Tragedy in El Paso: Is This Domestic Terrorism, And Do We Need New Laws?

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society’s International & National Security Law Practice Group, was recorded on Friday, September 6, 2019, during a live teleforum conference call held exclusively for Federalist Society members.

 

Micah Wallen:  Welcome to The Federalist Society’s teleforum conference call. This afternoon’s topic is on "The Tragedy in El Paso: Is This Domestic Terrorism and Do We Need New Laws?". My name is Micah Wallen, and I’m the Assistant Director of Practice Groups at the Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today’s call.

 

      Today, we are fortunate to have with us Matthew Heiman, who is a Senior Fellow and Associate Director for Global Security at the National Security Institute. Matthew will be our moderator today, and he will be introducing our panel. After our speakers give their opening remarks, we will then go to audience Q&A. Thank you all for sharing with us today. Matt, the floor is yours.

 

Matthew R.A. Heiman:   I want to begin by thanking our two speakers today, Professor Bobby Chesney and Ken Wainstein. I’m going to give very brief bios on our speakers. You can see more about them on the website. But by way of quick background, Bobby Chesney is a professor at the University of Texas Law School where he holds the James Baker Chair. He’s also the Associate Dean for Academic Affairs there. In addition to that, he is the Director of the Robert S. Strauss Center for International Security and Law. In addition to Bobby’s academic work, he’s also had stints in public service. He spent time at the Department of Justice working on detention policy.

 

He also has served the intelligence community as member of the Intelligence Science Board. He also co-founded and is a contributor to lawfareblog.com, and I suspect that most people listening to this teleforum would be very interested. I encourage you to check it out because it’s a great resource for people that are interested in the intersection between law and national security. In terms of his academic work, Bobby focuses on constitutional law, national security law, cyber security issues, and a number of other topics all related to national security. So Bobby, thanks so much for making the time.

 

Prof. Robert Chesney:  Thanks for having me.

 

Matthew R.A. Heiman:  Our second speaker is Ken Wainstein. Ken is a partner at the Davis Polk law firm where he is within the litigation group. And his practice focuses on corporate internal investigations and civil and criminal enforcement proceedings. Prior to going into private practice, Ken had a long and distinguished career in the public sector. He was the Homeland Security Advisor to President George W. Bush. He was also the U.S. Attorney for Washington, D.C. And before that, he was the General Counsel and then the Chief of Staff at the Federal Bureau of Investigation. And then prior to that, he was a long-time prosecutor. So Ken, thanks for joining us today.

 

Kenneth L. Wainstein:  Thanks, Matthew.

 

Matthew R.A. Heiman:  So gents, let’s get right into the topic. We’re using the tragedy in El Paso as a clean board for the conversation, but with the number of mass shootings that have gripped the country over the last couple of years, and a number of them having a white nationalist element, there’s been an increase in discussions on Capitol Hill and other places around this idea of domestic terrorism and questions around these shootings are acts of domestic terrorism. So I thought maybe as a starting point, it’d be worth discussing what is domestic terrorism and how do you think about that terminology?

 

Prof. Robert Chesney:  Look. I think the first thing to say about this category or line drawing question is that we’ve got to bear in mind that, for lawyers, we tend to think about what the legal categories are as reflected in, say, statues. And we tend to think of it more specifically in terms of, well, how have we defined various federal offenses or state offenses? The average member of the public doesn’t necessarily think of it that way. There’s just the ordinary usage of these terms, and this sort of thing is not limited to confusion over what counts as terrorism. We see this when people talk about is that an act of war? Is it a war? There’s a lot of contexts in which the law has a term of art sort of approach to defining the category, and the public has a layperson’s understanding of the category.

 

So when we talk about whether this recent spate of violence warrants the label domestic terrorism, it’s helpful to first note that, yes, the legal definitions of terrorism in general, domestic terrorism, international terrorism, there’s much you can say about where it’s defined, where it’s not defined, and where the lines are drawn. That’s not really what the broad public political debate’s about. It’s about the more, if you will, the policy understanding or the policy relevant common usage of the term.

 

And here, at least for my part, when someone does -- engages in an act of violence in order specifically intending to either impact the course of government decision making in a way they prefer or directing it towards the civilian population, to the public, and trying to use fear that more of this will happen to others in the future in order to achieve some particular policy goal the person has in mind, as opposed to situations where the violence has to do with pecuniary gain or has to do with the derangement of the individual where it’s not quite fair to say that there’s a genuine policy outcome they’re seeking, and recognizing there can be blurring of the lines, but nonetheless that’s terrorism. It’s political violence, and we should not hesitate to call it as such.

 

Matthew R.A. Heiman:  Thanks, Bobby. Any thoughts, Ken, on this definitional question of domestic terrorism?

 

Kenneth L. Wainstein:  Yeah. I think Bobby sort of nailed it here, which is, in a way, it’s almost a false debate because I think anybody -- any fair sort of objective observer of the recent shootings where there’s clear evidence that the person’s actions were motivated by hatred of a certain group or type of people or was intended to intimidate the population and send a political message -- I think most people would say, yeah. That’s terrorism. That’s domestic terrorism. In fact, there is a definition of domestic terrorism in the U.S. Code, adopted by the USA Patriot Act. It did not criminalize domestic terrorism the same way international terrorism is criminalized with proscribed penalties, but there’s a definition of it. And it’s exactly what Bobby laid out, basically violence with an agenda, a political agenda.

