7.
\28\ Id., at 6-7.
\29\ Id., at 5.
---------------------------------------------------------------------------
Warrantless surveillance after 9/11.--The Bush
administration authorized a sweeping program of surveillance of
electronic communications without Congressional approval. While
some in Congress spoke out against the program, Congress
ultimately not only authorized much of the surveillance after-
the-fact, but also granted immunity to the large
telecommunications companies that gave the Government access to
the communications records in question.\30\ In 2008, Congress
legislated an even broader warrantless spying program when it
passed the Foreign Intelligence Surveillance Act (FISA)
Amendments Act, which permits the Government to intercept all
international internet activity without an individualized
warrant based on probable cause to believe that a crime or act
of terrorism has been or will be committed, even if one party
to the communication is a U.S. person within the boundaries of
the United States.\31\
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\30\ ACLU letter to U. S. Senate, ``Vote NO on H.R. 6304, the FISA
Amendments Act--Oppose Warrantless Surveillance and Immunity for
Telecommunications Companies'' (Jun. 25, 2008) (available at http://
www.aclu.org/files/images/general/asset_upload_file902_35782.pdf).
\31\ 50 U.S.C. 1881-1881g. Allegations of abuse go well beyond
the electronic surveillance issues referenced here. Many American
Muslim community leaders and members have pointed to the selective and
disproportionate enforcement of counterterrorism laws against American
Muslim individuals and charities as evidence of discriminatory,
religion-based targeting of Muslims and their charitable organizations.
See Blocking Faith, Freezing Charity: Chilling Muslim Charitable Giving
in the War on Terrorism Financing, ACLU (Jun. 2009) (available at
www.aclu.org/human-rights/report-blocking-faith-freezing-charity).
Congress must avoid conflating the real issue of terrorism recruiting
with the right to dissent or the right to practice one's religious
beliefs.
---------------------------------------------------------------------------
National security letter abuses.--The month after 9/11,
Congress enacted the USA PATRIOT Act which greatly expanded the
FBI's ability to access private records without judicial
oversight. The FBI actually went further and abused the vastly
expanded authorities it received under the new law. It used the
authority to acquire records having no relation to National
security and it used NSLs to circumvent other authorities
requiring judicial oversight.\32\ The USA PATRIOT Act
unconstitutionally amended other provisions of surveillance
laws so that the Government could obtain communications and
records of individuals who are not suspected of engaging in or
preparing for an act of terrorism.\33\
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\32\ A Review of the FBI's Use of National Security Letters, DOJ
Office of Inspector General (Mar. 2007) (available at http://
www.justice.gov/oig/special/s0703b/final.pdf).
\33\ See 50 U.S.C. 1861, as amended by Section 215 of the USA
PATRIOT Act. This statute permits Government to obtain a secret court
order for ``any tangible thing'' upon showing ``relevance'' to a
foreign intelligence investigation, such as a list of every person who
visits a certain website, a list of every person who entered a certain
search term into a search engine, or the identity of an anonymous
poster on a website.
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Unfortunately, we have not yet seen the outrage and curative
legislation to the Executive branch's unilateral initiation of
systematic surveillance of email and telephone records without
Congressional authorization in the years following 2001. It did not
exist in sufficient force to cure those unlawful executive actions,
just as it did not exist in sufficient force to immediately overturn
the Sedition Act or the Anarchist Exclusion Act or the Smith Act.
Perhaps we are still too close the shocking events of September 11 and
we remain blind to the harm that arises out of such restrictions on our
freedoms. If history is any indication, however, in time these laws
will be seen as a stain on our Nation's reputation as the leading
protector of individual rights--and any attempt to limit speech on the
internet, even for the purpose of protecting the homeland, will surely
be viewed by later generations in the same harsh light as we now view
the Alien and Sedition Acts and the hearings of the House Un-American
Activities Committee and the actions of the FBI under COINTELPRO.
IV. PROTECT SPEECH AND PRIVACY ON THE INTERNET
A report by the Senate Homeland Security and Governmental Affairs
Committee (HSGAC) entitled Violent Islamist Extremism, the Internet,
and the Homegrown Terrorism Threat placed inordinate and inappropriate
significance on the role of the internet in the radicalization
process.''\34\ The internet is simply a tool for communication and the
expression of ideas--some beneficial, some benign, some harmful. In
that sense, the internet is like the printing press or the postal
service or the telephone. Focusing on the tools used to transmit
despised ideas as the key to solving our security problem only
increases the likelihood that censorship on the internet will be part
of a proposed solution. Indeed, shortly after the publication of the
HSGAC report Senator Joseph Lieberman sent a letter to Google calling
on them to take down ``terrorist content.''\35\ We are concerned that
this subcommittee, seeking to reduce on-line recruits to terrorist
causes, will make the same mistakes made by countless lawmakers
throughout our history.
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\34\ United States Senate Committee on Homeland Security and
Governmental Affairs Majority and Minority Staff Report, ``Violent
Islamist Extremism, The Internet, and the Homegrown Terrorist Threat,''
(May 8, 2008). The report noted, for instance, that ``For those who
want to know more about violent Islamist ideology, immense caches of
information and propaganda are available on-line,'' and ``the internet
can play a critical role throughout the radicalization process, the
potential end point of which is planning and executing a terrorist
act.'' Id. at 5, 10.
\35\ Letter from Senator Joseph Lieberman to Dr. Eric Schmidt,
Chairman of the Board and Chief Executive Officer, Google, Inc., (May
19, 2008) at: http://lieberman.senate.gov/newsroom/
release.cfm?id=298006.
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Government censorship violates the First Amendment and undermines
democracy. Moreover, any attempt to censor the internet would be futile
and counterproductive. Electronic content is ubiquitous and easily
transferable. Media removed from one source is often duplicated
elsewhere, and a closed website can soon reopen in another guise and at
another location. Lt. Col. Joseph Felter, Ph.D., Director of the
Combating Terrorism Center at West Point, told the HSGAC that
``[a]ttempts to shut down websites have proven as fruitless as a game
of whack-a-mole.''\36\ Such attempts at censorship would only bring
greater attention to the objectionable content.
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\36\ Statement of Lt. Col. Joseph Felter, Hearing before the Senate
Committee on Homeland Security and Governmental Affairs, ``The
Internet: A Portal to Violent Islamist Extremism,'' (May 3, 2007), at:
http://www.investigativeproject.org/documents/testimony/224.pdf.
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It is vital to the freedom of all Americans that free speech on the
internet be protected. It is possible that the unique nature of the
cyber-revolution has posed some challenges in protecting the
internet.\37\ But such a conclusion would not be unique to the
internet. ``Each medium of expression . . . may present its own
problems.''\38\ Nevertheless, our ``profound national commitment to the
free exchange of ideas'' requires that we meet those challenges to
preserve fundamental freedoms, on the internet just as rigorously as in
other forms of communication.\39\
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\37\ Universal City Studios, Inc. v. Corley, 273 F. 3d 429, 433 (2d
Cir. 2001).
\38\ Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557
(1975).
\39\ Harte-Hanks Comm., Inc. v. Connaughton, 491 U.S. 657, 686
(1989).
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Courts acknowledge the importance of keeping the web's channels of
communication open and free from discrimination. The United States
Supreme Court has concluded that speech on the internet is entitled to
the highest level of protection under the First Amendment. Any attempts
to censor its content or silence its speakers are viewed with extreme
disfavor.\40\
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\40\ See, e.g., Ashcroft v. ACLU, 542 U.S. 656 (2004) (upholding a
preliminary injunction of the Child Online Protection Act); Reno v.
ACLU, 521 U.S. at 844 (striking down certain provisions of the
Communications Decency Act).
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In addition, courts recognize that the public has a First Amendment
interest in receiving the speech and expression of others. ``[T]he
right of the public to receive suitable access to social, political,
aesthetic, moral and other ideas and experiences'' is one of the
purposes served by the First Amendment.\41\ Indeed, the ``widest
possible dissemination of information from diverse and antagonistic
sources is essential to the welfare of the public.''\42\ The internet
has become the principal source for the public to access this diversity
of ideas--good ideas, bad ideas, and all those in between.\43\
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\41\ Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969).
\42\ Metro Broad., Inc. v. FCC, 497 U.S. 547, 566-67 (1990)
(quoting Associated Press v. U.S., 326 U.S. 1, 20 (1945)).
\43\ Over one billion people have used the internet, including
nearly 70 percent of all people in North America. See http://
www.internetworldstats.com/stats.htm (visited on Oct. 4, 2006).
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Courts also understand that ``the internet represents a brave new
world of free speech.''\44\ Specifically, the internet provides unique
opportunities for speech and discourse. Unlike other communication
media, ``the internet has no `gatekeepers'--no publishers or editors
controlling the distribution of information.''\45\ As a result, the
internet does not suffer from many of the limitations of alternative
markets for the free exchange of ideas. Therefore, courts have
vigorously protected the public's right to uncensored internet access
on First Amendment grounds.
---------------------------------------------------------------------------
\44\ Blumenthal v. Drudge, 992 F. Supp. 44, 48 n. 7 (D.D.C. 1998)
(quoting Sanford & Lorenger, Teaching an Old Dog New Tricks; The First
Amendment in an Online World, 28 Conn. L. Rev. 1137 (1996)).
\45\ Id.
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In a similar vein, Congress has enacted legislation to protect and
promote free speech on the internet. In the 1996 Telecommunications
Act, Congress found that ``[t]he rapidly developing array of internet
and other interactive computer services available to individual
Americans represent an extraordinary advance in the availability of
educational and informational resources to our citizens.''\46\ Congress
further declared that it is the policy of the United States ``to
encourage the development of technologies which maximize user control
over what information is received by individuals, families, and schools
who use the internet.''\47\ Congress therefore immunized internet
providers and users from any liability for publishing ``any information
provided by another information content provider.''\48\
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\46\ 47 U.S.C. 230(a)(1).
\47\ 47 U.S.C. 230(b)(3).
\48\ 47 U.S.C. 230(c)(1).
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V. CONCLUSION
The best antidote to harmful speech is more speech expressing
countervailing messages. It is far better in this context, then, to do
the best possible job to oppose the messages with which we disagree
than to stifle them and drive them underground. Not only will we stand
by the principles we hold dear, we will show that we are not afraid of
dissent and that we will stand toe-to-toe with all comers and stand
proud of our faith in our institutions and principles. Moreover, by
refusing to yield to those who would censor the internet, we provide
new clues to our law enforcement and intelligence personnel tasked with
the difficult job of seeking out those specific individuals who would
do us harm. Active censorship would minimize the availability and
utility of such information.
Similarly, we must not forego our traditional notions of privacy in
the race to provide security. Our well-tested system, based on the
existence of probable cause to believe wrongdoing has occurred or is
about to occur and appropriate judicial oversight, has served our
country well. That system provides an appropriate balance that
preserves the personal privacy of our fellow Americans, while providing
law enforcement and intelligence officials the tools they need.
Disrupting that balance would put later prosecutions at risk while
necessarily heightening Government intrusion into the private affairs
of wholly innocent individuals.
