[House Hearing, 111 Congress]
[From the U.S. Government Printing Office]


 
   INTERNET TERROR RECRUITMENT AND TRADECRAFT: HOW CAN WE ADDRESS AN 
              EVOLVING TOOL WHILE PROTECTING FREE SPEECH?

=======================================================================

                                HEARING

                               before the

                     SUBCOMMITTEE ON INTELLIGENCE, 
                       INFORMATION SHARING, AND 
                       TERRORISM RISK ASSESSMENT

                                 of the

                     COMMITTEE ON HOMELAND SECURITY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 26, 2010

                               __________

                           Serial No. 111-67

                               __________

       Printed for the use of the Committee on Homeland Security
                                     
[GRAPHIC] [TIFF OMITTED] TONGRESS.#13

                                     

      Available via the World Wide Web: http://www.gpo.gov/fdsys/

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                     COMMITTEE ON HOMELAND SECURITY

               Bennie G. Thompson, Mississippi, Chairman
Loretta Sanchez, California          Peter T. King, New York
Jane Harman, California              Lamar Smith, Texas
Peter A. DeFazio, Oregon             Daniel E. Lungren, California
Eleanor Holmes Norton, District of   Mike Rogers, Alabama
    Columbia                         Michael T. McCaul, Texas
Zoe Lofgren, California              Charles W. Dent, Pennsylvania
Sheila Jackson Lee, Texas            Gus M. Bilirakis, Florida
Henry Cuellar, Texas                 Paul C. Broun, Georgia
Christopher P. Carney, Pennsylvania  Candice S. Miller, Michigan
Yvette D. Clarke, New York           Pete Olson, Texas
Laura Richardson, California         Anh ``Joseph'' Cao, Louisiana
Ann Kirkpatrick, Arizona             Steve Austria, Ohio
Bill Pascrell, Jr., New Jersey       Vacancy
Emanuel Cleaver, Missouri
Al Green, Texas
James A. Himes, Connecticut
Mary Jo Kilroy, Ohio
Dina Titus, Nevada
William L. Owens, New York
Vacancy
Vacancy
                    I. Lanier Avant, Staff Director
                     Rosaline Cohen, Chief Counsel
                     Michael Twinchek, Chief Clerk
                Robert O'Connor, Minority Staff Director

                                 ------                                

 SUBCOMMITTEE ON INTELLIGENCE, INFORMATION SHARING, AND TERRORISM RISK 
                               ASSESSMENT

                     Jane Harman, California, Chair
Christopher P. Carney, Pennsylvania  Michael T. McCaul, Texas
Yvette D. Clarke, New York           Charles W. Dent, Pennsylvania
Laura Richardson, California         Paul C. Broun, Georgia
Ann Kirkpatrick, Arizona             Peter T. King, New York (Ex 
Al Green, Texas                          Officio)
James A. Himes, Connecticut          Vacancy
Bennie G. Thompson, Mississippi (Ex 
    Officio)

                     Michael Blinde, Staff Director
                   Natalie Nixon, Deputy Chief Clerk
              Meghann Peterlin, Minority Subcommittee Lead


                            C O N T E N T S

                              ----------                              
                                                                   Page

                               Statements

The Honorable Jane Harman, a Representative in Congress From the 
  State of California, and Chair, Subcommittee on Intelligence, 
  Information Sharing, and Terrorism Risk Assessment.............     1
The Honorable Michael T. McCaul, a Representative in Congress 
  From the State of Texas, and Ranking Member, Subcommittee on 
  Intelligence, Information Sharing, and Terrorism Risk 
  Assessment.....................................................     3
The Honorable Bennie G. Thompson, a Representative in Congress 
  From the State of Mississippi, and Chairman, Committee on 
  Homeland Security..............................................     4

                               Witnesses

Mr. Bruce Hoffman, Professor, Edmund A. Walsh School of Foreign 
  Service, Georgetown University:
  Oral Statement.................................................     6
  Joint Prepared Statement.......................................     9
Mr. Brian Michael Jenkins, Senior Adviser, The Rand Corporation:
  Oral Statement.................................................    14
  Joint Prepared Statement.......................................    16
Mr. Anthony D. Romero, Executive Director, American Civil 
  Liberties Union:
  Oral Statement.................................................    19
  Joint Prepared Statement.......................................    21
Mr. John B. Morris, Jr., General Counsel, Center for Democracy 
  and Technology:
  Oral Statement.................................................    28
  Joint Prepared Statement.......................................    30
Mr. John Philip Mudd, Senior Research Fellow, Counterterrorism 
  Strategy Initiative, New America Foundation:
  Oral Statement.................................................    36
  Joint Prepared Statement.......................................    38


   INTERNET TERROR RECRUITMENT AND TRADECRAFT: HOW CAN WE ADDRESS AN 
              EVOLVING TOOL WHILE PROTECTING FREE SPEECH?

                              ----------                              


                        Wednesday, May 26, 2010

             U.S. House of Representatives,
                    Committee on Homeland Security,
    Subcommittee on Intelligence, Information Sharing, and 
                                 Terrorism Risk Assessment,
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 10:04 a.m., in 
Room 311, Cannon House Office Building, Hon. Jane Harman [Chair 
of the subcommittee] presiding.
    Present: Representatives Harman, Carney, Green, Himes, 
Thompson (ex officio), McCaul, and Dent.
    Ms. Harman. The subcommittee will come to order. The 
subcommittee is meeting today to receive testimony on the 
question of ``Internet Terror Recruitment and Tradecraft: How 
Can We Address an Evolving Tool While Protecting Free Speech?'' 
Let me say that again, ``How Can We Address an Evolving Tool 
While Protecting Free Speech?''
    I would like to welcome our witnesses.
    Recent terror attacks and plots have taught us that the 
lonely, vulnerable, or disaffected are just a few mouse clicks 
away from terrorist recruiters. The anonymity of the internet 
and the sheer speed of communications across it make it an easy 
tool for recruiting and for streamlining terror group training 
and operations.
    According to the FBI, the Christmas day bomber, Umar Farouk 
Abdulmuttalab, was recruited on the internet and trained in 
just 6 weeks.
    A Philadelphia woman, Colleen LaRose, who assumed the name 
Jihad Jane on-line, apparently used YouTube and other websites 
to post communications about staging attacks in the United 
States, Europe, and South Asia.
    The Fort Hood shooter, Major Malik Hasan, used e-mail to 
recontact an American cleric in Yemen, Anwar al-Awlaki, who 
just last weekend posted another internet video calling for the 
death of more civilians modeled after Hasan's point-blank 
assault of deploying service members in the medical units in 
Fort Hood. To remind us, Hasan killed 13 and wounded 31.
    Hasan's family attended the Dar al-Hijrah Islamic Center in 
Falls Church, Virginia, where al-Awlaki was preaching in 2001. 
Around the same time, two 9/11 hijackers worshipped at the 
mosque.
    Najibullah Zazi, who was arrested last year when his plot 
to bomb the New York subway was uncovered, searched beauty 
salon and home improvement store websites on multiple occasions 
for chemicals to make a bomb. He also researched bomb-making 
instructions from internet sites.
    Adam Gadahn, an American citizen from California, now 
serves as al-Qaeda's English language spokesman under the 
pseudonym Azzam al-Amriki. He has produced propaganda videos 
that are circulated over the internet which encourage Muslims 
join the global extremist movement and take part ``in slitting 
the throats of the infidel.''
    The dilemma is that the internet is a forum for free speech 
and global commerce. But the underside is that it can also be a 
forum for violence and global terror. How to respect individual 
freedom and access and yet find those who abuse the internet 
and stop them before they act is a huge and difficult 
challenge.
    Let me be clear, and many have heard me say this over and 
over and over again, liberty and security are not a zero sum 
game. We don't get more of one and less of the other. We get 
more of both or less. In fact, we must get more of both. 
Security without the liberties that our Constitution protects 
and Americans treasure is not security.
    Our subcommittee has been wrestling with this problem for a 
while, and as many know, this is our third hearing on the 
threat posed to the U.S. homeland by violent extremism.
    The purpose of today's hearing is to analyze the use of the 
internet as a facilitator for recruitment training and 
development of terror plots. The problem is the internet 
combines speed and anonymity in a way that complicates law 
enforcement and intelligence work exponentially.
    I am very glad that Anthony Romero, the able Executive 
Director of the ACLU and well-known commentator on this issue, 
is here at my personal invitation to testify about how to guard 
the privacy and civil liberties of individuals who use the 
internet for the right reasons. I consult with Anthony 
regularly, and I thank him for being here.
    But I also thank our other witnesses, also friends and 
colleagues, who have thought deeply and written extensively on 
these topics. Dr. Bruce Hoffman, a professor at Georgetown 
University, will discuss the evolving nature of the terror 
network tactics on the internet. Your testimony is excellent, 
Bruce.
    Brian Jenkins, from California, a senior adviser at the 
RAND Corporation, will discuss his latest report, ``Incidents 
of Jihadist Terrorist Radicalization in the U.S. Since 9/11.''
    Phil Mudd, who retired from the FBI this year as Associate 
Executive Director of the National Security Branch, will 
discuss U.S. efforts to conduct surveillance of internet 
communications and how the FBI currently intervenes.
    We will also hear from John Morris, General Counsel for the 
Center for Democracy and Technology.
    Welcome to you all.
    As difficult and controversial as this subject is, we need 
to find the right way and place to intercept those who would do 
us harm. Developing a strategy around the internet is not 
optional. It has to be part of the equation.
    I now yield 5 minutes to the Ranking Member for an opening 
statement.
    Mr. McCaul. Thank you, Madam Chair. Thank you for having 
this very timely and important hearing. I want to thank the 
witnesses on our distinguished panel. You are among the top 
experts in the country on this issue. Thank you for being here.
    The threat of terror seen on the internet to recruit others 
and spread their ideology is very real. While I know there is 
debate about what we can do about it, I don't think anyone here 
could dispute the fact that terrorists are successfully using 
the internet to help spread their message.
    The internet allows extremists the freedom to meet, work 
together, research and plan attacks, and inspire others to 
attack, without ever leaving their home. According to some 
estimates, over 5,000 jihadists websites and web forums are 
currently operational. This number continues to climb, with an 
estimated 900 more appearing every year.
    Terrorists once had to travel to terror camps in Pakistan 
to receive indoctrination and training. Now, aspiring 
terrorists only need to open their laptop and connect to the 
internet. The internet and e-mail continue to play an integral 
role in recent terror plots. One example that Madam Chair 
underscored was the threat by Colleen LaRose, better known as 
Jihad Jane, a blonde-haired, blue-eyed, native-born American 
who actively solicited conspirators to travel abroad to commit 
terror attacks; and at Fort Hood, just north of my district in 
Texas, Nidal Hasan brutally murdered 13 innocent people after 
exchanging e-mails with the radical cleric in Yemen. Al-
Awlaki's on-line lectures were cited as inspiring Shahzad, the 
bomber in the recent Times Square attack. Al-Awlaki has 
repeatedly posted messages and videos on-line encouraging the 
murder of Americans.
    As we continue to debate how to attack and defeat this 
enemy, I believe the answer must include combating the jihadi 
propaganda so readily available on the internet. We must work 
with our private sector and community partners to counter the 
terrorist narrative. At a more basic level, if we are going to 
look seriously at terrorists' use of the internet, there are 
issues that must be addressed in order to protect the 
fundamental American rights guaranteed by the Constitution.
    For instance, should the Government be monitoring jihadi 
websites and chat rooms, and how can that be done effectively 
while protecting Constitutional rights?
    There is little expectation of privacy, in my judgment, on-
line, especially when the internet is used to spread violent 
radical Islam or recruit others to participate in jihad. 
Similarly, there is a debate among many counterterrorism 
experts whether we should allow these websites to remain up and 
running. Does shutting them down turn off an important source 
of information for investigators? Or does it effectively 
disrupt terrorists' communications?
    An attack was prevented in Dallas when FBI agents 
monitoring an extremist website forum noted violent messages 
being posted by al-Smadi and set him up in a sting operation. 
This shows there is value to monitoring these websites. But is 
there a point where it is of greater value to shut them down, 
and at what point does terrorist use of the internet cross the 
line from free speech to illegal activity?
    Al-Awlaki's radical lectures available on the internet are 
known to inspire and incite terrorist acts. Are these lectures 
protected as free speech?
    Another issue I hope to address is the responsibility of 
the private sector to self-monitor the content on their 
websites for danger, much like the street vendor in Times 
Square who saw something and said something to prevent an 
attack. At what point does the responsibility lie with the web 
host to identify and report potential threats? At what point 
does terrorist use of the internet cross the line from free 
speech to illegal activity?
    Al-Awlaki's radical lectures available on the internet are 
known to inspire and incite terrorist attacks. Are they 
protected as free speech?
    I believe this is similar to one of the issues raised in 
the Supreme Court cases as to whether yelling fire in a theater 
is covered under the First Amendment.
    These are just a few examples of the complex issues that I 
look forward to exploring at this hearing, and let me once 
again thank Madam Chair for holding this important hearing. 
With that, I yield back.
    Ms. Harman. Thank you, Mr. McCaul. The Chair now yields 5 
minutes to the Chairman of the full committee for an opening 
statement.
    Mr. Thompson. Thank you very much, Madam Chair, and I 
compliment you for this hearing. As you know, a number of 
things have occurred over the last 6 months that has put more 
light on this situation.
    One of the most important messages this committee has 
worked to communicate is that the concept of homeland security 
is more than just the sum of many working pieces. Yes, homeland 
security is about stopping terrorist attacks. Yes, homeland 
security is about responding to disasters, both natural and 
manmade. But homeland security is also about giving the 
American public, our citizens, a sense of security and freeing 
them from fear.
    Terrorists want nothing more than to shatter our security 
and make us fearful. Their acts by design are intended to 
create fear to draw attention to their message, regardless of 
whether that message is hatred for a particular group of 
people, a government, or a government policy. While we 
understand why terrorists use fear in that way, what we have 
struggled to understand is why individuals are drawn to 
participate in these kinds of acts. What leads an individual 
down the path from radical thought to violence?
    Many of our homeland security-related policies are directed 
towards prevention of terrorist acts and overcoming the fear 
created by those acts themselves. However, very little of our 
focus is upon any kind of fear, the fear generated by what we 
do not understand.
    Because we are seeing a trend involving cases of 
individuals move from radical thought to violent action, we 
already heard from just a few examples this morning an 
important part of helping us free from fear is to strive to 
understand and, if possible, disrupt the process.
    As a communication tool, however, the internet is already 
used in many ways as an important piece of that process that we 
must work to understand. Because we are working to understand 
the recruitment and radicalization process, it is equally 
important that we understand the uses of which individuals 
undergo are encouraging this process with tools like the 
internet.
    However, freedom from fear also means that people should 
also not fear their Government and, in particular, should not 
fear the homeland security and law enforcement organizations 
that are working to provide that security. A person should also 
be free from fear that their communication or free expression, 
both on-line and off, are not subject to improper law 
enforcement scrutiny. This is why it is so important that we 
have the conversation like the one we are about to have today.
    To free us from fear, we must develop our understanding of 
terrorist recruitment and radicalization and the tools used to 
facilitate that process, but we also ensure that we are 
exploring the issues in a way that is protective of our rights 
to hold and express radical or unpopular ideas and privacy.
    For that reason, I welcome this panel of witnesses. I hope 
you can help us shed some light on how we can go about managing 
this delicate balancing act.
    Thank you, and I yield back, Madam Chair.
    Ms. Harman. Thank you, Mr. Chairman.
    Other Members of the subcommittee are reminded that under 
subcommittee rules, opening statements may be submitted for the 
record.
    I now welcome our witnesses this morning.
    Dr. Bruce Hoffman is a Professor of Security Studies at 
Georgetown University's Edmund A. Walsh School of Foreign 
Service and a member of the National Security Preparedness 
Group, the successor to the 9/11 Commission. Before working at 
Georgetown, Professor Hoffman held the corporate Chair in 
Counterterrorism and Counterinsurgency at the RAND Corporation 
in its Washington office. Between 2004 and 2006, Professor 
Hoffman was scholar in residence at the CIA, during which he 
served in a variety of advisory roles. He has conducted field 
work on terrorism in Afghanistan, Argentina, Pakistan, India, 
Northern Ireland, and Iraq, among others.
    Our second witness, Brian Michael Jenkins, is Senior 
Adviser at the RAND Corporation and an expert on political 
violence and sophisticated crime. He, too, is very 
sophisticated, I should add. From 1989 to 1998, Mr. Jenkins was 
the Deputy Chairman of Kroll Associates, an international 
investigative and consulting firm. Before this he worked at 
RAND as Chairman of its Political Science Department. He also 
held the rank of Captain in the U.S. Army's Green Beret, 
serving both in the Dominican Republic and Vietnam.
    Anthony Romero, as I mentioned, is the Executive Director 
of the ACLU. He took this position 4 days before September 11, 
and the ACLU soon after launched the National Safe and Free 
Campaign to Protect Basic Freedoms in a Time of Crisis. He is a 
frequent commentator on virtually everything that has happened 
in the legal domain and policy domain since 9/11, and the ACLU 
has filed litigation on issues like the torture and abuse of 
detainees in U.S. custody. He has also presided over the most 
successful membership growth in ACLU history. During his 
tenure, the staff has doubled and the budget has tripled. 
Pretty impressive.
    Mr. John Morris is the General Counsel at the Center for 
Democracy and Technology, CDT, and Director of CDT's internet 
Standards Technology and Policy Project. Prior to joining CDT 
in 2001, Mr. Morris was a partner at Jenner & Block, where he 
litigated ground-breaking cases in internet and First Amendment 
law. He was the lead counsel in the landmark case Reno v. ACLU, 
where the Supreme Court unanimously overturned the 
Communications Decency Act of 1996 and extended the highest 
level of Constitutional protection to free speech on the 
internet. In 2009, Mr. Morris was appointed to the 
Communication Security Reliability and Interoperability Council 
of the Federal Communications Commission to ensure civil 
liberties are considered in developing law enforcement 
communications technologies.
    Finally, Phil Mudd. Mr. Mudd is a Senior Research Fellow 
for the Counterterrorism Strategy Initiative at the New America 
Foundation. Most of us have known him a long time, as he served 
as senior intelligence adviser at the FBI. In 2005, he was 
appointed First Deputy Director of the FBI's National Security 
Branch. He began his Government service when he joined the CIA 
in 1985, served there in a variety of roles, including Deputy 
National Intelligence Officer for Near East and South Asia and 
as CIA detailee to the White House National Security Council 
and ultimately Deputy Director of the Counterterrorism Center. 
He has received numerous awards for his Government service, 
including the CIA Director's Award, the George H.W. Bush Award 
for Excellence in Counterterrorism, and the first ever William 
Langer Award for Excellence in Analysis.
    Without objection, your full statements will be inserted in 
the record.
    We will now ask Dr. Hoffman to summarize his statement in 5 
minutes, more or less. I do understand that you have some 
slides to show us.
    Mr. Hoffman. Yes, actually videos.
    Ms. Harman. Videos to show us.

