July 23, 2014
by Robert McCaw
Good afternoon. My name is Robert McCaw and I am the government affairs department manager for the Council on American-Islamic Relations, the nation's largest Muslim civil rights and advocacy organization.
CAIR appreciates this opportunity to address the PCLOB and provide its views and recommendations on what civil liberties issues the board should address in its mid-term and long-term agenda.
A number of the issues I raise today take into account the troubling impacts of certain national security programs on the privacy and civil liberties rights of Arab, South Asian, Muslim, and Sikh Americans.
CAIR recommends that the PCLOB review DHS and DOJ redress policies and procedures regarding racial and religious profiling and questioning at points of entry along the U.S. border (by CBP) and at U.S. airports (by TSA), including inappropriate placement of U.S. citizens on traveler watch lists including the no-fly list and the list for secondary security screening selection (SSSS).
CAIR also asks the board to review numerous reports of the FBI placing American citizens on the no-fly list while traveling abroad, a form of extrajudicial exile, often for the purpose of coercing these citizens into submitting to interviews with FBI agents or foreign law enforcement while being denied legal counsel. At times these citizens have been put into situations of extreme duress and been asked to spy on their religious communities in exchange for being allowed to travel home.
In June, a federal district judge in Oregon ruled that no-fly list is unconstitutional, violating the "procedural due process" rights of those watchlisted by providing no meaningful way to contest their designation. Specifically, the DHS Traveler Redress Inquiry Program, DHS TRIP, is opaque and slow and requires an overhaul in its entirety.
CAIR strongly urges the PCLOB to review these interconnected federal watchlisting issues to provide recommendations to the administration, Congress, DOJ, and DHS on how to adequately develop watchlist redress procedures that satisfy federal court concerns over procedural violations of citizens' due process rights. Specifically, CAIR believes that the federal watchlist system needs to be repaired to ensure:
CAIR recommends that the PCLOB review federal guidelines on the use of race by federal law enforcement and national security agencies. DOJ and DHS guidelines that are supposed to prohibit profiling have been improperly used to wrongfully target Muslims in counterterrorism investigations and Latinos for immigration investigations.
CAIR believes that the DOJ and DHS should revise existing guidelines banning the use of racial profiling to include nationality and religion as protected characteristics as well as eliminate any loopholes that permit profiling at U.S. borders and for reasons of national security.
Such a board review should also target the Attorney General's Guidelines for Domestic FBI Operations (AGG) and the FBI's Domestic Investigations and Operations Guide (DIOG), which permit the FBI to engage in racial and ethnic profiling in certain contexts, to initiate investigations, and to use intrusive investigation techniques absent any suspicion of wrongdoing.
A board review should also be completed on how these guidelines and the DIOG impact law enforcement practices in Muslim communities -- and others -- and could help the attorney general to better understand the harmful effects of the policies.
This past month, CAIR joined with a broad-based coalition of 45 organizations, led by the ACLU, in insisting that President Obama provide a full public accounting of surveillance of American Muslim leaders.
According to new revelations by journalists Glenn Greenwald and Murtaza Hussain, CAIR's own national executive director was among those U.S. Muslim leaders reported to be targeted for FBI and NSA surveillance under FISA.
Among other leaders spied on was Faisal Gill, an American citizen, U.S. Navy veteran, and former Bush administration DHS official. Of particular concern, Mr. Gill's nationality was marked "unknown" on a leaked FISA recap document.
Addressing targeting of American Muslim leaders, CAIR stated it was "an outrageous continuation of civil rights era surveillance of minority community leadership by government elements who see threats in all patriotic dissent."
As the Obama administration continues to allow some government agencies to treat all Americans as objects of suspicion, it is time for a full public accounting regarding surveillance of American minorities.
CAIR strongly recommends that the PCLOB review allegations that the FBI and NSA are spying on U.S. Muslim leaders to ensure that government surveillance works within the bounds of law and the Constitution.
CAIR fully supports law enforcement counterterrorism investigations that are based on credible information, carried out to prevent criminal acts of violence, or to halt material support to would-be terrorists. CAIR believes that responsible enforcement of counterterrorism programs is what truly keeps Americans safe.
