[Senate Hearing 112-947]
[From the U.S. Government Publishing Office]
S. Hrg. 112-947
HATE CRIMES AND THE THREAT
OF DOMESTIC EXTREMISM
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS AND HUMAN RIGHTS
OF THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 19, 2012
__________
Serial No. J-112-94
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin CHUCK GRASSLEY, Iowa, Ranking
DIANNE FEINSTEIN, California Member
CHUCK SCHUMER, New York ORRIN G. HATCH, Utah
DICK DURBIN, Illinois JON KYL, Arizona
SHELDON WHITEHOUSE, Rhode Island JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut TOM COBURN, Oklahoma
Bruce A. Cohen, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
------
Subcommittee on the Constitution, Civil Rights and Human Rights
DICK DURBIN, Illinois, Chairman
PATRICK J. LEAHY, Vermont LINDSEY GRAHAM, South Carolina,
SHELDON WHITEHOUSE, Rhode Island Ranking Member
AL FRANKEN, Minnesota JON KYL, Arizona
CHRISTOPHER A. COONS, Delaware JOHN CORNYN, Texas
RICHARD BLUMENTHAL, Connecticut MICHAEL S. LEE, Utah
TOM COBURN, Oklahoma
Joseph Zogby, Democratic Chief Counsel
Walt Kuhn, Republican Chief Counsel
C O N T E N T S
----------
SEPTEMBER 19, 2012, 2:46 P.M.
STATEMENTS OF COMMITTEE MEMBERS
Page
Durbin, Hon. Dick, a U.S. Senator from the State of Illinois..... 1
prepared statement........................................... 86
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement........................................... 84
WITNESSES
Witness List..................................................... 31
Austin, Jr., Roy L., Deputy Assistant Attorney General, Civil
Rights Division, U.S. Department of Justice, Washington, DC.... 4
prepared statement........................................... 32
Clancy, Michael A., Deputy Assistant Director, Counterterrorism
Division, Federal Bureau of Investigation, Washington, DC...... 9
prepared statement........................................... 49
Jacobs, James B., Chief Justice Warren E. Burger Professor of
Constitutional Law and the Courts, New York University School
of Law, New York, New York..................................... 22
prepared statement........................................... 65
Johnson, Daryl, Founder and Owner, DT Analytics, LLC, Washington,
DC............................................................. 16
prepared statement........................................... 68
McAllister, Hon. Scott, Deputy Under Secretary, State and Local
Program Office, Office of Intelligence and Analysis, U.S.
Department of Homeland Security, Washington, DC................ 7
prepared statement........................................... 54
Saini, Harpreet Singh, Oak Creek, Wisconsin...................... 19
prepared statement........................................... 62
QUESTIONS
Questions submitted to Roy L. Austin, Jr., by Senator Coons...... 89
Questions submitted to Daryl Johnson by Senator Coons............ 90
ANSWERS
[NOTE: At the time of printing, the Committee had not received
responses from Roy L. Austin, Jr.]
Responses of Daryl Johnson to questions submitted by Senator
Coons.......................................................... 91
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
Ali, Wajahat, Esq., Lead Author of ``Fear Inc., The Roots of the
Islamophobia Network in America,'' statement................... 115
American-Arab Anti-Discrimination Committee (ADC), Washington,
DC, statement.................................................. 139
American Civil Liberties Union (ACLU), September 19, 2012,
statement...................................................... 119
American Friends Service Committee (AFSC), Philadelphia,
Pennsylvania, statement........................................ 126
American Humanist Association, Roy Speckhardt, Executive
Director, statement............................................ 132
American Jewish Committee (AJC), Richard T. Foltin, Esq.,
Director,
National and Legislative Affairs, Office of Government and
International Affairs, statement............................... 136
Anti-Defamation League (ADL), New York, New York, statement...... 94
Anti-Defamation League (ADL), September 19, 2012, statement...... 146
Anti-Defamation League (ADL), September 19, 2012, appendix A. 161
Anti-Defamation League (ADL), September 19, 2012, appendix B. 164
Anti-Defamation League (ADL), September 19, 2012, appendix C. 165
Anti-Defamation League (ADL), September 19, 2012, appendix D. 168
Applied Research Center (ARC), September 2012, statement......... 169
Arab American Institute (AAI), Washington, DC, statement......... 172
Asian American Justice Center (AAJC), Mee Moua, President and
Executive Director, statement.................................. 179
Asian and Pacific Islander American Health Forum (APIAHF), San
Francisco, California, statement............................... 176
Asian Law Caucus (ALC), San Francisco, California, statement..... 185
Asian Pacific American Legal Center (APALC), September 17, 2012,
statement...................................................... 187
Chu, Hon. Judy, a Representative in Congress from the State of
California, statement.......................................... 195
City of Chicago City Council and Mayor, Chicago, Illinois,
September 12, 2012, council resolution......................... 191
City of Chicago Police Department, Chicago, Illinois, Tina
Skahill, Chief of the Special Functions Division, statement.... 194
Council on American-Islamic Relations (CAIR), Corey P. Saylor and
Robert S. McCaw, statement..................................... 197
Council on American Islamic Relations-Chicago Office (CAIR-
Chicago),
Chicago, Illinois, statement................................... 209
Daya Inc., Lakshmy Parameswaran, Founder and Board Member,
Houston Chronicle, ``On 9/11 anniversary, let's commit to
oppose violence,''
September 10, 2012, Op-Ed article.............................. 212
DC Trans Coalition (DCTC), Jason A. Terry, Anti-Violence
Organizer, statement........................................... 214
Defending Dissent Foundation, Susan Udry, Director, statement.... 218
Equal Rights Center (ERC), Donald L. Kahl, Executive Director,
statement...................................................... 225
Evangelical Lutheran Church in America (ELCA), September 19,
2012, statement................................................ 232
Family Equality Council, Jennifer Chrisler, Executive Director,
statement...................................................... 233
Family of Prakash Singh Rathore, Oak Creek, Wisconsin, statement. 234
Family of Punjab Singh, Oak Creek, Wisconsin, statement.......... 385
Family of Ranjit Singh, Oak Creek, Wisconsin, statement.......... 237
Family of Satwant Singh Kaleka, Amardeep Kaleka, son of Satwant
Singh Kaleka, Founding Member of the Sikh Temple of Wisconsin,
statement...................................................... 239
Family of Satwant Singh Kaleka, Kanwardeep Singh Kaleka, nephew
of Satwant Singh Kaleka, statement............................. 309
Family of Satwant Singh Kaleka, Pardeep Singh Kaleka, son of
Satwant Singh Kaleka, statement................................ 315
Family of Sita Singh, Oak Creek, Wisconsin, statement............ 243
Family of Suveg Singh, Oak Creek, Wisconsin, statement........... 245
Federation of Jain Associations in North America (JAINA), Dr.
Sushil K. Jain, President, statement........................... 299
Franciscan Action Network (FAN), Sister Marie Lucey OSF, Director
of Advocacy, statement......................................... 247
Gays and Lesbians Opposing Violence (GLOV), Washington, DC,
statement...................................................... 249
Groundswell, Valarie Kaur, Founding Director, statement.......... 252
Gurdwara Sahib Hidden Falls, Plymouth, Michigan, statement....... 259
Hindu American Foundation (HAF), Suhag A. Shukla, Esq., Executive
Director and Legal Counsel, and Samir Kalra, Esq., Director and
Senior Fellow for Human Rights, statement...................... 260
Hindu American Seva Charities (HASC), Anju Bhargava, Founder,
statement...................................................... 265
Hmong National Development, Inc. (HND), Bao Vang, President and
Chief Executive Officer, statement............................. 269
Howard University School of Law Civil Rights Clinic, Washington,
DC, statement.................................................. 273
Human Rights Campaign (HRC), Allison Herwitt, Legislative
Director, statement............................................ 276
Human Rights First, Paul LeGendre, Director, Fighting
Discrimination
Program, statement............................................. 279
Indo-American Heritage Museum (IAHM), Shailja Khatri, President,
statement...................................................... 285
Interfaith Alliance, Rev. Dr. C. Welton Gaddy, President,
statement...................................................... 287
Interfaith Center of New York, Rev. Chloe Breyer, Executive
Director, statement............................................ 289
International Center for Advocates Against Discrimination
(ICAAD), Jaspreet and Hansdeep Singh, Co-Founders, statement... 291
Islamic Society of North America (ISNA), Plainfield, Indiana,
statement...................................................... 297
Japanese American Citizens League (JACL), San Francisco,
California, statement.......................................... 303
KARAMAH: Muslim Women Lawyers for Human Rights, Engy Abdelkader,
Esq., Vice President, statement................................ 319
LatinoJustice PRLDEF, New York, New York, statement.............. 324
Leadership Conference on Civil and Human Rights, The, Wade
Henderson, President and Chief Executive Officer, The Hill,
``Time to ensure full and effective enforcement on hate crimes
laws,'' September 19, 2012, Op-Ed article...................... 113
Michigan Roundtable for Diversity and Inclusion, Detroit,
Michigan, ``Michigan should watch and learn from Senate
hearings on Sikh shootings,'' Op-Ed article.................... 327
Muslim Advocates, Farhana Y. Khera, President and Executive
Director, statement............................................ 329
Muslim Public Affairs Council (MPAC), September 19, 2012,
statement...................................................... 333
National Action Network (NAN), Reverend Al Sharpton, President
and Founder, Reverend Dr. W. Franklyn Richardson, Chairman, and
Tamika Mallory, National Executive Director, statement......... 341
National Asian Pacific American Bar Association (NAPABA), Tina
Matsuoka, Executive Director, statement........................ 346
National Asian Pacific American Women's Forum (NAPAWF), September
17, 2012, statement............................................ 349
National Association for the Advancement of Colored People
(NAACP), Hilary O. Shelton, Director, Washington Bureau, and
Senior Vice President for Advocacy and Policy, statement....... 337
National Association of Social Workers (NASW), Elizabeth J.
Clark, Ph.D., A.C.S.W., M.P.H., Executive Director, statement.. 353
National Coalition for Asian Pacific Community Development
(National CAPACD), September 19, 2012, statement............... 355
National Disability Rights Network (NDRN), September 19, 2012,
statement...................................................... 356
National Gay and Lesbian Task Force Action Fund, Rea Carey,
Executive Director, statement.................................. 359
National Network for Arab American Communities (NNAAC), Nadia
Tonova, Director, statement.................................... 364
National Queer Asian Pacific Islander Alliance (NQAPIA), Ben de
Guzman, Co-Director for Programs, statement.................... 368
NQAPIA, August 8, 2012, appendix............................. 370
North American South Asian Bar Association (NASABA), Emilie R.
Ninan, Esq., President, statement.............................. 372
Oak Creek Police Department, Oak Creek, Wisconsin, John O.
Edwards, Chief of Police, statement............................ 374
Office of the County Executive, Milwaukee County, Wisconsin, Hon.
