Now in Legal Rebels:
Posted Jul 01, 2012 10:00 am CDT
Gordon Lederman, chief counsel for national security and investigations of the U.S. Senate Homeland Security and Governmental Affairs Committee, and Kate Martin, director of the nonprofit Center for National Security Studies, ponder how we should weigh security against liberty. Their essays are part of a forthcoming book, Patriots Debate: Contemporary Issues in National Security Law. The book—edited by Harvey Rishikof, Stewart Baker and Bernie Horowitz—is scheduled for publication this summer by the ABA Standing Committee on Law and National Security, which invited both writers to address coerced interrogation.
Homegrown terrorism is a major national security threat to the United States in the 21st century because of the combination of violent extremist ideology—especially violent Islamist extremism and its suicidal terrorism—with the Internet accelerating an individual’s radicalization and with the proliferation of technology enabling an individual to cause mass casualties or widespread disruption. In other words, the scope of the insider threat to the United States in the 21st century is virtually unprecedented—there exists the potential for an individual within the United States, segregated within his or her own Internet community of sympathizers, to radicalize to violent extremism and then to utilize modern technology to kill millions of people or to hobble critical infrastructure. This insider threat requires a greater emphasis on preventing potentially catastrophic attacks before they occur.
The attacks of Sept. 11, 2001, heightened America’s consciousness to the threat posed by violent Islamist extremism. “Violent Islamist extremism” refers to the ideology advocating creation of a global state that would impose the most radical version of Islamic law and the use of violence against non-Muslim military personnel and civilians and even against Muslim opponents of this ideology. To recruit adherents, violent Islamist extremism utilizes a narrative that the West, led by the United States, is at war with Islam. The process by which individuals adopt violent Islamist extremism is commonly called “radicalization.”
Violent Islamist extremists demonstrated on 9/11 and in subsequent plots that they seek to kill large numbers of U.S. civilians domestically, and al-Qaida leadership has sanctioned the use and pursued the development of weapons of mass destruction. Moreover, the 9/11 attacks showed violent Islamist extremists’ willingness to commit suicide while attacking—thus making them difficult to deter. These characteristics make violent Islamist extremism the most dangerous terrorist threat to the United States. Indeed, the Obama administration has identified this threat—which it calls “violent extremism and terrorism inspired by al-Qaida and its affiliates and adherents”—as the “pre-eminent” violent extremist threat to the United States.
The 9/11 hijackers came from outside the United States to attack. During the initial years after 9/11, the U.S. government assumed that the United States’ experience as a melting pot of immigrants pursuing the American dream was a bulwark against U.S. citizens—native and immigrant—radicalizing to violent Islamist extremism. This assumption seemed generally correct because there were only 21 cases of homegrown violent Islamist extremism—that is, terrorist attacks or plots by U.S. citizens, permanent residents or visitors radicalized largely within the United States—from Sept. 11, 2001 until April 2009.
But since May 2009, there have been 32 cases of homegrown violent Islamist extremism. Two of these post-2009 cases have resulted in deaths on U.S. soil. On June 1, 2009, Carlos Bledsoe killed one service member and wounded a second at a military recruiting station in Little Rock, Ark. And on Nov. 5, 2009, 12 service members and one Department of Defense civilian were killed and 32 wounded at Fort Hood, Texas. Army-trained psychologist Major Nidal Hasan, who reportedly had radicalized to violent Islamist extremism during his military medical training, is being court-martialed for the attack. Other notable plots have included one in 2008 led by Najibullah Zazi to attack the New York City subway system and the attempt on May 1, 2010, by Faisal Shahzad to detonate a car bomb in Manhattan’s Times Square. The vast majority of these cases have not involved plans for suicide, but Zazi and his fellow plotters did plan their attack as a suicide mission and several Americans who joined the al-Shabaab terrorist group in Somalia reportedly became suicide attackers there.
To be sure, these cases of homegrown violent Islamist extremism represent a tiny percentage of the estimated 6 million Muslim-Americans. Moreover, as Presidents George W. Bush and Barack Obama have stressed since 9/11, the United States is not at war with Islam but rather with adherents to an ideology that perverts it. However, this upward trend in cases is worrisome particularly when combined with the role of the Internet and the proliferation of destructive and disruptive technology.