Since September 11, the FBI has made preventing the next act of terrorism its top priority. Out of its $8.2 billion yearly budget, $3.3 billion is spent on counterterrorism operations. During the last decade, the FBI has built a network of 15,000 registered informants, many of whom are paid to infiltrate American Muslim communities.
Of the 508 federal terrorism prosecutions during this period, nearly half have involved the use of an informant, with sting operations resulting in the prosecution of 158 defendants, out of which 49 defendants were ensnared by an informant who led the plot.
CAIR acknowledges the value of FBI sting operations in prosecuting individuals who would attempt to do our county harm. However, in recent years a number of troubling details have emerged about some informant-led plots.
According to Mother Jones magazine, all but three of the last decade's high profile terror plots were informant-driven FBI stings that targeted suspects which had no actual ties to overseas terrorist groups like al-Qaeda.
As CAIR addressed in its written testimony submitted to the U.S. House Committee on Homeland Security on missed opportunities concerning the April 2013 Boston bombings, recent details about some of these cases have CAIR and many other Muslim community leaders, civil rights groups, and media questioning whether most of these FBI stings were geared towards preventing operational terrorists or were actually cases of financially motivated informants going to great lengths over long periods of time to radicalize and enable unlikely and at times mentally ill individuals to commit acts of scripted terrorism.
CAIR recommends that the PCLOB to investigate civil right groups' and media allegations that the FBI has engaged in unlawful or questionable practices of entrapment in the American Muslim community, as well as other religious communities and politically left- and right-leaning movements.
Recent headlines were also made by the NSA's blatantly prejudiced use of the fake name "Mohammad Raghead" as a placeholder in agency documents describing how to properly format surveillance justification.
However, this came as no surprise in light of Wired's 2011 reporting that the FBI and DOD were also using anti-Arab, anti-Muslim training materials.
While most of these materials have since been purged, the effects of such trainings still linger and CAIR recommends the board complete a review DOJ and DHS national security and counterterrorism training programs and materials used to educate agents and officers on communities' cultures, beliefs, and practices, in addition to trainings on upholding civil rights and liberties of American citizens and persons residing inside the United States.
In its review, CAIR suggests that the PCLOB consider the following reform measures:
CAIR recommends that the PCLOB review the activities of state and local intelligence fusion centers that receive federal funding and operate under voluntary DOJ and DHS guidelines, to determine whether they operate within the law, including regulations governing the collection, retention and sharing of criminal intelligence information (28 CFR 23), and whether these activities have a disparate impact on minority communities, particularly Arab, Middle Eastern, Muslim, and South Asian communities. In particular, examine fusion centers' participation in federal suspicious activity reporting (SAR) programs, such as the Information Sharing Environment and the FBI's eGuardian program.
The sample of SARs released in litigation or through open government requests reveal a significant number that focus on perceived race, ethnicity, national origin and religion, or other First Amendment activity (such as photography), rather than any objective facts to suggest criminal or threatening behavior.
Produced by the Council on American-Islamic Relations (CAIR)
Updated: July 2015
What is Countering Violent Extremism (CVE)?
In part due to the field's recent expansion, there is no consensus definition of CVE, including from the administration. One working definition is "the use of non-coercive means to dissuade individuals or groups from mobilizing towards violence and to mitigate recruitment, support, facilitation or engagement in ideologically motivated terrorism by non-state actors in furtherance of political objectives."
CVE components include intervening in an individual's path toward violent extremism, interdicting in criminal activity and reintegrating those convicted of criminal activity into society.
Isn't CVE a good thing?
The government's CVE initiative raises many issues. They include concerns that government-led CVE is not an effective use of public resources, that it often relies on subjective measures and its efficacy is questionable. Observers note that CVE is generally driven by news events, that the current program exclusively targets American Muslims and find that claims that the government is targeting all forms of violent extremism are inconsistently supported. There are arguments that the current CVE initiative undermines our national ideals, such as government not having a role in the free exercise of religion.