Fear should not drive our Government policies. As Justice Louis
Brandeis reminds us:
``To courageous, self-reliant men, with confidence in the power of free
and fearless reasoning applied through the processes of popular
government, no danger flowing from speech can be deemed clear and
present unless the incidence of the evil apprehended is so imminent
that it may befall before there is opportunity for full discussion . .
. Such must be the rule if authority is to be reconciled with
freedom.''\49\
---------------------------------------------------------------------------
\49\ Whitney v. California, 274 U.S. 357, 376, (1927), (Brandeis,
J., concurring).
---------------------------------------------------------------------------
The statement is just as true applied to standards of personal
privacy. Protecting our First and Fourth Amendment freedoms will both
honor our values and keep us safe.
Ms. Harman. Thank you, Mr. Romero.
I just would underscore the title of this hearing in light
of what you have just said, which is: ``Internet Terror
Recruitment and Tradecraft: How Can We Address an Evolving Tool
While Protecting Free Speech?''
Now I yield 5 minutes to Mr. Morris to summarize his
testimony.
STATEMENT OF JOHN B. MORRIS, JR., GENERAL COUNSEL, CENTER FOR
DEMOCRACY AND TECHNOLOGY
Mr. Morris. Madam Chair, Mr. Chairman, Ranking Member
McCaul, and Members of the committee, on behalf of the Center
for Democracy and Technology I would like to thank you for the
opportunity to testify, and I would like to applaud the
committee for, as Chair Harman just pointed out, for focusing a
hearing on the need to balance free speech versus the need to
protect this country, both of which are very important needs.
On the key Constitutional question let me just start by
simply agreeing with the analysis presented by Mr. Romero.
The First Amendment places important limitations on
Governmental actions to restrict speech, even speech by those
who would do harm to the United States, and these
Constitutional principles must underlie any analysis of
Governmental responses to terror recruiting. In the context of
the internet, these concerns are even more challenging.
But beyond the Constitutional issues, I would like to spend
a few minutes looking at the broader statutory context in which
speech on the internet arises. A key question that is implicit
in this hearing is what, if anything, can the Government do to
stop the recruiting of terrorists on-line? That leads to the
question of should we require service providers who facilitate
internet communications to act to somehow stop the terror
recruiting?
So in the language of the internet, the service providers
are often called, at least legally called, intermediaries. The
ISPs that allow you access to the internet, the on-line
websites, and services like YouTube and Facebook are all
intermediaries whose services enable users, including both
speakers and listeners, to exchange ideas and communicate on-
line.
These intermediaries are really what sets the internet
apart from other forms of mass communications. With newspapers
and TV, the owner of the newspaper or the owner of the TV
station is the one who picks and chooses what gets put up and
communicated to the masses. But on the internet, in contrast,
anyone can publish to the entire world often for little or no
money. This openness has transformed our society, allows all of
us, including terrorists, to become content creators, creating
a vast audience, reaching a vast audience without having to own
a newspaper or a TV station. As Mr. Romero says, that really
has transformed our society for the better.
But this new structure has led to new questions such as
should intermediaries, should the ISPs and the web hosting
companies be responsible or legally liable for the content that
their users put up?
In 1996, Congress took a very strong action to answer this
question and to protect on-line intermediaries from
responsibility for the content that their users post. As part
of the Telecommunications Act of 1996, Congress passed what is
now known as simply Section 230 of the Communications Act.
Section 230 says in its simple terms that on-line service
providers cannot be held to be responsible for the content
posted by their users.
This intermediary protection has been extraordinarily
successful and is directly responsible for the explosive growth
of innovative and dynamic new services. But by protecting on-
line providers, Congress enabled the huge range of social
networking and video sharing sites and other Web 2.0 services
that enable individual citizens and constituents to speak on-
line.
So as this committee considers the problem of on-line
terror recruiting, we would urge it to keep in mind how vital
intermediary protection has been to the growth of the internet.
If Congress were to somehow make on-line services responsible
to keep terror recruiting off of the internet, that could have
a significant harmful effect on the growth of the internet.
Let me look at one example, just to look at YouTube, the
YouTube video sharing service. On that site, users post 24
hours of video every single minute of every day. If Congress
compelled YouTube to examine each one of these videos before
allowing it to be posted on-line to be sure that it didn't have
objectionable content, YouTube simply couldn't continue to
operate as an open forum for user expression. The same is true
of countless other forums and blogs where users post hundreds
of thousands of comments every hour.
The protection for intermediaries has been a key foundation
for the success of the internet, and a decision to undo that
would raise some grave concerns about the future of the
internet.
It doesn't mean that there is nothing that can be done. To
speak to what Congressman McCaul asked about self-monitoring,
YouTube is another good example. They have terms of service
that specifically allow them to take down incitements to
violence. I don't know if these videos were on YouTube, I don't
know what YouTube would say about these particular videos. But
videos that really do incite violence, YouTube will certainly
look at. They have a 24/7 staff to review complaints about
videos, and I think they would take prompt action.
Thanks very much.
[The statement of Mr. Morris follows:]
Prepared Statement of John B. Morris, Jr.
May 26, 2010
FREE SPEECH AND ONLINE INTERMEDIARIES IN AN AGE OF TERROR RECRUITMENT
Chair Harman, Ranking Member McCaul, and Members of the
subcommittee: On behalf of the Center for Democracy & Technology
(CDT),\1\ I thank you for the opportunity to testify today. The issues
raised by on-line terror recruiting are difficult ones, made
challenging by the Constitutional and statutory implications of any
Governmental attempts to regulate on-line speech. We applaud the
subcommittee for holding this hearing, which directly looks at the free
speech questions raised, and we appreciate the opportunity to address
the implications that regulation of terror recruiting could have for
on-line free speech, as well as for innovation and competition on the
internet.
---------------------------------------------------------------------------
\1\ The Center for Democracy & Technology is a non-profit public
interest organization dedicated to keeping the internet open,
innovative, and free. Among our priorities is preserving the balance
between security and freedom in an age of terrorism. CDT has offices in
Washington, DC, and San Francisco.
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INTRODUCTION AND OVERVIEW
Terrorism is a defining threat in our society today, and the use of
any medium of communications--including the internet--to recruit foot
soldiers for terror attacks on the United States is a serious concern.
It is understandable and appropriate that this subcommittee should
consider possible Governmental responses to this concern, and the legal
and Constitutional implications of such responses.
There are a number of possible Governmental responses to on-line
terror recruitment, including (among others) seeking to directly
prohibit speakers from posting such content and seeking to require on-
line service providers to prevent such speech from being posted in the
first place, or otherwise holding service providers responsible for the
speech. This testimony first looks at the First Amendment issues raised
by any Governmental attempt to restrict on-line speech. The testimony
then focuses on one possible response--seeking to make on-line websites
and services responsible for policing user content for on-line terror
recruitment activities, or otherwise be held liable for such content.
This possible response is one part of a larger question of whether
on-line ``intermediaries'' should be liable or responsible for content
posted by their users. The term ``on-line intermediary'' encompasses
conduits (such as ISPs) and platforms (such as social networks and
video sharing sites) that allow users to access on-line content and
communicate with one another. In 1996, Congress enacted broad and
strong protection for intermediaries from attempts to impose liability
on them for content posted by others, or otherwise force them to police
the content posted on-line. This intermediary liability protection has
been extraordinarily successful and is directly responsible for the
explosive and innovative growth of on-line services that we have
experienced over the past decades. By protecting on-line providers from
intermediary liability, Congress enabled a huge range of innovative new
websites to offer social networking, video sharing, and other ``Web
2.0'' services that have transformed how we do business and socialize
on-line.
A decision by Congress to step back from such protections and to
impose obligations on service providers to police on-line content--even
in the effort to fight terrorism--would have serious and harmful
implications both for free speech on-line and for innovation and
competition in on-line services. We urge this subcommittee to exercise
great caution as it considers what steps would be appropriate to
respond to on-line terror recruiting.
INTELLIGENCE AND LAW ENFORCEMENT CONSIDERATIONS
Before addressing the range of issues raised by terror recruiting,
we would like to raise a threshold question for the subcommittee to
consider. A mandate requiring the removal of terror recruiting content
on-line could be counterproductive to the fight against terrorism. On-
line content gives insight into terrorist groups' intentions and
methods. In a range of contexts, on-line content provides law
enforcement and intelligence agencies with a wealth of information
about the messages of terrorists groups, as well as the sources of the
communications. Using appropriate legal process, Government agencies
may be able gain invaluable information about terrorist operations by
monitoring on-line sites and services. It is thus not clear that a
broad mandate to block or remove this type of content would be the most
effective response to it.
TERROR RECRUITING AND THE FIRST AMENDMENT
As Congress considers possible responses to terror recruiting, it
must confront an unavoidable fact: that most of the ``anti-American''
speech of terrorists and other enemies of the United States is
protected speech under our First Amendment. The modern First Amendment
shields from Government regulation even speech that calls for the
demise of the United States, so long as the speech does not cross the
line into an incitement to violence or a ``true threat.''
As the Constitutional context for the subcommittee's consideration
of terror recruiting, it should consider at least two important strands
of First Amendment doctrine: First, the limits on restrictions on
violent content and content that might incite violence, and second, the
limits on the Government's ability to impose a ``prior restraint'' on
unlawful speech.
Violence, Incitement to Violence, and True Threats
On-line content that seeks to recruit for a terrorist cause may
contain three different types of content that have been addressed in
First Amendment cases: Depictions of violence, incitement to violence,
and ``true threats'' of violence.
While the U.S. Supreme Court has deemed certain sexual content to
be obscene--and thus outside of the protection of the First Amendment--
the Court has never declared that violent expressive content should be
excluded from First Amendment protection. In a 1948 case focused on
crime story magazines, the Supreme Court concluded that depictions of
violence in the magazines are ``as much entitled to the protection of
free speech as the best of literature.''\2\ Consistent with that
conclusion, courts have rejected attempts to characterize violent
content as ``obscene'': ``Material that contains violence but not
depictions or descriptions of sexual conduct cannot be obscene.''\3\
And last month, in a case involving depictions of animal cruelty, the
Supreme Court again declined to expand the realm of Constitutionally
permissible speech restrictions past the few categories of speech it
has historically included.\4\ As Chief Justice Roberts wrote in that
case:
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\2\ Winters v. New York, 333 U.S. 507, 510 (1948).
\3\ Video Software Dealers Ass'n v. Webster, 968 F.2d 684, 688 (8th
Cir. 1992). See also Eclipse Enters., Inc. v. Gulotta, 134 F. 3d 63, 66
(2d Cir. 1997) (``We decline any invitation to expand these narrow
categories of [unprotected] speech to include depictions of
violence.'').
\4\ United States v. Stevens, 559 U.S.____ (2010) (available at
http://www.supremecourt.gov/opinions/09pdf/08-769.pdf).
``The First Amendment itself reflects a judgment by the American people
that the benefits of its restrictions on the Government outweigh the
costs. Our Constitution forecloses any attempt to revise that judgment
simply on the basis that some speech is not worth it. The Constitution
is not a document `prescribing limits, and declaring that those limits
may be passed at pleasure.' ''\5\
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\5\ Id. at ____ (quoting Marbury v. Madison, 1 Cranch 137, 178
(1803)).
