28 September, 2012
US. Senate Committee on the Judiciary.
Subcommittee on the Constitution, Civil Rights and Human Rights.
This hearing took place at the Hart Senate Office Building on September 19, 2012.
Senator Dick Durbin,
Chairman of the Senate Judiciary Subcommittee -
on the Constitution, Civil Rights and Human Rights
Senator Dick Durbin Chairman of the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights initiated the hearing by giving a summary of the tragedy that occurred on the 5th of August 2012 in Oak Creek, Wisconsin, where a white supremacist shot and killed six Sikh worshipers at the Oak Creek Gurdwara. Senator Durbin pointed out the regrettable increase in anti-Muslim sentiment by listing the numerous attacks on mosques in the weeks following the shooting, and also pointing to the facts more broadly that African-Americans continue to be the targets of the vast majority of racially-motivated hate crimes; Jewish Americans continue to be the victims of most religiously-motivated hate crimes; Latinos are the victims of most ethnically-motivated hate crimes; and hundreds of LGBT Americans are the victims of violent hate crimes every year.
Senator Durbin raised questions on what the government is doing to prevent hate crimes from taking place in the first instance and whether sufficient resources are being devoted to combating the threat of violent domestic extremists and to protecting vulnerable communities. Senator Durbin urged US leaders to take responsibility and speak out against hate speech and concluded that the hearing hopefully will help to redouble the efforts to combat the threat of domestic terrorism and to take whatever steps are necessary to protect vulnerable communities.
Roy L. Austin, Jr.
Deputy Assistant Attorney General
Civil Rights Division
U.S. Department of Justice
Deputy Assistant Attorney General Roy L. Austin Jr. was the first witness to provide his testimony, in which he shared information about the US Department of Justice’s enforcement of the Hate Crimes Prevention Act (HCPA) and other hate-crimes statutes, as well as the Department’s commitment to prosecuting “backlash” crimes against persons perceived to be Arab, Muslim, Middle Eastern, or South Asian descent.
Several hate-crimes statutes have been passed in the last 3 decades - the most recent being the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (HCPA) in 2009 (18 U.S.C.§ 249). Under the HCPA, requirements have altered, removing a significant hurdle to federal prosecution (since enactment of the HCPA, the Civil Rights Division has charged 13 cases against 37 defendants). In addition, the HCPA enhances the ability to provide training for federal, state, and local law enforcement officials and to conduct outreach to communities affected by hate crimes. It has fostered cooperation between federal, state, and local authorities and the sharing of resources necessary to address various crimes.
Roy L. Austin Jr. announced that in fiscal year 2011, the Department of Justice has convicted the most defendants on hate crimes charges in more than a decade, but goes on to explain how the exact number of hate crimes that occur is not known, as only hate crimes that are reported can be tracked. The Bureau of Justice Statistics through the National Crime Victimization Survey (NCVS) estimates that there were approximately 195,000 hate crimes annually from 2003 through 2009, 54% of which were not reported to police. When the more than 6,600 hate crime incidents reported to the FBI for the year 2010 is broken down, telling statistics are found showing that “hate crime is not limited to just one group of victims or one type of motivation”. Almost half of 6,600 hate crime incidents (47.3 percent) involved a defendant or defendants who were motivated by racial prejudice.In 20 percent of the incidents, the perpetrators of the crime were motivated by religious bias. In 19.3 percent of the hate-crime incidents, the defendants were motivated by the actual or perceived sexual orientation of the victim. In 12.8 percent of the incidents, the defendant was motivated by an ethnicity or national-origin bias.
Roy L. Austin Jr. ended his testimony by stressing that the Civil Rights Division not only has dedicated criminal prosecutors who work to bring perpetrators of hate crimes to justice, but that it also has talented civil attorneys who work tirelessly to ensure that schools, workplaces, lending agencies, and voting booths are free of unlawful discrimination.
