[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]







                SEE SOMETHING, SAY SOMETHING ACT OF 2011

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

                                HEARING

                               BEFORE THE

                    SUBCOMMITTEE ON THE CONSTITUTION

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                                   ON

                                H.R. 963

                               __________

                             JUNE 24, 2011

                               __________

                           Serial No. 112-55

                               __________

         Printed for the use of the Committee on the Judiciary









      Available via the World Wide Web: http://judiciary.house.gov







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                       COMMITTEE ON THE JUDICIARY

                      LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina         JERROLD NADLER, New York
ELTON GALLEGLY, California           ROBERT C. ``BOBBY'' SCOTT, 
BOB GOODLATTE, Virginia                  Virginia
DANIEL E. LUNGREN, California        MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio                   ZOE LOFGREN, California
DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana                  MAXINE WATERS, California
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona                  Georgia
LOUIE GOHMERT, Texas                 PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio                     MIKE QUIGLEY, Illinois
TED POE, Texas                       JUDY CHU, California
JASON CHAFFETZ, Utah                 TED DEUTCH, Florida
TIM GRIFFIN, Arkansas                LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania             DEBBIE WASSERMAN SCHULTZ, Florida
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
[Vacant]

      Sean McLaughlin, Majority Chief of Staff and General Counsel
       Perry Apelbaum, Minority Staff Director and Chief Counsel
                                 ------                                

                    Subcommittee on the Constitution

                    TRENT FRANKS, Arizona, Chairman

                   MIKE PENCE, Indiana, Vice-Chairman

STEVE CHABOT, Ohio                   JERROLD NADLER, New York
J. RANDY FORBES, Virginia            MIKE QUIGLEY, Illinois
STEVE KING, Iowa                     JOHN CONYERS, Jr., Michigan
JIM JORDAN, Ohio                     ROBERT C. ``BOBBY'' SCOTT, 
                                     Virginia

                     Paul B. Taylor, Chief Counsel

                David Lachmann, Minority Staff Director






                            C O N T E N T S

                              ----------                              

                             JUNE 24, 2011

                                                                   Page

                                THE BILL

H.R. 963, the ``See Something, Say Something Act of 2011''.......     3

                           OPENING STATEMENTS

The Honorable Trent Franks, a Representative in Congress from the 
  State of Arizona, and Chairman, Subcommittee on the 
  Constitution...................................................     1
The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Ranking Member, Subcommittee on the 
  Constitution...................................................     7
The Honorable Lamar Smith, a Representative in Congress from the 
  State of Texas, and Chairman, Committee on the Judiciary.......     8

                               WITNESSES

Lawrence J. Haas, Senior Fellow for U.S. Foreign Policy, American 
  Foreign Policy Council
  Oral Testimony.................................................    14
  Prepared Statement.............................................    16
Chris Burbank, Chief of Police, Salt Lake City Police Department
  Oral Testimony.................................................    23
  Prepared Statement.............................................    26
M. Zuhdi Jasser, M.D., President and Founder, American Islamic 
  Forum for Democracy (AIFD)
  Oral Testimony.................................................    29
  Prepared Statement.............................................    31

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable Lamar Smith, a Representative 
  in Congress from the State of Texas, and Chairman, Committee on 
  the Judiciary..................................................     9
Prepared Statement of the Honorable Peter T. King, a 
  Representative in Congress from the State of New York..........    11

 
                   SEE SOMETHING, SAY SOMETHING ACT 
                                OF 2011

                              ----------                              


                         FRIDAY, JUNE 24, 2011

                  House of Representatives,
                  Subcommittee on the Constitution,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to call, at 10:06 a.m., in 
room 2141, Rayburn Office Building, the Honorable Trent Franks, 
(Chairman of the Subcommittee) presiding.
    Present: Representatives Franks, Smith, Chabot, King, 
Nadler, Quigley, and Scott.
    Staff present: (Majority) Holt Lackey, Counsel; Sarah 
Vance, Clerk; Grant Anderson, Legal Research Assistant; 
(Minority) David Lachmann, Staff Director; Keenan Keller, 
Counsel; and Veronica Eligan, Professional Staff Member.
    Mr. Franks Well, that buzzer means this meeting needs to 
come to order quickly.
    Good morning and welcome to this Constitution Subcommittee 
hearing on H.R. 963, the ``See Something, Say Something Act of 
2011.''
    Information is the most important tool we have for 
preventing terrorist attacks, and an alert citizenry is the 
most important source of information about potential terrorist 
attacks. The more that our law enforcement and anti-terror 
professionals know, the better they can understand our enemy's 
plans and stop attacks before they occur.
    Some of the most useful information available to these 
professionals comes from the ordinary Americans who see 
something out of the ordinary and alert the authorities. When 
citizens see suspicious activity that could be related to a 
terrorist attack, they should share that information without 
hesitation. This is why the Department of Homeland Security has 
made it a centerpiece of its anti-terror efforts to tell 
citizens if you see something, say something.
    The question presented by this hearing is whether fear of 
frivolous litigation should discourage citizens from coming 
forward with information about suspicious behavior they 
observe. The answer in my judgment is a resounding no. When an 
American reasonably suspects that an act of terrorism may be in 
the works, his or her focus should only be on preventing that 
attack--not on avoiding civil liability. We must not allow our 
civil litigation system to get in the way of our anti-terrorism 
strategy.
    Last week, the Attorney General argued that our civilian 
court system is, quote, our most effective terror-fighting 
weapon. Well, I would strongly disagree. Our most effective 
terror-fighting weapons are the eyes and ears of 300 million 
Americans who share a common goal of keeping our country safe.
    The list of terror attacks that have been prevented or 
mitigated by brave citizens stepping forward and sharing their 
suspicions is long. The Unabomber's reign of terror was ended 
when his brother came forward with his suspicions. A private 
security guard helped minimize the death from the 1996 Olympic 
Park bombing in Atlanta. Street vendors who noticed suspicious 
smoke coming from a parked van prevented last year's attempted 
bombing of Times Square. Possible attacks on Fort Dix and 
downtown Dallas have been stopped in the planning phase because 
of tips from concerned citizens.
    By contrast, I am not aware of any attack that has been 
prevented by a court order or a lawsuit. What we must never 
allow is for our court system to intimidate or interfere with 
our citizens' willingness to share information and prevent 
attacks. Unfortunately, some citizens who have come forward 
with their good faith suspicions of terrorist activity have 
been sued for coming forward and sharing their information. 
Passengers on a 2006 U.S. Airways flight who shared their 
suspicions about the behavior of some of their fellow 
passengers found themselves defendants in a lawsuit for their 
efforts.
    Under our current law, citizens who suspect terrorist 
activity must at least consider the possibility that they will 
be sued if they are wrong. Worries about lawsuits should be the 
furthest thing from a citizen's mind when a terror plot may be 
in progress. Our citizens should rely on their own reasonable 
instincts and common sense and do the right thing.
    The flow of information and the vigilance of our citizens 
are fundamental to preventing terrorist attacks. The message to 
our citizens should be clear: if you see something, say 
something. The message should not be: say something and we will 
sue someone.
    H.R. 963 will make clear that our anti-terror strategy is 
based on citizens exercising their vigilance and common sense, 
not the fear of costly litigation.
    And I look forward to our distinguished panel of witnesses.
    And I yield now to the distinguished Ranking Member, Mr. 
Nadler, for his opening statement.
    [The bill, H.R. 963, follows:]
    
    
    
