Malcolm Nance On Talking Feds Podcast

Malcolm Nance On Talking Feds Podcast About Domestic Terrorism and the Law

This is a group discussion that includes Malcolm Nance. He told us about his guest spot on Talking Feds while talking to Stephanie Miller. I wanted to show you what he said and it’s transcripted already. The problem I’m having is there’s no way to link directly to the episode’s text, they are all on a blog page together. Rather than let you get frustrated or distracted later on when you search for it, I’m copying a segment of it while linking you to the full podcast.


Talking Feds Episode #29: Left of Boom: Extremism and the Law

News Anchor #1 [00:00:01] MONTAGE: Breaking news tonight from El Paso, Texas. At least 20 people have been killed, after a shooting rampage at a shopping complex…

News Anchor #2 [00:00:09] Thirty two year old Heather Heyer died when a car drove into counter protesters… 

News Anchor #3 [00:00:13] The Gilroy police have confirmed, that this is an active shooting situation… 

News Reporter #1 [00:00:18] Family friends and strangers continue to leave flowers for the victims of Saturday’s Tree of Life synagogue shooting… 

News Anchor #4 [00:00:25] The city of Orlando is starting to say goodbye to the 49 victims lost in the Pulse nightclub shooting…

News Reporter #2 [00:00:32] This busy Texas shopping center becoming the latest mass shooting… 

John Bash [00:00:36] We are treating it as a domestic terrorism case and we’re going to do what we do to terrorists in this country which is deliver swift and certain justice. 

Frank Figliuzzi [00:00:50] Welcome back to Talking Feds where prominent former federal officials gather for a dynamic roundtable discussion of the most important legal topics of the day. I’m Frank Figliuzzi, former FBI assistant director and an NBC News national security contributor. It’s my honor to guest host for Harry Litman. He’ll be back in this chair next week. 

Frank Figliuzzi [00:01:14] Today we’re talking about violent extremist ideology and how the law copes or doesn’t with crimes inspired by ideology. The horrors of recent mass shootings in Gilroy, El Paso and Dayton have many of us questioning whether existing legislation adequately equips law enforcement to prevent such acts and to sufficiently address violent actors when they are motivated by what they believe. 

Mary McCord [00:09:38] So regardless of the ideology whether it’s Islamist extremism as it was for example with respect to 9/11 and many of the terrorist crimes that we’ve seen prosecuted since 9/11, or whether it’s far right wing extremism like some of the white supremacist motivated crimes we’ve seen recently here in the United States, or whether it’s any other ideologically driven extremism when it crosses over into espousing certain viewpoints and ideologies into a radicalization toward violence where actual violence is solicited incited, that is when we leave sort of First Amendment protected speech and we really are talking about violence which is not protected, the Supreme Court has told us time and time again. 

Mary McCord [00:10:29] So I think it’s important to pull away from viewpoint and the subjective nature of ideology and focus on what is the intent if the intent is intimidation or coercion. It’s bigger than just a one on one crime. It’s bigger than just a local issue or a state issue or a national issue it becomes an international issue and a matter of national security for the US.

… I share frustration regarding cases I had to supervise where we were left with a big dilemma of whether to do what we called “knock and talk” to disrupt something we knew was going to about to happen or was being talked about particularly with militia groups because you do that knock and talk just to let them know we’re onto you and then they get empowered when you can’t arrest them and they feel like they’re being harassed and abused and it makes its way around the Internet that you know we we blew off the FBI and you’ve got to you’ve got to make some decisions about when the violence might be happening or whether it’s time to knock on and disrupt. 

Frank Figliuzzi [00:15:19] Malcolm. That’s a good segway for you in terms of someone who’s been a practitioner in the field and this whole idea of how to investigate violent ideology. The FBI Director Chris Wray has said on the Hill that the FBI doesn’t investigate ideology they investigate violence and as we’ve been talking about the question is Isn’t it too late if the FBI is waiting for violence to occur. So in your background experience what have you seen regarding successful interventions on the international terrorism side that maybe could be a moment implemented on the domestic side and this raises the whole question of the El Paso shooter if we switched his motivation to Islamic Jihad would there have been a different outcome. Would the FBI have been empowered to be in chat rooms and sites where they might have seen this planning take place. 

