tv Politics and Public Policy Today CSPAN November 11, 2015 3:00pm-5:01pm EST
and "a reporter's journey." "lights out, surviving @math." first p.j. o'rourke takes calls. joy an reed you frarks you barack obama, the clintons and racial divide. join us live from miami on c-span 2's book tv. be sure to follow and tweet us your questions @booktv and @c-span on twitter. the supreme court heard oral argument this month in foster versus chapman, a case dealing with the jury selection process for the trial of timothy foster. the court will decide if the selection was unconstitutional because race was a factor in eliminating potential jurors. in 1986, the court ruled 7-2 that prosecutors cannot dismiss
jurors because of their race. foster was convicted of killing a 79-year-old white woman by an all white jury. >> we'll hear argument first this morning in case 148349, foster versus chapman. mr. bright. >> mr. chief justice and may it please the court. the prosecutors in this case came to court on the day of jury selection determined to strike all the black prospective jurors. >> maybe you could address first the question we raised on friday with respect to which court certiorari i should be directed to? >> yes, your honor, we filed this originally certiori to the supreme court of georgia. of course this court in sirius versus upton issued certiori in 2010 of the georgia supreme court in a similar situation. it appears to us from looking at this over the weekend that r.j.
reynolds tobacco company versus durham county, which the court has cited in 1986, the court said unless there was positive assurance that the decision was not a decision on the merits, then the writ went to the spate supreme court. and the georgia court, while it has rules and statutes and its own opinions that are not totally in harmony with one another, the rule, nonetheless, that a certificate of probable cause, which is what was denied in this case is to be granted if there is arguable merit to the case. >> do you think that effects the scope of our review? are we addressing arguable merit to the claim or adding on its own merits purchase i think what the court has done in all the cases is look through to the
last decision, decision of habeas corpus court. in georgia rules an application is made for certificate of probable cause to the georgia supreme court and that is often denied summarily. it is denied summarily as it was in this case. >> i really don't understand that. you say we would be reversing the georgia supreme court not the habeas court, right, and all that the judge of the supreme court held is that there was no arguable basis. if we reverse that decision, tell the georgia supreme court, you're wrong, there is a arguable basis for accepting review, so we ought to remand to that court requiring them to accept review, it would seem to me. >> how can we reverse them on an issue they never considered?
>> well, that's what happened to r.j. reynolds, a situation with an intermediate supreme court that ruled and north carolina supreme court denied review. the question was do you issue the writ to the intermediate appellate court or north carolina supreme court. this was decided. the justice writing for the court said, we want to give practitioners -- we want to end the confusion about this. and so it goes to the state supreme court. there's no difference in our situation here. >> you're saying in that case and other cases, in that situation we none the the less addressed reasoning of the intermediate court? >> you did in sirius versus upton case out of georgia in 2010. that was certiori supreme court of justice came up in our case. >> is there an argument the
petition for certiori could go to supreme court, a review could have been had, which sounds like georgia supreme court. on the other hand justice scalia said hadn't really directed their attention to the issue. i'm not sure to me it's an option to go to the georgia tractor-trailer -- trial court or is that correct? >> followed in brady versus north carolina, 2015 case this year, in which once again there was intermediate court decision denied by north carolina supreme court. i can remember back to 1960, thompson versus louisville where certiori was to police court in
louisville, kentucky. no court in kentucky could take the case because the fine was less than $20. i think these cases, much more recent, decided by court 19 w86f this year. >> putting together two rules you say we've established. one is justice blackman said to end the confusion the petition should be addressed to the supreme court. and then you said we have cases lookthrough cases. if the supreme court has said denied, nothing more than denied, we look back to the last reasoned decision. those are both decisions of this court and that's what you're relying on. >> well, they are not mutually exclusive. this court can look back through to the last recent decision in making its decision in this case, and i believe that's what it should do. at the same time the court's opinions appear to us on the quick research we did on the
weekend over this, that r.j. reynolds and subsequently case say that certiori would issue to the georgia supreme court and we list thad way. when it was docketed, it was superior court of bucks county. >> what if the state supreme court wrote a very short opinion and said we're not going to determine whether there was in fact -- the only issue we're going to determine is whether there was any arguable merit to this, whole issue whether it was a correct application is an issue we have to decide? >> i think in r.j. reynolds, i think that's law, yes. >> could i ask a question about an underlying issue before we get to the case. the superior court said on page 175 of the joint appendix that
the issue of the batson violation was not reviewable based on the doctrine of res judicata. it later said, 192 of joint appendix, it will review the batson claim as to whether petitioner showed any change in the facts sufficient to overcome the res judicata bar. if you put those two together, you could argue that the supreme court decided only a question of state law, namely whether the situation here was such that there could be review of the batson claim. what is your response to that? >> well, the state doesn't argue that. i think the reason for that is because the court said -- the court is going to address step three of batson and said the claim was without merit. >> is it a question of federal or state law as to whether or not petitioner has shown a change, in fact, sufficient to
overcome res judicata bar, what justice scalia quoted. is that a state law question? >> that's a state law question. here the court decided it. >> if it's a state law question and they decided against you, what have you got to argue? i thought you would say a federal question. >> in order to decide it, it's exactly like versus oklahoma where the court -- the oklahoma court had to decide the federal question in order to decide whether it had jurisdiction othover the issue. the court held in eight the federal court had to decide the issue. it did, decided the issue, found the batson claim had no merit. it is decided federally issue -- >> explain to me why deciding the federal issue was essential toist deciding the state res
judicata issue. >> because it framed the question as being that it would look -- excuse me. they would look at-batson versus kentucky, if there was merit the court would grant the writ on it. on the other hand if they found there was not merit. >> you think they were saying whether res judicata or not is whether the claim has any merit? >> i think exactly. >> that's a very strange application of res judicata, seems to me. i thought it was whether there were changed facts sufficient enough. >> georgia law is that you can bring an issue litigated already before direct appeal. >> right. >> in habeas. >> right, even if it would, you know, produce a different result, right? >> if the facts are such it would produce a different
result. >> did the court in your judgment do denuovo review, step three of the batson -- >> that's exactly what the court said. >> that's your ruling on the merits? >> i think the court said the batson claim is without merit. that seems like a ruling on the merits to me. >> i think it said after -- >> after considering these other facts. we think there were some legal errors made there. yes, after considering these facts, the court said that the claim was without merit. >> the court said that it would again on the basis of new evidence presented so they did it all over, and i guess that's -- you must take that as what happened. they did not apply res judicata. >> this court said when the
resolution of the state procedural law question depends upon a federal constitutional ruling, the state law is not independent of the federal client. this court has jurisdiction page 475. >> i don't want to belabor the point too much. are you arguing georgia race judd cat, a is this. that is sufficient to allow them to wipe out and get to the merits of the claim. is that your argument? your understanding of res judicata law? >> has to be sufficient enough the court did what it did in this case and rule on the issue. that's what it did here. this is not a matter of adding one more leaf to the basket. >> we really want you to get to the basket but why is that in
conjunction with justice scalia's question, why is that an issue of federal law? >> because the court decided that's an issue to decide the underlying state issue. i think pretty clear pt since the court raised this in opposition to certificate or brief, it's not briefed before this court. i think that's the deciding case on this. >> thanks, council. i think we have your argument? >> if i could just say what happened here, the prosecutors identified the affirms african-americans by race, rated them against each other in case it came down to selecting a black juror. >> the reason concentrating on black jurors is that you had informed them you would present a batson challenge, and therefore it was necessary for
them to see if there was race neutral for qualifying. >> to answer that, justice ginsburg, what the lawyers did, these lawyers practiced a long time in rome, georgia. they said the prosecutor always sfrix all the blacks on the juror. that's been the practice. we think they will strike all the blacks in our case. supreme court decided batson versus kentucky and we asked the court not to let that happen in this case. if the prosecutors wanted to avoid a batson challenge, they could have not discriminated. but secondly, with regard to information that's collected here, it doesn't seem like it's information just to exercise strikes when they say it comes down to having to take an african-american, miss hart, or miss garrett might be okay. and the district attorney himself said marilyn garrett has the most potential of the black
perspective jo perspective jurors. in other words blacks were taken out and dealt with separate. over the weekend, a jury's questioning ended on friday. a judge said, all right, over the weekend, you have a chance to decide who you're going to strike. they knew exactly who they were going to strike because the jurors are listed in order. the state goes first. if the state accepts, that juror is on. there's no going back. there's no striking people here and there. they develop three strike lists. one of those strike lists was a list headed definite no. these are the people absolutely not going to be on this jury. there's om six listed on the list of definite nos. the first five were african-americans. the sixth made it clear she could not impose death penalty
under any circumstances. the judge moved to strike her for cause. the judge probably erred granting that. she was behind black jurors in terms of striking. >> counsel, at the time mr. lanier said they weren't striking the jurors because of race, they were striking them because they were women. i guess three out of the four african-american african-americans who were struck were women. that explanation has fallen out of the case. how does that affect the analysis. >> he did accept women as well. bear with me just a moment. >> the court had not held batson.
