TF 29: Left of Boom: Extremism and the Law

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News Anchor #1 [00:00:01] MONTAGE: Breaking news tonight from El Paso, Texas. At least 20 people have been killed, after a shooting rampage at a shopping complex...

News Anchor #2 [00:00:09] Thirty two year old Heather Heyer died when a car drove into counter protesters... 

News Anchor #3 [00:00:13] The Gilroy police have confirmed, that this is an active shooting situation... 

News Reporter #1 [00:00:18] Family friends and strangers continue to leave flowers for the victims of Saturday's Tree of Life synagogue shooting... 

News Anchor #4 [00:00:25] The city of Orlando is starting to say goodbye to the 49 victims lost in the Pulse nightclub shooting...

News Reporter #2 [00:00:32] This busy Texas shopping center becoming the latest mass shooting... 

John Bash [00:00:36] We are treating it as a domestic terrorism case and we're going to do what we do to terrorists in this country which is deliver swift and certain justice. 

Frank Figliuzzi [00:00:50] Welcome back to Talking Feds where prominent former federal officials gather for a dynamic roundtable discussion of the most important legal topics of the day. I'm Frank Figliuzzi, former FBI assistant director and an NBC News national security contributor. It's my honor to guest host for Harry Litman. He'll be back in this chair next week. 

Frank Figliuzzi [00:01:14] Today we're talking about violent extremist ideology and how the law copes or doesn't with crimes inspired by ideology. The horrors of recent mass shootings in Gilroy, El Paso and Dayton have many of us questioning whether existing legislation adequately equips law enforcement to prevent such acts and to sufficiently address violent actors when they are motivated by what they believe. 

Frank Figliuzzi [00:01:47] Fortunately we're joined by three former feds who have all had extensive experience in this field. 

[00:01:55] First Barbara McQuade has graciously joined us. Barb is the former U.S. attorney for the Eastern District of Michigan who co-chaired the Attorney General's Terrorism and National Security Subcommittee. She was also an assistant U.S. attorney in Detroit for 12 years and is currently a professor from practice at the University of Michigan Law School. Hi Barb. 

Barbara McQuade [00:02:18] Hey Frank, thanks a lot for having me. 

Frank Figliuzzi [00:02:20] Of course. 

Frank Figliuzzi [00:02:21] It's also my pleasure to welcome Mary McCord. Mary is a visiting professor of law at Georgetown University Law Center. She's also the former acting assistant Attorney General for national security and a federal prosecutor for 20 years in the District of Columbia. Thanks for being here Mary. 

Mary McCord [00:02:40] It's my pleasure Frank. Thank you. 

Frank Figliuzzi [00:02:42] And finally we're fortunate to welcome Malcolm Nance to Talking Feds. Malcolm is a counterterrorism and intelligence consultant for the U.S. government's Special Operations homeland security and intelligence agencies with extensive field and combat intelligence activity. He's also an author of several books most recently "The plot to End Democracy." Malcolm, Welcome to Talking Feds. 

Malcolm Nance [00:03:07] Great to be here. 

Frank Figliuzzi [00:03:08] All right we've got a lot of ground to cover so let's dive right in to first a high level discussion in our first segment before we then dig into possible solutions and proposals. So since we're focused today on violent extremist ideology it's going to be important that we first spend some time understanding those terms because if we're just talking about violence that would be a different show and there are plenty of laws to address violence and if you focused only on extremism that would imply wrongly that we think that ideas in and of themselves should be subject to legal constraints. 

Frank Figliuzzi [00:03:46] To be clear what we're talking about are ideologies that contain the often lethal combination of extremism plus violence. The kind of ideology that incites people to commit the kind of mass murder we saw in El Paso or in the bombing of the Federal Building in Oklahoma City or in the mass attacks of violent Islamic jihadists on September 11th. 

Frank Figliuzzi [00:04:11] The Oxford Dictionary says an extremist is a person who holds extreme political or religious views especially one who advocates illegal violent or other extreme action. And a UK government initiative that I'm a fan of called Educate Against Hate says extremism is the vocal or active opposition to our fundamental values including democracy the rule of law and respect and tolerance for different faiths and beliefs. And we all know violence of course is behavior involving physical force intended to hurt damage or kill someone or something. 

Frank Figliuzzi [00:04:53] And since we're defining terms this might be a good time to insert what we call our sidebar segment to help us understand what we mean when we use the terms domestic and international terrorism. 

Frank Figliuzzi [00:05:08] Today for our sidebar we're very pleased to have with us the Emmy Award winning film and television actor Bradley Whitford. I'm a big fan of Whitford's because the work he does transcends entertainment and includes Zeitgeist defining shows like his portrayal of deputy chief of staff Josh Lyman on NBC's The West Wing or his Emmy winning guest spot on transparent and of course his recent role as Commander Lawrence on a dystopian drama The Handmaid's Tale. Today Brad explains the difference in the US law between domestic and international terrorism.

Bradley Whitford [00:05:52] What is the difference between domestic and foreign terrorism under federal law? Many people are calling for white supremacist mass murder to be prosecuted as domestic terrorism. The U.S. Attorney for the Western District of Texas who will prosecute the El Paso shooter said they are treating the shooting as a domestic terrorism case. But what is domestic terrorism and how does it differ from international terrorism? Federal law defines both domestic and international terrorism as any violent criminal act intended to intimidate or coerce a civilian population, influence government policy, or affect the conduct of government by mass destruction, assassination or kidnapping. International terrorism occurs primarily outside of the United States or has an international scope, target or means. Domestic terrorism on the other hand occurs primarily within the United States. 