Deputy under Secretary
State & Local Program Office
Office of Intelligence & Analysis
U.S. Department of Homeland Security
Deputy under Secretary, Scott McAllister expressed concern with regards to threats from domestic terrorists because they tend to operate as lone offenders or in small cells, which complicates law enforcement’s detection. He also described the efforts of I&A, together with the entire Department of Homeland Security (DSH), and often in partnership with the DOJ and FBI, to keep the US nation safe from evolving threats. These efforts to counter violent extremism were presented in a three-fold approach. DHS works 1. To better understand the phenomenon of violent extremism through extensive analysis and research on the behaviors and indicators of violent extremism. 2. To bolsters efforts to address the dynamics of violent extremism by strengthening partnerships with state, local, and international partners, and 3. To expand support for information-driven, community-oriented policing efforts through training and grants.
The US’s frontline officers are trained on detecting suspicious activities, through the Nationwide Suspicious Activity Reporting Initiative (NSI). The nationwide “If You See Something, Say Something” campaign helps raising public awareness. The DHS is also engaged with the production and dissemination of threat information, having developed tailored product lines to meet the needs of the federal, state, local, tribal, and territorial (SLTT) partners across the homeland security enterprise. Furthermore, DHS has expanded the dissemination to include the diverse range of homeland security stakeholders (law enforcement, emergency management, public health, and private sector). A central goal of many of DHS’s efforts is to build capabilities within state and local law enforcement communities to respond to active shooter threats, regardless of the motives or origins.
Scott McAllister explained that I&A’s main mission is to equip the Homeland Security Enterprise (HSE) with the intelligence and information it needs to keep the homeland safe, secure, and resilient. According to Scott McAllister DHS, and their partners in various levels of government, have successfully increased the safety and security of the US. However, Scott McAllister underlined that the continued threat of terrorism in the United States demonstrates that DHS must remain vigilant and prepared at all times, and that countering violent extremism is a shared responsibility. DHS continues to work with a broad range of partners to gain a better understanding of the behaviors, tactics, and other indicators that could point to terrorist activity, and of the best ways to mitigate or prevent that activity.
Michael A. Clancy
Deputy Assistant Director
Federal Bureau of Investigation
Michael A. Clancy started his testimony off by providing a short summary of the National Terrorism Assessment on Domestic Terrorism, which the Federal Bureau of Investigation (FBI) disseminated on September 10, 2012. In the formulation of this assessment, the overall threat ranking considers intent, capability, and posture in its determination of the threat that domestic extremist movements pose in the United States. The FBI assesses that significant political events - foremost among them the coming Presidential election - combined with ongoing economic concerns, create the potential for greater volatility within domestic extremism in 2012 than existed in the previous year. The National Terrorism Assessment on Domestic Terrorism also shows that anarchist extremism, white supremacist extremist movements, militia extremists, the extremist “sovereign citizen” antigovernment movement and environmental extremists are believed to pose the biggest threat at the moment.
Michael A. Clancy affirmed that intelligence and technology are key tools that the FBI uses to stay ahead of those potential enemies. Yet, as investigative techniques and the use of technology to keep pace with today's complex threat environment is evolved and updated, it is necessary always to act within the confines of the rule of law and the safeguards guaranteed by the Constitution. Michael A. Clancy emphasized that the threat posed by domestic extremists is one of the highest priorities of the FBI, but at the same time the FBI strives to balance the need to keep the American public safe with the need to protect constitutional rights, including the First Amendment rights to free speech and freedom of assembly. “It is not enough to stop the terrorists; we must always do so while maintaining civil rights and civil liberties” Michael A. Clancy said.
Harpreet Singh Saini
Oak Creek, WI
Harpreet Singh Saini, son of one of the victims from the Oak Creek shooting on the 5th of August 2012, presented a touching and personal testimony, going into detail about who his mother was as well as the other victims of the shooting. Mr. Saini stated that his main objective was that the government at least give his mother “the dignity of being a statistic”. At the moment the FBI does not track hate crimes against Sikhs, like they do with the attacks on certain other groups. Mr. Saini also asked that the government pursue domestic terrorists with the same vigor as attacks from abroad. Lastly, Mr. Saini urged lawmakers and leaders, to use their power to shape public opinion on the issue.
Founder & Owner, DT Analytics, LLC
Mr. Daryl Johnson opened his testimony by emphasizing that the threat from domestic terrorism motivated by extremist ideologies often is dismissed and overlooked in the national media and within the US government. This is despite the current upsurge in domestic non-Islamic extremist activity, especially from right wing extremists.