>> did not say it applied to women but could be used as a pretech, women, for striking on the basis of race. in this case, the prosecutor struck three white jurors and then three black jurors. three white women and flee black women. >> mr. bright, mr. lanier answered question when a jury in the trial, when he was asked whether he had done -- oh, no, on the motion for new trial hearing, whether he had done the same extensive background check on all the jurors, white and black. did you find any evidence of that extensive black background? >> the the only -- what that's talking about, and the investigator said this in his deposition was the color, race coded color list, those first four lists you have in joint
appendix, in which blacks are marked with a b and highlighted in green with a marker up at the corner saying green designates black. >> so your understanding is that he had only done an extensive search on the blacks. >> it was clear mr. lundy had prepared a list of notes in which you talk about just the black jurors in the list. the state concedes in the brief that was focus was on the black joos jooshs. >> during the trial did defense counsel when he made batson challenge, in the in the paper but the trial, did he say this was part and parcel of the prosecutor's pattern? >> he didn't say that i point this interesting thing out. when they discuss the batson motion before trial, there was never a suggestion there wouldn't be a batson hearing.
everyone knew what happened, all the blacks would be struck and then they would have a hearing. they put it in writing and relied on that. >> i was just surprised we didn't hear about this preparation for batson hearing until habeas. >> they didn't move for the notes and prosecution opposed that. they were very strict not giving up the notes. then prosecutor testified on motion for new trial he did something i've never seen a lawyer did, cut a bargain saying i will testify but only if i don't have to show them my notes. basic rules of evidence, you testify and rely on notes, the other side can see the notes. but here these notes were guarded until 2006 when we obtained them through a freedom of information.
>> said we never wrote, saw, authorized or relied on those notes. and you didn't call the prosecutor to test the veracity of that assertion. >> all they talked about was color highlighted notes. joint appendix, 168, all they said was we didn't highlight it in green and we didn't tell anybody else to highlight it in green. mr. lanier says i don't have anything else to say beyond what i said at the batson hearing and motion for new trial. mr. pullon said, only thing he said, i didn't use those green highlighted lists in choosing the jury. of course that's just the first few pages. what's damming about this is not so much that but the definite no list, misrepresentation to the
tractor-trailer they wanted miss garrett, that's what they told the trial court and the relied on that showing the the batson motion. she was on the no list, each of the strike list, miss garrett was never in the running to be on this jury but they represented to the court that because of another african-american shirley powell was excused for cause, there were five when they got ready to instruct the jury but one said, turns out i know somebody in the family. she was excused for cause. the prosecutor implied clearly had it not been for that, that extra strike, miss garrett would have fit. they argued both ways, they wanted her and didn't want her. they give 11 reasons for why miss garrett would not be a good
juror. imp dent, does not respect the court. if you believed all those things she said, they would not want her. those things are not really valid in terms of the reasons, because the reasons they gave here, many were demonstrably false, not supported by the evidence, including reasons given about miss garrett, inconsistent, completely incredible, applied to white jurors, some of these reasons applied to white jurors who had same characteristics as african-americans who were struck. lastly, what's so important, they didn't question the jurors about the reasons for striking. they gave reasons for striking. one question would have cleared up some of these. miller l says the failure to engage in any meaningful voir dire about what your reason is is evidence suggesting the explanation is a sham and a pretext. >> mr. bright, i have found some
circuit courts who have a rule on appeal or on habeas, which is if they can find one legitimate reason for striking a juror, that's enough to defeat a batson challenge. do you believe that's an appropriate rule? are you suggesting a different approach to the question? >> well, it can't -- i would suggest it can't possibly be, because this court said, and justice alito's opinion, snyder versus louisiana, where shown to be motivated in substantial part by race, that it could not be sustained. excuse me. i would suggest to you it shouldn't even really say substantial, because this court as it said so many times in unceasing efforts to end race
discrimination in the criminal courts, then a strike motivated by race cannot be tolerable. of course it's pointed out here, this is a serious problem, not just in this case but other cases where people come to court with canned reasons and read them off. that happened in this case. one of the reasons given was just taken verbatim -- two of the reasons given were taken verbatim out of a recorded case. so you don't have the reason for the lawyer in this case. my personal preference. it wasn't his personal preference. it was the personal preference of some u.s. attorney in mississippi who gave that reason and upheld by appeal in the fifth circuit. we would suggest the standard is at least what snyder said. when you have both -- you can always have, as miller l. recognized.