 

So I think most people would say a number of these shootings were examples of domestic terrorism. And there were some that weren’t, just a completely deranged individual who just had some kind of personal problem and went on a rampage. That wouldn’t be terrorism, but anything like the situations where we see manifestos come to light in the aftermath of the shootings where it was clear that the individual was targeting particular types of people and were upset about particular trends in society, that kind of thing, clearly terrorism. The question really is is Congress going to legislate a new criminal violation of domestic terrorism. And that’s when we start having to look at the policy implications of it. In other words, it’s not a matter of the symbolic importance of calling that conduct terrorism and putting it on a par with, let’s say, killings by -- like the type we saw in 9/11.

 

It’s not a question of whether one is more bad than the other. Let’s just assume they’re both terrorism. Then the question is whether we’re going to criminalize domestic terrorism. And there are implications to that because then we’re talking about criminalizing conduct and authorizing the federal authorities to investigate conduct that, prior to the point of an attack—in other words, prior to the violence actually being undertaken—can be hard to distinguish from just run of the mill, constitutionally protected discussion of different views. And in this country, we’re allowed to have views that might seem extreme in the eyes of some, so long as we don’t go over the line from holding those views to acting on them and becoming violent. So I think that’s where the rubber meets the road in terms of this debate.

 

Matthew R.A. Heiman:  Thanks, Ken. I just wondered if you could maybe expand on that point a bit. In terms of if we’re talking about FBI and the authority that it has, how does it think differently about, perhaps, extremism that’s motivated by an international terrorism organization like Al Qaeda or the Islamic State versus the kind of extremism we might see from a white nationalist organization or an animal liberation front organization? Are the tools available fundamentally different? Is there a gap between the two?

 

Kenneth L. Wainstein:  Yeah. So it’s important to recognize that we have different tools. The FBI, law enforcement, and the intelligence community for that matter, have different tools at their disposal when they’re dealing with an overseas adversary, a foreign power, whether it be intelligence operations against a foreign government or intelligence or law enforcement investigations against a foreign terrorist organization. The authorities are stronger. We’re allowed to do more.

 

So one of the examples is, as I mentioned, there is a federal criminal law that prohibits international terrorism and material support to international terrorism and to foreign terrorist organizations, overseas organizations that have been designated by Secretary of State as foreign terrorist organizations. There’s the statute that criminalizes any support, be that financial support that you give to a foreign terrorist organization, be it training, even providing yourself as manpower or personnel to a foreign terrorist organization. That is a federal violation. And federal prosecutors or federal agents can investigate when they have a predication to believe that an individual is providing support of any nature to a foreign terrorist organization. They can initiate an FBI investigation, be it a preliminary investigation or full field, all out investigation. And a federal prosecutor can ultimately bring a charge.

 

There is no such comparable statute on the domestic side for the very reason that we just discussed, that that would mean there’s the possibility of criminally sanctioning somebody for just providing support maybe in the form of going to a meeting of a group that has been branded as a domestic terrorist organization. And it would be very difficult to draw the line between just exercising your right of free speech and right of association and actual engaging in knowing support of domestic terrorism. So that’s an example of where there are much stronger tools on the international side than on the domestic side.

 

And in sort of another category of tools is the sort of preventative intelligence tools. And in that context, once again, the intelligence community has the Foreign Intelligence Surveillance Act. It has national security letters and all these different types of investigative tools that are designed to allow them to learn about our adversaries, our foreign adversaries, and try to find out what their plans are, and try to head off their plans and prevent damage to the United States, be that through espionage or terrorism or whatnot. And those tools are stronger on the international side than they are on the domestic side where they’re covered under the criminal code and criminal procedure, where there are more safeguards, tighter oversight, greater limitations because they have to adhere to constitutional protections.

 

So in both of those sort of general categories, you have, both in terms of charges you can bring against somebody as well as the preventative tools the government can use to investigate conduct overseas versus domestic, there are much stronger tools on the international side than on the domestic side.

 

Matthew R.A. Heiman:  Following up on that point, Bobby, I’m wondering about what more could be done in terms of whether it’s additional legislation, which potentially runs into the issue that Ken is highlighting around First Amendment issues, or if we were to think more broadly in a preventative sense, what kind of intervention or deradicalization efforts could or should the government be undertaking from your studies? Are there any lessons to be drawn from what’s been done with regard to international terrorism and those kinds of efforts?

 

Prof. Robert Chesney:  First, let me say a few things sort of at the narrow statutory change level, and then let me shift more broadly as you did in the question towards the whole of government approach and, indeed, whole of society approach to dealing with violent extremism, which is obviously something we’ve been thinking about, not necessarily doing terribly well, but have been trying to do well in the international terrorism context for a while. On the narrower issue, just to drive home some of the points that Ken made, which I very much agree with, it’s helpful, I think, to think of there being sort of three areas, at least, where you could imagine somebody proposing legislative change. And indeed, we have some bills in some of these areas and talk of bills in the other.

 

The thing that raises the biggest constitutional obstacle is, just as Ken said, the idea that we would try to create a domestic parallel to the foreign terrorist organization designation list. And I won’t repeat what Ken said. I’ll just associate myself with his remarks and conclude that by saying I don’t think we should open that can of worms, that Pandora’s box. And one need only ask how one would feel about it if the designation authority’s in the hands of someone of your -- fill in the blank, whichever group you don’t agree with. But assume they have the power.

