Karen Greenberg on Terrorism and "Rogue Justice"

STEPHANIE SY: Welcome to Ethics Matter. I'm Stephanie Sy.

As the world continues to confront the threat from Islamist terrorism, societies are grappling with what tools and responses work to address the problem. It is a hydra-headed monster of an issue that we are talking about with our guest, Karen Greenberg.

Karen is a noted expert on national security, terrorism, and civil liberties, and the director of the Center on National Security at Fordham University. Her latest book, Rogue Justice: The Making of the Security State, explores what impact the so-called war on terror has had on the legal principles once held dear in America.

Karen, welcome. It's good to see you.

KAREN GREENBERG: Nice to be here.

STEPHANIE SY: Even as I said the words "Islamist terrorism," I caught myself and thought even that term has become so fraught. So I want to get into that.

But first, let's start by talking about ISIS (Islamic State of Iraq and Syria), what many consider the biggest global threat today when it comes to terrorism. How has it evolved recently?

KAREN GREENBERG: ISIS came to the attention of the American law enforcement system well before 2014, but in 2014 you started to see individuals apprehended and charged with charges related to ISIS specifically. So for about two and a half years now the United States has been monitoring these cases, monitoring individuals, trying to figure out who might want to foment an attack, be a foreign fighter—a variety of things.

In Europe I think this has been at a much more accelerated pace, and many more numbers of individuals who have been suspected of terrorism and who have carried out actually terrorist acts.

But we are looking basically in a very condensed way at the last two and a half years.

STEPHANIE SY: Fordham University has actually looked case-by-case at ISIS-related convictions, from what I understand. How many of those have there been in this country?

KAREN GREENBERG: There have been just over 100 cases. Over half of them have been resolved and less than that have been sentenced. A number of sentences will come up for the latter half of this year.

STEPHANIE SY: What do you mean by resolved?

KAREN GREENBERG: By resolved I mean that they have either pled guilty or, in the case of one individual, they have gone to trial. Mostly, these cases, like other cases in the criminal justice system, plead out. If you go to trial, you are guaranteed a higher sentence if you are convicted, and these cases lead to convictions; there haven't been acquittals. That is what I mean by resolved.

STEPHANIE SY: When you look at those individuals, what trends come out?

KAREN GREENBERG: A number of very interesting trends. And again, this distinguishes us in some ways from the rest of the world.

The first is their age. We also keep a database of al-Qaeda prosecutions. Al-Qaeda prosecutions, the ages were the average of late 20s, early 30s. The ISIS case individuals, the most frequent age of those arrested and indicted for ISIS-related crimes is 20. That means that they come on the radar of law enforcement or begin to get involved in their late teens. So this is a phenomenon here of late adolescence.

What we are seeing more and more is individuals who are looking for some kind of messianic purpose in life, who feel—and that is why they want to join the caliphate abroad, for those who wanted to be foreign fighters—individuals who are alienated in one way or another, some who spend an awful lot of time reading social media and relating to the world in that way; individuals who are looking for some kind of identity, many of whom don't have a vision of what their future could be in this country and who are attracted to the notion of violence.

So what we have seen in the second year of ISIS in this country is, instead of looking to go abroad, much of which was tamped down by federal law enforcement interfering with anybody who wanted to go abroad to Turkey—

STEPHANIE SY: To fight in Syria or Iraq.

KAREN GREENBERG: Right, to go to Turkey as a window to Syria really, as a gateway to Syria—are people who have focused their attention on talking about attacks in this country or in taking measures to have attacks in this country. That is sort of a change in what we have seen.

And again, these individuals are a cross between a lost soul and somebody who is attracted to violence. A number of these individuals have tried to join the Army or have tried to join a militia. They have tried to get some kind of weapons training. Some have talked about joining the military to get training to conduct acts of terrorism; it is a handful, but still it is a very interesting trend. So it is a combination of these things.

STEPHANIE SY: Just to unpack that a little bit—and going back to that phrase I used to describe the phenomenon, just because I think journalists need some language to describe what we are talking about. "Islamist terrorism" is the phrase that I use. But it begs the question: How much does religion really play into that first factor you talked about, an ISIS-specific ideology which is building a caliphate, getting land?

