Published by The Lawfare Institute
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Within 24 hours of the massacre in Christchurch, New Zealand—in which an Australian assailant murdered 50 people attending worship services at two mosques—the public reaction and discussion took two notable paths. The first was a nearly universal acknowledgment among informed observers that far-right violent extremism has grown into a sizable international threat. Almost in an instant, commentators in the U.S., where this type of terrorism is typically placed under the umbrella of domestic terrorism, began to articulate this form of extremism as a global threat. (I’m using “far-right violent extremism” for purposes of this piece but could also use “white nationalism” or “white supremacism” or “white power groups.” The director of national intelligence describes these types of groups in Europe as “violent ethno-supremacist and ultranationalist groups.”) The second was backlash against U.S.-based social media companies for not stopping the spread of the video the assailant livestreamed, and the manifesto he posted online, more quickly and more effectively.
Both observations represent challenges that are specific to our day: the first, a recognition of a new threat; the second, a reaction to how society handles the threat. These two different reaction streams underscore a common challenge: how governments, allied partners, national security professionals and society can adapt to modern emerging threat environments with an eye toward the future and not the past. Here are three recommendations intended to aid the public debate surrounding emerging national security threats:
Accept that today’s threats are different, but the existence of new threats does not mean the old threats no longer exist. The FBI reports an increase in domestic terrorism-related arrests toward the end of 2018. The fact that the threat of far-right violent extremism is rising in today’s environment should not be interpreted as a revelation that the U.S. government’s increased focus on international terrorism since September 2001 was misplaced. Those counterterrorism programs—from domestic international terrorism investigations to military activities overseas—have been effective in degrading what were substantial threats to the U.S. and many other countries by al-Qaeda, the Islamic State, and the long list of affiliated organizations and terrorist networks. But according to the 2019 Worldwide Threat Assessment of the director of national intelligence, terrorism from these organizations remains a threat “particularly in Sub-Saharan Africa, the Middle East, South Asia, and Southeast Asia.” The fact that additional threats have been added to the threat matrix in no way suggests that the prior threats were exaggerated at the time.
The U.S. national security enterprise needs to be able to manage multiple threats at the same time. It also needs to be able to adapt to emerging threats more nimbly. That effort should involve improving strategic warning. It also requires better communicating how the national security community—in both the U.S. and the nations of allied partners—is adapting to new and emerging threats.
In the U.S., adapting to a growing internal threat of far-right violent extremism will be a challenge but not an insurmountable one. The first component of this challenge involves determining whether this effort should be understood as combating a domestic issue or a global terrorism threat. The U.S. intelligence community—which is charged with providing warning about emerging threats—is charged with collecting foreign intelligence information. That means that even today the intelligence community is allowed to collect intelligence regarding, for example, far-right violent extremism emanating from Europe or Australia. The depth of that collection, however, depends on the assessment of the extent to which those people or entities are deemed a threat to the U.S. or its interests.
The intelligence community, under the current U.S. legal framework, would not be permitted collection about the same type of activity that is purely domestic. That responsibility falls to the FBI’s domestic terrorism investigators, who generally investigate domestic terrorism in connection with potential criminal law violations, and who are trained to adhere to requirements of law and guidelines. America does not have a “domestic intelligence service” in terms of an agency that monitors—without a nexus to criminal activity—the activities of domestic actors. Undergirding those rules and legal barriers are very sound reasons—some tied to First Amendment protections and others grounded in U.S. history’s darkest moments—that counsel rejecting the creation of a police surveillance state. As such, the choice of whether to treat far-right violent extremism as a domestic issue rather than an international threat will have real effects in the tools available to combat that threat.
A second challenge involves the laws relating to intelligence collection and prosecution relating to individuals involved in domestic terrorism, which have not been updated commensurate with the increased threat. There are credible arguments for and against domestic terrorism statute proposals, but a related question is whether additional criminal penalties would be accompanied by additional investigative authorities. There needs to be a serious and nonpoliticized debate about the pros and cons of loosening legal authorities and rules surrounding investigative techniques aimed at disrupting acts of far-right violent extremism. The answer is not at all straightforward, and I would prescribe a heavy dose of caution for those urging greater attention to investigation of domestic terrorism, lest such advocacy lead to calls or proposals for an internal security service charged with collecting intelligence on domestic groups.
Recognize that technical intelligence collection tools have a shelf-life. There are specific ways that individuals intent on committing acts of terrorism can be disrupted. These include physical response in the moment by law enforcement or affected citizens; friends, associates or acquaintances reporting suspicious or concerning behavior to law enforcement authorities; and discovery by national security or law enforcement authorities in the course of an unrelated or tangential investigation of another person or persons. These types of initial leads can prompt further investigation, sometimes involving significant investigative techniques such as surveillance. With respect to this last technique, surveillance programs may be shut down for a variety of reasons: for example, lack of productivity, targets changing behavior and modes of communication, and difficulty with legal compliance.
The fast pace at which new communications technologies are being developed has the related effect of creating new modes of government surveillance. Combined with the pervasive era of hacks and leaks, this means that certain techniques for surveillance will become obsolete, exposed or otherwise not-as-useful over a relatively short duration—shorter than, perhaps, the 1980s and 1990s allowed. This is not a judgment about whether that development is good or bad; it just is.
Later this year, we may see a legislative debate that will challenge the policy community’s ability to adapt to changed circumstances. At the end of 2019, certain surveillance-related authorities under the Foreign Intelligence Surveillance Act (FISA) will sunset, unless renewed. Similar debates have been framed for the past 18 years as wins and losses between advocates opposed to surveillance, and government agencies requesting enhanced or continued authorities. The more relevant questions are whether the authorities continue to be necessary as a national security matter, whether they are effective as currently written in law, and whether they are appropriately calibrated to protect privacy and civil liberties. Debates over investigative authorities need not always be treated by the policy community as existential battles. Legal authorities for national security investigations will need to be nimble in the current era of rapid digital technological development coupled with substantial vulnerabilities and exposures.
Acknowledge that private companies, no matter how big or global or altruistic, are not governments. Much of the early attention to the massacre focused on its real-time online horror. According to the New York Times, “the attack was teased on Twitter, announced on the online message board 8chan and broadcast live on Facebook. The footage was then replayed endlessly on YouTube, Twitter and Reddit, as the platforms scrambled to take down the clips nearly as fast as new copies popped up to replace them.” Within the first 24 hours, Facebook said it “removed or blocked from the social media site 1.5 million videos.”
International terrorists have been using emerging technologies and platforms to communicate and share information since the moment these digital spaces and tools became available to the general public. Online radicalization is not new. U.S. technology companies have taken steps to address malfeasance on their platforms and systems, but companies will be incentivized to do only so much, absent external requirements. It is the government’s job to determine what rules need to be in place in order to meet national security and public safety objectives. Not only can government not outsource its fundamental responsibilities to private companies; it cannot expect companies to respond to shifting government and societal expectations without a legal framework.
One thing is clear: National security threats do not remain static. To address threats, the national security community must be able to identify new threats and reprioritize and reallocate resources to adjust to new threat environments. We need to do much better at getting ahead of threats. And as a society, the U.S. needs to recognize that as threats emerge and evolve, the best thing Americans can do is attack them together and not allow those threats to tear them apart.