Chris Abele, statement......................................... 376
OneAmerica, Hardeep Singh Rekhi, Board Member, The Seattle Times,
``All should call out hate after Wisconsin Sikh shooting,''
August 14, 2012, Op-Ed article................................. 379
OneAmerica, Rich Stolz, Executive Director, statement............ 378
Organization of Chinese Americans (OCA), Tom Hayashi, Executive
Director, statement............................................ 380
Parents, Families, and Friends of Lesbians and Gays (PFLAG), Jody
Huckaby, Executive Director, statement......................... 382
People For the American Way Foundation, the African American
Ministers Leadership Council (AAMLC), and Young People For: Jen
Herrick, Senior Policy Analyst, People For the American Way
Foundation; Minister Leslie Watson Malachi, Director, African
American Religious Affairs, People For the American Way
Foundation; and Joy Lawson, Director, Young People For;
statement...................................................... 111
People for the American Way, African American Ministers
Leadership Council, and Young People For, statement............ 383
Religious Action Center of Reform Judaism, Rabbi David
Saperstein, Director, statement................................ 387
Rights Working Group (RWG), Margaret Huang, Executive Director,
statement...................................................... 389
Singh, Santokh, Oak Creek, Wisconsin, statement.................. 396
Shoulder-to-Shoulder, Christina Warner, Campaign Director,
statement...................................................... 399
Shoulder-to-Shoulder, September 17, 2012, appendix........... 401
Sidhu, Dawinder ``Dave'' S., Assistant Professor of Law,
University of New Mexico School of Law, statement.............. 402
Sikh American Legal Defense and Education Fund (SALDEF), Jasjit
Singh, Executive Director, statement........................... 405
Sikh Coalition, New York, New York, statement.................... 410
South Asian American Policy and Research Institute (SAAPRI),
Chicago, Illinois, statement................................... 433
South Asian Americans Leading Together (SAALT), Deepa Iyer,
Executive Director, statement.................................. 435
South Asian Bar Association of New York (SABANY), Neha Dewan,
President, statement........................................... 444
South Asian Bar Association of Northern California (SABA-NC),
statement...................................................... 450
South Asian Network (SAN), Manjusha P. Kulkarni, Esq., Executive
Director, statement............................................ 454
Southern Poverty Law Center (SPLC), Dr. Heidi L. Beirich,
Director, Intelligence Project, statement...................... 458
State of Michigan, Department of Civil Rights, Daniel H.
Krichbaum, Ph.D., Director, statement.......................... 463
Unitarian Universalist Association of Congregations, Reverend
Craig C. Roshaven, Witness Ministries Director, statement...... 467
Unitarian Universalist Association of Congregations, Boston,
Massachusetts, advertisement............................... 470
UNITED SIKHS, New York, New York, statement...................... 471
United States Department of Justice, M. Faith Burton for Judith
C. Appelbaum, Acting Assistant Attorney General, Office of
Legislative Affairs, September 26, 2012, letter................ 109
USPAK Foundation, Ellicott City, Maryland, statement............. 474
HATE CRIMES AND THE THREAT
OF DOMESTIC EXTREMISM
----------
WEDNESDAY, SEPTEMBER 19, 2012
United States Senate,
Subcommittee on the Constitution, Civil Rights and
Human Rights,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:46 p.m., in
Room SH-216, Hart Senate Office Building, Hon. Dick Durbin,
Chairman of the Subcommittee, presiding.
Present: Senators Durbin and Blumenthal.
Also present: Senator Kohl.
OPENING STATEMENT OF HON. DICK DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Chairman Durbin. Good afternoon. This hearing of the
Subcommittee on the Constitution, Civil Rights and Human Rights
will come to order.
Today's hearing is entitled ``Hate Crimes and the Threat of
Domestic Extremism.'' At the outset, I will make an opening
statement, and then we will recognize the Senators as they
arrive, including Senator Graham, the Ranking Member on the
Subcommittee. Then we will turn to our witnesses.
First, I want to note that there is a significant amount of
interest in today's hearing. For those who could not get a seat
in the hearing room, we have an overflow room with live video
feed. It is next door in the Dirksen Building, Room 226.
Last month, in Oak Creek, Wisconsin, a white supremacist
shot and killed six Sikh worshipers in the Oak Creek Gurdwara.
Satwant Singh Kaleka was the founder of the gurdwara. His
picture is on my far right you will see in the charts here. Mr.
Kaleka fought off the gunmen with a butter knife, which gave
others in the temple time to seek refuge. Mr. Kaleka leaves
behind his wife, two sons, and three grandchildren. Mr.
Kaleka's son, Amardeep, and nephew, Kanwardeep, are with us
today, and our deepest condolences go to them.
Paramjit Kaur was a deeply religious woman. Her picture is
next to Mr. Kaleka's. On the day of the shooting, she was at
the gurdwara for her daily morning prayers. Mrs. Kaur was
devoted to her two sons, Kamaljit Singh Saini and Harpreet
Singh Saini, working long hours so they could go to school.
Kamaljit and Harpreet are here today. We will hear from
Harpreet later in the hearing. You and your family are in our
thoughts and prayers.
Prakash Singh Rathore had been a priest at the temple for 6
years. His picture is the next one over. He immigrated to the
United States in 2006 and was finally able to bring his wife
and two children to the United States just 2 months ago, after
6 years of separation.
Ranjit Singh immigrated to the United States in 1997. His
picture is the next one over. Mr. Singh was a priest who played
the tabla, an Indian drum, during religious ceremonies and
mentored young people at the temple. He is survived by his wife
and three children.
Sita Singh, Ranjit Singh's younger brother, immigrated to
the United States in 1993. He was a priest at the temple, where
he led morning prayers every day at 5 a.m. His picture is next
to his brothers. Sita Singh is survived by his wife and four
children.
Suveg Singh Khattra, who was 82 years old, was a farmer
from India who immigrated to the United States with his wife 8
years ago to join his son and daughter-in-law. Mr. Khattra's
picture is the next one over. He leaves behind a wife, five
children, and seven grandchildren.
The family of each of the six victims has submitted written
testimony, and with unanimous consent, that testimony will be
part of the record.
[The testimony appears as submissions for the record.]
Chairman Durbin. Oak Creek, Wisconsin, Police Department
Lieutenant Brian Murphy responded to the gurdwara shooting and
was shot himself nine times at close range. His picture is on
my far left. When other officers arrived at the scene,
Lieutenant Murphy urged them to help other shooting victims
before they helped him. Thankfully, Lieutenant Murphy, a 21-
year veteran of the Oak Creek police force, is expected to
recover from his injuries.
Sadly, the shooting in Oak Creek, Wisconsin, was not an
isolated incident. More than 6,600 hate crimes were reported to
the FBI in the calendar year 2010, the most recent year for
statistics. And a 2005 study by the Bureau of Justice
Statistics believes that even those crimes that are reported
are just a fraction of those that actually occur.
In the week following the Oak Creek shooting, there were
numerous attacks on mosques, including a mosque being burned to
the ground in Joplin, Missouri; a shooting at a mosque in my
home State, in Morton Grove, Illinois, while 500 worshipers
were praying inside; and an unidentified perpetrator throwing
an improvised explosive device at an Islamic school, again in
Illinois, in Lombard, during a prayer service. According to the
Justice Department, the increase in discrimination against
mosques since 2010 ``reflects a regrettable increase in anti-
Muslim sentiment.''
At the same time, African Americans continue to be targeted
by a vast majority of racially motivated hate crimes; Jewish
Americans continue to be victims of religiously motivated hate
crimes; Latinos are the victims of most ethnically motivated
hate crimes; and hundreds of LGBT Americans are the victims of
violent hate crimes every single year.
Three years ago, I was honored to stand next to President
Obama's side in the East Room of the White House when he signed
into law the Matthew Shepard and James Byrd, Jr., Hate Crimes
Prevention Act. Today we will hear about the Justice
Department's efforts to use this authority to investigate and
prosecute these crimes.
But what are we doing to prevent hate crimes in the first
instance? Are sufficient resources being devoted to combating
the threat of violent domestic extremism and to protect those
who are vulnerable?
The numbers speak for themselves. According to a study by
the New America Foundation and Syracuse University, 18 people
have been murdered in 10 right-wing terrorist attacks since 9/
11; 17 have been killed in 4 attacks by violent Muslim
extremists. And, since 9/11, 15 domestic extremists have
acquired chemical or biological weapons that they intended to
use in attacks. As one public FBI report warned, ``right-wing
terrorists pose a significant threat due to their propensity
for violence.''
Well, since 9/11, Congress has held dozens of hearings on
the threat posed by al Qaeda and its affiliates. This is the
first hearing in many years on the threat of violent domestic
extremism. Of course, absolutely we have to continue our
efforts to defeat al Qaeda, but we cannot ignore the threat of
homegrown non-Islamic terrorism.
In recent weeks, we have been reminded that many around the
world do not appreciate America's unique approach to hate
speech and blasphemy. So let me be clear. Under our
Constitution, we punish criminal acts, not free speech, no
matter how offensive or hateful it might be.
But our leaders, our leaders still have a responsibility to
speak out against hate speech. That is what President Obama did
in condemning the anti-Islamic movie that sparked the protests
in the Muslim world.
And that is what President George W. Bush did. It was 6
days after 9/11--11 years ago this week--that President Bush
visited an Islamic Center in Washington, D.C., to make it clear
that our fight was with al Qaeda, not American Muslims.
President Bush said, ``The face of terror is not the true faith
of Islam. That's not what Islam is all about. Islam is peace.''
Now, I had plenty of political differences with President
Bush, and I have said that on many occasions. But I believe
that his leadership as President helped to stop an anti-Muslim
backlash after 9/11 because he spoke out so clearly so quickly.
I am sorry to say that many political leaders are failing
to follow his example and the example of President Obama. One
recent example, several Members of the House of Representatives
have gone so far as to question the loyalty of American Muslims
serving in the Obama administration.
Now, this kind of rhetoric is inconsistent with our
heritage as a diverse nation of immigrants. Most Americans
realize our diversity is our strength. They do not question the
religious background of their fellow citizens. When Lieutenant
Murphy rushed into a hail of bullets at the Oak Creek Gurdwara,
he was not questioning first the religion of the victims. He
knew they needed help, and he responded.
In conclusion, I hope this hearing will redouble our
efforts to combat the threat of domestic extremism and to take
whatever steps are necessary to protect the vulnerable in
America.
Some would argue we should not be discussing our
shortcomings in public while there are protesters around the
world burning American flags. They claim that America might
show weakness when it acknowledges its mistakes. I could not
disagree more. America is strongest when we lead by example. We
are a country that can look ourselves squarely in the mirror
and admit that there is work still to be done to secure the
promise of equal justice for all.
[The prepared statement of Chairman Dick Durbin appears as
a submission for the record.]
Senators as they arrive will be recognized, but I want to
turn to our first panel. Each witness is going to have 5
minutes for an opening statement, and their complete written
statements will be included in the record. As is the custom of
the Judiciary Committee, I ask that the witnesses stand to be
sworn.
Please raise your right hand. Do you affirm the testimony
you are about to give before the Committee will be the truth,
the whole truth, and nothing but the truth, so help you God?
Mr. McAllister. I do.
Mr. Austin. I do.
Mr. Clancy. I do.
Chairman Durbin. Thank you. Let the record reflect that the
witnesses have answered in the affirmative.
