On the Issues Episode 20: Kelly Berkell

Alon Ben-Meir: I’m Alon Ben-Meir, welcome to On the Issues. My guest is Kelly Berkell, right?

Kelly Berkell: You got it.

ABM: An attorney and research fellow at the center on terrorism at John Jay College of Criminal Justice. Most recently, Kelly served as national security fellow at Fordham Law School Center on national security, and is a graduate of NYU School of Law and Barnard College. Thank you so much for taking the time Kelly to be here. So–

KB: Thank you for having me.

ABM: It’s my pleasure. Thank you. So I recently read a paper that you wrote, which is extremely comprehensive, and I really, really enjoyed it, about your take on radicalization, and how the laws of the United States are applied to individuals who are charged with violent extremism. What was your main focus on that aspect, what is it that you wanted actually to convey to someone who wants to listen to this?

KB: I would say the main points that I was hoping to convey through the paper are that there’s a growing focus in the United States and elsewhere on countering violent extremism, and what’s now being called ‘preventing and countering violent extremism.’ And a lot of that focus has been on the prevention area, which of course is critical in having community-wide initiatives that are CVE-relevant. But in addition, I wanted to just bring a focus to the criminal justice area and how we can incorporate some similar principles there in terms of, once somebody is already intersecting with the criminal justice system, whether they’ve come on the radar of law enforcement as a suspect, or through a referral, or whether they’re actually at a post-conviction phase where they have been convicted of an extremist crime. There are a lot of initiatives that can be implemented that are not being implemented on a systematic basis, so although we do have some–

ABM: You mean initiative in terms of prevention.

KB: Yes exactly, prevention in terms of, if this person has not committed any crime, preventing a future crime, and if they have committed a crime, preventing recidivism. And I mean, when we talk about preventing a future crime, of course we have to be very respectful of civil liberties. We’re not the thought police, and we’re talking about voluntary programs for intervention. But it’s more from the framework of making resources available, so that in a number of the instances that we’re familiar with recently, a suspect was on the radar of law enforcement, but because they hadn’t committed a crime, the investigation was closed and that person later went on to commit an attack. So the paper addresses resources that could be available to communities and families and law enforcement in those types of situations, so that the case is not completely dropped or abandoned in all instances, just to give everybody more tools in the tool kit.

ABM: So based on my understanding of this, we’re talking about the prevention that is going to require when a person such as this is leaning perhaps to committing a terrorist attack, but he has not committed it. That is exactly what you just said. So, what sort of surveillance? That is, because this is exactly what is happening. They have not been in my view allocating enough resources to cover this many people. And my understanding is the FBI, for example, has on their list hundreds if not thousands of would-be terrorists, but they haven’t committed any crime. And my understanding from talking to some people from the NYPD, they know, but they cannot apprehend them, because they haven’t committed anything as yet. But they are also saying, we don’t have that much resources to really follow and survey and make sure that this person is not going to commit any crime. So how do we deal with that?

KB: That’s it, that’s exactly right. By the last statistics that the FBI announced, which were last year, there were over a thousand open investigations into homegrown violent extremists. And I believe the majority of those were ISIS-related. And then as you say, I mean there are hundreds in New York alone—

ABM: Yes. Yeah.

KB: Of open investigations. And so surveillance in every one of those cases is not practical. It’s not economical, and not always needed. But to have community-based resources available to help people for counseling and other social services, and also a network that won’t necessarily involve law enforcement if a crime is not imminent, but where professionals will know about their legal duty to warn and will know when a threat is imminent—I think these kinds of resources could really enhance what’s available, so that hopefully we wouldn’t have to see so many cases like Omar Mateen in Orlando, where he had been looked at by the FBI. Tamerlan Tsarnaev had been looked at by the FBI as well. And even the bomber who planted bombs in New York and New Jersey last year had also been looked at. So in all of these cases, who knows if additional resources would have helped, if law enforcement would have made a referral. But it’s possible.