KAREN GREENBERG: The experts are very torn on this. There are some experts who will say, "This is religion; let's not hide from that"; and there are others who say, "This isn't religion; stop being biased against religion."

I think it is more complicated than either one. I think a third of the cases in the United States involve individuals who are not Muslim-born but were attracted to the idea of ISIS and converted to Islam, or who converted and then found their way to ISIS. It is hard to say where the cause-and-effect is. But these are converts, so that already tells you something.

In terms of their actual indoctrination into the religion and the religious precepts, that is also hard to see. With al-Qaeda there was a sense of religious ideology and philosophy that was deep-rooted and often came up in some very almost Talmudic ways, hadith ways.

So I think that, to mix metaphors, these individuals are attracted to a more superficial sense of religion, and religion as an oppositional stance that they are taking, and ISIS is the cult. I see ISIS very much as a cult that attracts them with a way to express their sense of dissatisfaction, alienation, and intense anger.

So I don't think it is really all about religion. I think this very much about ISIS reaching out to individuals who are dissatisfied for a number of reasons that are often very personal.

STEPHANIE SY: And that social media component—a number of the attackers in this country and elsewhere have been inspired by Anwar al-Awlaki. So talk a little bit about his continuing influence, especially on Americans who would be terrorists.

KAREN GREENBERG: Anwar al-Awlaki has always been an important part of the narrative of first al-Qaeda and then ISIS. In many ways he is the link between al-Qaeda and ISIS in terms of a narrative. He is a propagandist who was in the United States, went abroad, and then began to reach out to Americans and to explain to them what terrorism was about and why it would be important to join.

But his influence since his death, when there was a targeted killing successfully against American citizen Anwar al-Awlaki—

STEPHANIE SY: A controversial one.

KAREN GREENBERG: A very controversial one.

But since his death he has not diminished in importance. If you look at the figures that are named—al-Baghdadi, the head of Isis; bin Laden, the head, now-killed, of al-Qaeda; and Anwar al-Awlaki—you will see that al-Awlaki is almost on a par with al-Baghdadi; that he is the individual, partly because of his Americanism—who knows what?—who is able to reach out and who understood the power of social media very early on and began to exploit it then.

And so he stayed alive in a very important way through social media, through his sermons. One of the things that a number of these individuals have done is to download al-Awlaki's sermons and to download references to al-Awlaki. So he is iconically an important figure, and definitely a spiritual link, in a way, between al-Qaeda and ISIS.

STEPHANIE SY: When you are talking about an open society like ours, with easy access to the Internet, to downloading al-Awlaki videos, bomb-making videos, and all of that, how do you address that? I mean, do you start with everybody who downloads an al-Awlaki video? And, even if there was a way to figure out a way to know who those people are, do you start with that from a law enforcement perspective?

KAREN GREENBERG: Much of what is done on the Internet is public. So if it is Facebook or something where you can actually be law enforcement and look into something, that is one way. But this is an extremely controversial part of how we as a society decide to identify an individual to follow, and probably to say the cause and effect of looking at these things and becoming a terrorist is not a good causal relation.

And, largely because what we have learned over time in encountering terrorism is that more is not better, that more in fact can be a deterrent, a distraction, what you really want is to be able to focus on the individuals who seem like they could take an act of violence, like San Bernadino, like Garland. And so, just because they are watching al-Awlaki, it doesn't mean enough. Would you want to start there? I am not sure.

I think it is much better to start—that this is about individuals; this is not about groups; this is not about groupthink so much as about individuals who through this kind of groupthink decide to take an overt action.

STEPHANIE SY: It sounds actually like what you are suggesting is we should look at criminal behavior and criminal history almost before we look at radicalization because you can be radicalized and still not decide to be violent, right?

KAREN GREENBERG: Correct.

STEPHANIE SY: You can have radical thoughts and not decide to commit an act of terror.

KAREN GREENBERG: You can be very angry and talk about it all the time and spout out about it all the time, and not commit an act of terror, or not even want to.