In light of these decisions, terrorist communications that simply
depict violent or terrorist acts would likely be beyond the reach of
Government regulation.\6\
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\6\ The Supreme Court recently agreed to review a case concerning
violent content and minors, see Video Software Dealers Ass'n v.
Schwarzenegger, 556 F. 3d 950 (9th Cir. 2009), cert. granted, 559 U.S.
____ (2010), but that appeal is unlikely to affect the Constitutional
analysis of a broader restriction on violent content.
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Speech that incites violence, however, can in some context be
regulated, but the First Amendment nevertheless protects speech that
merely advocates for violence. In its 1969 decision in Brandenburg v.
Ohio, the Supreme Court held that:
``[T]he constitutional guarantees of free speech and free press do not
permit a State to forbid or regulate advocacy of the use of force or of
law violation except where such advocacy is directed to inciting or
producing imminent lawless action and is likely to incite or produce
such action.''\7\
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\7\ Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). See also Hess v.
Indiana, 414 U.S. 105 (1973) (speech of antiwar protestor not intended
to incite violence).
A few years later, the Court made clear that to be advocacy of
violence could be prohibited only where there was evidence that
challenged speech was ``intended to produce, and likely to produce,
imminent disorder.''\8\
---------------------------------------------------------------------------
\8\ Hess, 414 U.S. at 109 (1973) (finding that speech of antiwar
protestor was not intended to incite violence).
---------------------------------------------------------------------------
In evaluating terror recruitment, a court applying the Brandenburg
test would consider whether the speech would likely yield ``imminent''
violence. A related but murkier area of the law is the First Amendment
jurisprudence allowing the prohibition of a ``true threat.'' Generally,
the First Amendment will not protect statements that convey a direct
threat of violence against particular individuals, but the courts have
struggled to provide a clear test by which to gauge a ``true threat.''
In its 1969 decision in Watts v. United States, the Supreme Court
concluded that an anti-war protester who threatened the President was
not making a ``true threat.''\9\ In 2003, although not speaking for a
majority of the Court, Justice O'Connor explained that a ``true
threat'' was ``where a speaker directs a threat to a person or group of
persons with the intent of placing the victim in fear of bodily harm or
death.''\10\ But the Supreme Court has made clear in the ``true
threat'' context that ``mere advocacy of the use of force or violence
does not remove speech from the protection of the First
Amendment.''\11\
---------------------------------------------------------------------------
\9\ Watts v. United States, 394 U.S. 705 (1969).
\10\ Virginia v. Black, 538 U.S. 343. 360 (2003).
\11\ NAACP v. Claiborne Hardware Co., 458 U.S. 886, 927 (1982).
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Only a few reported cases have addressed the use of the internet in
the incitement of or threat of violence. In United States v. Harrell,
the defendant was convicted of posting a terrorist threat to an
internet chat site on the day following the September 11, 2001,
terrorist attacks on the United States; the defendant apparently did
not raise, and the court did not address, any First Amendment issues
concerning the incident.\12\
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\12\ United States v. Harrell, 207 F. Supp. 2d 158 (S.D.N.Y. 2002).
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In Zieper v. Reno, the courts addressed a case in which a U.S.
Attorney's office attempted (with some brief success in November 1999)
to suppress the display on a website of a video film ``which depicted a
planned military takeover of New York City's Times Square during the
millennial New Year's Eve.''\13\ According to allegations made in a
later action for damages and injunctive relief, Federal officials
sought to block public access to the film; the website owner removed
the film from the internet, but later restored it and the Federal
officials took no further action. In the damages action, the district
court concluded that the plaintiffs had adequately pleaded a First
Amendment violation.\14\
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\13\ Zieper v. Reno, 30 Media L. Rep. 2164, 2164 (S.D.N.Y. 2002).
See also Zieper v. Reno, 111 F. Supp. 2d 484 (D.N.J. 2000).
\14\ Zieper v. Metzinger, 62 Fed. Appx. 383 (2nd Cir. 2003). In
another case, a Federal court concluded that a website operator who
listed names, addresses, and telephone numbers of law enforcement
personnel was protected by the First Amendment, since that information,
even if made available with the intent to harm, could not be a threat.
See Sheehan v. Gregoire, 272 F. Supp. 2d 1135 (W.D. Wash. 2003).
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The most significant case concerning violence or threats of
violence over the internet involved an anti-abortion website. In
Planned Parenthood of Columbia/Willamette, Inc. v. American Coalition
of Life Activists, plaintiff doctors (who provided medical services
including abortions to women) challenged a website that contained
``Wanted'' style posters targeting doctors (and some of the doctors
targeted were in fact murdered). The Ninth Circuit Court of Appeals
concluded that the ``Wanted'' posters did constitute a ``true threat''
and thus were not protected under the First Amendment.\15\
---------------------------------------------------------------------------
\15\ Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coal.
of Life Activists, 290 F. 3d 1058, 1087-88 (9th Cir. 2002).
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Under the prevailing First Amendment jurisprudence, any attempt to
regulate terror recruiting on the internet would likely face strong
First Amendment challenges, but depending on the precise language of
the recruiting message and whether it contained a ``true threat'' or an
incitement to imminent violence, it is possible that such speech could
Constitutionally be subject to criminal penalties.
Prior Restraints
Beyond the question of whether terror recruiting can
Constitutionally be penalized is the question of whether such speech
could be the subject of a prior restraint--that is, whether it could be
restricted on a blanket basis, in advance, and without a full panoply
of procedural safeguards.
The concern over prior restraints on speech is central to our First
Amendment jurisprudence. The First Amendment was first conceived as a
prohibition on prior restraints, in response to the seventeenth century
English system that licensed all printing presses and prevented
anything from being printed without prior permission from the governing
authorities.\16\ As the Supreme Court made clear in the leading modern
prior restraint case, Bantam Books, Inc. v. Sullivan, ``[a]ny system of
prior restraints of expression comes to this Court bearing a heavy
presumption against its Constitutional validity.''\17\ The Government
bears ``a heavy burden of showing justification for the imposition of
such a restraint.''\18\ As evidenced by the case involving the
``Pentagon Papers,'' even a strongly asserted claim of National
security may not overcome the presumption against prior restraints.\19\
---------------------------------------------------------------------------
\16\ See Near v. State of Minn. ex rel. Olson, 283 U.S. 697, 713-14
(1931) (discussing original focus of First Amendment).
\17\ Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963).
\18\ Org. for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971).
\19\ New York Times Co. v. United States, 403 U.S. 713 (1971).
---------------------------------------------------------------------------
The courts have allowed prior restraints to stand only in the
narrowest of contexts. For example, because obscene material has been
declared to be unprotected under the First Amendment, the courts have
allowed prior restraint of specific obscene items. But, even with
content that is not protected by the First Amendment, the First
Amendment requires that strict procedural safeguards be implemented and
followed before a prior restraint would be upheld.\20\ In a long line
of cases, the Supreme Court has articulated clear procedures that must
be followed, including (a) an adversarial hearing, (b) with the burden
on the Government, and (c) with clear opportunity for prompt judicial
review and appeal.\21\ The Supreme Court has made clear that any prior
restraint of speech can only ``take[] place under procedural safeguards
designed to obviate the dangers of a censorship system.''\22\
---------------------------------------------------------------------------
\20\ See, e.g., Freedman v. State of Md., 380 U.S. 51 (1965).
\21\ See, e.g., Freedman, 380 U.S. at 58-59; Southeastern
Promotions Ltd. v. Conrad, 420 U.S. 546, 560 (1975); FW/PBS, Inc. v.
City of Dallas, 493 U.S. 215, 227 (1990).
\22\ Southeastern Promotions, 420 U.S. at 560 (quoting Freedman,
380 U.S. at 58).
---------------------------------------------------------------------------
Moreover, the problems raised by prior restraints are even greater
on the internet, where on-line content can change frequently and
quickly, and where the primary means of identifying content (``IP
addresses'' such as ``124.45.23.98,'' and world wide web ``URLs'' such
as ``http://www.cdt.org'') are only pointers to potentially changing
content. Thus, even if content on a particular day at a particular
website is determined by a court to be a ``true threat'' or an
incitement to violence, the content could change the next day and the
prior determination of illegality would not apply to the new content.
The Supreme Court has made clear that a finding that a particular
publication or venue was found to contain or display illegal content
was not enough to justify imposing a prior restraint on future content
in the publication or at the venue.\23\ Consistent with the Court's
holdings, in 2004 a district court in Pennsylvania struck down as
unconstitutional a State prior restraint law that applied to
websites.\24\
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\23\ See Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931)
(holding where publication was a magazine); Vance v. Universal
Amusement Co., Inc., 445 U.S. 308 (1980) (holding where venue was a
movie theatre).
\24\ See Ctr. for Democracy & Tech. v. Pappert, 337 F. Supp. 2d
606, 656 (E.D. Pa. 2004).
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The Supreme Court sets a very high bar against prior restraints.
The Court has noted:
``The presumption against prior restraints is heavier--and the degree
of protection broader--than that against limits on expression imposed
by criminal penalties. Behind the distinction is a theory deeply etched
in our law: A free society prefers to punish the few who abuse rights
of speech after they break the law than to throttle them and all others
beforehand.''\25\
---------------------------------------------------------------------------
\25\ Vance, 445 U.S. at 316 n. 13.
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beyond the constitution: protection for online intermediaries
In considering possible approaches to terror recruiting, a
threshold question is whether the Government can Constitutionally
regulate or prohibit the speech at issue. If the speech falls into a
category that can be restricted, then the Government can consider using
the criminal law to penalize the speech.
The question of whether the Government can do more--such as to try
to prevent the speech from occurring in the first place--raises the
prior restraint issues discussed above. In the internet context, this
question also raises another vital issue: What responsibilities, if
any, should be placed on the service providers and other intermediaries
to control the targeted content?
To assess this question, it is critical that the subcommittee
understand the broader context of the strong intermediary liability
protection that has marked the United States' approach to on-line
content since the early days of the commercial internet. This
protection has played an essential part in supporting the innovation
and growth that we have experienced in on-line services. As important
as the fight against terrorism unquestionably is, we urge the
subcommittee not to go down the path of seeking to impose liability or
responsibility for content on intermediaries.
The Need for Strong Protections for Intermediaries
The global internet has become a vibrant and essential platform for
economic activity, human development, and civic engagement. Every day,
millions of journalists, educators, students, business people,
politicians, and ordinary citizens go on-line to speak, access
information, and participate in nearly all aspects of public and
private life.
Internet service providers (ISPs), websites, on-line services, and
a range of other technology companies act as conduits and platforms for
speech. These ``intermediaries'' play critical roles in getting
information and ideas from one corner of the on-line world to another,
and they provide valuable forums for speech, from the political to the
mundane--forums that are open, up-to-the-minute, and often free of
charge.
The openness of these forums means, of course, that some users will
post content or engage in activity that is unlawful or otherwise
offensive. Liability for on-line content can arise in a number of
situations, including for defamation, obscenity, invasion of privacy,
or intellectual property infringement. This reality raises important
policy questions that have an impact on the growth of the on-line
environment: Specifically, should technological intermediaries such as
ISPs and on-line services be held liable for or be responsible to
police content posted by their users and other third parties?