 

Separate from that, there is the other, as Ken noted, investigative area. It’s interesting because no one ever, ever talks about doing this, and I think it reflects something about where we are with our core commitments to privacy and liberty and associated political liberties in our country. But when the Supreme Court, in the early ‘70s, in the so-called Keith case involving a Fourth Amendment challenge to warrantless electronic surveillance of a guy who had been involved with a group that was very upset about U.S. foreign policy, the CIA in particular, and set off a bomb at a CIA facility in Ann Arbor, Michigan. And it came out during the pre-trial discovery that there had been warrantless surveillance for national security purposes.

 

This was a domestic national security scenario, no ties to any international organization, no claim that it was foreign intelligence. And the government took the position that there ought to be an exception to the warrant requirement in that circumstance, even if it was wholly domestic. The Supreme Court famously in the Keith case said, “No, no. The Fourth Amendment warrant requirement does apply here.” But the part that people tend to miss is the Court said Congress could, if it wished, create a tailored statutory warrant system tailored to the domestic national security scenario.

 

That’s where the probable cause showing would be, as opposed to a Title III wiretap where the predicate showing is all about the crime. That, of course, is what we eventually soon after that did in the foreign intelligence setting. That’s what FISA does. We never made a DISA. There was never a Domestic Intelligence Surveillance Act. And I’ve never seen anyone propose that we should have one. I still don’t see that now. I don’t think we even go down that road.

 

So that leaves the question of what else is there to be done that’s not so controversial? Are there not some good ideas, or at least decent ideas? And I would say that the best case for that is it’s similar to the bills we’ve seen with the McSally bill in the Senate, the Webber bill in the House. They vary slightly, but they basically create a federal violent crime of domestic political terrorism, not a designated organization offense, but just a new violent crime. And what would that cover that’s not already covered? I think there’s actually a very concrete answer to this.

 

In Title 18, in Section -- I’m sorry, Chapter 113B, the terrorism chapter, we’ve already got a lot of offenses there under the terrorism heading, some of which do apply domestically, especially if there’s a use of explosives. If explosives are being used, then you can charge 18 U.S. Code 2332a, the so-called weapons of mass destruction statute. People, because of that horribly misleading name, would not think at first blush that applies to garden variety explosives, but WMD as defined in the statute, I think, sort of unfortunately in terms of the branding -- it’s defined very broadly, far more than what people think of as actual WMD. There’s more than that. You could also get certain explosives-based offenses under 2332f.

 

And what is left out, and that’s what I’m driving at -- what’s left out is gun crime, so like El Paso, for example. If it’s a gun-based domestic terrorism attack, you may still be able to get a federal charge as a hate crime. If it’s an attack on U.S. government officials, that might get you somewhere. If it’s an attack that doesn’t have a hate crime type motivation but has some other type of political edge, if it’s gun-based and it targets random civilians, members of the population, then there’s certainly, at least very arguably, a gap in coverage. So closing that gap might make a lot of sense.

 

Now, the broader question was what else beyond law enforcement and charging changes and investigative changes -- actually, before we leave investigative changes, let me flag something really central to how we go about identifying and hopefully preventing, but at least charging after the fact in the international terrorism setting. And that is a robust use of confidential informants, undercover officers, and assessment of what’s out there in the open sources, especially social media. And if you look at the endless sequence of Islamic State material support cases over the past several years that have come out of national security division, invariably there’s a description of somebody, the defendant, tweeting or posting to Facebook or otherwise communicating in a detectable, visible way language suggesting that they seem awfully interested in supporting the Islamic State. And then they end up in conversation with a cooperator or undercover official, and the case often gets built out from there. It’s certainly possible.

 

I’m willing to believe we’re already doing it -- a huge amount of the same thing domestically oriented. But of course, as soon as you start doing that, the more you go that direction in the domestic sphere, the sharper the inevitable claims of entrapment or chilling of political organization, etc., free association. You’re going to hear more and more of that, and it’s right to be very concerned about those sorts of things. That’s the delicate balance between security and liberty at a fine point right there.

 

More broadly and away from all that, deradicalization has proven to be exceptionally difficult, and no one claims to have the secret sauce on that. In the Islamic extremism context, there are any number of programs that were not invented for counterterrorism purposes that are about reducing hate groups and turning—often it’s young men—turning young men in many instances away from violent, racist extremism, etc. Whether any of that’s scalable or could be better resourced, I’m not an expert in, but certainly, that’s something that bears looking at.

 

I think that the place where it does make sense to talk about change, where surely we could do better, is in surging resources. And that’s easy for me to say because I don’t have to allocate the resources that are scarce between this priority and other priorities. So I can sort of wave an academic hand at it and say, “Hey, let’s do all of the above and resource it well.” I recognize it’s cheap of me to suggest it’s just a matter of surging the resources.

 

But nonetheless, a resource surge in terms of investigative priorities and training priorities, including something we’ve learned here in Texas, doing more to ensure that there’s a robust system for people who are in a position to warn about a dangerous individual who may hurt themselves or hurt others, especially making sure we’ve got a robust system for the various entities that might get that call to know how to do a proper threat assessment and to pass the information on in an effective way. And I’ll stop there on that point.

