[Senate Hearing 112-947]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 112-947

                       HATE CRIMES AND THE THREAT
                         OF DOMESTIC EXTREMISM

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

                                  HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON THE CONSTITUTION,
                     CIVIL RIGHTS AND HUMAN RIGHTS

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 19, 2012

                               __________

                          Serial No. J-112-94

                               __________

         Printed for the use of the Committee on the Judiciary
         
         
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                      COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 CHUCK GRASSLEY, Iowa, Ranking 
DIANNE FEINSTEIN, California             Member
CHUCK SCHUMER, New York              ORRIN G. HATCH, Utah
DICK DURBIN, Illinois                JON KYL, Arizona
SHELDON WHITEHOUSE, Rhode Island     JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota             LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota                JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut      TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
        Kolan Davis, Republican Chief Counsel and Staff Director
                                 ------                                

    Subcommittee on the Constitution, Civil Rights and Human Rights

                    DICK DURBIN, Illinois, Chairman
PATRICK J. LEAHY, Vermont            LINDSEY GRAHAM, South Carolina, 
SHELDON WHITEHOUSE, Rhode Island         Ranking Member
AL FRANKEN, Minnesota                JON KYL, Arizona
CHRISTOPHER A. COONS, Delaware       JOHN CORNYN, Texas
RICHARD BLUMENTHAL, Connecticut      MICHAEL S. LEE, Utah
                                     TOM COBURN, Oklahoma
                 Joseph Zogby, Democratic Chief Counsel
                  Walt Kuhn, Republican Chief Counsel
                            
                            
                            
                            C O N T E N T S

                              ----------                              

                     SEPTEMBER 19, 2012, 2:46 P.M.

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Durbin, Hon. Dick, a U.S. Senator from the State of Illinois.....     1
    prepared statement...........................................    86
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
    prepared statement...........................................    84

                               WITNESSES

Witness List.....................................................    31
Austin, Jr., Roy L., Deputy Assistant Attorney General, Civil 
  Rights Division, U.S. Department of Justice, Washington, DC....     4
    prepared statement...........................................    32
Clancy, Michael A., Deputy Assistant Director, Counterterrorism 
  Division, Federal Bureau of Investigation, Washington, DC......     9
    prepared statement...........................................    49
Jacobs, James B., Chief Justice Warren E. Burger Professor of 
  Constitutional Law and the Courts, New York University School 
  of Law, New York, New York.....................................    22
    prepared statement...........................................    65
Johnson, Daryl, Founder and Owner, DT Analytics, LLC, Washington, 
  DC.............................................................    16
    prepared statement...........................................    68
McAllister, Hon. Scott, Deputy Under Secretary, State and Local 
  Program Office, Office of Intelligence and Analysis, U.S. 
  Department of Homeland Security, Washington, DC................     7
    prepared statement...........................................    54
Saini, Harpreet Singh, Oak Creek, Wisconsin......................    19
    prepared statement...........................................    62

                               QUESTIONS

Questions submitted to Roy L. Austin, Jr., by Senator Coons......    89
Questions submitted to Daryl Johnson by Senator Coons............    90

                                ANSWERS

[NOTE: At the time of printing, the Committee had not received 
  responses from Roy L. Austin, Jr.]
Responses of Daryl Johnson to questions submitted by Senator 
  Coons..........................................................    91

                MISCELLANEOUS SUBMISSIONS FOR THE RECORD

Ali, Wajahat, Esq., Lead Author of ``Fear Inc., The Roots of the 
  Islamophobia Network in America,'' statement...................   115
American-Arab Anti-Discrimination Committee (ADC), Washington, 
  DC, statement..................................................   139
American Civil Liberties Union (ACLU), September 19, 2012, 
  statement......................................................   119
American Friends Service Committee (AFSC), Philadelphia, 
  Pennsylvania, statement........................................   126
American Humanist Association, Roy Speckhardt, Executive 
  Director, statement............................................   132
American Jewish Committee (AJC), Richard T. Foltin, Esq., 
  Director,
  National and Legislative Affairs, Office of Government and 
  International Affairs, statement...............................   136
Anti-Defamation League (ADL), New York, New York, statement......    94
Anti-Defamation League (ADL), September 19, 2012, statement......   146
    Anti-Defamation League (ADL), September 19, 2012, appendix A.   161
    Anti-Defamation League (ADL), September 19, 2012, appendix B.   164
    Anti-Defamation League (ADL), September 19, 2012, appendix C.   165
    Anti-Defamation League (ADL), September 19, 2012, appendix D.   168
Applied Research Center (ARC), September 2012, statement.........   169
Arab American Institute (AAI), Washington, DC, statement.........   172
Asian American Justice Center (AAJC), Mee Moua, President and 
  Executive Director, statement..................................   179
Asian and Pacific Islander American Health Forum (APIAHF), San 
  Francisco, California, statement...............................   176
Asian Law Caucus (ALC), San Francisco, California, statement.....   185
Asian Pacific American Legal Center (APALC), September 17, 2012, 
  statement......................................................   187
Chu, Hon. Judy, a Representative in Congress from the State of 
  California, statement..........................................   195
City of Chicago City Council and Mayor, Chicago, Illinois, 
  September 12, 2012, council resolution.........................   191
City of Chicago Police Department, Chicago, Illinois, Tina 
  Skahill, Chief of the Special Functions Division, statement....   194
Council on American-Islamic Relations (CAIR), Corey P. Saylor and 
  Robert S. McCaw, statement.....................................   197
Council on American Islamic Relations-Chicago Office (CAIR-
  Chicago),
  Chicago, Illinois, statement...................................   209
Daya Inc., Lakshmy Parameswaran, Founder and Board Member, 
  Houston Chronicle, ``On 9/11 anniversary, let's commit to 
  oppose violence,''
  September 10, 2012, Op-Ed article..............................   212
DC Trans Coalition (DCTC), Jason A. Terry, Anti-Violence 
  Organizer, statement...........................................   214
Defending Dissent Foundation, Susan Udry, Director, statement....   218
Equal Rights Center (ERC), Donald L. Kahl, Executive Director, 
  statement......................................................   225
Evangelical Lutheran Church in America (ELCA), September 19, 
  2012, statement................................................   232
Family Equality Council, Jennifer Chrisler, Executive Director, 
  statement......................................................   233
Family of Prakash Singh Rathore, Oak Creek, Wisconsin, statement.   234
Family of Punjab Singh, Oak Creek, Wisconsin, statement..........   385
Family of Ranjit Singh, Oak Creek, Wisconsin, statement..........   237
Family of Satwant Singh Kaleka, Amardeep Kaleka, son of Satwant 
  Singh Kaleka, Founding Member of the Sikh Temple of Wisconsin, 
  statement......................................................   239
Family of Satwant Singh Kaleka, Kanwardeep Singh Kaleka, nephew 
  of Satwant Singh Kaleka, statement.............................   309
Family of Satwant Singh Kaleka, Pardeep Singh Kaleka, son of 
  Satwant Singh Kaleka, statement................................   315
Family of Sita Singh, Oak Creek, Wisconsin, statement............   243
Family of Suveg Singh, Oak Creek, Wisconsin, statement...........   245
Federation of Jain Associations in North America (JAINA), Dr. 
  Sushil K. Jain, President, statement...........................   299
Franciscan Action Network (FAN), Sister Marie Lucey OSF, Director 
  of Advocacy, statement.........................................   247
Gays and Lesbians Opposing Violence (GLOV), Washington, DC, 
  statement......................................................   249
Groundswell, Valarie Kaur, Founding Director, statement..........   252
Gurdwara Sahib Hidden Falls, Plymouth, Michigan, statement.......   259
Hindu American Foundation (HAF), Suhag A. Shukla, Esq., Executive 
  Director and Legal Counsel, and Samir Kalra, Esq., Director and 
  Senior Fellow for Human Rights, statement......................   260
Hindu American Seva Charities (HASC), Anju Bhargava, Founder, 
  statement......................................................   265
Hmong National Development, Inc. (HND), Bao Vang, President and 
  Chief Executive Officer, statement.............................   269
Howard University School of Law Civil Rights Clinic, Washington, 
  DC, statement..................................................   273
Human Rights Campaign (HRC), Allison Herwitt, Legislative 
  Director, statement............................................   276
Human Rights First, Paul LeGendre, Director, Fighting 
  Discrimination
  Program, statement.............................................   279
Indo-American Heritage Museum (IAHM), Shailja Khatri, President, 
  statement......................................................   285
Interfaith Alliance, Rev. Dr. C. Welton Gaddy, President, 
  statement......................................................   287
Interfaith Center of New York, Rev. Chloe Breyer, Executive 
  Director, statement............................................   289
International Center for Advocates Against Discrimination 
  (ICAAD), Jaspreet and Hansdeep Singh, Co-Founders, statement...   291
Islamic Society of North America (ISNA), Plainfield, Indiana, 
  statement......................................................   297
Japanese American Citizens League (JACL), San Francisco, 
  California, statement..........................................   303
KARAMAH: Muslim Women Lawyers for Human Rights, Engy Abdelkader, 
  Esq., Vice President, statement................................   319
LatinoJustice PRLDEF, New York, New York, statement..............   324
Leadership Conference on Civil and Human Rights, The, Wade 
  Henderson, President and Chief Executive Officer, The Hill, 
  ``Time to ensure full and effective enforcement on hate crimes 
  laws,'' September 19, 2012, Op-Ed article......................   113
Michigan Roundtable for Diversity and Inclusion, Detroit, 
  Michigan, ``Michigan should watch and learn from Senate 
  hearings on Sikh shootings,'' Op-Ed article....................   327
Muslim Advocates, Farhana Y. Khera, President and Executive 
  Director, statement............................................   329
Muslim Public Affairs Council (MPAC), September 19, 2012, 
  statement......................................................   333
National Action Network (NAN), Reverend Al Sharpton, President 
  and Founder, Reverend Dr. W. Franklyn Richardson, Chairman, and 
  Tamika Mallory, National Executive Director, statement.........   341
National Asian Pacific American Bar Association (NAPABA), Tina 
  Matsuoka, Executive Director, statement........................   346
National Asian Pacific American Women's Forum (NAPAWF), September 
  17, 2012, statement............................................   349
National Association for the Advancement of Colored People 
  (NAACP), Hilary O. Shelton, Director, Washington Bureau, and 
  Senior Vice President for Advocacy and Policy, statement.......   337
National Association of Social Workers (NASW), Elizabeth J. 
  Clark, Ph.D., A.C.S.W., M.P.H., Executive Director, statement..   353
National Coalition for Asian Pacific Community Development 
  (National CAPACD), September 19, 2012, statement...............   355
National Disability Rights Network (NDRN), September 19, 2012, 
  statement......................................................   356
National Gay and Lesbian Task Force Action Fund, Rea Carey, 
  Executive Director, statement..................................   359
National Network for Arab American Communities (NNAAC), Nadia 
  Tonova, Director, statement....................................   364
National Queer Asian Pacific Islander Alliance (NQAPIA), Ben de 
  Guzman, Co-Director for Programs, statement....................   368
    NQAPIA, August 8, 2012, appendix.............................   370
North American South Asian Bar Association (NASABA), Emilie R. 
  Ninan, Esq., President, statement..............................   372
Oak Creek Police Department, Oak Creek, Wisconsin, John O. 
  Edwards, Chief of Police, statement............................   374
Office of the County Executive, Milwaukee County, Wisconsin, Hon. 
  Chris Abele, statement.........................................   376
OneAmerica, Hardeep Singh Rekhi, Board Member, The Seattle Times, 
  ``All should call out hate after Wisconsin Sikh shooting,'' 
  August 14, 2012, Op-Ed article.................................   379
OneAmerica, Rich Stolz, Executive Director, statement............   378
Organization of Chinese Americans (OCA), Tom Hayashi, Executive 
  Director, statement............................................   380
Parents, Families, and Friends of Lesbians and Gays (PFLAG), Jody 
  Huckaby, Executive Director, statement.........................   382
People For the American Way Foundation, the African American 
  Ministers Leadership Council (AAMLC), and Young People For: Jen 
  Herrick, Senior Policy Analyst, People For the American Way 
  Foundation; Minister Leslie Watson Malachi, Director, African 
  American Religious Affairs, People For the American Way 
  Foundation; and Joy Lawson, Director, Young People For; 
  statement......................................................   111
People for the American Way, African American Ministers 
  Leadership Council, and Young People For, statement............   383
Religious Action Center of Reform Judaism, Rabbi David 
  Saperstein, Director, statement................................   387
Rights Working Group (RWG), Margaret Huang, Executive Director, 
  statement......................................................   389
Singh, Santokh, Oak Creek, Wisconsin, statement..................   396
Shoulder-to-Shoulder, Christina Warner, Campaign Director, 
  statement......................................................   399
    Shoulder-to-Shoulder, September 17, 2012, appendix...........   401
Sidhu, Dawinder ``Dave'' S., Assistant Professor of Law, 
  University of New Mexico School of Law, statement..............   402
Sikh American Legal Defense and Education Fund (SALDEF), Jasjit 
  Singh, Executive Director, statement...........................   405
Sikh Coalition, New York, New York, statement....................   410
South Asian American Policy and Research Institute (SAAPRI), 
  Chicago, Illinois, statement...................................   433
South Asian Americans Leading Together (SAALT), Deepa Iyer, 
  Executive Director, statement..................................   435
South Asian Bar Association of New York (SABANY), Neha Dewan, 
  President, statement...........................................   444
South Asian Bar Association of Northern California (SABA-NC), 
  statement......................................................   450
South Asian Network (SAN), Manjusha P. Kulkarni, Esq., Executive 
  Director, statement............................................   454
Southern Poverty Law Center (SPLC), Dr. Heidi L. Beirich, 
  Director, Intelligence Project, statement......................   458
State of Michigan, Department of Civil Rights, Daniel H. 
  Krichbaum, Ph.D., Director, statement..........................   463
Unitarian Universalist Association of Congregations, Reverend 
  Craig C. Roshaven, Witness Ministries Director, statement......   467
    Unitarian Universalist Association of Congregations, Boston, 
      Massachusetts, advertisement...............................   470
UNITED SIKHS, New York, New York, statement......................   471
United States Department of Justice, M. Faith Burton for Judith 
  C. Appelbaum, Acting Assistant Attorney General, Office of 
  Legislative Affairs, September 26, 2012, letter................   109
USPAK Foundation, Ellicott City, Maryland, statement.............   474

