Federal law opposing ‘libel tourism’ approved by Congress

By Rachel Ehrenfeld

NEW YORK–As the founder of the movement against libel tourism, I congratulate Congress foir unanimously passing HR 2765 (as amended by the Leahy-Sessions ‘Speech’ Act) on July 27th. A bipartisan bill, the ‘Speech’ Act is based on New York State’s “Libel Terrorism Protection Act” (also known as “Rachel’s Law”). The ‘Speech’Act marks the culmination of a national campaign I spearheaded following my own experiences with libel tourism.

It began when my third book, Funding Evil: How Terrorism is Financed and How to Stop It, was published in the U.S. in the Fall of 2003. In Funding Evil, I documented how Saudi billionaire Khalid bin Mahfouz funded al-Qaeda, Hamas and other terrorist organizations.

Shortly after the book was published in the U.S., Mahfouz sued me for libel in London, attempting to use the plaintiff-friendly British libel laws to intimidate me into silence. Mahfouz had used this tactic to bully more than 40 authors and a publisher into apologies for and retractions of similar revelations. While British libel laws were often used by the rich and famous to silience and intimidate critisizm, the Saudi used the British laws and courts as a weapon in the lawfare against the American and Western media, and effectively “chillled” further exposes on Saudi and Gulf funders of terrorism.

I refused to acknowledge the British court’s jurisdiction over me as I did not live in England, nor was my book published or marketed there. The English court ruled against me by default, ordering that I pay a hefty fine, apologize, retract my statements and foot Mahfouz’s substantial legal fees.

Represented by Daniel Kornstein of Kornstein Veisz Wexler & Pollard, LLP, I countersued Mahfouz in New York to prevent the enforcement of the default judgment on the grounds that it did not meet the standard of American First Amendment protections for free speech. When the court dismissed the suit for lack of jurisdiction over Mahfouz, the New York State Legislature, led by Assemblyman Rory Lancman (D), and Senator Dean Skelos (R)  acted quickly, and passed “Rachel’s Law,” in April 2008, enabling the New York courts to take jurisdiction over foreign libel plaintiffs who sue New York authors and publishers abroad.

Since then, seven states, including California, have passed similar protective legislation protecting their residents.

With the SPEECH Act Congress has taken action against libel tourism – a dire threat to our freedom and democracy. Representatives Cohen (D-TN), King (R-NY) and Senators Leahy (D-VT), Sessions (R-AL), Specter (D-PA), Lieberman (D-CT), Schumer (D-NY), Wyden (D-MN), and Kyl (R-AZ), and their dedicated staffs, made the ‘Speech’ Act a reality. They have taken a great step forward in securing the freedom of expression that our constitution guarantees.

The “Speech’ Act will uphold First Amendment protections for American free expression by guarding American authors and publishers from the enforcement of frivolous foreign libel suits, filed in countries that do not have our strong free speech protections. Such lawsuits are often used by “libel-tourists” in an effort to suppress the rights of American scholars, writers, and journalists to speak, write and publish freely in print and on the Internet.

The Act grants “a cause of action for declaratory judgment relief against a party who has brought a successful foreign defamation action whose judgment undermines the First Amendment,” and provides for legal fees. These measures will help diminish the severe chilling effect such suits have already had on journalists, researchers, the general media, particularly on matters of national security and public safety.

“Libel tourism threatens to undermine the principles of free speech because foreign courts often don’t place as difficult a burden on plaintiffs in libel cases,” said Congressman Steve Cohen (D-TN).  “I believe our First Amendment rights to be among the most sacred principles laid out in the Constitution.  It is vital we ensure that these rights are never undermined by foreign judgments.”

The editorial pages of The New York Times, The Washington Post, New York Post, Los Angeles Times, Miami Herald, and the San Diego Jewish World, as well as organizations such as the Association of American Publishers, American Library Association, the American Society of News Editors, the Independent Book Publishers Association, the American Civil Liberties Union and 9/11 Families for a Secure America, among others, have supported me in this important fight for free speech.

The unanimity of support for this bill in Congress demonstrates the importance of combating libel tourism and its chilling effects on free speech. With a stroke of his pen, signing the bill into law, President Obama will help ensure that authors and publishers maintain the right to freely wield theirs in the pursuit of legitimate research and scholarship.

That day will not come soon enough. But there is more to do.

As Senator Kyl observed; “The Congress needs to pass broader measures that permit U.S. citizens accused of libel in foreign courts to force their accusers to pay for legal fees incurred abroad and, in certain cases, additional damages. Libel tourism will continue to pose problems for Americans until those who bring foreign libel lawsuits are faced with the same kinds of financial risks they seek to inflict on others.”

 

In the meantime, my efforts against libel tourism have encouraged a libel reform movement in England and have led the British government to propose corrective legislation. I hope that the enactment of the “Speech’ Act helps spread a new trend toward libel law reform, enabling the media to report safely on matters of national security and public interest globally.