 

Matthew R.A. Heiman:  Thanks, Bobby. That’s helpful. I think that leads to maybe a natural pivot back to Ken, and that is obviously the FBI and the intelligence community went through a pivot post 9/11 in terms of resource and training and methodology to deal with the threats presented by Al Qaeda and other international terrorist organizations. I’m just wondering, in the wake of these events, how do organizations like the FBI change the priority of the threats, and then how do they think about maintaining the appropriate engagement on all the other issues they have to deal with? Obviously, when the FBI focused on international terrorism, it didn’t stop worrying about the mafia or other things that it traditionally worked on. So I’m just wondering, Ken, as sort of an operational and a cultural matter, how do organizations like the FBI think about reprioritization?

 

Kenneth L. Wainstein:  Yeah. That’s a good question. And really, it’s sort of embedded in the broader question of how do we as a society politically and then, in terms of attitude, how do we make the adjustment that we saw made after 9/11? Now, 9/11, of course, was this catastrophic, sort of cataclysmic incident that was seared into everybody’s minds, and everybody was -- the whole country committed itself to making sure that we could prevent the next 9/11. That then translated into what was a pretty impressive shift of focus and priorities within the government. And you can agree or disagree with that shift in priorities. You can agree or disagree with some of the measures that were taken to meet those priorities in the years after 9/11.

 

But I think if you look back at it with a historical eye and say, “Boy, it really -- the country did really go to work. It rolled up its sleeves at all levels, state, local, and federal and international, and took on international terrorism in a way that it hadn’t before.” So the question has been -- and of course, part of that was, to your question, that was the Bureau. The Bureau got that message very clearly. I can tell you Bob Mueller was six days a week in the Oval Office very morning at 7:00 with the President. The President was beating on him and everybody else in the intelligence community and law enforcement community to make sure that everything possible was being done to prevent the next 9/11. So the Bureau’s reprioritization was part and parcel of that broader societal and political seismic shift.

 

And so the question recently has been are we at the same tipping point with domestic violence now, with the frequency of these high volume murders, with so many people dying in each incident, and with the rise in -- Director Chris Wray has been testifying recently about the increase in the number of investigations in domestic terrorism and hate crimes. Are we at a point now where, while we don’t have sort of the clarion call of the 9/11 attacks themselves but with this increasing threat, are we at a tipping point where we should put in place that same kind of reprioritization? And the UK has done that recently, just I think about six months ago or so. They raised I guess what they call right wing extremism or some part of domestic terrorism to a higher level -- the highest level threat. And then there were resource implications for raising that to the higher level on the threat matrix.

 

So the question is whether we should do that here. And I’ve advocated, along with -- Lisa Monica and I have written op eds about how we probably are at that point. Now, then, the question is how does that translate into resource reallocation? And that’s a tough one. I think Congress has to be involved in that, and the Executive Branch has to really get serious about it because there are tradeoffs. In the aftermath of 9/11, a lot of bank robberies didn’t get investigated as federal crimes anymore. Those were relegated to the state and locals because so many agents got shifted over to international terrorism. So there will be real life implications for shifting resources and man power within federal law enforcement to domestic terrorism.

 

But what I think you’re seeing, by the fact that we’re having this teleconference, I’m getting calls from reporters all the time about domestic terrorism. There’s this sort of drum beat out there for some kind of action to be taken. I think we’re going to see it. I think we are going to see a shift in priority and resources within the FBI and the broader federal law enforcement community. And I think the question is whether there should be legislative change that will sort of help to mobilize and sort of rally that effort.

 

And this is just to finish out my long answer here. A large part of the post 9/11 response was legislative. And the Patriot Act had very real life implications. It brought online, whatever, 20-some new statutory measures. But it also was sort of the, I think, packed a symbolic punch. It showed that Congress was going to get in the game and do something about it. And I think one of the stronger arguments for a domestic terrorism law—and I see all the problems with it—but I think one of the strongest arguments is that will sort of help demonstrate to the American people that this domestic terrorism is as bad as international terrorism. We’ve got to get as serious about domestic terrorism as we did about international terrorism 17, 18 years ago.

 

And as an example, we’re now outlawing domestic terrorism and calling it what it is, which is as much an evil as international terrorism. So I think that symbolic argument actually has weight, and I think we’ve seen in our past when our country has gotten serious about taking on serious threats a legislative response has been a critical part of that effort.

 

Matthew R.A. Heiman:  Thanks, Ken. And, Bobby, Ken touched on this, and that is the interplay between state law enforcement officials and federal officials. And I know those of us that live in and around D.C. are guilty of thinking D.C. is the center of everything. Obviously, you don’t live in Washington, D.C., these days. You’re in Texas. And I’m wondering if you could comment on both what have you seen Texas policy makers do in response to the El Paso situation in particular, and then also any thoughts you might have on federalism issues between state and federal authorities when it comes to grappling with these kinds of threats.

 

Prof. Robert Chesney:  It’s really interesting. I like the way you framed that because I, too, have -- being somebody who focuses on national security institutions and U.S. national security activities, I may be sitting in Austin all the time, but I typically have this sort of D.C. perspective on the world. But the domestic terrorism issue, of course, has been particularly -- it’s everywhere, but we’re certainly seeing it in a horrific way in Texas. El Paso, obviously, had a catalytic effect. So I can provide a bit of a snapshot on sort of what the policy making and policy brainstorming looks like from the local perspective here.

 

And, of course, it maters not just because it’s a comparative perspective, but of course there’s so much more state and local law enforcement across the country -- that just sheer numbers, if there can be an effective, or at least more effective, response from state and local law enforcement, the scalability of that is critical and helps to address the resource tradeoffs that Ken was noting will occur if we make it a still further priority at the federal level. So after El Paso, Governor Greg Abbott, along with Lieutenant Governor Dan Patrick and Speaker of the House Dennis Bonnen, convened a number of different groups to basically vet ideas is how I perceive it. There’s a domestic terrorism task force that’s got all the government officials and legislative officials you would imagine, both federal and state, convening to talk very specifically about that.