 
                       HATE CRIMES AND THE THREAT
                         OF DOMESTIC EXTREMISM

                              ----------                              


                     WEDNESDAY, SEPTEMBER 19, 2012

                      United States Senate,
Subcommittee on the Constitution, Civil Rights and 
                                      Human Rights,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:46 p.m., in
Room SH-216, Hart Senate Office Building, Hon. Dick Durbin, 
Chairman of the Subcommittee, presiding.
    Present: Senators Durbin and Blumenthal.
    Also present: Senator Kohl.

             OPENING STATEMENT OF HON. DICK DURBIN,
           A U.S. SENATOR FROM THE STATE OF ILLINOIS

    Chairman Durbin. Good afternoon. This hearing of the 
Subcommittee on the Constitution, Civil Rights and Human Rights 
will come to order.
    Today's hearing is entitled ``Hate Crimes and the Threat of 
Domestic Extremism.'' At the outset, I will make an opening 
statement, and then we will recognize the Senators as they 
arrive, including Senator Graham, the Ranking Member on the 
Subcommittee. Then we will turn to our witnesses.
    First, I want to note that there is a significant amount of 
interest in today's hearing. For those who could not get a seat 
in the hearing room, we have an overflow room with live video 
feed. It is next door in the Dirksen Building, Room 226.
    Last month, in Oak Creek, Wisconsin, a white supremacist 
shot and killed six Sikh worshipers in the Oak Creek Gurdwara.
    Satwant Singh Kaleka was the founder of the gurdwara. His 
picture is on my far right you will see in the charts here. Mr. 
Kaleka fought off the gunmen with a butter knife, which gave 
others in the temple time to seek refuge. Mr. Kaleka leaves 
behind his wife, two sons, and three grandchildren. Mr. 
Kaleka's son, Amardeep, and nephew, Kanwardeep, are with us 
today, and our deepest condolences go to them.
    Paramjit Kaur was a deeply religious woman. Her picture is 
next to Mr. Kaleka's. On the day of the shooting, she was at 
the gurdwara for her daily morning prayers. Mrs. Kaur was 
devoted to her two sons, Kamaljit Singh Saini and Harpreet 
Singh Saini, working long hours so they could go to school. 
Kamaljit and Harpreet are here today. We will hear from 
Harpreet later in the hearing. You and your family are in our 
thoughts and prayers.
    Prakash Singh Rathore had been a priest at the temple for 6 
years. His picture is the next one over. He immigrated to the 
United States in 2006 and was finally able to bring his wife 
and two children to the United States just 2 months ago, after 
6 years of separation.
    Ranjit Singh immigrated to the United States in 1997. His 
picture is the next one over. Mr. Singh was a priest who played 
the tabla, an Indian drum, during religious ceremonies and 
mentored young people at the temple. He is survived by his wife 
and three children.
    Sita Singh, Ranjit Singh's younger brother, immigrated to 
the United States in 1993. He was a priest at the temple, where 
he led morning prayers every day at 5 a.m. His picture is next 
to his brothers. Sita Singh is survived by his wife and four 
children.
    Suveg Singh Khattra, who was 82 years old, was a farmer 
from India who immigrated to the United States with his wife 8 
years ago to join his son and daughter-in-law. Mr. Khattra's 
picture is the next one over. He leaves behind a wife, five 
children, and seven grandchildren.
    The family of each of the six victims has submitted written 
testimony, and with unanimous consent, that testimony will be 
part of the record.
    [The testimony appears as submissions for the record.]
    Chairman Durbin. Oak Creek, Wisconsin, Police Department 
Lieutenant Brian Murphy responded to the gurdwara shooting and 
was shot himself nine times at close range. His picture is on 
my far left. When other officers arrived at the scene, 
Lieutenant Murphy urged them to help other shooting victims 
before they helped him. Thankfully, Lieutenant Murphy, a 21-
year veteran of the Oak Creek police force, is expected to 
recover from his injuries.
    Sadly, the shooting in Oak Creek, Wisconsin, was not an 
isolated incident. More than 6,600 hate crimes were reported to 
the FBI in the calendar year 2010, the most recent year for 
statistics. And a 2005 study by the Bureau of Justice 
Statistics believes that even those crimes that are reported 
are just a fraction of those that actually occur.
    In the week following the Oak Creek shooting, there were 
numerous attacks on mosques, including a mosque being burned to 
the ground in Joplin, Missouri; a shooting at a mosque in my 
home State, in Morton Grove, Illinois, while 500 worshipers 
were praying inside; and an unidentified perpetrator throwing 
an improvised explosive device at an Islamic school, again in 
Illinois, in Lombard, during a prayer service. According to the 
Justice Department, the increase in discrimination against 
mosques since 2010 ``reflects a regrettable increase in anti-
Muslim sentiment.''
    At the same time, African Americans continue to be targeted 
by a vast majority of racially motivated hate crimes; Jewish 
Americans continue to be victims of religiously motivated hate 
crimes; Latinos are the victims of most ethnically motivated 
hate crimes; and hundreds of LGBT Americans are the victims of 
violent hate crimes every single year.
    Three years ago, I was honored to stand next to President 
Obama's side in the East Room of the White House when he signed 
into law the Matthew Shepard and James Byrd, Jr., Hate Crimes 
Prevention Act. Today we will hear about the Justice 
Department's efforts to use this authority to investigate and 
prosecute these crimes.
    But what are we doing to prevent hate crimes in the first 
instance? Are sufficient resources being devoted to combating 
the threat of violent domestic extremism and to protect those 
who are vulnerable?
    The numbers speak for themselves. According to a study by 
the New America Foundation and Syracuse University, 18 people 
have been murdered in 10 right-wing terrorist attacks since 9/
11; 17 have been killed in 4 attacks by violent Muslim 
extremists. And, since 9/11, 15 domestic extremists have 
acquired chemical or biological weapons that they intended to 
use in attacks. As one public FBI report warned, ``right-wing 
terrorists pose a significant threat due to their propensity 
for violence.''
    Well, since 9/11, Congress has held dozens of hearings on 
the threat posed by al Qaeda and its affiliates. This is the 
first hearing in many years on the threat of violent domestic 
extremism. Of course, absolutely we have to continue our 
efforts to defeat al Qaeda, but we cannot ignore the threat of 
homegrown non-Islamic terrorism.
    In recent weeks, we have been reminded that many around the 
world do not appreciate America's unique approach to hate 
speech and blasphemy. So let me be clear. Under our 
Constitution, we punish criminal acts, not free speech, no 
matter how offensive or hateful it might be.
    But our leaders, our leaders still have a responsibility to 
speak out against hate speech. That is what President Obama did 
in condemning the anti-Islamic movie that sparked the protests 
in the Muslim world.
    And that is what President George W. Bush did. It was 6 
days after 9/11--11 years ago this week--that President Bush 
visited an Islamic Center in Washington, D.C., to make it clear 
that our fight was with al Qaeda, not American Muslims. 
President Bush said, ``The face of terror is not the true faith 
of Islam. That's not what Islam is all about. Islam is peace.''
    Now, I had plenty of political differences with President 
Bush, and I have said that on many occasions. But I believe 
that his leadership as President helped to stop an anti-Muslim 
backlash after 9/11 because he spoke out so clearly so quickly.
    I am sorry to say that many political leaders are failing 
to follow his example and the example of President Obama. One 
recent example, several Members of the House of Representatives 
have gone so far as to question the loyalty of American Muslims 
serving in the Obama administration.
    Now, this kind of rhetoric is inconsistent with our 
heritage as a diverse nation of immigrants. Most Americans 
realize our diversity is our strength. They do not question the 
religious background of their fellow citizens. When Lieutenant 
Murphy rushed into a hail of bullets at the Oak Creek Gurdwara, 
he was not questioning first the religion of the victims. He 
knew they needed help, and he responded.
    In conclusion, I hope this hearing will redouble our 
efforts to combat the threat of domestic extremism and to take 
whatever steps are necessary to protect the vulnerable in 
America.
    Some would argue we should not be discussing our 
shortcomings in public while there are protesters around the 
world burning American flags. They claim that America might 
show weakness when it acknowledges its mistakes. I could not 
disagree more. America is strongest when we lead by example. We 
are a country that can look ourselves squarely in the mirror 
and admit that there is work still to be done to secure the 
promise of equal justice for all.
    [The prepared statement of Chairman Dick Durbin appears as 
a submission for the record.]
    Senators as they arrive will be recognized, but I want to 
turn to our first panel. Each witness is going to have 5 
minutes for an opening statement, and their complete written 
statements will be included in the record. As is the custom of 
the Judiciary Committee, I ask that the witnesses stand to be 
sworn.
    Please raise your right hand. Do you affirm the testimony 
you are about to give before the Committee will be the truth, 
the whole truth, and nothing but the truth, so help you God?
    Mr. McAllister. I do.
    Mr. Austin. I do.
    Mr. Clancy. I do.
    Chairman Durbin. Thank you. Let the record reflect that the 
witnesses have answered in the affirmative.
    The first witness is Roy Austin, Jr., Deputy Assistant 
Attorney General in the Civil Rights Division of the Justice 
Department. Among other responsibilities, Mr. Austin supervises 
the Criminal Section, which enforces Federal hate crime law. 
Mr. Austin began his career as an honors trial attorney in the 
Criminal Section investigating and prosecuting hate crime 
cases. In addition to two stints in private practice, Mr. 
Austin previously worked in the U.S. Attorney's Office for the 
District of Columbia, where, among other positions, he was 
senior assistant U.S. Attorney and coordinator of the D.C. 
Human Trafficking Task Force. He is an adjunct professor at 
George Washington University Law School, and he received his 
B.A. from Yale University and his J.D. from the University of 
Chicago.
    Mr. Austin, thanks for being here today, and please proceed 
with your testimony.