The answer in the United States has been to protect intermediaries
from responsibility to police content posted by users.\26\ While users
themselves should remain responsible for their unlawful on-line
activities, policies protecting intermediaries from liability for
content posted by third parties expand the space for expression and
innovation and promote the internet as a platform for a wide range of
beneficial activities. The history of the internet to date shows that
providing broad protections for intermediaries against liability is
vital to the continued robust development of the internet.
---------------------------------------------------------------------------
\26\ In appropriate cases and pursuant to lawful process,
intermediaries do continue to be required to respond to law enforcement
subpoenas concerning on-line speakers who post illegal content.
---------------------------------------------------------------------------
The internet developed and flourished because of an early U.S.
policy framework based on competition, openness, innovation, and trust.
This framework places power in the hands not of centralized
gatekeepers, but rather of the users and innovators at the edges of the
network. Importantly, this approach provides broad protections from
liability for ISPs, web hosts, and other technological intermediaries
for unlawful content transmitted over or hosted on their services by
third parties (such as users).
It is vital to understand the reasons why intermediary liability
protection is so important for free speech on the internet. When
intermediaries are liable or responsible for the content created by
others, they will strive to reduce their liability risk. In doing so,
they are likely to overcompensate, blocking even lawful content. In
this way, intermediary liability chills expression on-line and
transforms technological intermediaries into content gatekeepers.
Indeed, holding intermediaries broadly liable for user content
greatly chills their willingness or ability to host any content created
by others. Liability creates strong incentives to screen user content
before it is posted on-line, creating an indirect prior restraint on
speech and inevitably leading to less user-generated content overall.
In some instances, entire platforms for expression simply could not
exist because the sheer volume of content would make it impossible or
economically unviable for the company to screen all user-generated
content. As one example, users post over 24 hours of video to YouTube
every minute.\27\ If liability concerns or an obligation to keep
certain videos off of the service compelled YouTube to examine each
video before allowing it to be posted on-line, YouTube could not
continue to operate as an open forum for user expression. The same is
true of the countless forums and blogs where users post hundreds or
thousands of comments every hour.
---------------------------------------------------------------------------
\27\ Ryan Junee, ``Zoinks! 20 Hours of Video Uploaded Every
Minute!'', Broadcasting Ourselves ;), May 20, 2009, http://youtube-
global.blogspot.com/2009/05/zoinks-20-hours-of-video-uploaded-
every_20.html. Representatives of Google have recently stated that the
current figure is 24 hours of video posted every minute.
---------------------------------------------------------------------------
Intermediary liability also creates another problematic incentive:
Intermediaries will tend to over-block content and self-censor,
especially where definitions of illegal content are vague and
overbroad. In the face of threatened liability or policing
responsibility, intermediaries will err on the side of caution in
deciding what may be allowed. This incentive is especially strong (and
can cause particular damage) when intermediaries are not able to easily
determine if the content is unlawful on its face.\28\
---------------------------------------------------------------------------
\28\ For example, while a private party may allege that certain
content is defamatory or infringes copyright, such determinations are
usually made by judges and can involve factual inquiry and careful
balancing of competing interests and factors. ISPs and on-line service
providers are not well-positioned to make these types of
determinations.
---------------------------------------------------------------------------
In 1996, to address these concerns, Congress took strong action to
insulate on-line intermediaries from liability. As part of the
Telecommunications Act of 1996, Congress enacted Section 230 of the
Communications Act.\29\ Now known simply as ``Section 230,'' the
statute advances three policy goals: (1) To promote the continued rapid
and innovative development of the internet and other interactive media;
(2) to remove disincentives to voluntary self-screening of content by
service providers; and (3) to promote the development of tools (like
filters) that maximize user control over what information the user
receives online.
---------------------------------------------------------------------------
\29\ 47 U.S.C. 230. In addition to Section 230, Congress has also
protected intermediaries through Section 512 of the Digital Millennium
Copyright Act, 17 U.S.C. 512, which protects intermediaries from
liability so long as they afford copyright holders a means to have
copyright violations taken down. Beyond the statutory bases for
liability protection, there are strong arguments that the First
Amendment would require such protection in at least some contexts.
---------------------------------------------------------------------------
To advance its first goal, Section 230 gives intermediaries \30\
strong protection against liability for content created by third-party
users.\31\ Section 230 has been used by interactive on-line services as
a screen against a variety of claims, including negligence, fraud,
defamation, violations of Federal civil rights laws, and violations of
State criminal laws.\32\
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\30\ Section 230 calls these intermediaries ``interactive computer
services.'' 47 U.S.C. 230(c)(1).
\31\ The statute provides: ``No provider or user of an interactive
computer service shall be treated as the publisher or speaker of any
information provided by another information content provider.'' 47
U.S.C. 230(c)(1).
\32\ See, for example, Center for Democracy & Technology, ``CDT
Joins Briefs Urging Courts to Properly Apply 230 of the CDA,'' Policy
Post 14.4, March 31, 2008, http://www.cdt.org/policy/cdt-joins-briefs-
urging-courts-properly-apply-section-230-cda. See also Electronic
Frontier Foundation, ``Section 230 Protections,'' Bloggers' Legal
Guide, http://www.eff.org/issues/bloggers/legal/liability/230.
---------------------------------------------------------------------------
It is precisely these protections that led to the dramatic growth
of social networking and other interactive, user-generated content
sites that have become vibrant platforms for expression in the United
States and all over the world. It is no surprise that almost all ``Web
2.0'' innovation on-line has taken place in the United States, which
has the strongest protections for intermediaries. Without Section 230,
entry barriers for new internet services and applications that allow
user-generated content would be much higher, dampening the innovation
we have seen in interactive media. The threat of liability would also
tend to close the market to start-ups, which are often unable to afford
expensive compliance staffs (thereby entrenching existing market
players).
Protection for intermediaries has been a key foundation for the
success of the internet. A decision to undo that foundation, and to
seek to impose responsibility on online intermediaries for problematic
content--including terror recruiting--would threaten the continued
growth and innovation that has been the hallmark of the internet.
Terms of Service
The first operative part of Section 230-- 230(c)(1)--provides
strong and important protection to intermediaries, but the second part
provides a different type of protection: protection from liability for
a provider's voluntary decision to remove content. Under
230(c)(2)(a), intermediaries can block or take down content they
believe is inappropriate, without fear of liability to the poster of
the content.
This protection has encouraged all of the leading Web 2.0 sites and
services to promulgate robust ``terms of service'' that specify types
of content that are not permitted on the sites. Thus, for example, most
leading social networks and video sharing sites have rules against
sexually explicit material, and they routinely remove even legal
content if it violates their terms of service. These self-regulatory
efforts illustrate how a policy of protecting intermediaries from
liability is compatible with--and can even help serve--other societal
interests.
These terms of service will often prohibit terror recruiting
content of the types discussed above. As one illustration, the terms of
service from one leading video sharing site--YouTube.com--contain a
number of prohibitions that could bar a video promoting terrorism:
Graphic or gratuitous violence is not allowed. If your video
shows someone being physically hurt, attacked, or humiliated,
don't post it.
YouTube is not a shock site. Don't post gross-out videos of
accidents, dead bodies, or similar things intended to shock or
disgust . . .
We encourage free speech and defend everyone's right to
express unpopular points of view. But we don't permit hate
speech (speech which attacks or demeans a group based on race
or ethnic origin, religion, disability, gender, age, veteran
status, and sexual orientation/gender identity).
Things like predatory behavior, stalking, threats,
harassment, intimidation, invading privacy, revealing other
people's personal information, and inciting others to commit
violent acts or to violate the Terms of Use are taken very
seriously. Anyone caught doing these things may be permanently
banned from YouTube.\33\
---------------------------------------------------------------------------
\33\ Excerpts from YouTube Community Guidelines, available at
http://www.youtube.com/t/community_guidelines (last viewed May 24,
2010).
---------------------------------------------------------------------------
YouTube has in the past taken down terrorist videos that violate
its terms of service, and there is nothing to suggest that it and other
leading on-line services will not do so in the future.\34\
---------------------------------------------------------------------------
\34\ Thomas Claburn, ``Senator Lieberman Wants Terrorist Videos
Removed From YouTube,'' InformationWeek, May 20, 2008, available at
http://www.informationweek.com/news/internet/google/
showArticle.jhtml?articleID=207801148 (last viewed May 24, 2010).
---------------------------------------------------------------------------
Although relying on voluntary enforcement of terms of service will
not lead to the complete removal of terror recruiting content from the
internet, it will make such content less available, and will do so in a
manner that is consistent with both the First Amendment and the
statutory regime of intermediary protection.
CONCLUSION
CDT would like to thank the subcommittee for holding this important
hearing to consider both the problem of terror recruiting as well as
the free speech implications of efforts to address the problem. We
appreciate the opportunity to testify today and we look forward to
working with the subcommittee on these issues.
Ms. Harman. Thank you very much.
Mr. Mudd.
STATEMENT OF JOHN PHILIP MUDD, SENIOR RESEARCH FELLOW,
COUNTERTERRORISM STRATEGY INITIATIVE, NEW AMERICA FOUNDATION
Mr. Mudd. Madam Chair, Mr. Chairman, Ranking Member and
others, I have to say at the outset I don't have any formal
remarks. I would like to make a few comments. It is a real
honor to be here. It is my first time to be here as a private
citizen outside of 24 years in Government. There aren't a lot
of rewards from the Government but to get a letter from the
committee saying please come talk to us, you guys made my day.
So thank you.
Ms. Harman. Not everyone would feel that way.
Mr. Mudd. I guess it ain't over yet. Right?
A couple of thoughts I guess from the outset.
First, we are not going to stop internet recruitment and
radicalization. It ain't going to happen in the world of
internet and the information age. So we can work on it, we can
chip away at it, but it is not going to stop.
Second, we mistake this group in this country often as a
terrorist group. I'm talking about al-Qaeda. It is not. It is a
revolutionary organization. Revolutionary organizations can't
win without an ideology that wins. In the 21st Century, that
ideology is spread by the internet. So this is an important
meeting because this is not a group whose end is to kill
civilians by taking out airplanes and buildings. Its end is to
recruit people who think and act as the organization wants them
to think and act, even if these people never met an al-Qaeda
member. So ideology is important. I wouldn't call them a
terrorist group. I would call them a revolutionary
organization.
Third, and the reason I think they are going to lose, they
are not jihadists, they are not terrorists, and we are not
talking about hate speech. They are murdering criminals. They
hate to be called that. They should be called that. Khalid
Sheikh Mohammed is not a terrorist. He murdered 3,000 people.
So when I think about this issue, what I think about is showing
the murder of an innocent, Nick Berg, on the internet. I don't
think about a terrorist act. I don't care if jihadists and
Yemen want to talk about jihad, that is fine. If you want to
talk about murdering innocents, that is what I worry about. It
is not about jihad, and it is not about terrorism. They are not
terrorists. They are revolutionaries. Their revolution is about
killing innocents.
So let me transition to a few thoughts.