 

But then there was, separately, this thing called the Texas Safety Commission, which is still ongoing, which was a very diverse gathering of both those officials, the state legislatures both in our senate and house from El Paso, of course, and then a wide variety of experts in different areas. I was one of them, but I’m the least relevant person in the room. So I don’t feel like I’m tooting my own horn by talking about this. All the action is with everyone else. And the sorts of ideas that are getting brainstormed in this process, it’s not surprising what they are. There’s a bucket of issues that go under the heading of gun related issues, and it’s everything that gets people wound up, running both directions. And the politics surrounding that are extremely difficult.

 

And so under that heading, you have everything from discussion of regulation or bans for assault rifles or large capacity magazines to closing various background check loopholes to better gathering of information to ensure that the background check system, when it is used, it’s going to have all the relevant information about somebody. So that’s one set of issues, and I think the politics make that the hardest area to make -- no great insight by me, right? Everybody knows this. The politics make that a very hard area to make progress in.

 

Then there’s a bucket of issues that all have to do with the early warning system. And in the El Paso case, the person who committed the act, the perpetrator, the mother had known that the guy had gotten hold of a particular firearm. And she was concerned, and she did place a call to raise a red flag about it. And it was looked into, but no crime had taken place or was about to take place as far as the investigating officer or officers could determine. And so not much else happened, as near as I can tell from what’s in the public record.

 

This has led to a huge amount of conversation about having the right kind of 911 style, or even through the 911 system, threat assessment capabilities so that the knowledge that you can get, say, at the training center that the Secret Service runs to try to train public officials in such situations to be able to properly determine whether something is a serious threat or not -- that that gets propagated out and resourced appropriately so that when that call comes into a very small sheriff’s department or police department it doesn’t have to be the case that every single sheriff’s deputy or officer who gets such calls -- they’ve all been trained and have become expert assessors. We need to have at least regionally based, centralized, well-trained and well-resourced threat assessment capabilities so that those tips, which often are there—they’re only really visible in retrospect, but they happen— they might be vetted more effectively and might produce a safer outcome -- happier outcome for everybody on that front end.

 

The governor released a series of Executive Orders, which is rare for the governor. But Governor Abbot released Executive Orders yesterday that are very much about this. They’re all sort of under the heading of directing our department of public safety to work with others and insisting on better efforts in this respect. That’s a useful step forward. I do think that better assessing of tips, making better frontend decisions about where the threats are -- it’s not a panacea. It’s not a silver bullet, but there’s no question that we’re not good enough collectively at this.

 

And we could be so much better, and the investment of resources it would take to better at this is not the sort of scale that should prevent us from doing this. Every state ought to be looking at this, and the federal government ought to be looking at ways to support it with big grants as well so we could really propagate this.

 

Matthew R.A. Heiman:  Just one last question for perhaps both of you, and that is given the nature of how many of these actors are inspired -- so when we’re talking about perhaps the white nationalist folks that have committed these atrocities, it’s not because they’re part of an easily identifiable organization. But they may be radicalized through online content, maybe not entirely dissimilar from the way folks have been inspired by propaganda from the Islamic State and Al Qaeda. And I’m just wondering if either of you have a view as to what role the private sector should play or does play and should continue playing? And I don’t know if, Ken, maybe -- I don’t if you want to take a crack at that, and then maybe we could ask Bobby to weigh in as well.

 

Kenneth L. Wainstein:  Yeah. So you highlight what is really one of the fundamental problems here, that international terrorists come in a variety of different stripes in terms of sort of how they’re radicalized. Some of the are part of Al Qaeda central or ISIS central and get mobilized from there like foot soldiers. Others are home grown jihadists here in the United States who are radicalized largely by their time on the internet and maybe at some point during the process been engaging with like-minded people out in society. But in the context of domestic terrorists, it’s even more often the case that it’s a person who has gotten radicalized through their own --whatever experiences they have in life. But then a large part of it is just them online and internalizing some of the messages they hear online.

 

And that’s very difficult to deal with from an investigative and preventative standpoint. And Bobby talked about that and the question about how do you try to prevent that in a way that doesn’t constitute an incursion into First Amendment rights, both free speech and free association. So one of the things that you do see is the FBI doing these sting undercover operations. You see them in the context of international terrorism, and a number of them have resulted in arrests where they’ve somehow identified somebody who seems like that person might be heading towards radicalization and violence and then started talking about a plan for violence. And then you get that person to take an overt act or a step in furtherance of conspiracy to commit terrorism. And then they arrest them. And then of course, as Bobby said, that results in an entrapment defense.

 

And there’s been a good bit of controversy about it where people are saying, "Isn’t this really tantamount to the federal government creating a crime that otherwise might not have happened?" And you could see how that would be even a sharper debate in the domestic terrorism context where it might be seen as law enforcement sort of getting itself in the middle of a debate, a legitimate debate about different political positions. It’s tough one. And so that’s the reason why the investigative side is so complicated. So then the question is, well, what can we do about trying to prevent some of that radicalizing information and material on the internet in the first place or capitalizing on that information that’s out there to try to get clues as to who might be poised to commit terrorism?