       STATEMENT OF ROY L. AUSTIN, JR., DEPUTY ASSISTANT
         ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, U.S.
             DEPARTMENT OF JUSTICE, WASHINGTON, DC

    Mr. Austin. Thank you and good afternoon, Chairman Durbin 
and Members of the Subcommittee. I am honored to come before 
you to represent the Civil Rights Division of the Department of 
Justice and discuss one of the Department's priorities: hate 
crimes prevention and enforcement.
    The topic of this hearing is deeply important to me on a 
professional and personal level. As a Deputy Assistant Attorney 
General, I oversee the dedicated career professionals in the 
Division's Criminal Section who are charged with prosecuting 
hate crimes across this country. But before I rejoined the 
Department, I served as a line prosecutor in the same section, 
working on bias-motivated assaults, cross burnings and church 
arsons, and I saw how the devastation caused by a single act of 
hate can reverberate through families, through communities and 
places of worship, and through this entire Nation.
    I can also tell you that the Nation's hate crime statutes, 
passed with bipartisan congressional support, are powerful 
tools for combating hate and violence, so that all of our 
citizens can live free from fear of being targeted because of 
their race, the color of their skin, the religion they 
practice, or who they love.
    I thank Senator Leahy, Senator Durbin, and all 63 Senators 
who supported our most recent hate crime statute, the Matthew 
Shepard and James Byrd Hate Crimes Prevention Act of 2009, 
which gave us for the first time a Federal law that 
criminalizes violence motivated by sexual orientation, gender 
identity, gender, and disability. State and local prosecutors 
continue to prosecute the vast majority of hate crimes with the 
Federal Government serving as a backstop. But the Civil Rights 
Division and U.S. Attorney's Offices have taken the lead in 
cases where such Federal involvement was in the public interest 
and necessary to secure substantial justice or where the State 
has requested that the Federal Government assume jurisdiction.
    While we as a Nation have made significant progress 
addressing hate crimes, recent events, like the absolutely 
horrific mass shooting at the Sikh gurdwara in Oak Creek, 
Wisconsin, reminded us all too vividly that our work is not 
done. This incident has highlighted the question whether to re-
examine the categories of religious groups that are listed on 
the FBI's hate crimes data collection form, a form that is used 
to capture the perpetrator's motivation and not the victim's 
background.
    In the next few weeks, the Civil Rights Division and the 
Community Relations Service will bring together a broad 
spectrum of religious organizations, including groups 
representing Sikh Americans, to elicit their views on what 
information should be collected. Separately, the FBI's panel of 
outside subject matter experts will hear from stakeholders.
    Today I am proud to share with you the Division's recent 
accomplishments in preventing, punishing, and deterring violent 
acts of bigotry and hate. We have aggressively responded to 
incidents where people use the hatred and fear spread by 
terrorists as an excuse to engage in their own acts of 
violence. All told, since 9/11, in cases targeting Arab, Middle 
Eastern, Muslim, Sikh, and South Asian individuals, the 
Department has brought 43 prosecutions against 55 defendants in 
cases with 47 convictions to date. Members of these groups are 
as much a part of the diverse fabric of America as anyone else.
    We are prosecuting cases where people are targeted and 
attacked because of their sexual orientation. Just last month, 
a defendant in Detroit, Michigan, pled guilty in Federal court 
for assaulting a man at a convenience store because he thought 
the man was gay.
    We are prosecuting violent acts of intolerance motivated by 
race, from the case of a young Native American with a 
developmental disability in New Mexico who was branded with a 
swastika by a hot wire hanger, to the cross burnings that still 
persist as painful symbols of bigotry and hate.
    We secured the conviction of defendants in Arkansas who 
chased a group of Latino men from a gas station with anti-
Latino slurs, ramming their truck into the victim's car until 
it ran off the road, flipped over, and burst into flames. These 
victims did nothing to deserve the violence they faced.
    We are also tackling the problem of hate crimes using the 
Internet. A New Jersey man who went by the name ``Devilfish'' 
pled guilty in Federal court to charges related to sending 
threats to employees of five Latino civil rights organizations.
    Under the leadership of Attorney General Eric Holder and 
Assistant Attorney General Thomas Perez, in Fiscal Year 2011 
the Division convicted 42 defendants on hate crimes charges, 
the largest number in more than a decade. And as of this month, 
the Division has charged 13 cases against 37 defendants under 
the Shepard-Byrd Act. Because this Act enhances the Division's 
ability to assist our law enforcement partners, starting in the 
five States without hate crime statutes, the Division has 
trained thousands of State and local authorities and community 
members on how to identify, investigate, and prosecute hate 
crimes in communities across this country.
    Our work in the Department of Justice is about the families 
that worship at a mosque in Murfreesboro, Tennessee, who 
received a bomb threat from a man in Texas last September 
because they are Muslim.
    Our work is about a gay man who was kidnapped and assaulted 
in Kentucky because he is gay.
    Our work is about a black man in Mississippi who was killed 
by being run over by a truck because he is black.
    Our work is about men and women in California who saw their 
church and their synagogue seriously damaged because they are 
Christian and because they are Jewish.
    Our work is about making communities divided by hatred and 
ignorance whole.
    It is sad that violent acts of hate continue to occur in 
2012, but we will continue to vigorously enforce the law so 
that all individuals enjoy the civil rights guaranteed by our 
Constitution.
    Thank you, and I look forward to your questions.
    [The prepared statement of Roy L. Austin, Jr., appears as a 
submission for the record.]
    Chairman Durbin. Thanks, Mr. Austin.
    Our next witness is Scott McAllister. He is the Deputy 
Under Secretary for Intelligence and Analysis, State and Local 
Program Office of the Department of Homeland Security. In that 
role, he manages DHS and interagency support to the national 
network of fusion centers. Previously, Mr. McAllister held a 
number of senior positions at the Florida Department of Law 
Enforcement, including assistant special agent in charge of the 
Fort Myers Regional Operations Center, assistant special agent 
in charge of domestic security and operational intelligence at 
the Headquarters Division, and deputy homeland security 
adviser. He has more than 36 years of State and local law 
enforcement experience. He is a graduate of the Executive 
Leaders Program at the Naval Postgraduate School, has a 
master's of science degree in management from Rosemont College.
    Mr. McAllister, please proceed.

  STATEMENT OF HON. SCOTT MCALLISTER, DEPUTY UNDER SECRETARY, 
  STATE AND LOCAL PROGRAM OFFICE, OFFICE OF INTELLIGENCE AND 
 ANALYSIS, U.S. DEPARTMENT OF HOMELAND SECURITY, WASHINGTON, DC

    Mr. McAllister. Thank you, Chairman Durbin.
    First of all, I would like to express condolences to the 
victims and their families of the folks that you mentioned 
earlier, as well as those others throughout the country that 
have suffered through acts of violent extremism.
    I appreciate the opportunity to testify today on behalf of 
the Department of Homeland Security's efforts to keep our 
Nation safe from evolving threats. As Secretary Napolitano has 
said many times, homeland security begins with hometown 
security.
    As part of our commitment to strengthening hometown 
security, we have worked with our Federal partners, 
specifically the FBI, to get the information, tools, and 
resources out of Washington, DC, and into the hands of the 
State and local officials across our country. Over recent years 
within the Department, we have worked aggressively to implement 
a distributed homeland security and counterterrorism 
architecture that enables us to improve support to secure our 
Nation's home towns. This architecture, comprised of several 
mutually reinforcing elements, to including improving 
production and dissemination of classified and unclassified 
information, while maturing State and local grassroots 
intelligence and analytical capabilities through the national 
network of State and local owned fusion centers; implementing 
the nationwide Suspicious Activity Reporting Initiative to 
establish standard processes to identify, report, analyze, and 
share suspicious activity reporting; and engaging the public 
through the nationwide expansion of ``If You See Something, Say 
Something'' campaign; also building our partnership to counter 
violent extremism.
    Successfully integrating all these elements while 
protecting individuals' privacy, civil rights, and civil 
liberties requires close coordination and cooperation between 
the Federal Government and our State and local partners.
    DHS' Office of Intelligence and Analysis has a unique 
analytical mission, enabling us to support and connect with 
front-line personnel to better protect their communities. We 
blend intelligence from DHS components, the intelligence 
community, State and local partners, and other stakeholders to 
produce homeland security-centric products. We then share those 
products through the national network of fusion centers. These 
products include actionable intelligence and analysis to ensure 
homeland security partners have the information they need to 
identify and disrupt threats.
    DHS also partners with the FBI to prepare joint 
intelligence bulletins pertaining to emerging threats that are 
targeted to our State and local partners and designed to 
increase their awareness. DHS has transformed the way in which 
we train front-line personnel through the national Suspicious 
Activity Reporting Initiative. This initiative, in partnership 
with the Department of Justice, is a comprehensive effort to 
train State and local law enforcement and homeland security 
partners in recognizing behaviors and indicators potentially 
linked to terrorism and terrorism-related crime, standardize 
how those observations are documented and analyzed, and ensure 
sharing of those reports with the FBI-led Joint Terrorism Task 
Forces for further investigation.
    Because an engaged and vigilant public is vital to 
protecting our communities, we have also continued to expand 
the ``If You See Something, Say Something'' public awareness 
campaign designed to raise public awareness of terrorism 
indicators and emphasize the importance of reporting suspicious 
activity to the proper law enforcement authorities.
    In the same vein, we believe that local authorities and 
community members are best able to identify individuals or 
groups residing within their communities who exhibit suspicious 
behaviors and to intervene before they commit an act of 
violence. Incorporating this belief into our everyday practice, 
the Department's efforts to counter violent extremism are 
threefold:
    First, we are working to better understand violent 
extremism through conducting extensive analysis and research on 
the behaviors and indicators of violent extremism and sharing 
those with our State and local partners.
    Second, we are strengthening partnerships within the State, 
local, and international partners, including the sharing of 
best practices and delivery of training courses.
    And, third, we are expanding support for community policing 
efforts in coordination with our Federal partners, to include 
the FBI and Department of Justice.
    In conclusion, we are confident that America is stronger 
and more prepared as a result of efforts to strengthen the 
homeland security enterprise, although threats from terrorists 
persist and continue to evolve. Recognizing this evolving 
landscape where threats may not emanate from any one 
individual, group, or place, we realize that it is essential 
for us to partner and engage with our State and local partners 
as well as the public, acknowledging that they may be best 
positioned to identify those threats. Proceeding with this 
shared responsibility, the Department is honored to be a 
partner in this effort to secure our great Nation.
    Thank you for the opportunity to outline DHS' efforts to 
prepare for and prevent terrorist attacks on the homeland, and 
I look forward to your questions.
    [The prepared statement of Hon. Scott McAllister appears as 
a submission for the record.]
    Chairman Durbin. Thanks, Mr. McAllister.
    Our next witness on this panel is Michael Clancy, Deputy 
Assistant Director for the Counterterrorism Division in the 
Federal Bureau of Investigation. Mr. Clancy has held numerous 
senior positions in the FBI, including special assistant to the 
National Security Branch Executive Assistant Director, section 
chief of the Domestic Terrorism Operations Section, assistant 
special agent in charge of the Richmond field office, and 
assistant section chief of the Strategic Information and 
Operations Center. He began his career with the FBI as a 
special agent in 1991. He served for a period of time as a 
trial lawyer. He has now rejoined the FBI.
    The floor is yours.