ABM: Yeah, but my understanding is that one thing they’ve been shying away from doing is actually contacting the families of such a would-be terrorist or would-be violent extremist, and concerning our concern about – well, they speak to the family, to the father or the mother. Well, they may or may not alert the son or the daughter about it, but in some cases actually the father—probably you remember the case where the father himself called the authorities and said my son is; do you remember that?

KB: That that was that bomber, the New York and New Jersey bomber, Ahmad Khan Rahami? I believe that’s who you’re–

ABM: That’s right, that’s right, Rahami, yeah. And so here is a good example of what, if the authorities, that is in this case, it was in New York, right?

KB: Yes.

ABM: Yeah. But they did not contact the family in advance, even though he was under surveillance. So in the cases like this when actually the father volunteered subsequently, before the person committed, then there must be a way by which to reach out to these families as well. So how do you reconcile the concern over not reaching out, because they are afraid that the family, the father and the mother, would let the son being investigated, maybe surveilled after? So that’s one of the predicaments I understand where the police are facing and the FBI is facing.

KB: And that raises another important question too, which is trust between communities and law enforcement, so that if say parents or other friends or family wanted to make a recommendation, they might have somewhere to turn without necessarily thinking that they’re going to get their loved one imprisoned for 20 years for example on a material support conviction. And so right now we have sort of an all-or-nothing situation, where another case like what you’re mentioning was the case of Adam Shafi, whose father in California referred him to law enforcement, brought him to the attention of law enforcement initially, saying that he could be radicalized, he could be falling prey to an extremist group, and subsequently the son was arrested and is basically in a solitary confinement-type of situation now. And the father, the most recent press that I’ve seen on this, the father is saying that he would recommend to parents in his similar situation, don’t go to law enforcement.

ABM: Not to do that. I mean, because this is the problem. That is, when you have something of an incident like this, when the authorities go to the other extreme and incarcerate the individuals when in fact he hasn’t as yet committed any crime—and exactly what you’ve been addressing in part in your paper. Am I right, you did speak about this.

KB: Yeah.

ABM: And then obviously this is preventing others from notifying the authorities. And my son is leaning toward committing acts of terror. So, the problem we are facing now is, what do we do in a situation like this? What is the mechanism? So if they volunteer and they’re afraid that the son is going to be mistreated or unduly punished, this is a problem for the parents. On the other hand, if they don’t, it is entirely possible that he or she will commit this kind of crime, and perhaps the punishment will be even more severe. So the parents here are trying to weigh what to do, albeit there are not too many such cases, not by the thousands, but they do exist. Anyone, take one terrorist activity to cause such a huge damage. So even one of a hundred is going to matter. And what would you do, what would you recommend to authorities to do under these kind of circumstances? I’ve been thinking about it, what shall we do. How shall we address this issue?

KB: It’s an excellent question. And right now I imagine that the federal government in various capacities is grappling with that issue. Earlier there were shared responsibility committees, which was an initiative set up by the FBI as an attempt to deal with this kind of situation, and it was supposed to be a multi-disciplinary, multi resource community-based committee where cases like this could be referred. My understanding is that at least under that name, that initiative is no longer going forward, partly because I think people felt that it was overly securitized and that it had to be more grassroots and more community-based. But something along those lines does seem, something that would be a multi-disciplinary resource, where the exact parameters with government, with law enforcement, would have to be drawn very carefully in terms of—And we have to distinguish between programs that are purely prevention, that are much more community-based and more general, as opposed to programs that are more targeted toward for particular individuals who as you were mentioning to me earlier, will have experienced different factors that will contribute to why they may be heading down a path toward violent extremism or considering that path. So a more targeted approach would deal with the factors relevant to that specific person, like counseling and social work.

But I just want to add in that in addition, I think another related but slightly different issue that comes up in this arena is applying these principles of preventing future violence to cases where there were already has been a conviction. And the principals can come in in terms of sentencing. As of recently, Judge Michael Davis in Minnesota began a new initiative where he had assessments of defendants completed by an expert, Daniel Koehler, and in some cases probation officers I believe, to determine their level of commitment to violent extremism, and use that as a factor in sentencing and determining their sentences, and then also in prison programs that would be along the lines of rehabilitation so that people don’t get further radicalized in prison. And last but not least, after release, post-incarceration programs to reintegrate people into society and productive roles.