 

And I think a good bit of pressure has been brought to bear over the last year or two on some of the big providers to take down content, stop providing support, malware protections and the like to some of the sort of online forums that have been used by some of the people who committed some of these acts and who are known to be sort of pedaling hate. Congress has been very active in that area, obviously. And I think there’s a good bit more to be done in that area because the more we face in this debate, the more we sort of acknowledge the limitations, both legal and political limitations on how far law enforcement can go, the more we’re going to have to rely on those who have control of internet, or parts of the internet, to try to limit some of that content that fuels the hatred and fuels the radicalization that leads to domestic terrorism. So Bobby, I know you had some thoughts about specifically how to deal with some of the providers.

 

Prof. Robert Chesney:  Well, you know one thing that was very interesting in this Texas Safety Commission process, we had representatives, really impressive individuals, senior people from all the big platforms. And one thing I took away from that discussion was that, to varying degrees, there’s at least now a substantial amount of effort at the big places where they do have the resources to do this sort of thing to, when they identify real threats, to try to push that information out to law enforcement and to be cooperative in the other direction when law enforcement comes looking to them with an issue that they’ve spotted. But what this quickly led the discussion to appreciate was that so much of the truly vitriolic, hateful stuff that’s out there that’s really radicalizing, it’s really not primarily going to be found these days on the big platform where, precisely because of all the pressure of recent years, a lot more care is finally being taken to try to minimize that, to redirect searches that are looking for one hateful thing towards something more deradicalizing, or at least to companion it that way.

 

And instead, it’s going to these fringe providers, these marginal providers, which are not subject to the same pressures, in some cases kind of fly by night. So then the dilemma is you’re probably not going to get very far. You’ll end up playing like a whack-a-mole game, pressuring one and then another to take more care that the ugly conversation keeps fleeing to some other additional spot. And then there is offsetting concern that if you drive it too far underground, you take away one of the best open source danger spotting tools that we’ve got, which, as I mentioned earlier, at least in the Islamic extremism context, very often the essence of the -- the lynchpin to the investigative discovery is the things people are saying in places where they can be spotted.

 

So there’s that classic tradeoff, I guess, between investigative equities where you want to see people out in some place and then disruption equities where you want to shut down these forums.

 

Matthew R.A. Heiman:  Great. Thanks, Bobby. Micah, do we have any questions on the line?

 

Micah Wallen:  We do have one question lined up, and we’ll now go to that first caller.

 

Gary Wheaton:  Hello again. This is Gary Wheaton up in New Hampshire. Basically, I missed the first part of the call, so I apologize if I go over some of this stuff again. It kind of reminds me of the RICO laws where they weren’t sure how to process the statute. It took them ten years to figure it out and they finally [inaudible 38:59]  to enforce the laws. It sounds like they want to do the same thing here. They want to pass a new law that creates -- makes it murder beyond murder, makes it terroristic as well. To me, the problem I have, obviously, is that terrorism is like a preach, right? It’s like a scare the heck out of everybody before everything happens.

 

So if a hate organization or whatever promises to kill people ahead of time and then has some way of proving that they will and terrorizing the population, then what do you do with that? Hate speech, violence, free speech, that kind of thing. I don’t see it. Now, post-murder, well, you can’t give somebody more than the death penalty whether they killed one person or a hundred people. So you can’t create a new terrorism law that says we’re going to put you to death immediately if you kill more than ten people or whatever you might want to do. That’s not terrorism. That’s criminal prosecution.

 

So my confusion is could prosecutors use this potentially in a positive way? Because in the end, what we’re talking about is copycat. We’re talking about people going out and saying, “I’m going to go kill a bunch of people, and I’m going to get my name in lights before I commit suicide,” that kind of thing. Can you prosecute that differently, maybe have some statute that says, “Well, we’re going to treat this differently. We’re going to not post this person’s name in the press,” but you can’t force that in the press. I just don’t see where a new statue is going to change this in any way, I guess, is my statement, non-question. But maybe you guys can respond to that.

 

Matthew R.A. Heiman:  Thanks, Gary. Ken or Bobby, do you want to respond to -- what I think Gary’s question is is would any new laws stop the copycat element? And there’s a certain, I guess, segment of these perpetrators that seek notoriety. And is there anything we can do to combat that? I think Gary’s sort of skeptical as to whether any new laws might actually change that dynamic.

 

Prof. Robert Chesney:  Sure. Well, on the copycat element, I think the caller’s put his finger on a really important element, not just for political violence but all mass sort of rampage type violence. You worry in many of these contexts that there’s an element of trying to go out in a blaze of glory that we obviously want to resist. I feel like in recent years, like with the Midland shooting more recently, I saw more effort to not spotlight the name as quickly or as much. But we’re never going to be able to regulate that out of existence. And to some extent, depending on the circumstances, it may be newsworthy, etc., so you really can’t make a general rule. So that can’t be the goal, the justification for any new Title 18 offenses that are created.

 

The caller’s right that, if it’s a completed act, we’re going to have -- if only in state law, we will clearly always have for any violent act that’s attempted or completed, we’ll have charges, and they’ll be weighty charges. So it’s not really about ensuring the person goes to jail the right length of time or faces a capital charge. It’s not that either. So what is it really about? And I think the affirmative case really does boil down to what Ken was saying earlier about the symbolism of an arrangement in which we take sort of this ultimate pejorative label of terrorism, and we use it to delegitimize and denounce and express the priority of enforcement on international terrorism very effectively because it’s so visible in the charges, which is not a standard that shouldn’t necessarily be viewed this way. The public’s going to take its cues and the media takes its cues from what are the labels used and the charging instrument.