>> in response, if prosecutor has a laundry list of reasons for striking black jurors, some are reasonable and some are implausible, how should the court approach batson analysis. >> looks at which is pretextural, the fact there is a laundry list in and of itself that the court should scrutinize the reasons carefully, be suspect of the reasons. otherwise what the court is going to do encourage prosecutors or any party in the case, batson applies to everyone, encourage a party to give as many reasons as possible and hope they are acceptable. >> don't you think this is a case by case thing? suppose there's one reason that's a killer reason, this individual has numerous prior felony convictions, all right, and then the prosecutor says in addition this person didn't -- looked down at the floor answering the questions and didn't seem to pause and didn't
seem to understand the questions. under a circumstance like that, couldn't the court say, well, there's one reason here that would -- that is clearly a justification for preemptory strike. we don't have to have evidence the person was looking down at the floor. >> batson says and subsequent cases says you look at all relevant circumstances. it may be if all the circumstances are there, the ones you said, you would come to the conclusion that of those two reasons there was a valid reason. but i would suggest that where you have indicia like we have here, we have an arsenal of smoking guns in the case. >> a lot of smoking guns original decisions by the georgia courts. it seems to me what you would have to establish to reverse the georgia courts is that the new smoking gun, assuming that all the rest were not enough to demonstrate a batson violation, the new smoking guns would tip
the scale. isn't that the issue, the georgia courts decided? >> when the new smoking gun tells you the prosecutor misrepresented facts and gave reasons that were absolutely false, demonstrabley false reasons and those were not clear before but you have them now, basson turns on the credibility -- >> all i'm saying and you seem to be agreeing, it is not the overall batson judgment that's before us but rather the judgment that the new evidence does not suffice to create a batson violation where none existed before. >> no, our position is when you look at the new evidence with all the evidence at trial, that all relevant circumstances considered together, considering a lot of reasons we now know from the notes, we now know from the notes there were misrepresentations with regard to reasons. the georgia supreme court, this is an example justice scalia
upheld the strike on two bases, she was a social worker and her cousin had been arrested for drugs will she was not a social worker. second secondly the prosecutor didn't find out until after the arrest, so it couldn't have been a reason for the strike. >> you're saying to justice scalia, you have the notes, those notes cast doubts on some of the prosecutor's justifications in the first round purchase they do that and show misrepresentations to the court and overarching goal separating out african-american citizens, treating them differently and putting them on this list of definite nos. >> just to make sure i understand, all the notes in the prosecutor's files were new. >> new to this case. >> there were three people, prosecutor and two investigators.
i would like to reserve the balance of my time. >> thank you, counsel. miss burton. >> mr. chief justice and may it please the court. two important factors in this case reviewing the entirety of the evidence. one, petitioner bears the burden of establishing clear -- >> i'll ask you as well to address the certiorari question first. >> respectfully i disagree on this issue, i believe norfolk western roadway, this court's opinion indicates or states that if there is and issue raised in the lower court and it is raised in the state's highest court, in this case georgia supreme court, in this case supreme court denies review, on certiori from the lower court. >> the problem is i don't think this is discretionary review. the 11th court found it's not
under georgia law, read its opinion, seems pretty grounded in the state law of georgia. >> yes, your honor. that's a pretty hot button issue in the state federal courts in georgia. our position in those cases and i think there's a case before rehearing on that same issue is that georgia statute, georgia statute says that's discretionary appeal. 1975 habeas corpus act made it discretionary appeal because georgia supreme court was just getting inundated with appeal after appeal. >> has the georgia supreme court said anything one way or the other whether it's discretionary or not. >> in two cases, rechlt e versus hopper, smith versus nichols, which is 270 southeastern 2nd they both state those as discretionary. they have not answered a certified question on the issue.
>> could you give me reed. >> 219 southeastern 2nd 409. that's a 1975 case. >> are certified questions available in georgia? could we certify a question to the georgia supreme court? >> i believe you can, your honor. >> i looked at the statute. the statute says in a habeas case, habeas, that the georgia supreme court must review it, must review it, unless it's without merit. i forget the exact words i was looking for. >> i think it's 91452, the statute, state habeas cases out of other appellate review and makes that discretionary. the georgia supreme court. >> then i would be looking at the wrong place. you heard your brother here say he quoted some words. i don't remember the exact words
but they were exactly what i read and from a statute in georgia. the georgia state said, i just can't find it in my book. sorry. the georgia statute said they can review the case unless it's without -- it's totally without merit. something like that. does that ring a bell? does that ring a bell what i'm saying. >> it does -- >> what are the exact words. >> i don't know the exact words. >> exact words certificate of probable cause will be issued when there is arguable merit. >> yeah, that's it. >> i believe that's rule 36 of the georgia supreme court. >> 1452. >> if there had been compliance with that. >> does that governor this case. >> i believe the statute would trump it. >> does the word the chief justice just read from georgia law govern this case? the answer is yes or no. >> no. >> they do not govern this case.
what in your opinion is the georgia statute that says those words you just held do not govern this case. >> i believe it's 19 -- correct -- i'm certainly open to correction, 191452 state habeas taken out of other appeals, which are normally directly appeals, prisoner appeals and they are discretionary. >> i suppose that a court could have a discretionary view but provide by rule that in the exercise of our discretion we will grant any of these unless patently wrong. maybe that's what happened here. if you use your discretion to enact a rule which says you will take cases of a certain court
does the taking still remain discretionary. it's a nice question, isn't it? >> i think the taking of the case remains discretionary, if they find it has merit, is discretionary, the two cases i cited specifically referenced. >> just decided you will uniformly exercise your discretion in a certain way. >> you're saying there is no such uniform determination, they will exercise their discretion in a certain way. they are insistent upon their discretion being discretionary. is that correct? >> that is my understanding. this law applies to not just obvio obviously cases but -- >> i'm sorry. i'm so confused i can't even -- the state habeas process is different than the regular appeal process. >> that's correct. >> on the regular appeals process they look at each case
with discretion. >> on a direct appeal process, and certainly a capital case, it is mandatory review. >> in state habeas, a rule, internal rule that says, will take every habeas case unless it has no arguable merit, right? >> if i may rephrase. i think the rule says they will take a case if it has arguable merit. >> in the positive. >> right. >> so what would lend us to believe that they didn't look at the merits and say there was no arguable merit. they just said we're too busy, don't care if there's arguable merit. do you believe they do that? >> i would never say too busy to take the case. i would never say that would be their reason but i think they would say -- they do have the records before them. we don't see arguable merit to take this case up.
>> that is a decision on the merits. there's no arguable merits? >> i think it is no arguable merit to the application that there has been error below, if that makes it any clearer. >> now it's clear. >> and in your view, cert should have been granted to supreme court. >> i believe it should have been granted to supreme court. because of that discretionary review and the court has said in michigan versus long that if it's unclear it comes from the state habeas court. >> can i just ask one more quick question about this. you made reference, this is an issue that's being litigated in the georgia courts, is that right? 11th circuit. >> that's correct. >> this issue. >> this issue. >> thank you. >> what issue is that? is it the issue of which court
the certiori should be directed to? the issue of what? what is the issue? >> am i right that the issue that's being litigated is whether the supreme court review in cases like this is discretionary or not discretionary. >> that's correct. in those cases obviously coming up from federal court so we're dealing more with harrington versus richter, sort of a different scope of things in that regard. >> this question is in both the georgia supreme court and in the 11th circuit? >> it is currently in the 11th circuit. i don't believe we have a case pending in georgia supreme court on that particular issue. i do believe there is an issue up here in a case jones versus chatman. >> do you think this would k a case to exercise our discretion to certify the question to the supreme court? >> we would certainly like an answer from the georgia supreme court on that issue. i think the 11th circuit would like that as well.
i think it would clear up both state and federal law for a number of things. >> there's a statute that permits the georgia supreme court to accept certified questions. do you know anything about the history of request for certification? some states have a process but the state supreme court rejects the question. >> i do not, your honor. i apologize. >> what if we hold in this case that is not discretionary review? georgia supreme court says it is depression area review. who wins? is it a question for us or the georgia supreme court? >> i think it's ultimately a question for georgia supreme court as to what the state law is. >> i think me, too. >> can i go to merits?