                               __________

    Mr. Nadler. Thank you, Mr. Chairman.
    Mr. Chairman, today's hearing is on the See Something, Say 
Something Act which revisits existing immunities granted by 
Congress and by other statutes to persons making reports to law 
enforcement and to law enforcement officers acting on those 
reports.
    In the real world, this kind of community law enforcement 
cooperation has been one of the keys to success in fighting 
crime and terrorism. I am glad to see that there is a 
developing enthusiasm on this subject, even from my colleagues 
who have in the past opposed such efforts as the COPS program. 
This may be the beginning of a beautiful partnership.
    The See Something, Say Something initiative is familiar to 
every New Yorker. Our police force has worked hard over many 
years to develop the trust and cooperation necessary to make 
their efforts more effective. The community-oriented policing 
program that we pioneered is a model for the country. So I 
strongly support efforts to encourage citizen involvement.
    Coming from New York City and working here in Washington, I 
know a little something about being a terrorist target. You can 
walk to Ground Zero and to the Brooklyn Bridge from my office. 
I pass Times Square every day on the way to the office. My 
district has been bombed twice by international terrorists. 
Jewish communal institutions were targeted by terrorists in New 
York, and thanks to alert citizens and law enforcement, those 
plots were foiled. So New Yorkers are very familiar with the 
continuing threat of terrorism and with the necessity to form 
close partnerships between law enforcement and the community.
    So what are my concerns today? The testimony we are going 
to hear today--or some of it at any rate--will continue an 
unfortunate pattern of demonizing the world's more than 1 
billion Muslims. The rhetoric can be prettied up any number of 
ways but the result and the message remain the same, that law 
enforcement and the public need to target Muslims in order to 
keep us safe.
    Wouldn't it be nice if that were all that were necessary? 
In the real world, it is not. In the real world, treating an 
entire community as inherently suspect is not only wrong, but 
law enforcement repeatedly tells us that it actually makes us 
less safe. I have been told that in meetings with local law 
enforcement, with Federal law enforcement, and in meetings with 
El Al Security, people who know something about security. It 
blinds us to other threats, to means by which terrorists can 
evade our scrutiny, and it undermines the community cooperation 
that gives law enforcement the eyes and ears on the street they 
need to stop terrorism before it occurs.
    I recall how loudly some conservatives complained when the 
Department of Homeland Security issued a memo some years ago, 
withdrawn under political pressure, that identified certain 
right-wing elements as potential terrorist threats. After 
Oklahoma City, the shooting of doctors and the bombing of 
clinics and the widespread existence of private armed militias 
preparing to make war on the United States, it is not far-
fetched for DHS to issue such a caution.
    So we will hear a great deal of demonization of one group, 
and that testimony will be largely irrelevant to the 
legislation we are supposed to be considering today.
    What would be useful would be to find out what is the 
current state of the law and where actual legal problems might 
exist. I don't know how much of that we are going to hear, but 
that, it seems to me, is the fundamental question we need to 
examine.
    For example, I would love to hear from DHS which is 
promoting the See Something, Say Something program whether they 
believe the law needs to be changed and how, in fact, the bills 
before us change the law, if at all, both from common law tort 
law and from current statutes.
    I want to welcome our witnesses and I look forward to their 
testimony on this very timely and important topic.
    And I yield back.
    Mr. Franks. I thank the Ranking Member, and I now recognize 
the Chairman of the full Committee, Mr. Smith.
    Mr. Smith. Thank you, Mr. Chairman. Because of time 
constraints, I would ask unanimous consent to have my entire 
opening statement be made a part of the record, as well as a 
statement by Chairman Peter King of the Homeland Security 
Committee.
    Mr. Franks. Without objection.
    [The prepared statement of Mr. Smith follows:]
    
    
    


                               __________
    [The prepared statement of Mr. King follows:]

    
    
                               __________

    Mr. Smith. But I also would like to make some brief 
comments about this legislation.
    Mr. Chairman, ordinary citizens who remain alert and 
vigilant about their surroundings are America's first line of 
defense against terrorist attacks. This is why the Obama 
administration has launched the See Something, Say Something 
campaign to encourage Americans to report suspicious activity 
that may relate to terrorism.
    I have joined with Senators Lieberman and Collins to 
introduce bicameral legislation to further this important goal.
    Citizens who share information to stop a possible terrorist 
attack should be praised not sued. Too often citizens are 
reluctant to share their genuine suspicions about possible 
terrorist activity. Unfortunately, at least part of this 
reluctance may be based on fear of being sued for making such a 
report, and we saw that in the case of the passengers on the 
2006 U.S. Airways flight. They noticed suspicious behavior. 
They reported it. Six individuals were taken off the plane. 
They were later allowed to go back on the plane but shortly 
thereafter they sued the passengers for reporting such 
activity.
    H.R. 963 extends protection from costly lawsuits to any 
citizen who reports suspicious terrorism-related activity in 
good faith, whether transportation is involved or not. The bill 
also allows these Good Samaritans to recover attorney's fees.
    To protect against the next attack, we should encourage an 
open and honest sharing of information. Intelligence officials 
and investigators cannot combat the terror threat alone. They 
need the help of alert citizens who see something suspicious 
and say something to authorities. And when Good Samaritans act 
to safeguard their fellow citizens, the least we can do is 
protect them from being sued. When our courts are used to 
silence concerned citizens, they become a weapon in the 
terrorists' hands.
    Today's hearing, Mr. Chairman, will explore how H.R. 963 
furthers all these important anti-terrorism goals and makes 
America safer.
    I thank you for having the hearing, and I will yield back.
    Mr. Franks. And I thank the distinguished Chairman.
    And as you all know, a vote has been called and we are 
going to have to adjourn the meeting for the moment, and I hope 
that we will see you here after votes. Thank you.
    [Recess.]
    Mr. Franks. This meeting is called back to order. Thank you 
all for being so patient.
    I just want to say for the record here that this is 
somewhat of a reaction to one of the opening statements. This 
bill will not lead to racial profiling. The bill provides 
immunity for Americans who report suspicious activity without 
regard to the sex, race, religion, or national origin of the 
party engaging in the suspicious activity or the party making 
the report. If a citizen had reported the Unabomber, Eric 
Rudolph, or Timothy McVeigh for serious and suspicious 
activity, this bill would have given that citizen immunity. The 
2007 law that created similar immunities in the transportation 
context has not led to any known incidences of racial 
profiling. This bill is about creating immunity for citizens 
who report suspicious activity reasonably in good faith. It is 
not about racial profiling, and a report based on race alone 
would probably not be reasonable or in good faith. So I just 
wanted to put that down for the record.
    And I so look forward to the testimony this morning from 
our distinguished panel of witnesses.
    I want to remind Members that without objection, all of 
their opening statements will be made part of the record.
    And we do, indeed, have a very distinguished panel of 
witnesses today.
    Our first witness, Mr. Lawrence Haas, is a senior fellow 
for U.S. Foreign Policy at the American Foreign Policy Council, 
a former senior White House official, and award-winning 
journalist. Mr. Haas writes widely on foreign and domestic 
affairs. He is quoted often in newspapers and magazines and 
appears frequently on television and radio. Mr. Haas was 
communication director and press secretary for Vice President 
Al Gore and before that, communications director for the White 
House Office of Management and Budget in the Clinton 
administration. After his White House tenure, Mr. Haas served 
for 2 years as director of public affairs and special assistant 
to the president at Yale University. Welcome, sir.
    Our second witness, Chief Chris Burbank, has been the chief 
of police at the Salt Lake City Police Department since 2006 
and has been with the department since 1991. Chief Burbank has 
a bachelor of science degree in sociology from the University 
of Utah and is a graduate of the FBI's National Executive 
Institute. Chief Burbank served as a venue commander during the 
2002 Salt Lake City Winter Olympic Games in which post he was 
responsible for planning, organizing, and implementing security 
for the downtown Olympic Square with more than 1,000 Federal 
and State and local law enforcement officers and troops from 
the Utah National Guard under his command. Welcome, Chief.
    Our third witness, Dr. Zuhdi Jasser, is the President and 
Founder of the American Islamic Forum for Democracy. Dr. Jasser 
founded AIFD in the wake of the 9/11 attacks in the United 
States as an effort to provide an American Muslim voice 
advocating for liberty, freedom, and the separation of mosque 
and state.
    Dr. Jasser is a first generation American Muslim whose 
parents fled Syria in the mid-1960's.
    Dr. Jasser is a respected physician who served 11 years as 
a medical officer in the U.S. Navy. He is currently in private 
practice in Phoenix, Arizona, specializing in internal medicine 
and nuclear cardiology. He is past president of the Arizona 
Medical Association. Dr. Jasser is from my home State and a 
very beloved friend, and I welcome you, Dr. Jasser.
    Each of the witness' written statements will be entered 
into the record in its entirety, and I ask each witness to 
summarize his testimony in 5 minutes or less. But to help you 
stay within that time limit, there is a timing light on your 
table. When the light switches from green to yellow, you will 
have 1 minute to conclude your testimony. When the light turns 
red, it signals that the witness' 5 minutes have expired.
    Before I recognize the witnesses, it is the tradition of 
this Subcommittee that they be sworn. So if you would please 
stand.
    [Witnesses sworn.]
    Mr. Franks. Thank you and please be seated.
    Now I would recognize our first witness, Mr. Haas, for 5 
minutes, sir.