As we deal with this, I think we have to watch the
transition into terrorism, and in the paper Brian Jenkins wrote
is really instructive. Now I remember sitting around the table
with George Tenet in 2002 and watching the paramilitary
campaign unfold at the nightly 5 o'clock meetings. I use the
word ``paramilitary'' advisedly. It is a campaign on the ground
in Afghanistan. Then we transition into one of the worst
periods as I remember as a professional, 2003, watching the
series of attacks in places like Saudi Arabia and Southeast
Asia and saying, boy, we are in deep trouble. Attacks by people
who are al-Qaeda affiliates or al-Qaeda members in places like,
again, the heartland, Saudi Arabia and Indonesia. Fast forward
to the last year 2009, 2010. The revolutionary movement has led
to people in Dallas, Chicago, New York, Atlanta, Miami, and
California. Most of the people involved in this activity are
native-born Americans, are people who are American citizens
born of foreign immigrants. They are not people--Zazi would be
an exception, the Denver kid. They are people who took the
message, may have some affiliation or connection with al-Qaeda,
often they don't, but the revolution is spreading, and one of
the ways it spreads is the internet. There is no question about
that.
Let me close with a few thoughts on the practicalities of
this and things I would think about if I were you. Three or
four questions come up when you sit around the table and watch
this stuff for 9 years.
First, what do you do with the service provider? Can you
force him to say, you can't put that Nick Berg video up? I say
Nick Berg because that is about as far as you can get down the
road of a brutal showing of the murder of an innocent. I'm not
talking about whether we're looking at websites where someone
again talks about jihad, I'm talking about showing and
glorifying the murder of a human being who has a soul.
So what do you do with service providers? Can you force
them to take it out?
The second is what about people who upload that stuff? What
do you do with them practically, not only in terms of
legislation, but can we follow them and should we? I want to
get back to that in just a second. I promise not to take too
much time.
The third, obviously, is what to do with the websites. Can
we just shut them off? I know there is a question about balance
between operations and whether we learn from those websites and
ideology. I can tell where I side, and hope you figure out
where I am going. This is an ideological group and you might
have short-term gains operationally, but in general I would say
make sure they can't spread the ideology, because that is
spreading the revolution.
One final thought, and then I will close. When you are
talking about looking at people, one of the things you want to
think about, I believe, is what I would call sort of the
algorithm of intelligence. We are not just talking about a
person in Texas or New Jersey who is looking at someone like
al-Awlaki. The question I would have as a career analyst and
someone who managed intelligence operations would be if you
have someone who travels repeatedly to Pakistan, it is doing
modeling, who travels repeatedly to Pakistan, who is under the
age of 35, who traveled alone, who paid for his ticket with
cash, and who is looking at al-Awlaki's website, I am asking
how do you deal with the situation where you put that in the
mix and you have seen that kind of activity not only in the
United States but in Western Europe, do you think that is okay
to look at someone? Because note in everything I said there is
no predicate that says that individual did anything wrong.
There is just modeling, as I learned in the past, that shows me
there ain't no learn in the second kick of the mule. I have
seen this happen before. People who look like that.
Okay, cautionary note as I close. If we are going to go
down this road, and I'm not suggesting we do, I just want to be
sort of, I have done this a long time, sort of offer you some
suggestions. You are going to hit a lot of dry holes. So
someone who says you should have, you could have found Hasan, I
am going to say, okay, make sure you understand that 200 people
who fit that same model are going to be pretty ticked off. So
think about that. Think about when that story breaks, that we
found Hasan, but 200 people who we also looked at because they
had the same sort of modeling characteristics popped up.
The second thing I would say is think about the resources
to do this. I'm sure Brian and Bruce can talk about this better
than I can. You are not talking about a couple of people
engaged in looking at these websites. Tens of thousands. So I
don't represent the Bureau any more, but I want a free lunch
from Director Mueller. If you want to do this, you are talking
about asking analysts and agents to look at a funnel of tens of
thousands of people, not only here, but partnering in visa
waiver countries and then necking down that number and not only
doing the analysis to do that but cutting hundreds of leads to
the field to say divert yourself from white collar crime or
public corruption or other terrorism investigations and go look
at someone because we kind of sort of think he fits the model
for activity.
So thanks for having me. It really is a pleasure to be
here.
[The statement of Mr. Mudd follows:]
Prepared Statement of John Philip Mudd
May 26, 2010
We often consider al-Qaeda and its affiliates and followers as
terrorists: Individuals who conduct attacks that down aircraft, destroy
buildings, and murder innocents. Terrorism is a tactic, however, not an
end. Al-Qaeda's end is ideological, an effort to spark a global
revolution among like-mindeds who see as their first goal the ouster of
the United States and its allies from Muslim lands and the overthrow of
regimes viewed by al-Qaeda as corrupt. Messaging is central to this
end, an end that entails reaching individuals who may never meet a
formal al-Qaeda member. This is a campaign of ideas.
The internet is a brilliant tool for spreading ideology, and al-
Qaeda uses the tool effectively. The conversation we have today will be
far more about how to stop the spread of the ideology behind al-Qaeda--
a long-term goal--than about how curbing internet-inspired violence can
stop attacks in the near term. We are engaged in a long campaign
against an idea, not a short war against a group. If we assume that
this is an ideological battle, digital strikes may be as important as
kinetic strikes. As one U.S. general has said, this battlefield is the
battlefield of the mind. And the internet is proving, time and again,
as a powerful tool to poison minds of those who then enter the
battlefield.
There are balancing issues to deal with here. Is it worth attacking
internet sites that can quickly morph? Can we use internet tracking to
look for individuals who might commit acts of violence? How does the
ideological benefit of blocking internet activity balance against
operational interests in watching internet activity? And, of course,
how much of what we see is legitimate free-speech activity?
We are concluding 9 years of post-9/11 operations. Noteworthy are
two facts that should affect our conversation:
First, most attacks post-9/11 have been conducted by al-
Qaeda affiliates and like-minded individuals, not al-Qaeda
members themselves. This is in stark contrast to the major
attacks in East Africa in 1998; in Yemen in 2000; and in the
United States in 2001. The message of venom has spread.
Second, most individuals connected to al-Qaeda-inspired
activity in this country are converts or native-born Muslims.
We see very few plots linked to al-Qaeda recruits that fit the
mold we might have expected when we accelerated this campaign 9
years ago. The message of venom has spread.
We can make great progress in the ideological campaign. Our
adversary has clearly telegraphed their weaknesses: They fear that they
are on ideological thin ice when they kill innocents, and we should
talk about this. This is a long campaign, and we have many chapters to
go. Historians may well write the next chapters, in years to come, with
less focus on how many innocents died than on how many lives were saved
as al-Qaeda's ideology crumbled under its own weight.
Ms. Harman. Thank you, Mr. Mudd. I think we will all agree
that we all had a full spectrum of views on this panel.
It is now time for questions.
Again, thanks to the witnesses for very careful testimony,
very thoughtful, very provocative, very informative testimony,
I think probably the best we have seen in a series of hearings
on this very difficult topic.
I want to put a proposition before you and just ask if you
agree with me. I am yielding to myself for 5 minutes for
questions, and then we will go to others.
I keep saying that security and liberty are not a zero sum
game. You either get more of both or less of both. I also keep
saying that the expression of radical views, even if we dislike
them, are protected by our First Amendment in our Constitution,
no matter how much we dislike them, and some of them are
odious, I think we would all agree, and I could list some but
we don't need to go there. But violent behavior is not
protected by our Constitution. The hard piece is finding that
line, that transition, between the expression of radical views
and someone with radical beliefs, which are protected, who then
becomes someone willing to engage in violent behavior.
So let me ask all of you just going down the road, and we
will start with Dr. Hoffman, do you agree that there is no zero
sum game if we are trying to live our values in this country?
Do you agree that it is appropriate to try to find a way to
intervene at that magic point where radical views become
violent behavior?
Mr. Hoffman. Absolutely, Madam Chair. This is why I am such
an outspoken supporter of your legislation that never passed,
because I think we need an empirical foundation before we can
attempt to do that.
I think, very clearly, our adversaries have communication
strategy. As I said in my testimony, I think, lamentably, we
don't; and that is what we need. Only based, I think, on a
thorough understanding of the process, can we develop one. But
I think the opposite reaction, which is to stick our head in
the sands, in essence to say that we don't have a problem here,
means that we are on a path to seeing, unfortunately, a
successful event like Times Square or like the Northwest
Airlines flight on Christmas day.
Ms. Harman. Thank you.
Mr. Jenkins.
Mr. Jenkins. I certainly don't see liberty and security as
a zero sum game. I agree with you on that.
On the issue of radicalization versus action, that is the
important distinction here. I think all of us have spoken about
radicalization and recruitment to terrorism violence. That
point is the real challenge. After 9/11, as a consequence of
concern about terrorism, we have been pushing the authorities
to move further upstream; that is, to intervene in a preventive
fashion rather than to simply react in the traditional law
enforcement mode. But, in that process, that is delicate, how
far upstream we can push that. At what point does thought
become action?
Ms. Harman. You nailed it, Mr. Jenkins.
Mr. Romero.
Mr. Romero. Well, of course, I very much agree with you,
Chair, about the fact that safety and freedom do not have to be
a zero sum game. But yet when we often talk about balancing
safety and freedom, we are often taking about a Faustian
bargain. It is an effort to give up some of the freedoms in the
name of National security, and that is where I think we go
wrong.
I think the question you posed to us about where you draw
that line is actually quite easy to answer and rather well
established. Go back to the Supreme Court, Brandenburg v. Ohio;
very clear. The line between speech and ideas and conduct is
very clear in that case. It applies. There it says, you can bar
speech that is causing imminent lawless conduct. Imminent
lawless conduct. If it is not imminent, it is protected. If it
is not lawless, it is protected. If it is not conduct, it is
protected. So mere advocacy of violence, as we saw on these
videos, while loathsome and disgusting, are certainly protected
by the First Amendment and certainly must remain a part of our
body politic.
Ms. Harman. Thank you.
Let me just follow up with you for one second. So if
someone goes on a bomb-making site on the internet--how to make
a dirty bomb, how to make a nuclear bomb; pick one--should that
person have an expectation of privacy because that person is
exercising his free speech rights to surf the web, or should we
perhaps decide that that person could be about to engage in
imminent conduct and monitor him or her?
Mr. Romero. First, let's deal with the practicality of the
reality. I think in the aftermath of September 11 we have given
law enforcement intelligence officials enormous tools to use
the internet and to surveil individuals. The PATRIOT Act, for
instance, grants enormous latitude under National Security
Letters to be able to intercept communications on the web. The
amendments to the Foreign Intelligence Surveillance Act have
given enormous powers to our law enforcement officials--we
often think too many powers--with insufficient judicial
oversight.
The fact that one goes on a website to see how a bomb might
be created, that alone should not be a reason to put a person
under surveillance. What if I am a journalist writing a book on
the Times Square bomber? I want to understand how he put it
together. I want to give the most thorough analysis of what was
going on, how he did it. I want to show the diagram of the car
in my book. I want to be able to explain to the American public
how easy it is to build a bomb. Should then I, as a journalist
or an author, find myself on an FBI list? That is where we have
to continue to look at the line between speech and conduct.
Ms. Harman. Thank you.
Mr. Morris.
Mr. Morris. Frankly, I am not sure I can add much beyond
what Mr. Romero said. I certainly agree there is not a zero sum
game for security and freedom, and I think we can achieve both.
It is important that we work to achieve both.