is that right? look, you have a lot of new information from these files that suggests what the prosecutor's were doing is looking at african-american jurors as a group they had basically said we don't want any of these people. here is what we want if we really have to take one. all the evidence suggests a kind of singling out, which is the very anti-thesis of the batson rule. i'm just going to ask you, isn't this clear a batson violation this court is ever going to see. >> i think it is. they donned undermine any of the findings by the prosecutor in his strikes, particularly mr. hood and miss garrett. they certainly can be interpreted in two ways, in response briefed to this case.
we don't know when we say this is why these highlights are there. there's a reasonable explanation just as mr. foster has given speculation on this arguments. >> what's the reasonable explanation? >> the reasonable explanation is four months prior to trial, as was previously argued. batson just came out, batson new, four months prior to trial, defense counsel files a motion, the strike of any black juror we're filing a batson challenge. two weeks prior to trial he files a motion and says there's racial disparity in 179 jurors. that's the list that's challenged, 179. there's racial disparity of black prospective jurors on that list. the day of trial he refiles that. i would be more surprised, quite frankly, if there wasn't some sort of highlighting. >> in other words, the argument you're making here is that the reason he highlighted all the black jurors in green and said
what about the black jurors and all these different things was because he was preparing a defense in case of a batson challenge? >> correct. >> if that's correct, was this argument made your main brief in the case. >> yes. >> it was not. >> if that had been his reason, isn't that a little surprising he never thought of it or didn't tell anybody until you raised this argument in your main brief? >> i would say that's on state habeas, counsel. we relied on res judicata bar throughout habeas and then after that basically defended factual finding of the state habeas. >> seems to be two arguments. one is this argument he never thought of, apparently, at least never thought to tell you until quite recently and the other, after years, so it's hard to believe that's his real reason. then there's a second argument he had about 40 different reasons. at least some of them could be
valid. if my grandson tells me i don't want to watch -- i don't want to do my homework tonight at 7:00 because i'm just so tired. besides, i promised my friend i would play basketball. besides that there's a great program on television. besides that, my stomach is upset but i want to eat spaghetti. he's now given me five different reasons. what do i think of those proe reasons? >> in this case -- >> one may be valid. >> correct. >> which one? >> they all may be valid but they all may not be as strong as the first one. in this case, i think the important part -- >> the point is he gave 40 different reasons. the very fact he gives 40 reasons, self-contradictory, applicable, totally different, i use my grandchild's analogy. i would say my answer to my grandchild is, look, you're not too tired to do your homework.
i think any reasonable person looking at this would say, no, his purpose was to discriminate on the basis of race. tell me why i'm wrong? >> i think because you have to look at the time period this was done. this was done a year after batson came out. even throughout the transcript people -- defense counsel and the prosecutor say we don't know where batson is going. in this case the prosecutor dealing with batson for the first time, the first time in history anybody has had to put strikes -- >> he's simply wrong. he puts down if it comes down to having to pick one of the black jurors, miss garrett might be okay. >> that seems to undercut the argument they are just feeling their way and so forth. they have made a mistake of law in batson.
sure it was new but they are wrong. >> first let me say that's why there was a laundry list because he was espousing the every reason he had. with regard to mr. lundy's notes, the investigator who said if we have to use a black juror, she's the best one. >> who is responsible for the definite no list. >> the definite no list nobody -- the only person that was asked about that was mr. lundy who was deposed and said he could not identify who wrote that list. >> there are only three possible choices. >> right. we know it came from the d.a.'s office. >> it exists, says definite no. >> correct. i don't think that was a ranking of jurors. when you look, they did score jurors throughout. >> they were five african-american jurors on the definite -- >> true. >> one of them was garrett, who as was appointed out, they said if we have to have one, let it be garrett.
then garrett shows up on the definite no list. >> 0ññcorrect. >> were we told that the only three people who did the investigation on batson were the two prosecutors on the case and mr. lundy? so if mr. lundy said i didn't make that list, it has to be one of the two prosecutors. >> it has to be one of the two prosecutors. one was not there on the day it was struck, the jury was struck, only mr. lanier was. if that's not mr. lanier's thought process of this definite no list, i don't see that gets you to clear error in the striking of mr. hood or miss garrett. >> what do you do, this seems an out and out false statement. the reason it's given, one of the reasons for garrett being struck was her cousin arrested. then the prosecutor doesn't know that at the time of the voir
dire. he doesn't know until after voir dire that the cousin was arrested. how could it possibly be a reason at the time of the voir dire? >> i don't think the record bears that out. the highlighted notes that petitioner wants to say these were used during voir dire, these were used during strikes, page 56, angela written outside before miss garrett's name. mr. lundy's onnotes he said he wrote down things prior to voir dire what he knew about individual jurors, he wrote down as to marilyn garrett -- angela garrett is a cousin. >> i'm sorry. >> didn't the habeas court accept he didn't know at the time of trial, he just knew lundy didn't want her. >> the habeas court actually
credited the fact mr. lundy advised -- >> that was his explanation for why the prosecutor didn't know about the prior arrest, right? >> no, i think the state habeas court credited that was one of the facts of the strike. >> still in deep water. >> excuse me? >> that mr. lundy didn't want her. he never credited or never said that he knew about the arrest. >> actually mr. lanier testified twice he was aware at the time of jury selection that he knew about. >> mr. lundy did but the prosecutor didn't. >> no. in the motion for new trial, mr. lanier, the prosecutor testified and said i knew during voir dire, mr. lundy told me that, joined appendix 105 and 112. >> didn't he also testify this is on 14 in the reply brief, it has come to our attention since
the trial of this case that angela garrett was arrested? >> it says on that page -- on that part of the transcript, which i cannot explain to you in contrast to in the notes it is noted she is the cousin prior to the jury selection unless that means, and i've read it several times, since that time she's been dismissed from her job. again, it's unclear. >> what about giving a reason for dismissing her that she was close in age to the defendant. >> she was in her 30s, he was 18 or 19. >> when he unusually strikes, mr. lanier initially explains his strikes, he does state her age. he's not trying to say she's 23. he states her age as 34. throughout the overall theme was we don't want younger jurors. we're looking at older jurors closer to the age of the victim, 79.
i think though not the most articulate framing of it, it's more of a generational she was younger. and that, the age i don't think was a make or break factor. working at head start with underprivileged children a make or break factor. a similar white juror also struck for that same purpose. >> wouldn't you agree in a lot of these batson cases you'll have reported justifications, which could support a valid preemptory strike. the question for a court, well, did they support this valid preemptory strike. nerd, what was the prosecutor thinking? batson ruled about purposeful discrimination, intent. it doesn't really matter there might have been a bunch of valid reasons out there, if it was clear the prosecutor was thinking about race. you agree with that, right?