Malcolm Nance [00:16:14] I’m almost certain that had it been a jihadist that the FBI would certainly be investigating ideology. And since 9/11 one of the the core components of the national intelligence apparatus has not just been the collect against the target and collect against the organizational structures but certainly after 2005 between 2005 and 2010 there was a huge effort to go after the ideology and understand that the ideology was the driver of all of the acts. 

Malcolm Nance [00:16:49] In fact I wrote a book called “An End to Al-Qaeda” which was a very deep dive study of al-Qaeda’s ideology and how that pushed the street level person into what we now commonly call radicalization. From that radicalization would lead them on to joining an organization or becoming a self starting terrorist which is what we saw al-Qaeda more from from the you know the core clandestine service type organization paramilitary to a disparate group of people who have weapons systems and just go out and do an act or a deed which gets them sort of membership into the group and allows them to be hagiographed after their death. Ideology despite what Director Wray says is always going to be a core driver. 

Malcolm Nance [00:17:41] I know you, know coming from the international perspective I got to use or against international terrorist groups national systems and intelligence collection methodologies. You just couldn’t possibly imagine being used against an American citizen because of those misnomer as as Barb said earlier where people would say oh that’s an active shooter or that’s a militia man. And because they don’t fall under the acts or and clearly defined under the statutes as terrorist. 

Malcolm Nance [00:18:15] There are intelligence resources that just can not be used you know or if they’re used they’re used exclusively by the FBI and the FBI itself doesn’t have access to a lot of the analytical tools and resources that the National Counterterrorism Center or other intelligence agencies and apparatus would have because they are American citizens. And so once we can corral American citizens in their behaviors into the statutes as you know equal to being international terrorism then we’ll have a lot more methodologies to collect against these these individuals not just wiretaps or you know the knock, knock and talks which you know I’m a big fan of. I think those disrupt American citizens who were essentially talking off at you know shooting off at the mouth. 

Malcolm Nance [00:19:12] But you know we don’t apply that same standard to an American citizen that’s joining al-Qaeda or ISIS. We, you know, I know the FBI does their knock and talks but because of the statutes there are resources that are used in the United States, offshore strategic assets the intelligence community have that the FBI has access to that we can’t use against the militia group that may be planning the next Oklahoma City bombing. 

Frank Figliuzzi [00:19:41] So Malcolm raises a great question here and I think a lot of our listeners might be scratching their head at this point saying, well so what’s behind this differentiation, what’s what’s the deal in our society where we seem to be very comfortable talking about another religion as extremist and violent. But when it comes to our own folks it seems we’ve we’ve got this huge gap.

Frank Figliuzzi [00:34:35] So Malcolm you’ve studied terrorism you’ve not only studied it you’ve you’ve worked directly against international terrorists in terms of looking at this idea of having the law catch up and treat things similarly to international terrorism. What are the commonalities you’re seeing are we are we on the right track are we seeing in things like El Paso white supremacy neo-Nazi groups the radicalization process. Are we seeing things that cause a bell to go off in your head and go look. That’s that’s not a whole lot different than the international side. 

Malcolm Nance [00:35:09] Yeah absolutely. Let me tell you a quick little story. When Anders Behring Breivik the Norwegian terrorist who went to you know set off with a car bomb in the center of Oslo trying to you know attack the central government then went to an island where he shot 68 children and an adult campers dead in an effort to essentially wipe out a political arm of his government. I was called that same day by a former student of mine who was in Norwegian intelligence and they sent me a translation of his manifesto as they were translating it into English and all of the principal players in his manifesto which by the way is now the same manifesto format that all of these white supremacist shooters around the world are using. It was rife with American citizens who were extolling you know this international cabal of right wing extremists to carry out attacks against Muslims around the world to create this sort of crusader Vanguard. 

Malcolm Nance [00:36:22] And the first question I asked was am I dealing with an international terrorism problem that emanates from the United States. So you know for me I couldn’t say yes. I mean you know people here in the United States have protected speech and all of the speech that they said was mainly public and this terrorist took that speech turned it into an ideology which today is now found in virtually all of our major active shooter situations right down to the format of the manifesto. 