The first witness is Roy Austin, Jr., Deputy Assistant
Attorney General in the Civil Rights Division of the Justice
Department. Among other responsibilities, Mr. Austin supervises
the Criminal Section, which enforces Federal hate crime law.
Mr. Austin began his career as an honors trial attorney in the
Criminal Section investigating and prosecuting hate crime
cases. In addition to two stints in private practice, Mr.
Austin previously worked in the U.S. Attorney's Office for the
District of Columbia, where, among other positions, he was
senior assistant U.S. Attorney and coordinator of the D.C.
Human Trafficking Task Force. He is an adjunct professor at
George Washington University Law School, and he received his
B.A. from Yale University and his J.D. from the University of
Chicago.
Mr. Austin, thanks for being here today, and please proceed
with your testimony.
STATEMENT OF ROY L. AUSTIN, JR., DEPUTY ASSISTANT
ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, U.S.
DEPARTMENT OF JUSTICE, WASHINGTON, DC
Mr. Austin. Thank you and good afternoon, Chairman Durbin
and Members of the Subcommittee. I am honored to come before
you to represent the Civil Rights Division of the Department of
Justice and discuss one of the Department's priorities: hate
crimes prevention and enforcement.
The topic of this hearing is deeply important to me on a
professional and personal level. As a Deputy Assistant Attorney
General, I oversee the dedicated career professionals in the
Division's Criminal Section who are charged with prosecuting
hate crimes across this country. But before I rejoined the
Department, I served as a line prosecutor in the same section,
working on bias-motivated assaults, cross burnings and church
arsons, and I saw how the devastation caused by a single act of
hate can reverberate through families, through communities and
places of worship, and through this entire Nation.
I can also tell you that the Nation's hate crime statutes,
passed with bipartisan congressional support, are powerful
tools for combating hate and violence, so that all of our
citizens can live free from fear of being targeted because of
their race, the color of their skin, the religion they
practice, or who they love.
I thank Senator Leahy, Senator Durbin, and all 63 Senators
who supported our most recent hate crime statute, the Matthew
Shepard and James Byrd Hate Crimes Prevention Act of 2009,
which gave us for the first time a Federal law that
criminalizes violence motivated by sexual orientation, gender
identity, gender, and disability. State and local prosecutors
continue to prosecute the vast majority of hate crimes with the
Federal Government serving as a backstop. But the Civil Rights
Division and U.S. Attorney's Offices have taken the lead in
cases where such Federal involvement was in the public interest
and necessary to secure substantial justice or where the State
has requested that the Federal Government assume jurisdiction.
While we as a Nation have made significant progress
addressing hate crimes, recent events, like the absolutely
horrific mass shooting at the Sikh gurdwara in Oak Creek,
Wisconsin, reminded us all too vividly that our work is not
done. This incident has highlighted the question whether to re-
examine the categories of religious groups that are listed on
the FBI's hate crimes data collection form, a form that is used
to capture the perpetrator's motivation and not the victim's
background.
In the next few weeks, the Civil Rights Division and the
Community Relations Service will bring together a broad
spectrum of religious organizations, including groups
representing Sikh Americans, to elicit their views on what
information should be collected. Separately, the FBI's panel of
outside subject matter experts will hear from stakeholders.
Today I am proud to share with you the Division's recent
accomplishments in preventing, punishing, and deterring violent
acts of bigotry and hate. We have aggressively responded to
incidents where people use the hatred and fear spread by
terrorists as an excuse to engage in their own acts of
violence. All told, since 9/11, in cases targeting Arab, Middle
Eastern, Muslim, Sikh, and South Asian individuals, the
Department has brought 43 prosecutions against 55 defendants in
cases with 47 convictions to date. Members of these groups are
as much a part of the diverse fabric of America as anyone else.
We are prosecuting cases where people are targeted and
attacked because of their sexual orientation. Just last month,
a defendant in Detroit, Michigan, pled guilty in Federal court
for assaulting a man at a convenience store because he thought
the man was gay.
We are prosecuting violent acts of intolerance motivated by
race, from the case of a young Native American with a
developmental disability in New Mexico who was branded with a
swastika by a hot wire hanger, to the cross burnings that still
persist as painful symbols of bigotry and hate.
We secured the conviction of defendants in Arkansas who
chased a group of Latino men from a gas station with anti-
Latino slurs, ramming their truck into the victim's car until
it ran off the road, flipped over, and burst into flames. These
victims did nothing to deserve the violence they faced.
We are also tackling the problem of hate crimes using the
Internet. A New Jersey man who went by the name ``Devilfish''
pled guilty in Federal court to charges related to sending
threats to employees of five Latino civil rights organizations.
Under the leadership of Attorney General Eric Holder and
Assistant Attorney General Thomas Perez, in Fiscal Year 2011
the Division convicted 42 defendants on hate crimes charges,
the largest number in more than a decade. And as of this month,
the Division has charged 13 cases against 37 defendants under
the Shepard-Byrd Act. Because this Act enhances the Division's
ability to assist our law enforcement partners, starting in the
five States without hate crime statutes, the Division has
trained thousands of State and local authorities and community
members on how to identify, investigate, and prosecute hate
crimes in communities across this country.
Our work in the Department of Justice is about the families
that worship at a mosque in Murfreesboro, Tennessee, who
received a bomb threat from a man in Texas last September
because they are Muslim.
Our work is about a gay man who was kidnapped and assaulted
in Kentucky because he is gay.
Our work is about a black man in Mississippi who was killed
by being run over by a truck because he is black.
Our work is about men and women in California who saw their
church and their synagogue seriously damaged because they are
Christian and because they are Jewish.
Our work is about making communities divided by hatred and
ignorance whole.
It is sad that violent acts of hate continue to occur in
2012, but we will continue to vigorously enforce the law so
that all individuals enjoy the civil rights guaranteed by our
Constitution.
Thank you, and I look forward to your questions.
[The prepared statement of Roy L. Austin, Jr., appears as a
submission for the record.]
Chairman Durbin. Thanks, Mr. Austin.
Our next witness is Scott McAllister. He is the Deputy
Under Secretary for Intelligence and Analysis, State and Local
Program Office of the Department of Homeland Security. In that
role, he manages DHS and interagency support to the national
network of fusion centers. Previously, Mr. McAllister held a
number of senior positions at the Florida Department of Law
Enforcement, including assistant special agent in charge of the
Fort Myers Regional Operations Center, assistant special agent
in charge of domestic security and operational intelligence at
the Headquarters Division, and deputy homeland security
adviser. He has more than 36 years of State and local law
enforcement experience. He is a graduate of the Executive
Leaders Program at the Naval Postgraduate School, has a
master's of science degree in management from Rosemont College.
Mr. McAllister, please proceed.
STATEMENT OF HON. SCOTT MCALLISTER, DEPUTY UNDER SECRETARY,
STATE AND LOCAL PROGRAM OFFICE, OFFICE OF INTELLIGENCE AND
ANALYSIS, U.S. DEPARTMENT OF HOMELAND SECURITY, WASHINGTON, DC
Mr. McAllister. Thank you, Chairman Durbin.
First of all, I would like to express condolences to the
victims and their families of the folks that you mentioned
earlier, as well as those others throughout the country that
have suffered through acts of violent extremism.
I appreciate the opportunity to testify today on behalf of
the Department of Homeland Security's efforts to keep our
Nation safe from evolving threats. As Secretary Napolitano has
said many times, homeland security begins with hometown
security.
As part of our commitment to strengthening hometown
security, we have worked with our Federal partners,
specifically the FBI, to get the information, tools, and
resources out of Washington, DC, and into the hands of the
State and local officials across our country. Over recent years
within the Department, we have worked aggressively to implement
a distributed homeland security and counterterrorism
architecture that enables us to improve support to secure our
Nation's home towns. This architecture, comprised of several
mutually reinforcing elements, to including improving
production and dissemination of classified and unclassified
information, while maturing State and local grassroots
intelligence and analytical capabilities through the national
network of State and local owned fusion centers; implementing
the nationwide Suspicious Activity Reporting Initiative to
establish standard processes to identify, report, analyze, and
share suspicious activity reporting; and engaging the public
through the nationwide expansion of ``If You See Something, Say
Something'' campaign; also building our partnership to counter
violent extremism.
Successfully integrating all these elements while
protecting individuals' privacy, civil rights, and civil
liberties requires close coordination and cooperation between
the Federal Government and our State and local partners.
DHS' Office of Intelligence and Analysis has a unique
analytical mission, enabling us to support and connect with
front-line personnel to better protect their communities. We
blend intelligence from DHS components, the intelligence
community, State and local partners, and other stakeholders to
produce homeland security-centric products. We then share those
products through the national network of fusion centers. These
products include actionable intelligence and analysis to ensure
homeland security partners have the information they need to
identify and disrupt threats.
DHS also partners with the FBI to prepare joint
intelligence bulletins pertaining to emerging threats that are
targeted to our State and local partners and designed to
increase their awareness. DHS has transformed the way in which
we train front-line personnel through the national Suspicious
Activity Reporting Initiative. This initiative, in partnership
with the Department of Justice, is a comprehensive effort to
train State and local law enforcement and homeland security
partners in recognizing behaviors and indicators potentially
linked to terrorism and terrorism-related crime, standardize
how those observations are documented and analyzed, and ensure
sharing of those reports with the FBI-led Joint Terrorism Task
Forces for further investigation.
Because an engaged and vigilant public is vital to
protecting our communities, we have also continued to expand
the ``If You See Something, Say Something'' public awareness
campaign designed to raise public awareness of terrorism
indicators and emphasize the importance of reporting suspicious
activity to the proper law enforcement authorities.
In the same vein, we believe that local authorities and
community members are best able to identify individuals or
groups residing within their communities who exhibit suspicious
behaviors and to intervene before they commit an act of
violence. Incorporating this belief into our everyday practice,
the Department's efforts to counter violent extremism are
threefold:
First, we are working to better understand violent
extremism through conducting extensive analysis and research on
the behaviors and indicators of violent extremism and sharing
those with our State and local partners.
Second, we are strengthening partnerships within the State,
local, and international partners, including the sharing of
best practices and delivery of training courses.
And, third, we are expanding support for community policing
efforts in coordination with our Federal partners, to include
the FBI and Department of Justice.
In conclusion, we are confident that America is stronger
and more prepared as a result of efforts to strengthen the
homeland security enterprise, although threats from terrorists
persist and continue to evolve. Recognizing this evolving
landscape where threats may not emanate from any one
individual, group, or place, we realize that it is essential
for us to partner and engage with our State and local partners
as well as the public, acknowledging that they may be best
positioned to identify those threats. Proceeding with this
shared responsibility, the Department is honored to be a
partner in this effort to secure our great Nation.
Thank you for the opportunity to outline DHS' efforts to
prepare for and prevent terrorist attacks on the homeland, and
I look forward to your questions.
[The prepared statement of Hon. Scott McAllister appears as
a submission for the record.]
Chairman Durbin. Thanks, Mr. McAllister.