        STATEMENT OF MICHAEL A. CLANCY, DEPUTY ASSISTANT
          DIRECTOR, COUNTERTERRORISM DIVISION, FEDERAL
            BUREAU OF INVESTIGATION, WASHINGTON, DC

    Mr. Clancy. Good afternoon, Chairman Durbin and Members of 
this Committee. It is my honor to come before you to represent 
the Counterterrorism Division of the Federal Bureau of 
Investigation to discuss one of the highest priorities of the 
Bureau: the threat posed by domestic extremists. The turnout 
today is testament to the importance of this issue.
    On September 10, 2012, the FBI disseminated its National 
Terrorism Assessment on Domestic Terrorism. In the formulation 
of this assessment, the overall threat ranking considers 
intent, capability, and posture in its determination of the 
threat domestic extremist movements pose in the United States. 
The FBI assesses that economic and political events--foremost 
among them the coming Presidential election--are likely to 
provoke domestic extremists into a more active state, although 
this is unlikely to drive an increase in large-scale violence. 
Smaller, localized acts of violence committed by domestic 
extremists, however, cannot be dismissed. The FBI further 
assesses that domestic extremist movements pose a medium-to-low 
terrorism threat. Specific political and economic events 
scheduled in 2012 create the potential for greater volatility 
within domestic extremism than existed in the previous year.
    In recent months, the FBI has seen numerous examples of 
domestic terrorism and violence committed by lone offenders or 
small cells. For example, this year the FBI proactively 
dismantled an anarchist extremist cell comprised of five men 
who planned to blow up a bridge in Cleveland, Ohio. Four 
members of the cell have pleaded guilty, and the fifth member 
is going to trial. In November 2011, four members of a militia 
in Georgia were arrested for planning to acquire silencers and 
explosives to use against various U.S. Government targets in 
Atlanta, Georgia. To date, two of the subjects have been 
sentenced to 60 months' incarceration and 3 years of supervised 
release for conspiracy to possess an unregistered destructive 
device.
    This summer, we have witnessed multiple, high-profile lone-
offender shootings. The FBI investigated each of these 
incidents in partnership with Federal, State, local, and tribal 
law enforcement agencies as potential acts of domestic 
terrorism. Three of these shootings--at a movie theater in 
Aurora, Colorado; at a Sikh temple in Wisconsin; and at the 
Family Research Council headquarters in Washington, DC--
resulted in the combined deaths of 18 individuals and the 
wounding of over 50.
    Significant political events and scheduled international 
and economic meetings, combined with ongoing economic concerns, 
create the potential for greater volatility within domestic 
extremism in 2012 than existed in the previous year. While all 
domestic extremist movements pose a threat, the potential 
outcomes are especially relevant in the current environment:
    We have election-related events which heighten the 
opportunity for anarchist extremism in 2012;
    The 2012 election process may revitalize recruitment 
efforts for the white supremacist extremist movement;
    Militia extremists are expected to continue targeting law 
enforcement and government officials in response to any 
recently enacted legislation that is perceived as infringing on 
their constitutional rights;
    White-collar crime by those in the extremist ``sovereign 
citizen'' antigovernment movement who exploit the housing 
crisis could continue if the housing sector of the economy 
remains weak throughout the year;
    Environmental extremists may engage in criminal activity--
including the destruction of property--if they perceive that 
legislative efforts to protect and preserve the environment are 
ineffective or unsuccessful.
    Over the next year, domestic extremists are likely to 
maintain the intent and capability to pose a persistent threat 
involving smaller-scale bombings, assaults, firearms and 
explosives violations, arson, white-collar crime, threats, and 
other violations of Federal law.
    The FBI will continue to enhance its crucial partnerships 
with Federal, State, local, tribal, and foreign law enforcement 
agencies, other members of the U.S. intelligence community, and 
the private sector to combat the unrelenting threat of domestic 
terrorism.
    In every domestic terrorism investigation--and indeed, in 
every investigation--we in the Bureau strive to balance the 
need to keep the American public safe with the need to protect 
constitutional rights, including the First Amendment rights to 
free speech and freedom of assembly. Intelligence and 
technology are key tools we use to stay ahead of those who 
would do us harm. Yet as we evolve and update our investigative 
techniques and our use of technology to keep pace with today's 
complex threat environment, we must always act within the 
confines of the rule of law and the safeguards guaranteed by 
the Constitution. It is not enough to stop the terrorists; we 
must always do so while maintaining civil rights and civil 
liberties. Following the rule of law and upholding civil rights 
and civil liberties--these are not our burdens. These are what 
make all of us safer and stronger. In the end, we in the FBI 
will be judged not only by our ability to keep Americans safe 
from terrorism, but also by whether we safeguard the civil 
rights and civil liberties for which we are fighting and 
maintain the trust of the American people.
    Thank you for the opportunity to address the Subcommittee 
on the FBI's efforts to counter domestic terrorism.
    [The prepared statement of Michael A. Clancy appears as a 
submission for the record.]
    Chairman Durbin. Thank you, Mr. Clancy.
    Last night, as I was preparing for this hearing, I started 
to dig through my desk drawer to find a little book that I keep 
of information I pick up as I travel around, and I finally 
found it. It was a book that I was carrying with me 3 months 
after 9/11. And I had just landed at O'Hare Airport, and I got 
in the cab line, and the first cab to come up as a driver had a 
man wearing a turban. And I got inside and sat down and looked 
at his name. It was Richard Basra. He was from a suburb of 
Chicago. This was 3 months after 9/11. I said, ``How is it 
going for you?'' He said, ``Okay.'' I said, ``Are people giving 
you any grief, any problems because of the way you are 
dressed?'' ``Oh, sure,'' he said, ``some people are. Some 
people are mean, but not many. Most people are just fine.'' And 
I said, ``Well, I am glad it is going well for you.''
    He said, ``Let me show you something.'' He reached over and 
he pulled down the visor on the passenger side, and there was a 
picture of a young American soldier. He said, ``This is my son, 
Michael. He is in the Special Forces in the United States Army. 
He was in Kosovo, and now I am not sure where he is.'' But this 
was right after 9/11. ``I think he may be in Afghanistan.'' He 
said, ``His brother is coming out of high school and is going 
to enlist in the Marine Corps.''
    I have told that story a dozen times, I am sure, because it 
struck me as a definitive story about who we are as Americans, 
and the prejudice of some people ignores the reality of the 
fact that patriotic, peace-loving Americans come in every 
color, every religion, every background.
    Mr. Austin, one of the things that puzzles me is this: A 
few months after that, Amardeep Singh, who is here today on 
behalf of the Sikh Coalition, came to see me, and he said, you 
know, right after 9/11, there was a Sikh American who was 
killed in Arizona. It was obviously a hate crime. It was in all 
of the stress and anger that came out of 9/11. He said, ``Would 
you put in a resolution''--and we have had resolutions saying 
do not discriminate against Muslims and so forth. ``Would you 
put one in on behalf of those of the Sikh religion?'' And I 
did, and it passed overwhelmingly in a bipartisan way.
    So it was clear that at least for the last 10 or 11 years, 
there has been ample evidence of prejudice against Sikh 
Americans, even violence against Sikh Americans.
    Now, the Department of Justice collects information on hate 
crimes. There is a Hate Crime Incident Report, and it lists 
many religions, and even those with no religion. But it does 
not list the Sikh religion. I know for 2 years Sikh Americans 
have been asking that there be a special category on the Hate 
Crime Report so that we can keep track.
    A little later on this afternoon, Harpreet Singh is going 
to testify here. He lost his mother at Oak Creek, and he is 
going to say, ``I came here today to ask the Government to give 
my mother the dignity of being a statistic.''
    Why don't we have a special place here for identifying hate 
crimes against Sikh Americans?
    Mr. Austin. Senator, the Department of Justice has met 
regularly with Sikh Americans and other faiths, and we have 
heard this concern, and we are going to take action with 
respect to this concern. Today, DAG Jim Cole has announced that 
the Civil Rights Division and the Community Relations Service 
are going to bring together a broad array of religious groups 
to address exactly what kinds of statistics should be kept, and 
we plan to invite and have spoken to the Sikh community as 
well. And the FBI has a process that is gone through before 
determining how the form is changed. And the Department of 
Justice will play an active role with respect to that process 
to ensure that the form properly reflects those who are 
perpetrators, those who are victimized by hate crimes.
    Chairman Durbin. Things move pretty slowly at the Federal 
level, and the request has been there for more than 2 years. 
Can you give me some kind of indication of when the decision 
might be made?
    Mr. Austin. There will be a meeting in October, mid-
October, in which what the Department of Justice finds will be 
presented to an FBI committee. At that point, the decision of 
the Department of Justice will be known.
    Chairman Durbin. Thank you. I think in light of the 
terrible incident in Oak Creek, Wisconsin, that this would be a 
good thing for us to do as expeditiously as possible.
    You mentioned your background when it came to church 
bombings. It was not that long ago, just a few years back, when 
we had the incidents of largely African American houses of 
worship and churches that were being fire-bombed in various 
parts of the country, some parts of the South.
    As a result of that, we formed an interagency task force 
and tried to break through some of the usual paths of 
investigation and enforcement and expedite that effort. Can you 
tell me if you believe that that is appropriate here under the 
circumstances with the acts of violence that we have seen at 
the Sikh temples as well as mosques?
    Mr. Austin. Senator, I believe that under this Department 
of Justice, there has been an incredible amount of cooperation 
across agencies on all types and levels of crime. The fact that 
DHS and the FBI and a line attorney largely from the Department 
are sitting here together right now is a testament to that 
level of cooperation. I think that this administration is 
dealing with these crimes as aggressively as possible and 
working with every tool that we have in our arsenal to do so.
    I do not know whether a new formal committee is necessary 
because I believe that the work is being done right now by 
those of us who are working on these issues.
    Chairman Durbin. Well, that type of task force under 
President Clinton had dramatic positive results, so I would 
