Tones. [laughter] we would not like to hear any more of those interesting ring tones. Please remember so silence your phones. If you want to take pictures, take videos, etc. , and tweet them, yes, the hashtag trib fest 19 is how you will do that. We will take questions at the end. The mic will be passed around. If you want to get the attention of the mic, please look around as we move to that portion of the program. Quickly, im david priest, the chief operating officer of law fair. I worked in the Counterterrorism Center at cia both before and after september 11th. Now revisiting the terrorism issue from a different perspective. Im here to bring out the best expertise from our four panelists, bobby chesney, one of the three co founders of law fair previously served on the president s Detention Policy Task force. Now the third chair in law and World Affairs at the university of texas where he also directs the robert s. Strauss center. Mary mccord has been the acting assistant attorney general for National Security, the Principal Deputy assistant attorney general for National Security, and for, what, 20 years before that, an assistant u. S. Attorney. Now the legal director at the institute for constitutional advocacy and protection and visiting professor of law at Georgetown University law center. One step closer, lisa monaco, the Homeland Security and counterterrorism advisor to president obama as well as the assistant attorney general for National Security and chief of staff at the fbi to then director robert mueller. Whatever happened to him . [laughter] shes now the co chair of a Data Security and prif si group. Privacy group. She teaches National Security law at New York University school of law and also a security analyst at cnn. Last and certainly not least, Nick Rasmussen is at the end. He was director of the national Counterterrorism Center or nctc after serving in government positions in both the george w. Bush and obama administrations. Now senior director for National Security and counterterrorism programs tat Mccain Institute at the Mccain Institute for International Leadership and a professor of practice with the Sandra Day Oconnor college of law at Arizona State university. Thats a lot of background and experience to bring to bear on this issue thats confronting us today. So lets start off with laying the stage. Bobby, what is domestic terrorism, and what statutes do we have to help us address it . So the first thing to understand as we grapple with the definition of domestic terrorism is there can be and in fact is often a difference between what we might describe as the ordinary common sense definition or sense of the phrase and what particular legal definitions there might be. So lets just start with the common sense understanding, which is usually described as Something Like the following illegal acts of violence, where the mental state of the person conducting the act, where the intent is to have a coercive effect on government policy, and or to intimidate or terrorize a civilian population. So theres this motivation that distinguishes it from pecuniary crime, you know, trafficking violence, that sort of thing. Thats just the common sense understanding. What makes it domestic instead of just terrorism and generally would be where the nature of the threat actor doesnt have a substantial foreign tie. The plots not emanating in the form of direction and control or development of the plot, etc. , from abroad. That is to say, its simply one of us doing it here. Thats the common sense understanding. As for how its spoken about in statutes, thats where it gets kind of tricky, and there in lies a lot of the Current Issues at this area. At the federal level, we have a variety of what we might describe as generic Violent Crime statutes. Killing of a federal official, for example, a type of murder statute. But then we have a slice of federal criminal law thats specific to terrorism. You can find it title 18 of u. S. Code, subchapter 113b. Theres a laundry list of these offenses there, most of them are International Terrorism focused because thats an area where of course it is the federal government. Its got to play the lead role. It is widely believed and said that we dont have a domestic terrorism federal statute. Its true that we dont have one thats labelled as such. And i think were going to talk as a panel about whether thats an important gap that needs to be closed, simply for the symbolic purposes, and all the things that practically follow from the symbolism. But its also the case that some of the terrorism statutes in title 18 actually do apply to domestic terrorism scenarios. So as a practical matter, the question is when can the federal government get involved in charging . If its a terrorist attack, thats purely domestic, but it involves explosives or attacks on certain types of targets, federal officials, transportation hubs, in those scenarios federal law terrorism statutes can be charged in those scenarios. The practical gap, theres two, gunsnd other forms of violence like weapons or using a vehicle that dont involve explosives. So domestic terrorism using the most common method of attack would be guns. Thats not covered at the federal level unless some other way of approaching it happens to be triggered. Secondly, you may have heard of something called the Material Support statute. It gets complicated because theres more than one of these. The one that everyone has heard of is like an embargo that flat out prohibits any provision of support tangible or intangible