 TESTIMONY OF LAWRENCE J. HAAS, SENIOR FELLOW FOR U.S. FOREIGN 
            POLICY, AMERICAN FOREIGN POLICY COUNCIL

    Mr. Haas. Thank you very much, Mr. Chairman. Mr. Chairman, 
Members of the Subcommittee, thanks for the opportunity to 
appear before you today. I am honored to be here.
    With only 5 minutes, I will be as crisp as I possibly can 
be.
    I strongly support this legislation. I hope Congress and 
the Administration can enact it as soon as possible. I do 
believe that it draws the appropriate line between national 
security and personal protections. It will enable the American 
people and law enforcement officials to do precisely what it is 
we want them to do and, at the same time, apply these 
protections only to the extent that Americans make good faith 
efforts to play their roles honestly and not in cases in which 
people knowingly target groups or individuals with dishonest, 
unfair allegations or action.
    Mr. Chairman, in light of the recent U.S. success in 
bringing justice to Osama bin Laden and reports of al Qaeda's 
weakened state, we may grow tempted to let our guard down, and 
I do believe that would be unwise for at least two reasons.
    First, we face a terrorist threat that is far larger than 
the state of any one organization. It is a threat that involves 
a variety of interconnected groups and an underlying ideology 
which is known as jihadi or jihadist or jihadism, about which I 
write more in my testimony.
    Second, efforts to attack the United States from outside or 
to foment anti-American feeling from within continue and 
actually are increasing at a rather feverish pace, and it is 
not just me who says so. In a speech earlier this year, the 
Deputy National Security Advisor Denis McDonough had this to 
say. ``For a long time, many in the U.S. thought that our 
unique melting pot meant we were immune from this threat, this 
despite the history of violent extremists of all kinds in the 
United States. That was false hope and false comfort. This 
threat is real and it is serious.'' And he goes on to detail a 
bit about it related to al Qaeda and some of its subscribers 
within the United States.
    The Secretary of Homeland Security, the Attorney General 
have also spoken in recent months about this growing threat 
from within the United States from American citizens or others 
who are living within the United States. Homegrown threats that 
are fueled by radical Islam are on the rise, and if I could 
just offer a few statistics.
    Law enforcement officials arrested 22 jihadi suspects from 
May 2009 to November 2010. That was compared to 21 in the 
previous 7 years. Since September 11th, there have been more 
than 50 homegrown terrorist plots which have included plots to 
blow up the Brooklyn Bridge, an office building in Dallas, a 
Federal courthouse in Illinois, the transit system in 
Washington, D.C. and the trans-Alaska pipeline.
    And you can just consider the news of recent weeks. Jihadi 
web forums posted a potential hit list of U.S. leaders in 
government, industry, and the media. The Department of Homeland 
Security and the FBI warned police across the country that al 
Qaeda retains a continuing interest in attacking oil and 
natural gas targets. We had the arrest of a Somali American man 
in Columbus on charges of helping al-Shabaab. We have had two 
Iraqi men living in Kentucky who were arrested and charged with 
helping al Qaeda in Iraq and so on.
    Mr. Chairman, you have already outlined how the American 
people have played a vital role in protecting the homeland. The 
Fort Dix incident, the potential bombing in Times Square, the 
recent action this year which led to the arrest of Khalid 
Aldawsari of Lubbock, Texas. We also know what can happen when 
we let our guard down, probably the best example being the case 
of the Fort Hood shooting where we ignored numerous hints of 
potential trouble from Army psychiatrist Major Nidal Malik 
Hasan leading to a shooting that left 13 dead and 38 wounded.
    I want to make one final point as my time is running out. 
Congress has reacted well to pending problems. It reacted well 
in 2007 in response to the so-called ``flying imams'' case that 
you mentioned, Mr. Chairman, with legislation to protect people 
who report suspicious activity in the transportation sector. It 
responded well with regard to the problem of libel tourism just 
last year with legislation that it passed and President Obama 
signed.
    With the See Something, Say Something Act of 2011, Congress 
has an opportunity to move from defense to offense, from 
reacting to proactive activity and to provide a more general 
protection for well-meaning citizens and officials in whatever 
context legitimate suspicions arise.
    So with that, I thank you again for inviting me to testify. 
I would be happy to take any questions that you have later on.
    [The prepared statement of Mr. Haas follows:]
    
    
    
                               __________

    Mr. Franks. Well, thank you, Mr. Haas.
    Chief Burbank, you are now recognized for 5 minutes, sir.