Our next witness on this panel is Michael Clancy, Deputy
Assistant Director for the Counterterrorism Division in the
Federal Bureau of Investigation. Mr. Clancy has held numerous
senior positions in the FBI, including special assistant to the
National Security Branch Executive Assistant Director, section
chief of the Domestic Terrorism Operations Section, assistant
special agent in charge of the Richmond field office, and
assistant section chief of the Strategic Information and
Operations Center. He began his career with the FBI as a
special agent in 1991. He served for a period of time as a
trial lawyer. He has now rejoined the FBI.
The floor is yours.
STATEMENT OF MICHAEL A. CLANCY, DEPUTY ASSISTANT
DIRECTOR, COUNTERTERRORISM DIVISION, FEDERAL
BUREAU OF INVESTIGATION, WASHINGTON, DC
Mr. Clancy. Good afternoon, Chairman Durbin and Members of
this Committee. It is my honor to come before you to represent
the Counterterrorism Division of the Federal Bureau of
Investigation to discuss one of the highest priorities of the
Bureau: the threat posed by domestic extremists. The turnout
today is testament to the importance of this issue.
On September 10, 2012, the FBI disseminated its National
Terrorism Assessment on Domestic Terrorism. In the formulation
of this assessment, the overall threat ranking considers
intent, capability, and posture in its determination of the
threat domestic extremist movements pose in the United States.
The FBI assesses that economic and political events--foremost
among them the coming Presidential election--are likely to
provoke domestic extremists into a more active state, although
this is unlikely to drive an increase in large-scale violence.
Smaller, localized acts of violence committed by domestic
extremists, however, cannot be dismissed. The FBI further
assesses that domestic extremist movements pose a medium-to-low
terrorism threat. Specific political and economic events
scheduled in 2012 create the potential for greater volatility
within domestic extremism than existed in the previous year.
In recent months, the FBI has seen numerous examples of
domestic terrorism and violence committed by lone offenders or
small cells. For example, this year the FBI proactively
dismantled an anarchist extremist cell comprised of five men
who planned to blow up a bridge in Cleveland, Ohio. Four
members of the cell have pleaded guilty, and the fifth member
is going to trial. In November 2011, four members of a militia
in Georgia were arrested for planning to acquire silencers and
explosives to use against various U.S. Government targets in
Atlanta, Georgia. To date, two of the subjects have been
sentenced to 60 months' incarceration and 3 years of supervised
release for conspiracy to possess an unregistered destructive
device.
This summer, we have witnessed multiple, high-profile lone-
offender shootings. The FBI investigated each of these
incidents in partnership with Federal, State, local, and tribal
law enforcement agencies as potential acts of domestic
terrorism. Three of these shootings--at a movie theater in
Aurora, Colorado; at a Sikh temple in Wisconsin; and at the
Family Research Council headquarters in Washington, DC--
resulted in the combined deaths of 18 individuals and the
wounding of over 50.
Significant political events and scheduled international
and economic meetings, combined with ongoing economic concerns,
create the potential for greater volatility within domestic
extremism in 2012 than existed in the previous year. While all
domestic extremist movements pose a threat, the potential
outcomes are especially relevant in the current environment:
We have election-related events which heighten the
opportunity for anarchist extremism in 2012;
The 2012 election process may revitalize recruitment
efforts for the white supremacist extremist movement;
Militia extremists are expected to continue targeting law
enforcement and government officials in response to any
recently enacted legislation that is perceived as infringing on
their constitutional rights;
White-collar crime by those in the extremist ``sovereign
citizen'' antigovernment movement who exploit the housing
crisis could continue if the housing sector of the economy
remains weak throughout the year;
Environmental extremists may engage in criminal activity--
including the destruction of property--if they perceive that
legislative efforts to protect and preserve the environment are
ineffective or unsuccessful.
Over the next year, domestic extremists are likely to
maintain the intent and capability to pose a persistent threat
involving smaller-scale bombings, assaults, firearms and
explosives violations, arson, white-collar crime, threats, and
other violations of Federal law.
The FBI will continue to enhance its crucial partnerships
with Federal, State, local, tribal, and foreign law enforcement
agencies, other members of the U.S. intelligence community, and
the private sector to combat the unrelenting threat of domestic
terrorism.
In every domestic terrorism investigation--and indeed, in
every investigation--we in the Bureau strive to balance the
need to keep the American public safe with the need to protect
constitutional rights, including the First Amendment rights to
free speech and freedom of assembly. Intelligence and
technology are key tools we use to stay ahead of those who
would do us harm. Yet as we evolve and update our investigative
techniques and our use of technology to keep pace with today's
complex threat environment, we must always act within the
confines of the rule of law and the safeguards guaranteed by
the Constitution. It is not enough to stop the terrorists; we
must always do so while maintaining civil rights and civil
liberties. Following the rule of law and upholding civil rights
and civil liberties--these are not our burdens. These are what
make all of us safer and stronger. In the end, we in the FBI
will be judged not only by our ability to keep Americans safe
from terrorism, but also by whether we safeguard the civil
rights and civil liberties for which we are fighting and
maintain the trust of the American people.
Thank you for the opportunity to address the Subcommittee
on the FBI's efforts to counter domestic terrorism.
[The prepared statement of Michael A. Clancy appears as a
submission for the record.]
Chairman Durbin. Thank you, Mr. Clancy.
Last night, as I was preparing for this hearing, I started
to dig through my desk drawer to find a little book that I keep
of information I pick up as I travel around, and I finally
found it. It was a book that I was carrying with me 3 months
after 9/11. And I had just landed at O'Hare Airport, and I got
in the cab line, and the first cab to come up as a driver had a
man wearing a turban. And I got inside and sat down and looked
at his name. It was Richard Basra. He was from a suburb of
Chicago. This was 3 months after 9/11. I said, ``How is it
going for you?'' He said, ``Okay.'' I said, ``Are people giving
you any grief, any problems because of the way you are
dressed?'' ``Oh, sure,'' he said, ``some people are. Some
people are mean, but not many. Most people are just fine.'' And
I said, ``Well, I am glad it is going well for you.''
He said, ``Let me show you something.'' He reached over and
he pulled down the visor on the passenger side, and there was a
picture of a young American soldier. He said, ``This is my son,
Michael. He is in the Special Forces in the United States Army.
He was in Kosovo, and now I am not sure where he is.'' But this
was right after 9/11. ``I think he may be in Afghanistan.'' He
said, ``His brother is coming out of high school and is going
to enlist in the Marine Corps.''
I have told that story a dozen times, I am sure, because it
struck me as a definitive story about who we are as Americans,
and the prejudice of some people ignores the reality of the
fact that patriotic, peace-loving Americans come in every
color, every religion, every background.
Mr. Austin, one of the things that puzzles me is this: A
few months after that, Amardeep Singh, who is here today on
behalf of the Sikh Coalition, came to see me, and he said, you
know, right after 9/11, there was a Sikh American who was
killed in Arizona. It was obviously a hate crime. It was in all
of the stress and anger that came out of 9/11. He said, ``Would
you put in a resolution''--and we have had resolutions saying
do not discriminate against Muslims and so forth. ``Would you
put one in on behalf of those of the Sikh religion?'' And I
did, and it passed overwhelmingly in a bipartisan way.
So it was clear that at least for the last 10 or 11 years,
there has been ample evidence of prejudice against Sikh
Americans, even violence against Sikh Americans.
Now, the Department of Justice collects information on hate
crimes. There is a Hate Crime Incident Report, and it lists
many religions, and even those with no religion. But it does
not list the Sikh religion. I know for 2 years Sikh Americans
have been asking that there be a special category on the Hate
Crime Report so that we can keep track.
A little later on this afternoon, Harpreet Singh is going
to testify here. He lost his mother at Oak Creek, and he is
going to say, ``I came here today to ask the Government to give
my mother the dignity of being a statistic.''
Why don't we have a special place here for identifying hate
crimes against Sikh Americans?
Mr. Austin. Senator, the Department of Justice has met
regularly with Sikh Americans and other faiths, and we have
heard this concern, and we are going to take action with
respect to this concern. Today, DAG Jim Cole has announced that
the Civil Rights Division and the Community Relations Service
are going to bring together a broad array of religious groups
to address exactly what kinds of statistics should be kept, and
we plan to invite and have spoken to the Sikh community as
well. And the FBI has a process that is gone through before
determining how the form is changed. And the Department of
Justice will play an active role with respect to that process
to ensure that the form properly reflects those who are
perpetrators, those who are victimized by hate crimes.
Chairman Durbin. Things move pretty slowly at the Federal
level, and the request has been there for more than 2 years.
Can you give me some kind of indication of when the decision
might be made?
Mr. Austin. There will be a meeting in October, mid-
October, in which what the Department of Justice finds will be
presented to an FBI committee. At that point, the decision of
the Department of Justice will be known.
Chairman Durbin. Thank you. I think in light of the
terrible incident in Oak Creek, Wisconsin, that this would be a
good thing for us to do as expeditiously as possible.
You mentioned your background when it came to church
bombings. It was not that long ago, just a few years back, when
we had the incidents of largely African American houses of
worship and churches that were being fire-bombed in various
parts of the country, some parts of the South.
As a result of that, we formed an interagency task force
and tried to break through some of the usual paths of
investigation and enforcement and expedite that effort. Can you
tell me if you believe that that is appropriate here under the
circumstances with the acts of violence that we have seen at
the Sikh temples as well as mosques?
Mr. Austin. Senator, I believe that under this Department
of Justice, there has been an incredible amount of cooperation
across agencies on all types and levels of crime. The fact that
DHS and the FBI and a line attorney largely from the Department
are sitting here together right now is a testament to that
level of cooperation. I think that this administration is
dealing with these crimes as aggressively as possible and
working with every tool that we have in our arsenal to do so.
I do not know whether a new formal committee is necessary
because I believe that the work is being done right now by
those of us who are working on these issues.
Chairman Durbin. Well, that type of task force under
President Clinton had dramatic positive results, so I would
commend it to you as a model that you would at least consider,
if not explore, to see if we could address this pattern of
discrimination against Muslims, Arabs, Sikhs, and South Asian
Americans.
I would like to ask you, Mr. Clancy, the individual who was
engaged in the terrible incident at Oak Creek, Wisconsin, was a
man whose name was Wade Michael Page. He killed Harpreet Singh
Saini's mother and five other individuals, and he was a well-
known white supremacist. He was being tracked by the Southern
Poverty Law Center and the Anti-Defamation League. He is dead,
so I assume there is not an ongoing criminal investigation. I
hope you will be able to answer this question. Was there a
breakdown in intelligence here that we knew this man to be
dangerous and that he was not ferreted out, tracked, or called
in and investigated before this incident? Was he being tracked
by our intelligence community? Were there any warnings issued
to the Sikh community about potential threats? And was there
any assistance provided to the community to protect them under
the circumstances?
Mr. Clancy. Senator, I will tread lightly here as it is an
ongoing investigation, but I can tell you this: We did know of
this individual. Certainly as the Southern Poverty Law Center
pointed out, they knew of this individual as well. We did not
have a case open on him. He was not what we would characterize
as a predicated subject. His activities had not risen to the
level that we would be able to, under our Attorney General
guidelines, open an investigation on him.