Additionally, there is a need for the government to acknowledge and reform its pattern of constitutionally-questionable law enforcement practices targeting the Muslims. Finally, any honest discussion about countering the appeal of violent extremism must include a very public component addressing relevant U.S. foreign policy choices.
Opposition to violent extremism is consistent among American Muslim leadership. Al-Qaeda, ISIS and their ideological allies kill more Muslims than people of any other faith. At the same time, violent extremist recruiters troll the Internet seeking to conscript Americans to their mindset.
Actions demonstrating this opposition have been acknowledged by former U.S. Attorney General Holder, former FBI director Mueller and former National Counterterrorism Center Director Leiter. CAIR is a natural enemy of violent extremists. Our positive track record of success fully discredits violent extremist arguments that minorities cannot receive fair treatment in our nation.
Initial support for the government's current CVE initiative frequently cools once details emerge
In all three pilot cities, local community leaders who support efforts to secure our nation and engaged in the U.S. attorney-led meetings aimed at shaping local CVE frameworks distanced themselves from the project as they formed a deeper understanding of its problematic realities.
In Los Angeles, both the Islamic Shura Council of Southern California, an umbrella organization of Mosques and Muslim organizations serving the Muslims of Southern California, and the Muslim Students Association of the West Coast (MSA West), with 27 Muslim Student Associations of West Coast universities as signatories, voted to oppose the narrow scope of the federal government's CVE program.
In Minnesota, almost 50 Muslim organizations signed on to a statement urging law enforcement to "consider our grave concerns about the government's proposed [CVE] pilot program in Minnesota and discontinue this stigmatizing, divisive, and ineffective initiative.
A "top leader of Boston's Muslim community" opted against the local framework because it targeted only the American Muslim community and was "founded on the premise that your faith determines your propensity towards violence."
The United States Council of Muslim Organizations (USCMO), a coalition of leading national and local Muslim organizations, gathered some 50 U.S. Muslim leaders at a full day forum on CVE that included presentations by both government and civil liberties representatives. Following a discussion of the information presented, the council issued a statement that in part said, "Given the low-level of confidence in government-led CVE, the USCMO believes it is best to identify and support community-driven best practices."
CAIR believes government-led CVE is not an effective use of public resources
Former government officials have described both the Bush and Obama administration's CVE programming as "ham-handed, understaffed and underfunded" efforts that only receive attention from senior officials "in the wake of highly publicized terrorist incidents" according to a September 2014 article in Politico. That article quotes former State Department Official Will McCants saying, "[CVE] was always a box checking activity."
Taskforces in the three pilot cities for the current CVE initiative were led by U.S. attorneys. However, Quintan Wiktorowicz, the White House advisor who formerly oversaw government CVE policy, told Politico, "If you think about the roles and responsibilities of U.S. Attorneys, they can't possibly take on that function in a really robust way."
CVE often relies on subjective measures and its efficacy is questionable
If enacted, a bill introduced into Congress by House Homeland Security Committee Chairman Michael McCaul (R-Texas) in June 2015 would create an office in the Department of Homeland Security funded with $40 million over four years that would, in part work to "identify risk factors that contribute to violent extremism."
On the subject of risk factors, in 2008 Britain's MI5 intelligence agency concluded that "it is not possible to draw up a typical profile of the 'British terrorist' as most are 'demographically unremarkable.'"
In the same vein, in its 2010 report titled "Preventing Violent Extremism," Britain's House of Commons' Communities and Local Government Committee said, "Regarding the Government's analysis of the factors which lead people to become involved in violent extremism, we conclude that there has been a pre-occupation with the theological basis of radicalisation, when the evidence seems to indicate that politics, policy and socio-economics may be more important factors in the process."
More recent U.S. documents give insights into the lack of success in identifying risk factors and the subjective nature of current measures. A May 2014 National Counterterrorism Center (NCTC) document notes that the impact of CVE programs is "not easy to quantify." After making this qualification, the document's authors offer a scoring system for measuring an individual's susceptibility to violent extremism. These include measures such as "Parent-Child Bonding, Empathic Connection," "Presence of Emotional or Verbal Conflict in Family" and "Talk of Harming Self or Others." These measures likely encompass most American families at some point, rendering them near useless for the stated goal.