Bradley Whitford [00:06:53] The FBI Counterterrorism Division separately tracks domestic and international terrorism. Globally it has about 5,000 open terrorism investigations. 850 are domestic terrorism cases, about 40 percent of which involve racial extremists primarily white supremacists. The FBI has actually arrested more suspects in domestic terrorism cases than international terrorism over the last several years. 

Bradley Whitford [00:07:21] Given all this you might be surprised to learn that domestic terrorism is not a crime under federal law. There is a federal crime of acts of terrorism transcending national boundaries that carries punishments up to the death penalty. But there is no similar law for acts of terrorism within the country's borders. Domestic terrorism cases are prosecuted under other federal and state statutes. 

Bradley Whitford [00:07:48] For example Timothy McVeigh was tried and sentenced to death for the Oklahoma City bombing. Under federal laws prohibiting the use of weapons of mass destruction. Dylann Roof and Robert Bowers were prosecuted under federal hate crime and state murder laws for the attacks on the Charleston Emanuel AME Church and the Pittsburgh Tree of Life synagogue. In the wake of the El Paso shootings DOJ veterans have called for new legal measures that will help address domestic terrorism. They include Brian O'Hare, the president of the FBI Agents Association. Harry Litman former U.S. attorney, and Frank Figliuzzi, former assistant FBI director for counterintelligence. 

Frank Figliuzzi [00:08:33] Thanks very much to Bradley Whitford. You can follow Brad on Twitter @BradleyWhitford. 

Frank Figliuzzi [00:08:41] All right. Let's move from our definitions to our discussion. Mary, there seems to be a subjective nature to the concept of extremism it seems to be in the eye of the beholder and not all violent extremists ideology leads to actual violence. So are we even justified in trying to take a legal approach to extremist ideologies as motivators to violence?

Mary McCord [00:09:07] Our law has already taken that legal approach to extremist violence it's done it through the terrorism statutes that are on the books which in addition to criminalizing acts of violence criminalize especially acts of violence when motivated by a particular extremist ideology. And by that I don't mean a particular viewpoint, I mean an intent like we just heard in the sidebar to intimidate or coerce a civilian population, to influence governmental policy through intimidation or coercion. 

Mary McCord [00:09:38] So regardless of the ideology whether it's Islamist extremism as it was for example with respect to 9/11 and many of the terrorist crimes that we've seen prosecuted since 9/11, or whether it's far right wing extremism like some of the white supremacist motivated crimes we've seen recently here in the United States, or whether it's any other ideologically driven extremism when it crosses over into espousing certain viewpoints and ideologies into a radicalization toward violence where actual violence is solicited incited, that is when we leave sort of First Amendment protected speech and we really are talking about violence which is not protected, the Supreme Court has told us time and time again. 

Mary McCord [00:10:29] So I think it's important to pull away from viewpoint and the subjective nature of ideology and focus on what is the intent if the intent is intimidation or coercion. It's bigger than just a one on one crime. It's bigger than just a local issue or a state issue or a national issue it becomes an international issue and a matter of national security for the US. 

Frank Figliuzzi [00:10:51] And so we'll talk a little bit later about when that line gets crossed and when we discern that someone is moving down that path of violence as opposed to maybe just being aspirational. 

Frank Figliuzzi [00:11:04] One of the things that was an outcome of El Paso is that many of us are surprised to learn that domestic terrorism while defined in the American law isn't distinctly addressed as its own crime. I've talked to a lot of people who were shocked to hear that. Barbara you're a long time prosecutor. How does it work right now without having a specific domestic terrorism crime. How does it work if you're a prosecutor or FBI agent trying to get things done?

Barbara McQuade [00:11:36] It creates problems at two levels. One I think in terms of the actual work and another in terms of the public perception of the work and so in terms of the actual work it does leave gaps in the law when investigators and prosecutors find groups that are concerning, about planning acts of violence but they don't find a statute a federal statute that may be violated. And until there's an identified statute that can be violated the investigators and prosecutors can't open up a grand jury investigation. 

Barbara McQuade [00:12:08] Of course investigations cannot be based solely on First Amendment protected activity. But if there's not a crime on the books you can't really even investigate them and that causes challenges. I'll tell you just one quick story when I was U.S. attorney we had a case involving a militia group in rural Michigan that was plotting to kill police officers and we certainly wanted to investigate the group and we wanted to be able to arrest the group before they committed a crime. Frank you're probably familiar with the term left of boom where do signifies the attack. And if you imagine it on a timeline left of boom sometime before that attack and the FBI and U.S. attorney's offices always want to intercept violent groups left of boom before an attack occurs. But in that case it was solely a domestic group. They were anti federal government and we really had a hard time finding a federal statute on the books. 

Barbara McQuade [00:13:03] We ultimately did find vicious conspiracy which makes it a crime to levy war against the United States or oppose its authority by force. But it was a clumsy statute, it had an Orwellian name. We ultimately did charge the group under that statute and the judge dismissed the case before it went to the jury. And so there were definitely gaps in the law when you're trying to investigate purely domestic groups and then that's the actual problem and then in terms of the perception problem you run into this. 