 STATEMENT OF BRUCE HOFFMAN, PROFESSOR, EDMUND A. WALSH SCHOOL 
           OF FOREIGN SERVICE, GEORGETOWN UNIVERSITY

    Mr. Hoffman. Madam Chair, Mr. Chairman, Members of the 
committee, thank you for the opportunity to testify today.
    Twice in the past 6 months, the United States was just 
minutes away from another tragedy of unmitigated horror. Once 
again, terrorists had breached our security and nearly 
succeeded in killing and harming Americans in the skies of our 
country and on its streets.
    In both instances had it not been for the malfunctioning of 
the terrorist's explosive devices and the quick and effective 
intervention of our fellow citizens, America would have fallen 
victim to the worst terrorist attack since September 11, 2001.
    These two incidents appear to be part of an emerging 
pattern of terrorist threats in the United States. During 2009, 
a record 10 jihadi or jihadi-inspired plots or incidents and 
one tragically successful attack occurred. Furthermore, at 
least two dozen persons were indicted in the United States on 
terrorism charges last year, another record.
    Thus far, in 2010, there have been four incidents. It is 
therefore difficult to be complacent when an average of one 
plot is now being uncovered per month for the past year or 
more, and perhaps even more are being hatched that we don't 
know about.
    While it is easy to dismiss as amateurish many of these 
plots, incidents, and failed attacks, we do so at our peril. In 
point of fact, what appears to be amateurishness, such as the 
most recent abortive car bomb plot in New York City's Times 
Square and the attempt last Christmas day to affect the in-
flight bombing of a Northwest Airlines passenger jet, may be 
more of a reflection of the attack having been rushed.
    Fears that a would-be attacker might be identified and 
interdicted by authorities may thus account for what appears to 
be a more compressed operational tempo or faster soup-to-nuts 
process by which a recruit is deployed operationally.
    The sheer diversity of the perpetrators and nature of their 
plots is also remarkable. But as disparate and diverse as they 
may appear, the one thing that the majority of them had in 
common was the role that the internet played in their 
respective plots and often in their radicalization.
    Terrorism has often been understood to be a violent means 
of communication. Communication is essential for a terrorist 
movement, not just for the obvious purposes of summoning 
publicity and attention through their violence acts but also to 
ensure their longevity and very survival.
    Given this constellation of requisite sustainable 
resources, motivated minions, energized recruits, along with 
generous sympathizers and supporters, it is not surprising that 
the weapons of terrorism today are no longer simply the guns 
and bombs they have always been but now include computers, the 
internet, and the world wide web.
    Because of the internet, the art of terrorist communication 
has now evolved to a point where terrorists can effortlessly 
and effectively control the communication of their ideology of 
hate, intolerance, and violence, determining the content, 
context, and medium over which their message is projected and 
towards precisely the audience or multiple audiences they seek 
to reach.
    The recent Times Square plot involving a naturalized 
American citizen of Pakistani descent is a wake-up call. The 
wishful thinking that the American melting pot provided a 
firewall against the radicalization and recruitment of American 
citizens along with U.S. residents arguably lulled us into a 
false sense of complacency that homegrown terrorism couldn't 
happen here. By stubbornly wrapping ourselves in this false 
security blanket, we missed a rare chance 3 years ago to get in 
front of this issue and potentially fully understand how 
Americans might be radicalized and recruited to terrorism.
    In 2007, the Chair of this subcommittee introduced House 
Resolution 1955, the Violent Radicalization and Homegrown 
Terrorism Prevention Act, which would have established a 
National commission to study domestic terrorism. Although the 
bill passed the House, it never came to a vote in the Senate.
    Given that the terrorist threat has changed so appreciably 
since the 9/11 Commission concluded its work 6 long years ago, 
we require the same fresh look and new approaches that would 
have been this commission's remit. In this case, such a body 
would have provided a baseline assessment of terrorist 
radicalization recruitment processes and make policy 
recommendations about how to counter them by drawing on a 
comprehensive survey of the experiences and best practices of 
other countries.
    Instead, 10 years into the war on terrorism, important 
questions remain unanswered. The two most salient, in my view, 
are who, in fact, is responsible in the U.S. Government to 
identify radicalization when it is occurring and then to 
interdict attempts at recruitment? Most critically, have 
terrorists discovered our Achilles heel in that we currently 
have no strategy to counter this type of threat or to interdict 
radicalization and prevent terrorist recruitment?
    Thank you, Madam Chair. May I show these two videos?
    Ms. Harman. Yes. Without objection, yes. Please show them. 
They are not very long, are they?
    Mr. Hoffman. No, and you can feel free to cut them off 
because the message I think will be very clear in the first 15 
to 30 seconds. The first video is very much the kind of thing 
that you would see on MTV.
    [Video shown.]
    Mr. Hoffman. It ends with an image of the World Trade 
Center collapsing.
    [Video shown.]
    Ms. Harman. Is this video still on the website someplace?
    Mr. Hoffman. It is readily available. It has been on the 
web for 6 years now. You can see it is geared to an audience of 
people that are aren't terribly religious, but it hooks them 
with an MTV-like presentation and a catchy beat. The second one 
is more religious. It is a capella, so there is no music. It is 
a traditional nasheed.
    Ms. Harman. Thank you.
    Mr. Hoffman. If I may say, the singer in that is an 
American citizen, someone named Omar Hammami, who is from 
Alabama, who was featured. If you saw the New York Times 
Magazine article in January, by Andrea Elliott, he was the 
jihad next door.
    [The statement of Mr. Hoffman follows:]
                  Prepared Statement of Bruce Hoffman*
---------------------------------------------------------------------------
    * My affiliation with Georgetown University is for identification 
purposes only. This testimony presents the views of the witness only 
and does not nor is it meant to reflect those of Georgetown University.
---------------------------------------------------------------------------
                              26 May 2010
    Twice in the past 6 months, the United States was just minutes away 
from another tragedy of unmitigated horror. Once again, terrorists had 
breached our security and nearly succeeded in killing and harming 
Americans in the skies above our country or on its streets. In both 
instances, had it not been for the malfunctioning of the terrorists' 
explosive devices and the quick and effective intervention of our 
fellow citizens, America would have fallen victim to the worst 
terrorist attacks since September 11, 2001.
    These two incidents are part of an emergent pattern of terrorist 
threats in the United States. During 2009, a record ten jihadi or 
jihadi-inspired plots or incidents and one tragically successful 
attack, at Fort Hood, Texas that claimed the lives of thirteen persons, 
occurred.\1\ Furthermore, at least two dozen persons were indicted in 
the United States on terrorism charges last year \2\--another record. 
Thus far in 2010 there have been four incidents. It is therefore 
difficult to be complacent when an average of one plot is now being 
uncovered per month over the past year or more--and perhaps even more 
are being hatched that we don't yet know about.
---------------------------------------------------------------------------
    \1\ See Brian Michael Jenkins, Would-Be Warriors: Incidents of 
Jihadist Terrorist Radicalization in the United States Since September 
11, 2001 (Santa Monica, CA: RAND Corp., 2010), pp. 13-17.
    \2\ One source puts this figure at 41 persons. See Steve Kroft, 
``Homegrown Terror,'' 60 Minutes, CBS News, 9 May 2010 accessed at: 
http://www.cbsnews.com/video/watch/
?id=6470178n&tag=contentMain;cbsCarousel.
---------------------------------------------------------------------------
    While it is easy and perhaps also comforting to dismiss as 
``amateurish'' these plots, incidents, and failed or foiled attacks, we 
do so at our peril. In point of fact, what appears as 
``amateurishness''--such as the most recent abortive car bomb plot in 
New York City's Times Square and the attempt last Christmas day to 
effect the in-flight bombing of a North West Airlines passenger jet--
may be more a reflection of the attack having been rushed. Terrorists, 
we often forget, play the odds and pin their faiths and hopes on 
eventually simply getting lucky. Over a quarter of a century ago, the 
Irish Republican Army famously taunted then-Prime Minister Margaret 
Thatcher after a bomb failed to kill her at the 1984 Conservative Party 
conference in Brighton, England: ``Today we were unlucky, but remember 
we only have to be lucky once. You will have to be lucky always.''\3\ 
Our terrorist enemies today doubtless embrace the same logic.
---------------------------------------------------------------------------
    \3\ Quoted in Peter Taylor, Brits (London: Bloomsbury, 2001), p. 
256.
---------------------------------------------------------------------------
    Indeed, at a time, for example, when the capability of the Tehrik-
i-Taliban or Pakistani Taliban, (TTP)--whom both the U.S. Attorney 
General Eric Holder and senior Obama administration counterterrorism 
adviser John Brennan have gone on record as stating was behind the 
Times Square plot, having provided money and direction to the hapless 
bomber, Faisal Shahzad \4\--and al-Qaeda in Pakistan are being 
relentlessly degraded by the U.S. drone attacks, both groups as well as 
allied and associated organizations may feel pressed to implement an 
operation either sooner or more precipitously than they might otherwise 
prefer. Fears that a would-be attacker might be identified and 
interdicted by authorities may thus account for what appears to be a 
more compressed operational tempo or faster ``soup to nuts'' process by 
which a recruit is deployed operationally.
---------------------------------------------------------------------------
    \4\ Anne E. Kornblut and Karin Brulliard, ``U.S. blames Pakistani 
Taliban for Times Square bomb plot,'' Washington Post, 10 May 2010.
---------------------------------------------------------------------------
    The complaint sworn against Shahzad in Federal court, for instance, 
reveals a very fast 4-month process from planning to training to Times 
Square.\5\ He reportedly only received 3 to 5 days of bomb-making 
training. The TPP, al-Qaeda and other terrorist groups may thus be 
prepared to accept this trade-off between shorter training periods 
leading to accelerated operations in order to dispatch ``clean skin'' 
recruits before they can be identified and detected. Indeed, this 
likely represents a reasonable trade-off and excellent return on a very 
modest investment. The terrorists groups have expended little effort 
and energy training alleged ``walk-ins'' like Shahzad who present 
terrorist organizations with a low-cost opportunity to strike in the 
United States.
---------------------------------------------------------------------------
    \5\ United States of America v. Faisal Shahzad, Defendant, Case 
1:10-mj-00928-UA Filed 4 May 2010.
---------------------------------------------------------------------------
    This is part and parcel of an al-Qaeda strategy that it also has 
pushed on other groups. It is a strategy that is deliberately designed 
to overwhelm, distract, and exhaust the terrorists' adversaries. There 
are two components to this strategy: one economic and the other 
operational. In terms of the economic dimension, al-Qaeda has never 
claimed it could or would defeat U.S. militarily. Instead, it seeks to 
wear us down economically through increasing expenditures on domestic 
security and overseas military commitments. Given the current global 
economic downtown, this message arguably now has greater resonance with 
al-Qaeda's followers and supporters and indeed perhaps even with new 
recruits. The operational dimension seeks to flood already stressed 
intelligence and law enforcement with ``noise'': low-level threats from 
``lone wolves'' and other jihadi ``hangers on''--e.g., the ``low 
hanging fruit'' are designed to consume the attention of law 
enforcement and intelligence in hopes that this distraction will permit 
more serious terrorist operations to go unnoticed and thereby sneak in 
``beneath the radar'' and in fact succeed.\6\
---------------------------------------------------------------------------
    \6\ See Bruce Hoffman ``American Jihad,'' The National Interest, 
no. 107, May/June 2010, pp. 17-27; and, idem, ``Al-Qaeda's New Grand 
Strategy,'' Washington Post (Sunday Outlook section), 10 January 2010.
---------------------------------------------------------------------------
    The sheer diversity of the perpetrators and nature of their U.S. 
plots is also remarkable. These have included highly trained al-Qaeda 
operatives like Najibullah Zazi, the Afghan-born U.S. resident who 
sought to replicate the 7 July 2005 suicide attacks on London transport 
in Manhattan; motivated, but less competent, recruits like Shahzad and 
the five youths from a Washington, DC suburb who last December sought 
training in Pakistan to fight in Afghanistan but, had they been 
successful in establishing contact with a Pakistan-based terrorist 
group, could just as well have been deployed back to United States; 
dedicated sleeper agents like the U.S. citizen David Headley whose 
reconnaissance efforts on behalf of Lashkar-e-Taiba (LeT), a 
longstanding al-Qaeda ally, were pivotal to the November 2008 Mumbai, 
India attack's success; bona fide ``lone wolves'' like Major Nidal 
Hasan, the Fort Hood shooter, and other individuals with murkier 
terrorist connections like Abdulhakim Muhammad (nee Carlos Bledsoe), an 
African-American convert to Islam who returned from Yemen last year and 
killed a U.S. military recruiter and wounded another in Little Rock, 
Arkansas and has now claimed in court to have done so on behalf of 
AQAP--the same group responsible for Christmas day plot; and, finally, 
the incompetent, wannabe terrorists who are easily entrapped and 
apprehended such as the four parolees and converts to Islam who 
attempted to bomb 2 Bronx synagogues and an upstate air national guard 
base, the Jordanian national who overstayed his U.S. tourist visa and 
plotted to bomb a downtown Dallas office tower last September, and 
another convert who wanted to blow up a Springfield, IL Federal 
building that same month, among others.
    Well over a year ago we became aware of radicalization and 
recruitment occurring in the United States when Somali-Americans 
started disappearing from the Minneapolis-St Paul, Minnesota area and 
turning up in Somalia with an al-Qaeda affiliate called al Shabab 
(``the youth''). Administration officials and others believed it was an 
isolated, one-off phenomenon. But it was not restricted to a small 
number of individuals in one place as the grand juries that have been 
sitting in Minneapolis-St Paul and San Diego, California attest along 
with the on-going FBI investigations in Boston and two locations in 
Ohio, among other places. The number of Somali-Americans who left the 
United States to train in Somalia was also far higher than initially 
believed (numbering upwards of some 30 persons) and furthermore once 
they were in Somalia they were in fact being trained by a senior and 
long-established al-Qaeda commander.
    In sum, the case of the Somali-Americans thus turned out to be a 
Pandora's box. By not taking the threat of radicalization and 
recruitment actually occurring in the United States more seriously and 
sooner we failed to comprehend that this was not an isolated 
phenomenon, specific to Minnesota and this particular immigrant 
community, but that it indicated the possibility that an albeit 
embryonic terrorist radicalization and recruitment infrastructure had 
been established in the United States. Shahzad is thus the latest 
person to jump out of this particular Pandora's box.
    As disparate and diverse as the above list of individuals may 
appear, the one thing that the majority of them had in common was the 
role that the internet played in their respective plots and often their 
radicalization. For example:
   Zazi conducted several internet searches to identify and 
        obtain commercially available materials for the bombs he 
        intended to use in attacks on the New York City subway;\7\
---------------------------------------------------------------------------
    \7\ United States District Court Eastern District of New York 
against Najibullah Zazi, Defendant, Memorandum Of Law In Support Of The 
Government's Motion For A Permanent Order Of Detention, 09-CR-663 
(RJD), 24 September 2009, pp. 5, 7, and 11-12.
---------------------------------------------------------------------------
   Hasan exchanged at least 18 e-mails between December 2008 
        and June 2009 with Anwar al Awlaki, an operational officer with 
        al-Qaeda in the Arabian Peninsula (AQAP);\8\
---------------------------------------------------------------------------
    \8\ Brian Ross and Rhonda Schwartz, ``Major Hasan's E-Mail: `I 
Can't Wait to Join You' in Afterlife,'' ABC News, 19 November 2009 
accessed at http://abcnews.go.com/print?id=9130339.
---------------------------------------------------------------------------
   Colleen LaRose used the online monikers ``Fatima La Rose'' 
        and ``JihadJane'' allegedly to recruit others in the United 
        States and abroad, supposedly to carry out a terrorist attack 
        in Sweden.\9\ She boasted in e-mails how, given her 
        appearance--e.g., a petite, blue-eyed, blonde--she could 
        ``blend in with many people.'' She also sought to recruit other 
        Western women who looked like her.\10\ David Kris, an assistant 
        attorney general in the Department of Justice's National 
        Security Division, was quoted in the Washington Post as stating 
        that the fact that a suburban American woman stands accused of 
        conspiring to support terrorists and traveling overseas to 
        implement an attack ``underscores the evolving nature of the 
        threat we face'';\11\
---------------------------------------------------------------------------
    \9\ See United States District Court for the Eastern District of 
Pennsylvania, United States Of America v. Colleen R. LaRose, 10-Cr-123, 
4 March 2010, pp. 3-8.
    \10\ Quoted in Ibid., p. 3.
    \11\ Quoted in Carrie Johnson, ``JihadJane, an American woman, 
faces terrorism charges,'' Washington Post, 10 March 2010.
---------------------------------------------------------------------------
   Hosam Smadi, the young Jordanian national implicated in the 
        Dallas, Texas bomb plot, according to his indictment, allegedly 
        belonged to ``an online group of extremists . . . who espoused 
        violence.'' It further stated that Smadi ``stood out based on 
        his vehement intention to actually conduct terrorist attacks in 
        the United States'';\12\
---------------------------------------------------------------------------
    \12\ Quoted in United States District Court for the Northern 
District of Texas, United States Of America v. Hosam Maher Husein 
Smadi, 3:09-MJ-286, 24 September 2009, p. 1. See also, Ibid., pp. 2 and 
5; and, ``Jordanian accused in Dallas bomb plot goes to court,'' 
CNN.com, 25 September 2009 accessed at: http://
cnn.site.printthis.clickability.com/pt/cpt?action=cpt&title-Jordan.
---------------------------------------------------------------------------
   Michael Finton, a U.S. citizen, implicated in a plot to bomb 
        a Federal building in Springfield Illinois, claimed both to 
        have been influenced by an al-Qaeda video and to have obtained 
        ``all that he could . . . use the internet to look up all he 
        needed to know to conduct such an attack . . . ''.\13\
---------------------------------------------------------------------------
    \13\ Quoted in United States District Court for the Central 
District of Illinois, United States Of America v. Michael C. Finton, 
09-3048-M, 24 September 2009, pp. 11 and 15. See also, Ibid., p. 17.
---------------------------------------------------------------------------
   David Headley, the U.S. citizen who allegedly carried out 
        reconnaissance and surveillance operations on behalf of both 
        Pakistani jihadi terrorist organizations and al-Qaeda was 
        actively involved in on-line user groups and chat room forums 
        \14\ as was one of his alleged co-conspirators, Tahawur 
        Rana.\15\
---------------------------------------------------------------------------
    \14\ See United States District Court for the Northern District of 
Illinois, United States Of America v. Ilyas Kashmiri, et al., 09 CR 830 
October 2009, pp. 13 and 20.
    \15\ Idem., United States Of America v. Tahawur Rana, 18 October 
2009, pp. 4, 8, 14, 24, and 42.
---------------------------------------------------------------------------
   Tarek Mehanna, a U.S. citizen charged with conspiracy to 
        provide material support to terrorists allegedly made extensive 
        use of the internet, amassing, according to the criminal 
        complaint filed against him in Federal court, ``Video files, 
        audio files, images, stored messages, word processed documents 
        and cached web pages'';\16\
---------------------------------------------------------------------------
    \16\ United States District Court of Massachusetts, United States 
Of America v. Tarek Mehanna, 09-10017-GAO CR 830, November 2009, pp. 2-
3, 10-11, 14-30, 39-40, 43-49, & 56-73.
---------------------------------------------------------------------------
   Bryant Neal Vinas, a U.S. citizen from Long Island, New York 
        who traveled to Pakistan to enlist in al-Qaeda and, in addition 
        to providing information to facilitate an al-Qaeda plot to blow 
        up a Long Island Rail Road train inside New York's Pennsylvania 
        Station, participated in an attack on U.S. military forces in 
        Afghanistan, is believed to have been radicalized as a result 
        of ``visiting jihadist Web sites'';\17\
---------------------------------------------------------------------------
    \17\ Quoted in William K. Rashbaum and Souad Mekennet, ``L.I. Man 
Helped Qaeda, Then Informed,'' New York Times, 23 July 2009.
---------------------------------------------------------------------------
   Umar Farouk Abdulmuttalab, the AQAP operative who attempted 
        to bomb a North West airlines flight on Christmas day, 2009 was 
        in regular contact with the aforementioned Anwar al Awlaki;\18\ 
        and,
---------------------------------------------------------------------------
    \18\ Mark Hosenball, et al., ``The Radicalization of Umar Farouk 
Abdulmuttalab,'' Newsweek, 2 January 2010.
---------------------------------------------------------------------------
   Faisal Shahzad has been widely reported to have viewed 
        radical jihadi material on the internet and apparently has 
        admitted to having been inspired by al Awlaki as well.\19\
---------------------------------------------------------------------------
    \19\ See Scott Shane and Souad Mekhennet, ``Imam's Path From 
Condemning Terror to Preaching Jihad,'' New York Times, 8 May 2010.
---------------------------------------------------------------------------
  TERRORISM AS COMMUNICATION AND THE INTERNET AS A CRITICAL MEANS OF 
                     RADICALIZATION AND RECRUITMENT

    Terrorism has long been understood to be a violent means of 
communication. The terrorist act itself is of course designed to 
attract attention and then, through the publicity that it generates, to 
communicate a message. Indeed, nearly a quarter of a century ago, Alex 
Schmid and Janny de Graaf observed that, ``Without communication there 
can be no terrorism.''\20\ But communication is essential for a 
terrorist movement not just for the obvious purposes of summoning 
publicity and attention, but also to ensure its longevity and very 
survival. Indeed, without effective communications, a terrorist 
movement would be unable to recruit new members into its ranks, 
motivate and inspire existing members to carry on with the struggle 
despite formidable odds, as well as expand the pool of active 
supporters and passive sympathizers from which the movement draws its 
sustenance.
---------------------------------------------------------------------------
    \20\ Alex Schmid and Janny de Graaf, Violence As Communication: 
Insurgent Terrorism and the Western News Media (Beverly Hills, CA: 
Sage, 1982), p. 9.
---------------------------------------------------------------------------
    Given this constellation of requisite sustainable resources--
motivated minions, energized recruits, along with generous sympathizers 
and supporters--it is not surprising that the weapons of terrorism are 
no longer simply the guns and bombs that they always have been, but now 
include the mini-cam and videotape, editing suite and attendant 
production facilities; professionally produced and mass-marketed CD-
ROMs and DVDs; and, most critically, the lap-top and desk-top 
computers, CD burners and e-mail accounts, and internet and world wide 
web. Indeed, largely because of the internet--and the almost unlimited 
array of communications opportunities that it offers--the art of 
terrorist communication has now evolved to a point where terrorists can 
effortlessly and effectively control the communication of their 
ideology of hate, intolerance, and violence: determining the content, 
context, and medium over which their message is projected; and towards 
precisely the audience (or multiple audiences) they seek to reach.\21\
---------------------------------------------------------------------------
    \21\ See, for example, the 2004 video clip, ``Dirty Kuffar,'' aimed 
at British youth at http://video.google.com/
videoplay?docid=9083681522527526242#docid=-4283987610134255997; and, an 
al Shabaab video clip aimed at Americans and Westerners in general from 
2009 ``English Nasheed Rap by Shabab Al-Mujahideen (Blow by Blow)'' at 
http://www.youtube.com/watch?v=ODGRd_DKchw.
---------------------------------------------------------------------------
    The implications of this development have been enormous. The 
internet, once seen as an engine of education and enlightenment, has 
instead become an immensely useful vehicle for terrorists with which to 
peddle their baseless propaganda and manifold conspiracy theories, 
lies, and clarion call to violence.\22\ These sites alarmingly present 
an increasingly compelling and indeed accepted alternative point of 
view to the terrorists' variegated audiences.\23\ This was of course 
precisely al-Qaeda's purpose in creating its first website, 
www.alneda.com, and maintaining a variety of successor sites ever 
since: To provide an alternative source for news and information that 
the movement itself could exert total control over.
---------------------------------------------------------------------------
    \22\ See, for instance, the ``Iraq'' tab at www.kavkazcenter.com 
and the ``Iraqi Resistance Report'' tab at www.jihadunspun.com as well 
as such sites as www.islammemo.cc/taqrer/one_news.asp?Idnew=292; 
www.la7odood.com; www.balagh.com/thaqafa/0604ggpz.htm; and 
www.albasrah.net: all accessed on 6 July 2005.
    \23\ See, also, Dina Temple-Raston, ``Al-Qaeda media Blitz Has Some 
On Alert,'' Morning Edition, National Public Radio, 8 April 2009 
accessed at: http://www.npr.org/templates/story/
story.php?storyId=102735818.
---------------------------------------------------------------------------
    Because of its geographical reach, ubiquity, modest costs, and 
ability to communicate in real-time, the internet has thus become the 
terrorists' favored means of propaganda dissemination and incitement to 
violence. As Professor Gabriel Weimann of Haifa University notes in his 
seminal study Terror on the Internet, when he began studying this 
phenomenon nearly a decade ago, there were only about 12 terrorist 
group websites. By the time he completed his research in 2005 the 
number had grown to over 4,300--``a proliferation rate of about 4,500 
percent per year.''\24\ And, by the time the book was published the 
following year, the number had jumped to over 5,000 websites.\25\ 
Today, experts estimate that there are well over 7,000 such sites.
---------------------------------------------------------------------------
    \24\ Gabriel Weimann, Terror on the Internet: The New Arena, the 
New Challenges (Washington, DC: United States Institute of Peace Press, 
2006), p. 105.
    \25\ Remarks by Professor Gabriel Weimann, book launch event held 
at the U.S. Institute of Peace, Washington, DC on 17 April 2006.
---------------------------------------------------------------------------
    Thus, virtually every terrorist group in the world today has its 
own internet website and, in many instances, maintain multiple sites in 
different languages with different messages tailored to specific 
audiences. The ability to communicate in real time via the internet, 
using a variety of compelling electronic media--including dramatic 
video footage, digital photographs, and audio clips accompanied by 
visually arresting along with savvy and visually appealing web design--
has enabled terrorists to reach a potentially vast audience faster, 
more pervasively, and more effectively than ever before. The changing 
face of terrorism in the 21st Century is perhaps best exemplified by 
the items recovered by Saudi security forces in a raid during on an al-
Qaeda safe house in Riyadh in late spring 2004. In addition to the 
traditional terrorist arsenal of AK-47 assault rifles, explosives, 
rocket-propelled grenades, hand grenades, and thousands of rounds of 
ammunition that the authorities the police expected find, they also 
discovered an array of electronic consumer goods including: Video 
cameras, laptop computers, CD burners, and the requisite high-speed 
internet connection. According to ``60 Minutes'' investigative 
journalist Henry Schuster, the videos:

``had been part of an al-Qaeda media blitz on the web that also 
included two on-line magazines full of editorials and news digests, 
along with advice on how to handle a kidnapping or field-strip an AK-47 
assault rifle. The videos mixed old appearances by bin Laden with slick 
graphics and suicide bombers' on-camera last wills and testaments. They 
premiered on the internet, one after the other, and were aimed at 
recruiting Saudi youth.''\26\
---------------------------------------------------------------------------
    \26\ Henry Shuster, ``Studios of Terror: Al Qaeda's Media 
Strategy,'' CNN International.Com, Tracking Terror, 16 February 2005, 
accessed at http://207.25.71.245/2005/WORLD/meast/02/15/
schuster.column/index.html.