ABM: But before even we go to rehabilitation, when the person is in prison or after he or she leaves the prison, what is that? My feeling is that when a parent or the authorities suspects somebody may be planning or have the tendency to join such a group, why not start the process of rehabilitation? What I have been thinking, and when I talk about it, I say, instead of getting this person and putting him in jail like that, that has been done, then now saying we wanted you to know what’s going on. But you put him in jail and they are not telling other parents, don’t do that because that’s going to be the consequence. Why then should the authorities be doing it? This person is as such. The parents are notifying, or even without the notification of the parent, they will get this person and begin the process of rehabilitation rather than incarcerate and put in prison. And now, from my understanding, that is not happening. So they know this person has a tendency and is not going and saying well, we know you haven’t done anything yet. We feel that you have the tendency, perhaps. We’re going to put you in some kind of program and begin that kind of process as a preventive program. When we talk about prevention, this is one area I think where prevention can take place. We can talk about other means of prevention, for example in the school setting, in the mosque setting. What role can the authorities play in order to preempt it? The idea here is that, from my perspective, is it preempting, not waiting, to take these types of action in order to prevent the person from continuing that path. To [unclear], and eventually commit an act of violent extremism.

KB: Right. I think there’s a model where you can look at CVE, and I think you’re touching upon this, where you can break it into separate steps. Looking at where based on where that person is in their process. So there is, the first step would be purely prevention, when you’re not dealing with anybody who’s necessarily expressed any interest in violent extremism. It’s just purely a resource to maybe counter, offer positive counter narratives. It’s just building community resilience. Then you can come to a place which is I think where you are focusing now, which is generally referred to as intervention or targeted interventions, where the person has shown some interest, possibly some movement in that direction, but has not committed a crime and therefore hasn’t done anything illegal, cannot be arrested, cannot be compelled to participate in a program. And then third, you would come to the charging context, where someone is suspected of a crime but you could still implement some of these initiatives, perhaps as part of a plea agreement or something like that. Which really brings you to the last steps, which are rehabilitation and reintegration, where someone has been convicted of a crime and now you’re giving post-conviction resources that will. But in my opinion, all of it is prevention because even when it’s post-conviction, you’re preventing future crimes, preventing future violence, and promoting public safety. In terms of what resources, what can be done at the intervention stage, I think you know that’s— We need to look at different programs that have existed and we need to look at evidence, and build programs that are supported by the research that exists, and preferably build upon community-based programs that actually exist already. There are many great programs that are in communities that deal with other kinds of violence, maybe gang prevention violence, and we can look at models like those, and build our programs from there. But the key will be devoting the resources to be able to do that.

ABM: Yeah, recently I had an opportunity to speak to three educators who came from Kosovo in this program in the State Department. And my discussion with them was education. That is, what a teacher, an educator in fact can do in the classroom setting when they notice that one of the students, or more than one, or two, are fidgety, are disruptive, are leaning to – there are signs that they are rebellious. And what it is that they can do within the classroom setting, without necessarily notifying the authorities that we have somebody like this, we need to take care of it. So from how I saw it, here are a set of things that an educator can do in order to mitigate, in order to deal with this kind of problem, with this type of individual. Have you been looking into this as well?

KB: It’s something I actually would like to look into, but I haven’t spent a lot of time looking into it. I think it raises interesting questions in terms of youth and privacy rights and so forth. And obviously there are other protections that come into play when you’re dealing with minors, but it is a very important question, I think an excellent question, and something that is part of this whole area that we do need to look at.