But like many thousands of people, he was an attendee at
what could be described as white supremacist conferences
throughout the country and was heavily involved in the white
supremacist music scene. So we were aware of him as a
peripheral figure, but he never emerged as more than that. We
never had any information on him pertaining to violent acts
against anybody. He was certainly covered in tattoos which
indicated his affiliation with different white supremacist
groups. He dressed like that. None of those things are, of
course, against the law. He engaged in a lot of hate speech,
again, not against the law.
So while we were aware of him, we did not have an open
investigation on him, nor did we ever have any information that
he posed a threat to any group, particularly Sikhs.
Chairman Durbin. Mr. McAllister, the Department of Homeland
Security provided us with background on your work with the
Jewish community. Unfortunately, there are many incidents of
anti-Semitism which rise to crimes of violence, many incidents
of property destruction in the name of anti-Semitism. With your
extensive work with the Jewish community, you have tried to
provide some information sharing to keep them safe and to warn
them when something might be a danger.
DHS also participates with the Jewish community in the
Secure Community Network, which share information on crisis
situations and try to increase security awareness. You
administer the nonprofit security grant program, providing
money and assistance to nonprofit organizations to improve
security of potentially vulnerable infrastructure, like houses
of worship, schools, and community centers. This year, Jewish
organizations received almost $10 million in funding, and I
commend the Department of Homeland Security for working very
closely with the Jewish community under these circumstances.
Is this a model that we should be using to protect other
vulnerable religious communities like Muslims and Sikhs?
Mr. McAllister. Thank you, Senator, for that question, and
we appreciate you pointing the good work that the Department is
doing in that arena.
The Secretary has what is known as a Homeland Security
Advisory Council, and there is also a subcommittee to that that
consists of faith-based organizations that cover a broad
breadth of a variety of different faith-based communities and
organizations. We meet with them regularly. They provided
recommendations in order to better improve our ability to
outreach and collaborate with the various faith organizations
and communities throughout the United States.
On the heels of some of these tragic events that have
occurred, we have also gone and contacted those folks in order
to discuss a variety of different topics. One is to provide
them the information we had at the time of whatever the tragic
event was at that moment, also work in dialogue in order to
determine what we can do in order to spread the accurate
information, in order to dispel any disinformation that could
cause angst within the communities, as well as work on actual
condemnation of acts of violent extremism.
So it is an open dialogue. It is actively being pursued. It
is part of our countering violent extremism initiative. And we
are also working with not only our faith-based communities but
also examining those lessons learned and those indicators from
these tragic events and communicating those out through the
form of training to our State, local, and private sector folks.
We provide our faith-based organizations information from our
protective security advisers when it comes to what they can do
in order to be cognizant of suspicious behaviors or packages
and the like around their facilities, as well as the ability to
report those things, in addition some protective measures in
order to strengthen their ability to thwart such an event.
Chairman Durbin. Mr. Clancy, according to Daryl Johnson,
who will testify on the next panel, the FBI published a public
annual report entitled ``Terrorism in the United States from
1980 to 2005.'' Mr. Johnson believes that report was a valuable
resource for law enforcement. Why did the FBI stop the issuance
of this report? Do you agree with Mr. Johnson that the FBI
should consider resuming it?
Mr. Clancy. I think so. The reports are valuable for our
law enforcement partners out there and for the public as well
to see what we are looking at, what the trends are.
The bottom line is, when it comes to looking at groups, the
FBI used to have a tactical approach to cases, but now we are
more strategic focused and looking over the horizon and trying
to predict behaviors and threats. And I think those types of
reports are certainly valuable in that regard.
Chairman Durbin. In your testimony, you referenced the
FBI's National Terrorism Assessment on Domestic Terrorism,
which you published last week. Is this an unclassified
document? And if so, would it be available?
Mr. Clancy. It is unclassified, but it is ``Official Use
Only,'' so it is limited distribution.
Chairman Durbin. I hope we can get in your distribution
chain. I would like to see it.
Mr. Clancy. I would be happy to provide that to you,
Senator.
Chairman Durbin. Thank you very much.
Mr. McAllister, Daryl Johnson, as I mentioned earlier, who
will also testify a little later, claims that the DHS has
actually downsized the team of analysts working full-time on
non-Islamic domestic terrorism. Mr. Johnson used to head up
that team. He says the DHS has reduced the number of analysts
from five to one. My staff requested information about this in
advance of the hearing. We were told it was classified.
However, a DHS official is quoted in The Washington Post story
saying, ``The number of analysts on a daily basis has decreased
somewhat.''
So how many DHS analysts focus on non-Islamic domestic
terrorism?
Mr. McAllister. Well, Senator, some of that information as
far as the specific numbers of individuals would be considered
sensitive. But the Department is fully equipped in order to
look at violent extremist acts, whether it is stemming from
international or domestic in nature. We provided an
organizational chart earlier to staff before this hearing that
kind of articulates how the breakdown is structurally within
the Office of Intelligence and Analysis. But, again, it goes
toward our ability in the Department's daily activity when it
comes to countering violent extremism, where we work to strive
toward providing the tools and information necessary for those
indicators and behaviors of violent extremism, regardless of
whether it is domestic or international, to not only our
personnel but also our State and local partners and the
community.
Chairman Durbin. Thank you. I want to thank this panel. My
colleagues may be sending in some written questions, which I
hope you will respond to on a timely basis so the record can be
complete. But your testimony today is much appreciated, and we
will follow through with you on some of the questions that were
asked. So I thank you and you are excused at this point.
I will also, with unanimous consent, enter a statement in
the record from our Chairman, Senator Leahy, who cannot be with
us this afternoon but has a strong interest in the human rights
and civil rights issues, and it will be entered into the
record.
[The prepared statement of Chairman Patrick J. Leahy
appears as a submission for the record.]
Chairman Durbin. Let me ask that the second panel be
brought to the table.
If I could ask the witnesses to please stand for the
customary oath. Would you raise your right hand? Do you
solemnly swear that the testimony you are about to give will be
the truth, the whole truth, and nothing but the truth, so help
you God?
Mr. Saini. I do.
Mr. Johnson. I do.
Professor Jacobs. I do.
Chairman Durbin. Thank you. Let the record indicate that
the witnesses have all answered in the affirmative.
Senator Kohl is on his way, and I am going to hold off on
the introduction of Mr. Saini until he arrives. I will do by
way of general introduction our other two witnesses.
James Jacobs is the Warren Burger Professor of Law at the
New York University School of Law, where he has been a faculty
member since 1982. He specializes in criminal law, criminal
procedure, and a broad range of criminal justice issues,
including hate crime. In 1998, Oxford University Press
published his book, ``Hate Crimes: Criminal Law and Identity
Politics.'' Professor Jacobs is a 2012-13 Guggenheim Fellow. He
received his B.A. from Johns Hopkins University and law degree
from the University of Chicago.
I want to thank Senator Graham and his staff for working
cooperatively with us on this hearing and note that Senator
Graham asked that we invite Professor Jacobs as a witness, and
we are honored that you would join us today. Thank you very
much.
I am going to introduce the other witnesses in the hopes
that Senator Kohl can be in the room in just a moment.
Daryl Johnson, whom I mentioned in an earlier part of the
Committee hearing, is an expert on domestic terrorism and is
the chief executive officer of DT Analytics, a private
consulting company. He also serves as a part-time instructor on
domestic terrorism at the ATF National Academy. Previously, Mr.
Johnson was the senior domestic terrorism analyst at the U.S.
Department of Homeland Security's Office of Intelligence and
Analysis where he led a team of analysts responsible for
analyzing domestic extremist activity. Prior to his service at
DHS, Mr. Johnson was the lead expert on violent antigovernment
groups at the Bureau of Alcohol, Tobacco, Firearms, and
Explosives. He began his Federal career as a counterterrorism
analyst for the U.S. Army.
I am going to hold off, as I mentioned, until Senator Kohl
arrives to introduce you formally, Mr. Saini. Thank you for
being here.
Let me start then with Mr. Johnson, if you would like to
testify, and then Mr. Jacobs and Mr. Saini.
STATEMENT OF DARYL JOHNSON, FOUNDER
AND OWNER, DT ANALYTICS, LLC, WASHINGTON, DC
Mr. Johnson. Good afternoon, Mr. Chairman and Members of
the Committee. Thank you for giving me this opportunity to
appear before you to discuss the significant issue of domestic
terrorism, and in particular the threat from violent
extremists.
The rising threat of domestic terrorism within the United
States should not diminish our focus on deterring threats from
al Qaeda and its affiliates; rather, our Nation's intelligence
and law enforcement resources need to be flexible and resilient
in their ability to combat terrorism from all sources of
violent extremism, including domestic non-Islamic extremists.
The threat from domestic terrorism motivated by extremist
ideologies is often dismissed and overlooked in the national
media and within the U.S. Government. Yet we are currently
seeing an upsurge in domestic non-Islamic extremist activity
specifically from violent right-wing extremists. While violent
left-wing attacks were more prevalent in the 1970s, today the
bulk of violent domestic activity emanates from right-wing
extremists. Recent acts of domestic terrorism have instilled
fear within the U.S. populations as extremists attempt to force
their social and political agendas through violence.
Since the 9/11 terrorist attacks, Muslim extremists within
the United States, either aligned with al Qaeda's ideology or
other perverse interpretation of violent jihad, have carried
out five attacks on U.S. soil. These attacks resulted in 17
deaths, 13 of which were from a single violent act at Fort
Hood. There have also been numerous arrests related to alleged
Muslim extremist terrorists plotting in the U.S. since 9/11.
In contrast, there has also been a multitude of domestic
non-Islamic extremist attacks, many of which have resulted in
deaths and injuries over the past 4 years. In particular,
domestic right-wing extremists trumped all other forms of
ideologically motivated violence in the U.S. for number of
deaths during this time period.
Some may argue that right-wing extremist attacks in the
U.S. are more prevalent than homegrown Muslim extremists
because they represent multiple movements, such as white
supremacists, militia extremists, sovereign citizens, and
antiabortion extremists. This is simply not true. I would argue
that homegrown Muslim extremists in the U.S. have an equally if
not more diverse set of extremist causes and radical Islamic
movements to choose from, including al Qaeda and its
affiliates, Al-Shabaab, Hezbollah, Hamas, just to name a few.
Since the 2008 Presidential election, domestic non-Islamic
extremists have attacked 27 law enforcement officers, killing
16. Over a dozen mosques have been attacked with firebombs,
likely attributed to individuals embracing Islamophobic
beliefs. In May 2009, an abortion doctor was murdered while
attending church. Two other assassination plots against
abortion providers were thwarted during 2011, and six women's
health care clinics were attacked with explosive and incendiary
devices within the past 2 years.
Since 2010, there have been multiple plots to kill ethnic
minorities, police, and other government officials by militia
extremists and white supremacists in our country. In January
2010, we had a tax resister deliberately crash his small plane,
filled with a 50-gallon drum of gasoline, into an IRS
processing center in Austin, Texas, injuring 13 people and
killing a government employee.
The following year, three incendiary bombs were mailed to
government officials in Annapolis, Maryland, and Washington,
DC. Also, in January 2011, a backpack bomb was placed along a
Martin Luther King parade route in Spokane, Washington, meant
to kill and injure participants in a civil rights march.