    As Tina Brown, the doyenne of post-modern media, has pointed out: 
the ``conjunction of 21st-century internet speed and 12th-century 
fanaticism has turned our world into a tinderbox.''\27\
---------------------------------------------------------------------------
    \27\ Tina Brown, ``Death by Error,'' Washington Post, 19 May 2005.
---------------------------------------------------------------------------
                               CONCLUSION

    The recent Times Square plot involving a naturalized American 
citizen of Pakistani descent is a wake-up call. The wishful thinking 
that the American ``melting pot'' theory provided a ``fire wall'' 
against the radicalization and recruitment of American citizens--
whether naturalized or born here--along with U.S. residents (green card 
holders), arguably lulled us into a sense of complacency that home-
grown terrorism couldn't happen here. The British similarly believed 
before the 7 July 2005 London suicide attacks that there was perhaps a 
problem with the Muslim communities in Europe but certainly not with 
British Muslims in the United Kingdom who were better integrated, 
better education, and wealthier than their counterparts on the 
continent.
    By stubbornly wrapping ourselves in this false security blanket we 
lost 5 years to learn from the British experience. Indeed, the United 
States missed a rare chance 3 years ago to get in front of this issue 
and potentially fully understand how Americans are radicalized and 
recruited to terrorism. In 2007, the Chair of this same sub-committee 
introduced House Resolution 1955, the ``Violent Radicalization and 
Homegrown Terrorism Prevention Act of 2007,'' which would have 
established a National commission to study domestic terrorism. Although 
the bill passed the House of Representatives, it never came to a vote 
in the Senate. Given that the terrorist threat has changed so 
appreciably since the 9/11 Commission concluded its work 6 years ago, 
we require the same fresh look and new approaches that would have been 
this commission's remit. Moreover, these days it seems bipartisan 
commissions are the only way our Government can accomplish anything 
terrorism-related. In this case, such a body would have provided a 
baseline assessment of terrorist radicalization and recruitment 
processes, and made policy recommendations about how to counter them by 
drawing on a comprehensive survey of the experiences and best practices 
of other countries--and by better understanding how terrorist groups 
might target and attract Americans and U.S. residents into their ranks.
    Instead, 10 years into the war on terrorism, the big questions that 
the commission proposed in H.R. 1955 may have shed critical light on 
lamentably remain unanswered. What do we do when the terrorists are 
like us? When they conform to the archetypal American immigrant success 
story? When they are American citizens or American residents? When they 
are not perhaps from the Middle East or South Asia and in fact have 
familiar-sounding names? Or, when they are ``petite, blue-eyed, 
blonde'' suburban housewives who, as the infamous Jihad Jane boasted, 
``can easily blend in''?
    Who in fact is responsible in the U.S. Government to identify 
radicalization when it is occurring and then interdict attempts at 
recruitment? Is this best done by Federal law enforcement (e.g., the 
FBI) or State and local jurisdictions working closely with Federal 
authorities? Is it a core mission for a modernized, post-9/11 FBI? Or 
for the Department of Homeland Security (DHS)? Can it be done by the 
National Counterterrorism Center (NCTC), even though it has only a 
coordinating function and relies on other agencies for intelligence 
collection, analysis, and operations? What is the role of the Office of 
the Director of National Intelligence (ODNI) in home-grown terrorism 
and recruitment and radicalization? Will coming to grips with these 
challenges be the remit of the next FBI Director given the incumbent's 
impending retirement?
    And, finally and most critically, have terrorists discovered our 
Achilles Heel in that we currently have no strategy to counter this 
type of threat or to interdict radicalization and prevent terrorist 
recruitment?

    Ms. Harman. Thank you, Dr. Hoffman.
    Mr. Jenkins, you are recognized for 5 minutes.

 STATEMENT OF BRIAN MICHAEL JENKINS, SENIOR ADVISER, THE RAND 
                          CORPORATION

    Mr. Jenkins. Madam Chair, Mr. Chairman, thank you very much 
for the opportunity to address this important topic.
    I have submitted written testimony, but let me here just 
underscore some of the aspects of current terrorist recruiting.
    Nearly 9 years after 9/11, the principal terrorist threat 
comes from a galaxy of jihadist groups that subscribe to al-
Qaeda's ideology of global arms struggle. Their terrorist 
campaign has become more decentralized, relying more on al-
Qaeda's affiliates and on on-line exhortation to individual 
followers to do whatever they can wherever they are. Such 
attacks may take the form of operations planned from abroad 
like the Christmas day airline bombing attempt or do-it-
yourself attempts by homegrown terrorists.
    These attempts are not evidence of our failure to protect 
the Nation. They reflect the fact that we are at war, and as in 
any war, the other side attacks.
    According to a recent RAND paper, there were 46 reported 
cases of radicalization and recruitment to jihadist terrorism 
in the United States between 9/11 and the end of 2009. A few 
more cases have been added in 2010. In all, 125 persons were 
identified in these cases. The number of cases and the number 
of persons involved, as Dr. Hoffman has pointed out, both 
increased sharply in 2009, underscoring the fact that 
radicalization and the recruitment to jihadist terrorism do 
happen here.
    Fortunately, al-Qaeda's exhortations are not resonating 
among the vast majority of Muslim Americans. There are veins of 
extremism. There are handfuls of hotheads, but no apparent deep 
reservoirs from which al-Qaeda can easily recruit.
    The U.S. criminal justice system seems to be working. With 
the exception of Jose Padilla, the individuals arrested in 
these cases were brought before U.S. courts and convicted or 
now await trial.
    Most of these American jihadists appear to have radicalized 
themselves rather than having been recruited in the traditional 
sense.
    The process of radicalization and recruitment to terrorist 
violence reflects a combination of individual circumstances and 
ideological motivation. Jihadists cite assaults on Islam to 
justify their violence, as we saw in these videos, but the 
volunteers also view jihad as a chance to gain status in a 
subculture that exalts violence to be perceived as a warrior, 
as a hero in an epic struggle. Again we saw in the videos here 
use of the term ``glorious past'' or ``restoring honor.'' These 
are recurring themes.
    Al-Qaeda's ideology also has become a vehicle for revolving 
individual discontents, an opportunity to transcend personal 
problems, a path to glory. This individualistic quality of 
self-recruitment suggests a strategy that focuses on dissuading 
individuals from joining al-Qaeda's version of jihad. The 
message to would-be terrorists should be that they will be 
detected, apprehended, and treated as ordinary criminals. There 
will be no applause. There will be no glory.
    Reinforcing this message requires the active cooperation of 
the American Muslim community, which is the target of this 
jihadist recruiting. Community policing can facilitate that 
cooperation. Now that doesn't involve the authorities in 
religious or ideological debates, which remain matters for the 
community. It simply requires building trust between local 
communities and local authorities.
    But community cooperation will not prevent all terrorist 
attempts. The domestic intelligence collection is essential. 
Only three of the 25 homegrown plots to carry out attacks in 
the United States, including the failed Times Square bombing, 
got as far as implementation. Only two of those attempts 
resulted in casualties, both carried out by lone gunmen.
    Now that is an undeniable intelligence success. But we have 
to do better than that. Our current emphasis on information 
sharing, which certainly has improved, shouldn't distract us 
from the difficult and always delicate task of information and 
intelligence collection.
    Many homegrown terrorists begin their journey to violent 
jihad on the internet. It is accessible to seekers, reinforcing 
and channeling their anger, it creates on-line communities of 
like-minded extremists, it facilitates clandestine 
communications. Yet, it is important that we keep this in 
perspective.
    Despite the continuous, incessant on-line exhortations to 
Americans from these jihadist websites, while they have 
produced an army of on-line jihadists, that has resulted in 
only a tiny cohort of jihadists in the real world. Moreover, 
the internet has proved to be a source of valuable intelligence 
leading to arrests.
    One last point. I have no doubt that jihadists will attempt 
further terrorist attacks in this country, and that some will 
succeed; That is war. But needless alarm, divisive finger-
pointing, and unreasonable demands for absolute protection will 
only encourage terrorists' ambitions to make America tremble in 
fear and bankrupt itself in a quest for security, which is 
precisely what our terrorist foes hope to achieve.
    Thank you.
    [The statement of Mr. Jenkins follows:]

             Prepared Statement of Brian Michael Jenkins\1\
---------------------------------------------------------------------------
    \1\ The opinions and conclusions expressed in this testimony are 
the author's alone and should not be interpreted as representing those 
of RAND or any of the sponsors of its research. This product is part of 
the RAND Corporation testimony series. RAND testimonies record 
testimony presented by RAND associates to Federal, State, or local 
legislative committees; Government-appointed commissions and panels; 
and private review and oversight bodies. The RAND Corporation is a 
nonprofit research organization providing objective analysis and 
effective solutions that address the challenges facing the public and 
private sectors around the world. RAND's publications do not 
necessarily reflect the opinions of its research clients and sponsors.
---------------------------------------------------------------------------
                              May 26, 2010
                            NO PATH TO GLORY
                   DETERRING HOMEGROWN TERRORISM \2\
---------------------------------------------------------------------------
    \2\ This testimony is available for free download at http://
www.rand.org/pubs/testimonies/CT348/.
---------------------------------------------------------------------------
    Madame Chair, Members of the subcommittee, thank you very much for 
the opportunity to address this important topic. It is an honor to 
again testify before Congress and, for the third time, before Members 
of this subcommittee. The views I express are my own. I do not speak on 
behalf of any department, agency, organization, or political agenda.
A Determined, Resilient, Opportunistic, and Adaptable Foe
    Nearly 9 years after 9/11, the principal terrorist threat still 
comes from a galaxy of jihadist groups that subscribe to or have been 
influenced by al-Qaeda's ideology of a global armed struggle against 
the West. The complexity of the movement defies easy assessment. The 
ability of al-Qaeda's central leadership to directly project its power 
through centrally planned and managed terrorist attacks has been 
reduced. Terrorist organizations now confront a more hostile operating 
environment: Al-Qaeda has not been able to carry out a major terrorist 
attack in the West since the London bombings of 2005. For the time 
being, it has concentrated its resources and efforts on the conflicts 
in Afghanistan and Pakistan.
    This should not imply that we are at a tipping point in the 
struggle against terrorism. Al-Qaeda, its affiliates, and its allies, 
remain determined to continue to attack, and they have proved to be 
resilient, opportunistic, and adaptable, capable of morphing to meet 
new circumstances. Complacency on our part would be dangerous.
A More Decentralized Terrorist Campaign
    To carry on its international terrorist campaign, al-Qaeda now 
relies on its affiliates, principally in North Africa, Iraq, and the 
Arabian Peninsula, and on its continuous exhortation to followers to do 
whatever they can, wherever they are. Other terrorist groups, while 
concentrating on local contests, have adopted al-Qaeda's vision of a 
global struggle and may launch their own attacks or assist volunteers 
seeking support.

Emphasis on Do-It-Yourself Terrorism
    The United States remains al-Qaeda's primary target. Some analysts 
believe that al-Qaeda is under growing pressure to prove that it can 
carry out another attack on U.S. soil in order to retain its 
credentials as the vanguard of the jihadist movement. Such an attack 
could take the form of an operation planned from abroad, like the 
Christmas day airline bombing attempt, or it could be do-it-yourself 
attempts by homegrown terrorists responding to al-Qaeda's call to 
action. Inevitably, one or more of these attacks may succeed.
    Terrorist attempts are not evidence of our failure to protect the 
Nation from terrorism, nor should they be cause for feigned outrage and 
divisive finger-pointing. They provide opportunities to learn lessons 
and improve defenses. The attempts reflect that we are at war--although 
the term has been largely discarded--and as in any war, the other side 
attacks.

America's Homegrown Terrorists
    According to a recent RAND paper, there were 46 reported cases of 
radicalization and recruitment to jihadist terrorism in the United 
States between 9/11 and the end of 2009.\3\ This number does not 
include attacks from abroad. In all, 125 persons were involved in the 
46 cases. Two more cases and several more arrests in 2010 bring the 
total to 131 persons. Half of the cases involve single individuals; the 
remainder are tiny conspiracies. The number of cases and the number of 
persons involved both increased sharply in 2009. Whether this presages 
a trend we cannot yet say. But these cases tell us that radicalization 
and recruitment to jihadist terrorism do happen here. They are clear 
indications of terrorist intent. The threat is real.
---------------------------------------------------------------------------
    \3\ Brian Michael Jenkins, Would-Be Warriors: Incidents of Jihadist 
Terrorist Radicalization in the United States Since September 11, 2001, 
Santa Monica: The RAND Corporation OP-292-RC, 2010.
---------------------------------------------------------------------------
No Deep Reservoirs of Potential Recruits
    Fortunately, the number of homegrown terrorists, most of whom are 
Muslims, is a tiny turnout in a Muslim American community of perhaps 3 
million. (By contrast, several thousand Muslim Americans serve in the 
U.S. armed forces.) Al-Qaeda's exhortations to violence are not 
resonating among the vast majority of Muslim Americans. There are veins 
of extremism, handfuls of hotheads, but no deep reservoirs from which 
al-Qaeda can recruit. America's would-be jihadists are not Mao's fish 
swimming in a friendly sea.
    The cases do not indicate an immigration or border-control problem. 
Almost all of those arrested for terrorist-related crimes are native-
born or naturalized U.S. citizens or legal permanent residents. Most of 
them have lived in the United States for many years. There is no 
evidence that they were radicalized before coming to the United States. 
No armies of ``sleepers'' have infiltrated the country.

The Criminal Justice System Works
    The cases also tell us that the U.S. criminal justice system works. 
With the exception of Jose Padilla, who was initially held as an enemy 
combatant, the individuals arrested in these cases (except for those 
who left to join jihad fronts abroad) were brought before U.S. courts 
and convicted or now await trial.
    About a quarter of those identified have links with jihadist 
groups--al-Qaeda, Lashkar-e-Taiba, or the Taliban--but there is no 
underground network of foreign terrorist operatives, and there are no 
terrorist gangs in the United States like those active in the 1970s, 
when the level of terrorist violence was much higher than it is today.

Amateurs are Still Dangerous
    Twenty-five of the 131 terrorists identified in the United States 
since 9/11 received some kind of terrorist indoctrination or training. 
Judging by the results, it was not very good. Al-Qaeda clearly has 
quality-control problems. The plots have been amateurish. Only two 
attempts succeeded in causing casualties--significantly, both were 
carried out by lone gunmen, a problem in the United States that 
transcends terrorism. But amateurs are still dangerous. There is no 
long mile between the terrorist wannabe and the lethal zealot.
    America's jihadists may suffer from substandard zeal. Only one 
became a suicide bomber, although Major Nidal Hasan may not have 
expected to survive his murderous rampage at Fort Hood. The rest 
planned to escape.
    Most American jihadists appear to have radicalized themselves 
rather than having been recruited in the traditional sense. However, 
itinerant proselytizing recruiters appear in some of the cases, and 
active recruiting does occur in prisons. Many homegrown terrorists 
begin their journey to violent jihad on the internet.

Diverse Personal Motives
    The process of radicalization and recruitment to jihadist terrorist 
violence is complex and reflects a combination of individual 
circumstances and ideological motivations. Personal crisis and 
political cause are often paired in the process.
    What does the jihadist acolyte seek in terrorism? Although 
recruitment may involve the rhetoric of religious belief, turning to 
violent jihad does not seem to result from profound religious 
discernment. Few jihadists appear to have more than a superficial 
knowledge of Islam. On the other hand, radicalization and recruitment 
do appear to be opportunities for an ostentatious display of piety, 
conviction, and commitment to their beliefs, ultimately expressed in 
violence.
    Jihadists often use the need to avenge perceived assaults on 
Islam--insults to the religion, atrocities inflicted upon its 
believers, aggression by infidels against its people and territory, 
anger at specific U.S. policies--to justify their actions. These 
certainly are jihadist recruiting themes, but volunteer terrorists also 
view jihad as an opportunity for adventure, a chance to gain status in 
a subculture that exalts violence, to overcome perceived personal 
humiliation and prove manliness, to demonstrate prowess, to be 
perceived as a warrior in an epic struggle.
    For lonely hearts, joining jihad offers a camaraderie that can 
sweep the more malleable along to schemes they would otherwise not have 
contemplated. For those who feel powerless, violent action offers the 
secret pleasures of clandestinity and power that come with the decision 
to kill.
    Al-Qaeda's ideology also has become a vehicle for resolving 
personal discontents, an opportunity to start life over, to transcend 
personal travail and turmoil through bloody violence, to soothe a 
restless soul with the spiritual comfort of an absolute ideology that 
dismisses the now as a brief passage between a glorious mythical past 
and eternal paradise. The jihadist may see terrorism as a path to glory 
in every sense of that word.

The Message to Would-Be Terrorists: No Path to Glory
    Dealing with domestic radicalization does not mean countering 
jihadist propaganda. It means applying the law. What one believes is a 
matter of conscience. What one does to impose his or her beliefs on 
others concerns everyone. When a course of action involves the threat 
or use of violence, it becomes a matter of law. America's response to 
homegrown terrorism must, above all, be based upon the law.
    The individualistic quality of radicalization and recruitment to 
jihadist terrorism in the United States suggests a counter-recruitment 
strategy that focuses on dissuading individuals from joining al-Qaeda's 
version of jihad. This can be accomplished not through ideological or 
theological debate with al-Qaeda's on-line communicators, but by 
deterrence through arrests, by treating terrorists and would-be 
terrorists as ordinary criminals, by stripping them of political 
pretensions.
    The message to would-be terrorists should be that they can trust no 
one. They will fail. They will be detected and apprehended. They will 
be treated as ordinary criminals and will spend a long time in a prison 
cell. They will receive no applause. They will disgrace their families 
and their communities. They will be labeled fools. Their lives will be 
wasted. There will be no glory.
    Authorities could go further and consider something like Italy's 
so-called ``repentant program,'' in which convicted terrorists were 
offered reduced sentences in return for their cooperation. This kind of 
program differs from routine plea-bargaining and from efforts abroad to 
rehabilitate terrorists. A ``repentant'' program would reward those who 
not only provide authorities with operational intelligence, but also 
contribute to understanding the recruitment process itself, and who 
actively participate in efforts to discourage others from following the 
same destructive path. It would let the denunciations of al-Qaeda 
motivator al-Awlaki come from his own acolytes.

Local Authorities are Best Placed to Counter Recruiting
    Preventing future terrorist attacks will require the active 
cooperation of the American Muslim community, which is the target of 
jihadist recruiting. It will require effective domestic intelligence 
collection. Both are best accomplished by local authorities.
    The first line of defense against radicalization and recruitment to 
jihadist terrorism in the Muslim-American community is the Muslim-
American community. America's invasion of Iraq, its support for 
Ethiopia's invasion of Somalia, and its current military efforts in 
Afghanistan and Pakistan have created some pockets of resentment, but 
polls indicate little support for al-Qaeda's jihadist fantasies among 
American Muslims. Cooperation against terrorism means more than the 
public denunciations of al-Qaeda that many non-Muslim Americans demand 
as proof of Muslims' patriotism, nor should tips to police be the sole 
metric.
    Much of the defense against jihadist radicalization will be 
invisible--quiet discouragement, interventions by family members and 
friends, and when necessary, discreet assistance to the authorities. 
Reports indicate that this is already taking place.
    Community policing can maintain the cooperation that is needed. 
This does not involve police in religious or political debates, which 
are matters for the community. It requires building and maintaining 
trust between the community and local authorities and understanding 
local communities and diasporas, their problems, and their concerns.
    Community cooperation will not prevent all terrorist attempts. 
Respected community leaders may have limited influence over more 
radical elements or may have no clue about tiny conspiracies or 
individuals who are on an interior journey to terrorism.
    Members of the community must realize that while they play an 
important role in discouraging terrorism, they cannot be intermediaries 
in criminal investigations or intelligence operations aimed at 
preventing terrorist attacks. American Muslims should not regard 
themselves or be perceived by others as targets because they are 
Muslims. But being Muslim brings no privileged or separate status.

Disruption of Terrorist Plots: An Undeniable Intelligence Success
    Twenty-five of the reported cases of homegrown terrorism involved 
plots to carry out attacks in the United States. Only three--including 
the failed Times Square bombing attempt--got as far as implementation, 
an undeniable intelligence success. And no doubt, other terrorist plots 
have been disrupted without arrests, while the publicized success of 
authorities has had a deterrent effect on still other plotters.
    Intelligence has improved since 9/11. Federal Government agencies 
share more information with each other and with local police 
departments and fusion centers, although there are still some problems. 
But connecting dots is not enough, and the emphasis on information-
sharing should not distract us from the difficult and delicate task of 
domestic intelligence collection.

Domestic Intelligence Collection Remains Haphazard
    The diffuse nature of today's terrorist threat and the emphasis on 
do-it-yourself terrorism challenge the presumption that knowledge of 
terrorist plots will come first to Federal authorities, who will then 
share this information with State and local authorities. It is just as 
likely--perhaps more likely--that local law enforcement could be the 
first to pick up the clues of future conspiracies.
    Local police departments are best placed to collect domestic 
intelligence. Their ethnic composition reflects the local community. 
They know the territory. They don't rotate to a new city every 3 or 4 
years. They report to local authorities. But they often lack an 
understanding of intelligence and require resources and training.
    Despite the clear need for improved domestic intelligence, 
collection remains haphazard. The Joint Terrorism Task Forces are 
extremely effective, but they are case-oriented, and investigation 
differs from intelligence. The fusion centers are venues for sharing 
information and have diverse responsibilities, but few collect 
intelligence.

An Army of On-Line Jihadists but Few Terrorists
    The internet plays an important role in contemporary terrorism, as 
jihadists have effectively demonstrated. It allows global 
communications, critical to a movement determined to build an army of 
believers. It facilitates recruiting. It is accessible to seekers, 
reinforcing and channeling their anger. It creates on-line communities 
of like-minded extremists, engaging them in constant activity. It is a 
source of instruction. It facilitates clandestine communication.
    The internet, however, has not enabled al-Qaeda, despite its high 
volume of sophisticated communications, to provoke a global intifada. 
Its websites and chat rooms outnumber its Western recruits. Its on-line 
exhortations to Americans have produced a very meager return--an army 
of on-line jihadists, but only a tiny cohort of terrorists in the real 
world. And while the internet offers would-be terrorists a continuing 
tutorial on tactics and improvised weapons, again thus far, this has 
not yet significantly improved terrorist skills.
    Moreover, the internet provides insights into jihadist thinking and 
strategy and has proved to be a source of intelligence leading to 
arrests. This must be kept in perspective when considering 
countermeasures. These might include ways to address the issue of 
anonymity and facilitate investigations--and here, terrorist use of the 
internet represents only one facet of a much larger problem of cyber-
crime.
    I have no doubt that jihadists will attempt further terrorist 
attacks. Some will succeed. That is war. But I also have no doubt that 
these attacks will not defeat this republic or destroy its values 
without our active complicity, as long as we do not yield to terror.

    Ms. Harman. Thank you very much. Mr. Romero.