The Internet has facilitated radicalization to violent Islamist extremism and resulting terrorist activity. To be sure, the Internet has provided billions of people with access to information, and social media has played a critical role in democratic revolutions across the world. However, the Internet has also enabled radicalization, with violent Islamist extremists becoming adept at using the Internet to spread their propaganda. Violent Islamist extremists originally used password-protected forums, but they are now present on mainstream sites such as YouTube. The Internet enables individuals who are vulnerable to radicalization to find violent Islamist extremist material easily and to self-segregate and interact only with individuals who share that ideology—and in the privacy of their own homes.
To be sure, homegrown violent Islamist extremist plots to date have not involved weapons of mass destruction but rather conventional explosives and firearms. Of course, firearms can cause significant casualties, such as the terrorist attack that killed 168 people in Mumbai, India, in November 2008. But the proliferation of mass destructive and disruptive technology enables even a single individual to wreak havoc domestically. For example, a single terrorist with microbiological training and access to a laboratory with dangerous pathogens—or equipment enabling the synthesis of a new pathogen—could release a pathogen that could kill millions. In addition, an individual with cyberskills could cause extensive damage to infrastructure and even loss of life through a cyberattack, such as by interfering with “supervisory control and data acquisition” systems, which are computer systems controlling the underpinnings of modern society such as electrical power transmission, communications and airports. An individual could also gain access to radiological material—such as that held by hospitals for medical purposes—and create a “dirty bomb” that renders several city blocks or larger uninhabitable and sow panic. The vector of technological development thus continually increases the power of an individual to cause mass destruction and disruption.
The result of the combination of violent extremism, especially violent Islamist extremism, the role of the Internet, and the proliferation of destructive technology is that the government must increasingly emphasize prevention of homegrown terrorism. This task is complicated by the fact that, although an overall four-stage model of radicalization to violent Islamist extremism does exist, individuals who have radicalized have not necessarily followed the model’s sequence of stages, and an analysis of homegrown terrorism cases does not reveal a profile to predict who will radicalize except that homegrown terrorists are predominantly male and approximately two-thirds are younger than 30.
Immediately after the 9/11 attacks, Federal Bureau of Investigation Director Robert Mueller declared that the FBI—which had previously focused on investigating terrorism after its occurrence—now had the top priority of preventing terrorist attacks. To do so, the FBI needed to reorient itself from prosecutions after an attack to an intelligence-driven effort to detect and dismantle terrorist threats prior to an attack. For example, Mueller charged each of the 56 FBI field offices with “domain awareness,” defined as “a 360-degree understanding of all national security and criminal threats in any given city or community. It is the aggregation of intelligence, to include what we already know and what we need to know, and the development of collection plans to find the best means to answer the unknowns. With this knowledge, we can identify emerging threats, allocate resources effectively, and identify new opportunities for intelligence collection and criminal prosecution.” Director Mueller also declared that every counterterrorism lead would be pursued.
However, prior to the 9/11 attacks, the FBI was not authorized to conduct investigative activity without sufficient factual predication that a crime was being or had been committed. In order for the FBI to become “intelligence-driven,” it had to develop a protocol for collecting intelligence information—meaning information concerning potential threats even if there was no factual predication of criminal activity. Without such a protocol, the FBI would have limited ability to track down counterterrorism leads that lacked predication of criminal activity or to gather information to be able to analyze the nature and trend of violent extremist threats above and beyond whatever criminal cases the FBI had ongoing.
Accordingly, in 2008 Attorney General Michael Mukasey authorized and Director Mueller instituted a new FBI operational protocol permitting “assessments” when there is “no particular factual predication” that a crime has been committed and instead based on an “authorized purpose” such as “to detect, obtain information about, or prevent or protect against federal crimes or threats to the national security, or to collect foreign intelligence.” Limited investigative tools are permitted, including reviewing publicly available information and conducting physical surveillance not otherwise requiring a warrant—as opposed to intrusive tools such as wiretaps, which require a warrant. Assessments are prohibited “based solely on the exercise of First Amendment-protected activities or on the race, ethnicity, national origin or religion of the subject.” FBI agents must use the “least intrusive” investigative mechanisms possible.
As stated in Mukasey’s authorization to the FBI, “For example, assessment activities may involve proactively surfing the Internet to find publicly accessible websites and services through which recruitment by terrorist organizations and promotion of terrorist crimes is opening taking place.”