[00:13:31] Where you refer to groups with an international nexus with ties to say al-Qaeda or ISIS as terrorists and then you refer to purely domestic violent groups as the active shooters, or based on their acts. And you don't call them terrorists and that causes problems too in terms of the moral equivalent of their conduct because by any measure what they're doing is domestic terrorism. I have to say I have to applaud the current administration which is referring to acts like El Paso and like Charlottesville as terrorism. When I was at the U.S. attorney's office I think the administration was always very reluctant to use the word terrorism because there was no actual statute. But colloquially I think people think of it as terrorism and I think to call it terrorism even if the ultimate charge might be technically something different I think is an effort to draw that moral equivalence. 

[00:14:25] Yeah I agree. I was pleased as anyone can be after a tragedy to hear the U.S. attorney in Texas after El Paso saying right away look this this is going to be looked at as domestic terrorism and I think it's important to say that from your example. I share frustration regarding cases I had to supervise where we were left with a big dilemma of whether to do what we called "knock and talk" to disrupt something we knew was going to about to happen or was being talked about particularly with militia groups because you do that knock and talk just to let them know we're onto you and then they get empowered when you can't arrest them and they feel like they're being harassed and abused and it makes its way around the Internet that you know we we blew off the FBI and you've got to you've got to make some decisions about when the violence might be happening or whether it's time to knock on and disrupt. 

Frank Figliuzzi [00:15:19] Malcolm. That's a good segway for you in terms of someone who's been a practitioner in the field and this whole idea of how to investigate violent ideology. The FBI Director Chris Wray has said on the Hill that the FBI doesn't investigate ideology they investigate violence and as we've been talking about the question is Isn't it too late if the FBI is waiting for violence to occur. So in your background experience what have you seen regarding successful interventions on the international terrorism side that maybe could be a moment implemented on the domestic side and this raises the whole question of the El Paso shooter if we switched his motivation to Islamic Jihad would there have been a different outcome. Would the FBI have been empowered to be in chat rooms and sites where they might have seen this planning take place. 

Malcolm Nance [00:16:14] I'm almost certain that had it been a jihadist that the FBI would certainly be investigating ideology. And since 9/11 one of the the core components of the national intelligence apparatus has not just been the collect against the target and collect against the organizational structures but certainly after 2005 between 2005 and 2010 there was a huge effort to go after the ideology and understand that the ideology was the driver of all of the acts. 

Malcolm Nance [00:16:49] In fact I wrote a book called "An End to Al-Qaeda" which was a very deep dive study of al-Qaeda's ideology and how that pushed the street level person into what we now commonly call radicalization. From that radicalization would lead them on to joining an organization or becoming a self starting terrorist which is what we saw al-Qaeda more from from the you know the core clandestine service type organization paramilitary to a disparate group of people who have weapons systems and just go out and do an act or a deed which gets them sort of membership into the group and allows them to be hagiographed after their death. Ideology despite what Director Wray says is always going to be a core driver. 

Malcolm Nance [00:17:41] I know you, know coming from the international perspective I got to use or against international terrorist groups national systems and intelligence collection methodologies. You just couldn't possibly imagine being used against an American citizen because of those misnomer as as Barb said earlier where people would say oh that's an active shooter or that's a militia man. And because they don't fall under the acts or and clearly defined under the statutes as terrorist. 

Malcolm Nance [00:18:15] There are intelligence resources that just can not be used you know or if they're used they're used exclusively by the FBI and the FBI itself doesn't have access to a lot of the analytical tools and resources that the National Counterterrorism Center or other intelligence agencies and apparatus would have because they are American citizens. And so once we can corral American citizens in their behaviors into the statutes as you know equal to being international terrorism then we'll have a lot more methodologies to collect against these these individuals not just wiretaps or you know the knock, knock and talks which you know I'm a big fan of. I think those disrupt American citizens who were essentially talking off at you know shooting off at the mouth. 

Malcolm Nance [00:19:12] But you know we don't apply that same standard to an American citizen that's joining al-Qaeda or ISIS. We, you know, I know the FBI does their knock and talks but because of the statutes there are resources that are used in the United States, offshore strategic assets the intelligence community have that the FBI has access to that we can't use against the militia group that may be planning the next Oklahoma City bombing. 

Frank Figliuzzi [00:19:41] So Malcolm raises a great question here and I think a lot of our listeners might be scratching their head at this point saying, well so what's behind this differentiation, what's what's the deal in our society where we seem to be very comfortable talking about another religion as extremist and violent. But when it comes to our own folks it seems we've we've got this huge gap. Mary, Barb can you weigh in here and just give us a brief history of how we got here how we got to this gap?

Mary McCord [00:20:09] Right. So a lot of this and a lot of the discrepancy has been driven of course by First Amendment concerns within the U.S. So for example a lot of the regime that that Malcolm was talking about has developed around our material support statutes which there are two of them and most people are familiar with just one and that is material support to a foreign terrorist organization. So this is a tool that has been used in more than half of the terrorism related prosecutions since 9/11 are brought under the statute material support to a foreign terrorist organization. 