 STATEMENT OF ANTHONY D. ROMERO, EXECUTIVE DIRECTOR, AMERICAN 
                     CIVIL LIBERTIES UNION

    Mr. Romero. Good morning, Chairman Harman, Ranking Member 
McCaul and other Members of the subcommittee. Thank you for the 
opportunity to testify on behalf of the American Civil 
Liberties Union about the need to preserve our rights to 
privacy and free speech even in times of threat to our Nation. 
We commend you, Chair, for recognizing that our founding 
principles must not be sacrificed in the name of National 
security.
    However, by billing this hearing as an examination of 
recruitment of new terrorists using internet facilities, the 
subcommittee suggests an inherent evil in allowing the internet 
to continue without some change to its current open forum. We 
are here to implore this committee to resist leveling its 
legislative guns at the most democratic form of modern 
communication.
    The internet is our most important communications medium. 
It has been and must remain the most open marketplace of ideas. 
Any suggestion to limit this marketplace will not only be a 
direct and immediate harm to the speech and privacy rights of 
law-abiding Americans, but it would also erode the very 
principles that make our country the beacon of freedom to 
people around the globe.
    To be clear, the internet is not our enemy. Terrorists are 
our enemies.
    Now some suggest taking down websites containing terrorist-
laden material is necessary like the ones we saw today. But 
such discretion is exactly the kind of censorship that the 
Supreme Court has repeatedly cast aside in more than 20 years. 
In 1984, Justice Blackmun cautioned ``By placing discretion in 
the hands of an official to grant or deny a license, such a 
statute creates a threat of censorship that by its very 
existence chills free speech.'' In the landmark case of Reno v. 
ACLU the Court again clearly extended protection to internet 
speech saying ``Our cases provide no basis for qualifying the 
level of First Amendment scrutiny that should be applied to 
internet speech.''
    Our history, our Nation's history is replete with 
regrettable Government actions restricting free speech and 
privacy rights in the name of National security. Consider the 
Alien and Sedition Act of 1798 during a time of conflict with 
France. One measure made it a crime to publish false, 
scandalous, and malicious writing against the Government or its 
officials.
    The Sedition Act of 1918 in which Congress prohibited the 
use of ``disloyal, profane, scurrilous, or abusive language 
about the government, the flag, or the Armed Forces.'' It also 
outlawed anything that caused others to view the Government or 
its institutions with contempt.
    The Cold War brought about a red scare characterized by 
Congressional witch hunts orchestrated by Senator Joseph 
McCarthy and the House Un-American Activities Committee, which 
ruined the careers of thousands of loyal Americans based purely 
on their associations or their beliefs.
    The COINTELPRO spying program, in which the FBI opened over 
500 domestic intelligence files between 1960 and 1974 targeting 
people solely on their political affiliations and beliefs and 
created a list of 26,000 individuals who would be rounded up in 
an event of National emergency.
    Now if our history is any indication, some of the policies 
adopted in the wake of 9/11, such as lowering the threshold for 
electronic surveillance or efforts that might try to rein in 
certain kinds of on-line communications, that these two will be 
ultimately seen as a stain on our Nation's reputation as the 
leading protector of individual rights.
    The best antidote to harmful speech is not censorship, but 
more speech. Not only will we stand by the principles we hold 
dear, but we will show the world and ourselves that we are not 
afraid of dissent. We will show that we are not afraid of the 
cacophony that must be our democracy.
    On a practical level, by keeping the internet free from 
censorship, we will provide new clues to our law enforcement 
and intelligence personnel tasked with the difficult and 
necessary job of seeking out those who would do us real harm.
    We must also not forgo our traditional notions of privacy 
in the mad scramble to provide false notions of security. Our 
system, based on the existence of probable cause and judicial 
oversight, provides an appropriate balance that preserves 
personal privacy while providing law enforcement and 
intelligence officials with the tools they need.
    Fear, or fear mongering, must not drive Government policies 
any longer. Protecting the First and Fourth Amendments, 
honoring our values, and making sure that we keep this country 
both safe and free is the only way to approach the crisis that 
does, in fact, confront us.
    Thank you very much.
    [The statement of Mr. Romero follows:]

                Prepared Statement of Anthony D. Romero
                              May 26, 2010

    Good morning Chair Harman, Ranking Member McCaul, and Members of 
the subcommittee. Thank you for the opportunity to testify on behalf of 
the American Civil Liberties Union (ACLU), its more than half a million 
members, countless additional supporters and activists, and 53 
affiliates Nation-wide. The ACLU is one of the Nation's oldest and 
largest organizations committed to defending the Constitution and Bill 
of Rights in the courts and before the Executive and Legislative 
branches of Government. The ACLU is concerned about the need to 
steadfastly preserve our rights to privacy and free speech even in 
times of threat to our Nation. We all acknowledge the Government's 
legitimate interest in protecting the Nation from terrorism and in 
stemming actions that further the unlawful, violent acts of terrorist 
groups. But just because a threat exists does not justify the erosion 
of principles that are at the core of our Constitutional identity. The 
Constitution requires precision in pursuing legitimate Government goals 
to ensure the Government properly distinguishes between confederates of 
terrorist groups who seek to facilitate their unlawful aims, and others 
whose legitimate First Amendment-protected activity brings them into 
association with such groups. Sacrificing our civil liberties in the 
pursuit of security is unwise, unnecessary, and counterproductive to 
preventing extremist violence.
    We commend this subcommittee for recognizing that our founding 
principles must not be sacrificed in the name of homeland security. 
Merely by billing this hearing as an examination of recruitment of new 
terrorists using internet facilities, however, the subcommittee 
suggests an inherent evil in allowing the internet to continue to exist 
in its current open form. Since terrorists use the internet to recruit 
new terrorists, as the narrative goes, Congress must do something to 
stop such on-line activity. We leave it to others to debate whether 
evidence shows that terrorists' use of the internet makes them more 
effective or simply more vulnerable to interception of their 
communications. Instead we are here to implore this subcommittee not to 
level its legislative guns at this most democratic of communications 
tools. The internet is merely a communications medium. It should remain 
the most open marketplace of ideas, where those who believe in the 
American system of individual rights should out-argue those who would 
advocate harm to our homeland. Any suggestion to limit this marketplace 
would not only be a direct and immediate harm to the speech and privacy 
rights of law-abiding Americans, it would also erode those very 
principles that make our country the beacon of freedom to people around 
the globe.\1\
---------------------------------------------------------------------------
    \1\ Our statement before this subcommittee in December 2009 
addressed our concern that some envisioned an overly rigid ``path to 
extremism'', whereas the best evidence suggests there is no fixed path 
and that there are many ways that individuals come to take violent 
action--whether based on extremist beliefs or not. In that hearing, we 
argued for a focus on how individuals become predisposed to violence 
and not on the nature of any ideology, since ideology--even extremist 
ideology--need not be inherently violent. Statement of Michael W. 
Macleod-Ball, House Committee on Homeland Security, Subcommittee on 
Intelligence, Information Sharing, and Terrorism Risk Assessment, 
Violent Extremism: How Are People Moved from Constitutionally-Protected 
Thought to Acts of Terrorism? (Dec. 15, 2009).
---------------------------------------------------------------------------
    Without doubt, the rise of communications technologies presents 
challenges to those interested in preserving traditional civil 
liberties standards. Nearly 50 years ago, in a case involving the 
wearing of an undercover ``wire'', Chief Justice Earl Warren 
anticipated many legal disputes of the more recent past. ``The 
fantastic advances in the field of electronic communication,'' he wrote 
in 1963, ``constitute a greater danger to the privacy of the 
individual.''\2\ Four years later, the Chief Justice also foresaw that 
measures adopted in the name of National security often posed special 
dangers to individual rights--an argument that bears directly on any 
proposal to limit the internet in the name of fighting terrorism. In 
U.S. v. Robel, he wrote:
---------------------------------------------------------------------------
    \2\ Lopez v. U.S., 373 U.S. 427, 441 (1963) (Warren, J., 
concurring).

``This concept of `National defense' cannot be deemed an end in itself, 
justifying any exercise of legislative power designed to promote such a 
goal. Implicit in the term `National defense' is the notion of 
defending those values and ideals which set this Nation apart . . . 
[O]ur country has taken singular pride in the democratic ideals 
enshrined in its Constitution, and the most cherished of those ideals 
have found expression in the First Amendment. It would indeed be ironic 
if, in the name of National defense, we would sanction the subversion . 
. . of those liberties . . . which make the defense of our Nation 
worthwhile.''\3\
---------------------------------------------------------------------------
    \3\ U.S. v. Robel, 389 U.S. 258, 264 (1967).

    Today, we urge this subcommittee to stand strong for freedom as you 
work to protect our Nation from harm. If you find that our enemies are 
using the internet to recruit, we encourage use of the internet to 
dissuade. At the same time, we can and should be using their on-line 
communications to learn as much as is lawfully possible about those who 
would do us harm and their activities and motives, following proper law 
enforcement and intelligence procedures and with appropriate judicial 
oversight. We urge you to leave the internet alone as an unfettered 
place of freedom and anonymity--and preserve the rights to speech and 
privacy for all those law abiding Americans who use these ``fantastic'' 
forms of electronic communications.

                      I. FIRST AMENDMENT FREEDOMS

    The First Amendment to the United States Constitution guarantees 
freedom of religion, speech, press, petition, and assembly.\4\ These 
protections are based on the premise that open and unrestrained public 
debate empowers democracy by enriching the marketplace with new ideas 
and enabling political and social change through lawful means.\5\ These 
freedoms also enhance our security. Though ``vehement, caustic and 
sometimes unpleasantly sharp attacks on Government and public 
officials'' have to be endured under our Constitutional system of 
Government, the uninhibited debate these freedoms guarantee is 
recognized as ``essential to the security of the Republic'' because it 
ensures a Government responsive to the will of the people.\6\ Moreover, 
as Justice Louis Brandeis explained, our Nation's Founders realized 
that the greater threat to security lay not in protecting speech, but 
in attempting to suppress it:
---------------------------------------------------------------------------
    \4\ U.S. Const., amend. 1: ``Congress shall make no law respecting 
an establishment of religion, or prohibiting the free exercise thereof; 
or abridging the freedom of speech, or of the press; or the right of 
the people peaceably to assemble, and to petition the Government for a 
redress of grievances.''
    \5\ See U.S. v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 
1943); Roth v. U.S., 354 U.S. 476, 484 (1957).
    \6\ See New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), 
quoting Stromberg v. California, 283 U.S. 359, 369 (1931).

``Those who won our independence . . . knew that order cannot be 
secured merely through fear of punishment for its infraction; that it 
is hazardous to discourage thought, hope, and imagination; that fear 
breeds repression; that repression breeds hate; that hate menaces 
stable Government; that the path of safety lies in the opportunity to 
discuss freely supposed grievances and proposed remedies, and that the 
fitting remedy for evil counsels is good ones. Believing in the power 
of reason as applied through public discussion, they eschewed silence 
coerced by law--the argument of force in its worst form. Recognizing 
the occasional tyrannies of governing majorities, they amended the 
Constitution so that free speech and assembly should be 
guaranteed.''\7\
---------------------------------------------------------------------------
    \7\ Whitney v. California, 274 U.S. 357, 375-376, (1927), 
(Brandeis, J., concurring).

    Some who seek to curtail the use of email and websites by purported 
terrorists would do so by taking down websites. In order to do so, 
though, someone in Government would have to be assigned the job of 
deciding what sites to censor and what sites to leave in place. Such 
discretion is exactly the kind of censorship that the Court has 
repeatedly cast aside. Justice Harry Blackmun addressed the notion of 
such discretionary censorship. ``By placing discretion in the hands of 
an official to grant or deny a license, such a statute creates a threat 
of censorship that by its very existence chills free speech.''\8\ More 
specifically, the Supreme Court has held that internet speech is 
protected to the full extent of the First Amendment.\9\ ``[O]ur cases 
provide no basis for qualifying the level of First Amendment scrutiny 
that should be applied to this medium.''\10\ There is simply no fair 
and just way to draw a line that protects the rights of those who are 
merely controversial from those who are pursuing a more sinister 
objective.\11\ Accordingly, such recommendations must yield to the 
enduring power of our First Amendment.
---------------------------------------------------------------------------
    \8\ Secretary of State of Md. v. Munson Co., 467 U.S. 947, 964 n. 
12 (1984).
    \9\ Reno v. ACLU, 521 U.S. 844, 870 (1997).
    \10\ Id.
    \11\ ``[T]he mere abstract teaching . . . of the moral propriety or 
even moral necessity for a resort to force and violence, is not the 
same as preparing a group for violent action and steeling it to such 
action.'' Brandenburg v. Ohio, 395 U.S. 444, 448 (1969) (per curiam) 
(quoting Noto v. U.S., 367 U.S. 290, 297-98). The Brandenburg opinion 
set aside a state statute that barred advocacy of the propriety of 
violence or voluntary assembly for such criminal purposes. Id.
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                        II. THE RIGHT TO PRIVACY

    The Fourth Amendment to the U. S. Constitution establishes the core 
of our understanding of our right to privacy.\12\ In short, government 
may not invade an individual's privacy without justifying the need for 
doing so to a court. Courts have applied this basic principle to 
different forms of communications, including letters, telephone 
conversations, and other more advanced forms.\13\ Anticipating the 
oncoming development of privacy law, Justice William Douglas asserted 
that the right to be let alone is ``indeed the beginning of all 
freedoms''.\14\
---------------------------------------------------------------------------
    \12\ U.S. Const., amend. 4: ``The right of the people to be secure 
in their persons, houses, papers, and effects, against unreasonable 
searches and seizures, shall not be violated, and no Warrants shall 
issue, but upon probable cause, supported by Oath or affirmation, and 
particularly describing the place to be searched, and the persons or 
things to be seized.''
    \13\ See Ex parte Jackson, 96 U.S. 727, 733 (1877) (letters and 
sealed packages); Katz v. U.S., 389 U.S. 347, 352 (1967) (telephone 
communications); Kyllo v. U.S., 533 U.S. 27, 34 (2001) (changing 
technology should not erode society's expectation of privacy).
    \14\ Public Util. Comm'n v. Pollak, 343 U.S. 451, 467 (1952) 
(Douglas, J., dissenting).
---------------------------------------------------------------------------
    Some have argued that the on-line presence of websites advocating 
terrorist causes justifies casting aside the Fourth Amendment standard 
to chase down anyone who might have visited any such site. Just as the 
mere use of the internet as a tool does not justify setting aside our 
speech rights, so too should the privacy right remain untouched. No 
court will stand in the way of a legitimate and well-founded Government 
application for a search of electronic communications when probable 
cause exists to believe that wrongdoing has occurred or is about to 
occur. To now further blur the line that defines when law enforcement 
may secretly invade one's personal communications will inevitably lead 
to abuse--as it has already done.\15\
---------------------------------------------------------------------------
    \15\ Substantial exceptions to the norm of requiring judicial 
approval for such searches have already been adopted. The USA PATRIOT 
Act and amendments to the Foreign Intelligence Surveillance Act provide 
major loopholes to traditional standards. We oppose those exceptions 
and have challenged some of them in court. Numerous reports, including 
those of the DOJ Inspector General, document abuses of these special 
authorities. Their existence serves as even further basis to argue 
against any form of additional extrajudicial surveillance authority for 
the purpose of seeking out those who visit websites relating in some 
way to terrorism or terrorist activities.
---------------------------------------------------------------------------
   III. GOVERNMENT INFRINGEMENT ON CIVIL LIBERTIES IN TIMES OF CRISIS

    As Congress grapples with determining what it can do to help reduce 
the threat of terrorism within our borders, it is important to keep in 
mind that our Nation's history is replete with regrettable Governmental 
actions restricting speech and privacy rights in the name of protecting 
the country. Indeed the ACLU was founded in 1920 to come to the defense 
of immigrants, trade unionists, and political activists who were 
illegally rounded up by the thousands in the infamous Palmer raids 
during America's first ``red scare,'' a period of significant anarchist 
violence. Rather than focusing on finding the perpetrators of the 
violence, the Government sought anyone who supported similar political 
views, associated with disfavored organizations or wrote or spoke in 
opposition to Government policies. Lawyers who complained of the abuse, 
which included torture, coerced confessions, illegal searches and 
arrests, were subject to investigation themselves.\16\
---------------------------------------------------------------------------
    \16\ SELECT COMM. TO STUDY GOVERNMENTAL OPERATIONS WITH RESPECT TO 
INTELLIGENCE ACTIVITIES, U.S. SENATE, 94TH CONG., FINAL REPORT ON 
SUPPLEMENTAL DETAILED STAFF REPORTS ON INTELLIGENCE ACTIVITIES AND THE 
RIGHTS OF AMERICANS (BOOK III), S. Rep. No. 94-755, at 385 (1976), 
available at: http://www.aarclibrary.org/publib/church/reports/book3/
html/ChurchB3_0196b.htm.
---------------------------------------------------------------------------
    We are able to see such actions for what they are when they occur 
in foreign lands. When Google was the subject of a sophisticated 
cyberattack and subsequently revealed that the Chinese government 
wanted its cooperation in blocking access to sites based on political 
content, the world was naturally aghast.\17\ But in contemporaneous 
public discourse we tend not to apply the same standards when our own 
Government attempts to take similar actions to restrict civil liberties 
in the name of National security. It is only well after the 
precipitating crisis has passed that we tend to see our own 
Government's actions in a clearer light.
---------------------------------------------------------------------------
    \17\ ``Google Said to Have Made No Progress in China Dispute,'' 
Bloomberg Businessweek (Mar. 23, 2010) (available at http://
www.businessweek.com/news/2010-03-23/google-said-to-have-made-no-
progress-in-two-month-china-dispute.html).
---------------------------------------------------------------------------
    The pattern of abusive Government action in the United States in 
times of crisis goes much further back than the Palmer raids of the 
1920s and continues to today.
   Alien and Sedition Acts.--Congress enacted four bills in 
        1798 during a time of conflict with France. The Federalists in 
        the John Adams administration strongly objected to the 
        dissenting voices of those led by Thomas Jefferson and other 
        Democratic-Republicans, who were generally sympathetic to the 
        French cause. Of the four laws, the Sedition Act made it a 
        crime to publish ``false, scandalous, and malicious writing'' 
        against the Government or its officials. Negative reaction led 
        to Jefferson's election in 1800 and the laws ultimately expired 
        or were repealed.\18\
---------------------------------------------------------------------------
    \18\ An Act for the Punishment of Certain Crimes against the United 
States, ch. 74, 1 Stat. 596 (available at http://avalon.law.yale.edu/
18th_century/sedact.asp).
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   Anarchist Exclusion Act.--Congress passed this law to 
        authorize the deportation of immigrants who subscribed to 
        anarchist ideas. Adopted at a time of unrest concerning 
        immigration into the United States, the Anarchist Exclusion Act 
        was re-adopted following the assassination of President 
        McKinley by the American son of Polish immigrants. The law's 
        authorities were expanded to allow wider discretion for 
        deportations in the Immigration Act of 1918.\19\
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    \19\ An Act to Regulate the Immigration of Aliens into the United 
States, ch. 1012, 32 Stat. 1222.
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   Sedition Act of 1918.--Congress prohibited the use of 
        ``disloyal, profane, scurrilous, or abusive language'' about 
        the Federal Government, the flag, or the armed forces. It also 
        outlawed anything that caused others to view the Government or 
        its institutions with contempt. It was repealed in 1920 after 
        the war ended, but those convicted under its terms generally 
        received sentences of 10 to 20 years.\20\
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    \20\ Stone, Geoffrey R., Perilous Times: Free Speech in Wartime 
from the Sedition Act of 1798 to the War on Terrorism (2004) 
(hereinafter Stone, Perilous Times).
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   Justice Department GID.--Following World War I, the 
        Department of Justice General Intelligence Division (GID), the 
        precursor agency to the Federal Bureau of Investigation (FBI), 
        collected 150,000 secret files ``giving detailed data not only 
        upon individual agitators connected with the radical movement, 
        but also upon organizations, associations, societies, 
        publications and social conditions existing in certain 
        localities.''\21\ By the GID's own account the warrantless 
        searches, arrests, and deportations were not useful in 
        identifying suspected terrorists or other criminal activity. 
        Rather, its claimed success was in ``wrecking the communist 
        parties in this country'' and shutting down ``the radical 
        press.''\22\
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    \21\ SELECT COMM. TO STUDY GOVERNMENTAL OPERATIONS WITH RESPECT TO 
INTELLIGENCE ACTIVITIES, U.S. SENATE, 94TH CONG., FINAL REPORT ON 
SUPPLEMENTAL DETAILED STAFF REPORTS ON INTELLIGENCE ACTIVITIES AND THE 
RIGHTS OF AMERICANS (BOOK III), S. Rep. No. 94-755, at 386 (1976), 
[hereinafter, CHURCH REPORT] available at: http://www.aarclibrary.org/
publib/church/reports/book3/html/ChurchB3_0196b.htm.
    \22\ Id. at 387.
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   State investigations.--The New York State Legislature 
        initiated a 2-year investigation from 1919 to 1920 into the 
        spread of radical ideas. The Joint Legislative Committee to 
        Investigate Seditious Activities (commonly referred to as the 
        Lusk Committee) ultimately produced a report, Revolutionary 
        Radicalism: Its History, Purpose and Tactics, which ``smeared 
        liberals, pacifists, and civil libertarians as agents of 
        international Communism.''\23\ Though thousands were arrested, 
        few were prosecuted or deported and little incriminating 
        information was obtained during the committee's 
        investigation.\24\
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    \23\ Samuel Walker, In Defense of American Liberties: A History of 
the ACLU (1990) at 16.
    \24\ The Lusk Committee: A Guide to the Records of the Joint 
Committee to Investigate Seditious Activities: A Guide to the Records 
Held in the New York State Archives, available at: http://
www.archives.nysed.gov/a/research/res_topics_bus_lusk.shtml.
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   Smith Act.--Congress outlawed the publication of any printed 
        matter advocating the overthrow of the Government and required 
        the registration of all non-citizen adult residents in 1940. 
        The law was used for a number of high profile political 
        prosecutions against isolationists, pro-fascists, and 
        communists in the 1940s and 1950s, including one of the early 
        leaders of the ACLU. The law fell into disuse after several 
        convictions were set aside by the Supreme Court in the late 
        1950s.\25\
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    \25\ 18 USC  2385. See also Stone, Perilous Times.
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   McCarthy hearings and House Un-American Activities 
        Committee.--The Cold War brought about a new red scare 
        characterized by Congressional witch hunts orchestrated by 
        Senator Joseph McCarthy's Permanent Subcommittee on 
        Investigations and the House Un-American Activities Committee, 
        which ruined the careers of many loyal Americans based purely 
        on their associations. In particular, their work helped to 
        blacklist people from certain industries and in particular the 
        entertainment industry in the late 1940s and 1950s based solely 
        on political views of those who were targeted.\26\
---------------------------------------------------------------------------
    \26\ Goodman, Walter, The Committee (1968); Whitfield, Stephen J., 
The Culture of the Cold War (1996).
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   COINTELPRO.--The FBI ran a domestic counter-intelligence 
        program that quickly evolved from a legitimate effort to 
        protect the National security from hostile foreign threats into 
        an effort to suppress domestic political dissent through an 
        array of illegal activities. The Senate Select Committee that 
        investigated COINTELPRO (the ``Church Committee'') said the 
        ``unexpressed major premise of . . . COINTELPRO is that the 
        Bureau has a role in maintaining the existing social order, and 
        that its efforts should be aimed toward combating those who 
        threaten that order.''\27\ Instead of focusing on violations of 
        law, these investigations targeted people based on their 
        beliefs, political activities and associations. FBI opened over 
        500,000 domestic intelligence files between 1960 and 1974, and 
        created a list of 26,000 individuals who would be ``rounded 
        up'' in the event of a National emergency.\28\ The FBI used the 
        information it gleaned from these improper investigations not 
        for law enforcement purposes, but to ``break up marriages, 
        disrupt meetings, ostracize persons from their professions and 
        provoke target groups into rivalries that might result in 
        deaths.''\29\
---------------------------------------------------------------------------
    \27\ CHURCH REPORT, at 7.
    \28\ Id., at 6-7.
    \29\ Id., at 5.
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   Warrantless surveillance after 9/11.--The Bush 
        administration authorized a sweeping program of surveillance of 
        electronic communications without Congressional approval. While 
        some in Congress spoke out against the program, Congress 
        ultimately not only authorized much of the surveillance after-
        the-fact, but also granted immunity to the large 
        telecommunications companies that gave the Government access to 
        the communications records in question.\30\ In 2008, Congress 
        legislated an even broader warrantless spying program when it 
        passed the Foreign Intelligence Surveillance Act (FISA) 
        Amendments Act, which permits the Government to intercept all 
        international internet activity without an individualized 
        warrant based on probable cause to believe that a crime or act 
        of terrorism has been or will be committed, even if one party 
        to the communication is a U.S. person within the boundaries of 
        the United States.\31\
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    \30\ ACLU letter to U. S. Senate, ``Vote NO on H.R. 6304, the FISA 
Amendments Act--Oppose Warrantless Surveillance and Immunity for 
Telecommunications Companies'' (Jun. 25, 2008) (available at http://
www.aclu.org/files/images/general/asset_upload_file902_35782.pdf).
    \31\ 50 U.S.C.  1881-1881g. Allegations of abuse go well beyond 
the electronic surveillance issues referenced here. Many American 
Muslim community leaders and members have pointed to the selective and 
disproportionate enforcement of counterterrorism laws against American 
Muslim individuals and charities as evidence of discriminatory, 
religion-based targeting of Muslims and their charitable organizations. 
See Blocking Faith, Freezing Charity: Chilling Muslim Charitable Giving 
in the War on Terrorism Financing, ACLU (Jun. 2009) (available at 
www.aclu.org/human-rights/report-blocking-faith-freezing-charity). 
Congress must avoid conflating the real issue of terrorism recruiting 
with the right to dissent or the right to practice one's religious 
beliefs.
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   National security letter abuses.--The month after 9/11, 
        Congress enacted the USA PATRIOT Act which greatly expanded the 
        FBI's ability to access private records without judicial 
        oversight. The FBI actually went further and abused the vastly 
        expanded authorities it received under the new law. It used the 
        authority to acquire records having no relation to National 
        security and it used NSLs to circumvent other authorities 
        requiring judicial oversight.\32\ The USA PATRIOT Act 
        unconstitutionally amended other provisions of surveillance 
        laws so that the Government could obtain communications and 
        records of individuals who are not suspected of engaging in or 
        preparing for an act of terrorism.\33\
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    \32\ A Review of the FBI's Use of National Security Letters, DOJ 
Office of Inspector General (Mar. 2007) (available at http://
www.justice.gov/oig/special/s0703b/final.pdf).
    \33\ See 50 U.S.C.  1861, as amended by Section 215 of the USA 
PATRIOT Act. This statute permits Government to obtain a secret court 
order for ``any tangible thing'' upon showing ``relevance'' to a 
foreign intelligence investigation, such as a list of every person who 
visits a certain website, a list of every person who entered a certain 
search term into a search engine, or the identity of an anonymous 
poster on a website.
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    Unfortunately, we have not yet seen the outrage and curative 
legislation to the Executive branch's unilateral initiation of 
systematic surveillance of email and telephone records without 
Congressional authorization in the years following 2001. It did not 
exist in sufficient force to cure those unlawful executive actions, 
just as it did not exist in sufficient force to immediately overturn 
the Sedition Act or the Anarchist Exclusion Act or the Smith Act. 
Perhaps we are still too close the shocking events of September 11 and 
we remain blind to the harm that arises out of such restrictions on our 
freedoms. If history is any indication, however, in time these laws 
will be seen as a stain on our Nation's reputation as the leading 
protector of individual rights--and any attempt to limit speech on the 
internet, even for the purpose of protecting the homeland, will surely 
be viewed by later generations in the same harsh light as we now view 
the Alien and Sedition Acts and the hearings of the House Un-American 
Activities Committee and the actions of the FBI under COINTELPRO.