         TESTIMONY OF CHRIS BURBANK, CHIEF OF POLICE, 
                SALT LAKE CITY POLICE DEPARTMENT

    Mr. Burbank. Thank you very much.
    The role of local law enforcement has evolved significantly 
over the past 10 years. We have been tasked with ever-
increasing responsibilities, especially in our homeland 
security role, without relinquishing our traditional duty of 
providing for public peace and order. We as a profession have 
achieved numerous significant accomplishments in spite of 
continuing economic pressure and decreasing staffing levels. 
Domestic terrorist plots have been thwarted through attentive 
actions. Cities across the Nation have seen crime numbers 
steadily decline, especially violent crime. Salt Lake City, for 
example, during 2010 realized a 25-year low in part one crime. 
I am frequently asked for the reasons driving this decrease 
which seems counterintuitive in the face of recession.
    Public order and community well-being are the 
responsibility of every citizen in the neighborhoods we serve. 
There was a point in history, however, in which the public 
relied upon and expected law enforcement to address disorder 
and criminal activity. In fact, people accepted the notion that 
the police knew best and rarely questioned the means of 
investigation if they resulted in the incarceration of 
criminals.
    Police events transpired which called into question the 
integrity and professionalism of agencies throughout the United 
States. The public demanded increased oversight, input, and 
accountability. Civilian review boards emerged. Neighborhood 
watch and community partnerships expanded. Community policing 
became not only standard practice but an expectation. Citizen 
involvement and partnership places emphasis upon relationships 
and responsibility for public peace upon all participants.
    While many factors certainly contribute to the steady 
decline of criminal behavior, we in law enforcement have become 
better partners and more effective stewards of public trust. We 
function best when we stand as a part of not apart from the 
community. In order to continue in a successful and productive 
direction, public trust and confidence in law enforcement must 
be safeguarded and nurtured.
    The threat of terrorism, combined with substantial 
technological advances and enhanced community participation, 
has created an environment in which law enforcement is capable 
of collecting, retaining, and disseminating information in 
greater volume than ever before. Personal information 
concerning a suspicious individual in Salt Lake City can be 
shared with agencies within the region or across the country in 
minutes. While this increases our capacity to apprehend and 
interdict criminals, additionally it should accentuate the need 
for transparency, national standards, and oversight.
    The goal of effective policing is to ensure public safety 
and minimize the impact of disorder by preventing criminal 
activity, not merely responding for documentation after the 
fact. To accomplish this, it necessitates contact based upon 
the Supreme Court established standard of reasonable suspicion. 
This standard, ingrained within police recruits requires 
officers to develop articulable facts suggesting criminal 
activity prior to conducting an investigative stop. Race, 
ethnicity, and religion cannot be utilized as factors to create 
suspicion. Allowing bias to influence enforcement actions 
erodes public trust and creates detrimental case law.
    Improved hiring practices, effective training, and 
administrative accountability have helped minimize officer bias 
in police-generated encounters. A significant number of police 
contacts, however, are dictated through citizen calls for 
service and inherently adopt the bias of the reporting 
individual. For example, frequently in areas troubled by gang 
activity, people will report groups of minority juveniles 
dressed in sport attire as gang members. Unfortunately, from 
the moment we receive that call, a certain amount of bias is 
interjected. We do not have the ability to second guess the 
caller or refuse to respond. What if in fact they are correct 
and this group poses a threat to public safety? And if the 
description is accurate, for officer safety reasons, we cannot 
send a single officer. Violent gang members have a propensity 
to carry weapons, and so we send a minimum of two units. If the 
suspicions of the caller are incorrect, the perceptions of the 
community are the police are being heavy-handed and targeting 
minority youth, and we have yet to take any police action other 
than responding.
    It is imperative that we remain mindful of the tremendous 
burden facing our law enforcement officers as they strive to 
protect the communities in which we reside. Considerable 
responsibility should accompany any expansion of police 
authority. I hold officers to an extremely high standard of 
conduct. The laws and legislation regulating their actions 
should receive no less attention.
    We must never allow this or any other piece of legislation 
to be interpreted as lowering the traditional standards of 
qualified immunity. Law enforcement as a profession will suffer 
if granted immunity for taking actions that ignore clearly 
established law, constitutional rights of individuals, and 
legal standards of probable cause and reasonable suspicion.
    Thank you.
    [The prepared statement of Mr. Burbank follows:]
    
    
    
                               __________

    Mr. Franks. Thank you, Chief.
    Dr. Jasser, you are now recognized for 5 minutes, sir.

  TESTIMONY OF M. ZUHDI JASSER, M.D., PRESIDENT AND FOUNDER, 
          AMERICAN ISLAMIC FORUM FOR DEMOCRACY (AIFD)

    Dr. Jasser. Thank you, Chairman Franks, Ranking Member 
Nadler, and Members of the Subcommittee. As the president of 
the American Islamic Forum for Democracy, we have been on the 
front lines of countering not the militant threat but the 
ideological fuel of which violence is only one symptom.
    You have before you H.R. 963, the ``See Something, Say 
Something Act of 2011.'' This act is the minimum our Congress 
can do to protect any citizen that reports anything and any law 
enforcement professional who acts upon suspicions in good 
faith.
    The threat, as you heard from Mr. Haas and the 
Congressional Research Service, has only been increasing 
exponentially, and in the past 18 months, even today, we hear a 
report, ``saved by citizen,'' reported about the two 
individuals in Seattle.
    In theory, the Department of Homeland Security program, If 
You See Something, Say Something, is straightforward, but 
unfortunately it is in a vacuum. Secretary Napolitano's 
admonition to us was as citizens when she said, ``we are simply 
asking the American people to be vigilant, recognizing that our 
security is a shared responsibility that all of us must 
participate in.'' I am sorry. But the reality is that when many 
of us on the front lines of reform and directly countering and 
exposing militancy and the ideas that fuel them end up being 
faced with the oppressive tactics of intimidation and the 
threats of lawsuits in the trenches of what is called 
``lawfare,'' we feel alone. The Nation leaves us alone and 
hangs us out to dry with little to no support other than from 
other activists and reformists that get it.
    Secretary Napolitano may be in the perfect world, feel that 
it is a shared responsibility, but without limiting citizen 
exposure, without protecting our citizens, that shared 
responsibility is a pipe dream. When an international Islamist 
organization with vast, endless global funds in the UK 
threatened me and our organization simply for speaking the 
truth with a libel suit just for reporting the truth, I 
understood like never before what victims of ``lawfare'' must 
feel. That is libel tourism and this body protected us with 
other legislation. But that applies to all people that speak 
out that may be inhibited because of fears of intimidation in 
the legal sector.
    There is a large chasm between the ``seeing something'' and 
``saying something.'' As we saw with the Times Square bomber, 
ultimately Aliou Niasse, a Senegalese Muslim, and Lance Orton, 
a T-shirt vendor--these two citizens saved thousands of lives 
in New York by simply reporting what they saw to law 
enforcement. But people like that should no longer be looked 
upon as heroes but simply as dutiful citizens, but they are 
looked upon as heroes because of the challenges that they have 
and because of the pressures that they can be under.
    We saw young workers at Circuit City who ultimately 
reported a DVD they saw, and they said, quote--the workers said 
``I don't know what I should do because if I call someone, is 
that being racist.'' Their call to law enforcement led to the 
arrest and conviction of the Fort Dix Six.
    The bill that we spoke about, this bill in 2007 protected 
passengers, and once this bill was passed in Congress to 
protect the passengers, a civil rights organization, CAIR, 
dropped its lawsuit against the passengers because of your 
protections.
    Ultimately a former Federal air marshal said, ``instilling 
politically correct fears into the minds of airline passengers 
is nothing less than psychological terrorism.'' As Muslims, our 
group was horrified that groups like CAIR and the imams, some 
of which we know locally, decided to sue and create, I think, 
an incorrect narrative in the minds of the American public 
about Muslims' approach to terrorism.
    The only successful attack that has occurred on our soil 
since 9/11 should have been a wakeup call to the need for this 
act. The Fort Hood massacre was committed on November 5, 2009, 
and an Army psychiatrist, Major Nidal Hasan, killed 13 of our 
fellow soldiers and injured over 30.
    However, it is interesting. That fear carried over 
hypocritically even into the Pentagon's report. 85 pages of an 
after-action report that was done in the comfort of months of 
analysis didn't even identify the word ``Islam,'' ``Muslims,'' 
``Islamism,'' ``jihad.'' Nidal Hasan's name himself did not 
appear in the after-action report. So ultimately, how can we 
counter an ideology that we can't even name? And yet, the 
report said they wanted to punish some of the superior officers 
that did not report what they saw. When the brass and the best 
that our military has could not even describe it, how can you 
hold accountable the superior officers that Nidal Hasan was led 
by?
    So ultimately, there was a culture of fear and a culture 
that needs protection. This law will not eliminate that, but it 
will certainly be a significant first step in giving them the 
protection necessary from legal retribution. We need to start 
to peel away those barriers.
    Lastly to give you a snapshot of the pressures and the 
environment with which some of us work, the Council on American 
Islamic Relations in Michigan released a video to its members 
telling Muslims--very appropriately they said it is our Islamic 
responsibility to report any acts of violence that are 
impending, but they didn't say report to DHS. They said report 
to them, report to the mosques so that CAIR can gather the data 
and then give it to DHS. That is not See Something, Say 
Something. It is see something, give it to a civil rights 
organization so that they can determine if it is discrimination 
and then ultimately say something. That chasm, that large 
valley between see something and say something is what is 
happening out in the front lines and in the area of ``lawfare'' 
that we need to breach.
    Ultimately protecting citizens reporting and law 
enforcement acting on those suspicions does not do anything to 
due process or to the constitutional protections. We just need 
to lift the denial that there is a problem, and we have to lift 
the denial that it is a very litigious society in which we live 
in.
    I would ask you to please get familiar with ``lawfare'' as 
soon as possible so that you understand all of the fronts that 
we have to fight this battle, and limited or qualified immunity 
is a very necessary part of that. Ultimately, if you want our 
citizens to have no pause or intermediary between ``see 
something'' and ``say something,'' we need to protect them with 
legislation like this.
    Thank you.
    [The prepared statement of Mr. Jasser follows:]
    