commend it to you as a model that you would at least consider, 
if not explore, to see if we could address this pattern of 
discrimination against Muslims, Arabs, Sikhs, and South Asian 
Americans.
    I would like to ask you, Mr. Clancy, the individual who was 
engaged in the terrible incident at Oak Creek, Wisconsin, was a 
man whose name was Wade Michael Page. He killed Harpreet Singh 
Saini's mother and five other individuals, and he was a well-
known white supremacist. He was being tracked by the Southern 
Poverty Law Center and the Anti-Defamation League. He is dead, 
so I assume there is not an ongoing criminal investigation. I 
hope you will be able to answer this question. Was there a 
breakdown in intelligence here that we knew this man to be 
dangerous and that he was not ferreted out, tracked, or called 
in and investigated before this incident? Was he being tracked 
by our intelligence community? Were there any warnings issued 
to the Sikh community about potential threats? And was there 
any assistance provided to the community to protect them under 
the circumstances?
    Mr. Clancy. Senator, I will tread lightly here as it is an 
ongoing investigation, but I can tell you this: We did know of 
this individual. Certainly as the Southern Poverty Law Center 
pointed out, they knew of this individual as well. We did not 
have a case open on him. He was not what we would characterize 
as a predicated subject. His activities had not risen to the 
level that we would be able to, under our Attorney General 
guidelines, open an investigation on him.
    But like many thousands of people, he was an attendee at 
what could be described as white supremacist conferences 
throughout the country and was heavily involved in the white 
supremacist music scene. So we were aware of him as a 
peripheral figure, but he never emerged as more than that. We 
never had any information on him pertaining to violent acts 
against anybody. He was certainly covered in tattoos which 
indicated his affiliation with different white supremacist 
groups. He dressed like that. None of those things are, of 
course, against the law. He engaged in a lot of hate speech, 
again, not against the law.
    So while we were aware of him, we did not have an open 
investigation on him, nor did we ever have any information that 
he posed a threat to any group, particularly Sikhs.
    Chairman Durbin. Mr. McAllister, the Department of Homeland 
Security provided us with background on your work with the 
Jewish community. Unfortunately, there are many incidents of 
anti-Semitism which rise to crimes of violence, many incidents 
of property destruction in the name of anti-Semitism. With your 
extensive work with the Jewish community, you have tried to 
provide some information sharing to keep them safe and to warn 
them when something might be a danger.
    DHS also participates with the Jewish community in the 
Secure Community Network, which share information on crisis 
situations and try to increase security awareness. You 
administer the nonprofit security grant program, providing 
money and assistance to nonprofit organizations to improve 
security of potentially vulnerable infrastructure, like houses 
of worship, schools, and community centers. This year, Jewish 
organizations received almost $10 million in funding, and I 
commend the Department of Homeland Security for working very 
closely with the Jewish community under these circumstances.
    Is this a model that we should be using to protect other 
vulnerable religious communities like Muslims and Sikhs?
    Mr. McAllister. Thank you, Senator, for that question, and 
we appreciate you pointing the good work that the Department is 
doing in that arena.
    The Secretary has what is known as a Homeland Security 
Advisory Council, and there is also a subcommittee to that that 
consists of faith-based organizations that cover a broad 
breadth of a variety of different faith-based communities and 
organizations. We meet with them regularly. They provided 
recommendations in order to better improve our ability to 
outreach and collaborate with the various faith organizations 
and communities throughout the United States.
    On the heels of some of these tragic events that have 
occurred, we have also gone and contacted those folks in order 
to discuss a variety of different topics. One is to provide 
them the information we had at the time of whatever the tragic 
event was at that moment, also work in dialogue in order to 
determine what we can do in order to spread the accurate 
information, in order to dispel any disinformation that could 
cause angst within the communities, as well as work on actual 
condemnation of acts of violent extremism.
    So it is an open dialogue. It is actively being pursued. It 
is part of our countering violent extremism initiative. And we 
are also working with not only our faith-based communities but 
also examining those lessons learned and those indicators from 
these tragic events and communicating those out through the 
form of training to our State, local, and private sector folks. 
We provide our faith-based organizations information from our 
protective security advisers when it comes to what they can do 
in order to be cognizant of suspicious behaviors or packages 
and the like around their facilities, as well as the ability to 
report those things, in addition some protective measures in 
order to strengthen their ability to thwart such an event.
    Chairman Durbin. Mr. Clancy, according to Daryl Johnson, 
who will testify on the next panel, the FBI published a public 
annual report entitled ``Terrorism in the United States from 
1980 to 2005.'' Mr. Johnson believes that report was a valuable 
resource for law enforcement. Why did the FBI stop the issuance 
of this report? Do you agree with Mr. Johnson that the FBI 
should consider resuming it?
    Mr. Clancy. I think so. The reports are valuable for our 
law enforcement partners out there and for the public as well 
to see what we are looking at, what the trends are.
    The bottom line is, when it comes to looking at groups, the 
FBI used to have a tactical approach to cases, but now we are 
more strategic focused and looking over the horizon and trying 
to predict behaviors and threats. And I think those types of 
reports are certainly valuable in that regard.
    Chairman Durbin. In your testimony, you referenced the 
FBI's National Terrorism Assessment on Domestic Terrorism, 
which you published last week. Is this an unclassified 
document? And if so, would it be available?
    Mr. Clancy. It is unclassified, but it is ``Official Use 
Only,'' so it is limited distribution.
    Chairman Durbin. I hope we can get in your distribution 
chain. I would like to see it.
    Mr. Clancy. I would be happy to provide that to you, 
Senator.
    Chairman Durbin. Thank you very much.
    Mr. McAllister, Daryl Johnson, as I mentioned earlier, who 
will also testify a little later, claims that the DHS has 
actually downsized the team of analysts working full-time on 
non-Islamic domestic terrorism. Mr. Johnson used to head up 
that team. He says the DHS has reduced the number of analysts 
from five to one. My staff requested information about this in 
advance of the hearing. We were told it was classified. 
However, a DHS official is quoted in The Washington Post story 
saying, ``The number of analysts on a daily basis has decreased 
somewhat.''
    So how many DHS analysts focus on non-Islamic domestic 
terrorism?
    Mr. McAllister. Well, Senator, some of that information as 
far as the specific numbers of individuals would be considered 
sensitive. But the Department is fully equipped in order to 
look at violent extremist acts, whether it is stemming from 
international or domestic in nature. We provided an 
organizational chart earlier to staff before this hearing that 
kind of articulates how the breakdown is structurally within 
the Office of Intelligence and Analysis. But, again, it goes 
toward our ability in the Department's daily activity when it 
comes to countering violent extremism, where we work to strive 
toward providing the tools and information necessary for those 
indicators and behaviors of violent extremism, regardless of 
whether it is domestic or international, to not only our 
personnel but also our State and local partners and the 
community.
    Chairman Durbin. Thank you. I want to thank this panel. My 
colleagues may be sending in some written questions, which I 
hope you will respond to on a timely basis so the record can be 
complete. But your testimony today is much appreciated, and we 
will follow through with you on some of the questions that were 
asked. So I thank you and you are excused at this point.
    I will also, with unanimous consent, enter a statement in 
the record from our Chairman, Senator Leahy, who cannot be with 
us this afternoon but has a strong interest in the human rights 
and civil rights issues, and it will be entered into the 
record.
    [The prepared statement of Chairman Patrick J. Leahy 
appears as a submission for the record.]
    Chairman Durbin. Let me ask that the second panel be 
brought to the table.
    If I could ask the witnesses to please stand for the 
customary oath. Would you raise your right hand? Do you 
solemnly swear that the testimony you are about to give will be 
the truth, the whole truth, and nothing but the truth, so help 
you God?
    Mr. Saini. I do.
    Mr. Johnson. I do.
    Professor Jacobs. I do.
    Chairman Durbin. Thank you. Let the record indicate that 
the witnesses have all answered in the affirmative.
    Senator Kohl is on his way, and I am going to hold off on 
the introduction of Mr. Saini until he arrives. I will do by 
way of general introduction our other two witnesses.
    James Jacobs is the Warren Burger Professor of Law at the 
New York University School of Law, where he has been a faculty 
member since 1982. He specializes in criminal law, criminal 
procedure, and a broad range of criminal justice issues, 
including hate crime. In 1998, Oxford University Press 
published his book, ``Hate Crimes: Criminal Law and Identity 
Politics.'' Professor Jacobs is a 2012-13 Guggenheim Fellow. He 
received his B.A. from Johns Hopkins University and law degree 
from the University of Chicago.
    I want to thank Senator Graham and his staff for working 
cooperatively with us on this hearing and note that Senator 
Graham asked that we invite Professor Jacobs as a witness, and 
we are honored that you would join us today. Thank you very 
much.
    I am going to introduce the other witnesses in the hopes 
that Senator Kohl can be in the room in just a moment.
    Daryl Johnson, whom I mentioned in an earlier part of the 
Committee hearing, is an expert on domestic terrorism and is 
the chief executive officer of DT Analytics, a private 
consulting company. He also serves as a part-time instructor on 
domestic terrorism at the ATF National Academy. Previously, Mr. 
Johnson was the senior domestic terrorism analyst at the U.S. 
Department of Homeland Security's Office of Intelligence and 
Analysis where he led a team of analysts responsible for 
analyzing domestic extremist activity. Prior to his service at 
DHS, Mr. Johnson was the lead expert on violent antigovernment 
groups at the Bureau of Alcohol, Tobacco, Firearms, and 
Explosives. He began his Federal career as a counterterrorism 
analyst for the U.S. Army.
    I am going to hold off, as I mentioned, until Senator Kohl 
arrives to introduce you formally, Mr. Saini. Thank you for 
being here.
    Let me start then with Mr. Johnson, if you would like to 
testify, and then Mr. Jacobs and Mr. Saini.