 

And what’s the case for not treating domestic terrorism equitably? As Ken said it’s evil as could possibly be either way. If we’re talking about killing random people to advance your political agenda, I don’t particularly care what the purpose was. I don’t care if it was Islamic extremism or right wing extremism or left wing extremism. I want to see weighty punishment, and I want it roundly denounced and called what it is. So tightening up and expanding federal criminal law or state law -- that’s also a conversation we’re having here in Texas where we don’t have a criminal punishment that’s tailored just to that. I think it’s worthy from a symbolic perspective, and that’s an important function that our criminal laws serve. So that’s my thought on that.

 

Matthew R.A. Heiman:  Ken, any thoughts on the caller’s question?

 

Kenneth L. Wainstein:  I just want to pivot off the question about what would be the ultimate utility of a new statute? And number of people, a number of really thoughtful commentators have made the point that there are a lot of statutes on the books, both federal and state and local, that apply to these crimes. And once the attack happens, as Bobby said, if it’s one of these mass killings, the person’s going to get punished and get punished severely, probably by a combination of federal and state offenses. So a number of commentators have said, “Gee, why do we want to risk all of these constitutional problems and raise the concerns that a domestic terrorism statute would raise? Why would we want to do that when we already sort of have a full slate of these charges?”

 

And that’s true. It’s true for the committed act, post-attack. The question, though, is do we have a strong enough package of laws that allow us to derail a planned attack before it happens? And that, of course, the preventative focus was the focus post 9/11. The whole idea was let’s use the tools we have, the various charges that we have, to disrupt a plot, to derail a plan to commit the next 9/11 attack by taking off the couriers, taking off the people who were financing it, lock them up, use whatever it takes, visa fraud charges or material support charges or what have you. So the question is can we take that same approach to domestic terrorism to prevent these attacks before they happen?

 

And that’s why some have advocated a domestic terrorism statute with an accompanying material support to domestic terrorism statute. And the domestic terrorism statute in and of itself has symbolic value. I see that. But the problem with the material support statute is what we talked about earlier -- that then you start having to trust your government to distinguish between those domestic groups that they think are terrorist extremist groups and those that are not terrorist extremist groups but are just extremist in their views. And that’s a very difficult line to draw, and I just wonder whether, constitutionally, it would ever actually be drawable.

 

Matthew R.A. Heiman:  Thanks, Ken. Micah, are there any other questions in the queue?

 

Micah Wallen:  We do have another question lined up, and we’ll now move to the next caller.

 

Mary Ann McGrail:  Mary Ann McGrail, an attorney in D.C. It is the case that audience is very important to both domestic and international terrorists, which leads me to my question about ISPs to both speakers. To what extent have laws and enforcement been effective in holding ISPs responsible? Should it have worked that way, and how would you redirect or recast laws to be more effective in curtailing publicity for terrorists on the internet?

 

Matthew R.A. Heiman:  Thanks for the question. Bobby or Ken, I think the caller may be alluding to Section 230 of the Communications Decency Act, which obviously does not directly hold internet service providers accountable for the content that appears on them. Would changing that help this problem?

 

Prof. Robert Chesney:  The question assumes that we might want to use the prospect of a civil liability, exposure to tort litigation, or, I suppose in theory, maybe even a more dramatic intervention to create some stronger form of liability so that the ISPs -- usually, it’s more likely you would hear this framed in terms of the big social media platforms, YouTube or whomever -- for allowing user content from terrorists where they’re trying to draw attention to the disruptive thing they’ve done to be on their systems. If we go to the ISP level, it’s sort of even a step further removed, right? So Facebook is in a position to some extent screen what’s going on its platform.

 

 And then the ISP is sort of much more indirectly involved in terms of just transmitting the webpages when somebody wants to log in to Facebook, and the ISP facilitates the ability to see that. But whether we focus on the platforms or we focus on the providers, it would be a really, really dramatic step to take away the Section 230 protective shield. I don’t think we have enough reason to think that the tech companies are uncooperative and unwilling or uninterested in helping to deal with this particular problem to the point where it’s clearly indicated right now that we should do that. I think, actually, there’s a lot of reason, notwithstanding, that it’s obviously not 100 percent effective. But nonetheless, I think the companies are trying really hard to find scalable solutions, and scalability is the big question.

 

It’s not like they can have every single thing that’s uploaded to their platforms viewed by a person of sound judgement or otherwise, by any person. The volume’s vastly beyond what could possibly be done that way. So they’re working on, instead, automating what can be automated and having a post-posting red flag sort of network of ways in which people can raise alarm bells, and they can kind of quickly triage things, get that in front of someone to make a decision about whether it ought to come down. But I think they’re trying to do that, and so it doesn’t seem to me the case has been made for exposing them to more liability as a lever to make them try harder.

 

Matthew R.A. Heiman:  Ken, any thoughts on that one?

 

Kenneth L. Wainstein:  No, I think Bobby covered it pretty well.

 

Matthew R.A. Heiman:  Micah, any other questions in the queue?

 

Micah Wallen:  We do have another question lined up. Without further ado, we’ll move to that caller.

 

John Melko:  Hi, John Melko in Houston. I know we’re running out of time, so I’ll be quick. I guess I’ve heard a lot of good suggestions and a lot of good ideas. But in summary, it sounds like in part we’ve got a connect the dots problem again, just like we did on 9/11 where there were certain agencies that knew of threats or knew of problems that couldn’t get it to the right agency. We need to figure out a way how to fix that, I suppose.