*
Ehrenfeld is the director of the American Center for Democracy, based in New York

Ehrenfeld salutes bill protecting First Amendment rights from overseas libel suits

NEW YORK (Press Release)– Dr. Rachel Ehrenfeld, author of Funding Evil: How Terrorism is Financed – and How to Stop It, and founder of the movement against libel tourism, praised Senator Patrick Leahy (D-Vermont), Chairman of the Judiciary Committee and Senator Jeff Sessions (R-Alabama), its Ranking Member, for introducing the “Securing the Protection of our Enduring and Established Constitutional Heritage Act” or the ”SPEECH Act” in the United States Senate today. The bill was formally placed before the entire Judiciary Committee.
 
The SPEECH Act will uphold First Amendment protections for American free expression by guarding American authors and publishers from the enforcement of frivolous foreign libel suits filed in countries that do not have our strong free speech protections. Such lawsuits are often used by “libel-tourists” in an effort to suppress the rights of American scholars, writers, and journalists to speak, write and publish freely in print and on the Internet.
 
The Act grants “a cause of action for declaratory judgment relief against a party who has brought a successful foreign defamation action whose judgment undermines the first amendment,” and provides for legal fees. These measures will help diminish the severe chilling effect such suits have already had on journalists, researchers the general media particularly on matters of national security and public safety.   

Based on New York State’s “Libel Terrorism Protection Act” (also known as “Rachel’s Law”), the SPEECH Act marks the culmination of a national campaign spearheaded by Dr. Ehrenfeld following her own experiences with libel tourism.
 
In Funding Evil, published in the U.S. in 2003, Dr. Ehrenfeld documented how Saudi billionaire Khalid bin Mahfouz funded al-Qaeda, Hamas and other terrorist organizations. Mahfouz sued Dr. Ehrenfeld for libel in London, attempting to use the plaintiff-friendly British libel laws to intimidate her into silence. Mahfouz had previously used this tactic to bully more than 40 authors and a publisher into apologies for and retractions of similar revelations.
 
Dr. Ehrenfeld refused to acknowledge the British court’s jurisdiction over her as she did not live in England, nor was her book published or marketed there. The English court ruled against her by default, ordering her to pay a hefty fine, apologize, retract her statements and pay Mahfouz’s substantial legal fees.

Represented by her attorney, Daniel Kornstein of Kornstein Veisz Wexler & Pollard, LLP, Dr. Ehrenfeld countersued Mahfouz in New York to prevent the enforcement of the default judgment on the grounds that it did not meet the standard of American First Amendment protections for free speech. When the court dismissed the suit for lack of jurisdiction over Mahfouz, the New York State Legislature acted quickly, and passed “Rachel’s Law,” in April 2008, enabling the New York courts to take jurisdiction over foreign libel plaintiffs who sue New York authors and publishers abroad. Since then, six states have passed similar legislation protecting their residents.
 
In May 2008, Reps. Peter King (R-NY) and Steve Cohen (D-TN), proposed similar bills in the House, and Senators Arlen Specter (D-PA) Joseph Lieberman (CT), and Charles Schumer (D-NY) sponsored the Free Speech Protection Act in the Senate. Dr. Ehrenfeld thanks their initiative and support, which have led to the introduction of the SPEECH Act.

The editorial pages of The New York Times, The Washington Post, New York Post, Los Angeles Times and Miami Herald, as well as organizations such as the Association of American Publishers, American Library Association, the American Society of News Editors, the Independent Book Publishers Association, the American Civil Liberties Union and 9/11 Families for a Secure America, among others, have supported Dr. Ehrenfeld’s fight for free speech.

“The SPEECH Act, introduced today by Senators Leahy and Sessions, marks a critical victory in the fight for free speech and the advancement of our national security. Without the SPEECH Act, American writers, publishers, and Internet users, will continue to face an imminent threat of the enforcement of foreign libel suit when reporting on matters of public interest, including science, national security, health and personal safety.

With Congress’ action, other nations will no longer have a green light to attempt to silence American critics,” said Dr. Ehrenfeld. “We have attracted a broad spectrum of those who are interested in protecting free speech and enabling authors to write about national security and other issues. This is not a partisan cause. This is an American cause, and it’s time for Congress to protect its citizens.”
 
*
Preceding provided by Rachel Ehrenfeld

Rabbi criticizes Lieberman’s support for repeal of ‘Don’t Ask, Don’t Tell’

MONSEY, N.Y. (Press Release)–Orthodox Jews will be among religious leaders and pro-family activists converging on Washington DC on Thursday to protest the latest efforts to hastily repeal Don’t Ask Don’t Tell in the House of Representatives. Chief among their concerns are the ways that changes in the armed services rules would seriously compromise religious liberty for military chaplains and religious servicemembers. 

In civilian life religious counselors have been punished for not counseling same-sex couples, religious chaplains have been penalized for refusing to allow open homosexuals to lead prayer ceremonies and religious groups have been attacked for not allowing their premises to be used for same-sex commitment ceremonies.

In the military where breaches in discipline carry strict penalties the threat to religious freedom is even greater than in civilian life. If the armed services affirm open homosexuality this would inevitably seriously limit the ability of chaplains to preach, counsel and lead services in accordance with their religion and conscience.

Until this week legislation on Don’t Ask Don’t Tell was waiting for a thorough Pentagon review that is in the process of surveying the opinions of 300,000 servicemen and women, and will be complete in December of this year. However this week with only days notice the White House and some congressional leaders ignored warnings from the Chiefs of the various armed services to move prematurely and they proposed amendments to the 2011 National Defense Authorization Act (NDAA) for immediate congressional vote.