    
    

                               __________
    Mr. Franks. Well, thank you, Dr. Jasser, very much, and I 
thank all of you for your testimony.
    And I will now begin the questioning by recognizing myself 
for 5 minutes.
    Dr. Haas, first, how important are citizen reports to 
helping to thwart terrorist plots? And do you believe that this 
bill's requirements that reports be made in good faith based on 
reasonable suspicion provides sufficient protections against 
reports that are made for abusive or other inappropriate 
reasons?
    Mr. Haas. Well, to take these in reverse order, my reading 
of the legislation is that it draws the appropriate line 
between providing important protections for people who make 
good faith efforts while making very clear that it does not 
protect people who knowingly target groups or individuals. Now, 
of course, I appreciate what the chief said about the 
application, the practical application, of any piece of 
legislation, and I defer to him on how precisely it should be 
applied. But my reading of the legislation is that it draws a 
common sense line between improving our national security, 
protecting our national security and yet at the same time not 
opening the door to profiling.
    Now, with regard to your first question, I think the 
evidence is quite clear. We just have example after example 
where individuals have stepped in where law enforcement has not 
seen something and one thing has led to the other, and we have 
saved literally hundreds if not thousands of lives. So I think 
the evidence is really quite clear on that.
    Mr. Franks. Thank you, sir.
    Chief Burbank, as you know, a narrower version of this 
legislation was limited to the public transportation context 
and signed into law in 2007. Do you know of any evidence that 
the 2007 law has led to law enforcement ignoring clearly 
established law or the constitutional rights of individuals or 
legal standards of probable cause and reasonable suspicion? I 
know that is the concern and I understand that concern. Do you 
know any of examples like that?
    And do you oppose H.R. 963, and if so, what would you do to 
help us fix it?
    Mr. Burbank. Well, let me say this, that I am not opposed 
to the legislation. I think we just need to be cautious because 
our citizens--and we could not as police officers, especially 
local law enforcement, do our job without the assistance of the 
public in which we serve. So it is vital that we have an 
exchange of information that takes place. But our citizens are 
not trained in standards of reasonable suspicion or probable 
cause, and so it is important and contingent upon us to ensure 
that law enforcement, as they receive this information, that 
they vet the information, that they look at it responsibly and 
not just arbitrarily throw things in a database or make reports 
that go on that can have significant impact into the future and 
also, as you mentioned earlier, potentially cloud our ability 
to sort through information. And so, again, it is 
implementation and the careful implementation that do we have 
the checks and balances in place to ensure that we are just not 
arbitrarily taking information and saying, yep, that is valid 
information and we are going forward with it.
    Mr. Franks. Thank you, sir.
    Dr. Jasser, you testified that an Islamic civil rights 
group instructed citizens not to directly report suspicious 
behavior to authorities. Can you comment on how today's 
legislation would encourage, in particular, American Muslim 
populations to directly report suspicious activity to law 
enforcement officials?
    Dr. Jasser. Yes, I think that is very important, Chairman. 
To me as a citizen, there are two options. Either we start 
moving toward a society where government has to interfere 
more--and by virtue of what these civil rights groups are 
doing, they say we don't want government monitoring mosques, et 
cetera. Well, I could not agree more. I don't want the 
government in my private life. Well, if we don't want that, 
then we need to empower and protect citizen reporting. It is 
either one of two things. Either citizens report because 
terrorism works by blending into the community by random acts 
that nobody can predict or government will sadly end up 
sacrificing liberty for security.
    So ultimately, while the group--you know, I do want to 
qualify one thing. They did not tell people not to go to 
Homeland Security, but they said the way to do it is through 
CAIR. And ultimately, what that does is consolidate their power 
so that even though that group, by the way--the FBI has cut off 
all communications through a communique to them basically 
saying we will no longer communicate with you because of Hamas, 
et cetera. They still end up controlling a lot of the 
information and reporting, and many Muslims who feel that they 
don't want to go through them end up saying, well, they are the 
group that is leading our community. Whether we like them or 
not, we are going to report to them. And I think it becomes 
more of a tribalism, if you will. And if we are going to fight 
that and protect reformists and protect Muslims that will break 
that cycle, we need to provide legal protection for them.
    Mr. Franks. Yes, sir.
    My last question is to you, Dr. Jasser. How will 
encouraging open discussion of potential terrorism-related 
transactions or activities or occurrences, and open discussion 
more generally, further your efforts to provide a voice for 
American Islam?
    Dr. Jasser. Yes. I think the Fort Hood example couldn't 
have expressed it more. Here you had a doctor. I came out of 
that environment at Bethesda Naval Hospital, and I can imagine 
what happened. It has been 15 years since I have been there. 
But ultimately, here was a doc who was supposed to be talking 
about PTSD and ended up talking about why militant Islam is 
valid and why it is a war against Islam and starting citing 
scripture, and nobody said anything because they are not 
trained in counter-terrorism but also because of the 
environment that they didn't want to be labeled as 
discriminatory or racist against Muslims.
    In our environment, if we are going to separate mosque and 
state and begin to have a dialogue about the beautiful aspects 
of our faith that is the solution to terrorism, if we are going 
to have that dialogue, we need an environment in which we can 
say, well, what is spiritual Islam and what is radical, what is 
political Islam. What is the ideology fueling this movement? 
Nidal Hasan did not become radical overnight. This was a 
process of radicalization. And again, what would have been the 
environment if he had been arrested a few weeks before November 
5? What would be the case in the court system today?
    Look at Chaplain Yee and others. Mr. Yee himself has become 
part of a cottage industry of victimization, and nobody really 
looked at the fact that many of the facts in his case were not 
released because there were national security concerns of some 
of the information he was transmitting.
    So at the end of the day, I will tell you my work needs an 
open environment. And again, it doesn't stigmatize Muslims. It 
allows Muslims to have an internal debate that we are not a 
monolithic community, that we have ideas that need reform and 
other ideas that need lifting up because if we are going to 
counter Islamism as an ideology, we need to have a dialogue not 
between Islam and the rest of the world, but within the Muslim 
community for reform and modernization.
    Mr. Franks. Well, thank you, sir. Thank you all very much.
    I now recognize the distinguished Ranking Member for 5 
minutes.
    Mr. Nadler. Thank you.
    Mr. Haas, we all agree that we want people, if they see 
something, to say something. That is not under discussion. But 
how does this bill, H.R. 963, the bill before us, alter the 
liability structure of law enforcement officers in a manner 
that differs from current law? I mean, what does it actually 
change?
    Mr. Haas. Well, I am, to be honest with you, sir, far more 
focused on how it provides the important protections for 
average Americans. I am not an expert in terms of the existing 
liabilities----
    Mr. Nadler. Okay, but the key is, as far as I can tell, it 
doesn't change much, if at all.
    Chief Burbank, can you answer the question? What additional 
protections, if any, does this bill give that current law does 
not, current normal tort law and so forth?
    Mr. Burbank. Qualified immunity currently exists for law 
enforcement, and I don't see it changing that standard. My 
concern is the perception that the standard is being changed by 