             IV. PROTECT SPEECH AND PRIVACY ON THE INTERNET

    A report by the Senate Homeland Security and Governmental Affairs 
Committee (HSGAC) entitled Violent Islamist Extremism, the Internet, 
and the Homegrown Terrorism Threat placed inordinate and inappropriate 
significance on the role of the internet in the radicalization 
process.''\34\ The internet is simply a tool for communication and the 
expression of ideas--some beneficial, some benign, some harmful. In 
that sense, the internet is like the printing press or the postal 
service or the telephone. Focusing on the tools used to transmit 
despised ideas as the key to solving our security problem only 
increases the likelihood that censorship on the internet will be part 
of a proposed solution. Indeed, shortly after the publication of the 
HSGAC report Senator Joseph Lieberman sent a letter to Google calling 
on them to take down ``terrorist content.''\35\ We are concerned that 
this subcommittee, seeking to reduce on-line recruits to terrorist 
causes, will make the same mistakes made by countless lawmakers 
throughout our history.
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    \34\ United States Senate Committee on Homeland Security and 
Governmental Affairs Majority and Minority Staff Report, ``Violent 
Islamist Extremism, The Internet, and the Homegrown Terrorist Threat,'' 
(May 8, 2008). The report noted, for instance, that ``For those who 
want to know more about violent Islamist ideology, immense caches of 
information and propaganda are available on-line,'' and ``the internet 
can play a critical role throughout the radicalization process, the 
potential end point of which is planning and executing a terrorist 
act.'' Id. at 5, 10.
    \35\ Letter from Senator Joseph Lieberman to Dr. Eric Schmidt, 
Chairman of the Board and Chief Executive Officer, Google, Inc., (May 
19, 2008) at: http://lieberman.senate.gov/newsroom/
release.cfm?id=298006.
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    Government censorship violates the First Amendment and undermines 
democracy. Moreover, any attempt to censor the internet would be futile 
and counterproductive. Electronic content is ubiquitous and easily 
transferable. Media removed from one source is often duplicated 
elsewhere, and a closed website can soon reopen in another guise and at 
another location. Lt. Col. Joseph Felter, Ph.D., Director of the 
Combating Terrorism Center at West Point, told the HSGAC that 
``[a]ttempts to shut down websites have proven as fruitless as a game 
of whack-a-mole.''\36\ Such attempts at censorship would only bring 
greater attention to the objectionable content.
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    \36\ Statement of Lt. Col. Joseph Felter, Hearing before the Senate 
Committee on Homeland Security and Governmental Affairs, ``The 
Internet: A Portal to Violent Islamist Extremism,'' (May 3, 2007), at: 
http://www.investigativeproject.org/documents/testimony/224.pdf.
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    It is vital to the freedom of all Americans that free speech on the 
internet be protected. It is possible that the unique nature of the 
cyber-revolution has posed some challenges in protecting the 
internet.\37\ But such a conclusion would not be unique to the 
internet. ``Each medium of expression . . . may present its own 
problems.''\38\ Nevertheless, our ``profound national commitment to the 
free exchange of ideas'' requires that we meet those challenges to 
preserve fundamental freedoms, on the internet just as rigorously as in 
other forms of communication.\39\
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    \37\ Universal City Studios, Inc. v. Corley, 273 F. 3d 429, 433 (2d 
Cir. 2001).
    \38\ Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 
(1975).
    \39\ Harte-Hanks Comm., Inc. v. Connaughton, 491 U.S. 657, 686 
(1989).
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    Courts acknowledge the importance of keeping the web's channels of 
communication open and free from discrimination. The United States 
Supreme Court has concluded that speech on the internet is entitled to 
the highest level of protection under the First Amendment. Any attempts 
to censor its content or silence its speakers are viewed with extreme 
disfavor.\40\
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    \40\ See, e.g., Ashcroft v. ACLU, 542 U.S. 656 (2004) (upholding a 
preliminary injunction of the Child Online Protection Act); Reno v. 
ACLU, 521 U.S. at 844 (striking down certain provisions of the 
Communications Decency Act).
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    In addition, courts recognize that the public has a First Amendment 
interest in receiving the speech and expression of others. ``[T]he 
right of the public to receive suitable access to social, political, 
aesthetic, moral and other ideas and experiences'' is one of the 
purposes served by the First Amendment.\41\ Indeed, the ``widest 
possible dissemination of information from diverse and antagonistic 
sources is essential to the welfare of the public.''\42\ The internet 
has become the principal source for the public to access this diversity 
of ideas--good ideas, bad ideas, and all those in between.\43\
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    \41\ Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969).
    \42\ Metro Broad., Inc. v. FCC, 497 U.S. 547, 566-67 (1990) 
(quoting Associated Press v. U.S., 326 U.S. 1, 20 (1945)).
    \43\ Over one billion people have used the internet, including 
nearly 70 percent of all people in North America. See http://
www.internetworldstats.com/stats.htm (visited on Oct. 4, 2006).
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    Courts also understand that ``the internet represents a brave new 
world of free speech.''\44\ Specifically, the internet provides unique 
opportunities for speech and discourse. Unlike other communication 
media, ``the internet has no `gatekeepers'--no publishers or editors 
controlling the distribution of information.''\45\ As a result, the 
internet does not suffer from many of the limitations of alternative 
markets for the free exchange of ideas. Therefore, courts have 
vigorously protected the public's right to uncensored internet access 
on First Amendment grounds.
---------------------------------------------------------------------------
    \44\ Blumenthal v. Drudge, 992 F. Supp. 44, 48 n. 7 (D.D.C. 1998) 
(quoting Sanford & Lorenger, Teaching an Old Dog New Tricks; The First 
Amendment in an Online World, 28 Conn. L. Rev. 1137 (1996)).
    \45\ Id.
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    In a similar vein, Congress has enacted legislation to protect and 
promote free speech on the internet. In the 1996 Telecommunications 
Act, Congress found that ``[t]he rapidly developing array of internet 
and other interactive computer services available to individual 
Americans represent an extraordinary advance in the availability of 
educational and informational resources to our citizens.''\46\ Congress 
further declared that it is the policy of the United States ``to 
encourage the development of technologies which maximize user control 
over what information is received by individuals, families, and schools 
who use the internet.''\47\ Congress therefore immunized internet 
providers and users from any liability for publishing ``any information 
provided by another information content provider.''\48\
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    \46\ 47 U.S.C.  230(a)(1).
    \47\ 47 U.S.C.  230(b)(3).
    \48\ 47 U.S.C.  230(c)(1).
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                             V. CONCLUSION

    The best antidote to harmful speech is more speech expressing 
countervailing messages. It is far better in this context, then, to do 
the best possible job to oppose the messages with which we disagree 
than to stifle them and drive them underground. Not only will we stand 
by the principles we hold dear, we will show that we are not afraid of 
dissent and that we will stand toe-to-toe with all comers and stand 
proud of our faith in our institutions and principles. Moreover, by 
refusing to yield to those who would censor the internet, we provide 
new clues to our law enforcement and intelligence personnel tasked with 
the difficult job of seeking out those specific individuals who would 
do us harm. Active censorship would minimize the availability and 
utility of such information.
    Similarly, we must not forego our traditional notions of privacy in 
the race to provide security. Our well-tested system, based on the 
existence of probable cause to believe wrongdoing has occurred or is 
about to occur and appropriate judicial oversight, has served our 
country well. That system provides an appropriate balance that 
preserves the personal privacy of our fellow Americans, while providing 
law enforcement and intelligence officials the tools they need. 
Disrupting that balance would put later prosecutions at risk while 
necessarily heightening Government intrusion into the private affairs 
of wholly innocent individuals.
    Fear should not drive our Government policies. As Justice Louis 
Brandeis reminds us:

``To courageous, self-reliant men, with confidence in the power of free 
and fearless reasoning applied through the processes of popular 
government, no danger flowing from speech can be deemed clear and 
present unless the incidence of the evil apprehended is so imminent 
that it may befall before there is opportunity for full discussion . . 
. Such must be the rule if authority is to be reconciled with 
freedom.''\49\
---------------------------------------------------------------------------
    \49\ Whitney v. California, 274 U.S. 357, 376, (1927), (Brandeis, 
J., concurring).
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    The statement is just as true applied to standards of personal 
privacy. Protecting our First and Fourth Amendment freedoms will both 
honor our values and keep us safe.

    Ms. Harman. Thank you, Mr. Romero.
    I just would underscore the title of this hearing in light 
of what you have just said, which is: ``Internet Terror 
Recruitment and Tradecraft: How Can We Address an Evolving Tool 
While Protecting Free Speech?''
    Now I yield 5 minutes to Mr. Morris to summarize his 
testimony.

 STATEMENT OF JOHN B. MORRIS, JR., GENERAL COUNSEL, CENTER FOR 
                    DEMOCRACY AND TECHNOLOGY

    Mr. Morris. Madam Chair, Mr. Chairman, Ranking Member 
McCaul, and Members of the committee, on behalf of the Center 
for Democracy and Technology I would like to thank you for the 
opportunity to testify, and I would like to applaud the 
committee for, as Chair Harman just pointed out, for focusing a 
hearing on the need to balance free speech versus the need to 
protect this country, both of which are very important needs.
    On the key Constitutional question let me just start by 
simply agreeing with the analysis presented by Mr. Romero.
    The First Amendment places important limitations on 
Governmental actions to restrict speech, even speech by those 
who would do harm to the United States, and these 
Constitutional principles must underlie any analysis of 
Governmental responses to terror recruiting. In the context of 
the internet, these concerns are even more challenging.
    But beyond the Constitutional issues, I would like to spend 
a few minutes looking at the broader statutory context in which 
speech on the internet arises. A key question that is implicit 
in this hearing is what, if anything, can the Government do to 
stop the recruiting of terrorists on-line? That leads to the 
question of should we require service providers who facilitate 
internet communications to act to somehow stop the terror 
recruiting?
    So in the language of the internet, the service providers 
are often called, at least legally called, intermediaries. The 
ISPs that allow you access to the internet, the on-line 
websites, and services like YouTube and Facebook are all 
intermediaries whose services enable users, including both 
speakers and listeners, to exchange ideas and communicate on-
line.
    These intermediaries are really what sets the internet 
apart from other forms of mass communications. With newspapers 
and TV, the owner of the newspaper or the owner of the TV 
station is the one who picks and chooses what gets put up and 
communicated to the masses. But on the internet, in contrast, 
anyone can publish to the entire world often for little or no 
money. This openness has transformed our society, allows all of 
us, including terrorists, to become content creators, creating 
a vast audience, reaching a vast audience without having to own 
a newspaper or a TV station. As Mr. Romero says, that really 
has transformed our society for the better.
    But this new structure has led to new questions such as 
should intermediaries, should the ISPs and the web hosting 
companies be responsible or legally liable for the content that 
their users put up?
    In 1996, Congress took a very strong action to answer this 
question and to protect on-line intermediaries from 
responsibility for the content that their users post. As part 
of the Telecommunications Act of 1996, Congress passed what is 
now known as simply Section 230 of the Communications Act. 
Section 230 says in its simple terms that on-line service 
providers cannot be held to be responsible for the content 
posted by their users.
    This intermediary protection has been extraordinarily 
successful and is directly responsible for the explosive growth 
of innovative and dynamic new services. But by protecting on-
line providers, Congress enabled the huge range of social 
networking and video sharing sites and other Web 2.0 services 
that enable individual citizens and constituents to speak on-
line.
    So as this committee considers the problem of on-line 
terror recruiting, we would urge it to keep in mind how vital 
intermediary protection has been to the growth of the internet. 
If Congress were to somehow make on-line services responsible 
to keep terror recruiting off of the internet, that could have 
a significant harmful effect on the growth of the internet.
    Let me look at one example, just to look at YouTube, the 
YouTube video sharing service. On that site, users post 24 
hours of video every single minute of every day. If Congress 
compelled YouTube to examine each one of these videos before 
allowing it to be posted on-line to be sure that it didn't have 
objectionable content, YouTube simply couldn't continue to 
operate as an open forum for user expression. The same is true 
of countless other forums and blogs where users post hundreds 
of thousands of comments every hour.
    The protection for intermediaries has been a key foundation 
for the success of the internet, and a decision to undo that 
would raise some grave concerns about the future of the 
internet.
    It doesn't mean that there is nothing that can be done. To 
speak to what Congressman McCaul asked about self-monitoring, 
YouTube is another good example. They have terms of service 
that specifically allow them to take down incitements to 
violence. I don't know if these videos were on YouTube, I don't 
know what YouTube would say about these particular videos. But 
videos that really do incite violence, YouTube will certainly 
look at. They have a 24/7 staff to review complaints about 
videos, and I think they would take prompt action.
    Thanks very much.
    [The statement of Mr. Morris follows:]

               Prepared Statement of John B. Morris, Jr.
                              May 26, 2010

 FREE SPEECH AND ONLINE INTERMEDIARIES IN AN AGE OF TERROR RECRUITMENT

    Chair Harman, Ranking Member McCaul, and Members of the 
subcommittee: On behalf of the Center for Democracy & Technology 
(CDT),\1\ I thank you for the opportunity to testify today. The issues 
raised by on-line terror recruiting are difficult ones, made 
challenging by the Constitutional and statutory implications of any 
Governmental attempts to regulate on-line speech. We applaud the 
subcommittee for holding this hearing, which directly looks at the free 
speech questions raised, and we appreciate the opportunity to address 
the implications that regulation of terror recruiting could have for 
on-line free speech, as well as for innovation and competition on the 
internet.
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    \1\ The Center for Democracy & Technology is a non-profit public 
interest organization dedicated to keeping the internet open, 
innovative, and free. Among our priorities is preserving the balance 
between security and freedom in an age of terrorism. CDT has offices in 
Washington, DC, and San Francisco.
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                       INTRODUCTION AND OVERVIEW

    Terrorism is a defining threat in our society today, and the use of 
any medium of communications--including the internet--to recruit foot 
soldiers for terror attacks on the United States is a serious concern. 
It is understandable and appropriate that this subcommittee should 
consider possible Governmental responses to this concern, and the legal 
and Constitutional implications of such responses.
    There are a number of possible Governmental responses to on-line 
terror recruitment, including (among others) seeking to directly 
prohibit speakers from posting such content and seeking to require on-
line service providers to prevent such speech from being posted in the 
first place, or otherwise holding service providers responsible for the 
speech. This testimony first looks at the First Amendment issues raised 
by any Governmental attempt to restrict on-line speech. The testimony 
then focuses on one possible response--seeking to make on-line websites 
and services responsible for policing user content for on-line terror 
recruitment activities, or otherwise be held liable for such content.
    This possible response is one part of a larger question of whether 
on-line ``intermediaries'' should be liable or responsible for content 
posted by their users. The term ``on-line intermediary'' encompasses 
conduits (such as ISPs) and platforms (such as social networks and 
video sharing sites) that allow users to access on-line content and 
communicate with one another. In 1996, Congress enacted broad and 
strong protection for intermediaries from attempts to impose liability 
on them for content posted by others, or otherwise force them to police 
the content posted on-line. This intermediary liability protection has 
been extraordinarily successful and is directly responsible for the 
explosive and innovative growth of on-line services that we have 
experienced over the past decades. By protecting on-line providers from 
intermediary liability, Congress enabled a huge range of innovative new 
websites to offer social networking, video sharing, and other ``Web 
2.0'' services that have transformed how we do business and socialize 
on-line.
    A decision by Congress to step back from such protections and to 
impose obligations on service providers to police on-line content--even 
in the effort to fight terrorism--would have serious and harmful 
implications both for free speech on-line and for innovation and 
competition in on-line services. We urge this subcommittee to exercise 
great caution as it considers what steps would be appropriate to 
respond to on-line terror recruiting.

            INTELLIGENCE AND LAW ENFORCEMENT CONSIDERATIONS

    Before addressing the range of issues raised by terror recruiting, 
we would like to raise a threshold question for the subcommittee to 
consider. A mandate requiring the removal of terror recruiting content 
on-line could be counterproductive to the fight against terrorism. On-
line content gives insight into terrorist groups' intentions and 
methods. In a range of contexts, on-line content provides law 
enforcement and intelligence agencies with a wealth of information 
about the messages of terrorists groups, as well as the sources of the 
communications. Using appropriate legal process, Government agencies 
may be able gain invaluable information about terrorist operations by 
monitoring on-line sites and services. It is thus not clear that a 
broad mandate to block or remove this type of content would be the most 
effective response to it.

               TERROR RECRUITING AND THE FIRST AMENDMENT

    As Congress considers possible responses to terror recruiting, it 
must confront an unavoidable fact: that most of the ``anti-American'' 
speech of terrorists and other enemies of the United States is 
protected speech under our First Amendment. The modern First Amendment 
shields from Government regulation even speech that calls for the 
demise of the United States, so long as the speech does not cross the 
line into an incitement to violence or a ``true threat.''
    As the Constitutional context for the subcommittee's consideration 
of terror recruiting, it should consider at least two important strands 
of First Amendment doctrine: First, the limits on restrictions on 
violent content and content that might incite violence, and second, the 
limits on the Government's ability to impose a ``prior restraint'' on 
unlawful speech.

Violence, Incitement to Violence, and True Threats
    On-line content that seeks to recruit for a terrorist cause may 
contain three different types of content that have been addressed in 
First Amendment cases: Depictions of violence, incitement to violence, 
and ``true threats'' of violence.
    While the U.S. Supreme Court has deemed certain sexual content to 
be obscene--and thus outside of the protection of the First Amendment--
the Court has never declared that violent expressive content should be 
excluded from First Amendment protection. In a 1948 case focused on 
crime story magazines, the Supreme Court concluded that depictions of 
violence in the magazines are ``as much entitled to the protection of 
free speech as the best of literature.''\2\ Consistent with that 
conclusion, courts have rejected attempts to characterize violent 
content as ``obscene'': ``Material that contains violence but not 
depictions or descriptions of sexual conduct cannot be obscene.''\3\ 
And last month, in a case involving depictions of animal cruelty, the 
Supreme Court again declined to expand the realm of Constitutionally 
permissible speech restrictions past the few categories of speech it 
has historically included.\4\ As Chief Justice Roberts wrote in that 
case:
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    \2\ Winters v. New York, 333 U.S. 507, 510 (1948).
    \3\ Video Software Dealers Ass'n v. Webster, 968 F.2d 684, 688 (8th 
Cir. 1992). See also Eclipse Enters., Inc. v. Gulotta, 134 F. 3d 63, 66 
(2d Cir. 1997) (``We decline any invitation to expand these narrow 
categories of [unprotected] speech to include depictions of 
violence.'').
    \4\ United States v. Stevens, 559 U.S.____ (2010) (available at 
http://www.supremecourt.gov/opinions/09pdf/08-769.pdf).

``The First Amendment itself reflects a judgment by the American people 
that the benefits of its restrictions on the Government outweigh the 
costs. Our Constitution forecloses any attempt to revise that judgment 
simply on the basis that some speech is not worth it. The Constitution 
is not a document `prescribing limits, and declaring that those limits 
may be passed at pleasure.' ''\5\
---------------------------------------------------------------------------
    \5\ Id. at ____ (quoting Marbury v. Madison, 1 Cranch 137, 178 
(1803)).