Morale in the United States armed services has throughout its history been rooted in a strong commitment to morality, discipline and the Biblical values shared by many faith communities. These latest moves to undermine the voices of servicemen and women, the majority of whom are opposed to changes in the law, are seen by some religious leaders as another attempt to marginalize and persecute those who adhere to traditional American values.

Some Orthodox Rabbis are particularly disappointed with the role of Senator Joseph Lieberman who wrote the amendment for the Senate armed services committee. Senator Lieberman has frequently described himself as an “observant Jew” and they find it particularly ironic that a self-described religious man would be responsible for threatening religious freedoms.

Rabbi Noson  Leiter of Torah Jews for Decency, a pro-family Orthodox Jewish group observes that since its founding, the United States has in both peace and war put its trust in God. “If we want God to protect the men and women serving in active duty we must do what we can to insist that Congress does not undermine morality in our armed services. The spiritual and physical wellbeing of the United States has always been directly dependent on our commitment to morality. I am afraid of what may happen to us if there is any change in the law.”

*
Preceding provided by Rabbi Leiter of Torah Jews for Decency.

ACLU accuses Lieberman, others of wanting to discard Constitution in terror cases

WASHINGTON, D.C. (Press Release) – Criticizing the Obama administration’s decision to charge accused Christmas Day attacker Umar Farouk Abdulmutallab in the criminal court system, members of Congress are calling for legislation requiring intelligence officials to be consulted about how to handle terrorism suspects after their capture, arguing that options other than the criminal justice system should be considered. The Washington Post, in an editorial on January 23, supported this approach.

The members of Congress calling for the legislation are Senators Susan Collins (R-ME), Joseph Lieberman (ID-CT), Robert Bennett (R-UT) and John Ensign (R-NV).

The following can be attributed to Anthony D. Romero, Executive Director of the American Civil Liberties Union:

“It is extremely disturbing that members of the U.S. Congress are essentially calling for Obama administration officials to discard the Constitution when a terrorist suspect is apprehended – as if the Constitution should be applied on a case by case basis. The whole idea of having constitutional protections is that they be applied across the board for all those accused of a crime. That is the only way for us to rely on our justice system and its results. Obeying the Constitution is not optional.

“The FBI was right to place Umar Farouk Abdulmutallab in the criminal justice system. Terrorism is a crime, and to treat terrorism that takes place far from any battlefield as an act of war is to propose that the entire world is a battlefield, to give criminals the elevated status of warriors and to invest whoever the current president may be with the authority to imprison a broad category of people potentially forever, without ever being afforded an opportunity to defend themselves. To abandon due process in terrorism cases turns the rule of law on its head and flies in the face of the values that we are fighting to protect in the first place. Our criminal justice system is fully capable of accommodating the government’s legitimate security interests while at the same time providing fundamental rights to defendants.

“If we have learned nothing else over the last decade, we’ve learned that disregarding the rule of law leads to tragic consequences. This country is still trying to deal with the repercussions of the previous administration’s illegal torture and detention policies, which did immeasurable damage to America’s standing in the world.

“We hope that Congress will heed these lessons and show faith in our justice system, which has successfully prosecuted over 200 terrorism suspects. We must not abandon our most fundamental values to the threat of terrorism.”

*
Preceding provided by American Civil Liberties Union

Abdulmutallab belongs in military custody — Senators Lieberman and Collins

WASHINGTON, D.C. (Press Release) – Homeland Security and Governmental Affairs Committee Chairman Joe Lieberman, Independent-Connecticut., and Ranking Member Susan Collins, Republican-Maine., urged the Obama Administration Monday to move Umar Farouk Abdulmutallab from civilian to military custody because he is an enemy combatant and should be detained, interrogated and ultimately charged as such. 

Abdulmutallab, who is charged with attempting to blow up a jetliner with over 250 people heading to Detroit on Christmas Day, was interrogated, charged, and is being held by civilian legal authorities, despite having been trained and directed by al-Qaeda in the Arabian Penninsula.

*
Preceding provided by Senator Joseph Lieberman

U.S. Senators urge Uganda not to criminalize homosexuality

WA SHINGTON, D.C. (Press Release)—U.S. Senators Benjamin L. Cardin of Maryland and Richard J. Durbin of Illinois, both Democratic members of the Senate Judiciary Committee, and 10 other Senators today urged Ugandan President Yoweri Musseveni to block enactment of a law that would criminalize homosexuality and codify prejudice against gays, lesbians, bisexuals, transgendered and HIV-positive Ugandans.

The bill, which if passed would impose sentences as severe as life in prison or death, runs counter to global declarations of universal human rights and efforts to expand tolerance and health assistance in Africa and worldwide. In addition to Senators Cardin and Durbin, the letter was also signed by Democratic  Senators Patty Murray of Washington,  Christopher Dodd of Connecticut, Jeff Merkley of Oregon, Sherrod Brown of Ohio, Kirsten Gillibrand of New York, Mark Udall of Colorado, Barbara Boxer of California, Daniel Akaka of Hawaii,  Diane Feinstein of California, and Independent Senator Joseph Lieberman of Connecticut. 