Malcolm Nance [00:36:58] So I think that that Mary’s idea of taking what we already have these international statutes allowing for the protected speech but also giving the FBI and law enforcement agencies the ability to intervene left of boom you know and I love the title you know terrorism against the United States or terrorism in the United States because it gives a great psychological boom to law enforcement and government before you even get the statute written. I train a lot of state homeland security agencies in homeland security intelligence and they all think they’re going to be seeing ISIS.

They all think they’re going to be having gun battles against al-Qaida. And I tell them No it’s the Posse Comitatus guy. It’s the Timothy McVeigh. They’ll go to guns in a minute right. They come right out and have a duel with you right on the street and it happens so much that no one notices it but they don’t get the title of terrorist. And I think that even as legislation is moving forward and we fill these gaps I think the psychological operation of the FBI the state homeland security agencies even local law enforcement now coming out and saying this is a terrorist act.

This person will not be referred to as a shooter. He will be referred to as a terrorist. Can psychologically impact almost to a certain extent like a national you know knock and talk where they will not want to be associated with that term because they’re ideological enemies right. The immigrants the Muslims those people to them are terrorists. And they see themselves as the old phrase go right. They see themselves as freedom fighters because one man’s terrorist is another man’s freedom fighter. 

Malcolm Nance [00:38:55] But as we’re trying to work our way towards a solution which allows them you know national resources to be brought down to the FBI and other agencies just the discussion of it could have a psychological impact of on an enormous scale with a lot of these guys who are you know you say your ex state militia man. And the discussion nationally becomes about you may be designated as terrorist. You know once you’re protected speech goes into you know planning and buying ammunition for action before we even have legislation you may actually be breaking up you know some of that discussion which may lead to terrorist plots. 

Malcolm Nance [00:39:39] So there is a force multiplier here just in the national discussion of who is a terrorist what is a terrorist. And the entire concept of bringing up legislation. One quick aside this has actually happened before when I was still in the military I was a lecturer for the International Association of Bomb techs and investigators on terrorism. 

Malcolm Nance [00:40:02] And in fact there was a lot of discussion around the year 2000 of tagging ammonium nitrate in the United States. No laws had been passed but the discussion after Oklahoma City was so widespread that we caught a terrorist coming from Canada through the port in Washington state in a car on a ferry carrying his own ammonium nitrate because he thought we were tagging in the United States weren’t. So this entire discussion particularly against American citizens who you know think that they’re all patriots and people who are going to refresh the tree of liberty with blood just the discussion and designation that they could be equal to al-Qaida and ISIS. Could practically short circuit a lot of these activities that we’re talking about. 

Frank Figliuzzi [00:40:59] This is a powerful point. It really is. This is not just about law enforcement tools and investigative tools this is about counter radicalization. And I think you’re right if these groups and individuals see themselves now as being labeled as enemies of the United States and put kind of on a moral equivalency with ISIS and Al-Qaeda it could change the dynamic could change the discussion could certainly increase the FBI ability to recruit informants who who have you know who have a kind of a revelation that’s what they’re doing is inimical to the United States. Great great point. So I can already hear and we heard it almost immediately after El Paso. I can I can hear certain segments saying look don’t let’s not move to a knee jerk response. There were there were some action the Patriot Act some elements of Patriot Act in response to 9/11 that were exploitative or abusive too. This is a question for the whole group. How do we ensure if we move forward with legislation that we aren’t building in some abuses or or so will civil liberties issues. 

Barbara McQuade [00:42:07] I think that the bills that Senator McSally and Representative Adam Schiff have proposed include some oversight provisions in them. They require reporting requirements to Congress and to the Privacy and Civil Liberties Oversight Board to ensure how they’re being used.

Frank Figliuzzi [00:50:35] It’s almost goes back to Malcolm’s point of kind of a counter radicalization psychological impact. Note no service provider worth a darn wants to be labeled as some kind of enabler of terrorism so something to watch. 

Malcolm Nance [00:50:47] You know one of the things with you know having social pariah status by these web providers who allow some of these things to stay off even though they’re their free speech you know like you say free speech does not apply to the Internet. You know these private providers. YouTube is a good example of that. There is an enormous amount of of of information there and videos and Web talk that in any other group in the world outside the continental United States would have been targeted by U.S. intelligence right. As as you know terrorists ideology and radicalization training tools. I mean you know we did a lot of counter ISIS material that was being content that was being generated in the United States shared in the United States. 

