Attorney General Holder gave an important speech in Oslo today, highlighting the threat posed by "foreign fighters" in Syria who may one day return to Europe or the United States. He advocated a four-pronged approach that he urged all concerned countries to involve, including (i) adoption of the sort of criminal laws that have enabled the United States to intervene preemptively in terrorism-related cases (particularly the "material support" concept), (ii) use of undercover operations to smoke out suspects, (iii) better international information-sharing regarding persons traveling to and from Syria, and (iv) increased efforts to work with key communities to prevent radicalization in the first place.
I think this is a very sensible strategy at a high-level of generality, and I am glad to see this forceful reminder that federal criminal prosecution is not by any stretch limited to after-the-attack, retrospective scenarios as is sometimes alleged. Federal criminal law contains a panoply of laws that enable DOJ to prosecute preemptively in terrorism-related cases, including various versions of conspiracy, the two distinct material support statutes (and their IEEPA analogue), and the (little-used) statute forbidding the receipt of military-style training from designated foreign terrorist organizations. Also important, especially in this setting, are charging options that are "Al Capone" style charges that just happen to be available in such cases even if not related to terrorism, such as making false statements to investigators and immigration fraud. (See here, here, and here for a set of articles I wrote rather a long while back, about all of this.)
The full text of the Attorney General's remarks appears below:
Thank you for those kind words – and thank you all for such a warm welcome. Ladies and gentlemen; distinguished guests; leaders and citizens – it is a pleasure to be in Norway. And it’s a great privilege to be in the beautiful city of Oslo today.
I’d like to thank the Norwegian government – and especially Prime Minister [Erna] Solberg and Minister of Justice [Anders] Anundsen, with whom I met earlier today – for their hospitality. I’d also like to recognize our Charge, Julie Furuta-Toy, and the hardworking men and women of the U.S. Embassy for bringing us together – and for all that they do, every day, to advance our shared interests.
It’s an honor to join them – and to stand with all of you – in strengthening the ties that bind our nations together; in discussing some of the most critical challenges the international community must confront; and in reaffirming our mutual commitment to the values we share, and the high ideals – of democracy, liberty, and equal justice under law – that have defined our nations’ friendship over the past two centuries.
That friendship, and those values, have deep roots. Norwegian-Americans have played an important role in the development of our country. And your citizens and values have had an impact around the world. Two hundred years ago, Norway ratified a constitution that asserted certain essential and immutable rights. Through centuries of triumph and challenge, our people and our governments have both been guided by a shared understanding that “all people are born free and equal.”
Today, Norway is a leader in extending worldwide the promise of equality and justice, through its own development work overseas, and through its support of international institutions. And Norway leads global efforts to address urgent threats – most recently in Syria, where Norwegian and American personnel are working side-by-side to rid that country of chemical weapons. Around the world, Norway is recognized as a champion of democracy and human rights. And, for decades, you’ve been leading by example.
After all, as history teaches us – and as you’ve seen here in Norway and we in the United States – progress is not inevitable. And our democratic values, our open societies – and our commitment to tolerance and inclusion – must be continuously protected against agents of intolerance, extremism, and hate.
Particularly when hatred and extremism take expression in acts of violence and terror, we must be resolute in our protection of equal rights, democracy, and the rule of law. And we must be both innovative and aggressive in combating violent extremism in all its forms.
It was just three years ago this month that Norway endured devastating attacks on the government quarter of Oslo and a Workers’ Youth League summer camp – heinous acts that shocked citizens everywhere, and earned swift condemnation and sympathy from around the world – as President Obama stated, our hearts went out to you. Horrific crimes like these are not only terrible tragedies for the individuals and the nations targeted; they test our fortitude and challenge the very foundations of who we are. Yet Norway has not faltered or changed its values – and is an example for the world in this regard as well.
Like Norway, the United States is all too familiar with domestic threats, having suffered deadly attacks on our soil – including against government buildings, places of worship, and sporting events. These attacks, like the attacks you suffered here in Norway, share a common theme: they are attacks on tolerance, in the name of violent extremist ideologies.
Under the Obama Administration, while we have acted to protect our country and our allies, we have also redoubled our commitment to civil rights and to tolerance. This is what violent extremists most fear, for their goal is to undermine open societies. At the same time, we also have joined with our international partners to ensure that there is no impunity for those who seek to commit terrorist attacks. Now, Norway, the United States, and countries around the world face a new threat – the possibility that violent extremists fighting today in Syria, Iraq, or other locations may seek to commit acts of terror tomorrow in our countries as well.
U.S. intelligence officials estimate that nearly 23,000 violent extremists are currently operating in Syria. Among these are over 7,000 foreign fighters – among whom are dozens of Americans, a number that is growing.