Mary McCord [00:20:44] And what it requires is it requires a designation by the Department of State or the organization operating abroad. It must be foreign as a terrorist organization. So the criteria are it must be foreign it must engage in terrorist acts or have the capability or intent to engage in terrorist acts. And it must present a threat to U.S. nationals or to U.S. national security. So organizations such as al-Qaeda, ISIS, Boko Haram others are almost entirely Islamist extremist organizations. There are 16 organizations on the list. 

Mary McCord [00:21:22] There are few involving like the FARC in Colombia and some, a few others that are not Islamist extremist organizations, but the vast majority are because foreign organizations don't have First Amendment rights we're able to designate under U.S. law those foreign organizations as terrorist organizations. And therefore even a U.S. person in the United States an American citizen in the United States if they are providing material support or resources to that foreign terrorist organization that could be money that could be equipment that could be carrying out an attack on behalf of the foreign terrorist organization even here in the U.S.. 

Mary McCord [00:22:02] So think of things like the Pulse nightclub shooter in Orlando or the San Bernardino shooters pledged by up before they went on their shooting sprees. Those things would all be material support to terrorism and then can be investigated beforehand to try to be preventive. Now of course Pulse nightclub in San Bernardino those weren't prevented but there are plenty of others that have been based on investigations into whether an individual in the U.S. is providing material support to a foreign terrorist organization. We don't designate domestic organizations as terrorist organizations largely for First Amendment concerns because a lot of the speech that an organization might be involved in whether it's the KKK, whether it's Vanguard America, Identity Europa, Patriot Prayer some of the very far right wing ethnonationalists and white supremacist organizations engage in a lot of speech. In addition to some of their members occasionally engaging in violence but it would be very difficult to sort of differentiate within an organization between the protected parts of their expression freedom of expression freedom to assemble with others with the same viewpoint and the unprotected parts which are that advocating violence. And so I think that's one of the sort of historical reasons that we've seen the discrepancy. But that doesn't mean that we can't address more directly, the violence as we were discussing at the beginning of this program. Because when that ideology turns to extremism and turns to the actual incitement solicitation or engaging in violence that's not protected anymore. 

Frank Figliuzzi [00:23:47] That's helpful. Barb, so does this mean let's do a hypothetical here. If I'm in support of ISIS an international terrorist group and I decide I'm gonna rob some banks in the United States to help fund ISIS that I'm gonna be charged with material support to terrorism but if I'm part of a neo, American neo-Nazi group and I'm going to rob those same banks to support a bombing of a Jewish synagogue because of my neo-Nazi ideology that I'm going to be handled differently by the law and perhaps not even as stringently as that. Is that fair to say that we were going to look at those two scenarios differently. 

Barbara McQuade [00:24:30] Yeah I think you have to unpack a few things there. Number one of course robbing a bank is illegal so you could charge either of those individuals with bank robbery and so sometimes that's what happens in these types of cases. You all are familiar with the phrase the Al Capone theory of prosecution which refers to Al Capone's prosecution for income tax evasion because it was too difficult to prove that he was involved in gangland style murders and so sometimes you can just charge them both with what bank robbery. But if the purpose is to support a terrorist organization one foreign and one domestic just supporting the group there would be a distinction now there is a material support statute that covers domestic terrorism 18 United States Code Section 2339a. And if you know or intend your contribution to support an act of violence a particular crime then that can be charged. What's missing from the list of crimes though is a crime of domestic terrorism. So again there's a little bit of a gap there in the law but Frank the most directly answer your question if you simply want to make a contribution to the group to further its work by providing proceeds one to the foreign terrorist group that's on the designated list and another to a domestic violent extremist group. Then there is a difference there in how those would be treated. 

Frank Figliuzzi [00:25:54] OK so we've spent considerable time defining our terms understanding there's there's a gap here certainly between how we deal with international and domestic terrorism there's concern about free speech when hate speech becomes violent speech and moves to violence. So this might be a good time to launch into our second segment and get into some specific proposals options that might help us close the gap or treat these things more similarly and even more importantly allow law enforcement to get in and legally prevent violence from happening. 

Senator Lindsey Graham [00:26:33] Here. Come to order. Welcome. Hi director I appreciate you coming over. 

Senator Dianne Feinstein [00:26:39] It's been nearly two years since you're confirmed to run the FBI and so we have a lot of important topics to cover. 

FBI Director Christopher Wray [00:26:46] We the FBI don't investigate ideology no matter how repugnant. We investigate violence. It turns out a number of arrests we have through the third quarter of this fiscal year had about. Give or take. One hundred arrests in the international terrorism side which includes the homegrown violent extremism this year. This year. But we've also had. Just about the same number. On the domestic terrorism side. And I will say. That a majority of the. Domestic terrorism. Cases that we've investigated. Are motivated by some version of. What you might call white supremacist violence. But it includes other things as well. 

Frank Figliuzzi [00:27:35] So what are some proposed solutions to deal with what our law enforcement and intelligence tell us may be the number one threat we're now facing. So we've heard the FBI tell us this is not only growing but is likely the priority threat. We're looking at we've identified gaps. How do we deal with them. Mary is it time for a domestic terrorism law. What would such a law look like. How do we ensure we don't get into abuses that some claimed after 9/11. What are you looking at in terms of language and a proposal?