ABM: Yeah, because from my understanding—again, I have been looking into researching this, it’s not being done in any methodical, systematic way in schools, where some school is necessary in various areas. You know, in United States, in Europe and elsewhere that is, some time in poor countries like Kosovo, this is a problem of resources, because the teacher can do so much but the person does truly need for example some outside service, like should be seeing a psychologist or psychiatrist, and get that individual engaged in some other activities that require again, some more funding. So when you have poor communities where they cannot afford that kind of treatment to prevent this individual from pursuing the path of extremists, this is becoming a problem. And here, I don’t think countries like this, they are able to. And this is the reason in fact why in Kosovo there are so many, relatively speaking – the number of those young extremists is extremely high relative to other Muslim or Arab countries, because of the problem of poverty in that state.

But one of the measures in my view is that if we want to prevent violent extremists from actually committing, we have to look beyond what we have here, because where the root cause is perhaps is someplace else. It could be in Kosovo, or could be any other country in the Middle East. And we need to think in terms of out of the box, what it is we can do to channel some kind of funding where it’s needed in order to conduct that kind of preventive activities in order to make sure that such an individual perhaps is stopped before he or she commits that kind of crime. And I don’t see that happening. That is the focus. We were in Europe, for example, and I talked to many people there. And I haven’t heard one person who saying, yeah actually we are supporting this type of school in this country or that country because we feel there’s these kind of activities going on. What do you do about these kinds of things, you know?

KB: So are you mentioning that in terms of schools, or generally in terms of community resources?

ABM: Well in schools is one of the community resources. You can talk about, you can go to the imam in the mosque and find out who do they feel is leaning, and do something about it. There’s a role for the imam to play, there’s a role for the educator to play, there’s a role—there’s all kinds of people who come in contact with such an individual, and they can play without necessarily involving the police, the authorities.

KB: Right. Well.

ABM: Yeah. Go ahead, yeah.

KB: I think Europe does have some interesting models, in Denmark and elsewhere. And there’s a new center in Montreal as well. And I do think we need to spend time. There are also, in a lot of Muslim majority countries there have been programs for disengagement and intervention. And fortunately in the United States, we haven’t had as much of a problem with homegrown violent extremism and we haven’t had to historically have as much of an effort devoted to these kinds of programs, but as you said earlier, we know it’s been a growing problem. There are upwards of a thousand investigations. And even though ISIS has lost and is losing territory and isn’t recruiting as many foreign fighters, their online efforts don’t appear to have slowed down and so this is a continuing problem, and will be a problem also as convicted extremists are released from prison. We’ve had about a hundred fifteen ISIS cases by the last count. A majority of those have resulted in convictions, some were not resolved yet. But the average sentence as of about a year ago was measured at nine point two years. But of course we know that some people’s sentences are two years, and some people—one person in Minnesota, Abdullahi Yusuf, was sentenced to time served. So people are coming out and they need resources. Yusuf fortunately is benefiting from new resources that are being developed.

ABM: But they are also not as rehabilitated as they could have been. I mean, that’s what I think is also happening, that they are released from prison but then by and large left to their own devices. That’s what I understand the situation is. But you mentioned ISIS, yes it’s true that they are recruiting less, especially online in terms of their advocacy. But I as see it, even though they will be eventually defeated—I think they will be defeated in Syria as well as in Iraq, it’s a question of when as a body, as an entity, they will be defeated. But what they have done in the interim, they have established cells just about everywhere – in the Middle East, in Europe, and many of these cells right now are dormant, they have not been active. And they can become more active on their own. They don’t need to have an order coming from some authority from the top people, echelon of ISIS. They will begin to act on their own. So what they have done is losing ground in Iraq and Syria. But they’re shifting their emphasis on spreading, because the ideology itself is alive and not going to die with their destruction in Syria or Iraq. So here, the question is, what again the authorities I’ve been questioning and find, what are we doing for example to try to detect these sleeping cells that exist in so many different countries now? And it’s a question of time when there was just commit an act without even much planning. Let us assume for example the guy who just ran over so many people in London. Well, ISIS claimed responsibility, and we’re not really sure whether in fact he was necessarily affiliated or not affiliated with ISIS, but they’re claiming the responsibility. So here you have someone who may not have any connection with anyone else, who may not have cooperated with anyone else, but he acted on his own because he was indoctrinated in one form or another. And I think this phenomenon is going to grow rather than diminish.