 

“Legislating prejudice is wrong for any government in any country. President Musseveni must take any and all steps available to end this serious breach of human rights and basic tolerance,” said Senator Cardin, who also serves as chairman of the U.S. Helsinki Commission. “Ugandans who are lesbian, gay, bisexual, transgendered or HIV-positive, should not live in fear or be punished for simply living their lives.”

 

“If this proposal carries the day, their government will undermine years of positive Ugandan leadership combating HIV infections, and instead, will begin pursuing a policy of intolerance,” Durbin, Chairman of the Human Rights and the Law Subcommittee, said. “I urge President Musseveni and the Ugandan Parliament, to reject this legislation outright and hope that they, along with the world at large, will rethink policies that institutionalize fear and bigotry.”

 

 

The full text of the letter is below.  

The Honorable Yoweri Museveni

President, Republic of Uganda

c/o of the Embassy of Uganda

5911 16^th Street, NW

Washington, DC 20011

 

Dear Mr. President:

 

We write to express our deep concern regarding the anti-homosexuality bill currently before the Ugandan Parliament. 

 

This troubling legislation would sanction prejudice toward people in Uganda based solely on sexual orientation, or even HIV status. This is in great contrast to trends toward greater tolerance in the global community.  By creating harsh penalties for homosexuality, this bill not only codifies prejudice, but could also foster an increase in violence towards people simply based on sexual orientation.

 

The legislation also requires persons “in authority,” which could include government officials, employers, clergy, or others, to provide information about suspected violations of the Act. It further criminalizes the work done by human rights and health organizations that benefit lesbian, gay, bisexual and transgender citizens, claiming those actions to be “homosexual promotion.” Certainly these are not the types of actions to be encouraged as the world strives to reverse violence, poverty, and human suffering caused by divisiveness and repression. 

 

While your nation has been a leader in Africa on many fronts, including the reduction of HIV infections, this proposed legislation will be a glaring setback in Uganda’s human rights standing. Unfortunately, even the mere threat of the new and severe penalties for homosexual behavior suggested in this bill, including life imprisonment and the death penalty, could easily add to an already intolerant atmosphere in Uganda based on sexual orientation. 

 

We understand you have recently raised concerns over the legislation and urge you to do to everything within your power to block its advancement. We look forward to continue the process of building a strong and long-lasting relationship between the United States of America and the Republic of Uganda.

 

Sincerely,

 

Senator Benjamin L. Cardin

Senator Richard J. Durbin

Senator Daniel Akaka

Senator Christopher Dodd

Senator Joseph Lieberman

Senator Kirsten Gillibrand

Senator Sherrod Brown

Senator Jeff Merkley

Senator Patty Murray

Senator Mark Udall

Senator Diane Feinstein

Senator Barbara Boxer

*
Preceding provided by Senator Cardin

 

Goodbye to all that! — An American Jew’s life in non-Christian Asia

By Danny Bloom

[This commentary was originally written in 2002 and updated in early 2010.]

CHIAYI CITY, Taiwan — In a magazine article a few years back, a British expatriate in New York by the name of John Derbyshire wrote that a lingering form of antisemitism is alive and well in the United States — and always will be. Nothing new there, but his words were startling.

Derbyshire, who is not Jewish, wrote in an earlier piece in the rightwing National Review Online, when Joseph Lieberman was named as Al Gore’s running mate in the presidential election that year: “My own impression … is that Jews are widely, though very mildly, disliked in America. It may indeed be kosher to joke about the powerful; but it is all too human to resent them. In the circles I move in — working-
and middle-class Americans — antisemitic comments are quite common between intimates, though everybody understands they are de trop in any less restricted circles.”

Derbyshire comments about Jews being “widely, though mildly disliked in America” struck a personal note with me, because I have been living in Asia for the last 17 years and have found life here — in both Japan and Taiwan — to be completely free of the ugly elements of public and social antisemitism. In fact, it so enjoyable to live in
non-Western, non-Christian societies that are free of antisemitism that I plan to live in Asia for the rest of my life and never return to the US. Goodbye to all that.

I remember, when I first penned this essay in 2002, that a small epidemic of “Jew-dislike” seemed to have made the rounds of the US at that time, spawned by several controversies, both in print and on the Internet.

First, there was cartoonist Johnny Hart’s mildy offensive — to Jews and many Christians — Easter cartoon “B. C.,” that caused a major sensation when it was published, and in some cases not published, in April. Then there was Washington-based conservative Paul Weyrich’s Easter commentary online that repeated the old canard about the Jews being responsible for the death of Jesus. Then there was the New York Times Magazine story that related the anti-Jewish remarks of two NBA
basketball players.

Derbyshire had noted in another NRO essay: “A cold-eyed view of human
nature is always wisest, and my own cold eye tells me that antisemitism will be with us for as long as the Jews themselves.” He may be speaking the truth, at least as far as life in the Western  [read “Christianized”] world goes.

Of course, Jews have never had it so good in America, as the pundits like to say, and there is little overt antisemitism anywhere in North America. But to be honest, Jews are widely disliked — though “verymildly,” as Derbyshire put it — in America and always will be. It will never change.

A hundred years from now, Jews will remain “widely … though mildly” disliked in America. Why? For a host of complex reasons that define the very essence of Western Christendom, but which boil down to one thing: the Christian Gospels are in their very theological essence anti-Jewish and therefore anti-semitic. Sorry, but that’s the truth!