Mary McCord [00:28:09] So I think one thing to start out to be clear with this is the gap is very specific. The gap is really that there is no terrorism statute that applies to crimes of violence committed in the U.S. with the intent to intimidate or coerce if they're done with a firearm or with a vehicle. And if the intended target is not a U.S. government official because many people say to me there are crimes that apply there are crimes of terrorism that apply to domestic terrorism. And that's true but they operate in very limited circumstances. They operate when you're using or are attempting to use a weapon of mass destruction like a bomb. They operate when you're using a radiological or biological dispersal device. They operate when you're shooting down an airplane or attacking mass transit or when you're attacking a government official or government property. 

Mary McCord [00:29:01] Well we all know those are not actually the most common methods of committing terrorist violence in the U.S.. The most common method is through mass shootings using firearms and less common. But increasingly so are using vehicles like we saw in Charlottesville. And we've seen elsewhere a common tool of international terrorists as well over Western Europe and Southeast Asia. So that's where we have a gap and I say that because I've had people say to me there are statutes and they're right but they don't apply to almost every kind of terrorist crime that we see here including what we just saw in El Paso. 

[00:29:36] Well let me let me, you've raised something really important on this whole concept of weapons of mass destruction because driving a car into a crowd might kill eight or 10 people but on a given weekend in El Paso or Dayton where you have a hundred round magazines you could theoretically kill hundreds of people with a fully automatic or semiautomatic weapon so you're telling our listeners that the law does not look at automatic weapons as weapons of mass destruction. 

Mary McCord [00:30:06] That's correct. And you're absolutely right with the type of magazines and semiautomatic weapons that are available firearms that are available. They can cause as much destruction as a lot of bombs. But the way weapons of mass destruction are defined in the statute is an incendiary device. It would not apply to a firearm. And so that is that is one of the gaps that we're seeking to close here. Those of us who are advocating for a domestic terrorism statute. 

Mary McCord [00:30:31] But in order to avoid some of the First Amendment problems that we've been talking about I at least am not advocating for designating domestic organizations. What I have advocated for and what we've seen in some of the bills that have been introduced is simply making existing crimes of violence killing kidnapping assault with a dangerous weapon assault with significant bodily injury and attempts to destroy property where there's a substantial risk of serious bodily injury these violent crimes that already are crimes in every state when done with the intent to intimidate or coerce or to influence governmental policy through intimidation or course and regardless of the ideology behind them that is what these new bills and what I've advocated would become this new crime of it really I say terrorism within the territorial U.S. as opposed to domestic terrorism because for link all kinds of legal reasons that's sort of technically what it would apply to and it would still apply even if it was an Islamist extremism motivated or ISIS motivated crime because if it's if it's a crime of violence in the U.S. to intimidate or course it would qualify. 

Barbara McQuade [00:31:43] Can I just chime in on that. 

Frank Figliuzzi [00:31:44]  Barb, please. 

Barbara McQuade [00:31:46] Why I think it's necessary. Mary said that it would go after active shooters and people would drive a car into a crowd. Sometimes I hear critics say well we already have state laws that make those crimes. It would be murder and so problem solved right. But again it goes back to this idea of left of boom of wanting to prevent attacks before they occur and Frank as you know the whole mission of the FBI post 9/11 is to detect disrupt and dismantle threats before human life can be lost and so state law enforcement agencies in most parts of America lack the kinds of resources to do long term investigations the way the FBI can. They lack the national scope that the FBI has. They lack some of the tools that the FBI has such as search warrants in case of. Domestic terrorism across the country. And so enabling the FBI to investigate crimes domestic terrorism before they occur I think is the key to the statute that Mary has described. 

Mary McCord [00:32:47] And fully integrating the investigation of domestic terrorism into the national counterterrorism program and I think Malcolm probably could speak to that as well because that's what we're lacking now. 

Mary McCord [00:32:59] The National Counterterrorism Program is a program about prevention. And that's why tools like undercover online personas and sting operations are used in order to prevent. And we haven't seen that full integration. 

Frank Figliuzzi [00:33:14] So the law that you're proposing would include conspiracy. It would be a crime to simply plan these things we would not have to wait for the carnage we could actually get an investigative we when we see the planning phase. 

Mary McCord [00:33:28] Yeah. It would provide that sort of predicate for the FBI to open an investigation and use certain investigatory tools things like using undercover officers or undercover employees to go online and have engagement with others who may be planning acts of violence. Now you can conspire with an undercover officer under law but the officers could run sting operations. Now I know that there are a lot of people in this country that think that our law enforcement has already been too aggressive when it comes to preventing terrorism and don't really like sting operations. But these are tools that have been used historically across all kinds of different crimes. Think for example child sexual exploitation. The way that our law enforcement prevents child sexual exploitation is undercover officers. They go online posing to be pedophiles that get into chat rooms with other pedophiles and they run a sting operation so that when somebody thinks they're going to have sex with a 7 year old it's actually a sting operation. And we prevent actual sex with a 7 year old. It's the same type of techniques used in the terrorism prevention area. 

Frank Figliuzzi [00:34:35] So Malcolm you've studied terrorism you've not only studied it you've you've worked directly against international terrorists in terms of looking at this idea of having the law catch up and treat things similarly to international terrorism. What are the commonalities you're seeing are we are we on the right track are we seeing in things like El Paso white supremacy neo-Nazi groups the radicalization process. Are we seeing things that cause a bell to go off in your head and go look. That's that's not a whole lot different than the international side. 