In August 2012 alone, a white supremacist killed six
worshipers at a Sikh temple in Oak Creek, Wisconsin; sovereign
citizens have shot four sheriff deputies, killing two, in St.
John's Parish, Louisiana; and four active-duty U.S. army
soldiers who had formed an antigovernment militia group and
were hoarding weapons and ammunition in an alleged plot to
overthrow the Government, were charged in the deaths of two
associates who they worried might tip law enforcement to their
clandestine activities.
There was also what appears to have been an incident of
left-wing domestic terrorism. A single-issue extremist
reportedly shot a guard at the Family Research Council office
here in Washington, DC. Unfortunately, these are only the
latest manifestations of domestic non-Islamic extremist
violence in the homeland.
It is also important to note that eight members of the
Hutaree, an extremist militia in Michigan, that were acquitted
this year of plotting to kill police officers and planting
bombs at their funerals, had an arsenal of weapons at their
disposal that was larger than all 230-plus Muslim plotters and
attackers charged in the U.S. since 9/11 combined.
Mr. Chairman and Members of the Committee, the Federal
Government must do more to combat domestic terrorism within the
U.S. Our failure to act now will assuredly embolden the enemy
and bring more attacks.
At the Federal level, there is a shortage of analysts
assigned to monitor and assess domestic extremist activity in
the U.S. Currently, the FBI is the only Federal agency that has
devoted multiple full-time resources to research and analyze
domestic terrorist tactics, tradecraft, and emerging trends.
Today the DHS has few resources conducting strategic analysis
on domestic terrorist threats. More resources are needed. Other
Federal agencies should also consider devoting analysts full-
time to this subject rather than part-time or on an ad hoc
basis.
While great strides have been made with respect to
information sharing since the 9/11 terrorist attacks,
jurisdictional infighting remains among departments and
agencies as well as communication gaps between levels of
government--local, State, and Federal. State and local fusion
centers have filled this important role in the information-
sharing gap, but more can be done.
Many law enforcement officers and analysts who looked at
domestic terrorism issues during the 1990s have retired or have
moved on to other assignments, which leaves a massive void in
knowledge and experience. A whole generation of State and local
officers has not been trained and has no clue what to look for.
Some civil rights and civil liberties organizations,
particularly within the U.S. Government, fail to recognize the
role extremist ideologies play in motivating extremists to
carry out acts of violence. As a result, they have severely
curtailed monitoring efforts within our Nation's law
enforcement agencies. Monitoring a person's behavior becomes
all the more clear when coupled with an understanding of
extremist beliefs. As a result, there needs to be a balanced
approach to intelligence analysis and threat assessment
comprising both extremist ideology and suspicious behavior.
At DHS, the most prevalent hurdle to timely dissemination
of domestic terrorism-related information is the Group of Six
(G6) Review Process. The G6 Review Process as it currently
stands negatively impacts I&A analysis because some of the
changes in products seem to be made using standards that are in
direct conflict with the intelligence community analytic
standards. G6 Review can adversely affect an analyst's
objectivity and political neutrality. The apparent purpose and
intent of the G6 Review Process is to screen products for
objectionable words, phrases, or topics that are politically
sensitive or perceived as offensive to certain groups of
people.
It is important that the U.S. Government take the lead in
developing new strategies and tools for law enforcement and the
courts to better deal with problems associated with domestic
extremism.
To conclude, Mr. Chairman, I thank you again for allowing
me to testify about this most important issue facing our
Nation. For many years, we have focused on the threat from al
Qaeda and homegrown Muslim extremists. It is now time to also
strengthen our resolve to combat violent domestic non-Islamic
extremism in all of its forms.
For the record, I have offered some of my insights
concerning the domestic terrorist threat, our current
limitations, and best practices in my written testimony. I hope
that some of these points will resonate with Committee Members
and inspire you to explore new ways to mitigate this threat and
prevent future acts of violence, and I look forward to
responding to any questions you may have.
[The prepared statement of Daryl Johnson appears as a
submission for the record.]
Chairman Durbin. Thanks, Mr. Johnson.
Our next witness is Harpreet Singh Saini, the son of
Paramjit Kaur Saini, who was tragically shot and killed in Oak
Creek, Wisconsin, on August 5, 2012. I am pleased to recognize
Senator Herbert Kohl, the senior Senator from the State of
Wisconsin, a long-time Member of the Judiciary Committee, to
introduce him formally. Senator Kohl.
Senator Kohl. Thank you for holding this important hearing,
Chairman Durbin. While I am not a Member of the Subcommittee, I
thank you for allowing me to speak here today.
I would like to introduce Harpreet Singh Saini. Harpreet
lives in Oak Creek, Wisconsin, and is a freshman at Milwaukee
Area Technical College majoring in law enforcement. Harpreet
lost his mother in the tragic shooting at the Sikh temple in
Wisconsin last month. Five other members of the Sikh community
lost their lives on that tragic day, and several others were
critically wounded, including a law enforcement officer who
responded to the scene.
I know I speak for the Committee when I tell you, Harpreet,
how sorry we are for the loss of your mother and friends.
Though we can never know the pain that you have endured, be
assured that we are outraged and deeply saddened by the violent
assault on your peaceful community.
Harpreet's mother, Paramjit Kaur, was a dedicated wife,
mother, friend, and neighbor, profoundly committed to her
faith. Her sons, Harpreet and Kamaljit, who is also with us
today, plan to pursue careers in law enforcement. I am sure
your mother would be very proud. I also want to acknowledge
Milwaukee County Executive Chris Abele, who is in the audience
today, and ask that his testimony be submitted for the record.
[The prepared statement of Hon. Chris Abele appears as a
submission for the record.]
Senator Kohl. August 5th was a tragic day not only for Sikh
Americans but for all Americans, as is any day extremist hate
groups target people of faith with harassment and violence.
Unfortunately, although the Justice Department tracks crimes
against other religious groups, it does not track crimes
against Sikhs, so I am urging the Justice Department to start
doing so. Not only would it allow law enforcement to better
understand the scope of the problem, it will also encourage
Sikhs to report when they are victims. These are steps that we
must take to ensure that we never again endure a tragedy like
the one in Oak Creek.
We thank you for being here today to share your story with
us, and I thank you, Mr. Chairman.
Chairman Durbin. Thank you, Senator Kohl.
Mr. Saini, please proceed. Excuse me. You need to turn on
the microphone right in front of you there. Okay.
STATEMENT OF HARPREET SINGH SAINI,
OAK CREEK, WISCONSIN
Mr. Saini. My name is Harpreet Singh Saini. I would like to
thank Senator Durbin, Ranking Member Graham, and the entire
Subcommittee for giving me the opportunity to be here today. I
am here because my mother was murdered in an act of hate 45
days ago. I am here on behalf of all the children who lost
parents or grandparents during the massacre in Oak Creek,
Wisconsin.
A little over a month ago, I never imagined I would be
here. I never imagined that anyone outside of Oak Creek would
know my name, or my mother's name, Paramjit Kaur; or my
brother's name, Kamaljit Singh Saini. Kamal is here with me
today.
As we all know, on Sunday, August 5, 2012, a white
supremacist fueled by hatred walked into our local gurdwara
with a loaded gun. He killed my mother while she prayed. He
shot and killed five more--men. All of them were fathers, and
all of them had a turban like me. And now people know all our
names: Sita Singh. Ranjit Singh. Prakash Singh. Suveg Singh.
Satwant Singh Kaleka.
This was not supposed to be our American story. This was
not my mother's dream.
My parents brought Kamal and me to America in 2004. I was
only 10 years old. Like many other immigrants, they wanted us
to have a better life, a better education. In the land of the
free. In the land of diversity.
It was a Tuesday, 2 days after our mother was killed, that
my brother Kamal and I ate the leftovers of the last meal she
had made for us. We ate her last rotis--which are a type of
South Asian flatbread. She had made the rotis from scratch the
night before she died. Along with the last bite of our food
that Tuesday came the realization that this was the last meal
made by my mother's hand that we will ever eat in our lifetime.
My mother was a brilliant woman. Everyone knew she was
smart, but she never had the chance to get a formal education.
She could not. As a hard-working immigrant, she had to work
long hours to feed her family, to get her sons educated, to
help us achieve our American dream. This was more important to
her than anything else.
Senators, my mother was our biggest fan, our biggest
supporter. She was always there for us. She always had a smile
on her face.
But now she is gone. Because of a man who hated her because
she was not his color? His religion?
I just had my first day of college. And my mother was not
there to send me off. She will not be there on my graduation or
my wedding day. She will not be able to meet her grandchildren.
I want to tell the gunman who took her from me: You may
have been full of hate, but my mother was full of love.
She was an American. And this was not our American dream.
It was not the American dream of Prakash Singh, whose
children found him lying in a pool of blood that morning. They
shook his body and cried, ``Papa! Get up!'' But he was gone.
It was not the American dream of Suveg Singh Khattra, a
retired farmer who came here to be with his family. His family
found him face down, a bullet in his head, his turban thrown to
the side.
It was not the American dream of Satwant Singh Kaleka,
president of the gurdwara, who was killed while bravely
fighting the gunman.
It was not the American dream of Sita Singh and Ranjit
Singh, two brothers who sang prayers for our community. After
16 years apart, their family came to America for the first time
for their funerals.
And it was not the American dream of Santokh Singh or
Punjab Singh who were injured in the massacre. Punjab Singh's
sons are always by his side, but he may never fully recover
from his multiple gunshot wounds.
We ache for our loved ones. We have lost so much. But I
want people to know that our heads are held high.
My mother was a devout Sikh. Like all Sikhs, she was bound
to live in Chardi Kala, a state of high spirits and optimism.
Like her, my brother and I work every day to be in a state of
high spirits and optimism.
We also know that we are not alone. Many people have sent
us letters, attended vigils, and gave us their support: Oak
Creek's mayor and police chief, Wisconsin's Governor, the
President and the First Lady. It is their support that gives me
the strength to come here today.
Senators, I came here today to ask the Government to give
my mother the dignity of being a statistic. The FBI does not
track hate crimes against Sikhs. My mother and those shot that
day will not even count on a Federal form. We cannot solve a
problem we refuse to recognize.
Senators, I also ask that the Government pursue domestic
terrorists with the same vigor as attackers from abroad. The
man who killed my mother was on the watchlists of public
interest groups. I believe the Government could have tracked
him long before he killed my mother.
Finally, Senators, I ask that you stand up for us. As
lawmakers and leaders, you have the power to shape public
opinions. Your words carry weight. When others scapegoat or
demean people because of who they are, use your power to say
that is wrong.
So many people have asked Sikhs to simply blame Muslims for
attacks against our community or just say, ``We are not
Muslim.'' But we will not blame anyone else. An attack on one
of us is an attack on all of us.
I also want to be a part of the solution. That is why I
want to be a law enforcement officer like Lieutenant Brian
Murphy, who saved so many lives that day. I want to protect
other people from what happened to my mother. I want to combat
hate--not just against Sikhs but against all people. Senators,
I know what happened at Oak Creek was not an isolated incident.
I fear it may happen again if we do not stand up and do
something.