Living in non-Western, non-Christian cultures as I have for the last17 years here in Asia, I have found that social antisemitism simply does not exist in places like Japan, Thailand, Taiwan or South Korea.

Asian cartoonists do not draw Easter cartoons that show a menorah morphing into a cross. Asian writers do not publish online commentaries about so-called “Jewish cabals” in Hollywood or on Wall Street. Asian parents do not teach their children ancient myths about Jewish “Christ killers,” and they don’t speak at the dinner table in undertones of polite dislike for “those Jews.”

In Asia, Jews are an enigma, yes, an historical enigma, but they are not the object of theological scorn. It is so refreshing to live here. I have never been told by a Japanese or a Taiwanese person that I will go to “hell” because of who I am — or that my Jewish beliefs are wrong. Asians do not “think” this way.

It’s amazing — to me, a true 60-year-old innocent abroad — that when one moves to a land where the old Christian myths and hatreds and prejudices do not exist, and where neither the Old Testament nor the New Testament are taken at face value by the populace, how quickly quirky antisemitism and its ugly ramifications — for both Christiansand Jews — disappears, ghost-like, lost in the mists of ancient and
modern European and Middle Eastern history.

It is so refreshing to live here in Asia. As a Jew, as a human being, as an American. It’s the way life was meant to be.

**
Danny Bloom, a 1971 Tufts graduate and a native of Springfield, Mass., has lived in Japan and Taiwan for the last 18 years. The above oped commentary received over 5,000 page views on the Internet over the past 8 years.

All military should be required to report Islamist extremists in the ranks –Senate Homeland Security Committee

 

WASHINGTON, DC (Press Release)—Senate Homeland Security and Governmental Affairs Chairman Joe Lieberman, (Independent, Connecticut)  and Ranking Member Susan Collins, (Repubilcan, Maine) – who are conducting an investigation into the shooting deaths of 13 people at Fort Hood, Texas, last November – issued preliminary policy recommendations Wednesday to the Department of Defense (DoD).

The recommendations, which came in a letter to DoD Secretary Robert Gates, focus on explicitly prohibiting violent Islamist extremism in the military and training servicemembers to recognize, address, and report such extremism.

The Committee held a November 19 hearing on the Fort Hood shootings and has been investigating violent Islamist extremism and homegrown radicalization for over three years.

Lieberman and Collins’ letter to Secretary Gates follows:

 Dear Secretary Gates:

The Committee on Homeland Security and Governmental Affairs has initiated an investigation into the events surrounding the November 5, 2009, shootings at Fort Hood, Texas, pursuant to the Committee’s authority under Rule XXV(K)(1) of the Standing Rules of the Senate, Section 101 of S. Res. 445 (108th Congress), and Section 12 of S. Res. 73 (111th Congress).  The purpose of our investigation is to assess the information the U.S. Government had prior to the shootings and the actions it took in response to that information.  Ultimately, the investigation will identify the steps necessary to protect the United States against future acts of terrorism by homegrown violent Islamist extremists.

 We are committed to completing a comprehensive fact-finding investigation concerning the U.S. Government’s failure to identify Major Nidal Malik Hasan as a possible threat and to take action that may have prevented the attacks.  Even at this stage of our investigation, however, it has become apparent to us that DoD’s approach to the threat of servicemembers who adopt a violent Islamist extremist ideology needs to be revised.  Updating that approach will protect from suspicion the thousands of Muslim-Americans who serve honorably in the U.S. military and maintain the bonds of trust among servicemembers of all religions which is so essential to our military’s effectiveness.

I.                DoD Should Update Its Approach to Extremism in the Ranks Given the Threat of   Homegrown Terrorism Inspired by Violent Islamist Extremism.

During the past four years, our Committee has conducted an extensive investigation of the threat facing the United States from homegrown terrorism inspired by violent Islamist extremism.  The Committee’s work makes clear – particularly in light of the increased number of attacks, plots, and arrests during 2009 – that the threat of homegrown terrorism inspired by violent Islamist extremism has evolved and is expanding.  In over a dozen incidents in 2009, U.S. citizens or residents sought to mount an attack within the United States, including one who shot two Army recruiters in Arkansas, a number who apparently fought for al-Shaabab in Somalia, seven men in North Carolina who allegedly planned to attack the Marine base in Quantico, Virginia, and several who plotted to bomb a synagogue in New York City.  The violent Islamist terrorist threat includes individuals who self-radicalize by visiting Internet websites or reading other propaganda that promotes terrorist causes, i.e., without any connection to or affiliation with an established or recognized group.  Efforts to detect and disrupt terrorist activity are complicated when these self-radicalized terrorists operate as “lone wolves.”  

This Committee and senior Executive Branch officials have identified domestic violent Islamist extremism as a rising threat.  As Secretary of Homeland Security Janet Napolitano recently stated, “We’ve seen an increased number of arrests here in the U.S. of individuals suspected of plotting terrorist attacks, or supporting terror groups abroad such as al Qaeda.  Homegrown terrorism is here.  And, like violent extremism abroad, it will be part of the threat picture that we must now confront.”