Malcolm Nance [00:35:09] Yeah absolutely. Let me tell you a quick little story. When Anders Behring Breivik the Norwegian terrorist who went to you know set off with a car bomb in the center of Oslo trying to you know attack the central government then went to an island where he shot 68 children and an adult campers dead in an effort to essentially wipe out a political arm of his government. I was called that same day by a former student of mine who was in Norwegian intelligence and they sent me a translation of his manifesto as they were translating it into English and all of the principal players in his manifesto which by the way is now the same manifesto format that all of these white supremacist shooters around the world are using. 

[00:36:04] It was rife with American citizens who were extolling you know this international cabal of right wing extremists to carry out attacks against Muslims around the world to create this sort of crusader Vanguard. 

Malcolm Nance [00:36:22] And the first question I asked was am I dealing with an international terrorism problem that emanates from the United States. So you know for me I couldn't say yes. I mean you know people here in the United States have protected speech and all of the speech that they said was mainly public and this terrorist took that speech turned it into an ideology which today is now found in virtually all of our major active shooter situations right down to the format of the manifesto. 

Malcolm Nance [00:36:58] So I think that that Mary's idea of taking what we already have these international statutes allowing for the protected speech but also giving the FBI and law enforcement agencies the ability to intervene left of boom you know and I love the title you know terrorism against the United States or terrorism in the United States because it gives a great psychological boom to law enforcement and government before you even get the statute written. I train a lot of state homeland security agencies in homeland security intelligence and they all think they're going to be seeing ISIS. They all think they're going to be having gun battles against al-Qaida. And I tell them No it's the Posse Comitatus guy. It's the Timothy McVeigh. They'll go to guns in a minute right. They come right out and have a duel with you right on the street and it happens so much that no one notices it but they don't get the title of terrorist. And I think that even as legislation is moving forward and we fill these gaps I think the psychological operation of the FBI the state homeland security agencies even local law enforcement now coming out and saying this is a terrorist act. This person will not be referred to as a shooter. He will be referred to as a terrorist. Can psychologically impact almost to a certain extent like a national you know knock and talk where they will not want to be associated with that term because they're ideological enemies right. The immigrants the Muslims those people to them are terrorists. And they see themselves as the old phrase go right. They see themselves as freedom fighters because one man's terrorist is another man's freedom fighter. 

Malcolm Nance [00:38:55] But as we're trying to work our way towards a solution which allows them you know national resources to be brought down to the FBI and other agencies just the discussion of it could have a psychological impact of on an enormous scale with a lot of these guys who are you know you say your ex state militia man. And the discussion nationally becomes about you may be designated as terrorist. You know once you're protected speech goes into you know planning and buying ammunition for action before we even have legislation you may actually be breaking up you know some of that discussion which may lead to terrorist plots. 

Malcolm Nance [00:39:39] So there is a force multiplier here just in the national discussion of who is a terrorist what is a terrorist. And the entire concept of bringing up legislation. One quick aside this has actually happened before when I was still in the military I was a lecturer for the International Association of Bomb techs and investigators on terrorism. 

Malcolm Nance [00:40:02] And in fact there was a lot of discussion around the year 2000 of tagging ammonium nitrate in the United States. No laws had been passed but the discussion after Oklahoma City was so widespread that we caught a terrorist coming from Canada through the port in Washington state in a car on a ferry carrying his own ammonium nitrate because he thought we were tagging in the United States weren't. So this entire discussion particularly against American citizens who you know think that they're all patriots and people who are going to refresh the tree of liberty with blood just the discussion and designation that they could be equal to al-Qaida and ISIS. Could practically short circuit a lot of these activities that we're talking about. 

Frank Figliuzzi [00:40:59] This is a powerful point. It really is. This is not just about law enforcement tools and investigative tools this is about counter radicalization. And I think you're right if these groups and individuals see themselves now as being labeled as enemies of the United States and put kind of on a moral equivalency with ISIS and Al-Qaeda it could change the dynamic could change the discussion could certainly increase the FBI ability to recruit informants who who have you know who have a kind of a revelation that's what they're doing is inimical to the United States. Great great point. So I can already hear and we heard it almost immediately after El Paso. I can I can hear certain segments saying look don't let's not move to a knee jerk response. There were there were some action the Patriot Act some elements of Patriot Act in response to 9/11 that were exploitative or abusive too. This is a question for the whole group. How do we ensure if we move forward with legislation that we aren't building in some abuses or or so will civil liberties issues. 

Barbara McQuade [00:42:07] I think that the bills that Senator McSally and Representative Adam Schiff have proposed include some oversight provisions in them. They require reporting requirements to Congress and to the Privacy and Civil Liberties Oversight Board to ensure how they're being used. There is the protection already there. Frank as you know in so many of our terrorism laws and in the what's known as the DIOG Domestic Investigations and Operations Guide that the FBI uses that investigations may not be predicated solely on First Amendment protected activity. And I think that's very important that we're not becoming the thought police. It is not the group that's that's favored is investigating and prosecuting a group that is disfavored. It is a focus on conduct and not an association. And I think even if we were to pass such laws they would ultimately be found unconstitutional. One of the leading cases on the material support statute for foreign terrorist organizations where there was a challenge for providing to some designated groups legal advice and training on how to be an advocate to change laws. That was upheld with regard to foreign terrorist organizations. But in that opinion Justice Roberts wrote that he believed such a law would not pass constitutional muster if it was focusing on solely domestic groups. So I think we have to be mindful of protecting our First Amendment speech and assembly rights. But I think by focusing on conduct as opposed to association we can do that if we're careful. 