I think you are right. I think there has to be a much better sense of—look, these are young people. When I said they are young, 18 to 20 to 21, they don't have criminal records. A number of them have had encounters with the police, who have said, "Listen, don't go down this road," sort of an intervention with law enforcement.

But they are not going to have the same criminal record as, for example in France, where the individuals were older. ISIS in Europe is largely built on a criminal element, who sometimes were often radicalized in prison.

That is not the case here. This is a different story. And so, no, not looking at criminal behavior, but looking at overt acts like getting guns at the same time that you are talking about wanting to kill people, or anything like that; the overt act of actually getting the materials for a crime, an attack, whether it is an explosive, a combination of explosives, a pressure cooker.

STEPHANIE SY: That seems obvious to me. As a layperson, that seems like that's obviously what you should do. If somebody buys a pressure cooker and a bunch of ingredients for bomb-making and then also some guns, that should flag somebody.

KAREN GREENBERG: Yes.

STEPHANIE SY: And yet, we've seen time after time again that they haven't been flagged before the fact.

KAREN GREENBERG: Right.

Although we haven't had that many attacks in the United States. I mean largely we've seen a number of these lone wolf types of attacks over the past year. Since 9/11, less than 100 individuals have been killed for terrorism in the United States. Now, every single one of those deaths is a tragedy, and we would like to prevent all of them. But in the fall of 2016 you had a bomber in New Jersey and New York, and no one was killed, not even the [alleged] bomber himself, which is the first time we have had an individual who carried out an attack in the name of ISIS who wasn't killed.

So I think that you have to put this in perspective in terms of this larger wave of violence that is clearly going on in the United States—3,000 deaths in Chicago in the past year by gun violence. I mean this is a major phenomenon that we have to think about in much more creative ways than we have thought about it in the past.

STEPHANIE SY: That is a great point, to put it in the context.

But, since the topic is terrorism and the U.S. responses to it, some might say the fact that the United States has had fewer attacks than France, for example, may be showing that it is doing something right. I know a lot of your research has been around how the U.S. law and how legal principles have been altered and that post 9/11 we did a lot of things that undermined some of the basic legal principles that this country was founded on.

How would you grade how U.S. justice and law enforcement is doing today in combating ISIS and ISIS supporters and would-be terrorists?

KAREN GREENBERG: I think we have done a number of things right. I think the move in the Bush administration, continued in the Obama administration, to have an inter-agency process that vets information, that coordinates information, which did not exist to that extent, nowhere near to that extent, prior to 9/11. has been a major step forward.

STEPHANIE SY: From an intel perspective?

KAREN GREENBERG: From an intel perspective. Everybody at that table is intel. It's law enforcement, it's the Department of Defense, it's the Department of Treasury. It is the whole group—the Department of Justice—that might have a perspective, that might know something.

I think that our relations with foreign countries and sharing intelligence have also gotten better. Probably there is some room for improvement there.

I think that the sharing of intelligence with localities is something that may grow in the future, for better or for worse, depending on how that happens.

I think that narrowing the space where a terrorist attack can take place is a very important thing, and I think to some extent that is what the fall 2016 bombings showed.

STEPHANIE SY: Let me stop you there, because the way we have narrowed the space in which terrorist attacks have occurred is by surveillance, right, is by sort of putting cameras everywhere? Times Square is an example of that. There are cameras everywhere ever since the Times Square bombing attack, which was several years ago. You know, you can't walk a foot in Times Square and not be spotted.

KAREN GREENBERG: That's right. But there is difference between a surveillance camera that somebody is looking at in real time and collecting information and keeping information that is usable and searchable for however long, like what went on in a bulk, warrantless surveillance way. If you decide when you're looking at Times Square you want to follow somebody, you need to have some kind of probable cause, that you are trying to collect information and evidence on this person.

But the difference between just surveilling and collecting and using and holding and doing mass searches on telephone and Internet communications seems to me very different than having cameras.

STEPHANIE SY: So is it okay to have cameras in every corner of public space in this country?

KAREN GREENBERG: Again, I think it is how the information is used, I really do, and I think that at some point we may want less. It is less in this country than it is, say, in the United Kingdom. It is less in a number of cities in this country than it is in the major hubs.