The Department has previously adopted policies to address servicemembers engaged in certain violent extremist activities.  Policies exist that address servicemembers who become involved in both racist activities and criminal gangs.  However, there have been cases of servicemembers becoming radicalized to violent Islamist extremism, including Sergeant Hasan Akbar, who murdered fellow servicemembers at Camp Pennsylvania in Kuwait in 2003.  Given these events, and the increasing incidence of violent Islamist extremism in the United States, the Department must revisit its policies and procedures to ensure that violent radicalization, whether based on violent Islamist extremist doctrine or other causes, can be identified and action taken to prevent attacks before they occur.

Exhibiting signs of violent extremist views, behaviors, or affiliations, including those associated with violent Islamist extremism, is incompatible with military service and access to classified or sensitive information.  An April 2005 report by DoD’s Defense Personnel Security Research Center, Screening for Potential Terrorists in the Enlisted Military Accessions Process, concluded that “the allegiance to the U.S. and the willingness to defend its Constitution must be questioned of anyone who materially supports or ideologically advocates the legitimacy of Militant Jihadism” and that “determination of participation in or support or advocacy of Militant Jihadist groups and their ideologies should be grounds for denial of acceptance into the Armed Forces of the U.S. and denial of access to classified or sensitive information.”  As seen in the cases of Major Hasan and Sergeant Akbar, the adoption of violent Islamist extremism has been associated with violence against military personnel and other Americans. 

We believe that DoD’s approach to countering the threat of violent extremism by servicemembers needs to be updated to reflect the current threat of homegrown violent Islamist extremism faced by the United States.  Even though we have not completed our investigation of Major Hasan’s conduct and his colleagues’ and commanders’ response to him specifically, we make the following recommendations based on our knowledge of the overall threat of homegrown violent Islamist extremism, our careful review of relevant DoD and Army policies, and interviews and testimony of former high-ranking DoD personnel, intelligence, and military officials and briefings by current officials.  We may supplement these recommendations based on the specific facts of Major Hasan’s case and on additional information. 

II.        DoD Should Increase Training of DoD Personnel Concerning Violent Islamist Extremism.

Increased training of servicemembers at all levels – from enlisted personnel to commanders – is needed to ensure that they can understand the warning signs of violent Islamist extremism.  Such training will need to be crafted carefully and will likely need to vary by rank.  Training should include:

•           Why exhibiting violent Islamist extremist views, behaviors, or affiliations is incompatible with military service and access to classified or sensitive information.

•           The process of violent radicalization, including the warning signs of violent Islamist extremism. 

•           Servicemembers who exhibit signs of violent Islamist extremist views, behaviors, or affiliations are not necessarily members of any established or recognized group.  Instead, the servicemember could be a “lone wolf,” having undergone a process of self-radicalization via Internet sites, literature, or videos.

•           What violent Islamist extremism is, and how terrorists distort the Islamic faith to promote violence.

Existing DoD policies provide some authority for commanders and other appropriate officials to respond to servicemembers that exhibit signs of violent extremist views, behaviors, or affiliations.  However, commanders should be trained to apply such policies to servicemembers who exhibit signs of violent Islamist extremism and to recognize those signs in a specific servicemember.  Relevant policies include but are not limited to:

•  Army Regulation 600-20, Army Command Policy:  This policy gives every commander broad discretion to prohibit activities by servicemembers in order to preserve good order, discipline, and morale.  Training should ensure that commanders are aware that exhibiting signs of violent Islamist extremist views, behaviors, or affiliations by a servicemember would constitute a threat to good order, discipline, and morale.  The training should explain the difference between religious faith and observance, on the one hand, and violent extremist views, behaviors, and affiliations on the other – albeit recognizing that warning signs of extremist views, behaviors, and affiliations should not be ignored just because they are comingled with religious faith or observance.

•           DoD Directive 1332.30, Separation of Regular and Reserve Commissioned Officers:  Training of DoD personnel should clarify that exhibiting violent Islamist extremist views, behaviors, or affiliations by an officer would constitute substandard “attitude or character” for which separation from military service may result.

III.       DoD Should Revise its Policies to Address Violent Extremism Generally and Violent Islamist Extremism in Particular.

Other DoD policies should be revised to address servicemembers who exhibit violent extremist views, behaviors, or affiliations, including those associated with violent Islamist extremism. 

The Department should update DoD Instruction 1325.06, Guidelines for Handling Dissident and Protest Activities Among Members of the Armed Forces.  The Department originally issued the Instruction in response to Vietnam-era anti-war activities by servicemembers and has updated the Instruction to address servicemembers involved in supremacist activities and criminal gangs.  The most recent version of the Instruction prohibits not only servicemember participation in certain organizations but also prohibits “actively advocat[ing] supremacist doctrine, ideology, or causes.”  The inclusion of active advocacy broadens the instruction to cover situations in which a servicemember acts alone without involvement with a group.  However, the history of the Instruction, combined with the common understanding of the term “supremacist,” suggests that the prohibition is limited to racial extremism.  Accordingly, the Instruction should be broadened so that it clearly applies to other types of violent extremism, including violent Islamist extremism. 