>> i think if the intent was to strike based on race. >> if his intent was to strike on race, it doesn't matter he could have had a different intent that would supported a g peremptory strike. so, the question of whether someone or other might have been properly struck by a prosecutor isn't really the question. the question is on the total amount of evidence before us, including all of these prosecutors' notes, what was going on, with respect to each of these peremptory strikes. and then you have to deal with not just, oh, it could have been this, or it could have been that, but you have to deal with all of this information that ma it really was, was, they wanted to get the black people off the jury. >> i don't think the notes show it. what the notes showed with mr. hood and miss garrett. that they're contemporaneous notes taken at the time of trial with each of these jurors are the reasons they struck them.
there's no derogatory comments within those notes. >> where there are other reasons that are plausible but could be phony, surely, it's the judge that hears the testimony who is best able to judge whether assertive reasons or phony reasons or not. isn't that right? >> yes, sir. >> it's sort of hard for us to do it on a cold -- >> it's harder, harder. but not impossible. >> just, of course, raising a very good point in the run of cases. but not in the case where all of the intent of discrimination was not before the judge at the time. >> again, i don't think there's -- i don't think there's clear error here on these notes of racial discrimination. their strikes are sound. as to mr. hood, you would not want mr. hood, on the jury, regardless of his race. based on his reasons. for what reason, he gives a laundry list, like i said, may well have been that we were in 1997, and you're just putting out everything that you can,
because you're not sure what they're supposed to be. >> why weren't the notes turned over earlier? >> the notes were not turned over earlier. although it was brought up in a motion for new trial after the trial in 1997. and the prosecutor, mr. lanier says, i will give my notes to look at for the court if defense counsel will do the same. defense counsel chose not to do so. that issue was raised on the supreme court direct court of appeal, ruled that work product didn't have to be turned over. when we got to habeas procedures they found that they were under law. and they were rightly turned over. i don't think there was any argument at that point. >> and later, we can ask miss garrett about the issues that troubled -- for example, her cousin's arrest. there's an assumption that she has a relationship with this cousin. i have cousins who i know have
been arrested, but i have no idea where they're in jail. i don't know them. but he didn't ask any questions. does that show pretext? i'm not going to inquire because she might get off the hook on that? >> well, i think a number of times, and i know this supports precedent on not asking questions. if particularly in voir dire of people. but as to a number of issues, i think when you're in voir dire, and you're asking questions, you don't necessarily care what the answer is. because with regard to mr. hood, if he had said, yes, i have a son that's been arrested, it's not going to bother me a bit that you prosecuted my son. >> so, assuming that in my mind is decidedly different than murdering people, or attacking them the way this case was -- this case was about. i can imagine -- why can't you
imagine a father saying stealing hub cubs he should have been punished. >> and he may well have. >> it's a risk that supports -- >> it's a risk caa prosecutor c take. in my mind, he's going to go back and think, oh, i don't know. >> i want to ask you a different question before your time is up. i'd like to you respond to the question that justice alito initially asked. and that is, is there an independent state round here? >> okay. >> you're familiar with the record. i read on page 192 of your record. the decision, the first paragraph supports the view, if you would like to hold, i think, that this is based upon race jud
ju judecata. the reason i reach that delusion because the notes submitted by petitioner fail to demonstrate purposeful discrimination, on race is the basis. okay. that sounds like baxson to me. then he goes on to say, in addition, there's no good reason give now or then. then he concludes, accordingly, the court finds the renewed batson claim is without merritt. so if i read that paragraph, i would think that the reason the judge found in your favor he considered the batson claim in your favor. he didn't have to. that's the ground he did go on. but at first, why isn't it ambiguous? and if it is ambiguous, then why don't we take, you know, i think it's long -- in all of those cases, if it's ambiguous, then aren't we required to assume that the judge wins on the
federal ground? okay. now, that's both alito's question. it's what i think is the hardest point for you to overcome. and i want to hear your response. >> i agree it's unclear. >> that's the end of it, isn't it. >> that is the end of it. i think it's unclear. what other issue -- >> what do you think is the res judicata law -- >> i think res judicataa -- >> then it goes out the window. >> in the court finds they can review the evidence anew, then i think you are beyond that bar. >> i don't understand what you just said. say it again. >> okay. if you have -- if the issue has been decided on direct appeal,
and you cannot go back to it, obviously can't overturn the state's highest court. but when you have new evidence such as in this case, and it is strong evidence that the court feels like it has to go -- it has to look at that evidence. in this case, it did, then i think you'll be under the res judicata bar. >> i think that's how the decision is framed. decision talks about claims that are not reviewable under res ju judicata. it lists many claims. this is in a separate issue, the batson issue, that there are merit determinations being made about it. the court is very clear. first sentence, last sentence, the court finds that the prosecution did not violate batson versus kentucky. last sentence on the merits, the
person -- the petitioner loses. >> as much as i'd like it to be an adequate state law ground i'm not sure i make -- >> what do you make of the statement, this court notes the following claims are not reviewable based on the doctrine of res judicata. the first one it lists is the batson claim, does that suggest that's what the court did, it's barred by res adjudicata i'd like counsel to -- >> if anything, it's an alternate ruling. >> supreme court has said, georgia law allows the claim to be revisited when new facts
develop because it's based on facts that did not actively exist at the time of the appeal. it's essentially a different claim. that's what the jury has. new facts, essentially a different claim. >> yes, sir. making it right or wrong is a matter of conclusion law. but that is the law. >> that is the law. >> mr. bright, you have two minutes remaining. >> thank you. very quickly, let me first say, with regard to what justice alito quoted, that has just come to our attention, since the trial of the case that miss garrett's cousin was arrested. that was on may 1st. that was after the death verdict will be returned in this case. secondly, if you look at the joint appendix on page 56 and 57, where they give the reasons for striking miss garrett, there's no mention of her cousin whatsoever in there. that's the time when she should have been mentioned after the strikes were made. and yet there's no mention of
that at all. >> and then six months later, there's a motion for new trial, and now the prosecution is adding new reasons that it didn't give at the batson hearing. it's saying she was a social worker. she wasn't a social worker. it's saying her cousin was arrested. they didn't know that at the time they instructed the jury. they're saying she's low income. but you can't add reasons on toer. p perpetuity. a person has to stand or fall within the reasons. with regard to questions, i just want to make one quick point on that because there's not much time, but with regard to miss garrett and martha duncan who were both teachers' aides who were in schools literally in the same neighborhoods. miss duncan had kindergarten students, miss garrett was head start. no question, what kind of
children did you have, miss duncan? to me, within the neighborhood, miss garrett lives 18 or 20 miles away. miss duncan -- her school is 250 yards away. and she lived a half mile within the school. both of them answered answer aed they weren't familiar with the area where the victim lived. then, some more questions, after those answers, would have provided a difference. but instead, miss garrett is treated as a liar. and miss duncan is actually accepted and actually served as a juror in this case. there are other examples with mr. hood, if you asked, what about your child arrested. put on probation. $180 of -- $180 restitution. and he went off to -- went off to the navy, served his country honorably, got an honorable discharge and came back. >> thank you, counsel, case is submitted.
president obama laid a wreath at the tomb of the unknowns and led remarks at the annual arlington national cemetery observance today to honor and thank all who have served in the armed forces. the president noted problems that some veterans have had in accessing health care through the department of veterans affairs. and says improvements are occurring but is not satisfied. you can see the entire event tonight at 8:00 eastern on c-span. there are 102 members of congress who are military veterans, seven fewer than the last congress. the house has 82 veterans. 62 of whom are republicans, and 20 democrats including three female members. the senate has 20 members. 14 republicans and 6 democrats. no served in world war ii. three in the korean war.