The use of assessments does raise the risk of abuse, such as that the FBI’s guidelines for such use will be ignored in practice and that the assessments will be conducted based solely on First Amendment activity, or that racial and ethnic profiling will be done. However, there are three counterbalancing forces to provide the necessary checks:
• First, FBI and other law enforcement personnel need adequate training concerning the nature of violent extremism and in particular violent Islamist extremism and how it differs from the peaceful practice of Islam. Training has often focused on behavioral indicators of radicalization—such as whether an individual is isolating himself from his friends and family—and not the ideology of violent Islamist extremism. As the Senate investigation of the Fort Hood attack found, “Understanding the ideology of violent Islamist extremism would assist agents in determining, in conjunction with an individual’s conduct, what degree of risk an individual might present and whether to pursue further inquiry.” In addition, state and local law enforcement are the first line of defense against terrorism because of their knowledge of and constant contact with local communities, and anecdotal evidence raises concerns about the quality of training that they receive. Such training by outside experts has reportedly included that “Islam is a highly violent religion” and that if an individual has “different spellings of a name … that’s probably cause to take them in.” Preventing terrorism from violent Islamist extremism requires accurate training so that law enforcement agents can focus their efforts on extremists and not on Americans practicing Islam.
• Second, oversight of law enforcement intelligence activities is essential. The FBI is overseen by the Department of Justice, especially the DOJ’s inspector general, and by various congressional committees. The inspector general has issued a variety of reports, including on FBI agents cheating on tests concerning the new FBI investigative authorities discussed above, on FBI investigations of domestic advocacy groups (which did not find systemic abuses), and on errors and management failures in the use of FBI authorities to request information from communications providers. Congress exercises oversight via hearings, requests for briefings, appropriation of the FBI’s funding, and the launch of special investigations. The criticality of preventing homegrown terrorism, combined with the new authorities granted to the FBI, require that oversight of the FBI be rigorous and sustained.
• And third, the FBI’s attempts to prevent terrorist activity by utilizing its authorities must take place alongside vigorous U.S. government outreach to local communities and in particular Muslim-American communities. This outreach is designed to build relationships with local communities, provide them with information they need to develop communal efforts to prevent and respond to radicalization in their midst, and elicit concerns about particular government actions or policies—including the FBI’s conduct of assessments. This outreach is conducted by a range of agencies, including the Department of Homeland Security’s Office for Civil Rights and Civil Liberties and the FBI. The Obama administration released an overall framework in August 2011 and an implementation plan in December 2011 listing tasks along with leading and supporting government agencies. The challenge now is to ensure that this plan is implemented aggressively and with clear leadership and commensurate resources—thus providing the greatest chance of preventing terrorism especially motivated by violent Islamist extremism.
Mr. Lederman begins his paper with a statement that, if true, could not be any more alarming: “The scope of the insider threat to the United States in the 21st century is virtually unprecedented—there exists the potential for an individual within the United States, segregated within his or her own Internet community of sympathizers, to radicalize to violent extremism and then to utilize modern technology to kill millions of people or to hobble critical infrastructure.”
But do recent events make a very strong case that there are individuals within the United States who ascribe to “violent Islamist extremism” in Mr. Lederman’s terms, and pose an existential threat to the country? Or does this kind of rhetoric obscure the difficult constitutional issues faced by law enforcement in attempting to prevent acts of domestic terrorism? Does singling out this threat have negative consequences for security as well as for fundamental civic values? And what does it mean for evaluating an appropriate government response?
The scope of the threat is beyond my expertise as a lawyer. It is to some degree unknown, although policymakers of course must deal with future threats, even when unknown. Unfortunately, suggesting the existence of an existential threat, whether correct or not, has the effect of making close analysis of the real likelihood of such threat or of the costs and benefits of possible responses thereto more difficult and even unlikely.
Recent testimony by the director of national intelligence, James Clapper, provides a more nuanced picture of the specific threats the intelligence community is worried about, including the possibility of a nuclear-armed Iran, the ongoing war in Afghanistan and instability in the Middle East. Director Clapper did not include the substantial likelihood that a homegrown terrorist will kill millions of people. Recent successes against al-Qaida in Afghanistan, Pakistan and Yemen would seem to make it more difficult for would-be terrorists within the United States to obtain the training, financing and logistical support that underlay the ability of the 9/11 hijackers to pull off an attack of that magnitude.