    In light of these decisions, terrorist communications that simply 
depict violent or terrorist acts would likely be beyond the reach of 
Government regulation.\6\
---------------------------------------------------------------------------
    \6\ The Supreme Court recently agreed to review a case concerning 
violent content and minors, see Video Software Dealers Ass'n v. 
Schwarzenegger, 556 F. 3d 950 (9th Cir. 2009), cert. granted, 559 U.S. 
____ (2010), but that appeal is unlikely to affect the Constitutional 
analysis of a broader restriction on violent content.
---------------------------------------------------------------------------
    Speech that incites violence, however, can in some context be 
regulated, but the First Amendment nevertheless protects speech that 
merely advocates for violence. In its 1969 decision in Brandenburg v. 
Ohio, the Supreme Court held that:

``[T]he constitutional guarantees of free speech and free press do not 
permit a State to forbid or regulate advocacy of the use of force or of 
law violation except where such advocacy is directed to inciting or 
producing imminent lawless action and is likely to incite or produce 
such action.''\7\
---------------------------------------------------------------------------
    \7\ Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). See also Hess v. 
Indiana, 414 U.S. 105 (1973) (speech of antiwar protestor not intended 
to incite violence).

    A few years later, the Court made clear that to be advocacy of 
violence could be prohibited only where there was evidence that 
challenged speech was ``intended to produce, and likely to produce, 
imminent disorder.''\8\
---------------------------------------------------------------------------
    \8\ Hess, 414 U.S. at 109 (1973) (finding that speech of antiwar 
protestor was not intended to incite violence).
---------------------------------------------------------------------------
    In evaluating terror recruitment, a court applying the Brandenburg 
test would consider whether the speech would likely yield ``imminent'' 
violence. A related but murkier area of the law is the First Amendment 
jurisprudence allowing the prohibition of a ``true threat.'' Generally, 
the First Amendment will not protect statements that convey a direct 
threat of violence against particular individuals, but the courts have 
struggled to provide a clear test by which to gauge a ``true threat.'' 
In its 1969 decision in Watts v. United States, the Supreme Court 
concluded that an anti-war protester who threatened the President was 
not making a ``true threat.''\9\ In 2003, although not speaking for a 
majority of the Court, Justice O'Connor explained that a ``true 
threat'' was ``where a speaker directs a threat to a person or group of 
persons with the intent of placing the victim in fear of bodily harm or 
death.''\10\ But the Supreme Court has made clear in the ``true 
threat'' context that ``mere advocacy of the use of force or violence 
does not remove speech from the protection of the First 
Amendment.''\11\
---------------------------------------------------------------------------
    \9\ Watts v. United States, 394 U.S. 705 (1969).
    \10\ Virginia v. Black, 538 U.S. 343. 360 (2003).
    \11\ NAACP v. Claiborne Hardware Co., 458 U.S. 886, 927 (1982).
---------------------------------------------------------------------------
    Only a few reported cases have addressed the use of the internet in 
the incitement of or threat of violence. In United States v. Harrell, 
the defendant was convicted of posting a terrorist threat to an 
internet chat site on the day following the September 11, 2001, 
terrorist attacks on the United States; the defendant apparently did 
not raise, and the court did not address, any First Amendment issues 
concerning the incident.\12\
---------------------------------------------------------------------------
    \12\ United States v. Harrell, 207 F. Supp. 2d 158 (S.D.N.Y. 2002).
---------------------------------------------------------------------------
    In Zieper v. Reno, the courts addressed a case in which a U.S. 
Attorney's office attempted (with some brief success in November 1999) 
to suppress the display on a website of a video film ``which depicted a 
planned military takeover of New York City's Times Square during the 
millennial New Year's Eve.''\13\ According to allegations made in a 
later action for damages and injunctive relief, Federal officials 
sought to block public access to the film; the website owner removed 
the film from the internet, but later restored it and the Federal 
officials took no further action. In the damages action, the district 
court concluded that the plaintiffs had adequately pleaded a First 
Amendment violation.\14\
---------------------------------------------------------------------------
    \13\ Zieper v. Reno, 30 Media L. Rep. 2164, 2164 (S.D.N.Y. 2002). 
See also Zieper v. Reno, 111 F. Supp. 2d 484 (D.N.J. 2000).
    \14\ Zieper v. Metzinger, 62 Fed. Appx. 383 (2nd Cir. 2003). In 
another case, a Federal court concluded that a website operator who 
listed names, addresses, and telephone numbers of law enforcement 
personnel was protected by the First Amendment, since that information, 
even if made available with the intent to harm, could not be a threat. 
See Sheehan v. Gregoire, 272 F. Supp. 2d 1135 (W.D. Wash. 2003).
---------------------------------------------------------------------------
    The most significant case concerning violence or threats of 
violence over the internet involved an anti-abortion website. In 
Planned Parenthood of Columbia/Willamette, Inc. v. American Coalition 
of Life Activists, plaintiff doctors (who provided medical services 
including abortions to women) challenged a website that contained 
``Wanted'' style posters targeting doctors (and some of the doctors 
targeted were in fact murdered). The Ninth Circuit Court of Appeals 
concluded that the ``Wanted'' posters did constitute a ``true threat'' 
and thus were not protected under the First Amendment.\15\
---------------------------------------------------------------------------
    \15\ Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coal. 
of Life Activists, 290 F. 3d 1058, 1087-88 (9th Cir. 2002).
---------------------------------------------------------------------------
    Under the prevailing First Amendment jurisprudence, any attempt to 
regulate terror recruiting on the internet would likely face strong 
First Amendment challenges, but depending on the precise language of 
the recruiting message and whether it contained a ``true threat'' or an 
incitement to imminent violence, it is possible that such speech could 
Constitutionally be subject to criminal penalties.

Prior Restraints
    Beyond the question of whether terror recruiting can 
Constitutionally be penalized is the question of whether such speech 
could be the subject of a prior restraint--that is, whether it could be 
restricted on a blanket basis, in advance, and without a full panoply 
of procedural safeguards.
    The concern over prior restraints on speech is central to our First 
Amendment jurisprudence. The First Amendment was first conceived as a 
prohibition on prior restraints, in response to the seventeenth century 
English system that licensed all printing presses and prevented 
anything from being printed without prior permission from the governing 
authorities.\16\ As the Supreme Court made clear in the leading modern 
prior restraint case, Bantam Books, Inc. v. Sullivan, ``[a]ny system of 
prior restraints of expression comes to this Court bearing a heavy 
presumption against its Constitutional validity.''\17\ The Government 
bears ``a heavy burden of showing justification for the imposition of 
such a restraint.''\18\ As evidenced by the case involving the 
``Pentagon Papers,'' even a strongly asserted claim of National 
security may not overcome the presumption against prior restraints.\19\
---------------------------------------------------------------------------
    \16\ See Near v. State of Minn. ex rel. Olson, 283 U.S. 697, 713-14 
(1931) (discussing original focus of First Amendment).
    \17\ Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963).
    \18\ Org. for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971).
    \19\ New York Times Co. v. United States, 403 U.S. 713 (1971).
---------------------------------------------------------------------------
    The courts have allowed prior restraints to stand only in the 
narrowest of contexts. For example, because obscene material has been 
declared to be unprotected under the First Amendment, the courts have 
allowed prior restraint of specific obscene items. But, even with 
content that is not protected by the First Amendment, the First 
Amendment requires that strict procedural safeguards be implemented and 
followed before a prior restraint would be upheld.\20\ In a long line 
of cases, the Supreme Court has articulated clear procedures that must 
be followed, including (a) an adversarial hearing, (b) with the burden 
on the Government, and (c) with clear opportunity for prompt judicial 
review and appeal.\21\ The Supreme Court has made clear that any prior 
restraint of speech can only ``take[] place under procedural safeguards 
designed to obviate the dangers of a censorship system.''\22\
---------------------------------------------------------------------------
    \20\ See, e.g., Freedman v. State of Md., 380 U.S. 51 (1965).
    \21\ See, e.g., Freedman, 380 U.S. at 58-59; Southeastern 
Promotions Ltd. v. Conrad, 420 U.S. 546, 560 (1975); FW/PBS, Inc. v. 
City of Dallas, 493 U.S. 215, 227 (1990).
    \22\ Southeastern Promotions, 420 U.S. at 560 (quoting Freedman, 
380 U.S. at 58).
---------------------------------------------------------------------------
    Moreover, the problems raised by prior restraints are even greater 
on the internet, where on-line content can change frequently and 
quickly, and where the primary means of identifying content (``IP 
addresses'' such as ``124.45.23.98,'' and world wide web ``URLs'' such 
as ``http://www.cdt.org'') are only pointers to potentially changing 
content. Thus, even if content on a particular day at a particular 
website is determined by a court to be a ``true threat'' or an 
incitement to violence, the content could change the next day and the 
prior determination of illegality would not apply to the new content. 
The Supreme Court has made clear that a finding that a particular 
publication or venue was found to contain or display illegal content 
was not enough to justify imposing a prior restraint on future content 
in the publication or at the venue.\23\ Consistent with the Court's 
holdings, in 2004 a district court in Pennsylvania struck down as 
unconstitutional a State prior restraint law that applied to 
websites.\24\
---------------------------------------------------------------------------
    \23\ See Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931) 
(holding where publication was a magazine); Vance v. Universal 
Amusement Co., Inc., 445 U.S. 308 (1980) (holding where venue was a 
movie theatre).
    \24\ See Ctr. for Democracy & Tech. v. Pappert, 337 F. Supp. 2d 
606, 656 (E.D. Pa. 2004).
---------------------------------------------------------------------------
    The Supreme Court sets a very high bar against prior restraints. 
The Court has noted:

``The presumption against prior restraints is heavier--and the degree 
of protection broader--than that against limits on expression imposed 
by criminal penalties. Behind the distinction is a theory deeply etched 
in our law: A free society prefers to punish the few who abuse rights 
of speech after they break the law than to throttle them and all others 
beforehand.''\25\
---------------------------------------------------------------------------
    \25\ Vance, 445 U.S. at 316 n. 13.
---------------------------------------------------------------------------
     beyond the constitution: protection for online intermediaries
    In considering possible approaches to terror recruiting, a 
threshold question is whether the Government can Constitutionally 
regulate or prohibit the speech at issue. If the speech falls into a 
category that can be restricted, then the Government can consider using 
the criminal law to penalize the speech.
    The question of whether the Government can do more--such as to try 
to prevent the speech from occurring in the first place--raises the 
prior restraint issues discussed above. In the internet context, this 
question also raises another vital issue: What responsibilities, if 
any, should be placed on the service providers and other intermediaries 
to control the targeted content?
    To assess this question, it is critical that the subcommittee 
understand the broader context of the strong intermediary liability 
protection that has marked the United States' approach to on-line 
content since the early days of the commercial internet. This 
protection has played an essential part in supporting the innovation 
and growth that we have experienced in on-line services. As important 
as the fight against terrorism unquestionably is, we urge the 
subcommittee not to go down the path of seeking to impose liability or 
responsibility for content on intermediaries.

The Need for Strong Protections for Intermediaries
    The global internet has become a vibrant and essential platform for 
economic activity, human development, and civic engagement. Every day, 
millions of journalists, educators, students, business people, 
politicians, and ordinary citizens go on-line to speak, access 
information, and participate in nearly all aspects of public and 
private life.
    Internet service providers (ISPs), websites, on-line services, and 
a range of other technology companies act as conduits and platforms for 
speech. These ``intermediaries'' play critical roles in getting 
information and ideas from one corner of the on-line world to another, 
and they provide valuable forums for speech, from the political to the 
mundane--forums that are open, up-to-the-minute, and often free of 
charge.
    The openness of these forums means, of course, that some users will 
post content or engage in activity that is unlawful or otherwise 
offensive. Liability for on-line content can arise in a number of 
situations, including for defamation, obscenity, invasion of privacy, 
or intellectual property infringement. This reality raises important 
policy questions that have an impact on the growth of the on-line 
environment: Specifically, should technological intermediaries such as 
ISPs and on-line services be held liable for or be responsible to 
police content posted by their users and other third parties?
    The answer in the United States has been to protect intermediaries 
from responsibility to police content posted by users.\26\ While users 
themselves should remain responsible for their unlawful on-line 
activities, policies protecting intermediaries from liability for 
content posted by third parties expand the space for expression and 
innovation and promote the internet as a platform for a wide range of 
beneficial activities. The history of the internet to date shows that 
providing broad protections for intermediaries against liability is 
vital to the continued robust development of the internet.
---------------------------------------------------------------------------
    \26\ In appropriate cases and pursuant to lawful process, 
intermediaries do continue to be required to respond to law enforcement 
subpoenas concerning on-line speakers who post illegal content.
---------------------------------------------------------------------------
    The internet developed and flourished because of an early U.S. 
policy framework based on competition, openness, innovation, and trust. 
This framework places power in the hands not of centralized 
gatekeepers, but rather of the users and innovators at the edges of the 
network. Importantly, this approach provides broad protections from 
liability for ISPs, web hosts, and other technological intermediaries 
for unlawful content transmitted over or hosted on their services by 
third parties (such as users).
    It is vital to understand the reasons why intermediary liability 
protection is so important for free speech on the internet. When 
intermediaries are liable or responsible for the content created by 
others, they will strive to reduce their liability risk. In doing so, 
they are likely to overcompensate, blocking even lawful content. In 
this way, intermediary liability chills expression on-line and 
transforms technological intermediaries into content gatekeepers.
    Indeed, holding intermediaries broadly liable for user content 
greatly chills their willingness or ability to host any content created 
by others. Liability creates strong incentives to screen user content 
before it is posted on-line, creating an indirect prior restraint on 
speech and inevitably leading to less user-generated content overall. 
In some instances, entire platforms for expression simply could not 
exist because the sheer volume of content would make it impossible or 
economically unviable for the company to screen all user-generated 
content. As one example, users post over 24 hours of video to YouTube 
every minute.\27\ If liability concerns or an obligation to keep 
certain videos off of the service compelled YouTube to examine each 
video before allowing it to be posted on-line, YouTube could not 
continue to operate as an open forum for user expression. The same is 
true of the countless forums and blogs where users post hundreds or 
thousands of comments every hour.
---------------------------------------------------------------------------
    \27\ Ryan Junee, ``Zoinks! 20 Hours of Video Uploaded Every 
Minute!'', Broadcasting Ourselves ;), May 20, 2009, http://youtube-
global.blogspot.com/2009/05/zoinks-20-hours-of-video-uploaded-
every_20.html. Representatives of Google have recently stated that the 
current figure is 24 hours of video posted every minute.
---------------------------------------------------------------------------
    Intermediary liability also creates another problematic incentive: 
Intermediaries will tend to over-block content and self-censor, 
especially where definitions of illegal content are vague and 
overbroad. In the face of threatened liability or policing 
responsibility, intermediaries will err on the side of caution in 
deciding what may be allowed. This incentive is especially strong (and 
can cause particular damage) when intermediaries are not able to easily 
determine if the content is unlawful on its face.\28\
---------------------------------------------------------------------------
    \28\ For example, while a private party may allege that certain 
content is defamatory or infringes copyright, such determinations are 
usually made by judges and can involve factual inquiry and careful 
balancing of competing interests and factors. ISPs and on-line service 
providers are not well-positioned to make these types of 
determinations.
---------------------------------------------------------------------------
    In 1996, to address these concerns, Congress took strong action to 
insulate on-line intermediaries from liability. As part of the 
Telecommunications Act of 1996, Congress enacted Section 230 of the 
Communications Act.\29\ Now known simply as ``Section 230,'' the 
statute advances three policy goals: (1) To promote the continued rapid 
and innovative development of the internet and other interactive media; 
(2) to remove disincentives to voluntary self-screening of content by 
service providers; and (3) to promote the development of tools (like 
filters) that maximize user control over what information the user 
receives online.
---------------------------------------------------------------------------
    \29\ 47 U.S.C.  230. In addition to Section 230, Congress has also 
protected intermediaries through Section 512 of the Digital Millennium 
Copyright Act, 17 U.S.C.  512, which protects intermediaries from 
liability so long as they afford copyright holders a means to have 
copyright violations taken down. Beyond the statutory bases for 
liability protection, there are strong arguments that the First 
Amendment would require such protection in at least some contexts.
---------------------------------------------------------------------------
    To advance its first goal, Section 230 gives intermediaries \30\ 
strong protection against liability for content created by third-party 
users.\31\ Section 230 has been used by interactive on-line services as 
a screen against a variety of claims, including negligence, fraud, 
defamation, violations of Federal civil rights laws, and violations of 
State criminal laws.\32\
---------------------------------------------------------------------------
    \30\ Section 230 calls these intermediaries ``interactive computer 
services.'' 47 U.S.C.  230(c)(1).
    \31\ The statute provides: ``No provider or user of an interactive 
computer service shall be treated as the publisher or speaker of any 
information provided by another information content provider.'' 47 
U.S.C.  230(c)(1).
    \32\ See, for example, Center for Democracy & Technology, ``CDT 
Joins Briefs Urging Courts to Properly Apply  230 of the CDA,'' Policy 
Post 14.4, March 31, 2008, http://www.cdt.org/policy/cdt-joins-briefs-
urging-courts-properly-apply-section-230-cda. See also Electronic 
Frontier Foundation, ``Section 230 Protections,'' Bloggers' Legal 
Guide, http://www.eff.org/issues/bloggers/legal/liability/230.
---------------------------------------------------------------------------
    It is precisely these protections that led to the dramatic growth 
of social networking and other interactive, user-generated content 
sites that have become vibrant platforms for expression in the United 
States and all over the world. It is no surprise that almost all ``Web 
2.0'' innovation on-line has taken place in the United States, which 
has the strongest protections for intermediaries. Without Section 230, 
entry barriers for new internet services and applications that allow 
user-generated content would be much higher, dampening the innovation 
we have seen in interactive media. The threat of liability would also 
tend to close the market to start-ups, which are often unable to afford 
expensive compliance staffs (thereby entrenching existing market 
players).
    Protection for intermediaries has been a key foundation for the 
success of the internet. A decision to undo that foundation, and to 
seek to impose responsibility on online intermediaries for problematic 
content--including terror recruiting--would threaten the continued 
growth and innovation that has been the hallmark of the internet.

Terms of Service
    The first operative part of Section 230-- 230(c)(1)--provides 
strong and important protection to intermediaries, but the second part 
provides a different type of protection: protection from liability for 
a provider's voluntary decision to remove content. Under  
230(c)(2)(a), intermediaries can block or take down content they 
believe is inappropriate, without fear of liability to the poster of 
the content.
    This protection has encouraged all of the leading Web 2.0 sites and 
services to promulgate robust ``terms of service'' that specify types 
of content that are not permitted on the sites. Thus, for example, most 
leading social networks and video sharing sites have rules against 
sexually explicit material, and they routinely remove even legal 
content if it violates their terms of service. These self-regulatory 
efforts illustrate how a policy of protecting intermediaries from 
liability is compatible with--and can even help serve--other societal 
interests.
    These terms of service will often prohibit terror recruiting 
content of the types discussed above. As one illustration, the terms of 
service from one leading video sharing site--YouTube.com--contain a 
number of prohibitions that could bar a video promoting terrorism:
   Graphic or gratuitous violence is not allowed. If your video 
        shows someone being physically hurt, attacked, or humiliated, 
        don't post it.
   YouTube is not a shock site. Don't post gross-out videos of 
        accidents, dead bodies, or similar things intended to shock or 
        disgust . . .
   We encourage free speech and defend everyone's right to 
        express unpopular points of view. But we don't permit hate 
        speech (speech which attacks or demeans a group based on race 
        or ethnic origin, religion, disability, gender, age, veteran 
        status, and sexual orientation/gender identity).
   Things like predatory behavior, stalking, threats, 
        harassment, intimidation, invading privacy, revealing other 
        people's personal information, and inciting others to commit 
        violent acts or to violate the Terms of Use are taken very 
        seriously. Anyone caught doing these things may be permanently 
        banned from YouTube.\33\
---------------------------------------------------------------------------
    \33\ Excerpts from YouTube Community Guidelines, available at 
http://www.youtube.com/t/community_guidelines (last viewed May 24, 
2010).
---------------------------------------------------------------------------
    YouTube has in the past taken down terrorist videos that violate 
its terms of service, and there is nothing to suggest that it and other 
leading on-line services will not do so in the future.\34\
---------------------------------------------------------------------------
    \34\ Thomas Claburn, ``Senator Lieberman Wants Terrorist Videos 
Removed From YouTube,'' InformationWeek, May 20, 2008, available at 
http://www.informationweek.com/news/internet/google/
showArticle.jhtml?articleID=207801148 (last viewed May 24, 2010).
---------------------------------------------------------------------------
    Although relying on voluntary enforcement of terms of service will 
not lead to the complete removal of terror recruiting content from the 
internet, it will make such content less available, and will do so in a 
manner that is consistent with both the First Amendment and the 
statutory regime of intermediary protection.

                               CONCLUSION

    CDT would like to thank the subcommittee for holding this important 
hearing to consider both the problem of terror recruiting as well as 
the free speech implications of efforts to address the problem. We 
appreciate the opportunity to testify today and we look forward to 
working with the subcommittee on these issues.

    Ms. Harman. Thank you very much.
    Mr. Mudd.