Other measures in the NCTC document, such as "Family Involvement in Community Cultural and Religious Activities," are problematic as the person filling out the form may subjectively perceive mosque attendance itself as a risk factor.
The questionable measures do not always target Muslims. In 2009, the Missouri Information Analysis Center (MIAC), a DHS "fusion center," issued a report labeling common conservative ideologies or affiliations as a warning sign of being a "right-wing extremist" or member of a domestic paramilitary group.
According to the MIAC report "The Modern Militia Movement," any U.S. citizen could potentially be a domestic terrorist if they are in favor of "strong state rights," hold "Anti Abortionists" or "anti-Immigration" views, are in strong opposition to "the collection of federal income taxes" or "the Federal Reserve Banks," or support third party presidential candidates like Ron Paul, Chuck Baldwin or Bob Barr. The report also states that, "It is not uncommon for militia members to display Constitutional Party, Campaign for Liberty or Libertarian material" or the "Gadsden Flag." After two months of public outcry over the report it was officially retracted by MIAC.
CVE is generally driven by news events
Research finds "Western media coverage of Islam has been almost exclusively negative," that Islam is "portrayed differently than other religions" with virtually no positive coverage, and that "mainstream Muslims" are "not represented" in coverage. CAIR asserts that such coverage results in a disproportionate sense of the threat from violent extremism in the general public.
The White House's strategic plan on CVE was released in December 2011. In the wake of that document's release, there was generally no measurable action from the administration on the subject.
Former Attorney General Holder announced the current initiative almost three years later, just after the anniversary of the 9/11 terror attacks in 2014, in the wake of ISIS murdering two of our fellow citizens in the Middle East.
At the time, he noted that pilot programs would be launched in Boston, Minneapolis and Los Angeles.
An announced national summit on domestic CVE slated for October 2014 was postponed without substantive explanation. However, a re-tasked summit incorporating international CVE efforts was announced just four days after the January 2015 Paris terror attacks.
The current program exclusively targets American Muslims
In a 2010 report titled "Preventing Violent Extremism," Britain's House of Commons' Communities and Local Government Committee stated bluntly, "The single focus on Muslims in Prevent has been unhelpful."
However, the U.S government's CVE program targets American Muslim communities. According to the information available to CAIR, U.S. Attorney's in all three pilot cities for the current CVE initiative solely targeted Muslims. This is both stigmatizing and alienating because it advances the false insinuation that American Muslims are not fully invested in honoring our religious and civic duty to our nation.
Claims that the government is targeting all forms of violent extremism are inconsistently supported at best
In advance of the July 4, 2015, celebration, the FBI, Department of Homeland Security and Department of Defense issued warnings of a potential ISIS-inspired terror attack. The resulting media coverage was predictably negative in its portrayal of Islam and Muslims.
The terror warnings were issued despite "senior American officials" acknowledging that "they know of no specific terror plot against targets in the United States."
The warning did not incorporate concerns over threats from white supremacist groups despite the late June 2015 terrorist attack targeting African-American church goers in South Carolina and several arsons targeting black churches in its aftermath.
The U.S. government should avoid practices that stigmatize American Muslims and Islam. U.S. government entities should discuss violent extremist threats in proportionate, non-existential terms.
The current CVE initiative undermines our national ideals
Given that one of the goals of violent extremists is to transform our nation into their vision of an authoritarian state, Americans must be vigilant in protecting the freedoms and diversity that define our national character.
We already hear from cities with pilot projects that government representatives have advised participants to waive their right to counsel when interacting with law enforcement. Americans have the right to have legal counsel present when they are speaking to law enforcement. Honoring this right neither interrupts the flow of information nor interferes in candid conversations. Indeed, people who feel their rights are secured will feel the confidence to be more open. That is why CAIR's recommendation of having legal counsel present when talking to law enforcement is the right balance. Neither liberty nor security is sacrificed. Instead, both are protected.