As my testimony detailed--written testimony--and I think
probably Mr. Romero's, I assume, and the Brandenburg case,
there is another line of Supreme Court cases about true
threats, whether a particular piece of speech is an actual
direct threat of harm to someone. Those can be Constitutionally
restricted. But the Supreme Court has made very clear that
merely advocating the use of force is not by itself
Constitutionally prohibitable.
Ms. Harman. Thank you.
Mr. Mudd.
Mr. Mudd. I think that is right. If someone wants to get on
the web and talk about jihad, I think that is their right. If
they want to talk about recruiting somebody to go to
Afghanistan to fight, that is against the law and that is going
to murder American soldiers. So, to me, I view it again as sort
of a criminal issue, not as an ideological issue. Ideology is
whatever you want to believe.
Second, I would again go back to the practical and talk
about resources. Even if someone were to tell me--and I would
be uncomfortable participating in this--if someone were to tell
me, you need to go look at all jihadists, it is not practical
in resource terms.
Last two thoughts, one technical. I think there is a big
distinction between looking at people who are searching the web
and looking at people who are engaged in chat rooms and talking
in chat rooms that are publicly accessible, a big difference
there. I am not a technical expert or legal expert, but, to my
mind, those are fundamentally different activities.
Finally, I sort of want to throw you a curve ball, maybe. I
think we in this country beat ourselves up a lot on ideology.
The adversary, I believe--and I spent 9 years watching them--
thinks we are doing better than they are, and they believe they
are losing the war of ideology. I would argue if you look at
Pew Research studies, they are, because they murder too many
people.
Ms. Harman. Thank you very much.
The Chair now yields 5 minutes to the Ranking Member for
questions.
Mr. McCaul. Thank you, Madam Chair. This has been an
excellent discussion.
Mr. Romero, I thought you pointed out many cases where the
Federal Government has overreached in its power and abused that
power. We want to make that sure we never do that again. I
think that is one of the points of having this hearing.
Mr. Mudd, you talked a lot about the spreading of ideology.
I agree with you it is a revolution in their mindset. Some of
these websites and some of what is available on the internet is
really horrific stuff. You point out some of these executions,
beheadings, whether it is in the jihad Islamic world or whether
it is the drug cartels. It is all readily available. It is
pretty bad stuff.
I think, Mr. Romero, you answered my first question; and
that is, at what point is internet speech not protected? I
think the cases have been fairly clear it is imminent lawless
conduct. Of course, that is a judgment call in many cases on
the part of law enforcement as to what is imminent lawless
conduct.
I also think there is a difference, obviously, between
censoring speech and monitoring speech on the internet. I
wanted to expand on that.
For instance, listed on Islamic websites is a ``must own,''
and it is available on Amazon.com, the Preparatory Manual of
Explosives, third edition. It is about 570 pages, 166
explosives, readily available, on how to build a bomb. It is a
little concerning when you see the Islamic website saying this
is a ``must own,'' go to this website, when we have had 15
terror plots in the last year alone. In many of these cases,
they are looking at doing just this, building explosive
devices.
So I guess what I want to throw out to the panel with the
limited time I have, I think we have covered the censor issue
fairly well in terms of the standard. But in terms of
monitoring this, like in the case of Hasan, which I wish they
had shared that information with Fort Hood. They may have been
able to stop that. But that is an information-sharing issue.
What can we do to monitor the activities on these websites?
Mr. Mudd.
Mr. Mudd. I was afraid that was coming.
I would go back to a point I made earlier and maybe make
the conversation a little more complicated. I think just
looking at people who buy books, practically speaking, it is
not doable. But I would go back to say, okay, what if you have
somebody who--or a series of criteria that says we have
somebody who, again, has cash tickets to Pakistan, is under the
age of 30. He has had multiple trips over 30 days. I say over
30 days because I want to look for people who probably have had
some training. Go through whatever criteria you want. Then,
wait a minute, now he is up on the web buying a book.
I don't want to argue one way or another. I just want to
tell you that is the practical question I probably would have
if I were back in Government, not whether somebody buys a book
but whether you think it is okay, representing the will of the
people, to look at people who have a series of behaviors that
almost anybody I think would say, freedom of speech aside, I
would say that is kind of worrisome.
Mr. McCaul. Anybody else care to take that on?
Mr. Romero. Sure. I think that the line drawing is very
much a difficult question, no doubt. I think it is made even
more difficult because we have granted our law enforcement
intelligence officials such sweeping powers that they are
literally adding more hay onto the haystack, making it he
harder to find the couple of needles.
We need not look any further than some of the internal
reports from the FBI itself, the Office of Inspector General,
about the misuse and overbroad use of National security
letters. We see that already. Frankly, that, I think, should
have us think again about whether or not we have given too many
surveillance powers that make the haystack all the larger, make
finding the real individuals who have shown some conduct to be
suspicious to be the actual targets of our investigations.
I think, to your point, I am very much heartened by your
point that we can leave censorship aside. It is both the right
thing and it is also a practical thing. Censorship never works.
You try to shut down any website, it will pop up anywhere else
across the globe. The internet is a global phenomenon, and the
best thing we can do is assure its robustness in our country
and make sure that we use it to the best of our abilities.
Mr. McCaul. Following up on that, is there any point where
content is so inappropriate that it shouldn't be allowed on the
internet or is it just--are we looking more at the conduct of
individuals?
Mr. Romero. Well, the Supreme Court has also ruled on these
issues. There is established law dealing with issues of
pornography, dealing with issues of obscenity, that we don't
need new rules or regulations on it.
What we perhaps do need perhaps is a fuller discussion, as
my colleague Mr. Morris said, about how we work with these new
forms of communications and make sure that they have proper
guidelines for their users, make sure that they themselves
understand the importance of their civic responsibility.
But the internet is our common forum. It is the new common
grounds. It is the Boston Square. We want to keep that open and
free. It is too essential to who we are now as Americans and as
individuals in the 21st Century.
Mr. McCaul. I see my time has expired. Thank you.
Ms. Harman. I now yield 5 minutes to the Chairman of the
full committee, Mr. Thompson of Mississippi.
Mr. Thompson. Thank you very much, Madam Chair. This is an
absolute wonderful discussion.
Just to try to frame it a little broader, the House Un-
American Activities Committee's hearing was held in this very
room. So, from a historical analysis, somebody would say, wow,
we are back here again.
So the public policy question I think for us is: How do we
look at the internet in its present form and structure some
guidelines or protocols that provide the intelligence
community, law enforcement community, with tools necessary to
identify situations that we deem harmful? The other public
policy question is: Is it solely the burden of Government to do
that, is it those sites themselves to help police it, or is
there a public responsibility in some of this? If a member of
the public got on a site and said, I think something is wrong
with this site, it looks like it is going somewhere, should we
encourage them to report it to someone, or just what do we do?
I am kind of giving you three things to do, and I will back
up. Dr. Hoffman, we can go down the line for comments.
Mr. Hoffman. Well, I may be horribly reductionist, but I
think a lot of the reason we have this debate is--because I
agree completely we shouldn't be censoring the internet. I am
not even sure we should be monitoring it, either. I agree
completely. But I think the problem is that we default toward
these very intrusive approaches.
Because, for instance, unlike the United Kingdom, we don't
have programs that seek to work with the community. We don't
have a dedicated office anywhere in Government such as the Home
Office in the United Kingdom has that works with local
communities that attempts to identify processes of
radicalization and recruitments and then interdict them on the
ground--precisely as you say, sir--to enlist public support. We
don't have a strategy like contest or an arm of it like the
British do.
That is why I think it is so important to get our hands
around what we do about the problem itself by enlisting the
community and enlisting the public. Already, of course, it is
not just the public. There are many private entities and NGOs
that monitor the internet--SITE Intelligence Group, NEFA
Foundation, the Investigative Project, and so on. So this is
being done.
But the question is: How we can enlist the public and
members of the community more to inoculate ourselves against
this phenomenon without having any kind of approach or any
strategy, without identifying anyone in the Federal Government
to facilitate this process? I am not saying it is necessarily a
Federal responsibility, either. I think a lot can be done by
local and States' jurisdictions. But, in the absence of all
that, we fall back on how we control the source of information.
That I don't think is the issue.
Mr. Thompson. Mr. Jenkins.
Mr. Jenkins. Let me take a very pragmatic view here.
Although this material on the internet is, as you pointed out,
it is odious, it is offensive, it is troubling, it does assist
in recruitment. On the other hand, the fact is it is producing
very few active terrorists. The number of English language
websites vastly exceeds the number of terrorists it has
produced. So, as a marketing effort, it would be judged a
failure.
Second, it is a source of intelligence.
Third, any type of shutdown would require an enforcement
effort, a policing effort, that would end up in an on-line cat-
and-mouse game that would simply divert valuable resources from
investigative and intelligence functions. So we ought not
create additional demands on our already-stretched resources,
and so I would rather see us look at how we can devote those
resources in a proper way to take advantage of the internet.
Let me give you just an interesting anecdote here. At
jungle warfare school, there is an old sergeant that gives the
same speech to every incoming class. He says, the jungle is not
your enemy, not your friend. The jungle is neutral. Learn how
to operate in the jungle. You can keep from getting hurt, and
you occasionally turn it to your advantage.
The reality is that the new electronic jungle is what we
are dealing with here. We are not going to make it go away. We
are not going to be able to knock down the trees. We are going
to have to figure out how to operate in it to keep from getting
hurt and occasionally turn it to our advantage.
Mr. Romero. Chairman Thompson, first, I want to thank you
for the history lesson about the history of this room. There
were a number of ACLU board members and staff who were at this
table those years ago. So it is delightful to be here in such a
hospitable and much better climate than my organization was
perhaps 40 years ago.
I think you raise exactly the right question, sir; and I
think where we can look to some guidance is the newly completed
and not fully released yet Senate Intelligence Committee report
that tried to investigate about what went wrong with some of
these investigations.
As far as we can tell from the redactions, they point out
that they already did have individualized information on many
of the individuals that were cited in your opening statement.
There was a failure to share that information among relevant
Federal agencies. There was a failure to communicate. There
were mistakes made, misspellings of names that did not cross
each other in databases.
That for me, sir, goes back to the question that perhaps
the challenge is not that we lack certain surveillance powers
that we need to fight the war on terror more effectively.
Perhaps it means that we have too great surveillance powers
which collect too much data, making the work of good law
enforcement and FBI officials all the more difficult to cull
through that volume. I think if we can narrow down the
haystack, just to stick with my one metaphor, allow our
officials to really comb through a much smaller haystack, they
will be much more apt and able to really identify the
individuals who might do us harm.
I think it is a place to have some discussions. I hear
complaints from within the FBI itself that talk about the great
volume. You remember Coleen Rowley, the FBI Director out of
Minnesota, talking about the difficulty of all of these
investigations that were initiated and that made the work of
local law enforcement FBI officials all the more difficult. So
perhaps we need to be talk about reining it in to make our law
enforcement efforts more effective, not giving them more.
Mr. Morris. To address one of the questions you raised,
Chairman Thompson, is all of the leading service providers that
are really popular service providers in the United States, like
YouTube or Facebook or really the whole gamut of Flickr for
images and the like, they all have very prominently on the
pages--on the video page--on every video page on YouTube is a
``report abuse'' button. Anyone who sees a video that is
disturbed by the video or offended by it, they can click that
button; and that immediately gets into a process where within a
couple of hours a human will actually review the reported
video.