In arguing that this threat poses a unique menace, Mr. Lederman’s paper relies in large measure on the so-called rise in incidents of homegrown “Islamist” extremism in 2009. But not all analysts agree that these instances support such conclusions or predictions about the magnitude of the future risk. As the pre-eminent independent expert in this field, Brian Michael Jenkins, concluded: [My] analysis suggests that homegrown jihadists pose a terrorist threat, but thus far, despite al-Qaida’s intensive online recruiting campaign, their numbers remain small, their determination limp, and their competence poor. Even the apparent uptick in arrests in 2009 and 2010 turns out upon close examination to be the culmination of investigations of activity in earlier years, the result of young Somali-Americans going off to fight Ethiopian invaders, and the honing of the Federal Bureau of Investigation’s (FBI’s) investigative techniques that have led to a number of stings. The increase is real, but it is gradual.”
While FBI Director Robert Mueller has taken a more dire view, there is no consensus that the experience to date of plots in fact supports such dire predictions. And many are skeptical of the dangers of the Internet; as one expert testified, experience to date “suggests a failure of al-Qaida’s Internet strategy.”
Of course, this is not to deny the existence of domestic terrorism and its lethal consequences, nor the possibility that it could result in much greater harm in the future than it has to date. But the magnitude of the threat matters in deciding what kind and level of resources should be used, what trade-offs should be made and how government should be structured.
Because terrorism, unlike other violent crimes, is by definition tied to political, ideological or religious beliefs, it is difficult but essential for law enforcement and intelligence rules and practices to distinguish between constitutionally protected beliefs and advocacy and criminal plans or activity. Too often, law enforcement has yielded to the temptation of focusing on those whose beliefs are outside the mainstream, rather than on those plotting terrorist acts, who are likely to be more difficult to identify. The potential confusion between constitutional speech and beliefs and criminal acts is even reflected in the language describing the problem e.g., “violent extremism.” The term is imprecise and could encompass extreme beliefs, like belief in the necessity of and moral justification for violence, which are protected by the First Amendment and constitutionally distinct from violent acts, which are not protected. The term extremist violence would be more precise and less likely to lead to constitutional confusion by government officials.
In recent years, there have been many reports of government bias against Islam or Muslims, including the use of false and bigoted law enforcement training materials and widespread surveillance of mosques, which suggest at a minimum the absence of a clear understanding of constitutional limits.
It is not clear whether the message being delivered to law enforcement by Washington about the prevalence and dangerousness of an ideological domestic threat has contributed to such instances of law enforcement focusing on protected speech and religion, rather than terrorist activity. We have no in-depth analysis of the effects of the changes made since the terrible attacks of 9/11 intended to strengthen law enforcement’s capabilities to prevent attacks or of the many promises that civil liberties and civil rights are being protected even while surveillance and other rules are watered down.
For example, amendments to the attorney general’s guidelines governing FBI investigations now permit the FBI to gather vast amounts of data on Americans, including through “assessments” discussed in Mr. Lederman’s paper. Those guidelines were originally written to protect civil liberties by keeping the FBI focused on its mission: prevention and punishment of crimes. But FBI information collection is no longer confined to investigations of terrorist plots; it is now allowed for the ill-defined, but extremely broad, purpose of “foreign intelligence” gathering. Has the broadening of the crimes of material support and the use of material witness laws to detain suspects weakened the First Amendment protection for unpopular speech and religion?
Has the emphasis on a threat from “Islamist extremism” resulted in discriminatory law enforcement practices, including the profiling of people based on their religion or ethnicity in violation of the Constitution’s promise of equal protection? And what about the concern about entrapment and the discriminatory use of sting operations targeted against individuals who are identified on the basis of their religious beliefs or political speech? That such operations have to date been upheld by courts operating under rulings that make entrapment a very difficult defense is no answer to the concern that more Americans are worried that their government does not operate fairly and in accord with constitutional protections.
Have the lessened constraints on FBI investigations along with louder rhetoric about an insider threat from a particular religious ideology had the effect of creating misunderstandings and lack of consideration for the important Fourth and First amendment values at stake in law enforcement investigations? Even if FBI leaders still understand the importance of constitutional limits, how are these changes understood by the thousands of officers and agents around the country, who are repeatedly told that their primary mission is to prevent another attack by “Islamist” radicals?