Frank Figliuzzi [00:43:45] Mary your thoughts. 

Mary McCord [00:43:47] Sure. I mean you know I've been talking about this for a couple of years and I've met with a number of civil rights and civil liberties groups to hear out their concerns and you know they are very concerned that and this is based on sort of you know a long standing mistrust of law enforcement and in particular the FBI dating back to various abuses of several dozen decades ago. They're very worried that any additional sort of statutory tool that we provide will be misused by law enforcement and targeting the wrong individuals the individuals who are not actually a threat. And that's why you're seeing these oversight provisions in the draft statutes the Privacy and Civil Liberties Board was created after 9/11 to review a lot of the surveillance programs that came into public light. And it's a bipartisan committee reports to the president and has issued reports that really brought a lot of transparency into what our government has done as a means of surveillance. And so this would be a different mission for them. But I think the idea of having we call it the P-club Privacy and Civil Liberties Oversight Board to sort of review how a new terrorism statute is being implemented over the course of the first several years could be very helpful. Reporting to Congress I think would be helpful too and Barb mentioned this but be very specific about this. Have the FBI report on a year to year basis how many investigations are being opened up under the authority of the statute. How many are resulting in actual prosecutions what are the charges what is the result and more importantly what are the categories. I don't expect. Believe me I come from a career in law enforcement and really kind of hated Congress getting up in our business all the time. So I don't expect them to require the FBI to report on every single investigation you know with every detail but categories of investigation. 

Mary McCord [00:45:44] Is it white racially motivated violence. Is it animal rights extremism. Is it Islamic extremism. Is it in our anarchist extremism. And by reporting in categories the FBI will be required to essentially you know show its hand in terms of where is it prioritizing its resources. And right now FBI Director Wray and assistant director Mike McGarrity have both said that you know the white supremacist threat is the greater threat. That's where they're seeing most of their domestic terrorism investigations are mostly white supremacists investigations and most of the deaths from terrorism in the U.S. in recent years have come from domestic extremist causes which overwhelmingly are white supremacist and white nationalist extremist causes. So if the reporting were to show that the FBI were putting its resources to an area of extremism that is not where the real threat exists then I think that would be very obvious not just to Congress but to the American people and pretty effective oversight. 

Frank Figliuzzi [00:46:46] You know this this sounds doable and I, Barb's mention of the DIOG the domestic guidelines for the FBI almost made me cringe with flashbacks because there is extensive and I think the public doesn't know this or fully appreciate it because it is sensitive but there is tremendous oversight already and requirements of when you can open a preliminary inquiry when you can open and inform it when you move to a full investigation and extension requests being documented progress being required and supervision at all layers in the field and headquarters so I do think it's doable and I think reporting is an important part of that. So today most of our discussion has focused and in fact the national discussion after El Paso has focused on the law enforcement solution. The government solution. Criminal law proposals. Let let's just close out our discussion by touching on something else and asking ourselves is there another way to look at this in additional way to look at that involves the private sector and I'm talking about for example what we saw after the horrible tragedy at Sandy Hook and the Newtown Connecticut school shooting where parents sued a gun manufacturer. Is there a way to make it painful on the domestic side and the private sector for people to host Web sites or chat rooms. What what's the private sector role in all of this?

Mary McCord [00:48:11] Well I'll take a stab at that first. I think there's a couple of things going on there. You know civil liability because of the Communications Decency Act is very circumscribed when it comes to holding Internet service providers accountable. And we're talking about like social media platforms accountable for violence that might be incited or encouraged using their platforms. And that's an area of controversy and a lot of people are talking about whether that civil liability protection. Right now they're basically insulated from civil liability lawsuits such as you mentioned. They're not insulated from criminal liability so that means if a social media platform or an Internet service provider knows and has the information to know that its service is being used to incite violence is being used to actually do something that's not protected speech and put aside for a minute that a private company is not bound by the First Amendment anyway they can take down any content they want. But the question is could they ever be criminally liable. And I think the question is yes if they if they know that their platform is being used to incite violence and they're living it up there and they have an intent for it to stay up and be available there's always potential criminal liability. But I think you know those are bulky. Those are those are not the first line tools that should be used. When I was the principal deputy assistant attorney general for national security I had meetings with a lot of different social media platforms to help educate them about just how misused their platforms how much ISIS and al-Qaeda had misused their platforms to encourage incite violence. And it took it took a couple of years but they got much more proactive in taking down that content. And I think they've lagged behind when it comes to the domestic terrorist threat the white supremacist threat the white supremacist misuse of their platforms. I think they're starting to have an awakening there. We're starting to see more activity there certainly in the last six months to a year. And so I think more of those discussions. You know frank discussions between not only government and the private sector social media about the threat and how their platforms are being used but pressure frankly also from the users of these platforms and how the American public and the international public who who has you know Twitter accounts and Facebook accounts and and so on and so forth they should really be demanding attention to this issue. 