Government programs to counter violent extremism which incorporate steps for "intervention" can too easily slip into policing ideology. The government should avoid involvement in questions as to which religious ideologies are acceptable as this defies the First Amendment. As researcher Arun Kundnani observed while commenting on failures in PREVENT, a British government CVE program, "There is a perception that the government is sponsoring Muslim organizations on the basis of theological criteria – for example, holding Sufis to be intrinsically more moderate than Salafis. Such an approach runs counter to the secular separation of 'church' and state, even though such a separation is itself upheld by the government as a marker of 'moderation' which Muslims should aspire to."
This initiative will involve government-funding for community groups to conduct CVE. CAIR strongly cautions against this on First Amendment grounds. This approach places the government in the position of "white listing" ideologies of which it approves and, by extension, "black listing" others. The Establishment Clause prohibits any governmental endorsement of a particular religious ideology, let alone funding to promote it.
What does CAIR suggest?
CAIR believes that a key to diminishing the appeal of extremist inspired violence, which preys on the hopelessness and helplessness and perceived injustices of the disenfranchised, is to empower communities with means of expressing their dissent and criticism in healthy ways. With this point in mind, CAIR chapters around the country conduct ongoing civic engagement, leadership and youth development programs. These programs are designed to equip participants to articulate their views, and advocate for them through democratic processes.
Though the organization is not theological in nature, CAIR is faith-based and its message to its own community has always centered on the "middle way."
The Department of Justice should issue guidelines, similar to Good Samaritan laws, to protect those who act in good faith to prevent violent extremism by engaging with those considering it in order to dissuade them. DOJ policies should make clear that those who intervene to help others should not suffer for it by being subjected to prosecution, watch-listing or surveillance because of their association with a potential violent extremist.
The U.S. Congress should hold hearings, similar to the Church Committee, to investigate the federal government's overbroad surveillance of mosques and American Muslims despite the absence of evidence of criminal activity.
In any government driven CVE program, there must be clear standards and safeguards to prevent abuses.
The government must acknowledge and reform its pattern of constitutionally-questionable law enforcement practices targeting Muslims
CAIR's vision of government-led CVE initiatives emerges from the backdrop of a decade-long history of the federal government and law enforcement elements–absent evidence of criminal activity–targeting mosques and community organizations for intelligence gathering; using informants to infiltrate community spaces; and, pressuring law-abiding community members to become informants and gather intelligence on other members of the community. There are many documented cases of government-paid confidential informants acting as a terror conspiracy's primary driver.
Law enforcement efforts to partner with community groups are too often accompanied by parallel intelligence collection or agent provocateur actions. As CVE expert Humera Khan wrote in Foreign Affairs in February 2015, "Many police departments consider community policing as an avenue for finding informants to help detect rather than prevent criminal activity."
For instance, there is the 2010 case of Craig Monteilh. As the Muslim community worked in partnership with law enforcement, we were shocked to learn that Monteilh, who CAIR's Los Angeles office reported to the FBI as a potential national security threat, was an FBI-paid informant. In 2011 there were revelations that FBI outreach in California involved intelligence collection targeting Islamic institutions.
The New York Police Department has engaged in abusive practices targeting Muslim groups, including designating mosques as terrorist organizations when there was no evidence of wrongdoing. The federal government has initiated no investigation into these abuses.
Revelations show that a Minnesota police department applied to the Department of Justice for a grant to fund outreach programs that would have an intelligence gathering component.
Also, any honest discussion about countering the appeal of violent extremism must include a very public component addressing some U.S. foreign policy choices
As Nobel Peace prize winner Malala Yusufzai pointed out to President Obama in 2014, government actions at times help create an environment for violent extremists to exploit: "I also expressed my concerns that drone attacks are fueling terrorism. Innocent victims are killed in these acts, and they lead to resentment among the Pakistani people. If we refocus efforts on education, it will make a big impact."
CIA Director John Brennan acknowledges, "we have to recognize that sometimes our engagement and direct involvement will stimulate and spur additional threats to our national security interests."
Similarly, Micah Zenko of the Council on Foreign Relations notes that while there is much CVE discussion in Washington policy-making circles, "there is rarely any consideration of which U.S. foreign policy activities might themselves be precursors to U.S. terrorism."