So I do think that the leading sites are in fact allowing
citizens to take action and to report things. None of these
sites want to have content that is really--the videos of
murders, I can't imagine any leading American site would want
to have that on their server. So I think that is one way that
citizens can interact.
But I would also just note, to echo something Mr. Romero
said a few minutes ago, that trying to take this down, trying
to really stomp it, will simply make it harder to monitor and
harder to keep track of.
Fifteen years ago, there was a great concern about dial-a-
porn in this country, sexy telephone calls. Parents were able
to tell the telephone company, block all 900 numbers. So there
was an easy solution. But Congress imposed more burdens on the
dial-a-porn industry; and, in response, the dial-a-porn
industry moved overseas. It made it so that it was much harder
for parents to block access to the overseas dial-a-porn that
kids still today could, in fact, access.
That is an example where, if you try to regulate speech too
much, you will simply make it go somewhere else and it will
still be available and in this context--in the terror
recruiting context--it will be harder to monitor.
Mr. Hoffman. A couple of things I would think about, again,
if you are going down the road of what to write and what to
talk about. Let's say we are in a situation where we do
takedown after takedown and 70 percent happen to be accessing a
website hosted by a certain service provider. If I were the FBI
Director or the Deputy, I would want to call that service
provider and I would love for that service provider to have the
protection to say I am not going to be sued if I take that
down. So I don't know the technicalities of that, but that
would not be an uncommon experience in the world I live in.
I am not referring to a phone call. I am referring to the
fact a lot of these websites are everywhere. I don't know what
latitude a service provider has when he gets that phone call to
prevent himself from getting sued if he just randomly takes out
a website.
Second, if you are a military commander--and we haven't
talked about this, so I want to lay it on the table--in a place
like Iraq, and you are dealing with an entity that is fighting
U.S. soldiers and by the magic of electrons has a website
hosted by a U.S. ISP, I would say that military commander ought
to have the authority to take that out--and the latitude to do
that.
Last, I might have gotten this wrong, but I must say I am
not comfortable with the haystack analogy. The American people
in some ways haven't asked for an FBI anymore, Federal Bureau
of Investigation. They have asked for a Federal bureau that
prevents events from happening. When we investigate or the
Bureau investigates an event afterward, to the best
investigators in the world, and that is not good enough.
Almost by definition I thought the 2005 reform legislation
now is a part of that. Because I went over as the first deputy
in the National Security Branch, the CIA person over to the
FBI. I thought the intent behind the legislation was, darn it,
you guys better do intelligence better so you collect enough to
make sure bad stuff doesn't happen. We don't want to see
another attack where you say, you know, if we had collected
more, we could have prevented something.
The lessons you learn on the inside from things like Fort
Hood and from Times Square are: Don't make a mistake. Don't
make a mistake. Don't ever make a mistake. So some of the
dialogue might be, what do you expect when you create a
National security service, in essence, and what kind of dialog
do we have with the American people, when almost unspoken their
expectations have evolved to the point where they want a
Federal service that prevents and not just investigates?
Mr. Thompson. Thank you very much. You have been very
generous with the time.
Ms. Harman. Thank you, Mr. Chairman.
Consistent with committee rules, we are recognizing the
other Member who was here before the gavel; and that is Mr.
Carney of Pennsylvania. We will follow that with Mr. Dent of
Pennsylvania.
Mr. Carney. I try to be punctual, ma'am.
I have got to tell you folks, I appreciate you being here.
This, for me, is very exciting, because this is my syllabus for
my class in terrorism I taught at Penn State, and you are all
here now in the flesh. This is great.
I actually have a couple of questions. One deals with sort
of a practical approach we haven't talked about in terms of
what sorts of things incite recruitment.
Let's apply that toward the argument we are having today
about: Should we try the terrorists in civilian court or
military court? What do you think from your opinions is more
inciteful to them, what gives them more impetus to want to join
up, seeing a trial in a civilian court or having a more
secretive military tribunal proceeding go on?
We can start down the line here. Dr. Hoffman.
Mr. Hoffman. Well, sir, you have posed an enormously
difficult question, because one of the problems is we don't
understand how terrorists radicalize and recruit individuals. I
would say there isn't any one set profile or any one set
pattern, and that is why it is very difficult to counter. I
couldn't tell you whether seeing a trial in a civilian court or
a military commission has more effect in terms of
radicalization and recruitment.
What I can say is that certainly the trials by military
commissions have become--and Guantanamo as well--have become a
hot-button issue that is used on many of these sites constantly
to inflame opinion. But, at the end of the day, is the war on
terrorism going to end whether we try people one place or the
other? Amongst our implacable enemies, it doesn't matter. They
don't see civilian courts as any benefit. But I think as a
recruitment tool, though, we do see them constantly going back
to Guantanamo, to military commissions, and so on.
Mr. Jenkins. I think we make a distinction between those we
may apprehend abroad and how we treat those and under the
specific circumstances there. Although I think we can, within
the realm of even military commissions, guarantee a fairness.
If we are talking about U.S. citizens, we are talking about
people here in the United States, as I pointed out in my
testimony, the criminal justice system is working. These have
been successful arrests and successful convictions.
I believe--and this is a personal view--that there is a
utility in stripping these individuals of any political
pretensions. As I indicated in testimony before another
committee in the Senate when I was asked about Major Hasan, as
to whether he was a terrorist or not, I said he is a terrorist,
but the important thing is we have him on 13 counts of murder,
and that will be the basis for the trial.
So I think there is utility in removing all pretensions of
political from this and bringing individuals before a jury of
their peers and saying, you are not being prosecuted for your
beliefs. Beliefs are personal business. When those beliefs--how
one imposes those beliefs on others is a matter of community
concern. When that imposition takes the form of criminal acts,
it is a matter of the law.
So I think our ultimate defense against terrorist
recruiting is the application of the law.
Mr. Carney. Thank you.
Mr. Romero.
Mr. Romero. I very much appreciate your question. I must
say that I am delighted to be able to make this segue, because
it is the other passion that I work on quite extensively.
I personally have spent about 25 days at Guantanamo. I have
been there close to a dozen times observing the military
commissions. Let me be quite clear. They are a debacle. They
will never work. They have never worked. If we don't believe
that that is not going to inflame further incitement against
Americans, we are fooling ourselves. The laws that govern the
military commissions are a joke, even under the new revisions.
They allow hearsay evidence. They allow forms of coerced
evidence.
The most recent military commission, it just happened last
week where I had a colleague--I was away at another business
trip and couldn't go--where we are trying to charge a 15-year-
old boy who was videotaped crying, with his hands over his
head, charging him as an adult; the one in which we just kicked
out three reporters from the military commissions because we
don't want them to be covering it all that well. Astonishing.
If we don't think that breaking those basic rules which are
firmly established in criminal court is not helping inflame
further anti-American interests, we are fooling ourselves.
Unfortunately, the Obama administration has its head as much in
the sand on this issue as its predecessor administration. It
would do well for us to take up that issue in much greater
length.
Mr. Carney. Mr. Morris.
Mr. Morris. I am not sure my organization has taken a
formal position on that, but personally I could not agree more
that, for someone in America, arrested in America, they should
be tried in our criminal justice system. For us to move away
from the values and the Constitutional protections that this
country is built upon I think can only hurt our country and
help the terrorists.
Mr. Carney. Thank you.
Mr. Mudd.
Mr. Mudd. I am not sure I am the right person to comment on
the legal issues. Others have.
One clear point about ideology. This revolutionary opponent
wants to be seen on a par with us. We are the head of the
snake. We should never give them that courtesy. Jihad is an
honor for them, and they want to be terrorists. So my point
would be, where they are tried is in somebody else's inbox. You
and I both have a role in portraying who they are as they are
tried. This is critically important. They are chump-change,
murdering criminals. They murdered women and men who will never
see their children, and those children will never have a proper
family. They are criminals. So wherever they are tried, we
should be careful as a Government not to give the adversary
what they want.
The flip side, we have a great opportunity here. The
adversary has told us what they don't want. They haven't
signaled it. They have told us. They struggle to explain why
they murder innocents.
I would encourage you to look at what the second in charge,
Iman al Zawahiri, says in his only internet interview. First
question out of the box, it is his choice to take this
question, spring of 2008. It is a question from Algeria. How do
you explain the murder of innocents? They can't explain it.
Research data, polling data across the Middle East, Muslim
lands, will show you when there is an attack in Muslim lands
where Muslims die, people start to say, I don't like these
guys.
Mr. Carney. Thank you all.
Ms. Harman. How about one more short question?
Mr. Carney. I guess this could all be a one-word answer
from you all, but it is probably going to require more. Can al-
Qaeda or the terrorists or the jihadists win a strategic
victory through the internet?
Mr. Jenkins. No, they can't. Look, it is about building an
army of believers. While they have spread their ideology to a
certain degree, they are locked in their own little universe of
discourse. What will happen in the long run, I am persuaded, is
that the ideology will never be defeated thoroughly, but in
fact this movement will become increasingly irrelevant. When we
are up to the 250th message from Obama bin Laden or Adam
Gadahn, what relevance is that going to have to a young man in
the Middle East looking for a job or some kid in the United
States on the internet? The message by itself is not going to
enable them to achieve a strategic victory. It hasn't thus far.
Mr. Mudd was correct in pointing out they are complaining
about the failure of their messages to get through. They are
reaching out on this. So no strategic victory for them.
Ms. Harman. Does anyone disagree with that?
Mr. Mudd. No.
Mr. Hoffman. I wouldn't disagree, Madam Chair, but, at the
same time, I think through the internet--in response to
Representative Carney, no. But I think what our enemies have
constantly said, they have never said they are going to defeat
us militarily--has never said. He said they are going to wear
us down.
What worries me is that as long as they are still able to
replenish their ranks, as long as they are able to attract an
increasingly more diverse set of recruits, even in the ones and
twos--I think Mr. Mudd and Mr. Jenkins are absolutely right. As
a mass movement, al-Qaeda will never succeed.
I am not even sure that is al-Qaeda's goal. It is a very
unique type of organization. They are terrorists, and
terrorists are small in number, and they seek to win
disproportionate victories. I think what they see is just
eventually wearing us down. In that sense, it will be a
strategic victory, but this is something that sustains them.
Until we are more effective at choking off the supply of
recruits, this war will continue to go on.
Mr. Mudd. Two quick comments.
I agree with the comments from Brian Jenkins. I would
caution if we have another major event in this country we all
have a responsibility to keep cool and move forward. Because
they will be looking at that as forget about how many people
died. That will be the tragedy. The tragedy will be their
ability to exploit our reaction. The reaction will be more
dangerous in some ways than the action. Because they will be
looking for the next Ghraib.
I can tell you I talked to a lot of people who went to
Iraq. I am talking about terrorists. That was a devastating--
far more--it was devastating to this country. Forget about it
in terms of what we had overseas.
So I guess my one asterisk is we are still a country
struggling to manage how we respond to catastrophic incidents
of terrorism. They would like nothing more than to have us
overreact and give them some internet successes that would
really resonate, I think.