As Mr. Lederman acknowledges in a footnote [available in the book Patriots Debate], the most deadly incident of homegrown terrorism in recent decades was Timothy McVeigh’s murder of 165 Americans in Oklahoma City in 1995. Moreover, while one can argue in papers such as this that “Islamist” does not refer to the religion of Islam but to a perversion of the religion, in common parlance, the term itself does not necessarily imply any such limitation; to the contrary, it seems to imply a close relationship between the targeted extremism and Islam.
Michael Leiter, former director of the National Counterterrorism Center, has cautioned about talking too much about the threat from al-Qaida and its adherents because of its tendency to glorify the group and make it seem “10 feet tall.” It also risks leaving Muslim and other communities feeling targeted, unfairly singled out and persecuted. It risks alienating those communities that law enforcement says they most want to partner and collaborate with in preventing domestic terrorism.
But one must also wonder about more subtle, but equally harmful, effects of this articulation. Does it encourage the latent tendency of politicians to scapegoat minorities and engage in ideological witch hunts? Does it contribute to the mistaken understanding by part of the public that the Constitution differentiates between some religions and others? It is having a less obvious but more insidious effect on the way law enforcement operates, by encouraging focus on ideology, rather than actions and in particular on Islam. The use of bigoted training materials, the idea that Islam is the enemy, a misunderstanding of religious practices may all be encouraged by such language and focus. It also seems likely that such rhetoric may be in part responsible for the misunderstandings about constitutional limits on government surveillance or interference with religious practices and beliefs. Does it play a role in the decisions to send undercover informants into mosques or Muslim student groups, with no predicate of any criminal activity? The strength of constitutional protections depends in part on local law enforcement’s understanding and commitment to such protections. Is that understanding and commitment being undermined by leaders and politicians in Washington? While they insist that Islam is not the enemy, local experiences in the past few years suggest that local law enforcement may be receiving a different message.
Finally, it is important to examine whether the emphasis by government officials on the pre-eminent threat of violent Islamist extremism has resulted, even unintentionally, in encouraging the alarming rise in expressions of bias and hatred toward Islam and Muslims, not only by fringe groups but also by Washington politicians and pundits.
There is now a massive government effort under way to “counter violent extremism,” including the administration’s national strategy issued last year, congressional hearings, and of course law enforcement and intelligence efforts. As framed, this effort seems aimed at more ambitious ends than simply preventing violence; it also seeks to affect Americans’ ideas and beliefs, whether or not they lead that individual to terrorist acts. In broadening the aim of government activity beyond the detection and prevention of terrorism, important questions are raised about the appropriate and effective uses of government, which however have received little attention.
In the United Kingdom, there was a massive government effort, the Prevent strategy, to counter Muslim extremism. Much of it involved identifying and funding “moderate Muslim” groups to act as a counterweight to the ideas of more “radical” groups. Such an approach in the United States would of course run afoul of the First Amendment; the state has no business identifying religious groups as moderate or radical and then promoting one over the other. Doing so would be fundamentally at odds with our history and understanding of the proper relations between church, state and individual.
The administration’s National Strategy does not embrace the British model and it evidences appreciation for the difficult question of the proper role of government, beyond prevention of violence and the use of the bully pulpit by political leaders. At the same time, it is not clear whether the rules and structures adopted to implement this strategy will ameliorate rather than exacerbate the concerns outlined above.
Most striking perhaps is the failure to highlight the answer embedded in our constitutional structure: more speech. In a marketplace of ideas, advocacy of violence and intolerance will be defeated by defense of constitutional, peaceful and democratic ideals. As the former director of the National Counterterrorism Center, Michael Leiter, put it: Demonstration of American resiliency will show the terrorists that they will not succeed. Those who decry the ideological threat of al-Qaida or “radical Islam” show little confidence in that resilience or in our constitutional structures.
Ms. Martin argues that Director of National Intelligence James Clapper, in his January 2012 annual threat assessment, did not include concerns that an American might segregate himself within his Internet community, radicalize to violent extremism, and then attempt to use modern technology to kill a large number of people. However, Director Clapper’s threat assessment concerning chemical, biological, radiological and nuclear threats, or CBRN—including passages quoted by Ms. Martin—is focused on the next year and even then provides little reassurance.