this, and that is what we need to safeguard against.
    Mr. Nadler. Do you think that the perception that this bill 
would change the standard is a bad perception?
    Mr. Burbank. In speaking with law enforcement officials and 
officers, the expectation is that there is now more protection.
    Mr. Nadler. That there will be more protection.
    Mr. Burbank. Yes, that they will be more protected. And I 
can't stand here before you and say that protecting officers is 
a bad thing. I mean, we need to ensure----
    Mr. Nadler. The current law--does it sufficiently protect 
officers?
    Mr. Burbank. I believe it does, yes.
    Mr. Nadler. You believe it does.
    Does this bill--forget the perception--would it in fact add 
protection in any way?
    Mr. Burbank. I do not believe that it specifically does.
    Mr. Nadler. And is that for members of the public too or 
just for law enforcement?
    Mr. Burbank. That is speaking strictly for law enforcement.
    Mr. Nadler. Now, what about members of the public?
    Mr. Burbank. Well, I believe that this does extend a little 
more to members of the public as far as qualified immunity 
which in other----
    Mr. Nadler. How does this extend to members of the public 
beyond regular tort law? In other words, under normal law that 
we have, if you see something and you are in good faith and you 
report it and you have no malice, you are protected. You have 
that qualified immunity. How does this add to that?
    Mr. Burbank. You are getting into an area of law where I 
would be----
    Mr. Nadler. Can anybody answer that question?
    Dr. Jasser. Mr. Nadler, I am not an attorney, but what I 
can tell you is that in 2007, the qualified immunity was passed 
by your body to the passengers that report----
    Mr. Nadler. No. I understand that, but the question is some 
of us believe that what we did in 2007, while harmless, didn't 
in fact change anything even for passengers.
    Dr. Jasser. Well, if it didn't change anything, Mr. Nadler, 
then CAIR and the imams would not have dropped the lawsuit 
against----
    Mr. Nadler. Well, maybe they had a perception but it didn't 
change the underlying law. I mean, people can act on 
misperceptions. I am trying to ask--and apparently no one can 
answer the question--if we are actually changing the underlying 
law. Apparently for law enforcement, the answer is no. For 
regular citizens, no one really can answer that.
    Dr. Jasser. I believe it raises the threshold of the amount 
that you have to prove that it was in good faith or not. I 
think that without this added language----
    Mr. Nadler. You think it raises the threshold. Okay.
    Now, either Mr. Haas or Chief Burbank, are law enforcement 
officers still required to exercise the level of care required 
for reason of suspicion under Terry v. Ohio?
    Mr. Burbank. Absolutely.
    Mr. Nadler. They are. Okay.
    Does this bill impose any additional investigative burden 
on law enforcement due to lack of training and discerning 
suspicious from otherwise ordinary behavior?
    Mr. Burbank. No. I do not believe it does.
    Mr. Nadler. Let me ask you one other question. What has 
been your experience of how the prejudices of individual 
citizens can impact the responses of police officers?
    Mr. Burbank. We are subject to every call that comes into 
the police department in 911 or otherwise that the citizen who 
is making that report--their individual bias potentially can be 
in that call for service. And so we rely upon the training and 
experience of our officers as they go on these calls to sort 
those things out. But we do not have a choice, as I mentioned 
in my testimony, to differentiate or tell Mrs. Jones I am sorry 
we are not coming out today because we don't believe your 
report to be valid or credible.
    Mr. Nadler. And let me ask one other question, Chief 
Burbank. Do you have any experience with lawsuits arising out 
of tips to the police?
    Mr. Burbank. Personally no, I do not.
    Mr. Nadler. Are you aware of this being an issue in other 
jurisdictions?
    Mr. Burbank. Not an issue that rises to the level of 
frequent discussion in meetings with other chiefs of police. 
But I have heard of them, yes.
    Mr. Nadler. Now, we are often told that focusing especially 
vigorous law enforcement attention on certain communities or 
outright racial or religious profiling--some people say that is 
an effective and necessary law enforcement tool, that we place 
our communities at risk if we allow political correctness to 
prevent law enforcement from doing so. Would you comment on 
whether you think that is correct or incorrect? Are we 
sacrificing a useful investigative tool if we don't do that?
    Mr. Burbank. That is absolutely incorrect. When we make 
enforcement decisions or take investigative action based upon 
race, ethnicity, religious belief, then it is wrong because we 
lose sight of what our ultimate goal is, and the standards of 
reasonable suspicion and probable cause rely on us to 
articulate what is the underlying criminal behavior that we can 
see that allows us to interject ourselves in someone's life. 
And when we ignore that, when we don't take that, then the 
volume of information that potentially is there is 
overwhelming. We need to always refer back, what is the 
criminal behavior that we are focusing on or looking at in 
order to interject ourselves as law enforcement into someone's 
life.
    Mr. Nadler. And finally, Dr. Jasser, do you agree with 
that?
    Dr. Jasser. Absolutely. This is not going to change any of 
the constitutional protections that a citizen has, but what it 
does is for those of us on the front lines, Mr. Nadler, it 
allows us to remove the obstacles. It protects citizens and at 
least tells us that government is not going to hang us out to 
dry and let us be--we can't deny the fact that we are a 
litigious society, and that if there are protections that 
citizens in good faith--I don't think this bill protects 
malignant citizens that report by virtue of profiling. I don't 
think it does at all. This simply raises the bar so that things 
reported in good faith are not going to be afraid of being 
dragged into court simply because they report it.
    And I will tell you a lot of the suing that is done is not 
done because they think they can win. It is done because they 
want to tie up organizations like ours or others in financial 
ruin so that we don't have the ability to continue to do the 
reform and the counter-terrorism that we are doing.
    Mr. Nadler. My time has expired. Thank you.
    Mr. Franks. Well, thank you, Mr. Nadler.
    And just for point of clarification, this bill is broader 
than the 6 U.S.C. 1104 which was passed in 2007 as part of a 
transportation bill. The 2007 provision granted immunity only 
for reports of a suspicious transaction, activity, or 
occurrence that involves or is directly against a passenger 
transportation system or vehicle or its passengers. Now, this 
bill, by contrast, provides immunity for reports of any 
suspicious transaction, activity, or occurrence whether or not 
it involves transportation.
    It is appropriate in my mind and important to expand these 
immunities beyond the transportation context because, 
obviously, terrorists do attack other areas besides 
transportation systems. So just for point of clarification.
    And with that, I would yield 5 minutes to the gentleman 
from Iowa, Mr. King.
    Mr. King. I thank the Chairman for yielding and all the 
witnesses for your testimony. I am probably going to go down a 
path here that is maybe a little bit different than you might 
have anticipated.
    As I listened to the testimony and in particular that of 
Dr. Jasser, whom I have heard speak in the past--and I very 
much appreciate all of your contributions to this country, and 
yours is, of course, included in that, Dr. Jasser.
    It is just interesting to me to hear the perspective that 
you bring from this from your perspective and how much your 
voice contributes to a broader view of how we address this 
American civil society in the face of the enemies that we have 
internally and without. I think you have added a lot of 
understanding to it.
    I will probably go further than most will on this 
Committee, but when the word ``profile'' comes up, I remember 
preparing to board an El Al airliner and not going through a 
body search or anything of the intensity that TSA puts me 
through but simply an interview where they looked in my eyes 
and asked me a series of questions and, once satisfied, said 
okay. And I might not even known that I was being profiled, but 