The Army also should update its Pamphlet 600-15, Extremist Activities.  This pamphlet, issued in response to the racially-motivated murders committed by servicemembers at Fort Bragg in 1995 and DoD’s subsequent revision of Instruction 1325.06 in 1996, is heavily oriented toward supremacist activities and other racial extremism.  The pamphlet should be expanded to address servicemembers who exhibit signs of violent Islamist extremist views, behaviors, or affiliations.  Accordingly, the Army should revise the pamphlet to discuss signs of such views, behaviors, or affiliations.  In doing so, the Army should specify that servicemembers who exhibit signs of violent Islamist extremist views, behaviors, or affiliations, may do so as the result of self-radicalization or as “lone wolves.”  The Army should also consider how the Instruction should be revised to prospectively address future threats from other violent extremist ideologies.  The other Services should make corresponding changes to their policies and procedures. 

IV.       DoD Should Ensure that Servicemembers Report Signs of Violent Islamist Extremism.

The Department and the Services should also revise their policies to ensure that servicemembers have a clear obligation to report servicemembers who exhibit signs of violent Islamist extremist views, behaviors, or affiliations.  As General Keane testified before our Committee, “It should not be an act of moral courage for a soldier to identify a fellow soldier who is displaying extremist behavior.  It should be an obligation.”

DoD’s policies do not clearly require that servicemembers report other personnel who exhibit signs of violent Islamist extremist views, behaviors, or affiliations.  Neither the version of DoD Instruction 1325.06 on extremism, Guidelines for Handling Dissident and Protest Activities Among Members of the Armed Forces, in effect before the Fort Hood shootings nor the revised directive issued in November 2009 contains a reporting obligation by servicemembers with respect to the types of activities covered by that Instruction.  In addition, DoD Instruction 5240.6, entitled Counterintelligence (CI) Awareness, Briefing, and Reporting Programs, includes a requirement that servicemembers report “circumstances that could pose a threat to security of U.S. personnel, DoD resources, and classified national security information.”  This Instruction could be read to require reporting of violent Islamist extremist activities by servicemembers.  However, the reporting requirements within this policy focus primarily on threats from foreign intelligence services and terrorist organizations.  As such, the policy’s main requirement is that DoD personnel report contacts with such organizations, not that they report personnel who exhibit signs of violent Islamist extremist views, behaviors, or affiliations.  The Department should revise its policies to ensure that servicemembers understand they have an obligation to report personnel who exhibit signs of violent Islamist extremist views, behaviors, or affiliations. 

Likewise, Army policies are vague regarding the extent of any obligation that Army personnel have to report other personnel who exhibit signs of violent Islamist extremist views, behaviors, or affiliations.  Army Pamphlet 600-15 contains a brief reference to servicemembers needing to “report specific indicators [of extremism] to the chain of command.”  But the Pamphlet does not detail an individual servicemembers’ reporting obligations or sanctions for noncompliance, and thus contrasts to the highly structured reporting obligation for subversion and espionage under Army Regulation 381-12, Subversion and Espionage Directed Against the U.S. Army (SAEDA).  However, even Army Regulation 381-12 does not appear to require that Army personnel report other personnel who exhibit signs of violent Islamist extremist views, behaviors, or affiliations.  For example:

•           Army Regulation 381-12’s requirements for reporting “contacts by [Army] personnel with persons whom they know or suspect to be members of or associated with…terrorist organizations” and “active attempts to encourage military or civilian employees to violate laws, disobey lawful orders or regulations, or disrupt military activities” do not seem to address servicemembers who merely exhibit signs of violent Islamist extremist views, behaviors, or affiliations and do not encourage other servicemembers to take any specific actions. 

•           Army Regulation 381-12 also requires reporting of “information concerning any international or domestic terrorist activity or sabotage that poses an actual or potential threat to Army or other U.S. facilities, activities, personnel, or resources.”  However, signs of violent Islamist extremist views, behaviors, or affiliations prior to any indication of terrorist activity or sabotage would not appear to trigger this reporting requirement.

Accordingly, the Army needs to revise its policies to clearly and unequivocally require that servicemembers report fellow servicemembers who exhibit signs of violent Islamist extremist views, behaviors, or affiliations.  Concomitantly, the Army needs to ensure that its personnel receive training that clearly outlines their obligation to report indicators of violent Islamist extremist views, behaviors, or affiliation.  The training should explain how such activities differ from the exercise of religious faith, including the practice of Islam.  The other Services also should clearly require that their servicemembers report signs of violent Islamist extremist views, behaviors, or affiliations and provide training. 

The threat posed by servicemembers who exhibit signs of violent Islamist extremist views, behaviors, or affiliations raises both personnel and counterintelligence / subversion concerns.  The extremism policies referenced above are promulgated by the Undersecretary of Defense for Personnel and Readiness and the Deputy Chief of Staff of the Army for Personnel while the counterintelligence/subversion policies referenced above are promulgated by the Undersecretary of Defense for Intelligence and the Deputy Chief of Staff of the Army for Intelligence.  Senior Department and Service officials should ensure sufficient coordination between the personnel and the counterintelligence/ subversion components of their organizations to ensure that violent Islamist extremism among servicemembers is handled appropriately.