    STATEMENT OF JOHN PHILIP MUDD, SENIOR RESEARCH FELLOW, 
  COUNTERTERRORISM STRATEGY INITIATIVE, NEW AMERICA FOUNDATION

    Mr. Mudd. Madam Chair, Mr. Chairman, Ranking Member and 
others, I have to say at the outset I don't have any formal 
remarks. I would like to make a few comments. It is a real 
honor to be here. It is my first time to be here as a private 
citizen outside of 24 years in Government. There aren't a lot 
of rewards from the Government but to get a letter from the 
committee saying please come talk to us, you guys made my day. 
So thank you.
    Ms. Harman. Not everyone would feel that way.
    Mr. Mudd. I guess it ain't over yet. Right?
    A couple of thoughts I guess from the outset.
    First, we are not going to stop internet recruitment and 
radicalization. It ain't going to happen in the world of 
internet and the information age. So we can work on it, we can 
chip away at it, but it is not going to stop.
    Second, we mistake this group in this country often as a 
terrorist group. I'm talking about al-Qaeda. It is not. It is a 
revolutionary organization. Revolutionary organizations can't 
win without an ideology that wins. In the 21st Century, that 
ideology is spread by the internet. So this is an important 
meeting because this is not a group whose end is to kill 
civilians by taking out airplanes and buildings. Its end is to 
recruit people who think and act as the organization wants them 
to think and act, even if these people never met an al-Qaeda 
member. So ideology is important. I wouldn't call them a 
terrorist group. I would call them a revolutionary 
organization.
    Third, and the reason I think they are going to lose, they 
are not jihadists, they are not terrorists, and we are not 
talking about hate speech. They are murdering criminals. They 
hate to be called that. They should be called that. Khalid 
Sheikh Mohammed is not a terrorist. He murdered 3,000 people. 
So when I think about this issue, what I think about is showing 
the murder of an innocent, Nick Berg, on the internet. I don't 
think about a terrorist act. I don't care if jihadists and 
Yemen want to talk about jihad, that is fine. If you want to 
talk about murdering innocents, that is what I worry about. It 
is not about jihad, and it is not about terrorism. They are not 
terrorists. They are revolutionaries. Their revolution is about 
killing innocents.
    So let me transition to a few thoughts.
    As we deal with this, I think we have to watch the 
transition into terrorism, and in the paper Brian Jenkins wrote 
is really instructive. Now I remember sitting around the table 
with George Tenet in 2002 and watching the paramilitary 
campaign unfold at the nightly 5 o'clock meetings. I use the 
word ``paramilitary'' advisedly. It is a campaign on the ground 
in Afghanistan. Then we transition into one of the worst 
periods as I remember as a professional, 2003, watching the 
series of attacks in places like Saudi Arabia and Southeast 
Asia and saying, boy, we are in deep trouble. Attacks by people 
who are al-Qaeda affiliates or al-Qaeda members in places like, 
again, the heartland, Saudi Arabia and Indonesia. Fast forward 
to the last year 2009, 2010. The revolutionary movement has led 
to people in Dallas, Chicago, New York, Atlanta, Miami, and 
California. Most of the people involved in this activity are 
native-born Americans, are people who are American citizens 
born of foreign immigrants. They are not people--Zazi would be 
an exception, the Denver kid. They are people who took the 
message, may have some affiliation or connection with al-Qaeda, 
often they don't, but the revolution is spreading, and one of 
the ways it spreads is the internet. There is no question about 
that.
    Let me close with a few thoughts on the practicalities of 
this and things I would think about if I were you. Three or 
four questions come up when you sit around the table and watch 
this stuff for 9 years.
    First, what do you do with the service provider? Can you 
force him to say, you can't put that Nick Berg video up? I say 
Nick Berg because that is about as far as you can get down the 
road of a brutal showing of the murder of an innocent. I'm not 
talking about whether we're looking at websites where someone 
again talks about jihad, I'm talking about showing and 
glorifying the murder of a human being who has a soul.
    So what do you do with service providers? Can you force 
them to take it out?
    The second is what about people who upload that stuff? What 
do you do with them practically, not only in terms of 
legislation, but can we follow them and should we? I want to 
get back to that in just a second. I promise not to take too 
much time.
    The third, obviously, is what to do with the websites. Can 
we just shut them off? I know there is a question about balance 
between operations and whether we learn from those websites and 
ideology. I can tell where I side, and hope you figure out 
where I am going. This is an ideological group and you might 
have short-term gains operationally, but in general I would say 
make sure they can't spread the ideology, because that is 
spreading the revolution.
    One final thought, and then I will close. When you are 
talking about looking at people, one of the things you want to 
think about, I believe, is what I would call sort of the 
algorithm of intelligence. We are not just talking about a 
person in Texas or New Jersey who is looking at someone like 
al-Awlaki. The question I would have as a career analyst and 
someone who managed intelligence operations would be if you 
have someone who travels repeatedly to Pakistan, it is doing 
modeling, who travels repeatedly to Pakistan, who is under the 
age of 35, who traveled alone, who paid for his ticket with 
cash, and who is looking at al-Awlaki's website, I am asking 
how do you deal with the situation where you put that in the 
mix and you have seen that kind of activity not only in the 
United States but in Western Europe, do you think that is okay 
to look at someone? Because note in everything I said there is 
no predicate that says that individual did anything wrong. 
There is just modeling, as I learned in the past, that shows me 
there ain't no learn in the second kick of the mule. I have 
seen this happen before. People who look like that.
    Okay, cautionary note as I close. If we are going to go 
down this road, and I'm not suggesting we do, I just want to be 
sort of, I have done this a long time, sort of offer you some 
suggestions. You are going to hit a lot of dry holes. So 
someone who says you should have, you could have found Hasan, I 
am going to say, okay, make sure you understand that 200 people 
who fit that same model are going to be pretty ticked off. So 
think about that. Think about when that story breaks, that we 
found Hasan, but 200 people who we also looked at because they 
had the same sort of modeling characteristics popped up.
    The second thing I would say is think about the resources 
to do this. I'm sure Brian and Bruce can talk about this better 
than I can. You are not talking about a couple of people 
engaged in looking at these websites. Tens of thousands. So I 
don't represent the Bureau any more, but I want a free lunch 
from Director Mueller. If you want to do this, you are talking 
about asking analysts and agents to look at a funnel of tens of 
thousands of people, not only here, but partnering in visa 
waiver countries and then necking down that number and not only 
doing the analysis to do that but cutting hundreds of leads to 
the field to say divert yourself from white collar crime or 
public corruption or other terrorism investigations and go look 
at someone because we kind of sort of think he fits the model 
for activity.
    So thanks for having me. It really is a pleasure to be 
here.
    [The statement of Mr. Mudd follows:]

                 Prepared Statement of John Philip Mudd
                              May 26, 2010

    We often consider al-Qaeda and its affiliates and followers as 
terrorists: Individuals who conduct attacks that down aircraft, destroy 
buildings, and murder innocents. Terrorism is a tactic, however, not an 
end. Al-Qaeda's end is ideological, an effort to spark a global 
revolution among like-mindeds who see as their first goal the ouster of 
the United States and its allies from Muslim lands and the overthrow of 
regimes viewed by al-Qaeda as corrupt. Messaging is central to this 
end, an end that entails reaching individuals who may never meet a 
formal al-Qaeda member. This is a campaign of ideas.
    The internet is a brilliant tool for spreading ideology, and al-
Qaeda uses the tool effectively. The conversation we have today will be 
far more about how to stop the spread of the ideology behind al-Qaeda--
a long-term goal--than about how curbing internet-inspired violence can 
stop attacks in the near term. We are engaged in a long campaign 
against an idea, not a short war against a group. If we assume that 
this is an ideological battle, digital strikes may be as important as 
kinetic strikes. As one U.S. general has said, this battlefield is the 
battlefield of the mind. And the internet is proving, time and again, 
as a powerful tool to poison minds of those who then enter the 
battlefield.
    There are balancing issues to deal with here. Is it worth attacking 
internet sites that can quickly morph? Can we use internet tracking to 
look for individuals who might commit acts of violence? How does the 
ideological benefit of blocking internet activity balance against 
operational interests in watching internet activity? And, of course, 
how much of what we see is legitimate free-speech activity?
    We are concluding 9 years of post-9/11 operations. Noteworthy are 
two facts that should affect our conversation:
   First, most attacks post-9/11 have been conducted by al-
        Qaeda affiliates and like-minded individuals, not al-Qaeda 
        members themselves. This is in stark contrast to the major 
        attacks in East Africa in 1998; in Yemen in 2000; and in the 
        United States in 2001. The message of venom has spread.
   Second, most individuals connected to al-Qaeda-inspired 
        activity in this country are converts or native-born Muslims. 
        We see very few plots linked to al-Qaeda recruits that fit the 
        mold we might have expected when we accelerated this campaign 9 
        years ago. The message of venom has spread.
    We can make great progress in the ideological campaign. Our 
adversary has clearly telegraphed their weaknesses: They fear that they 
are on ideological thin ice when they kill innocents, and we should 
talk about this. This is a long campaign, and we have many chapters to 
go. Historians may well write the next chapters, in years to come, with 
less focus on how many innocents died than on how many lives were saved 
as al-Qaeda's ideology crumbled under its own weight.