Malcolm Nance [00:51:39] And the providers took that doubt until there’s a public outcry and I think El Paso was step one of that. These providers have got to see they may not be actually you know they may be criminally liable but for the most part no one’s putting plans on the Internet. They’re just talking about their new world order. But as they’re taken down in fact from the intelligence perspective I like the idea that they’re all going to get. I like the idea of if they’re going to go on to discuss you know or and these are you know with this channel lies is there a radicalization pipeline to an easily collectible you know space for academics and intelligence and law enforcement and they need to know that there’s that old saying that you know we have in the international counter-terrorism world about you know about being arrested in the United States for conspiring to work with al-Qaeda or ISIS. If you’re talking to al-Qaida or ISIS you’re talking to the FBI. You are not talking to ISIS. 

Malcolm Nance [00:52:46] And I want these people who are planning this who think that they’re going to we launch the Fourth Reich in the New World Order here. It’s not the Southern Poverty Law Center that’s going to be coming for you anymore or the any defamation league. It’s going to be all of us. 

Frank Figliuzzi [00:53:01] Well this is a great point because even even since El Paso there have been reports of up to two dozen arrests since then simply for people in the planning or even exploration stage and merely because the FBI too thinks the FBI opened what they call a threat assessment to take a hard look at it folks who might be doing this and then secondly the public is far more willing to come forward and report concerns and it’s really resulted in almost a disturbing number of takedowns since El Paso. 

Frank Figliuzzi [00:53:33] This has been a great discussion of a vital topic. One can only hope that our lawmakers during their summer break right now are having an engaging in this same kind of discussion. It’s been helpful for me and I hope it’s been helpful for our listeners. We close out talking Feds with a segment we call five words or fewer. And this is where we take a question from a listener previously submitted and each of us have to answer in five words or fewer. But let’s kick off our five five word responses with Barb. 

Barbara McQuade [00:54:54] No, but resign and tell. 

Frank Figliuzzi [00:54:58] Wow OK. That’s what we’re hoping for a big statement to be made by certain intelligence agencies may be optimistic. Mary. 

Mary McCord [00:55:09] I’m going to be a little bit more positive here. I’m going to say I trust the intelligence community to do the right thing is what what the inference I’m drawing is. 

Mary McCord [00:55:21] Find a Way. 

Frank Figliuzzi [00:55:22] Find a way. Malcolm? 

Malcolm Nance [00:55:24] My five words are Oh hell yeah they will. They’re not gonna play this game. 

Frank Figliuzzi [00:55:26] All right. I guess it depends on whether the head of the intelligence agency is a Trump appointee or not. I’m going to I’m going to give you my five words which is they will only partially comply. 

Frank Figliuzzi [00:55:42] I’m hoping that they push back and that they they never give up investigative techniques methods that could endanger lives or singular sources. Look this has been a wonderful discussion. I want to give my personal thanks and I know on behalf of Harry, he thanks Barb Mary and Malcolm for taking time out to share our thoughts with our listeners. I hope our listeners have enjoyed it and take taken away some some action items even perhaps for their own elected representatives. 

Frank Figliuzzi [00:56:19] If you like what you’ve heard, [or read here] please tell a friend to subscribe to us on Apple podcasts or wherever they get their podcasts. And please take a moment to rate and review this podcast. You can follow us on Twitter. At talking Fred’s pod to find out about future episodes and other Fed’s related content. You can also check us out on the web at talking fed scum where we have full episode transcripts. Submit your questions to questions at talking Fed’s dot com whether it’s for five words or fewer or general questions about the inner workings of the legal system for our sidebar segment. Thanks for tuning in. And don’t worry as long as you need answers the feds will keep talking. 

Frank Figliuzzi [00:57:09] Talking Feds is produced by Jennie Josephson. Dave Moldovan Anthony Lemos and Rebecca Lopatin. David Lieberman is our contributing writer production assistance by Sarah Phillipoom. Special thanks to Bradley Whitford and thanks to the incredible Philip Glass who graciously lets us use his music. Talking Feds is a production of Dalito LLC. I’m Frank Figliuzzi. 


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