We have a mutual and compelling interest in developing shared strategies for confronting the influx of U.S.- and European-born violent extremists into Syria. And because our citizens can freely travel, visa-free, from the U.S. to Norway and other European states – and vice versa – the problem of fighters in Syria returning to any of our countries is a problem for all of our countries.
This is a global crisis in need of a global solution. The Syrian conflict has turned that region into a cradle of violent extremism. But the world cannot simply sit back and let it become a training ground from which our nationals can return and launch attacks. And we will not.
In the face of a threat so grave, we cannot afford to be passive. Rather, we need the benefit of investigative and prosecutorial tools that allow us to be preemptive in our approach to confronting this problem. If we wait for our nations’ citizens to travel to Syria or Iraq, to become radicalized, and to return home, it may be too late to adequately protect our national security.
That’s why we need to adopt a multilateral four-pronged strategy to combat this threat, to counter violent extremism in all its forms, and to keep our citizens safe.
The first element of our united approach must be to ensure that there are laws in our systems that enable governments to properly police that threat. In its Rabat Memorandum, the Global Counterterrorism Forum – a group of 30 countries from around the world, working in partnership with the UN – stated that “Criminalizing preparatory acts, such as conspiracy, terrorist fundraising, terrorist recruitment, planning and training, particularly when a terrorist attack has not yet been carried out, is vital in an effective criminal justice preventive approach to counterterrorism.” In this regard, the U.S. relies on a statute that criminalizes the providing of “material support to terrorist organizations.” Our material-support law, which was originally enacted in 1994 and amended after the attacks in New York on September 11, 2001, bars not only contributions of personnel, cash, weapons and other tangible aid to designated terrorist organizations, but also intangible means of support – such as training, service, and expert advice or assistance. Similarly, in 2013, Norway amended its laws to criminalize preparatory acts to terrorism, including training for terrorism, preparation for terrorism and participation in a terrorist organization Likewise, in 2012, France enacted a new statute that enables prosecutors to charge individuals with “criminal association with the intent to commit terrorist acts.” Earlier this year, French authorities sentenced the nation’s first three defendants under this new law; all three were plotting to travel to Syria. Today, I urge governments around the world to consider similar measures that criminalize the preparatory acts committed by those with terrorist plans.
The second part of our comprehensive strategy looks to ensure that we have in place law enforcement investigative tools and techniques that are both effective and protective of individual rights and the rule of law. In this regard, we have found undercover operations – which the Federal Bureau of Investigation pioneered in fighting transnational organized crime – to be essential in fighting terrorism as well. In the United States, the FBI has already conducted undercover operations that have identified individuals with intentions to travel to Syria. These operations are conducted with extraordinary care and precision, ensuring that law enforcement officials are accountable for the steps they take – and that suspects are neither entrapped nor denied legal protections. Here, too, the Global Counterterrorism Forum’s Rabat Memorandum calls for such techniques to be applied in countries around the world: one of the “good practices” it advocates is that countries “Provide a Legal Framework and Practical Measures for Undercover Investigations of Terrorist Suspects or Organizations.”
Third: in order to further our investigative capabilities, we must strengthen international cooperation, in a variety of respects. As an initial matter, we must prioritize the sharing of traveler information as a potential way to prevent would-be foreign fighters from going to Syria in the first place – and tracking those who come back. The United States is committed to doing its part in this regard. As we speak, through law enforcement agencies such as the FBI, U.S. authorities are working with Interpol to disseminate information on foreign fighters. We encourage other countries to use Interpol – and Interpol notices – to combat the foreign-fighter phenomenon. And we are actively supporting Interpol’s Fusion Cell, which focuses on information-sharing relating to foreign fighters. In fact, the U.S. has provided personnel, including FBI agents, to support this specialized office.
While we are committed to ensuring that we protect the safety of our fellow citizens, we are also committed to protecting their privacy. Alongside policymakers in Brussels, we’re also working to attain an “umbrella” data-sharing agreement between the United States and the European Union, that would strengthen the already strong protections that are presently in existence and that ensure that law enforcement information is shared effectively, and in accordance with data privacy principles. This agreement will guarantee that there will be no diminishment of the key exchanges of law enforcement information, including terrorism information, that is critical to the safety of citizens in Europe, the U.S., and around the world. And as a step to advance this endeavor, last month – in Athens – I announced a United States commitment that the Obama Administration would seek legislation to create the ability – for non-U.S. persons – to seek judicial redress for access and rectification, and for willful or intentional disclosure, of law enforcement information transferred to the United States. This is an historic commitment by the United States to extend privacy protections beyond U.S. persons in this context. It is imperative that we reach an “umbrella” agreement in this regard as soon as possible. The time for posturing has long past. It is time for nations that have long shared fundamental views about privacy to act together.