              STATEMENT OF DARYL JOHNSON, FOUNDER
          AND OWNER, DT ANALYTICS, LLC, WASHINGTON, DC

    Mr. Johnson. Good afternoon, Mr. Chairman and Members of 
the Committee. Thank you for giving me this opportunity to 
appear before you to discuss the significant issue of domestic 
terrorism, and in particular the threat from violent 
extremists.
    The rising threat of domestic terrorism within the United 
States should not diminish our focus on deterring threats from 
al Qaeda and its affiliates; rather, our Nation's intelligence 
and law enforcement resources need to be flexible and resilient 
in their ability to combat terrorism from all sources of 
violent extremism, including domestic non-Islamic extremists.
    The threat from domestic terrorism motivated by extremist 
ideologies is often dismissed and overlooked in the national 
media and within the U.S. Government. Yet we are currently 
seeing an upsurge in domestic non-Islamic extremist activity 
specifically from violent right-wing extremists. While violent 
left-wing attacks were more prevalent in the 1970s, today the 
bulk of violent domestic activity emanates from right-wing 
extremists. Recent acts of domestic terrorism have instilled 
fear within the U.S. populations as extremists attempt to force 
their social and political agendas through violence.
    Since the 9/11 terrorist attacks, Muslim extremists within 
the United States, either aligned with al Qaeda's ideology or 
other perverse interpretation of violent jihad, have carried 
out five attacks on U.S. soil. These attacks resulted in 17 
deaths, 13 of which were from a single violent act at Fort 
Hood. There have also been numerous arrests related to alleged 
Muslim extremist terrorists plotting in the U.S. since 9/11.
    In contrast, there has also been a multitude of domestic 
non-Islamic extremist attacks, many of which have resulted in 
deaths and injuries over the past 4 years. In particular, 
domestic right-wing extremists trumped all other forms of 
ideologically motivated violence in the U.S. for number of 
deaths during this time period.
    Some may argue that right-wing extremist attacks in the 
U.S. are more prevalent than homegrown Muslim extremists 
because they represent multiple movements, such as white 
supremacists, militia extremists, sovereign citizens, and 
antiabortion extremists. This is simply not true. I would argue 
that homegrown Muslim extremists in the U.S. have an equally if 
not more diverse set of extremist causes and radical Islamic 
movements to choose from, including al Qaeda and its 
affiliates, Al-Shabaab, Hezbollah, Hamas, just to name a few.
    Since the 2008 Presidential election, domestic non-Islamic 
extremists have attacked 27 law enforcement officers, killing 
16. Over a dozen mosques have been attacked with firebombs, 
likely attributed to individuals embracing Islamophobic 
beliefs. In May 2009, an abortion doctor was murdered while 
attending church. Two other assassination plots against 
abortion providers were thwarted during 2011, and six women's 
health care clinics were attacked with explosive and incendiary 
devices within the past 2 years.
    Since 2010, there have been multiple plots to kill ethnic 
minorities, police, and other government officials by militia 
extremists and white supremacists in our country. In January 
2010, we had a tax resister deliberately crash his small plane, 
filled with a 50-gallon drum of gasoline, into an IRS 
processing center in Austin, Texas, injuring 13 people and 
killing a government employee.
    The following year, three incendiary bombs were mailed to 
government officials in Annapolis, Maryland, and Washington, 
DC. Also, in January 2011, a backpack bomb was placed along a 
Martin Luther King parade route in Spokane, Washington, meant 
to kill and injure participants in a civil rights march.
    In August 2012 alone, a white supremacist killed six 
worshipers at a Sikh temple in Oak Creek, Wisconsin; sovereign 
citizens have shot four sheriff deputies, killing two, in St. 
John's Parish, Louisiana; and four active-duty U.S. army 
soldiers who had formed an antigovernment militia group and 
were hoarding weapons and ammunition in an alleged plot to 
overthrow the Government, were charged in the deaths of two 
associates who they worried might tip law enforcement to their 
clandestine activities.
    There was also what appears to have been an incident of 
left-wing domestic terrorism. A single-issue extremist 
reportedly shot a guard at the Family Research Council office 
here in Washington, DC. Unfortunately, these are only the 
latest manifestations of domestic non-Islamic extremist 
violence in the homeland.
    It is also important to note that eight members of the 
Hutaree, an extremist militia in Michigan, that were acquitted 
this year of plotting to kill police officers and planting 
bombs at their funerals, had an arsenal of weapons at their 
disposal that was larger than all 230-plus Muslim plotters and 
attackers charged in the U.S. since 9/11 combined.
    Mr. Chairman and Members of the Committee, the Federal 
Government must do more to combat domestic terrorism within the 
U.S. Our failure to act now will assuredly embolden the enemy 
and bring more attacks.
    At the Federal level, there is a shortage of analysts 
assigned to monitor and assess domestic extremist activity in 
the U.S. Currently, the FBI is the only Federal agency that has 
devoted multiple full-time resources to research and analyze 
domestic terrorist tactics, tradecraft, and emerging trends. 
Today the DHS has few resources conducting strategic analysis 
on domestic terrorist threats. More resources are needed. Other 
Federal agencies should also consider devoting analysts full-
time to this subject rather than part-time or on an ad hoc 
basis.
    While great strides have been made with respect to 
information sharing since the 9/11 terrorist attacks, 
jurisdictional infighting remains among departments and 
agencies as well as communication gaps between levels of 
government--local, State, and Federal. State and local fusion 
centers have filled this important role in the information-
sharing gap, but more can be done.
    Many law enforcement officers and analysts who looked at 
domestic terrorism issues during the 1990s have retired or have 
moved on to other assignments, which leaves a massive void in 
knowledge and experience. A whole generation of State and local 
officers has not been trained and has no clue what to look for.
    Some civil rights and civil liberties organizations, 
particularly within the U.S. Government, fail to recognize the 
role extremist ideologies play in motivating extremists to 
carry out acts of violence. As a result, they have severely 
curtailed monitoring efforts within our Nation's law 
enforcement agencies. Monitoring a person's behavior becomes 
all the more clear when coupled with an understanding of 
extremist beliefs. As a result, there needs to be a balanced 
approach to intelligence analysis and threat assessment 
comprising both extremist ideology and suspicious behavior.
    At DHS, the most prevalent hurdle to timely dissemination 
of domestic terrorism-related information is the Group of Six 
(G6) Review Process. The G6 Review Process as it currently 
stands negatively impacts I&A analysis because some of the 
changes in products seem to be made using standards that are in 
direct conflict with the intelligence community analytic 
standards. G6 Review can adversely affect an analyst's 
objectivity and political neutrality. The apparent purpose and 
intent of the G6 Review Process is to screen products for 
objectionable words, phrases, or topics that are politically 
sensitive or perceived as offensive to certain groups of 
people.
    It is important that the U.S. Government take the lead in 
developing new strategies and tools for law enforcement and the 
courts to better deal with problems associated with domestic 
extremism.
    To conclude, Mr. Chairman, I thank you again for allowing 
me to testify about this most important issue facing our 
Nation. For many years, we have focused on the threat from al 
Qaeda and homegrown Muslim extremists. It is now time to also 
strengthen our resolve to combat violent domestic non-Islamic 
extremism in all of its forms.
    For the record, I have offered some of my insights 
concerning the domestic terrorist threat, our current 
limitations, and best practices in my written testimony. I hope 
that some of these points will resonate with Committee Members 
and inspire you to explore new ways to mitigate this threat and 
prevent future acts of violence, and I look forward to 
responding to any questions you may have.
    [The prepared statement of Daryl Johnson appears as a 
submission for the record.]
    Chairman Durbin. Thanks, Mr. Johnson.
    Our next witness is Harpreet Singh Saini, the son of 
Paramjit Kaur Saini, who was tragically shot and killed in Oak 
Creek, Wisconsin, on August 5, 2012. I am pleased to recognize 
Senator Herbert Kohl, the senior Senator from the State of 
Wisconsin, a long-time Member of the Judiciary Committee, to 
introduce him formally. Senator Kohl.
    Senator Kohl. Thank you for holding this important hearing, 
Chairman Durbin. While I am not a Member of the Subcommittee, I 
thank you for allowing me to speak here today.
    I would like to introduce Harpreet Singh Saini. Harpreet 
lives in Oak Creek, Wisconsin, and is a freshman at Milwaukee 
Area Technical College majoring in law enforcement. Harpreet 
lost his mother in the tragic shooting at the Sikh temple in 
Wisconsin last month. Five other members of the Sikh community 
lost their lives on that tragic day, and several others were 
critically wounded, including a law enforcement officer who 
responded to the scene.
    I know I speak for the Committee when I tell you, Harpreet, 
how sorry we are for the loss of your mother and friends. 
Though we can never know the pain that you have endured, be 
assured that we are outraged and deeply saddened by the violent 
assault on your peaceful community.
    Harpreet's mother, Paramjit Kaur, was a dedicated wife, 
mother, friend, and neighbor, profoundly committed to her 
faith. Her sons, Harpreet and Kamaljit, who is also with us 
today, plan to pursue careers in law enforcement. I am sure 
your mother would be very proud. I also want to acknowledge 
Milwaukee County Executive Chris Abele, who is in the audience 
today, and ask that his testimony be submitted for the record.
    [The prepared statement of Hon. Chris Abele appears as a 
submission for the record.]
    Senator Kohl. August 5th was a tragic day not only for Sikh 
Americans but for all Americans, as is any day extremist hate 
groups target people of faith with harassment and violence. 
Unfortunately, although the Justice Department tracks crimes 
against other religious groups, it does not track crimes 
against Sikhs, so I am urging the Justice Department to start 
doing so. Not only would it allow law enforcement to better 
understand the scope of the problem, it will also encourage 
Sikhs to report when they are victims. These are steps that we 
must take to ensure that we never again endure a tragedy like 
the one in Oak Creek.
    We thank you for being here today to share your story with 
us, and I thank you, Mr. Chairman.
    Chairman Durbin. Thank you, Senator Kohl.
    Mr. Saini, please proceed. Excuse me. You need to turn on 
the microphone right in front of you there. Okay.

               STATEMENT OF HARPREET SINGH SAINI,
                      OAK CREEK, WISCONSIN

    Mr. Saini. My name is Harpreet Singh Saini. I would like to 
thank Senator Durbin, Ranking Member Graham, and the entire 
Subcommittee for giving me the opportunity to be here today. I 
am here because my mother was murdered in an act of hate 45 
days ago. I am here on behalf of all the children who lost 
parents or grandparents during the massacre in Oak Creek, 
Wisconsin.
    A little over a month ago, I never imagined I would be 
here. I never imagined that anyone outside of Oak Creek would 
know my name, or my mother's name, Paramjit Kaur; or my 
brother's name, Kamaljit Singh Saini. Kamal is here with me 
today.
    As we all know, on Sunday, August 5, 2012, a white 
supremacist fueled by hatred walked into our local gurdwara 
with a loaded gun. He killed my mother while she prayed. He 
shot and killed five more--men. All of them were fathers, and 
all of them had a turban like me. And now people know all our 
names: Sita Singh. Ranjit Singh. Prakash Singh. Suveg Singh. 
Satwant Singh Kaleka.
    This was not supposed to be our American story. This was 
not my mother's dream.
    My parents brought Kamal and me to America in 2004. I was 
only 10 years old. Like many other immigrants, they wanted us 
to have a better life, a better education. In the land of the 
free. In the land of diversity.
    It was a Tuesday, 2 days after our mother was killed, that 
my brother Kamal and I ate the leftovers of the last meal she 
had made for us. We ate her last rotis--which are a type of 
South Asian flatbread. She had made the rotis from scratch the 
night before she died. Along with the last bite of our food 
that Tuesday came the realization that this was the last meal 
made by my mother's hand that we will ever eat in our lifetime.
    My mother was a brilliant woman. Everyone knew she was 
smart, but she never had the chance to get a formal education. 
She could not. As a hard-working immigrant, she had to work 
long hours to feed her family, to get her sons educated, to 
help us achieve our American dream. This was more important to 
her than anything else.
    Senators, my mother was our biggest fan, our biggest 
supporter. She was always there for us. She always had a smile 
on her face.
    But now she is gone. Because of a man who hated her because 
she was not his color? His religion?
    I just had my first day of college. And my mother was not 
there to send me off. She will not be there on my graduation or 
my wedding day. She will not be able to meet her grandchildren.
    I want to tell the gunman who took her from me: You may 
have been full of hate, but my mother was full of love.
    She was an American. And this was not our American dream.
    It was not the American dream of Prakash Singh, whose 
children found him lying in a pool of blood that morning. They 
shook his body and cried, ``Papa! Get up!'' But he was gone.
    It was not the American dream of Suveg Singh Khattra, a 
retired farmer who came here to be with his family. His family 
found him face down, a bullet in his head, his turban thrown to 
the side.
    It was not the American dream of Satwant Singh Kaleka, 
president of the gurdwara, who was killed while bravely 
fighting the gunman.
    It was not the American dream of Sita Singh and Ranjit 
Singh, two brothers who sang prayers for our community. After 
16 years apart, their family came to America for the first time 
for their funerals.
    And it was not the American dream of Santokh Singh or 
Punjab Singh who were injured in the massacre. Punjab Singh's 
sons are always by his side, but he may never fully recover 
from his multiple gunshot wounds.
    We ache for our loved ones. We have lost so much. But I 
want people to know that our heads are held high.
    My mother was a devout Sikh. Like all Sikhs, she was bound 
to live in Chardi Kala, a state of high spirits and optimism. 
Like her, my brother and I work every day to be in a state of 
high spirits and optimism.
    We also know that we are not alone. Many people have sent 
us letters, attended vigils, and gave us their support: Oak 
Creek's mayor and police chief, Wisconsin's Governor, the 
President and the First Lady. It is their support that gives me 
the strength to come here today.
    Senators, I came here today to ask the Government to give 
my mother the dignity of being a statistic. The FBI does not 
track hate crimes against Sikhs. My mother and those shot that 
day will not even count on a Federal form. We cannot solve a 
problem we refuse to recognize.
    Senators, I also ask that the Government pursue domestic 
terrorists with the same vigor as attackers from abroad. The 
man who killed my mother was on the watchlists of public 
interest groups. I believe the Government could have tracked 
him long before he killed my mother.
    Finally, Senators, I ask that you stand up for us. As 
lawmakers and leaders, you have the power to shape public 
opinions. Your words carry weight. When others scapegoat or 
demean people because of who they are, use your power to say 
that is wrong.
    So many people have asked Sikhs to simply blame Muslims for 
attacks against our community or just say, ``We are not 
Muslim.'' But we will not blame anyone else. An attack on one 
of us is an attack on all of us.
    I also want to be a part of the solution. That is why I 
want to be a law enforcement officer like Lieutenant Brian 
Murphy, who saved so many lives that day. I want to protect 
other people from what happened to my mother. I want to combat 
hate--not just against Sikhs but against all people. Senators, 
I know what happened at Oak Creek was not an isolated incident. 
I fear it may happen again if we do not stand up and do 
something.
    I do not want anyone to suffer what we have suffered. I 
want to build a world where all people can live, work, and 
worship in America in peace, because you see, despite 
everything, I still believe in the American dream. In my 
mother's memory, I ask that you stand up for that dream it with 
me, today and in the days to come.
    Thank you for considering my testimony.
    [The prepared statement of Harpreet Singh Saini appears as 
a submission for the record.]
    Chairman Durbin. Mr. Saini, that testimony was touching.
    Mr. Saini. Thank you.
    Chairman Durbin. It was such a tribute to your mother, to 
your family, to your religion, and to your community, and 
really to the values of this Nation. So many things that you 
said need to be heard, not just in this hearing room but across 
this country. And I hope that the spirit that you bring will 
teach all of us to be more tolerant and to fight forms of 
discrimination wherever we can, whenever we can. Thank you for 
your courage and your testimony today.
    Professor Jacobs from New York University, you are invited 
to testify.