they were asking a lot of smart questions, and if I had given 
the wrong answer to probably any one of those, I might have 
gone through a lot more examination.
    And I hear the expressions that we have here on this panel, 
our concern about how this bill doesn't authorize profiling. I 
am of the view that everyone in this country, if they are going 
to function in our society, has to profile. People put labels 
on themselves by the clothes they wear, their speech 
mannerisms, their tattoos, their body piercings, all kinds of 
things, the signs that they carry around this city. They just 
scream at us and say ``profile me.'' This is my position. Get 
my message. We know we don't have time to hear what goes on 
inside a person's head.
    I watched the--what shall I say--the flying imams leverage 
a point and end up with a settlement in Minneapolis that I 
think was completely unjust and sent the wrong message and 
intimidated a lot of people not to report and not to see 
something, say something.
    I just asked someone to pull an article. This is a thing 
from memory that may not be considered to be in context here. 
But this is an article in San Francisco dated June 2nd of this 
year, and it is about how fire crews and police could only 
watch a man drown in the bay because they had not received the 
proper training to go pull this man out of the bay by San 
Francisco. And finally, a witness--it says in one article, 
another one it says a volunteer--pulled the man's lifeless body 
out of the 54 degree water.
    I think of one of my brothers who pulled a person out of a 
swirling eddy below a damn who was drowning, in fact, did die, 
and he didn't wait for training. He went in and pulled that man 
out and did everything he could to save his life. I can think 
of an occasion in my own life that way, not to speak about it 
into the record.
    I am just concerned that the culture of this country has 
gone to this point of being so overloaded with this litigious 
society that you have referenced that we have lost track of our 
duty to our fellow man and fellow woman, that we have lost 
respect for our own culture and our own civilization to the 
point where when something needs doing, we should go do that, 
do the right thing regardless of the litigation consequences. 
And I think it is sad that we have to come before this 
Judiciary Committee and carve out the narrowest of exceptions 
for specific circumstances when the society and the culture 
should always instinctively support the people that do the 
right thing for the right reasons regardless of whether 
profiling needed to be part of that conclusion that they drew.
    And I would ask Dr. Jasser. I know that you have thought 
about this deeply, and I would be very interested in what you 
might have to comment about what I have said.
    Dr. Jasser. Thank you, Mr. King.
    Yes. I cannot underscore enough how much--you know, you 
raise the issues that this bill just does one thing, which is 
raises the bar of liability protection. But the issue is much 
deeper. It is one of education. And I think one of the other 
things that See Something, Say Something is not--it is done in 
a vacuum--is that we need to educate our population. What are 
we looking for? So many people, when they uncover a cell in the 
neighborhood, say, oh, he seemed to be a normal guy, but you 
know, he was doing this and that and I didn't realize it and 
they never reported it. The same thing with the Fort Hood 
issue. So many things could have been reported. The Times 
Square bomber. Citizens saved that but then once the reporter 
started looking at his history, there were many neighbors and 
others that could have reported things months in advance that 
did not. And once we start educating our population about 
things to look for--it is not that we are asking them to spy on 
one another. We are just reporting things that are public.
    And I think it is interesting. The UK--there is a website 
called directgov where they tell citizens to report radical 
websites to the government, and it is a reporting system where 
they see something, say something on the Web. And cyber jihad 
is a significant thing.
    And right now, I guarantee you there are a lot of citizens 
afraid to report because they see what happens to groups like 
ours, the way we get stigmatized and targeted as anti-Muslim 
when in fact there couldn't be anything more pro-Muslim than 
weeding out radicalism within our community. So if we are going 
to breach the chasm of ignorance and educate our population, we 
need to protect them and say, you know, the cultural change you 
are talking about doesn't happen overnight. This legislation is 
one step toward doing that.
    Mr. King. And if the Chairman would just indulge for one 
concluding question, I would appreciate that.
    This comes to mind as I listened to this. When the issue of 
Juan Williams came up and he was dismissed from NPR, what were 
your thoughts on that?
    Dr. Jasser. You know, I will tell you my thoughts were that 
here you have somebody dismissed simply because he said 
something that was on his mind. Now, did his comments--were 
they bothersome? You know, I have Muslims in my own family that 
wear hijab and look very ethnic, and we are proud of that. So, 
yes, that is a conversation we have to have. But at the end of 
the day, to dismiss somebody for saying that he felt it but 
didn't feel it was right I think was a limitation and a 
squashing of free speech.
    And we have to be careful in this country and that by 
political correctness and protecting minorities like us, like 
Muslims, that we then start suppressing free speech to where we 
can't educate our population. You can't educate a community 
that can't even talk about it, and you have to be able to talk 
about fears, talk about what is discrimination, what is not, 
what is ideology. You remember Islam and Islamism is not a 
race. It is an ideology. Actually true racial profiling, which 
is wrong and against our Constitution, doesn't work because 
what we are fighting is an ideology. So if you are going to 
educate our communities, you have to be able to talk about it. 
And he got punished just for speaking out.
    Mr. King. I would argue it doesn't go against the 
Constitution, but I appreciate your response and the tone with 
which you delivered it. It is constructive.
    And I yield back the balance of my time. Thank you, Mr. 
Chairman.
    Mr. Franks. Mr. Haas, I know that you were jumping to get 
in there here.
    Mr. Haas. I just wanted to say briefly that you are 
talking, Congressman, about two different aspects of this. You 
are talking about the cultural level and we are talking about 
the legal level. Obviously, with regard to the legislation 
here, we are talking about the legal level. But, of course, 
they are connected. And to the extent that there is a legal 
liability, it seems to me we are sending a cultural signal. 
What was dangerous about the case of the flying imams, when 
those passengers were potentially liable--and we can debate 
whether they were, in fact, liable. I heard before Congressman 
Nadler said he didn't think the 2007 legislation was necessary. 
That is a separate debate. But to the extent that there was a 
widespread perception that there was a legal liability, it 
seems to me the government is sending a cultural signal that it 
does not take this reporting as seriously as it should.
    You have very appropriately responded to the particulars of 
that situation. You responded to the particulars of the libel 
tourism situation. It seems to me with this legislation you 
could send a much broader signal that we are really serious 
about your responsibilities and your ability, your legal 
ability, to do the right thing, to see something and then to 
say something. To the extent that we continue to play catch-up 
and we are sort of playing Whac-A-Mole--that is, a situation 
comes up and we pass a law; a situation comes up, we pass a 
law--it seems to me we are always one step behind. I think this 
legislation can put us one step ahead.
    Mr. Franks. Thank you, Mr. Haas, and thank you, Mr. King.
    Mr. King. I just wanted to say that there is another 
component of this discussion that I don't believe I articulated 
very well, and that is our duty as citizens to see something, 
say something and when appropriate do something on the spot 
because it is the right thing without regard to not having the 
right license or training or a permission slip from government.
    Thank you and I yield back.
    Mr. Franks. Thank you, Mr. King.
    Mr. Scott, you are recognized for 5 minutes, sir.