Mr. Romero. If I may just pick up one quick thread from Mr.
Mudd. While I completely agreed with his earlier points about
how we have shifted our expectations in our society after 9/11,
I think it is an enormous mistake to lead the American people
down a path where we have them believe that we can prevent the
next terrorist attack. To have a Federal Bureau of Prevention
is just not feasible or possible. It will happen. The next
attack will certainly happen. Our political leadership, I
think, have shrugged the responsibility by not talking
competently and clearly with the American people to prepare
them for the inevitability of a terrorist attack.
Anyone living in Israel or Britain or France or in the
Basque section of Spain, none of those residents believe that
there won't ever be another car bombing or another terrorist
attack. Yet we lull our Americans into thinking that we can
fight the impossible. I think the more we can inoculate the
American public on the inevitability of the next attack, the
better off we will be to keep our heads cool when it does
indeed occur.
Mr. Carney. Thank you.
Ms. Harman. Your 12 minutes have expired.
I can't resist, though, saying to Mr. Romero, we are not
shrugging our responsibility. One of the things this
subcommittee tries to do, and the historic occupant of this
space, as has been pointed out by our Chairman, is to change
that legacy and make it one where we are protecting our
Constitution, living our values, but also protecting our
country. That is a very tricky thing to get done.
I agree with you that there is no such thing as 100 percent
security. I never promised that. But surely we can use the
right tools consistent with our Constitution to make Americans
as secure as we possibly can. That is an oath we take, to
protect and defend the Constitution, but also to protect and
defend the security of the United States.
Mr. Dent for 5-ish minutes, like everyone else.
Mr. Dent. Thank you, Madam Chair.
Anwar al-Awlaki has been identified by our intelligence
agency, as many of you have pointed out in your testimony, as a
direct source of radicalization to a number of recent terrorist
events, even going back as far as 9/11. As you know, al-Awlaki
is located in Yemen, but he communicates with individuals in
the United States through the internet. Do we address on-line
radicalization efforts and threats from overseas differently
from how we address those domestic radicalization threats?
Go down the line starting, with Dr. Hoffman.
Mr. Hoffman. We address them differently. Of course, we
have the Voice of America, which is the main communications
arms of the United States Government.
I think one of our failings is we don't have a strategy for
countering radicalization overseas as well. If you look at, for
instance, Voice of America, over 90 percent of its budget is
dedicated to newspapers, radio, and television, traditional
means of communication. That is what I read every day and
listen to.
People my age, in their 50s, are not joining terrorist
organizations; and that is why I put up those two videos. It is
young people that they are trying to enlist; and it is young
people who are motivated, who are animated, who are inspired by
MTV-like presentations.
Yet this has been one of much frustrations. I think for a
brief period of time when Under Secretary Glassman was at the
Department of State we did have the beginnings of a strategy
and an effective effort to reach out to this core demographics
of terrorists, the youth. But it has fallen by the wayside, as
near as I can tell. That, I think, is the problem.
Rather than talking about censoring or monitoring the
internet, we should be doing a much better job and a much more
effective job at using the same medium to counter these
messages. Yet, at least from my perspective, we do extremely
little. It is not prioritized, and it has not been resourced in
this struggle.
Mr. Dent. Thank you.
Mr. Jenkins.
Mr. Jenkins. I would echo those comments.
I do think we have to make a distinction between what we do
overseas and what we do domestically. Overseas, we certainly
can and ought to engage in counterpropaganda activities. We had
an elaborate effort to do this in past struggles. We have not
had in the same attention, resources, strategy to do that this
time. We simply don't have the instruments. We haven't thought
it through. So we don't have what I refer to as a front-end
strategy. We pound on operational capabilities, but we really
haven't thought clearly how we try to break that cycle before
it comes to operational capabilities.
Domestically, we are going to be more restricted,
appropriately, in what we can do in terms of Government
information programs. Moreover, I believe that counter-
radicalization is best done at the local level. I think it is
entirely appropriate at the Federal level to examine the
ramifications of radicalization and recruitment to terrorist
violence, to understand how that takes place to improve our
comprehension of that process.
I would be wary of the Federal Government program to deal
with a Muslim American community as I would be wary of a
Federal Government program to deal with any other community.
This is best done at the local level. It is done by the
community itself. It is facilitated----
Mr. Dent. Like at the mosque level? When you said ``at the
local level'', who?
Mr. Jenkins. Not even at the mosque level.
What is interesting, what we do know about the recruiting
process, it is not a result of profound religious discernment.
This is not a religious conversion that is taking place. You
have got a lot of young people, as Dr. Hoffman correctly points
out, who are solving all sorts of personal issues and see all
sorts of personal opportunities in this to cross that line. So
it is not religious. It is done by the community. It is done by
the families. This is going to be largely invisible. You have
families intervening to keep sons and daughters from going down
dangerous paths. You have interventions by very close
acquaintances. That is something the authorities are not going
to have the knowledge of.
What you do have at the local level, however, is a reaching
out by the authorities, in many cases through the police, to
develop that understanding of their local communities, to make
those communities aware of what is taking place, that there is
recruiting going on, Somalis or others, and to provide an open
line for communications.
Now those local police, those local authorities, answer to
locally elected officials; and I think that is a much safer
place for that to take place.
Mr. Romero. I think, first, on the ability to intercept
international communications to Americans here, or vice versa,
we have granted that power already under the amendments to the
Foreign Intelligence Surveillance Act. In fact, we think we
have granted too great a power, where your communications,
should you go on vacation to Mexico and then you e-mail your
office or your wife, can be intercepted by law enforcement
officials without the proper judicial oversight that we would
otherwise see. So I think from the law enforcement perspective
and the legal powers----
Mr. Dent. Go ahead.
Mr. Romero. More importantly, I think to your point about
radicalization overseas, what perhaps is most--of greatest
fodder is the continued racial profiling domestically. Because
we look bad. When we pull a kid off an airplane because he has
a shirt with Arabic script on it, or we pull another one--that
is a client of ours in a lawsuit--or we have another kid pulled
off of an airplane because he is studying Arabic flashcards,
that becomes fodder for just how bad we are against Muslims.
So I encourage your committee, as you think about other
committees and other hearings, that the extent to which very
extensive racial profiling against Muslims and Arabs in America
is continued only hurts the efforts you are endeavoring to do
in homeland security in this committee.
Mr. Morris. To look at your question from a narrow angle of
service providers, the source of a video posted to YouTube
ultimately is irrelevant. If it comes from overseas or if it
comes from a domestic service, if it violates YouTube's terms
of service, they will take it down. So on that angle there is
probably not a distinction for American-hosted service
providers.
Actually, to answer something that Mr. Mudd raised, those
service providers in fact do have statutory protection if they
choose to take something down because it is offensive or
violates their terms of service.
Mr. Mudd. Just on that really narrow operational question,
if you sit at the FBI sort of executive table and the CIA
executive table on counterterrorism operations, the way the
services operate looking at terrorists through the internet,
there is no comparison, fundamentally different. Anybody who
thinks we have to have a domestic intelligence service, it is
not correct. It is not a good forum to talk about that. But
just--the foreign intelligence service focuses on knowledge and
doesn't spend a lot of time saying, what is the law in Timbuktu
for whether I can get somebody's hard drive? A domestic service
says, what is right to do? Then how do I provide security,
given what is right and lawful to do? Very different ways of
attacking problems.
Just quickly, I am not a big believer in influence
campaigns. They are hard to run, especially in a democratic
society. We leak a lot. We are operating in an environment
where, first, we don't have any legitimacy; and, second, these
guys are destroying themselves already through blood and mayhem
of 9 years.
2003 in Saudi Arabia, killed too many people.
Zarkawi had been something of a hero in Jordan. Suicide
bombers at wedding in Jordan in 2005. Instantly, people say,
what are we up for here? I mean, they sure don't like America,
but they sure don't understand when people come in and kill
their own.
Same thing happened in Iraq. We talk about the surge, which
was significant. But we had the internal communications, which
are now public, of al-Qaeda talking to Zarkawi saying, don't
kill all those civilians. We have been down this road. He
killed too many civilians, and the Awakening Council said,
we're done with these foreigners. We're going to kill them.
The last thing I would say, if you want to read people who
do this from a liberal society, Western society, you can get on
the web at Contest Strategy--that is the formal name for it,
Contest--from the British Home Office. Section 9 explicitly
talks about the counter-radicalization campaign from the Home
Office. You probably would be surprised of how open they talk
about going against what we probably would characterize as
domestic free speech. It is a great read, and the people who
run that program are a serious talent.
Mr. Dent. Can I just ask one quick question to Mr. Jenkins?
You stated in your testimony, Mr. Jenkins, that the
majority of the 131 U.S. homegrown terrorists identified by
Iran are native-born or naturalized U.S. citizens or illegal
permanent residents. Do you have any further breakdowns on
these numbers by category?
Mr. Jenkins. I do have a report which has a breakdown of
those for whom we have complete information on. Only a
handful--by the way, there are two or three that were illegal
in the sense that they had overstayed a visa or have entered
the country illegally.
The breakdown between native-born and naturalized?
Mr. Dent. Naturalized, correct.
Mr. Jenkins. It is in a report, and I don't have it at the
tip of my tongue.
Mr. Dent. Native-born, naturalized, and legal permanent
resident. If you could get that to us after the hearing.
Mr. Dent. I am way over my time, so I yield back.
Ms. Harman. Thank you, Mr. Dent.
Thank you to an amazing panel.
We have had a number of hearings on this issue, just to
point out for the record. Our last one was on community
outreach. We are very sensitive to the issue of racial
profiling. We are very sensitive to the issue of anti-Muslim or
anti-Arab rhetoric.
I joked the last time--it is not really a joke--but that
Jihad Jane was blond, with blue eyes, and that we should think
about people in the future--and Mr. Dent's constituent; let's
have it out here--from a variety of backgrounds with a variety
of views--I know Mr. Jenkins strongly agrees with this--who
will turn to violent extremism.
The issue for this hearing is, what role does the internet
play in all this? I think we had quite a full discussion of
what role it plays and what role it doesn't play and what the
dangers are of getting involved in censorship on the internet.
I was listening, and I actually agree.
On the other hand, I want us to be as creative as possible
in trying to get ahead of this problem and trying to--perhaps
you are right, Mr. Romero--reduce the haystack but to find a
way consistent with our values and our Constitution to use the
right law enforcement tools and intelligence tools to identify
that small number of people who would really be capable of and
intend to do us harm.
That is the challenge. I fear that if we don't work on
this, and we do have another major attack, the victims--in
addition to innocent civilians who will be murdered, the other
victim will be our Constitution. So it is extremely important
to work carefully ahead of the next problem to reinforce both
security and liberty.
That is where my head is. That is what I think we should be
doing. I think that that will overturn the legacy of this
particular room, where the occupants around this table, or at
least the Chairman of the committee, had a very different
vision.
So I thank you for appearing. Please continue to help us.
We need you, all of you; and we are going to call on you
regularly, as we already do.
Finally, I think that the way we win this challenge against
us is to win the argument; and the way we win the argument is
to live our values.
The subcommittee hearing stands adjourned.
[Whereupon, at 11:52 a.m., the subcommittee was adjourned.]