I do not want anyone to suffer what we have suffered. I
want to build a world where all people can live, work, and
worship in America in peace, because you see, despite
everything, I still believe in the American dream. In my
mother's memory, I ask that you stand up for that dream it with
me, today and in the days to come.
Thank you for considering my testimony.
[The prepared statement of Harpreet Singh Saini appears as
a submission for the record.]
Chairman Durbin. Mr. Saini, that testimony was touching.
Mr. Saini. Thank you.
Chairman Durbin. It was such a tribute to your mother, to
your family, to your religion, and to your community, and
really to the values of this Nation. So many things that you
said need to be heard, not just in this hearing room but across
this country. And I hope that the spirit that you bring will
teach all of us to be more tolerant and to fight forms of
discrimination wherever we can, whenever we can. Thank you for
your courage and your testimony today.
Professor Jacobs from New York University, you are invited
to testify.
STATEMENT OF JAMES B. JACOBS, CHIEF JUSTICE WARREN E. BURGER
PROFESSOR OF CONSTITUTIONAL LAW AND THE COURTS, NEW YORK
UNIVERSITY SCHOOL OF LAW, NEW YORK, NEW YORK
Professor Jacobs. Thank you, Senator. Thank you for
inviting me and giving me the opportunity to share my views
with the Subcommittee.
I, too, was touched and very moved by Mr. Saini's
presentation.
I have been a critic of hate crime laws for the last 20
years and think the whole movement to recriminalize violent and
other crime with hate crime laws was a wrong turn that will
turn out to be more divisive than consensus-building.
I hasten to add that I deplore discrimination and bias and,
of course, violent crime motivated by bias. However, all
violent crime, no matter what the bias or motivation, is
deplorable and, therefore, deservedly punished. I do not think
it is desirable or useful to create a hierarchy of crimes and
victims according to the racial, religious, gender, and sexual
orientation identity of the perpetrator and victim. Ultimately,
it is not desirable for this society to redefine crime in terms
of which identity groups are doing the most offending and which
are most offended against. Unlike other anti-discrimination
laws, hate crime laws can be and are used to punish members of
minority groups.
The subjectivity involved in labeling offenses as ``hate
crimes'' or ``bias crimes'' generates unnecessary and divisive
controversy. The early efforts by hate crime proponents to
resist including gender-motivated violence as a hate crime was
regarded by women as insensitive at best and blatantly
discriminatory at worse. The subsequent effort by many to
resist including anti-gay motivation as a bias crime trigger
was similarly perceived as discriminatory, offensive, and
intolerant. Today, we have heard, understandably, that the
failure to explicitly recognize anti-Sikh bias as a hate crime
category causes hurt and resentment. Hate crime laws themselves
discriminate.
Determining what is a bias crime is fraught with
difficulty, thus frustrating the aims of the Federal Hate Crime
Statistics Act. Many friends of that Act now criticize it for
failing to recognize the actual bias in the minds and hearts of
criminals. Some offenders are not caught and, therefore, of
course, we do not know their motivations in choice of victim,
even if they had a clear motivation. It is usually difficult to
determine an apprehended offender's motivations. Most
offenders, especially of extreme violence, are very confused
and disturbed. Is it useful or valuable to highlight their
biases? Even if police and prosecutors believe that they can
determine an offender's motivation, it is often very difficult
to prove.
One need only recall the recent New Jersey controversy:
whether Dharun Ravi's effort to photograph his roommate Tyler
Clementi's homosexual encounter should have been charged as a
bias crime. While all Americans could agree in condemning this
invasion of a roommate's privacy, there was great division and
controversy over whether Ravi's punishment should be doubled or
tripled because the roommate was gay. The whole fight was so
unnecessary since invasion of privacy is punishable in New
Jersey by a maximum punishment of 5 years in prison, surely
more than adequate to satisfy the goals of the criminal law.
Inadequately severe criminal sentences is not a problem for our
society.
In the 1980s, when the term ``hate crime'' was first
invented, its proponents said they meant for the laws to be
used to punish murderous plots by members of neo-Nazi and
similar hard-core hate groups bent on terrorizing and
destroying whole groups and communities. The reality is that
bias crime prosecutions are far more likely to be directed
against the Archie Bunkers of the world rather than the white
supremacist Tom Metzgers of the world. Indeed, most hate crime
prosecutions involve young defendants, frequently mixed-up
teenagers, who commit low-level offenses such as criminal
mischief and simple assault, typically escalating from
spontaneous altercations at a party, in a parking lot, or at a
school event. Many cases that initially are called hate crimes,
upon closer inspection, involve serious mental illness rather
than ideological commitment or an organized campaign. It is
worth pondering that the Federal hate crime statute, passed in
2009 to bring Federal law enforcement resources to bear on
hard-core murderous hate crime groups, is this week being used
to prosecute a breakaway Amish cleric in Ohio for religiously
degrading (by hair and beard cutting) Amish men who did not
adhere to his leadership.
As crime control policy, bias crime laws are unnecessary.
We have the longest criminal sentence maxima in the free world.
For murder, we have life imprisonment without parole or capital
punishment. Ironically, some States, in the name of creating a
more tolerant society, have made bias motivation an aggravating
factor that makes a murderer eligible for capital punishment.
Another irony is counting on greater use of prison to punish
bias crimes in the name of tolerance. The prisons are the
number one incubator of hate groups like the Aryan Brotherhood.
Hate crime laws are counterproductive. They politicize
crime and spawn charges of hypocrisy and double standards.
Those who are prosecuted call themselves victims of political
correctness and martyrs to the First Amendment.
The hate crime laws conflict with their proponents' usual
criticism of overuse of criminal law and especially
overincarceration. Sending more people to prison for longer
periods of time is not likely to contribute to a more tolerant
society.
Thank you.
[The prepared statement of Prof. James B. Jacobs appears as
a submission for the record.]
Chairman Durbin. Thank you, Professor Jacobs.
Mr. Saini, I asked a question of the first panel based on
your request that there be a category added to this report form
so that Sikh Americans would have some collection of statistics
and numbers, and I think the response was positive, and I
promise you that I will follow up with them to make sure that
it is considered on a timely basis.
Let me ask you what impact this terrible massacre has had
at your gurdwara and on your Sikh community in Oak Creek.
Mr. Saini. Just the people have been wonderful, and
everybody has come together now as one, and just to be--just
for that to happen, this was not a loss. This was a gain.
Chairman Durbin. You mentioned the President, the First
Lady, the Governor, and other leaders who have expressed their
sympathy for this terrible event. Have you noted any other
efforts by people of other religions and other backgrounds who
had not been part of your Sikh community before and are now
more closely associated?
Mr. Saini. Yes, like there are a lot of people that come to
us now, even Muslims, Christians, Hindus. Everybody has come to
our gurdwara and, you know, just been there for us.
Chairman Durbin. What about around the country? Have you
heard any similar stories from other members of the Sikh
community?
Mr. Saini. Yes, same thing. People have come around the
whole country, States, Washington, DC, they have come from New
York, people have come from India, all over the world. They
came just to be with us.
Chairman Durbin. Well, I am sorry that you had to lose so
much for this outpouring of support to occur, but I hope in
your mother's memory that it will be a positive thing for you
and your family and for your community in years to come. So
thank you again for your great testimony.
Mr. Saini. Thank you.
Chairman Durbin. It had such an impact.
Professor Jacobs, now we are going to move to this
constitutional debate or legal debate, however it might be. The
Supreme Court considered your point of view and, surprisingly,
it was Justice Rehnquist who wrote the majority opinion which
basically rejected your point of view. And he said that we
should draw a line between expression, statements, speech, and,
as he said, ``a physical assault is not by any stretch of the
imagination expressive conduct protected by the First
Amendment.'' That seems declarative and final in its nature. Do
you disagree with that conclusion?
Professor Jacobs. Definitely not.
Chairman Durbin. So distinguish this--I do not want to put
words in your mouth. So your argument is not that those who
would kill in the name of hate are expressing themselves under
some constitutional protection.
Professor Jacobs. Of course not.
Chairman Durbin. You need to turn on your microphone there.
I am sorry.
Professor Jacobs. Yes. Of course not. I am not saying
anything constitutional at all. My point here is that murder is
already punished as severely as it can be punished. It cannot
be punished any more than it is.
Chairman Durbin. So let me take this the next step. You
have sat right next to the testimony of this brave young man
who has come to tell you the impact that this heinous act had
on his family and on his life. And you have questioned before
whether there is any special emotional or psychological impact
in a hate crime. Do you still hold that position that a hate
crime victim is no sadder, no worse off than some other victim
of a crime?
Professor Jacobs. I do, and I have seen many, many crime
victims of different kinds of crimes, whether they are felony
murders or killings in a park or killings of children, and none
of it is pleasant, Senator, as you know, and the pain is
excruciating. And is there any need for us to compare one
person's pain in a heinous murder with another person's pain
and put one on a higher pedestal than another person's? Is that
going to help us as a society?
Chairman Durbin. Well, it turns out that when we wrote our
terrorism laws, we thought it did. The Federal terrorism
statute provides enhanced penalties for certain crimes if they
appear to be intended ``to intimidate or coerce a civilian
population or to influence the policy of a government by
intimidation and coercion.'' So we have gone beyond the
physical act and said what was the motivation behind it, and we
have drawn the line when it comes to terrorism.
So do you oppose enhanced penalties for terrorism?
Professor Jacobs. No, I do not.
Chairman Durbin. Well, how do you make the distinction?
Professor Jacobs. Well, I think the terrorist acts, when
you have a crime and it threatens a large number of people,
then it should be punished to the maximum. And I think those
statutes are meant to give Federal jurisdiction over the crime,
and we need Federal jurisdiction over those crimes.
Chairman Durbin. I hate to quarrel with a law professor,
but it seems to me that what we are talking about is intent
here in both instances, and where the intent is terrorist
inspired, we have said there will be a higher penalty. Now when
it comes to a hate crime, you say when the intent is inspired
by hate of a person because of a religion or race, gender,
sexual orientation, an enhanced penalty, the two run in
parallel----
Professor Jacobs. Well, I would not go down that road. I
think all violent crime, all homicidal crime is filled with
hate of one kind or another, and also a lot of it is filled
with just plain confused and deranged thinking. Most of the
people that we arrest for such crimes--I mean, the crimes look
clearer in the abstract, but when you arrest them, like the
apparent perpetrator in Aurora, they are very confused and
disturbed individuals.
Chairman Durbin. Well, I would just say that I would
question whether or not you are consistent in allowing for
enhanced penalties for terrorism but not for hate crimes. But
that seems to be my note, and you disagree.
Mr. Johnson, you heard the testimony when I asked about
Wade Michael Page who had been called out by at least two
organizations as a dangerous individual. Apparently, that was
not enough to warrant an investigation. There was nothing--I
think the testimony from the FBI is there was nothing they
could point to which would single him out for special
investigation or attention.
So was this an intelligence failure in Wisconsin? Do you
think there could have been things done to prevent this attack
that were not done?
Mr. Johnson. Well, I think the FBI in their testimony kind
of laid out where the problem lies with terrorist prevention.