house democrats john conyers of michigan and charlie rangel of new york. as well as texas republican sam johnson. johnson and rangel will retire from congress next year. two things are very different today. first of all, we have a justice system that does not -- these trials were not held according to what we would consider to be modern law. here say is perfectly acceptable. innocent until proven guilty had not yet -- it was not yet in place. there were no lawyers, by the way, i should say, at the time. the courtroom is an extremely unruly place. so that's one piece of evidence. also, we don't happen to believe in witchcraft. or prosecute witchcraft today. >> sunday on q & a, author stacy schiff talks about her book "the witches." >> the interesting part about the accusations, especially
given the way we think of salem, is that wealthy merchants were accused as witches. sea captains were accused as witches. homeless 5-year-old girls were accused to be witches. this is not an incident where all the victims are female. five male victims, including a minister here. and we hang them. in addition to the myth, there's so much encrusted myth that i felt was important to dispel. >> sunday night on 8:00 eastern and pacific. the brooks institute recently hosted a panel discussion on isis foreign recruitment and international violence to encounter extremism. experts talked about the different cve approaches and the strengths, weaknesses and lessons of those various
lessons. this is an hour and a half. all right, everyone. welcome. my name is will mcaccountant. on the organization of the islamic world here at brookings. today, we're going to talk about countering violent extremism. brookings is doing this with the program on the partnership with extremism at george washington university. joining us today is lorenzo bodino to my right who directs the program at george washington university. to his right is rashad ali who is a senior fellow. to my left is angela king, deputy director. and to her left is daniel koehler, who is a fellow on the
program of extremism at g.w. and founder and director of the german institute of radicalization, and deradicalization studies. okay. so the countering violent extremism discussion has been going on for several year news. if the phrase sounds vague to you, it's also very vague inside the u.s. government and foreign government. no one is quite sure what this thing means. . i remember some i was working at state department, i asked another agency to give me a list of everything that had been justified to the congress. as counterviolealcountering vio across all agencies. everything from building forward operating bases in afghanistan to english programs for a young mother. essentially, it became a way for the government to protect and their program.
in an effort to become much more focused we are here today to talk about one slice of this that's often neglected, that i think honestly is the most valuable. in the effort to spot or counter recruitment for terrorist organizations. and that is early intervention. and so, i wants to begin our program today by asking daniel koehler to tell us what early intervention programs are. how they differ from other programs, say, radicalization of foreign fighters, what have you, then we'll get to a more wide ranging instruction. daniel. >> thank you for the introduction. early intervention in countering violence extremism is an unusual term. usually when we look at other
states in their countering violence policy, we see there are three tools that they usually use. the third one is preparation. anything that going for prevention, for radical groups can be seen as a tool. the second level is repression. containing an actual exist iing complex. anything that is related to core group and sting operations. then we see the third level which is called intervention. in most western european countries. so early intervention would mean that we actually have someone who is in the process, in the early process, of the violent -- potentially violent radicalization process. but has some connection to it. has some connection to a radical group. some connection to radical ideology. it's on a path that's considered
dangerous. so it is part of those tools where deradicalization programs, programs part of it. early intervention programs are tools that usually focus on the social effect of the environment of those persons who are about to become a violent radical. we know there's a phenomenon call called leakage. that many persons leak some kind of sign directly or indirectly to family, colleagues, employer, anyone around them. and these persons are usually the first ones to notice a change. to notice a potential threat and danger. and in most cases, the so-called gate keepers, the so-called gate keepers, do not reach out to the authorities, do not reach out to the police or anyone else because they feel a strong sense of loyalty, obligation to their friends and family members.
they fear what might happen to them. they fear that maybe they're making that work. maybe they're responsible for their son or daughter being put into jail for 20 years. so we need to figure out a way to give these family, friends, associates, gate keepers, tools, third party mentors that can turn to for assessment, advice, counseling but also, between authorities, between social services, health services to give them an understanding. an assessment of why this is happening in the family or in the environment. and these early intervention tools are those who focus on friend, family, colleagues, to give them a tool as early as possible to reach out for help. later tools will be deradicalization programs for returning for fighters for all those in prison, in prison
inmates, and these focus on individual levels. and early intervention levels to me or the effect of social tools. there are many out there. specialized trainings for teachers. for police officers. for community leaders. >> so, daniel, to my mind, these kind of programs make a lot of sense. because it's a small population that you're working with. they have already demonstrated they're interested in radical ideas, but generally, they have not committed any violent crimes yet. so you're working very, very close to the problem. and the game is to try and make sure that these folks don't go over the line. and commit a criminal act, particularly a violent criminal act. but lorenzo, these programs have been -- it's -- they haven't caught on in many places. particularly here in the united states. when we talk about countersing
violent extremism, it runs the gamut, as i said. but this is not really part of it. working in this space is usually from my experience often not too -- people who are entertaining radicalizing are thought to be a security risk better to let law enforcement than having the early intervention. give us the theme. how does that compare? >> it's very different. first of all, let me thank you first for having us here. it's very good to have this conversation on the way we partner together on this and try to mainstream the debate that comes to the u.s., and experience that comes to europe and bringing people from the european experience. because some europe 15 countries have seen 10 or 15 years of this kind of intervention. everybody makes whatever they want out of it. all of the focus in the u.s. has
been focused on the large idea, the message for americans. the engagement to communities which is also extremely important. and the europeans have done that kind of work, the core intergration work. the lack of intergration, whether it's linked to radicalization. it's very large for the europeans spend a lot of resources on it are very difficult to assess. very difficult to prove negativity. that what you're doing to stop people from radicalizing. i think what we have seen the last few years, the europeans have focused more on the one-on-one interventions for some of the reasons. in the u.s., as you correctly pointed out, that has not been the case. we've seen a lot of messages, with is more with the foreign partners, or engagement of communities which is basically what cve has been on the
domestic front. >> you can explain what we mean by engagement of community, what that ends up looking like? >> yes, this is basically dhs, the fbi cells have been doing for a long time, which is building trust-based dialogues and relationships within communities. we have to specify the days -- probably one of the points of contention. and one of the most debated points is that cve is unfortunately limited for the most part to the muslim community. it's limited to targeting what is traditionally known as al qaeda-inspired radicalization. and isis-inspired radicalization. of course, there's debate whether or not it's correct and focusing on forms of extremism. it should be 99% of resources are devoted really just inspired. i think in the u.s., we're limited basically -- we had been
limited mostly to engagement. we're starting to see signs that they're working on one-on-one intervention. the very tailored interventions. which if successful, are quite cost effective. and it's much easier to prove the effectiveness, not very easy, but easier, than some of the larger programs. and the european experience tells us that. so we have very different models that we'll talk about largely, depending on what the degree of government, and a variety of other factors in the u.s., we're starting now to talk about utilizing it. i think traditionally, we have seen a law enforcement approach. the traditional use of sound, very harsh. techniques and the fbi is in charge of the investigation. so, with the european approach, you simplify things as individuals that are clearly
radicalized and very criminal states. the european approach is to try to prove that people can do a preradicalization stage. the fbi approaches in some cases, to try to push the individual, a kind of sting operation. and the right condition, progress report, or controlled setting, you have the fbi controlling everything and eventually arrest them. two different factors. but there's a growing realization in the faith that that kind of tactic cannot be used all the time. it's very effective, particularly from a prosecution point of view. a very high success rate in court. but it cannot always be improved. we're seeing more and more minors attracted to isis ideology. and it's difficult to use for a variety of legal and ethical reasons to use sting operations when it comes to minors. the numbers are also very high. we hear from the fbi a couple weeks talk about 900
investigations, open nationwide. and individuals linked to syria and mostly to isis. that's a very big number unprecedented from the past. and it's difficult to tackle all of these cases with traditional law enforcement tools. i think that's something that the department of justice fully understands and is trying to explore some of the tools. just to give you an idea, just this morning, we have meetings with the department of justice, with a particular working group that is trying to find a prosecution. because they understand that they cannot arrest their way out of this problem. so the idea is, and instrumental in this seamus was instrumental in this. obviously, not all of the tactics that can be used in europe can be used to be transported and adopted here in the u.s.