*                                 *                                 *

Clearly, violent Islamist extremism is highly distinct from Islam, and thousands of Muslim-Americans serve honorably in the military.  We believe that the changes recommended above will not serve to increase scrutiny of these servicemembers’ religious beliefs or practices or to cause tension with their colleagues.  To the contrary: we believe that the opposite will occur.  Efforts by DoD to educate its personnel concerning what violent Islamist extremism is and what the warning signs of such extremism are – as distinguished from the practice of the Islamic faith – will increase trust between the thousands of Muslim-Americans serving honorably and their colleagues.  Clear policies and training should foster greater respect for Muslim-Americans who serve in the military.  We trust that, given the sensitivity of this issue, DoD will proceed to make the revisions and changes outlined in this letter in a manner that seeks to avoid unintended consequences and interpretations of its new policies and training.

We understand that the Department’s initial review concerning the Fort Hood shooting is scheduled to conclude on January 15, 2010.  We understand that the initial review will focus on the military’s personnel evaluation system; we plan to review that system in the course of our full investigation.  We assume that the Department’s overall review will assess the adequacy of the Department’s approach to violent Islamist extremism among DoD personnel and hope that our recommendations as outlined above will be helpful to your review.  As mentioned above, we will continue our investigation and may make further recommendations in this area based on the specific facts concerning Major Hasan and any *
additional information.

*
Preceding provided by Senators Lieberman and Collins

Lieberman, Collins announce Senate hearing into attempted airline bombing

WASHINGTON, D.C. (Press Release)  – Homeland Security and Governmental Affairs Committee Chairman Joe Lieberman ( Independent, Connecticut), and Ranking Member Susan Collins, (Republican, Maine) , announced Monday that they would convene a hearing in January to examine the layers of security meant to protect airline passengers from terrorist attacks but which accused terrorist Umar Farouk Abdulmutallab successfully evaded.

The hearing is intended to address two vulnerabilities exposed by the Christmas Day attack on a jetliner flying between Amsterdam and Detroit: Why the names of passengers boarding flights from abroad to the United States are not checked against our broadest database of known or suspected terrorists, rather than against a smaller screening database? And why aren’t more passengers asked to pass through whole body imaging scanners that might have detected the explosives Abdulmutallab was carrying?

“I view Umar Farouk Abdulmutallab as a terrorist who evaded our homeland security defenses and who would have killed hundreds of people if the explosives he tried to detonate had worked,” Senator Lieberman said. “We were very lucky this time but we may not be so lucky next time, which is why our defenses must be strengthened. What we know about the Abdulmutallab case raises two big, urgent questions that we are holding this hearing to answer: Why aren’t airline passengers flying into the U.S. checked against the broadest terrorist database and why isn’t whole body scanning technology that can detect explosives in wider use?”

Said Senator Collins: “We dodged a bullet on Christmas Day in the skies over Detroit. Nearly 300 lives were spared when this terrorist attack failed, but we cannot pin our nation’s security on good fortune, the bravery of other passengers, or the mistakes of our enemies. Our security strategies must put data into the hands of those who can take action to detect and disrupt attacks before they occur. We cannot expect to be this lucky next time.

“Our Committee’s inquiry will focus on identifying information-sharing and analysis gaps as well as any other security breakdowns,” she said. “Our Committee will ask why the names of passengers boarding planes to the United States are not run against all the databases of suspected terrorists, so that individuals of concern can be subjected to more thorough questioning and inspections.

“In this specific case, if our security officials had intelligence on the radicalization of Umar Farouk Abdulmutallab, questions arise about why his visa was not canceled. We must carefully investigate why that apparently did not happen in this case.”

The Homeland Security and Governmental Affairs Committee has been investigating violent Islamist extremism and self-radicalization since 2006, holding 10 hearings and issuing a report on the Internet’s role in self-radicalization. The Committee is also conducting an investigation of the circumstances leading up to the Nov. 5 Fort Hood massacre.

On Dec. 9, the Committee held a hearing on preventing terrorist travel, focused on international travel security measures such as the Visa Waiver program, the U.S. Visit program and the Terrorist Screening Center.

*
Preceding provided by Senate Committee on Homeland Security and Government Affairs

Lieberman asks why attempted bombing suspect was allowed to fly to U.S.

WASHINGTON, D.C. (Press Release) – Homeland Security and Governmental Affairs Committee Chairman Joe Lieberman (Independent, Connecticut), issued the following statement Saturday night in reaction to the attempted terrorist attack on a trans-Atlantic airlines flight December 25, 2009.

“I want to congratulate the passengers and crew of the Northwest/ Delta flight who tackled, subdued, and restrained the suspect for their courage and professionalism. Our government has a multi-layered system of security in place to deter terrorist attacks, but if someone slips through those layers, as appears to have occurred in this case, we rely on each other to keep vigilant, be aware of our surroundings, and report, or in extreme cases, act on suspicions.

“That said, I am troubled by several aspects of this case, including how the suspect escaped the attention of the State Department and law enforcers when his father apparently reported concerns about his son’s extremist behavior to the U.S. embassy in Lagos, how the suspect managed to retain a U.S. visa after such complaints, and why he was not recognized as someone who reportedly was named in the terrorist database.

“Each thwarted or unsuccessful terrorist attack reminds us that we must continue to be vigilant and never let down our guard against the many people around the world and within the United States still plotting to kill innocent Americans. ”

*
Preceding provided by Senator Joseph Lieberman