Traditional anti-terrorism efforts focused on responding to terrorist activity. But following September 11, 2001, the law enforcement landscape shifted after governmental agencies were blamed for having failed to detect and disrupt the terrorist plot. Since then, counterterrorism initiatives have prioritized the disruption of terrorism in the inchoate stage. This new focus achieved salience as Al-Qaeda was displaced by ISIS. Whereas Al-Qaeda sought to train terrorists on foreign soil, ISIS sought to “inspire” and “direct” disaffected Americans to commit terrorist acts in its name.
Seeking to disrupt those recruiting efforts, government agencies began monitoring online chatter among U.S. citizens to identify individuals who might be at risk of being recruited to terrorist causes. But this approach, too, presented challenges. According to Seth DuCharme, former acting U.S. Attorney and criminal chief for the U.S. Attorney’s Office for the Eastern District of New York, whereas the ideology of Al-Qaeda made it somewhat predictable, ISIS leveraged a shifting, potpourri of ideologies. And ISIS found no shortage of individuals angered by their apparent divestiture from the American promise. “You would shine the spotlight of the American enforcement apparatus, and you would see thousands of angry Americans saying things that were ambiguous, but alarming,” says DuCharme. “They’ll be on social media saying things like, ‘The next time I get to D.C., I’m bringing my AR-15.”
Constitutional Concerns
Yet, basing government interdiction upon inferences drawn from the rhetoric of U.S. citizens poses substantial constitutional concerns. “You can’t be chasing angry people’s thoughts to come up with a legal theory of the case,” DuCharme explains. While speech to or at the direction of a known terrorist group violates federal law against providing “material assistance” to terrorists, generalized speech in support of terrorist causes – and even membership in terrorist organizations – remains constitutionally protected. Holder v. Humanitarian Law Project, 561 U.S. 1 (2010).
DuCharme, now a partner at Bracewell LLP, advocates for early intervention efforts that strive to be both effective and just. He emphasizes that the vast majority of even individuals deemed to be at high risk of terrorist recruitment never acted on ISIS’s incitement. He also cautions that the means and methods used by the government to attempt to prevent terrorist acts can in fact push at risk people to take concrete steps toward terrorist acts they might not otherwise have taken. “We deal with complicated things,” DuCharme cautions. “People are angry. And if the government doesn’t do it just right, in the most measured, responsible way, it risks disastrous results.” DuCharme cites the example of an Ivy League university dropout who left the country and joined ISIS after the Department of Justice approached him about his rhetoric.
It was for this reason that, during his time in the U.S. Attorney’s Office, DuCharme advocated the use of initiatives that looked for opportunities to use more nuanced approaches to at-risk individuals. The strength of the program, according to DuCharme, is that it is not really a program – “It’s a different way of thinking” about the tools available and the methods for creating the space necessary to use those tools effectively. Those tools include using undercover operatives to talk individuals out of action without the potentially destabilizing effects of overt government intervention, charging crimes in ways that allow prosecutors to exercise the discretion they already have to place certain defendants in pretrial diversion programs, moderating sentences for non-violent conduct, utilizing specially trained psychologists to conduct threat assessments, and even simply ensuring that individuals in need of mental healthcare receive it.
At the same time, DuCharme emphasizes that the initiatives he advocates are not about stepping back from enforcement or taking a “soft” approach. Instead, they are focused on efficient solutions for separating the actors from the merely angry. For this reason, DuCharme avoids buzzwords like “offramps,” which some in the law enforcement community criticize as failure to enforce the law. Instead, DuCharme talks about concepts like “disruption” and “early engagement.”
This careful balancing of effectiveness and fairness, even in language, has paid off. DuCharme is proud that the approaches he advocates have won support from both ends of the political spectrum, from William Barr to Loretta Lynch, as well as from all corners of law enforcement and the judicial system. And DuCharme reports that he still fields calls about his programs and approaches from prosecutors, defense attorneys, and judges.
But while similar government programs still exist, DuCharme admits that it can be difficult to find consistent support. These sorts of programs make government agencies anxious, DuCharme says, because “engagement accepts responsibility,” and government officials are often uncomfortable occupying the “middle space” these initiatives require. “You need credible people who are willing to own risk,” DuCharme says. So while platforming ideas is a valuable part of the processes, “[i]f your approach to counterterrorism is to do PowerPoints, you’re not helping me with my ‘now problem.’” For that reason, DuCharme explains, some of the most important work in this space now is being done outside the government.
Citizens Crime Commission
Here, DuCharme points to Richard Aborn, a managing partner at Constantine Cannon LLP, and the work of his organization, the Citizens Crime Commission of New York City (CCC). Aborn, a former Assistant District Attorney in the Manhattan District Attorney’s Office and acknowledged expert on policing and criminal justice, realized that the criminal justice system has for many years understood that there is a clear intersection between mental health and criminal behavior. Yet, that understanding had been slower to permeate the counterterrorism space. CCC aims to change that.
CCC is tasked with identifying and implementing alternative pathways to prevent the most dangerous crime. Applying a methodology known as DEEP (Disruption, Early Education, and Prevention), CCC uses specially trained and licensed clinical social workers and therapists to conduct threat screenings and counseling programs that focus on addressing the emotional drivers of violent extremism. CCC does not focus on de-radicalization, which Aborn describes as telling people what to think. Instead, it focuses on de-mobilization. CCC’s counseling relationships are legally privileged. So while CCC works closely with law enforcement, individuals engaging with the program are given the privacy and space necessary to create the trust that Aborn and DuCharme agree is indispensable to successful outcomes.
The beauty in CCC’s approach, Aborn says, is that it can be applied at any stage of the law enforcement or judicial process, and CCC coordinates with prosecutors, courts, law enforcement, and community members to identify opportunities for intervention. “The coin of the realm is trust,” he says.
Aborn has earned that trust with both law enforcement and the mental health community. A former prosecutor, Aborn has earned the trust of the law enforcement community through decades spent advising governments and law enforcement agencies on policing and criminal justice issues. At the same time, he is conversant in the mental health protocols deployed by CCC’s mental health professionals and has earned the respect of the criminal justice community through his work on New York City criminal justice policy and his brokering of relationships between law enforcement groups and criminal justice organizations in New York and elsewhere.
Aborn admits it is high-stakes work. But he emphasizes that CCC is playing the long game. “We are very willing to take low-level, almost no-risk cases. They give us the opportunity to establish explicit protocols with law enforcement to develop that trusting relationship.” “More broadly, we accept low- and medium-risk cases, and occasionally a high-risk case depending on the circumstances.” “The goal,” he says, “is to build a viable means to direct individuals away from violent extremism when their conduct is driven by a mental health issue before they act.” The painstaking work of building understanding and acceptance of these programs is necessary, Aborn says, because “you cannot arrest your way out of this problem.”