 

       And then second, with regard to -- and one of your questioners raised this issue. How do you differentiate between some sort of organized hate group or terrorist organization versus an individual who may or may not be a so-called lone wolf or is just a nut with a gun?

 

And third, I don’t really care if it’s the husband and wife team in California or the guy in El Paso, are there screening mechanisms, or can be, within the bounds of the First Amendment to where these sorts of pre-event publications -- or I guess the El Paso is a bad example because that was either simultaneous or post-event -- trigger an alarm bell?

 

So with that -- I guess final point, if there is legislation we’re talking about, should it be limited exclusively to the feds? I guess what I’m thinking about is, driving in this morning or driving home last night, I heard that San Francisco city council has just decreed the NRA to be a terrorist organization. So you’ve got four or five million law abiding citizens who are now decreed to be terrorists.

 

Kenneth L. Wainstein:  I’ll just start with the connect the dots one and then turn to you, Bobby, for the rest. So you make an interesting analogy to the connect the dots issue that was so clear in the aftermath of 9/11. Now there, you had dots. You had data and information in one agency, which if coupled with that in another agency might well have lead to the discovery of the attackers before 9/11. And so that was very much an, okay, how do we get agencies to speak to each other? And then, of course, that was sort of the initial concern, and then there was the sort of broader whole of government effort to try to get all of federal, state, local and also our foreign counterparts working together and sharing information so that we could identify the dots, put them together, be able to detect patterns, and then act accordingly to try to derail terrorist plots.

 

Here, you’re correct that we have that same issue here. Here, though, it’s even more pronounced because those dots are often, as we said, somebody going on a particular website or whatever. And a lot of this is just individuals who become self-radicalized. It’s not necessarily information about a particular individual’s affiliation with a particular terrorist organization like it was pre-9/11, affiliation with Al Qaeda. They’re tougher dots to detect and therefore tougher dots to put together. But a number of people over the last six months or so have talked about the need to -- because of that problem, they’ve talked about the need to take a number of measures like work more closely with our foreign counterparts on sort of these what are more domestic extremist organizations.

 

So working with the UK authorities, the German and Dutch authorities, finding out about any connections between their extremist groups and individuals over here in the United States. Also, similarly, within the United States, you have the National Counterterrorism Center, which was a post-9/11 innovation to pull together all information about initially foreign terrorism, now expanding into domestic terrorism. And there’s a real push to try to put the same focus on getting all sorts of information from all parties, state, local, federal, international, about the domestic terrorism threat and try to make sure those dots are put in the same place so they can be connected.

 

Similarly making sure that the joint terrorism task forces around the country are focusing on domestic terrorism and making sure that they’re getting the information about domestic terrorists or potential domestic terrorists, both from state and local members -- because in every join terrorism task force in the country there’s state and local police members as well as FBI and federal authorities -- making sure that that information is all pulled together on a regional basis. So your connect the dots point is very relevant here, and in some ways, even more relevant here because those dots are even fainter than they were back post 9/11.

 

Prof. Robert Chesney:  And then I’ll take up this question about -- I’m still sort of reeling from the comment about the NRA. So I’ll have to do some googling in a second to find out what’s going on there. But to highlight the point I was making earlier which is that once we decide we’re going to go down the domestic path of identifying organizations and attaching sanctions to that, something we definitely do in the foreign terrorist organization context, and it’s delicate as can be in that setting -- once we go down that path domestically, it’s a sword with two edges. The potential challenges that introduced I think are obvious and you don’t need me to further explain.

 

Right now, I will say that notwithstanding that, as Ken noted, there’s an international even connectivity across organizations, groups, sites, speakers, sort of a diffused network, if you will, with varying degrees of organization. But what I don’t think we have, and I realize there could be quibbles. You could point to certain race focused violent gangs, for example -- but nothing analogous to say Al Qaeda, that is to say an organization that is in the business of trying to get people to kill others. That’s what they do, and that’s what they’re in the business of doing. And they’re actively plotting and training and setting things in motion. Thank God we don’t have that on the purely domestic side that we’re here to talk about right now, and I hope it stays that way.

 

When you have that, the level of danger increases dramatically in the types of things that you might need to do investigative-wise and in terms of the types of prevention oriented charges. It looks different. When what you have instead is a virulent ideology, and yes, there are networks that are propagating the ideology, but the actual acts of violence that have gotten us all on this phone call are, at the end of the day, all individual decisions, true lone wolf. I don’t mean sort of lone wolf. I mean straight up lone wolf. One person decided to go down this pathway.

 

I’ve not yet seen any instance or evidence to suggest that it was broader than that in any of the major instances that we would have in mind here. It’s as serious as could possibly be, but it’s not as serious as the organized threat context. And that, too, suggests we need to stay focused on individually oriented solutions and stay away from the group proscription and group designation process.

 

Matthew R.A. Heiman:  Thanks, Bobby. It’s time to wrap it up, but before we do so, I want to thank both Bobby Chesney and Ken Wainstein for a great conversation about a tough topic that will remain in the news for the months to come. And I want to thank The Federalist Society for hosting the discussion. So with that, I will hand it back to you, Micah, to close us out.

 

Micah Wallen:  Absolutely, and on behalf of the Federalist Society, I’d like to thank all of our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

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