[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 [GRAPHIC NOT AVAILABLE IN TIFF FORMAT] U.S. GOVERNMENT PUBLISHING OFFICE 20-972 PDF WASHINGTON : 2016 ________________________________________________________________________________________ For sale by the Superintendent of Documents, U.S. Government Publishing Office, http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-free). E-mail, [email protected]. 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.] A P P E N D I X Additional Material Submitted for the Record [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] [all]