 STATEMENT OF JAMES B. JACOBS, CHIEF JUSTICE WARREN E. BURGER 
   PROFESSOR OF CONSTITUTIONAL LAW AND THE COURTS, NEW YORK 
          UNIVERSITY SCHOOL OF LAW, NEW YORK, NEW YORK

    Professor Jacobs. Thank you, Senator. Thank you for 
inviting me and giving me the opportunity to share my views 
with the Subcommittee.
    I, too, was touched and very moved by Mr. Saini's 
presentation.
    I have been a critic of hate crime laws for the last 20 
years and think the whole movement to recriminalize violent and 
other crime with hate crime laws was a wrong turn that will 
turn out to be more divisive than consensus-building.
    I hasten to add that I deplore discrimination and bias and, 
of course, violent crime motivated by bias. However, all 
violent crime, no matter what the bias or motivation, is 
deplorable and, therefore, deservedly punished. I do not think 
it is desirable or useful to create a hierarchy of crimes and 
victims according to the racial, religious, gender, and sexual 
orientation identity of the perpetrator and victim. Ultimately, 
it is not desirable for this society to redefine crime in terms 
of which identity groups are doing the most offending and which 
are most offended against. Unlike other anti-discrimination 
laws, hate crime laws can be and are used to punish members of 
minority groups.
    The subjectivity involved in labeling offenses as ``hate 
crimes'' or ``bias crimes'' generates unnecessary and divisive 
controversy. The early efforts by hate crime proponents to 
resist including gender-motivated violence as a hate crime was 
regarded by women as insensitive at best and blatantly 
discriminatory at worse. The subsequent effort by many to 
resist including anti-gay motivation as a bias crime trigger 
was similarly perceived as discriminatory, offensive, and 
intolerant. Today, we have heard, understandably, that the 
failure to explicitly recognize anti-Sikh bias as a hate crime 
category causes hurt and resentment. Hate crime laws themselves 
discriminate.
    Determining what is a bias crime is fraught with 
difficulty, thus frustrating the aims of the Federal Hate Crime 
Statistics Act. Many friends of that Act now criticize it for 
failing to recognize the actual bias in the minds and hearts of 
criminals. Some offenders are not caught and, therefore, of 
course, we do not know their motivations in choice of victim, 
even if they had a clear motivation. It is usually difficult to 
determine an apprehended offender's motivations. Most 
offenders, especially of extreme violence, are very confused 
and disturbed. Is it useful or valuable to highlight their 
biases? Even if police and prosecutors believe that they can 
determine an offender's motivation, it is often very difficult 
to prove.
    One need only recall the recent New Jersey controversy: 
whether Dharun Ravi's effort to photograph his roommate Tyler 
Clementi's homosexual encounter should have been charged as a 
bias crime. While all Americans could agree in condemning this 
invasion of a roommate's privacy, there was great division and 
controversy over whether Ravi's punishment should be doubled or 
tripled because the roommate was gay. The whole fight was so 
unnecessary since invasion of privacy is punishable in New 
Jersey by a maximum punishment of 5 years in prison, surely 
more than adequate to satisfy the goals of the criminal law. 
Inadequately severe criminal sentences is not a problem for our 
society.
    In the 1980s, when the term ``hate crime'' was first 
invented, its proponents said they meant for the laws to be 
used to punish murderous plots by members of neo-Nazi and 
similar hard-core hate groups bent on terrorizing and 
destroying whole groups and communities. The reality is that 
bias crime prosecutions are far more likely to be directed 
against the Archie Bunkers of the world rather than the white 
supremacist Tom Metzgers of the world. Indeed, most hate crime 
prosecutions involve young defendants, frequently mixed-up 
teenagers, who commit low-level offenses such as criminal 
mischief and simple assault, typically escalating from 
spontaneous altercations at a party, in a parking lot, or at a 
school event. Many cases that initially are called hate crimes, 
upon closer inspection, involve serious mental illness rather 
than ideological commitment or an organized campaign. It is 
worth pondering that the Federal hate crime statute, passed in 
2009 to bring Federal law enforcement resources to bear on 
hard-core murderous hate crime groups, is this week being used 
to prosecute a breakaway Amish cleric in Ohio for religiously 
degrading (by hair and beard cutting) Amish men who did not 
adhere to his leadership.
    As crime control policy, bias crime laws are unnecessary. 
We have the longest criminal sentence maxima in the free world. 
For murder, we have life imprisonment without parole or capital 
punishment. Ironically, some States, in the name of creating a 
more tolerant society, have made bias motivation an aggravating 
factor that makes a murderer eligible for capital punishment. 
Another irony is counting on greater use of prison to punish 
bias crimes in the name of tolerance. The prisons are the 
number one incubator of hate groups like the Aryan Brotherhood.
    Hate crime laws are counterproductive. They politicize 
crime and spawn charges of hypocrisy and double standards. 
Those who are prosecuted call themselves victims of political 
correctness and martyrs to the First Amendment.
    The hate crime laws conflict with their proponents' usual 
criticism of overuse of criminal law and especially 
overincarceration. Sending more people to prison for longer 
periods of time is not likely to contribute to a more tolerant 
society.
    Thank you.
    [The prepared statement of Prof. James B. Jacobs appears as 
a submission for the record.]
    Chairman Durbin. Thank you, Professor Jacobs.
    Mr. Saini, I asked a question of the first panel based on 
your request that there be a category added to this report form 
so that Sikh Americans would have some collection of statistics 
and numbers, and I think the response was positive, and I 
promise you that I will follow up with them to make sure that 
it is considered on a timely basis.
    Let me ask you what impact this terrible massacre has had 
at your gurdwara and on your Sikh community in Oak Creek.
    Mr. Saini. Just the people have been wonderful, and 
everybody has come together now as one, and just to be--just 
for that to happen, this was not a loss. This was a gain.
    Chairman Durbin. You mentioned the President, the First 
Lady, the Governor, and other leaders who have expressed their 
sympathy for this terrible event. Have you noted any other 
efforts by people of other religions and other backgrounds who 
had not been part of your Sikh community before and are now 
more closely associated?
    Mr. Saini. Yes, like there are a lot of people that come to 
us now, even Muslims, Christians, Hindus. Everybody has come to 
our gurdwara and, you know, just been there for us.
    Chairman Durbin. What about around the country? Have you 
heard any similar stories from other members of the Sikh 
community?
    Mr. Saini. Yes, same thing. People have come around the 
whole country, States, Washington, DC, they have come from New 
York, people have come from India, all over the world. They 
came just to be with us.
    Chairman Durbin. Well, I am sorry that you had to lose so 
much for this outpouring of support to occur, but I hope in 
your mother's memory that it will be a positive thing for you 
and your family and for your community in years to come. So 
thank you again for your great testimony.
    Mr. Saini. Thank you.
    Chairman Durbin. It had such an impact.
    Professor Jacobs, now we are going to move to this 
constitutional debate or legal debate, however it might be. The 
Supreme Court considered your point of view and, surprisingly, 
it was Justice Rehnquist who wrote the majority opinion which 
basically rejected your point of view. And he said that we 
should draw a line between expression, statements, speech, and, 
as he said, ``a physical assault is not by any stretch of the 
imagination expressive conduct protected by the First 
Amendment.'' That seems declarative and final in its nature. Do 
you disagree with that conclusion?
    Professor Jacobs. Definitely not.
    Chairman Durbin. So distinguish this--I do not want to put 
words in your mouth. So your argument is not that those who 
would kill in the name of hate are expressing themselves under 
some constitutional protection.
    Professor Jacobs. Of course not.
    Chairman Durbin. You need to turn on your microphone there. 
I am sorry.
    Professor Jacobs. Yes. Of course not. I am not saying 
anything constitutional at all. My point here is that murder is 
already punished as severely as it can be punished. It cannot 
be punished any more than it is.
    Chairman Durbin. So let me take this the next step. You 
have sat right next to the testimony of this brave young man 
who has come to tell you the impact that this heinous act had 
on his family and on his life. And you have questioned before 
whether there is any special emotional or psychological impact 
in a hate crime. Do you still hold that position that a hate 
crime victim is no sadder, no worse off than some other victim 
of a crime?
    Professor Jacobs. I do, and I have seen many, many crime 
victims of different kinds of crimes, whether they are felony 
murders or killings in a park or killings of children, and none 
of it is pleasant, Senator, as you know, and the pain is 
excruciating. And is there any need for us to compare one 
person's pain in a heinous murder with another person's pain 
and put one on a higher pedestal than another person's? Is that 
going to help us as a society?
    Chairman Durbin. Well, it turns out that when we wrote our 
terrorism laws, we thought it did. The Federal terrorism 
statute provides enhanced penalties for certain crimes if they 
appear to be intended ``to intimidate or coerce a civilian 
population or to influence the policy of a government by 
intimidation and coercion.'' So we have gone beyond the 
physical act and said what was the motivation behind it, and we 
have drawn the line when it comes to terrorism.
    So do you oppose enhanced penalties for terrorism?
    Professor Jacobs. No, I do not.
    Chairman Durbin. Well, how do you make the distinction?
    Professor Jacobs. Well, I think the terrorist acts, when 
you have a crime and it threatens a large number of people, 
then it should be punished to the maximum. And I think those 
statutes are meant to give Federal jurisdiction over the crime, 
and we need Federal jurisdiction over those crimes.
    Chairman Durbin. I hate to quarrel with a law professor, 
but it seems to me that what we are talking about is intent 
here in both instances, and where the intent is terrorist 
inspired, we have said there will be a higher penalty. Now when 
it comes to a hate crime, you say when the intent is inspired 
by hate of a person because of a religion or race, gender, 
sexual orientation, an enhanced penalty, the two run in 
parallel----
    Professor Jacobs. Well, I would not go down that road. I 
think all violent crime, all homicidal crime is filled with 
hate of one kind or another, and also a lot of it is filled 
with just plain confused and deranged thinking. Most of the 
people that we arrest for such crimes--I mean, the crimes look 
clearer in the abstract, but when you arrest them, like the 
apparent perpetrator in Aurora, they are very confused and 
disturbed individuals.
    Chairman Durbin. Well, I would just say that I would 
question whether or not you are consistent in allowing for 
enhanced penalties for terrorism but not for hate crimes. But 
that seems to be my note, and you disagree.
    Mr. Johnson, you heard the testimony when I asked about 
Wade Michael Page who had been called out by at least two 
organizations as a dangerous individual. Apparently, that was 
not enough to warrant an investigation. There was nothing--I 
think the testimony from the FBI is there was nothing they 
could point to which would single him out for special 
investigation or attention.
    So was this an intelligence failure in Wisconsin? Do you 
think there could have been things done to prevent this attack 
that were not done?
    Mr. Johnson. Well, I think the FBI in their testimony kind 
of laid out where the problem lies with terrorist prevention. 
They are really good at investigating after the fact, after an 
incident has happened. But we have this delicate balance 
between people's constitutional right to assemble and express 
their speech, however vile, but we also have to be a little 
forward-leaning in looking at those ideologies that have long 
histories of spawning violence. And I am not talking about a 
Government doing covert operations on people that have 
extremist beliefs, but I think it is prudent that we have an 
overt posture, overt monitoring of belief systems that are 
basically causing people to act out violently.
    Was this an intelligence failure? I do not think it is. But 
one thing that I believe that the Department of Homeland 
Security and the FBI could have done was--where was the warning 
that these mosques were being burned, where was the warning 
that Sikhs and Muslims have been victims of shooting attacks? I 