Frank Figliuzzi [00:50:35] It's almost goes back to Malcolm's point of kind of a counter radicalization psychological impact. Note no service provider worth a darn wants to be labeled as some kind of enabler of terrorism so something to watch. 

Malcolm Nance [00:50:47] You know one of the things with you know having social pariah status by these web providers who allow some of these things to stay off even though they're their free speech you know like you say free speech does not apply to the Internet. You know these private providers. YouTube is a good example of that. There is an enormous amount of of of information there and videos and Web talk that in any other group in the world outside the continental United States would have been targeted by U.S. intelligence right. As as you know terrorists ideology and radicalization training tools. I mean you know we did a lot of counter ISIS material that was being content that was being generated in the United States shared in the United States. 

Malcolm Nance [00:51:39] And the providers took that doubt until there's a public outcry and I think El Paso was step one of that. These providers have got to see they may not be actually you know they may be criminally liable but for the most part no one's putting plans on the Internet. They're just talking about their new world order. But as they're taken down in fact from the intelligence perspective I like the idea that they're all going to get. I like the idea of if they're going to go on to discuss you know or and these are you know with this channel lies is there a radicalization pipeline to an easily collectible you know space for academics and intelligence and law enforcement and they need to know that there's that old saying that you know we have in the international counterterrorism world about you know about being arrested in the United States for conspiring to work with al-Qaeda or ISIS. If you're talking to al-Qaida or ISIS you're talking to the FBI. You are not talking to ISIS. 

Malcolm Nance [00:52:46] And I want these people who are planning this who think that they're going to we launch the Fourth Reich in the New World Order here. It's not the Southern Poverty Law Center that's going to be coming for you anymore or the any defamation league. It's going to be all of us. 

Frank Figliuzzi [00:53:01] Well this is a great point because even even since El Paso there have been reports of up to two dozen arrests since then simply for people in the planning or even exploration stage and merely because the FBI too thinks the FBI opened what they call a threat assessment to take a hard look at it folks who might be doing this and then secondly the public is far more willing to come forward and report concerns and it's really resulted in almost a disturbing number of takedowns since El Paso. 

Frank Figliuzzi [00:53:33] This has been a great discussion of a vital topic. One can only hope that our lawmakers during their summer break right now are having an engaging in this same kind of discussion. It's been helpful for me and I hope it's been helpful for our listeners. We close out talking Feds with a segment we call five words or fewer. And this is where we take a question from a listener previously submitted and each of us have to answer in five words or fewer. Those of us in the legal and law enforcement professions and intelligence often have difficulty doing that as we speak we speak in and watch larger spaces. 

[00:54:14] Let's let's give it a shot though. Our question today comes from Penny in Michigan who writes Hello Talking Feds she says, w\ill the intelligence agencies refuse to comply with Attorney General Barr's new declassification powers. There's a lot there. This is of the president giving you know in the aftermath of the special counsel inquiry the president telling bar Hey I want it. I want a look at the origins of the special counsel case and I want every agency to declassify everything and give it to you so you can figure out what happened. But let's kick off our five five word responses with Barb. 

Barbara McQuade [00:54:54] No but resign and tell. 

Frank Figliuzzi [00:54:58] Wow OK. That's what we're hoping for a big statement to be made by certain intelligence agencies may be optimistic. Mary. 

Mary McCord [00:55:09] I'm going to be a little bit more positive here. I'm going to say I trust the intelligence community to do the right thing is what what the inference I'm drawing is. 

Mary McCord [00:55:21] Find a Way. 

Frank Figliuzzi [00:55:22] Find a way. Malcolm? 

Malcolm Nance [00:55:24] My five words are Oh hell yeah they will. They're not gonna play this game. 

Frank Figliuzzi [00:55:26] All right. I guess it depends on whether the head of the intelligence agency is a Trump appointee or not. I'm going to I'm going to give you my five words which is they will only partially comply. 

Frank Figliuzzi [00:55:42] I'm hoping that they push back and that they they never give up investigative techniques methods that could endanger lives or singular sources. Look this has been a wonderful discussion. I want to give my personal thanks and I know on behalf of Harry, he thanks Barb Mary and Malcolm for taking time out to share our thoughts with our listeners. I hope our listeners have enjoyed it and take taken away some some action items even perhaps for their own elected representatives. 

Frank Figliuzzi [00:56:19] If you like what you've heard, please tell a friend to subscribe to us on Apple podcasts or wherever they get their podcasts. And please take a moment to rate and review this podcast. You can follow us on Twitter. At talking Fred's pod to find out about future episodes and other Fed's related content. You can also check us out on the web at talking fed scum where we have full episode transcripts. Submit your questions to questions at talking Fed's dot com whether it's for five words or fewer or general questions about the inner workings of the legal system for our sidebar segment. Thanks for tuning in. And don't worry as long as you need answers the feds will keep talking. 

Frank Figliuzzi [00:57:09] Talking Feds is produced by Jennie Josephson. Dave Moldovan Anthony Lemos and Rebecca Lopatin. David Lieberman is our contributing writer production assistance by Sarah Phillipoom. Special thanks to Bradley Whitford and thanks to the incredible Philip Glass who graciously lets us use his music. Talking Feds is a production of Dalito LLC. I'm Frank Figliuzzi.