    Ms. Harman. Thank you, Mr. Mudd. I think we will all agree 
that we all had a full spectrum of views on this panel.
    It is now time for questions.
    Again, thanks to the witnesses for very careful testimony, 
very thoughtful, very provocative, very informative testimony, 
I think probably the best we have seen in a series of hearings 
on this very difficult topic.
    I want to put a proposition before you and just ask if you 
agree with me. I am yielding to myself for 5 minutes for 
questions, and then we will go to others.
    I keep saying that security and liberty are not a zero sum 
game. You either get more of both or less of both. I also keep 
saying that the expression of radical views, even if we dislike 
them, are protected by our First Amendment in our Constitution, 
no matter how much we dislike them, and some of them are 
odious, I think we would all agree, and I could list some but 
we don't need to go there. But violent behavior is not 
protected by our Constitution. The hard piece is finding that 
line, that transition, between the expression of radical views 
and someone with radical beliefs, which are protected, who then 
becomes someone willing to engage in violent behavior.
    So let me ask all of you just going down the road, and we 
will start with Dr. Hoffman, do you agree that there is no zero 
sum game if we are trying to live our values in this country? 
Do you agree that it is appropriate to try to find a way to 
intervene at that magic point where radical views become 
violent behavior?
    Mr. Hoffman. Absolutely, Madam Chair. This is why I am such 
an outspoken supporter of your legislation that never passed, 
because I think we need an empirical foundation before we can 
attempt to do that.
    I think, very clearly, our adversaries have communication 
strategy. As I said in my testimony, I think, lamentably, we 
don't; and that is what we need. Only based, I think, on a 
thorough understanding of the process, can we develop one. But 
I think the opposite reaction, which is to stick our head in 
the sands, in essence to say that we don't have a problem here, 
means that we are on a path to seeing, unfortunately, a 
successful event like Times Square or like the Northwest 
Airlines flight on Christmas day.
    Ms. Harman. Thank you.
    Mr. Jenkins.
    Mr. Jenkins. I certainly don't see liberty and security as 
a zero sum game. I agree with you on that.
    On the issue of radicalization versus action, that is the 
important distinction here. I think all of us have spoken about 
radicalization and recruitment to terrorism violence. That 
point is the real challenge. After 9/11, as a consequence of 
concern about terrorism, we have been pushing the authorities 
to move further upstream; that is, to intervene in a preventive 
fashion rather than to simply react in the traditional law 
enforcement mode. But, in that process, that is delicate, how 
far upstream we can push that. At what point does thought 
become action?
    Ms. Harman. You nailed it, Mr. Jenkins.
    Mr. Romero.
    Mr. Romero. Well, of course, I very much agree with you, 
Chair, about the fact that safety and freedom do not have to be 
a zero sum game. But yet when we often talk about balancing 
safety and freedom, we are often taking about a Faustian 
bargain. It is an effort to give up some of the freedoms in the 
name of National security, and that is where I think we go 
wrong.
    I think the question you posed to us about where you draw 
that line is actually quite easy to answer and rather well 
established. Go back to the Supreme Court, Brandenburg v. Ohio; 
very clear. The line between speech and ideas and conduct is 
very clear in that case. It applies. There it says, you can bar 
speech that is causing imminent lawless conduct. Imminent 
lawless conduct. If it is not imminent, it is protected. If it 
is not lawless, it is protected. If it is not conduct, it is 
protected. So mere advocacy of violence, as we saw on these 
videos, while loathsome and disgusting, are certainly protected 
by the First Amendment and certainly must remain a part of our 
body politic.
    Ms. Harman. Thank you.
    Let me just follow up with you for one second. So if 
someone goes on a bomb-making site on the internet--how to make 
a dirty bomb, how to make a nuclear bomb; pick one--should that 
person have an expectation of privacy because that person is 
exercising his free speech rights to surf the web, or should we 
perhaps decide that that person could be about to engage in 
imminent conduct and monitor him or her?
    Mr. Romero. First, let's deal with the practicality of the 
reality. I think in the aftermath of September 11 we have given 
law enforcement intelligence officials enormous tools to use 
the internet and to surveil individuals. The PATRIOT Act, for 
instance, grants enormous latitude under National Security 
Letters to be able to intercept communications on the web. The 
amendments to the Foreign Intelligence Surveillance Act have 
given enormous powers to our law enforcement officials--we 
often think too many powers--with insufficient judicial 
oversight.
    The fact that one goes on a website to see how a bomb might 
be created, that alone should not be a reason to put a person 
under surveillance. What if I am a journalist writing a book on 
the Times Square bomber? I want to understand how he put it 
together. I want to give the most thorough analysis of what was 
going on, how he did it. I want to show the diagram of the car 
in my book. I want to be able to explain to the American public 
how easy it is to build a bomb. Should then I, as a journalist 
or an author, find myself on an FBI list? That is where we have 
to continue to look at the line between speech and conduct.
    Ms. Harman. Thank you.
    Mr. Morris.
    Mr. Morris. Frankly, I am not sure I can add much beyond 
what Mr. Romero said. I certainly agree there is not a zero sum 
game for security and freedom, and I think we can achieve both. 
It is important that we work to achieve both.
    As my testimony detailed--written testimony--and I think 
probably Mr. Romero's, I assume, and the Brandenburg case, 
there is another line of Supreme Court cases about true 
threats, whether a particular piece of speech is an actual 
direct threat of harm to someone. Those can be Constitutionally 
restricted. But the Supreme Court has made very clear that 
merely advocating the use of force is not by itself 
Constitutionally prohibitable.
    Ms. Harman. Thank you.
    Mr. Mudd.
    Mr. Mudd. I think that is right. If someone wants to get on 
the web and talk about jihad, I think that is their right. If 
they want to talk about recruiting somebody to go to 
Afghanistan to fight, that is against the law and that is going 
to murder American soldiers. So, to me, I view it again as sort 
of a criminal issue, not as an ideological issue. Ideology is 
whatever you want to believe.
    Second, I would again go back to the practical and talk 
about resources. Even if someone were to tell me--and I would 
be uncomfortable participating in this--if someone were to tell 
me, you need to go look at all jihadists, it is not practical 
in resource terms.
    Last two thoughts, one technical. I think there is a big 
distinction between looking at people who are searching the web 
and looking at people who are engaged in chat rooms and talking 
in chat rooms that are publicly accessible, a big difference 
there. I am not a technical expert or legal expert, but, to my 
mind, those are fundamentally different activities.
    Finally, I sort of want to throw you a curve ball, maybe. I 
think we in this country beat ourselves up a lot on ideology. 
The adversary, I believe--and I spent 9 years watching them--
thinks we are doing better than they are, and they believe they 
are losing the war of ideology. I would argue if you look at 
Pew Research studies, they are, because they murder too many 
people.
    Ms. Harman. Thank you very much.
    The Chair now yields 5 minutes to the Ranking Member for 
questions.
    Mr. McCaul. Thank you, Madam Chair. This has been an 
excellent discussion.
    Mr. Romero, I thought you pointed out many cases where the 
Federal Government has overreached in its power and abused that 
power. We want to make that sure we never do that again. I 
think that is one of the points of having this hearing.
    Mr. Mudd, you talked a lot about the spreading of ideology. 
I agree with you it is a revolution in their mindset. Some of 
these websites and some of what is available on the internet is 
really horrific stuff. You point out some of these executions, 
beheadings, whether it is in the jihad Islamic world or whether 
it is the drug cartels. It is all readily available. It is 
pretty bad stuff.
    I think, Mr. Romero, you answered my first question; and 
that is, at what point is internet speech not protected? I 
think the cases have been fairly clear it is imminent lawless 
conduct. Of course, that is a judgment call in many cases on 
the part of law enforcement as to what is imminent lawless 
conduct.
    I also think there is a difference, obviously, between 
censoring speech and monitoring speech on the internet. I 
wanted to expand on that.
    For instance, listed on Islamic websites is a ``must own,'' 
and it is available on Amazon.com, the Preparatory Manual of 
Explosives, third edition. It is about 570 pages, 166 
explosives, readily available, on how to build a bomb. It is a 
little concerning when you see the Islamic website saying this 
is a ``must own,'' go to this website, when we have had 15 
terror plots in the last year alone. In many of these cases, 
they are looking at doing just this, building explosive 
devices.
    So I guess what I want to throw out to the panel with the 
limited time I have, I think we have covered the censor issue 
fairly well in terms of the standard. But in terms of 
monitoring this, like in the case of Hasan, which I wish they 
had shared that information with Fort Hood. They may have been 
able to stop that. But that is an information-sharing issue. 
What can we do to monitor the activities on these websites?
    Mr. Mudd.
    Mr. Mudd. I was afraid that was coming.
    I would go back to a point I made earlier and maybe make 
the conversation a little more complicated. I think just 
looking at people who buy books, practically speaking, it is 
not doable. But I would go back to say, okay, what if you have 
somebody who--or a series of criteria that says we have 
somebody who, again, has cash tickets to Pakistan, is under the 
age of 30. He has had multiple trips over 30 days. I say over 
30 days because I want to look for people who probably have had 
some training. Go through whatever criteria you want. Then, 
wait a minute, now he is up on the web buying a book.
    I don't want to argue one way or another. I just want to 
tell you that is the practical question I probably would have 
if I were back in Government, not whether somebody buys a book 
but whether you think it is okay, representing the will of the 
people, to look at people who have a series of behaviors that 
almost anybody I think would say, freedom of speech aside, I 
would say that is kind of worrisome.
    Mr. McCaul. Anybody else care to take that on?
    Mr. Romero. Sure. I think that the line drawing is very 
much a difficult question, no doubt. I think it is made even 
more difficult because we have granted our law enforcement 
intelligence officials such sweeping powers that they are 
literally adding more hay onto the haystack, making it he 
harder to find the couple of needles.
    We need not look any further than some of the internal 
reports from the FBI itself, the Office of Inspector General, 
about the misuse and overbroad use of National security 
letters. We see that already. Frankly, that, I think, should 
have us think again about whether or not we have given too many 
surveillance powers that make the haystack all the larger, make 
finding the real individuals who have shown some conduct to be 
suspicious to be the actual targets of our investigations.
    I think, to your point, I am very much heartened by your 
point that we can leave censorship aside. It is both the right 
thing and it is also a practical thing. Censorship never works. 
You try to shut down any website, it will pop up anywhere else 
across the globe. The internet is a global phenomenon, and the 
best thing we can do is assure its robustness in our country 
and make sure that we use it to the best of our abilities.
    Mr. McCaul. Following up on that, is there any point where 
content is so inappropriate that it shouldn't be allowed on the 
internet or is it just--are we looking more at the conduct of 
individuals?
    Mr. Romero. Well, the Supreme Court has also ruled on these 
issues. There is established law dealing with issues of 
pornography, dealing with issues of obscenity, that we don't 
need new rules or regulations on it.
    What we perhaps do need perhaps is a fuller discussion, as 
my colleague Mr. Morris said, about how we work with these new 
forms of communications and make sure that they have proper 
guidelines for their users, make sure that they themselves 
understand the importance of their civic responsibility.
    But the internet is our common forum. It is the new common 
grounds. It is the Boston Square. We want to keep that open and 
free. It is too essential to who we are now as Americans and as 
individuals in the 21st Century.
    Mr. McCaul. I see my time has expired. Thank you.
    Ms. Harman. I now yield 5 minutes to the Chairman of the 
full committee, Mr. Thompson of Mississippi.
    Mr. Thompson. Thank you very much, Madam Chair. This is an 
absolute wonderful discussion.
    Just to try to frame it a little broader, the House Un-
American Activities Committee's hearing was held in this very 
room. So, from a historical analysis, somebody would say, wow, 
we are back here again.
    So the public policy question I think for us is: How do we 
look at the internet in its present form and structure some 
guidelines or protocols that provide the intelligence 
community, law enforcement community, with tools necessary to 
identify situations that we deem harmful? The other public 
policy question is: Is it solely the burden of Government to do 
that, is it those sites themselves to help police it, or is 
there a public responsibility in some of this? If a member of 
the public got on a site and said, I think something is wrong 
with this site, it looks like it is going somewhere, should we 
encourage them to report it to someone, or just what do we do?
    I am kind of giving you three things to do, and I will back 
up. Dr. Hoffman, we can go down the line for comments.
    Mr. Hoffman. Well, I may be horribly reductionist, but I 
think a lot of the reason we have this debate is--because I 
agree completely we shouldn't be censoring the internet. I am 
not even sure we should be monitoring it, either. I agree 
completely. But I think the problem is that we default toward 
these very intrusive approaches.
    Because, for instance, unlike the United Kingdom, we don't 
have programs that seek to work with the community. We don't 
have a dedicated office anywhere in Government such as the Home 
Office in the United Kingdom has that works with local 
communities that attempts to identify processes of 
radicalization and recruitments and then interdict them on the 
ground--precisely as you say, sir--to enlist public support. We 
don't have a strategy like contest or an arm of it like the 
British do.
    That is why I think it is so important to get our hands 
around what we do about the problem itself by enlisting the 
community and enlisting the public. Already, of course, it is 
not just the public. There are many private entities and NGOs 
that monitor the internet--SITE Intelligence Group, NEFA 
Foundation, the Investigative Project, and so on. So this is 
being done.
    But the question is: How we can enlist the public and 
members of the community more to inoculate ourselves against 
this phenomenon without having any kind of approach or any 
strategy, without identifying anyone in the Federal Government 
to facilitate this process? I am not saying it is necessarily a 
Federal responsibility, either. I think a lot can be done by 
local and States' jurisdictions. But, in the absence of all 
that, we fall back on how we control the source of information. 
That I don't think is the issue.
    Mr. Thompson. Mr. Jenkins.
    Mr. Jenkins. Let me take a very pragmatic view here. 
Although this material on the internet is, as you pointed out, 
it is odious, it is offensive, it is troubling, it does assist 
in recruitment. On the other hand, the fact is it is producing 
very few active terrorists. The number of English language 
websites vastly exceeds the number of terrorists it has 
produced. So, as a marketing effort, it would be judged a 
failure.
    Second, it is a source of intelligence.
    Third, any type of shutdown would require an enforcement 
effort, a policing effort, that would end up in an on-line cat-
and-mouse game that would simply divert valuable resources from 
investigative and intelligence functions. So we ought not 
create additional demands on our already-stretched resources, 
and so I would rather see us look at how we can devote those 
resources in a proper way to take advantage of the internet.
    Let me give you just an interesting anecdote here. At 
jungle warfare school, there is an old sergeant that gives the 
same speech to every incoming class. He says, the jungle is not 
your enemy, not your friend. The jungle is neutral. Learn how 
to operate in the jungle. You can keep from getting hurt, and 
you occasionally turn it to your advantage.
    The reality is that the new electronic jungle is what we 
are dealing with here. We are not going to make it go away. We 
are not going to be able to knock down the trees. We are going 
to have to figure out how to operate in it to keep from getting 
hurt and occasionally turn it to our advantage.
    Mr. Romero. Chairman Thompson, first, I want to thank you 
for the history lesson about the history of this room. There 
were a number of ACLU board members and staff who were at this 
table those years ago. So it is delightful to be here in such a 
hospitable and much better climate than my organization was 
perhaps 40 years ago.
    I think you raise exactly the right question, sir; and I 
think where we can look to some guidance is the newly completed 
and not fully released yet Senate Intelligence Committee report 
that tried to investigate about what went wrong with some of 
these investigations.
    As far as we can tell from the redactions, they point out 
that they already did have individualized information on many 
of the individuals that were cited in your opening statement. 
There was a failure to share that information among relevant 
Federal agencies. There was a failure to communicate. There 
were mistakes made, misspellings of names that did not cross 
each other in databases.
    That for me, sir, goes back to the question that perhaps 
the challenge is not that we lack certain surveillance powers 
that we need to fight the war on terror more effectively. 
Perhaps it means that we have too great surveillance powers 
which collect too much data, making the work of good law 
enforcement and FBI officials all the more difficult to cull 
through that volume. I think if we can narrow down the 
haystack, just to stick with my one metaphor, allow our 
officials to really comb through a much smaller haystack, they 
will be much more apt and able to really identify the 
individuals who might do us harm.
    I think it is a place to have some discussions. I hear 
complaints from within the FBI itself that talk about the great 
volume. You remember Coleen Rowley, the FBI Director out of 
Minnesota, talking about the difficulty of all of these 
investigations that were initiated and that made the work of 
local law enforcement FBI officials all the more difficult. So 
perhaps we need to be talk about reining it in to make our law 
enforcement efforts more effective, not giving them more.
    Mr. Morris. To address one of the questions you raised, 
Chairman Thompson, is all of the leading service providers that 
are really popular service providers in the United States, like 
YouTube or Facebook or really the whole gamut of Flickr for 
images and the like, they all have very prominently on the 
pages--on the video page--on every video page on YouTube is a 
``report abuse'' button. Anyone who sees a video that is 
disturbed by the video or offended by it, they can click that 
button; and that immediately gets into a process where within a 
couple of hours a human will actually review the reported 
video.
    So I do think that the leading sites are in fact allowing 
citizens to take action and to report things. None of these 
sites want to have content that is really--the videos of 
murders, I can't imagine any leading American site would want 
to have that on their server. So I think that is one way that 
citizens can interact.
    But I would also just note, to echo something Mr. Romero 
said a few minutes ago, that trying to take this down, trying 
to really stomp it, will simply make it harder to monitor and 
harder to keep track of.
    Fifteen years ago, there was a great concern about dial-a-
porn in this country, sexy telephone calls. Parents were able 
to tell the telephone company, block all 900 numbers. So there 
was an easy solution. But Congress imposed more burdens on the 
dial-a-porn industry; and, in response, the dial-a-porn 
industry moved overseas. It made it so that it was much harder 
for parents to block access to the overseas dial-a-porn that 
kids still today could, in fact, access.
    That is an example where, if you try to regulate speech too 
much, you will simply make it go somewhere else and it will 
still be available and in this context--in the terror 
recruiting context--it will be harder to monitor.
    Mr. Hoffman. A couple of things I would think about, again, 
if you are going down the road of what to write and what to 
talk about. Let's say we are in a situation where we do 
takedown after takedown and 70 percent happen to be accessing a 
website hosted by a certain service provider. If I were the FBI 
Director or the Deputy, I would want to call that service 
provider and I would love for that service provider to have the 
protection to say I am not going to be sued if I take that 
down. So I don't know the technicalities of that, but that 
would not be an uncommon experience in the world I live in.
    I am not referring to a phone call. I am referring to the 
fact a lot of these websites are everywhere. I don't know what 
latitude a service provider has when he gets that phone call to 
prevent himself from getting sued if he just randomly takes out 
a website.
    Second, if you are a military commander--and we haven't 
talked about this, so I want to lay it on the table--in a place 
like Iraq, and you are dealing with an entity that is fighting 
U.S. soldiers and by the magic of electrons has a website 
hosted by a U.S. ISP, I would say that military commander ought 
to have the authority to take that out--and the latitude to do 
that.
    Last, I might have gotten this wrong, but I must say I am 
not comfortable with the haystack analogy. The American people 
in some ways haven't asked for an FBI anymore, Federal Bureau 
of Investigation. They have asked for a Federal bureau that 
prevents events from happening. When we investigate or the 
Bureau investigates an event afterward, to the best 
investigators in the world, and that is not good enough.
    Almost by definition I thought the 2005 reform legislation 
now is a part of that. Because I went over as the first deputy 
in the National Security Branch, the CIA person over to the 
FBI. I thought the intent behind the legislation was, darn it, 
you guys better do intelligence better so you collect enough to 
make sure bad stuff doesn't happen. We don't want to see 
another attack where you say, you know, if we had collected 
more, we could have prevented something.
    The lessons you learn on the inside from things like Fort 
Hood and from Times Square are: Don't make a mistake. Don't 
make a mistake. Don't ever make a mistake. So some of the 
dialogue might be, what do you expect when you create a 
National security service, in essence, and what kind of dialog 
do we have with the American people, when almost unspoken their 
expectations have evolved to the point where they want a 
Federal service that prevents and not just investigates?
    Mr. Thompson. Thank you very much. You have been very 
generous with the time.
    Ms. Harman. Thank you, Mr. Chairman.
    Consistent with committee rules, we are recognizing the 
other Member who was here before the gavel; and that is Mr. 
Carney of Pennsylvania. We will follow that with Mr. Dent of 
Pennsylvania.
    Mr. Carney. I try to be punctual, ma'am.
    I have got to tell you folks, I appreciate you being here. 
This, for me, is very exciting, because this is my syllabus for 
my class in terrorism I taught at Penn State, and you are all 
here now in the flesh. This is great.
    I actually have a couple of questions. One deals with sort 
of a practical approach we haven't talked about in terms of 
what sorts of things incite recruitment.
    Let's apply that toward the argument we are having today 
about: Should we try the terrorists in civilian court or 
military court? What do you think from your opinions is more 
inciteful to them, what gives them more impetus to want to join 
up, seeing a trial in a civilian court or having a more 
secretive military tribunal proceeding go on?
    We can start down the line here. Dr. Hoffman.
    Mr. Hoffman. Well, sir, you have posed an enormously 
difficult question, because one of the problems is we don't 
understand how terrorists radicalize and recruit individuals. I 
would say there isn't any one set profile or any one set 
pattern, and that is why it is very difficult to counter. I 
couldn't tell you whether seeing a trial in a civilian court or 
a military commission has more effect in terms of 
radicalization and recruitment.
    What I can say is that certainly the trials by military 
commissions have become--and Guantanamo as well--have become a 
hot-button issue that is used on many of these sites constantly 
to inflame opinion. But, at the end of the day, is the war on 
terrorism going to end whether we try people one place or the 
other? Amongst our implacable enemies, it doesn't matter. They 
don't see civilian courts as any benefit. But I think as a 
recruitment tool, though, we do see them constantly going back 
to Guantanamo, to military commissions, and so on.
    Mr. Jenkins. I think we make a distinction between those we 
may apprehend abroad and how we treat those and under the 
specific circumstances there. Although I think we can, within 
the realm of even military commissions, guarantee a fairness.
    If we are talking about U.S. citizens, we are talking about 
people here in the United States, as I pointed out in my 
testimony, the criminal justice system is working. These have 
been successful arrests and successful convictions.
    I believe--and this is a personal view--that there is a 
utility in stripping these individuals of any political 
pretensions. As I indicated in testimony before another 
committee in the Senate when I was asked about Major Hasan, as 
to whether he was a terrorist or not, I said he is a terrorist, 
but the important thing is we have him on 13 counts of murder, 
and that will be the basis for the trial.
    So I think there is utility in removing all pretensions of 
political from this and bringing individuals before a jury of 
their peers and saying, you are not being prosecuted for your 
beliefs. Beliefs are personal business. When those beliefs--how 
one imposes those beliefs on others is a matter of community 
concern. When that imposition takes the form of criminal acts, 
it is a matter of the law.
    So I think our ultimate defense against terrorist 
recruiting is the application of the law.
    Mr. Carney. Thank you.
    Mr. Romero.
    Mr. Romero. I very much appreciate your question. I must 
say that I am delighted to be able to make this segue, because 
it is the other passion that I work on quite extensively.
    I personally have spent about 25 days at Guantanamo. I have 
been there close to a dozen times observing the military 
commissions. Let me be quite clear. They are a debacle. They 
will never work. They have never worked. If we don't believe 
that that is not going to inflame further incitement against 
Americans, we are fooling ourselves. The laws that govern the 
military commissions are a joke, even under the new revisions. 
They allow hearsay evidence. They allow forms of coerced 
evidence.
    The most recent military commission, it just happened last 
week where I had a colleague--I was away at another business 
trip and couldn't go--where we are trying to charge a 15-year-
old boy who was videotaped crying, with his hands over his 
head, charging him as an adult; the one in which we just kicked 
out three reporters from the military commissions because we 
don't want them to be covering it all that well. Astonishing.
    If we don't think that breaking those basic rules which are 
firmly established in criminal court is not helping inflame 
further anti-American interests, we are fooling ourselves. 
Unfortunately, the Obama administration has its head as much in 
the sand on this issue as its predecessor administration. It 
would do well for us to take up that issue in much greater 
length.
    Mr. Carney. Mr. Morris.
    Mr. Morris. I am not sure my organization has taken a 
formal position on that, but personally I could not agree more 
that, for someone in America, arrested in America, they should 
be tried in our criminal justice system. For us to move away 
from the values and the Constitutional protections that this 
country is built upon I think can only hurt our country and 
help the terrorists.
    Mr. Carney. Thank you.
    Mr. Mudd.
    Mr. Mudd. I am not sure I am the right person to comment on 
the legal issues. Others have.
    One clear point about ideology. This revolutionary opponent 
wants to be seen on a par with us. We are the head of the 
snake. We should never give them that courtesy. Jihad is an 
honor for them, and they want to be terrorists. So my point 
would be, where they are tried is in somebody else's inbox. You 
and I both have a role in portraying who they are as they are 
tried. This is critically important. They are chump-change, 
murdering criminals. They murdered women and men who will never 
see their children, and those children will never have a proper 
family. They are criminals. So wherever they are tried, we 
should be careful as a Government not to give the adversary 
what they want.
    The flip side, we have a great opportunity here. The 
adversary has told us what they don't want. They haven't 
signaled it. They have told us. They struggle to explain why 
they murder innocents.
    I would encourage you to look at what the second in charge, 
Iman al Zawahiri, says in his only internet interview. First 
question out of the box, it is his choice to take this 
question, spring of 2008. It is a question from Algeria. How do 
you explain the murder of innocents? They can't explain it. 
Research data, polling data across the Middle East, Muslim 
lands, will show you when there is an attack in Muslim lands 
where Muslims die, people start to say, I don't like these 
guys.
    Mr. Carney. Thank you all.
    Ms. Harman. How about one more short question?
    Mr. Carney. I guess this could all be a one-word answer 
from you all, but it is probably going to require more. Can al-
Qaeda or the terrorists or the jihadists win a strategic 
victory through the internet?
    Mr. Jenkins. No, they can't. Look, it is about building an 
army of believers. While they have spread their ideology to a 
certain degree, they are locked in their own little universe of 
discourse. What will happen in the long run, I am persuaded, is 
that the ideology will never be defeated thoroughly, but in 
fact this movement will become increasingly irrelevant. When we 
are up to the 250th message from Obama bin Laden or Adam 
Gadahn, what relevance is that going to have to a young man in 
the Middle East looking for a job or some kid in the United 
States on the internet? The message by itself is not going to 
enable them to achieve a strategic victory. It hasn't thus far.
    Mr. Mudd was correct in pointing out they are complaining 
about the failure of their messages to get through. They are 
reaching out on this. So no strategic victory for them.
    Ms. Harman. Does anyone disagree with that?
    Mr. Mudd. No.
    Mr. Hoffman. I wouldn't disagree, Madam Chair, but, at the 
same time, I think through the internet--in response to 
Representative Carney, no. But I think what our enemies have 
constantly said, they have never said they are going to defeat 
us militarily--has never said. He said they are going to wear 
us down.
    What worries me is that as long as they are still able to 
replenish their ranks, as long as they are able to attract an 
increasingly more diverse set of recruits, even in the ones and 
twos--I think Mr. Mudd and Mr. Jenkins are absolutely right. As 
a mass movement, al-Qaeda will never succeed.
    I am not even sure that is al-Qaeda's goal. It is a very 
unique type of organization. They are terrorists, and 
terrorists are small in number, and they seek to win 
disproportionate victories. I think what they see is just 
eventually wearing us down. In that sense, it will be a 
strategic victory, but this is something that sustains them. 
Until we are more effective at choking off the supply of 
recruits, this war will continue to go on.
    Mr. Mudd. Two quick comments.
    I agree with the comments from Brian Jenkins. I would 
caution if we have another major event in this country we all 
have a responsibility to keep cool and move forward. Because 
they will be looking at that as forget about how many people 
died. That will be the tragedy. The tragedy will be their 
ability to exploit our reaction. The reaction will be more 
dangerous in some ways than the action. Because they will be 
looking for the next Ghraib.
    I can tell you I talked to a lot of people who went to 
Iraq. I am talking about terrorists. That was a devastating--
far more--it was devastating to this country. Forget about it 
in terms of what we had overseas.
    So I guess my one asterisk is we are still a country 
struggling to manage how we respond to catastrophic incidents 
of terrorism. They would like nothing more than to have us 
overreact and give them some internet successes that would 
really resonate, I think.
    Mr. Romero. If I may just pick up one quick thread from Mr. 
Mudd. While I completely agreed with his earlier points about 
how we have shifted our expectations in our society after 9/11, 
I think it is an enormous mistake to lead the American people 
down a path where we have them believe that we can prevent the 
next terrorist attack. To have a Federal Bureau of Prevention 
is just not feasible or possible. It will happen. The next 
attack will certainly happen. Our political leadership, I 
think, have shrugged the responsibility by not talking 
competently and clearly with the American people to prepare 
them for the inevitability of a terrorist attack.
    Anyone living in Israel or Britain or France or in the 
Basque section of Spain, none of those residents believe that 
there won't ever be another car bombing or another terrorist 
attack. Yet we lull our Americans into thinking that we can 
fight the impossible. I think the more we can inoculate the 
American public on the inevitability of the next attack, the 
better off we will be to keep our heads cool when it does 
indeed occur.
    Mr. Carney. Thank you.
    Ms. Harman. Your 12 minutes have expired.
    I can't resist, though, saying to Mr. Romero, we are not 
shrugging our responsibility. One of the things this 
subcommittee tries to do, and the historic occupant of this 
space, as has been pointed out by our Chairman, is to change 
that legacy and make it one where we are protecting our 
Constitution, living our values, but also protecting our 
country. That is a very tricky thing to get done.
    I agree with you that there is no such thing as 100 percent 
security. I never promised that. But surely we can use the 
right tools consistent with our Constitution to make Americans 
as secure as we possibly can. That is an oath we take, to 
protect and defend the Constitution, but also to protect and 
defend the security of the United States.
    Mr. Dent for 5-ish minutes, like everyone else.
    Mr. Dent. Thank you, Madam Chair.
    Anwar al-Awlaki has been identified by our intelligence 
agency, as many of you have pointed out in your testimony, as a 
direct source of radicalization to a number of recent terrorist 
events, even going back as far as 9/11. As you know, al-Awlaki 
is located in Yemen, but he communicates with individuals in 
the United States through the internet. Do we address on-line 
radicalization efforts and threats from overseas differently 
from how we address those domestic radicalization threats?
    Go down the line starting, with Dr. Hoffman.
    Mr. Hoffman. We address them differently. Of course, we 
have the Voice of America, which is the main communications 
arms of the United States Government.
    I think one of our failings is we don't have a strategy for 
countering radicalization overseas as well. If you look at, for 
instance, Voice of America, over 90 percent of its budget is 
dedicated to newspapers, radio, and television, traditional 
means of communication. That is what I read every day and 
listen to.
    People my age, in their 50s, are not joining terrorist 
organizations; and that is why I put up those two videos. It is 
young people that they are trying to enlist; and it is young 
people who are motivated, who are animated, who are inspired by 
MTV-like presentations.
    Yet this has been one of much frustrations. I think for a 
brief period of time when Under Secretary Glassman was at the 
Department of State we did have the beginnings of a strategy 
and an effective effort to reach out to this core demographics 
of terrorists, the youth. But it has fallen by the wayside, as 
near as I can tell. That, I think, is the problem.
    Rather than talking about censoring or monitoring the 
internet, we should be doing a much better job and a much more 
effective job at using the same medium to counter these 
messages. Yet, at least from my perspective, we do extremely 
little. It is not prioritized, and it has not been resourced in 
this struggle.
    Mr. Dent. Thank you.
    Mr. Jenkins.
    Mr. Jenkins. I would echo those comments.
    I do think we have to make a distinction between what we do 
overseas and what we do domestically. Overseas, we certainly 
can and ought to engage in counterpropaganda activities. We had 
an elaborate effort to do this in past struggles. We have not 
had in the same attention, resources, strategy to do that this 
time. We simply don't have the instruments. We haven't thought 
it through. So we don't have what I refer to as a front-end 
strategy. We pound on operational capabilities, but we really 
haven't thought clearly how we try to break that cycle before 
it comes to operational capabilities.
    Domestically, we are going to be more restricted, 
appropriately, in what we can do in terms of Government 
information programs. Moreover, I believe that counter-
radicalization is best done at the local level. I think it is 
entirely appropriate at the Federal level to examine the 
ramifications of radicalization and recruitment to terrorist 
violence, to understand how that takes place to improve our 
comprehension of that process.
    I would be wary of the Federal Government program to deal 
with a Muslim American community as I would be wary of a 
Federal Government program to deal with any other community. 
This is best done at the local level. It is done by the 
community itself. It is facilitated----
    Mr. Dent. Like at the mosque level? When you said ``at the 
local level'', who?
    Mr. Jenkins. Not even at the mosque level.
    What is interesting, what we do know about the recruiting 
process, it is not a result of profound religious discernment. 
This is not a religious conversion that is taking place. You 
have got a lot of young people, as Dr. Hoffman correctly points 
out, who are solving all sorts of personal issues and see all 
sorts of personal opportunities in this to cross that line. So 
it is not religious. It is done by the community. It is done by 
the families. This is going to be largely invisible. You have 
families intervening to keep sons and daughters from going down 
dangerous paths. You have interventions by very close 
acquaintances. That is something the authorities are not going 
to have the knowledge of.
    What you do have at the local level, however, is a reaching 
out by the authorities, in many cases through the police, to 
develop that understanding of their local communities, to make 
those communities aware of what is taking place, that there is 
recruiting going on, Somalis or others, and to provide an open 
line for communications.
    Now those local police, those local authorities, answer to 
locally elected officials; and I think that is a much safer 
place for that to take place.
    Mr. Romero. I think, first, on the ability to intercept 
international communications to Americans here, or vice versa, 
we have granted that power already under the amendments to the 
Foreign Intelligence Surveillance Act. In fact, we think we 
have granted too great a power, where your communications, 
should you go on vacation to Mexico and then you e-mail your 
office or your wife, can be intercepted by law enforcement 
officials without the proper judicial oversight that we would 
otherwise see. So I think from the law enforcement perspective 
and the legal powers----
    Mr. Dent. Go ahead.
    Mr. Romero. More importantly, I think to your point about 
radicalization overseas, what perhaps is most--of greatest 
fodder is the continued racial profiling domestically. Because 
we look bad. When we pull a kid off an airplane because he has 
a shirt with Arabic script on it, or we pull another one--that 
is a client of ours in a lawsuit--or we have another kid pulled 
off of an airplane because he is studying Arabic flashcards, 
that becomes fodder for just how bad we are against Muslims.
    So I encourage your committee, as you think about other 
committees and other hearings, that the extent to which very 
extensive racial profiling against Muslims and Arabs in America 
is continued only hurts the efforts you are endeavoring to do 
in homeland security in this committee.
    Mr. Morris. To look at your question from a narrow angle of 
service providers, the source of a video posted to YouTube 
ultimately is irrelevant. If it comes from overseas or if it 
comes from a domestic service, if it violates YouTube's terms 
of service, they will take it down. So on that angle there is 
probably not a distinction for American-hosted service 
providers.
    Actually, to answer something that Mr. Mudd raised, those 
service providers in fact do have statutory protection if they 
choose to take something down because it is offensive or 
violates their terms of service.
    Mr. Mudd. Just on that really narrow operational question, 
if you sit at the FBI sort of executive table and the CIA 
executive table on counterterrorism operations, the way the 
services operate looking at terrorists through the internet, 
there is no comparison, fundamentally different. Anybody who 
thinks we have to have a domestic intelligence service, it is 
not correct. It is not a good forum to talk about that. But 
just--the foreign intelligence service focuses on knowledge and 
doesn't spend a lot of time saying, what is the law in Timbuktu 
for whether I can get somebody's hard drive? A domestic service 
says, what is right to do? Then how do I provide security, 
given what is right and lawful to do? Very different ways of 
attacking problems.
    Just quickly, I am not a big believer in influence 
campaigns. They are hard to run, especially in a democratic 
society. We leak a lot. We are operating in an environment 
where, first, we don't have any legitimacy; and, second, these 
guys are destroying themselves already through blood and mayhem 
of 9 years.
    2003 in Saudi Arabia, killed too many people.
    Zarkawi had been something of a hero in Jordan. Suicide 
bombers at wedding in Jordan in 2005. Instantly, people say, 
what are we up for here? I mean, they sure don't like America, 
but they sure don't understand when people come in and kill 
their own.
    Same thing happened in Iraq. We talk about the surge, which 
was significant. But we had the internal communications, which 
are now public, of al-Qaeda talking to Zarkawi saying, don't 
kill all those civilians. We have been down this road. He 
killed too many civilians, and the Awakening Council said, 
we're done with these foreigners. We're going to kill them.
    The last thing I would say, if you want to read people who 
do this from a liberal society, Western society, you can get on 
the web at Contest Strategy--that is the formal name for it, 
Contest--from the British Home Office. Section 9 explicitly 
talks about the counter-radicalization campaign from the Home 
Office. You probably would be surprised of how open they talk 
about going against what we probably would characterize as 
domestic free speech. It is a great read, and the people who 
run that program are a serious talent.
    Mr. Dent. Can I just ask one quick question to Mr. Jenkins?
    You stated in your testimony, Mr. Jenkins, that the 
majority of the 131 U.S. homegrown terrorists identified by 
Iran are native-born or naturalized U.S. citizens or illegal 
permanent residents. Do you have any further breakdowns on 
these numbers by category?
    Mr. Jenkins. I do have a report which has a breakdown of 
those for whom we have complete information on. Only a 
handful--by the way, there are two or three that were illegal 
in the sense that they had overstayed a visa or have entered 
the country illegally.
    The breakdown between native-born and naturalized?
    Mr. Dent. Naturalized, correct.
    Mr. Jenkins. It is in a report, and I don't have it at the 
tip of my tongue.
    Mr. Dent. Native-born, naturalized, and legal permanent 
resident. If you could get that to us after the hearing.
    Mr. Dent. I am way over my time, so I yield back.
    Ms. Harman. Thank you, Mr. Dent.
    Thank you to an amazing panel.
    We have had a number of hearings on this issue, just to 
point out for the record. Our last one was on community 
outreach. We are very sensitive to the issue of racial 
profiling. We are very sensitive to the issue of anti-Muslim or 
anti-Arab rhetoric.
    I joked the last time--it is not really a joke--but that 
Jihad Jane was blond, with blue eyes, and that we should think 
about people in the future--and Mr. Dent's constituent; let's 
have it out here--from a variety of backgrounds with a variety 
of views--I know Mr. Jenkins strongly agrees with this--who 
will turn to violent extremism.
    The issue for this hearing is, what role does the internet 
play in all this? I think we had quite a full discussion of 
what role it plays and what role it doesn't play and what the 
dangers are of getting involved in censorship on the internet. 
I was listening, and I actually agree.
    On the other hand, I want us to be as creative as possible 
in trying to get ahead of this problem and trying to--perhaps 
you are right, Mr. Romero--reduce the haystack but to find a 
way consistent with our values and our Constitution to use the 
right law enforcement tools and intelligence tools to identify 
that small number of people who would really be capable of and 
intend to do us harm.
    That is the challenge. I fear that if we don't work on 
this, and we do have another major attack, the victims--in 
addition to innocent civilians who will be murdered, the other 
victim will be our Constitution. So it is extremely important 
to work carefully ahead of the next problem to reinforce both 
security and liberty.
    That is where my head is. That is what I think we should be 
doing. I think that that will overturn the legacy of this 
particular room, where the occupants around this table, or at 
least the Chairman of the committee, had a very different 
vision.
    So I thank you for appearing. Please continue to help us. 
We need you, all of you; and we are going to call on you 
regularly, as we already do.
    Finally, I think that the way we win this challenge against 
us is to win the argument; and the way we win the argument is 
to live our values.
    The subcommittee hearing stands adjourned.
    [Whereupon, at 11:52 a.m., the subcommittee was adjourned.]