KB: I think that’s exactly right. I think what you’re talking about is the phenomenon of homegrown violent extremists, where social media has changed the dynamics and technology. And people are—You don’t need to be a member of an extremist group per se, but people are inspired and motivated online and can credit their actions to a group, or claim inspiration by a group and sometimes even groups that may hate each other. Sometimes people are inspired by multiple groups that in their own locations are not getting along with each other. But nonetheless, somebody in the U.S. or in Europe may be drawing inspiration from those groups, and may use that as a basis for their criminal activity.

ABM: Yeah. So let me just go back to your paper, because it’s so impressive. I want you to just take the, how we are applying the laws and what some of the corrective measures are in how we’re applying the laws against these individuals, be that before or after they committed the act of terror, or violent act. What would you recommend differently, that the authorities take a different kind of approach beyond what is being done today from a legal perspective.

KB: I think that Judge Michael Davis in Minnesota, in U.S. federal district court, has been a pioneer in this. He has developed a program on his own with support from the U.S. attorney who recently resigned upon President Trump’s request, but in any event Judge Davis has designed a new program that addresses the question that you’re asking, or begins to address it. But what I would say is that instead of having each federal court on its own to design these kind of programs, it’s very important to have guidance that the courts can follow based on evidence and based on best practices so that they don’t each have to forge their own path. So Judge Davis did have radicalization assessments to assist him with sentencing, to give him additional information.

ABM: But is there any effort going on right now to coordinate between the various courts, various judges, there’s so many of them around.

KB: It’s a very good question. I know of efforts in various districts that are occurring where people are advocating in different districts for efforts to occur. And there are cases that are currently pending, where these kinds of efforts seem particularly relevant. I’m not aware at the judicial level of an effort to coordinate, whether— I imagine that the Bureau of Prisons and other judicial and legislative policy makers are all looking at this. And certainly we know that the CVE task force was established under President Obama as well as the Office of Community Partnerships to try to coordinate these types of initiatives, not limited to the judicial system, but generally speaking. And it will be very interesting to see what happens with that under the new administration, and part of that will be, there was a ten million dollar grant opportunity funded for CVE, and that money was awarded to 31 community organizations. But it’s unclear how that will proceed, how it will go forward. And following the, there was a Reuters exclusive article that came out in February indicating that the administration was considering changing the name of the Countering Violent Extremism initiative to Countering Islamic Extremism or Countering Violent Islamic Extremism and—

ABM: Which administration, Trump?

KB: Under Trump. Yes, under President Trump.

ABM: Yeah, well there was an outcry about that. Many Muslim countries and the Turks in particular were saying that is absolutely unacceptable, specifically when [unclear] used that, Islamic extremism, and he was saying well, that is not limited to Islam, there are extremists of all manners and kinds coming from all over.

KB: Well at this point now, four of the organizations that were awarded grant money, that applied for and competed for these funds, have now declined the funds and said no thank you, in part because of the concern that it would be difficult for them to work with their communities and have the trust of their communities, when they’re receiving funding under a philosophy and a policy that seems to single out Islam and not encompass other forms of radical extremism as well.

ABM: But then the problem is, I ask myself the question, OK, why is it 95 percent or even more, perhaps more than 95 percent of acts of terrorism, extremism, are coming from originated or from individuals, at least whose background is Muslim, they’re Muslims. So there’s the perception that a natural association of any act of terror is coming from somebody who is a Muslim, who has a Muslim background. In fact, every single act of terror took place in the United States committed by an individual who was actually a Muslim. Recently, there’s several of them.

KB: Well, I mean I think there’s been a—

ABM: I’m not trying to label them as such. I’m just saying the perception is being created is as such.

KB: I see.