So I am not completely comfortable with it. But I am going to be the first to admit that the things that we might have put up with on September 10, 2001 have changed somewhat, and in some ways I am sort of unhappy about this. But the surveillance camera, in and of itself, is not as destructive.

STEPHANIE SY: Which part makes you unhappy in the post-9/11 era?

KAREN GREENBERG: Here is what makes me unhappy in the post-9/11 thing: the acceptance of the idea of warrantless searches and bulk collection, which is something that the sunsetting of the Patriot Act addressed, which I think could still come back; indefinite detention, which is something we haven't talked about, but the idea that you could just detain somebody and not charge them or not try them.

STEPHANIE SY: What's happening at Guantanamo Bay even to this day?

KAREN GREENBERG: Happening at Guantanamo. But we did have enemy combatants here in the early days after 9/11. I think we need to really understand that indefinite detention is something that this country was founded not to have.

Executive killing, again a principle this country was founded upon not having.

STEPHANIE SY: And again, just to describe what that is for the audience, that would include the targeting of Anwar al-Awlaki by a U.S. airstrike?

KAREN GREENBERG: But I am not even talking about just American citizens. I think the policy is something that we have all come to accept but that has certain downsides. The vesting of so much power in the presidency—if we have a president we like, that is one thing. If we have a president who is not accountable to the Constitution or to a constituency, then we have a problem, and it is a serious problem.

We have just come through 15 years where the courts for the most part—the Supreme Court aside in some instances, notably detention—have deferred to the executive in cases of national security and a Congress that has deferred to the executive in cases of national security. So, for a number of reasons, our presidency is stronger than perhaps in any time before in the name of national security, and this is something that is potentially dangerous going forward.

STEPHANIE SY: You write in your book: "It is the quiet decisions, the individual judicial rulings and laws and executive orders—generally fashioned by well-meaning people that make possible the fiascoes, the follies, and the excess that turn governments into the enemies of their constituents."

That is a lot of what you just talked about, and you gave some examples. Are we out of that now? Is the pendulum swinging back the other way?

KAREN GREENBERG: I would say that the pendulum has swung back only very slightly. Torture has been declared illegal, but apparently it is okay to talk about it, reviving it in public discourse.

I think that the indefinite detention, until Guantanamo closes, is still a problem, and the closure of Guantanamo still means, to this administration, keeping the category of indefinite detention and moving a couple dozen individuals somewhere.

I think the surveillance policies—as I mentioned before, from the Patriot Act, the NSA (National Security Agency) bulk metadata collection process has sunsetted. So there has been some swingback.

But let me add it hasn't been because of civil liberties, in my opinion. I think what you learn is that it has been because Congressional committees and presidential commissions have determined that it didn't work. So it was the combination of civil liberties. Same thing as—

STEPHANIE SY: That it didn't actually make us safer.

KAREN GREENBERG: It didn't make us safer. It didn't identify terrorists of note; it didn't stop an attack—all of these metrics. Civil libertarians kept the flame alive and reminded us of who we are. But the actual reason these things sunsetted was that they didn't work. So that is what we have to deal with in the next chapter of our war against terrorism.

STEPHANIE SY: What about the countries that are experiencing in greater frequency attacks by ISIS-inspired or ISIS-directed terrorists, places like France, like Brussels, like the United Kingdom? How are they responding?

KAREN GREENBERG: Very interestingly, after 2014, after ISIS really came into global prominence and declared the caliphate in the middle of 2014 and the attacks in France and elsewhere, there were a number of pieces of legislation passed that really upped the surveillance possibilities, the search possibilities, etc., in these countries. So, in a way, they became less lawful than they had been in the past in terms of the restraints of government.

At the same time, a number of these countries have developed very aggressive deradicalization programs. They range from those that are—say, in the United Kingdom, where they have a program where they are tasking civil servants and teachers and others to identify individuals who show some kind of trajectory that might lead to radicalization, and they are being held accountable for it.

STEPHANIE SY: That sounds like a very slippery slope. How qualified is a teacher, first of all? What kind of training have they had?