there are a lot of ideas that with the proper caveat, with the proper adjustments could be used. >> daniel, i want to come back to you just to get a sense of what's going on here. because i know, in terms of early intervention programs, it's uneven across the continent. some countries embracing this. some not. which÷>v country would you holdt as the exemplar in holding that, and why? >> that's impossible to answer. you can't have a country like germany, for example, where they have almost 20 years of experience in work against extreme nazi groups, and they have -- at least the last count was they have 12 to 15 specialized deradicalization programs in the area of countering violent extremism.
you can't have a country like denmark where you have a very state, focused, police-run organization, where everything runs through the police. you can't have a country like sweden where they have one or two organizations doing that work in dopgs wicooperation wit government. in countries like the uk where they have a strong complement of attendance -- >> depends on the political culture? >> absolutely. depends on whether or not ideology should power the program, and it's not that popular in denmark. it's not that popular in the uk. very strong in germany, for example. i would say deradicalization or intervention can be ranked or classified according to three criteria. first of all, ideology. technically spoken, do we have a disengagement program, with ideology, getting someone out to
do or to stop committing criminal acts. versus deradicalization, really trying to get the dismantling of radicalization. changing the world. the second criteria is, is it stable or unstable? is it run or organized by a government body like police, social services? or is it nongovernment based. and thirdly, is it active or passive? is it actively reaching out in prison groups or in germany, some have a list where the neo-nazis live. they just go there and knock on the door and ask do they want to lead the movement. or are they passive conflicts, those wanting to get out? in europe, we've seen a very wide and broad array of different programs and organizations. i would argue the most promising the public/private partnerships, because usually, there are aspects that are being done more
effective to the government. and on the other way around, more effectively done to other organizations. we have seen several attempts in germany, sweden or the uk, where the government body started to call a hot line or a program, incorporati incorporating idealization, in programs. i would say germany and denmark are definitely on the forefront of that. >> thank you very much. lorenzo, i -- angela, i want to give people a look at how this program works. i'd like for you to talk about how an early intervention works with somebody who hasn't yet broken the law? and i as wonder if you could say a few thoughts about the role of
ideology. not necessarily in terms of inspiring somebody, but when you're doing these kinds of interventions, do you really need to deal with the ideology, or do you focus on other things first? >> well, it's been a little slow going. we don't have those programs right now. but with what we've done, we're out there doing interventions, doing countermessaging, doing cve. and for us, personally, we have not found that it's successful to immediately go in and aggressively attack ideology. what we do is share very real, raw human experience. and connect on a different level. i think it's important to mention that we really have to be aware of what propels people into these movements. what's broken? you know, what is the underlying
issue that made them feel they were missing out on something. that they needed to belong. a variety of factors that really push people into it. so when we go in and we talk to an individual, we have an understanding of what drove them there. that kind of gives us the foundation and the base that we work from. we draw on our experience. it was completely learned by former violent extremists. so, instead of justifying the individual, instead of attacking the ideology head on, we ask them personal questions. you know, what has affected them in their lives. what is important to them. what are they interested in? what are their goals? and from there, we fall back on our own personal experience.
and share that in a way that shows them that they are not alone. that they're not the only ones. that it is absolutely possible to disengage, to reradicalize. they're not concerned with deradicalize necessarily. the referrals we get come from a variety of places, whether a parent with a child, maybe getting involved. some government referrals. human rights, and then we have people who contact us on their own and say, listen, i am thinking about getting involved in this. i have a certain belief about a certain thing. or i have this experience that's really pushing me in this direction. but i don't know -- i'm not sure. can you talk to me about why i shouldn't? or what are the consequences? you know, things like that. so it's been in that way that we've been able to go out and
start having some successful intervention. and these are literally some of the people who, by their own account, are on the verge of committing acts of violence, who then are prevented from doing so. >> are you doing any of these interventions purely online? or is there always a real world component? >> both. there have been cases where we have traveled and face-to-face sit-down intervention. we get contacted a lot by a social media -- by our websites. and we definitely don't have the funds to travel the country, you know, to do a personal face-to-face every time. but part of what we offer is one-on-one mentoring. whether it's phone calls, text messages, social media. and we -- you know, get these individuals involved. for instance, we have a group
that consists of almost 30 former violent extremists. and these individuals, some of them have been disengaged and deradicalized for decades. some have just come out in days or weeks. we are using that as a means of support. as a means of talking about the issues. some of those issues that propelled them in in the first place. it provides kind of the support that daniel talked about. whether it's a family, or community, you know that kind of support, but is not there to say you're horrible because you believe these things. s, let me share my experience and how i got beyond that. and finding that common ground. >> have you ever encountered anyone who was radicalized purely by what they have read? they're normal in every way, high-functioning, but just
consumed a lot of hate literature? or is there always something else underlying it? >> every case is different. some of the information that we're finding now is that not every person suffered trauma or abuse or has mental health issues or anything like that. some people came from perfectly stable loving homes. and for some reason, felt the need to belong in that way. and it's different. you know, some individuals, a small percentage, were actually raised in the extremist environment. that were taught violence. you know, there are individuals who were raised to in a prejudiced household. they were taught racism literally as children. some will grow up and rebound against that. and others will grow up and look for a place, saying this is it, this is what i know.
this is what i was taught. and there are individuals who will have maybe one experience from that point on, pun intended, it literally colors their view of the world from that point on. and then there are some who will just read, you know, history. you know, say something has happened unfairly in history. one group is being represented more than the other. so, it's -- we can't classify it all across the board. it really literally is case by case. >> thank you. so, rashad, i want you to help give us the uk perspective on this. but i also want you to talk about the role of ideology. again, i think for many people, when you're thinking about early interventions, the first thing that would come to mind is you need to take on immediately the ideas that political radicals would espouse. have you found that to be the case in your experience, when
year talking about radicals? or as angela said, you look at it on deeper, societal issues that have drawn into this viewpoint. >> i'll start with the latter question. i think with the experience, what we have is i look at trends just to make it easier. as you mentioned, there are those that have a political perspective, a political landscape, they buy into a narrative. and they look at the world as very similar to kind of old school narrative. you have the evil west which is hegamonic. and america and its allies, just suppressing the natural -- you know, the natural aspirations of most people.