think there could have been a threat assessment prepared on 
that very subject. It could have been sent out to the faith-
based communities affected. And I believe that that might have 
provided a first line of defense by identifying the problem, 
but also providing some counter measures to encourage people to 
be increasingly vigilant toward the threat. And that may have 
played, you know, a possible role in maybe preventing some type 
of attack.
    Chairman Durbin. Well, I would readily agree with your 
premise that simply because people have tattoos or listen to 
certain music or even gather in certain places and say certain 
things is not evidence of criminal intent. And I think that was 
the point made by the FBI. But I think what you also said is 
worthy of note, and that is, when you hear this over and over, 
it raises the level of threat assessment. Whether it is anti-
Semitism against a Jewish synagogue or burning of Christian 
churches in the South or attacks on Muslim mosques or Sikh 
temples, each of these, I think, warrants special effort.
    The last question I will ask you, you noted that there 
seems to be a reduction in force of people at the Department of 
Homeland Security who are working on these issues, and the 
response from Mr. McAllister was not altogether clear on that 
subject. Would you like to say a word more on that?
    Mr. Johnson. Well, you have already outlined in your 
testimony that when I was the team leader at the Department of 
Homeland Security, we had five analysts directly under my 
supervision, but we also had additional analysts that 
supplemented us. So we had as many as eight analysts looking at 
this issue. Today there is one, and that is a fact.
    Chairman Durbin. The last point I will make, and if you do 
not mind repeating, when you said that the militia that was 
investigated in Michigan had a larger arsenal of weapons than 
all of the terrorists who had been arrested since 9/11 in the 
United States. Was that your testimony?
    Mr. Johnson. Yes. It is a daunting statistic, and I got 
this information off of Steve Emerson's Investigative Project 
website where he has all the court records of every single 
Muslim extremist that has been publicly arrested in the country 
since 9/11. That is where my sourcing came from.
    Chairman Durbin. All right. Senator Kohl, would you like to 
ask questions?
    Senator Kohl. Thank you, Mr. Chairman.
    Harpreet, many people in the general community did not 
understand who Sikhs were until the tragedy occurred. How did 
the Sikh community fit into Milwaukee/Oak Creek before the 
tragedy? And how would you describe the outpouring and the 
response that occurred?
    Mr. Saini. Well, I think people have been wonderful. Sikhs 
are a different religion, a different race, I mean, people 
just--they do not come up to you and ask you who you are. 
People just do not come up and ask who Sikhs are. Like, I would 
love to answer, you know, if, let us say, a person comes up to 
me and asks me who am I, ``What is that on your head?'' I would 
love to tell them what it is. And people do not do that, and 
they should start doing that, you know, to get the fact that 
that is a turban.
    Senator Kohl. Okay. How have you all been moving forward 
since the tragedy with respect to your place of worship and 
your ability to come and worship without fear?
    Mr. Saini. How am I what?
    Senator Kohl. The level of fear that occurred when the 
tragedy happened, has that abated? Are you----
    Mr. Saini. I mean, the fear is still around, but we are 
getting over it as much as we can now. And just trying to get 
over it with people that you love, that is the best thing.
    Senator Kohl. Is the level of attendance for services equal 
to what it was before the tragedy, or are some people still 
worried about attending?
    Mr. Saini. No. It has actually gone up, like a lot more 
people have showed up this time, like after the incident, too. 
And the attendance has been enormous now. It has gone up.
    Senator Kohl. That is terrific. Thank you very much, 
Harpreet.
    Mr. Saini. Thank you.
    Senator Kohl. Thank you, Mr. Chairman.
    Chairman Durbin. Thank you, Senator Kohl, and thanks to 
this entire panel for its testimony. There is--oh, I am sorry. 
Senator Blumenthal, I yield to you.
    Senator Blumenthal. Thank you. Thank you, Mr. Chairman.
    I want to join in thanking this panel and the prior panel, 
whose testimony I had been following, and I apologize for not 
having been here earlier. I had another Committee hearing. But 
I would like to, first of all, followup, Mr. Saini, my 
condolences for your loss, and even in a place as 
geographically distant as Connecticut, there has been an 
outpouring of feeling and sympathy for the victims and their 
families. And I have attended two of the ceremonies and 
services marking this horrendous incident in Oak Creek. And I 
would say that I join Senator Kohl in the expression of 
satisfaction that there is a strengthening of your community 
and of attendance and of involvement, which apparently is the 
case, is it not?
    Mr. Saini. Yes, it is.
    Senator Blumenthal. If I may turn to Mr. Johnson, you have 
had a long career in intelligence and enforcement efforts, and 
you referred earlier to the possibility that there might have 
been preventive action possible. Do you think that is a 
realistic assessment? If intelligence were better, do you think 
that prevention is really a realistic and practical likelihood?
    Mr. Johnson. Well, by basically raising awareness and 
increasing vigilance and putting in counter measures, you are, 
in fact, you know, putting up barriers of defense that could 
serve as a prevention. I mean, is it an interdiction? Is it 
going to stop the incident from happening? Probably not. But if 
you are more vigilant and if you have your awareness up, then 
perhaps you could take counter measures to prevent the amount 
of loss.
    Senator Blumenthal. And is the issue one of resources? You 
mentioned the number of analysts diminishing from eight to one. 
Is that the principal barrier, or is it a matter of sharing 
information? What would you analyze as the issue?
    Mr. Johnson. Well, in my written testimony that I submitted 
to the Committee, I outlined a number of limitations, one of 
which is resources. We are also lacking in strategic analysis. 
That is where we look at emerging national trends and patterns 
of criminal activity. We also--there were some other things 
that I mentioned in my written testimony that you could refer 
to, but it is a multilayered approach. Information sharing has 
gotten better, but we could still make improvements in that 
effort as well.
    Senator Blumenthal. So, really, it is a multifaceted 
challenge.
    Mr. Johnson. Right, and I also had mentioned training as an 
issue. We have a whole new group of analysts and officers that 
are coming up through the ranks who need to be trained on these 
types of subjects and what the different extremists' tactics 
and tradecraft and activity levels are.
    Senator Blumenthal. Professor Jacobs, I know that you have 
raised in your written and also in your oral testimony 
reservations and qualms about the hate crime both definition 
and proof issues. Why are those issues any different than the 
normal criminal intent or mens rea elements of proof that have 
to be presented in a criminal trial?
    Professor Jacobs. Well, if we just want to talk on the 
proof question, different than the one about defining, you 
know, which biases and so forth, on the question of proof I 
think it is harder to get into a person's motivations than 
simply whether it was intended or not intended as a fairly thin 
mental state. But when you start to get into what is their 
bias--and when you look at these various crimes that have been 
prosecuted, the one in New Jersey is a very good example. A 
very good example. You know, what was his motivation? He 
himself may not have known what his motivation was. He maybe 
had a lot of motivations. Maybe he did not have any clear 
motivation. What he did do was infringe upon the privacy of his 
roommate. That was clear and could easily be proved. But the 
prosecution was not able to prove that it was an antigay bias, 
and that is often the case in these prosecutions.
    Senator Blumenthal. And that may be true in a variety of 
criminal cases where the prosecution has the continuing burden 
of proof and has to present evidence to show beyond a 
reasonable doubt that a motivation existed. I do not understand 
why that burden does not place a sufficiently high threshold 
for the proof of a hate crime.
    Professor Jacobs. Well, I also do not think it is necessary 
because we have criminal laws against assaults and against 
murder and against rape and kidnapping. And then in order to 
express even more outrage, we have gone through the criminal 
code and kind of recriminalized these crimes, which already 
carry huge punishments, more than we have the resources to 
actually implement.
    Senator Blumenthal. Which is true of other crimes as well. 
They may be prosecutable under different laws. They may be----
    Professor Jacobs. They are all prosecutable under different 
laws, Senator.
    Senator Blumenthal. Correct. So why not permit prosecution 
of hate crimes when they are, in fact, motivated by bigotry and 
bias and that kind of intent as an expression of community 
outrage, which our criminal law particularly does.
    Professor Jacobs. Well, I mean, that is the route that we 
are going down, and I think if it is successful, we will see. 
And if it helps to lead toward a more tolerant society, that 
would be good. But it might also be very divisive and juries 
might begin to see criminal prosecutions as actually kind of 
political trials which--and the crime is about making a 
statement about the perpetrator's group as opposed to the 
victim's group, and we will start to see the crime problem as 
one that is divided along all of the fractures of American 
society. I would not welcome seeing the crime problem in that 
way, and I think it is unnecessary to do that.
    Senator Blumenthal. I think the reservation that you have 
expressed has been articulated, at least in my experience, in 
State legislatures when these issues arose, and those 
reservations or objections have been overcome, I think because 
people do feel that the expression of the community's 
intolerance for violence resulting from bigotry and bias and 
hatred is very much a proper and appropriate measure to take 
and hopefully also will have a deterrent effect, which is 
another proper purpose of the criminal laws. If it deters these 
kinds of crimes, perhaps it would serve a legitimate purpose of 
the criminal law as well.
    So I understand and you have articulated well your concerns 
about it, but I think that the growing awareness of the 
severity and the frequency of these crimes will properly 
result, hopefully, in greater enforcement, tougher enforcement, 
more stringent penalties.
    Thank you, Mr. Chairman.
    Chairman Durbin. Thanks a lot, Senator Blumenthal and 
Senator Kohl.
    I might note that over 400 people are in attendance at this 
hearing, in the overflow room and in this main room, showing 
the level of interest in this important topic, many from the 
Sikh community from all across the United States, and we thank 
you very much and join all of us in expressing our sentiments 
of sorrow over the losses that have taken place in your 
community.
    We are not alone in our feelings about this. We have had an 
enormous amount of interest from many groups, 80 written 
statements for today's hearing, from Congresswoman Judy Chu, 
the Chair of the Congressional Asian Pacific American Caucus, 
the American Civil Liberties Union, the Anti-Defamation League, 
the Chicago City Council, the Chicago Police Department, the 
Council on American Islamic Relations, Groundswell, the Hindu 
American Foundation, Human Rights Campaign, Human Rights First, 
Interfaith Alliance, the Islamic Society of North America, the 
Japanese American Citizens League, Latino Justice, the 
Leadership Conference on Civil and Human Rights, Muslim 
Advocates, the NAACP, the National Gay and Lesbian Task Force, 
the Oak Creek, Wisconsin, Police Department, People for the 
American Way, Africa American Ministers Leadership Council, the 
Sikh American Legal Defense and Education Fund, the Sikh 
Coalition, South Asian Americans Leading Together, and the 
Southern Poverty Law Center, as well as the United Sikhs. 
Without objection, I would like to place these statements into 
the record. Hearing no objection, that will be the case.
    [The information referred to appears as submissions for the 
record.]
    Chairman Durbin. The hearing record will be open for a week 
to accept additional statements, and if there are written 
questions of the witnesses, I hope that you will respond in a 
timely fashion so we can have a complete record.
    If there are no further comments from our panel or 
colleagues, I thank the witnesses for attending and my 
colleagues for participating, and this hearing stands 
adjourned.
    [Whereupon, at 4:23 p.m., the Subcommittee was adjourned.]
    [Additional material submitted for the record follows.]

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              Additional Material Submitted for the Record

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