KAREN GREENBERG: They have training. They do training. That is a very good question.

To me this seems like a far cry from what might actually work to create a safe democratic society.

STEPHANIE SY: It also sounds like thought police.

KAREN GREENBERG: Yes.

STEPHANIE SY: It sounds an awful lot like making somebody guilty for a thought that they have.

KAREN GREENBERG: It reads like that. It feels like that. And let's also remember that individuals with different ideas, whatever they are—don't we want that? Don't we want individuals who can see things with new eyes? I don't mean people who want to blow us up; this is not what I am talking about. But there is a worry, not just about the thought police, but what kind of individuals are we going to create in that kind of world, and how much have we sort of submitted to fear. So it's a problem.

But let me say that, interestingly enough, France, which has suffered numerous attacks at the hands of ISIS and has upped its police powers by new acts in 2014 and 2015, has done some very interesting work, as has Germany, in thinking about prevention and deradicalization that involves integration, that talks about integration—we'll see what the reality there is—but that understands that this is a problem. You cannot have people living in your midst, whether they are Muslims or others, and not think that they and their children can have a viable future there. You want people in your country to want to vote. You want people to think that they can be civically engaged and that they can have a voice.

So this is the hurdle that Europe has to cross, and it is the hurdle that America has to be very mindful of, that we want to make sure that civic engagement is part of how we think about preventing the growth of violence.

STEPHANIE SY: That alienation is something that brings us back to one of the trends that you found when you were researching these ISIS prosecutions in this country. On the other hand, France has remarkably restrictive laws when it comes to banning religious symbols and religious dress. So doesn't that send a mixed message and make Muslims feel more alienated?

KAREN GREENBERG: Yes. Listen, if you look at what is happening in France, the next thing should be that they remove the ban on headscarves, burkinis, whatever it is. If they want to feel inclusive and be inclusive and seem like a civil society that can involve these individuals in the life of the country and in the identity of the country, then the ban of headscarves just makes no sense. It is counterproductive in innumerable ways, and they have become the symbol of the world for how to show that you are not an open society.

STEPHANIE SY: Top leaders in government and politicians have described ISIS as this huge threat. It started in 2014 as sort of a regional threat, and now it has been described as a global terrorist organization that threatens global stability. Having studied this group for the last couple of years, what is your take on that?

KAREN GREENBERG: My take is that the menace of ISIS is growing, that the space in which they can operate is narrowing, and the frustration of ISIS getting squeezed out of Syria and Iraq and therefore trying to have acts elsewhere, is worrisome.

On the other hand, in this country, where we don't have returning foreign fighters like in Europe, the sense of what ISIS can actually direct and do is minimal. So it is more of a self-identification process, which therefore is not really about blaming ISIS, guilty as they are, brutal as they are, but this has to be addressed at home on the level of: Why would individuals here want to commit suicide or put themselves in a situation where the cops shoot them because they have tried a terrorist attack or to harm others?

There has to be, I think, as the Scandinavian countries have done, a tremendous amount of work trying to deal with troubled youth and redirect them, and they've had some large success at this.

So I see it as a warning sign. But if you want to know what I think is happening in the world, I think the turn towards a concern for state actors is what the trend of the future is, and that how ISIS interacts with and doesn't interact with these state conflicts is really what we need to start looking at in the future.

STEPHANIE SY: That is actually very interesting to me because you wonder—when you talk, especially about those who have been radicalized and join the ISIS cause outside of the United States, a lot of times that has been described as those countries in Europe being less concerned about integration, and so even second- or third-generation Muslims who had parents who were immigrants but were native-born to those countries, they don't feel like part of society. Do they also sort of lack a national identity, and is that going to be a problem in this country?

KAREN GREENBERG: The lack of a national identity is actually something that is laced through the database both for al-Qaeda prosecutions and for ISIS cases in the United States, and it is one of the underplayed and not sufficiently understood phenomena. This seeming lack of a—there are a number of individuals who were born in one country, went to another country, say the United Kingdom, then came and settled here, who feel very displaced not just by us, by their life.