ABM: Yeah, the perception is because I do not support the notion that extremism is only coming from the Muslim world, I’m not saying that, not in the least. But the perception is since the majority of these activities are committed by Muslims. So the perception is, like the Israelis look at the Palestinians and think he’s a terrorist, and the Palestinians look at the Israelis and say, he’s a soldier with a gun. That’s how they see each other. That’s how they perceive each other. Same thing when happens and how do we perceive, we connect Muslims to extremism. But from a historical perspective, this is what I’ve been thinking and been writing about recently, from a historical perspective you can create that linkage. That is, why is it they are as such. Again, I’m not saying this is exclusively, because there were so many different kinds of terrorists over so many years. How do we disabuse the individuals, the many, the majority who feel this is the source and this is what we have to deal? Just exactly what President Trump has articulated recently.

KB: Well, you ask so many good questions. That is the question, how do we do that. But you know it’s not, it may be that public perception, or some portion of the public perception. Of course that’s not supported. There’s new America data that shows that since September 11, I believe the latest numbers are, around ninety five deaths from what they refer to as jihadist extremism in the U.S., and about 51 from far-right wing extremism. And I think they cited about five from far-left. I don’t have the numbers in front of me, so I’m sorry if those aren’t exact. But that’s close to the recent numbers. And of course only this week we had an incident in New York City where somebody, there was a hate crime which could later be classified as terrorism – I don’t think we know enough information yet – but somebody came to New York to kill a black man, and that’s what he did.

ABM: Yeah, this guy, this white supremacist who went to this church is it, where he killed five black people, just recently. This young fellow, just maybe a month ago. Well, maybe he was 19 or 20 years old.

KB: You don’t mean Dylann Roof in South Carolina?

ABM: Probably, because I don’t remember the name. Yeah, yeah he did. But you’re right. I mean, but people don’t look at the statistics.

KB: So there have been these high profile incidents. But the one group who doesn’t, I don’t think, who at least as of a recent survey from some scholars at Duke—they surveyed law enforcement and found that law enforcement, local law enforcement officers around the country, were very concerned about white supremacists and about sovereign citizens and some of the what’s considered the far-right wing extremist movements. And at that time at least, they were more concerned about that than about any kind of jihadist or threat of Islamism in their community. So it’s interesting to look at that, because they’re the people day-to-day on the streets dealing. So there are a whole range of threats, and in some ways we need different approaches, but in some ways I think we can learn from approaches in dealing with different threats and use that information to benefit a more holistic effort.

ABM: Yeah, but you notice that in the United States, there’s more of that, white supremacist. And you don’t see the same phenomenon interestingly enough in Britain or France, or some European countries. There, these acts are by and large being committed by Muslims, which is an interesting phenomenon. We have here not as many, but it’s interesting that we do have a different kind of phenomena that has been manifesting itself with white supremacists who are committing these kinds of acts of terror. Where are you going to find as many of a similar nature in the European community? Why do you think that’s the case?

KB: Well, we do have a different threat landscape here. But interestingly in Europe, some of the initiatives to counter violent extremism now that are looking at jihadist extremism have come out of the efforts, the exit programs that deal with white supremacists and other issues. So there is a history of that of course in Europe and in Germany and in Scandinavia as well, and in fact Daniel Koehler, who is working on the Minnesota ISIS cases and has been consulted for different cases in the U.S. for jihadist-inspired terrorism has, I believe, he worked earlier in Germany in exit programs that really focused on white supremacists. But in terms of the specific cultural reasons as to why one form of extremism may thrive in one location versus another, it’s an excellent sociological question.

ABM: Yeah, I mean this is just an observation I made. Because I’ve been seeing this and wondering why is it. And obviously I think your take on it is absolutely the right. That is, we have a different culture here, has a different [unclear]. Well anyway, you know this was really wonderful. I really, really appreciate you taking the time.

KB: Thank you so much, I enjoyed being here. It’s always a pleasure to talk to you, Alon.

ABM: Yeah, thank you, thank you again. I think what you have covered is very important. Most people just do not know the intricacies of how we here in the United States have been dealing with this phenomenon. So thanks again, Kelly.

KB: Thank you, my pleasure.