• “[A] mass attack by foreign terrorist groups” involving CBRN is “unlikely in the next year.” “Unlikely in the next year” would seem quantifiable as a 20 percent chance—hardly comfortable odds given the consequence of such an attack.
• U.S. intelligence “worr[ies] about a limited CBR attack” within or outside of the United States in the next year because of interest by foreign terrorist groups.
• Later in his assessment, he notes that some homegrown violent extremists aspired to mass-casualty events but lacked the technical capability—except for two who were trained outside the United States and attempted mass-casualty explosive attacks within the United States.
• Finally, with respect to CBRN, U.S. intelligence believes that lone homegrown violent extremists “are capable of conducting limited attacks in the next year” although the threat posed by anthrax is “low.”
Thus, the threat picture painted by Director Clapper—for only the next year—includes an approximately 20 percent chance of a major CBRN attack by a foreign terrorist group and a “worrisome” threat (however defined) of a limited such attack—possibly by a homegrown violent Islamist extremist who is trained abroad—and that homegrown violent extremists can perpetrate limited attacks aside from using anthrax.
Expanding beyond a one-year time horizon and taking a long-term view of the 21st century insider threat requires looking at the vectors that affect the threat—and points to the threat growing from “limited” to endangering millions of people. In his testimony, Director Clapper discusses various dynamics that could influence homegrown violent extremism, with two being that homegrown violent extremists will learn from previous plots—which seems highly plausible—and that they are using the Internet, which is already the case. Moreover, in her essay, Ms. Martin does not confront the long-term diffusion of technology and expertise, particularly biological and cyber, which can be used to produce a weapon of mass destruction. We cannot assume that an individual with technical skills and access to WMD materials will be immune from radicalization within the United States or unavailable to train homegrown violent extremists abroad.
The cases that constitute the increased trend of homegrown violent Islamist extremist terrorism are few as compared to the millions of patriotic Muslim-Americans—but that small number is only one element of the calculation. The potential lethality—the consequence—is another critical factor, as is intent—violent Islamist extremists’ desire to kill large numbers of Americans. The convergence of vectors over the next decade does—to use Ms. Martin’s word—create a threat of sufficient “magnitude” to affect government resource-allocation and organization. The issue is not whether a catastrophic insider attack is guaranteed—but rather that the probability of an attack is not minimal, the consequences would be enormous, and various vectors enhance the potential for an attack, thus justifying government’s efforts to build a long-term defensive architecture, within constitutional parameters, to prevent it.
Key components of this architecture include (1) building long-term, trusted relationships with Muslim-American communities and (2) enhancing law enforcement, intelligence and other capabilities, such as by training government personnel. As the Obama administration recognized in releasing its domestic community engagement strategy to counter violent extremism, merely relying, as Ms. Martin suggests, on “a marketplace of ideas” is insufficient. But Ms. Martin correctly warns that some members of the public—or government personnel—might conflate Islam with violent Islamist extremism. Accordingly, government officials—as Presidents George W. Bush and Barack Obama have done—must continuously articulate the distinction and highlight Muslim-Americans’ contribution to America. In addition, training of government personnel must meet the highest standards of professionalism. News articles last year highlighted inaccurate and even bigoted training—conflating Islam and violent Islamist extremism—by third-party trainers to state and local officials. Governments need to be vigilant, not only because it is the right course of action but also because negative publicity of such training risks reinforcing the violent Islamist extremist narrative that the West is at war with Islam and undermining the relationships that governments should build with Muslim-American communities.
There is no doubt a continuing threat of terrorist attacks in the U.S. But the likelihood of a radicalized “Islamist” American using CBRN technology to kill millions of Americans is much less clear and will not be settled by this debate. The more immediate issue is whether looking at the potential of mass casualty terrorism through the lens of potential attacks by homegrown “Islamist extremists” rather than potential attacks by a broad range of actors risks missing important elements and wrongly emphasizing other elements. For example, wouldn’t we be better served by an analysis that distinguished between terrorist attacks directed or inspired by al-Qaida and attacks carried out for other reasons, including potential attacks by Iranian agents? This approach would ensure incorporating an understanding of the larger context of al-Qaida’s power and influence and, for example, an understanding of internal disagreements in al-Qaida on whether to focus future attacks on the continental U.S. Such a more specific understanding and analysis of different groups and dynamics is necessary to fully evaluate potential risks, the “vectors” leading toward or away from such risks and accordingly the best ways to meet those risks. Shouldn’t the possibility of a CBRN attack be examined from the perspective of a possible attack by many different actors, not just by a “violent Islamist” extremist? Wouldn’t it be wiser to look more broadly at access to the necessary knowledge and materials to carry out such attacks—to include, for example, the possibility of a government scientist or a right-wing terrorist worried about Muslims taking over the country?