Now we are in a situation where we have refugees in the tens of thousands and more pouring out of the Middle East and a world that has not decided what to do with this but some sense of, "Well, we'll keep them here until they can go back," or whatever it is.

This is a prescription for chaos and trouble. If national identity is really important to a sense of who you are, where you belong, where you can have a future, who you can trust to protect you, then having refugees who don't have that kind of identification is potentially problematic. And let's remember that displaced persons, refugee camps, refugee enclaves, in the late 20th century gave birth to much of the frustrations that were part of the al-Qaeda narrative and the bin Laden narrative.

So we know that we need to figure out a way to make sure that refugees feel safe and taken care of. The other side of that is you take care of somebody who is lost and homeless in a national sense and doesn't know their future and you actually give them a home—they are going to be loyal to you. You need to give them a home.

STEPHANIE SY: It sounds like it is not just the humane thing to do; it is actually a national security/global stability issue.

KAREN GREENBERG: And that is what we found over and over in looking at what civil libertarians ask for and what works and what doesn't work. In a very odd way, for reasons that work on some level that is not apparent, these things reinforce one another, and that is the case throughout.

For example, just one thing I want to add here is you would be surprised at how many of the cases, some al-Qaeda cases and a number of the ISIS cases, mention drone strikes, mention knowing individuals who were killed by targeted killings by the United States. Now, that may or may not have been the tipping point, but it is there in the narrative. If we are going to continue to do it as a policy, we need to really think about this in the larger scheme of things, of what security and liberty are about.

STEPHANIE SY: Right. And the question of whether that leads to a vicious cycle of revenge and then attacks, and it goes on and on and on.

KAREN GREENBERG: Well, this is what we want to not have. We don't want a vicious cycle. We want to step back, not feel so fearful that we can't be compassionate. That may sound like some kind of bleeding heart.

STEPHANIE SY: No, it is actually really refreshing.

KAREN GREENBERG: Have you met a person who has been given kindness and consideration who actually has decided to join a bloodthirsty cult? No. Those are damaged individuals. What we want to do is create environments where there are fewer and fewer damaged individuals, and that is as important as any other trajectory we are going to go on.

STEPHANIE SY: That is actually a very fresh perspective.

Are civil liberties and law and order naturally at odds, or is there a middle ground that you have found and that you suggest?

KAREN GREENBERG: I wouldn't call it a middle ground. First of all, I don't think they are at odds. I think that what happened after 9/11 is that civil libertarians and law enforcement individuals, national security officials, were pushed into separate camps, and that this is one of the more unfortunate things that happened.

One of the things that I have tried to do for the past 13 years is to bring together people with a whole bunch of different biases, understandings of the world, values, priorities. And you would be shocked at how much they actually can overlap with one another. Civil libertarians need to understand and take national security as a real thing, and I think some of them do, and that is important; that national security is important, that there is a threat out there, that it is a developing threat, an evolving threat.

I think that national security officials need not to get so defensive about what they are doing, but before they do it, to sit down and talk it through. There have been a number of public officials who have tried to do that and who have been working their way towards a more Constitutionally accepted model of doing things, even by the end of the Bush administration.

The problem is just how divided these communities got so quickly, so fast. So a lot of what has to go on is a sort of knitting together of understanding. We all want to be safe, we all want our children to be safe, but we do really have to share some principles of understanding. We are not completely there yet. That is the challenge of the future, is to make sure that there is more joint understanding.

Having said that, I think the tension between national security and civil liberties, human rights, is essential and is important. And, while you don't want people in completely separate camps so that they don't talk to each other and understand where they overlap in interests, you want the tension, you want civil libertarians to have their eyes open and to be aware all the time of what the missteps can be. You have to. And you need national security people to be thinking outside of the box, however they want to think, but then to understand at the end of the day these two things have to come together.

As we've seen, as we've discussed, some of them do come together. That is the way to proceed, is to keep this tension, to keep it intact, and to try to minimize the idea that these two communities are at some kind of impenetrable loggerheads with one another.

STEPHANIE SY: Karen Greenberg, thank you so much.

KAREN GREENBERG: It was so fun. Thank you.