to a Foreign Terrorist Organization thats been formally designated as such. We dont do that with domestic terrorist organizations. So thats a separate gap. And whether any of these gaps should be closed is a separate question that i think we will talk about. Quickly, you mentioned federal, federal, federal. But for an issue where there is a murder using a vehicle, a gun, or a weapon, states will prosecute that. Theres no scenario involves an act of violence thats not going to at least violate general Purpose State laws. So in our own most recent tragedy in el paso, here in texas, there is capital murder charges have been filed by the d. A. In el paso. It doesnt matter that we cant file a federal domestic terrorism charge in order to seek the Death Penalty in that case. It might matter for other reasons. Going back to previous cases of Mass Violence in the United States, theres been a lot of talk after almost every one about what needs to be done and not much has happened because of it. Lisa monaco you wrote recently regarding domestic terrorism it is time to turn from talk to action and confront this threat. What specifically do you have in mind . What should be done to fill some of these gaps that bobby mentioned or address other ents of domestic terrorism . Thanks for mentioning that piece. I wrote it with ken who has my some role in the white house as counterterrorism advisor for president george w. Bush. That piece we wrote was really about calling on all of us, political leaders, citizens, to put aside political tribe, put aside the partisanship and really do our duty is how we put it to focus on the most urgent threat we have as a nation, domestic terrorism, gun violence, Mass Violence, russian attacks on our democracy, all of those are things where ken and i both feel we need more bipartisanship and nonpartisanship. So on domestic terrorism, in particular, i think theres a few things we should do. One, we need to call it by its name. We need to call it out. Here i would cite some a good move by the department of home land security just last week in issuing a strategy paper that says in quite clear language from the department of Homeland Security, domestic terrorism and mass attacks are as great a threat as foreign directed terrorism, as foreign terrorism. Thats a given the headlines and the incredible tragedy that communities like el paso and dayton and others have faced, that seems apparent, but it hasnt been said. It hasnt been said, and it hasnt been said enough certainly by the federal government and experts at the federal level. So weve got to call it out. I think we also need to put it on the same priority list. We have to put it on the same plain as foreign terrorism same plane as foreign terrorism. Which is not to say that we should be ignoring or downgrading our approach and our focus on foreigndirected terrorism. I suspect theres a lot of unanimity on this panel on that score. But we need to reprioritize or recalibrate how were thinking about domestic terrorism, because with that follows resources, focus, leadership which gets to one of the things i think we really need to do, one is a patho domestic terrorism statute. Mary has written about this, and she can talk about it more, but doing that i think will apply the same to acts of violence that are directed to intimidate, the same as we have for foreign terrorism. We also need to restore the job of the Homeland Security and counterterrorism advisor in the white house. So that role, the one i had has been downgraded. The person who serves in the nowdowngraded function of that job i think has been put into witness protection after, you know, he had to make a statement about the whole sharpie gate i dont want to get off lets be clear. There is still a position there. It just doesnt report directly to the president as you did. There is a position. They are calling it the Homeland Security advisor. Hes been downgraded within the structure. What does that mean . Is this all just bureaucratic baloney . No, and heres why. When i was in that role, the idea was, and president bush started this, i think quite rightly and quite smartly, to have one person operating at the most senior level in the white house whose job it was to focus 24 7, wake up every day, focused not on the next summit, not on the next foreign leader engagement, but on threats to the homeland and to report directly and immediately and i can tell you i did which is why president obama gave me the nickname dr. Doom [laughter] because every time i saw him, i was bringing him bad news. But structure matters; right . And how you spend your time matters. I met with him every morning, in the oval office, and briefed him on terrorism threats, cyber threats, you name it. Terrorism was always at the top of the list. So i think it matters. It means theres focus in the white house at the top, at the leadership level. It means you have somebody in the white house who can convene the cabinet, which i was able to do, operating at my level, with a direct kind of empowerment from the president of the United States, to coordinate our response to terrorism events in this country and abroad, to coordinate policy. You need to have that responsibility resonate in one person. We can talk about other things i need to be done, like funding for community and Grassroots Efforts to kind of intervene when people are going down a dark path. Gun reform, you name it. Lets go back to the statutory side first. If any of you in the last couple of years have read or heard anything about the