They are really good at investigating after the fact, after an
incident has happened. But we have this delicate balance
between people's constitutional right to assemble and express
their speech, however vile, but we also have to be a little
forward-leaning in looking at those ideologies that have long
histories of spawning violence. And I am not talking about a
Government doing covert operations on people that have
extremist beliefs, but I think it is prudent that we have an
overt posture, overt monitoring of belief systems that are
basically causing people to act out violently.
Was this an intelligence failure? I do not think it is. But
one thing that I believe that the Department of Homeland
Security and the FBI could have done was--where was the warning
that these mosques were being burned, where was the warning
that Sikhs and Muslims have been victims of shooting attacks? I
think there could have been a threat assessment prepared on
that very subject. It could have been sent out to the faith-
based communities affected. And I believe that that might have
provided a first line of defense by identifying the problem,
but also providing some counter measures to encourage people to
be increasingly vigilant toward the threat. And that may have
played, you know, a possible role in maybe preventing some type
of attack.
Chairman Durbin. Well, I would readily agree with your
premise that simply because people have tattoos or listen to
certain music or even gather in certain places and say certain
things is not evidence of criminal intent. And I think that was
the point made by the FBI. But I think what you also said is
worthy of note, and that is, when you hear this over and over,
it raises the level of threat assessment. Whether it is anti-
Semitism against a Jewish synagogue or burning of Christian
churches in the South or attacks on Muslim mosques or Sikh
temples, each of these, I think, warrants special effort.
The last question I will ask you, you noted that there
seems to be a reduction in force of people at the Department of
Homeland Security who are working on these issues, and the
response from Mr. McAllister was not altogether clear on that
subject. Would you like to say a word more on that?
Mr. Johnson. Well, you have already outlined in your
testimony that when I was the team leader at the Department of
Homeland Security, we had five analysts directly under my
supervision, but we also had additional analysts that
supplemented us. So we had as many as eight analysts looking at
this issue. Today there is one, and that is a fact.
Chairman Durbin. The last point I will make, and if you do
not mind repeating, when you said that the militia that was
investigated in Michigan had a larger arsenal of weapons than
all of the terrorists who had been arrested since 9/11 in the
United States. Was that your testimony?
Mr. Johnson. Yes. It is a daunting statistic, and I got
this information off of Steve Emerson's Investigative Project
website where he has all the court records of every single
Muslim extremist that has been publicly arrested in the country
since 9/11. That is where my sourcing came from.
Chairman Durbin. All right. Senator Kohl, would you like to
ask questions?
Senator Kohl. Thank you, Mr. Chairman.
Harpreet, many people in the general community did not
understand who Sikhs were until the tragedy occurred. How did
the Sikh community fit into Milwaukee/Oak Creek before the
tragedy? And how would you describe the outpouring and the
response that occurred?
Mr. Saini. Well, I think people have been wonderful. Sikhs
are a different religion, a different race, I mean, people
just--they do not come up to you and ask you who you are.
People just do not come up and ask who Sikhs are. Like, I would
love to answer, you know, if, let us say, a person comes up to
me and asks me who am I, ``What is that on your head?'' I would
love to tell them what it is. And people do not do that, and
they should start doing that, you know, to get the fact that
that is a turban.
Senator Kohl. Okay. How have you all been moving forward
since the tragedy with respect to your place of worship and
your ability to come and worship without fear?
Mr. Saini. How am I what?
Senator Kohl. The level of fear that occurred when the
tragedy happened, has that abated? Are you----
Mr. Saini. I mean, the fear is still around, but we are
getting over it as much as we can now. And just trying to get
over it with people that you love, that is the best thing.
Senator Kohl. Is the level of attendance for services equal
to what it was before the tragedy, or are some people still
worried about attending?
Mr. Saini. No. It has actually gone up, like a lot more
people have showed up this time, like after the incident, too.
And the attendance has been enormous now. It has gone up.
Senator Kohl. That is terrific. Thank you very much,
Harpreet.
Mr. Saini. Thank you.
Senator Kohl. Thank you, Mr. Chairman.
Chairman Durbin. Thank you, Senator Kohl, and thanks to
this entire panel for its testimony. There is--oh, I am sorry.
Senator Blumenthal, I yield to you.
Senator Blumenthal. Thank you. Thank you, Mr. Chairman.
I want to join in thanking this panel and the prior panel,
whose testimony I had been following, and I apologize for not
having been here earlier. I had another Committee hearing. But
I would like to, first of all, followup, Mr. Saini, my
condolences for your loss, and even in a place as
geographically distant as Connecticut, there has been an
outpouring of feeling and sympathy for the victims and their
families. And I have attended two of the ceremonies and
services marking this horrendous incident in Oak Creek. And I
would say that I join Senator Kohl in the expression of
satisfaction that there is a strengthening of your community
and of attendance and of involvement, which apparently is the
case, is it not?
Mr. Saini. Yes, it is.
Senator Blumenthal. If I may turn to Mr. Johnson, you have
had a long career in intelligence and enforcement efforts, and
you referred earlier to the possibility that there might have
been preventive action possible. Do you think that is a
realistic assessment? If intelligence were better, do you think
that prevention is really a realistic and practical likelihood?
Mr. Johnson. Well, by basically raising awareness and
increasing vigilance and putting in counter measures, you are,
in fact, you know, putting up barriers of defense that could
serve as a prevention. I mean, is it an interdiction? Is it
going to stop the incident from happening? Probably not. But if
you are more vigilant and if you have your awareness up, then
perhaps you could take counter measures to prevent the amount
of loss.
Senator Blumenthal. And is the issue one of resources? You
mentioned the number of analysts diminishing from eight to one.
Is that the principal barrier, or is it a matter of sharing
information? What would you analyze as the issue?
Mr. Johnson. Well, in my written testimony that I submitted
to the Committee, I outlined a number of limitations, one of
which is resources. We are also lacking in strategic analysis.
That is where we look at emerging national trends and patterns
of criminal activity. We also--there were some other things
that I mentioned in my written testimony that you could refer
to, but it is a multilayered approach. Information sharing has
gotten better, but we could still make improvements in that
effort as well.
Senator Blumenthal. So, really, it is a multifaceted
challenge.
Mr. Johnson. Right, and I also had mentioned training as an
issue. We have a whole new group of analysts and officers that
are coming up through the ranks who need to be trained on these
types of subjects and what the different extremists' tactics
and tradecraft and activity levels are.
Senator Blumenthal. Professor Jacobs, I know that you have
raised in your written and also in your oral testimony
reservations and qualms about the hate crime both definition
and proof issues. Why are those issues any different than the
normal criminal intent or mens rea elements of proof that have
to be presented in a criminal trial?
Professor Jacobs. Well, if we just want to talk on the
proof question, different than the one about defining, you
know, which biases and so forth, on the question of proof I
think it is harder to get into a person's motivations than
simply whether it was intended or not intended as a fairly thin
mental state. But when you start to get into what is their
bias--and when you look at these various crimes that have been
prosecuted, the one in New Jersey is a very good example. A
very good example. You know, what was his motivation? He
himself may not have known what his motivation was. He maybe
had a lot of motivations. Maybe he did not have any clear
motivation. What he did do was infringe upon the privacy of his
roommate. That was clear and could easily be proved. But the
prosecution was not able to prove that it was an antigay bias,
and that is often the case in these prosecutions.
Senator Blumenthal. And that may be true in a variety of
criminal cases where the prosecution has the continuing burden
of proof and has to present evidence to show beyond a
reasonable doubt that a motivation existed. I do not understand
why that burden does not place a sufficiently high threshold
for the proof of a hate crime.
Professor Jacobs. Well, I also do not think it is necessary
because we have criminal laws against assaults and against
murder and against rape and kidnapping. And then in order to
express even more outrage, we have gone through the criminal
code and kind of recriminalized these crimes, which already
carry huge punishments, more than we have the resources to
actually implement.
Senator Blumenthal. Which is true of other crimes as well.
They may be prosecutable under different laws. They may be----
Professor Jacobs. They are all prosecutable under different
laws, Senator.
Senator Blumenthal. Correct. So why not permit prosecution
of hate crimes when they are, in fact, motivated by bigotry and
bias and that kind of intent as an expression of community
outrage, which our criminal law particularly does.
Professor Jacobs. Well, I mean, that is the route that we
are going down, and I think if it is successful, we will see.
And if it helps to lead toward a more tolerant society, that
would be good. But it might also be very divisive and juries
might begin to see criminal prosecutions as actually kind of
political trials which--and the crime is about making a
statement about the perpetrator's group as opposed to the
victim's group, and we will start to see the crime problem as
one that is divided along all of the fractures of American
society. I would not welcome seeing the crime problem in that
way, and I think it is unnecessary to do that.
Senator Blumenthal. I think the reservation that you have
expressed has been articulated, at least in my experience, in
State legislatures when these issues arose, and those
reservations or objections have been overcome, I think because
people do feel that the expression of the community's
intolerance for violence resulting from bigotry and bias and
hatred is very much a proper and appropriate measure to take
and hopefully also will have a deterrent effect, which is
another proper purpose of the criminal laws. If it deters these
kinds of crimes, perhaps it would serve a legitimate purpose of
the criminal law as well.
So I understand and you have articulated well your concerns
about it, but I think that the growing awareness of the
severity and the frequency of these crimes will properly
result, hopefully, in greater enforcement, tougher enforcement,
more stringent penalties.
Thank you, Mr. Chairman.
Chairman Durbin. Thanks a lot, Senator Blumenthal and
Senator Kohl.
I might note that over 400 people are in attendance at this
hearing, in the overflow room and in this main room, showing
the level of interest in this important topic, many from the
Sikh community from all across the United States, and we thank
you very much and join all of us in expressing our sentiments
of sorrow over the losses that have taken place in your
community.
We are not alone in our feelings about this. We have had an
enormous amount of interest from many groups, 80 written
statements for today's hearing, from Congresswoman Judy Chu,
the Chair of the Congressional Asian Pacific American Caucus,
the American Civil Liberties Union, the Anti-Defamation League,
the Chicago City Council, the Chicago Police Department, the
Council on American Islamic Relations, Groundswell, the Hindu
American Foundation, Human Rights Campaign, Human Rights First,
Interfaith Alliance, the Islamic Society of North America, the
Japanese American Citizens League, Latino Justice, the
Leadership Conference on Civil and Human Rights, Muslim
Advocates, the NAACP, the National Gay and Lesbian Task Force,
the Oak Creek, Wisconsin, Police Department, People for the
American Way, Africa American Ministers Leadership Council, the
Sikh American Legal Defense and Education Fund, the Sikh
Coalition, South Asian Americans Leading Together, and the
Southern Poverty Law Center, as well as the United Sikhs.
Without objection, I would like to place these statements into
the record. Hearing no objection, that will be the case.
[The information referred to appears as submissions for the
record.]
Chairman Durbin. The hearing record will be open for a week
to accept additional statements, and if there are written
questions of the witnesses, I hope that you will respond in a
timely fashion so we can have a complete record.
If there are no further comments from our panel or
colleagues, I thank the witnesses for attending and my
colleagues for participating, and this hearing stands
adjourned.
[Whereupon, at 4:23 p.m., the Subcommittee was adjourned.]
[Additional material submitted for the record follows.]
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