    Mr. Scott. Thank you, Mr. Chairman.
    Chief Burbank, is it possible in applying this to prevent 
profiling on the basis of race, religion, or national origin, 
or does something like this actually promote racial profiling?
    Mr. Burbank. I think we have to be careful that we are not 
conducting profiling. I think a definition needs to be made 
here. Profiling for criminal behavior is absolutely appropriate 
and is done every single day in effective law enforcement. You 
observe behavior and you say this leads me to believe that 
criminal behavior is taking place, very similar to the El Al 
description. They are looking at do eyes divert. Is someone 
perspiring? Those are the indicators of someone lying, not how 
they are dressed, the color of their hair, their eyes, or do 
they pray or not.
    Mr. Scott. Does objective, reasonable, good faith--does 
that include racial prejudice?
    Mr. Burbank. No. I think it is just something that we need 
to, as we implement this, ensure that we are not allowing that 
to take place.
    Mr. Scott. Exactly what are we protecting people from with 
the bill? Has anyone ever been found liable for making a 
criminal justice tip in good faith with objectively reasonable 
suspicion? Has anyone ever been found liable?
    Mr. Burbank. Not in my jurisdiction that I am aware of.
    Mr. Scott. Dr. Jasser, has anyone been found liable?
    Dr. Jasser. Ask U.S. Airways and the Minneapolis security 
and others that ended up paying unknown amounts settling that 
case. Ask many of the victims of----
    Mr. Scott. Wait a minute. What was the finding? You have 
people who have made reports and hassled people without good 
faith and without any objectively reasonable suspicion. They 
may be found liable. Is that right?
    Dr. Jasser. They still would be found liable, but----
    Mr. Scott. Okay. Now, if you are found to have made your 
report in good faith with objectively reasonable suspicion, has 
anyone in those circumstances with those findings been found 
liable?
    Dr. Jasser. That simple assumption you made is that people 
can have the financing and the time to go through a court to 
prove that they did it in good faith.
    Mr. Scott. Well, let's first of all get to the answer to 
the question. The fact is no one has ever been found liable who 
made a good faith--based on objectively reasonable suspicion--
no one has ever been found liable. Is that right?
    Dr. Jasser. Well, the thing is I have demonstrated cases to 
you, sir, of the Fort Hood incident and others that people said 
their fear of litigation is what prevented them from reporting. 
There are cases of libel tourism of people that had been found 
liable for saying things that they were not protected from 
until the libel tourism bill was passed. But I am not aware of 
a specific case. You know, it is almost a chicken or the egg--
--
    Mr. Scott. Was that under United States law?
    Dr. Jasser. I am sorry, sir.
    Mr. Scott. The case you mentioned.
    You have gone around the case. The fact is that no one has 
ever been found liable for a good faith tip based on 
objectively reasonable suspicion. That is a fact.
    Now, who has the burden of proof in a lawsuit to prove good 
faith or objectively reasonable suspicion under the bill? Is it 
part of the prima facie case or an affirmative defense?
    Dr. Jasser. I don't know the answer to that question, sir.
    Mr. Scott. Under what circumstances in American 
jurisprudence is someone with a winning case, that is, someone 
who can show that the tip was made based on bigotry, not in 
good faith, and without any objectively reasonable suspicion--
if you have those facts, should you be able to bring a lawsuit?
    Dr. Jasser. Can you restate your question?
    Mr. Scott. If you have someone who you believe has made a 
racist tip to law enforcement not based on good faith and 
without any objectively reasonable suspicion, should you be 
able to bring a lawsuit?
    Dr. Jasser. Absolutely. As I said, this legislation 
doesn't----
    Mr. Scott. Who with a legitimate lawsuit has to bet their 
house on the outcome of the litigation? What plaintiffs have to 
incur if they find they can't prove their case, although they 
in good faith believed it. We are not talking about frivolous 
lawsuits because Rule 11 takes care of that. In a good faith 
lawsuit, why should plaintiffs have to bet their houses on the 
outcome of the case? Who else has to do that?
    Dr. Jasser. But on the one hand, you are saying the 
legislation doesn't add anything. On the other hand, we are 
saying that it actually makes them have to bet their house. So 
it is one or the other. If this legislation does change the 
bar----
    Mr. Scott. It doesn't change the bar. It means if you have 
a winning lawsuit, you have to bet your house on the outcome of 
the case. For example, you believe it is true and you bring it 
and the witnesses change their stories or something happens and 
you lose your case. Why should you have to pay attorney's fees 
and costs to the defendant for having brought what you in good 
faith thought was a legitimate lawsuit?
    Dr. Jasser. Because we have a threat that is increasing. 
And I can tell you from my----
    Mr. Scott. Who else in American jurisprudence--what other 
plaintiffs have to pay attorney's fees and costs?
    Dr. Jasser. I think it would help decrease the 
litigiousness of society if we did do that, but from this 
perspective, I can tell you that----
    Mr. Scott. Does that mean you can't think of any plaintiff 
that has to bet a house in order to bring a lawsuit?
    Dr. Jasser. I cannot, sir. I don't know.
    Mr. Scott. In an automobile accident, if you bring a losing 
lawsuit, you don't have to pay attorney's fees. Is there any 
plaintiff that has to come into court fearing that they might 
lose their house if they lose the lawsuit?
    Dr. Jasser. I think if you ask any of the families of the 
13 victims at Fort Hood, they would have liked this type of 
system available to them.
    Mr. Scott. This would be the only case in which a plaintiff 
in American jurisprudence would have to risk attorney's fees 
and costs in order to have the right to bring a winning 
lawsuit. Is that right?
    Dr. Jasser. Again, we are in a state of war against an 
ideology that is threatening us, and if we continue to embolden 
the courtroom attacks and oppressive tactics by groups--I think 
if you talk to families that were victims from people like 
Nidal Hasan, they will tell you that that is a small price to 
pay to protect our Nation.
    Mr. Scott. So what we are deterring is not the reports, 
good faith, objectively reasonable suspicion standards. What we 
are deterring is people in good faith bringing a lawsuit 
against someone who in bad faith, without any reasonable 
suspicion, made a complaint and caused them to be jailed or 
otherwise--miss a plane or whatever in bad faith. They would be 
deterred from bringing a lawsuit because unlike any other 
plaintiff in American jurisprudence they would have to risk 
their house in the situation where they might not win the case 
for one reason or another.
    Dr. Jasser. Mr. Scott, since 2007 since transportation 
passengers were protected, is there any examples I am missing 
of people that have had to risk their house and didn't because 
of the protection of passengers?
    Mr. Scott. Well, the question is whether or not a plaintiff 
with the facts. And you can't say anybody didn't make a 
complaint because they had a good faith, objectively reasonable 
suspicion and didn't make a complaint. What we are talking 
about is American jurisprudence. We do not require plaintiffs 
to bet houses in order to bring a lawsuit except in this case.
    Mr. Franks. I just want to thank the witnesses for your 
testimony. I appreciate all the efforts that you make to make 
our society and our country a safer place to live, and I wish 
you all the very best.
    I want to remind the Members that they, without objection, 
will have at least 5 legislative days to submit to the Chair 
additional written questions for the witnesses which we will 
forward and ask the witnesses to respond as promptly as they 
can so that their answers may be made part of the record.
    And without objection, all Members will have 5 legislative 
days with which to submit any additional materials for 
inclusion in the record.
    Again, I thank the witnesses and I thank the Members and 
observers.
    And this hearing is now adjourned.
    [Whereupon, at 11:25 a.m., the Subcommittee was adjourned.]

                                 
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