need for a domestic terrorism statute at the federal level, it was probably attached to the name mary mccord. You have been beating this drum for a while including more recently after the most recent attack. Tell us, what specifically do you have in mind . What would a federal domestic terrorism statute have, and whats the benefit of doing it . Sure. And i will tell you, you know, i was thinking about this, and i think lisa was before me, holding the role as assistant attorney general for National Security, before i was even over there in a similar role, but as a an acting, we were thinking a lot about domestic terrorism and whether there was a gap that need to be filled. I left the government in may 2017, in august 12, 2017, most of you in this room probably recall the unite the right rally in Charlottesville Virginia which ended with a vehicular attack, a domestic terrorism attack by a man who ran his vehicle into a crowd of counterprotesters killing one and seriously seriously wounding dozens of others. I watched that and i saw what happened, and i thought this is the same kind of terrorism weve been seeing across europe and other places on behalf of Foreign Terrorist Organizations, like isis, for the last couple of years because frankly the vehicle had become almost a weapon of choice in a lot of the attacks in europe. That was the u. K. , france, germany, elsewhere. So i immediately wrote about it, that very next day to say we have a gap in our statutes because if this person, james fields in charlottesville had pledged to the leader of isis before he committed his attack, just like if shooter in el paso had pledged right before h committed his attacks i can guarantee you either both of them would be charged with crimes of terrorism, International Terrorism for attempting to commit that attack on behalf of a Foreign Terrorist Organization. So we have a doublestandard. And as lisa mentioned, you know, crimes in our country are societys way of expressing their condemnation for activity, that its beyond what is permissible in a society of laws and of the rule of law. So there is that moral equivalency that we need to have, i think in the way we approach terrorism, but beyond that, because people will say to me, all right, so is it just semantics . Is it just moral equivalency . i dont appreciate efforts at lawenforcement and our government put forth to combat that threat and more importantly the way that you as Community Members can be aware of the threat and looking out for things you might see in your own community. We know in the area of International Terrorism in as many as 70 percent of the cases there was somebody, a bystander, a family member, a religious leader, a mentor who saw something going wrong in that persons life before they decided to commit a terrorist act and the same thing holds true when were talking about ideologically motivated attacks that are not based on a Foreign Terrorist Organization but on ideologies, extremist ideologies whether its white supremacist extremism which we know right now is the most lethal ideology when it comes to terrorist attacks and deaths in the us and it has been that way for a few years or whether its Animal Rights extremism or an artist extremism. When you commit an act of violence to coerce, thats terrorism so the gapas bonnie mentioned is twofold. Youll hear this a lot that there are 51 crimes that would apply to domestic terrorism but those are specific as bobby indicated. Use of explosives or attacks on Us Government property or government officials. Theres no crime applies to use of a weapon to commit a mass shooting, to intimidate or coerce thats not tied to a Foreign Terrorist Organization. Same with the vehicle. Theres no crime that would apply to stockpiling weapons, intending then to be used in committing a mass shooting for ideological purposes and it order to commit or coerce. So as ive conceived of a statute and i talked with people on capitol hill, talk to civil rights and Civil Liberties groups, ive talked to the Oversight Board, ive been trying to talk to as many people as i can to this about can we have a public proposal that satisfies all the concerns. The basic outline would be your criminalizing things that could be prosecuted in state courts, murder, kidnapping, assault with a dangerous weapon but when done with the intent to intimidate or coerce, to influence policy of government through coercion this would be, when done in the United States under us territories that would be terrorism within the territorial jurisdiction of the us and i say that instead of domestic terrorism because it would apply to a terrorist attack on behalf of isis or al qaeda. What would be a kind of violence to intimidate or coerce. What that would do would also form not only for Law Enforcement to aggressively use the types of tools theyve used to combat International Terrorism, we can talk about those. Thats like online undercover personas, sting operations that some people criticize as being too aggressive and i understand that but those are things in thatprevention so it gives Law Enforcement more of a predicate , they can do some of that now, i dont want to suggest they cant but when they know this is the statute that their predicate in their investigation on it makes it, he gives them about thats more direct as opposed to calling it Something Else in order to use those tools. It would also allow for the criminalization of the stockpiling of weapons, knowing and intending those are to be used in committing a crime of terrorism w