Countries must also effectively use mutual legal assistance and extradition to counter foreign fighters. Here, too, the Rabat Memorandum of the Global Counterterrorism Forum is instructive: “Because terrorism often transcends national boundaries, timely and effective international cooperation is indispensable to a criminal justice response to terrorism.” Through international mutual legal assistance, the U.S. Department of Justice has provided evidence to countries for use in prosecutions of terrorist organizations – including terrorist groups that were recruiting others to fight in Syria. We continue to assist foreign partners around the globe by acting on mutual legal assistance requests and providing evidence to support those criminal investigations and prosecutions. And we believe it’s critical that countries develop their abilities to effectively engage in mutual legal assistance – including by strengthening their central authorities – so that we can work together to counter this shared threat.
International cooperation also means working together to build the capacity of other nations, as Norway does in so many different contexts. Norwegian and U.S. Department of Justice legal advisors have worked together to build Rule of Law in Georgia and Moldova. And to enhance similar efforts on a global scale, the U.S. Department of Justice is providing capacity-building assistance to help our partners build fair and transparent justice systems that will allow their countries to confront transnational crime and terrorism, including the problem of foreign fighters. Applying the standards of the UN Counterterrorism Treaties, and the best practices of the Rabat Memorandum, our capacity-building work, and that of our foreign partners, has helped advance laws permitting police and prosecutors to more effectively investigate and prosecute suspected foreign fighters, within the Rule of Law – leading to the disruption of foreign fighters and the dismantlement of organizations that recruit would-be fighters to travel to Syria. Through ongoing programs in places such as the Balkans, Africa, and elsewhere, we continue to work with international partners to help them stem the flows of foreign fighters; to use the tools they have to more effectively impede their movements; and to assist in the investigation and prosecution of foreign fighters once captured.
Today, I challenge additional nations to step forward, as Norway has. Commit to robust, and privacy-protective, data-sharing in service of our mutual security. Pledge support for Interpol’s “Transnational Fighter Initiative.” Support mutual legal assistance and capacity building. And urge others to do their part by participating fully in these efforts – which will be effective only to the extent that they are as comprehensive as possible.
The fourth and final element of our strategy is founded on the notion that strong laws, effective investigative tools, and robust information-sharing must be matched with public engagement – and extensive community outreach. We must seek to stop individuals from becoming radicalized in the first place by putting in place strong programs to counter violent extremism in its earliest stages. In my time here in Norway, I have had the chance to learn about – and have been deeply impressed by – Norway’s Action Plan Against Radicalization and Violent Extremism.
Indeed, I have found it critical to engage in international exchanges with my counterparts regarding how we can do better on combating radicalization, and to learn from each other. I will take home with me important lessons from Norway’s experience. These lessons will help us implement our own National Strategy and Strategic Implementation Plan, which is led by the Justice Department, the FBI, the Department of Homeland Security, and the National Counterterrorism Center.
Our approach depends on building mutual trust and respect with members of communities across the country – so that we can understand their needs and concerns and to foster open dialogue with community leaders and citizens. This enables us to work with them to mitigate tensions and identify emerging threats.
At the heart of these engagement efforts in the United States are our United States Attorneys, the chief federal prosecutors in each of the jurisdictions they serve. Since 2012, our U.S. Attorneys have held or attended more than 1,700 engagement-related events. And the resulting relationships have not only served to build trust. They have also produced valuable cooperation, in some cases spurring community members to alert law enforcement about individuals who show an inclination to turn to violence.
Across the United States and in countries around the world, such counter-radicalization programs show significant promise. They serve our broader aim of fostering tolerance, inclusion, and understanding – which are themselves powerful tools against violent extremism. But ultimately, our goal must be not just to fight radicalization or apprehend dangerous individuals. At its core, this work is about forging more just and open societies – and building a more peaceful world.
That’s why it’s especially fitting that we recommit ourselves to these efforts here in Oslo – where so many of mankind’s highest ideals and aspirations have been recognized. For more than a century, this city has welcomed some of the most devoted peacemakers the world has ever known – from the Reverend Dr. Martin Luther King, Jr., who advocated for “a more noble civilization” in the midst of America’s long night of racial injustice; to Nelson Mandela, who insisted that “an injury to one is an injury to all.”
Throughout history, these pioneers of peace have called us to recognize that our capacity for courage has no limit. The struggle for human rights, civil rights, and equal justice knows no borders or boundaries. Yet their stories also remind us that, for all the progress that they have made possible, our journey still stretches beyond the horizon. And our work has no end.
You know as well as anyone that the work ahead will not be easy. None of the challenges we face are simple or straightforward. We will suffer setbacks. But so long as we remain committed to standing together, working together, and striving together – as people of courage, as leaders of conviction, and as nations of high ideals – I cannot help but feel optimistic about where our joint efforts will lead us. I thank you all, once again, for your leadership, your collaboration, and your friendship. And I look forward to everything the United States and the Kingdom of Norway will achieve together in the months and years to come.