Mr. Johnson described some of the characteristics associated with extremists, extremist ideology and tactics, and presented 4 main problems that the government and law enforcement face when trying to combat domestic non-Islamic terrorism. The first problem was with regards to the confusion surrounding the definition of ‘domestic terrorism’ and sometimes even misuse of the term by media representatives, scholars and officials. To avoid, Mr. Johnson suggested that the FBI revive the publication of an annual report summarizing domestic extremism, which was published from 1980-2005 (“Terrorism and the United States). Secondly, Mr. Johnson questioned the shortage of analysts assigned to monitor and assess domestic extremist activity at the federal level and opted for a renewed focus on strategic analysis of domestic extremist activity. Thirdly, Mr. Johnson highlighted shortcomings of state and local officers who he believes have not been trained properly. Lastly, Mr. Johnson argued that there exists an over-emphasis on suspicious activity and behavior. Psychological factors and the extremist ideologies along with some precipitating life events are aspects that also need to be considered when trying to combat domestic non-Islamic terrorism.
James B. Jacobs
Chief Justice Warren E. Burger Professor of Constitutional Law and the Courts
New York University School of Law,
New York, NY
Professor James B. Jacobs is an opponent of the need for and the desirability of hate crime laws, stating in his testimony that “there is no problem for which hate crime laws are the solution”. Hate crime laws, he believes, are counterproductive and the politics of hate crime laws divides rather than unites people. The maximum sentences for criminal offenses are long enough to serve all the needs of criminal punishment Professor Jacobs argued. He also argued that the hate crime laws conflict with their proponent opposition to over-use of criminal law and especially to over-incarceration. “Sending more people to prison for longer is hardly likely to contribute to a more tolerant society,” Professor Jacobs said.
Professor Jacobs also spoke of the difficulties associated with determining what a bias crime is, as well as determining and proving the motivation behind the bias crime. Accordingly, this frustrates the aim of the federal Hate Crime Statistics Act along with many prosecutions.
Furthermore, Professor Jacobs stated that he did not find it justifiable, desirable or useful to create a hierarchy of crimes and victims based on the racial, religious, gender, sexual orientation identity of the perpetrator and/or victim. He argued that such labeling of offenses as hate crimes or bias crimes is subjective and generates unnecessary and divisive controversy.
Further questions to the panel:
The committee, which, in addition to Senator Dick Durbin and Senator Herb Kohl included Senator Richard Blumenthal, asked questions reemphasizing the witnesses’ opinions on why hate crime towards the Sikh community are not tracked anywhere. Roy L. Austin Jr. (Department of Justice) answered by acknowledging that the Justice Department has been contacted by several Members of Congress and advocacy groups requesting that the FBI begin to collect data on hate crimes directed toward Sikh individuals. Roy L. Austin Jr. said the issue is being carefully examined and a meeting will be held in October on this issue.
Senator Durbin asked Daryl Johnson (DT Analytics) whether he believes that there had been a breakdown with regards to security in Wisconsin, since the perpetrator– despite being well known to the FBI – had been able to commit such brutal acts. In accordance with the testimony held by Michael A. Clancy (The federal Bureau of Intelligence), Daryl Johnson stated that the terrorist prevention systems have to deal with the issue of delicate boundaries between people’s constitutional rights to assemble and express their speech, and at the same time the tendency (a long history of investigation shows this) for certain extremist groups to engage in violent acts including hate crimes. Daryl Johnson expressed that there at least could have been some sort of warning sign made by officials to the Sikh community. The establishment of a more precise and direct alert system could result in somewhat desirable effects, said Daryl Johnson.
Both Senator Durbin and Senator Blumenthal disagreed with James B. Jacob’s (Professor, NYU School of Law) notion against a specific and higher penalty for hate crimes, as these crimes are already often prosecuted with the maximum penalty. James B. Jacobs expressed his concerns over whether juries might begin to see acts of crime through a more political lens and also raised questions about how to prove which intentions and motivations underlie hate-crimes. In contrast, Senator Durbin and Senator Blumenthal found it appropriate to take specific measures when acts and expressions of intolerance are carried out through hate-crimes and hope that changes will be made, so that greater prosecutions and penalties can occur.
A full webcast of the hearing can be found here.
Natasha Ann Brigham
The Society for the Psychological Study of Social Issues