Apart from mass casualty attacks, most experts and even politicians in moments of honesty concede that it is simply not possible to stop all terrorist attacks. Thus, we need government efforts to prepare for such attacks as well as to prevent them. This is especially important as the terrorists’ aim to create fear and overreaction can be defeated by a smart and effective response.
While there is general agreement about the existence of a problem, serious questions remain whether current policy discussions in Washington adequately consider the real benefits versus costs of certain government counterterrorism resources and architecture. For example, it has become clear that there is an inherent tension between the ways in which law enforcement/intelligence capabilities are being expanded and the stated goal of building long-term relationships of trust with Muslim-American communities; law enforcement’s current claim that it may collect vast amounts of information about such communities—without any individualized suspicion of wrongdoing—contributes to that tension. The current controversy concerning blanket NYPD surveillance of Muslim communities is evidence that this tension has not been adequately addressed, much less resolved.
In addition, while Presidents Obama and Bush have publicly repeated that the U.S. is not at war with Islam, there has been very little examination of whether that understanding has been internalized and operationalized by the thousands of domestic law enforcement agencies now tasked with counterterrorism. The recent revelations of widespread bigoted training materials are disturbing not only as Mr. Lederman points out because they are wrong and likely to undermine community trust, but also because they raise serious questions about the possible injection of stereotypes, prejudice and unwarranted fears among law enforcement and intelligence personnel.
Nor is this problem confined to government personnel. Sadly, while there have been vehement condemnations of the rise in public expressions of bigotry, there has been little examination of the possible—though unintended—consequences of government pronouncements about the threat of “Islamist” terrorism on public attitudes toward Muslims. Indeed, one of the objections to the term violent Islamist extremism is that it obscures the difference between the religion of Islam and terrorist ideologies, playing into public fears and bigotry.
Finally, while reliance upon the “marketplace of ideas” as an important strategy to counter extremist violence is usually dismissed as simplistic or naive—although not by Mr. Lederman—there is certainly historical evidence of the strength of ideals of democracy and individual liberty to defeat whatever appeal terrorists offer, most recently of course in the events of the Arab Spring. When worrying about the appeal of terrorist violence to Americans, it is crucial not to overlook the importance of individuals feeling free to contemplate, discuss and publicly advocate for whatever ideas they wish as the alternative to engaging in terrorist crimes.
An expert on national security, Gordon Lederman was director of legal affairs for the Project on National Security Reform—a nonpartisan, nonprofit initiative funded by Congress and the White House to recommend reorganization of the government to meet national security threats. A former counsel for the 9/11 Commission, Lederman also worked at Arnold & Porter and White & Case. Kate Martin served as litigation director for the Center for National Security Studies when it was a joint project of the ACLU and the Fund for Peace. From 1995 to 1999, she was also co-director of a project on security services in a constitutional democracy in 12 former communist countries. She has taught at Georgetown law school and served as general counsel to the National Security Archive, a research library at George Washington University. The ABA Journal’s Patriots Debate series has been publishing advance versions of the essays that will appear in the committee’s book.
An expert on national security, Gordon Lederman was director of legal affairs for the Project on National Security Reform—a nonpartisan, nonprofit initiative funded by Congress and the White House to recommend reorganization of the government to meet national security threats. A former counsel for the 9/11 Commission, Lederman also worked at Arnold & Porter and White & Case.
Kate Martin served as litigation director for the Center for National Security Studies when it was a joint project of the ACLU and the Fund for Peace. From 1995 to 1999, she was also co-director of a project on security services in a constitutional democracy in 12 former communist countries. She has taught at Georgetown law school and served as general counsel to the National Security Archive, a research library at George Washington University.
The ABA Journal’s Patriots Debate series has been publishing advance versions of the essays that will appear in the committee’s book.