and in this instance, the conflict used to be communism in the west and now it's islam. and they buy this and they look at everything in the world through that. with palestinian, through the political lens, if you like. they look at any conflict in the war against iraq, because of various economic, societal reasons. actually it's a manifestation in the middle east. so, all of everything. then you got others who actually are not politicized as such but they have various political grievances. in the sense they may have had a question that they face in their life. questioning that sense of belonging to society, they had may have had grievances related to racism and past experiences
or disenfranchisement. and then the narrative appeals to them because of those things. they're approaching it because actually they already feel they need something else. you then have others who have neither necessarily have the specific problematic set of grievances, or a embracing a form of religion which automatically separates them from everybody else. so, therefore, they're separated from other muslim. they're seen as not being true muslim or not. they are analogous to what we see. and from that, and then the way they look at the world is nothing it is really truly represented in the purest way that should be enforced in society. that actually the purest that comes from a very direct
engagement of scripture, tells them exactly what is right. what is wrong. and therefore, they have the theological look at it. and then you have, i guess the other trend of people who actually do suffer various different illnesses. they suffer various other issues. and therefore, those things have pushed them towards embracing a black and white perspective, and that is appealing in that context. obviously, i'm describing this for a general but actually most people will be a mix of those things. therefore, when tackling and engaging an individual, you should be able to ascertain what are the push/pull factor. is it somebody embracing ideology, it's an ideology which is aimed at -- when reading scripture, i don't know if you
have that when reading scripture -- if you're reading scripture in that way, it should be enforced. and the government is going to enforce that as scripture. and then actually, i guess the only way you can engage with that is to break down the methodology in the way they approach the scripture. on the other hand, if someone has a particular world view that is very, very they're low, then the only thing you can do is make them realize the complexities in the way we were made up. and this actually works in the uk in politics as well. i guess literally at the lens. because actually, they are then figures who went in. that is an indication in the uk. not the most popular politician
in the uk. but at the end of the day, once they start to see it as a complexity to their world, then you can have more complexity to the way you see people and society. they do need that. and i guess that was -- the uk approach is something that is a multiprong approach. so the former measures we have, the contest policy in the uk which is the broad countdown and measure. which has -- what we call the four ps. protect, outside of the u.s. embassy in london. there's propel, which is when those do question, how do they
respond. and pursue, which is investigations, intelligence gathering. finding arresting people and prosecuting them. and prevent. and prevent then is this what we we've spoken about, individual kind of engaging the people who are either vulnerable toward radicalization, or who have become radicalized. therefore, that works in space, and also primarily which is people have been -- whether it's by police, the public in general, as an example in the cases we have, as an example in the uk, where there's communities, and we've had individuals come into the mosque also like they had in syria. they will contact the authorities and say.
and the authorities will send someone who is appropriate to engage with that individual to make an analysis, a diagnosis, and then put a plan together. >> but there's been some criticism on the program, right? >> huge, huge. i think this is very important to look at because actually, i think there are some very good questions that you need to ask. the first is what are we talking about -- so there are natural concerns about how do we determine that. what types of process, how do we know this is the case, ambassador of science, et cetera. which is a reasonable kind of consent to have. the second is engaging in radicalization, especially in somebody who has a theological foundation. actually, what you're going to do, there are a number of
different approaches, in some ways, you're going to engage the religious proclivities. in the state, the church, but in reality, our policies are founded on sector, liberal values and therefore, to what extent engaging with individuals can persuade them. and then that comes down to the logic behind that intervention. that actually that individual is starting to experiment doing the engagement. or if you have an individual who is truent -- a young kid is truent from school. and we think actually we've seen them around, then we have an engagement, that intervention. and the same thing applies, actually, we should have an early intervention. to see a beheading or talk about how evil effort is.
and whatever it may be, that actually that may provide some form of intervention. and the other side of that, i think, is more the problematic part. so as i mentioned, there's a difference we see which is the investigative side. prevent. the one side is prevent. it actually has nothing to do with the investigation side. nothing to do with the surveillance side. prevent, which is brought on to this idea of actually the state, and therefore, what we should do is monitor everything, which is good. but then it becomes actually the state must be using this -- it must be spying. it must be targeting the whole community. and therefore, all of these things come into this. now, some of these things can be
easily dismissed. 25%, roughly, of individual referrals in the uk actually are referrals that have nothing do-to-do with this. actually have to do with right wing extremists, et cetera. the overriding methodology, there isn't specific engagement. so it isn't -- although it's described as tied to communities or government, and yet some of the people have -- it's not surprising that an organization, which i won't mention, which has previously supported and the american terrorist for yemen is very critical of the program.
with the al qaeda resistance to americans. therefore, got to understand there are some which buy into these. so, it is -- it's complicated, but actually, there's good and bad reasons for it. on the whole, i think a lot of it based on propaganda. >> daniel, i want to turn back to you. the counter terrorism part of my brain hears about early interventions and saying, yeah, that makes a lot of sense. you're focused very narrowly on people who may become upon demonstrated. they really like the propaganda of a violent group. that's the one you really want to focus on. but then, the american part of my brain speaks up and says, well, wait a minute, i mean, these folks are entitled to free
speech, like anyone else. this isn't exactly criminalized in the speech. but it seems to get right up on the line, if not over. i'm trying to figure out how to strike this balance. and i gather from your comments that a lot of it has to do with the unique political culture in each country. and if we were in germany, they would have a different answer, versus in the united states. but how do we -- how do we find that? how do we keep this focus on a very narrow problem, without running afoul of the proud tradition of free speech that we all value in a legal society? >> i think that is the core question of how you make deradicalization and programs work. as you mentioned deradicalization has the build in it, work usually is supposed
to work in a society based on freedom of speech, freedom of opinion and religion. but we know on the other side, that starting when something criminal happens, a criminal act, on the prison system, is much more effective, is much more expensive. and we know that there is a process leading to that criminal act, leading to violence that is dangerous, inherently dangerous to democratic society. because it embraces an ideology. it spreads an ideology that is actively attacking and trying to destroy the democratic part of society. so, neo-nazis in germany, for example, have always tried to hide under that freedom of speech. freedom of political opinion. and even though the german version of freedom of speech, it's much more strict than in the u.s., obviously, for traditional reasons. so, i would say that this problem, figure out this problem, when an inherently dangerous process starts, in
balancing it, against what is morally acceptable in terms of the program, it's essentially a question of how do you structure that program? for example, i get the fact that i'm very critical about government-run active programs who try to change a political religious world view, for example, in prison. and there are programs that are more or less coercive in prison that says you're free to participate. if you don't, don't expect to be -- don't expect to get any special, beneficial treatment, anything like that. so, then, on the other hand, there are nongovernmental programs that can have close association they should have for the government but they have their own political fluff. they say we are part of the society. we are part of the society at large. and we are passive. so that comes to pass.
and we say, we have a home version of how democracy goes. we have a home version of what pleuralism is, what democracy is, if you come for help, this is what we expect. in these conditions, deradicalization can be -- people are free to go to ngos, they are free to choose. they can go to another ngo. a couple months ago, i worked with the new dutch program, and they are currently building a new deradicalization program. and they have set out a very interesting framework -- they have very specifically set out the framework where they work, and how they work, in close cooperation with ngos. especially trained experts, and they're very strong. and they're realizing people end up in prison before doing
something more sharply before doing something. we need to figure out, specially in northern america, what actually is the point where we figure out the point it's not acceptable. this kind of ideology, this sort of propaganda, is really trying to destroy that society that we're actually living in that protects you. i think that deradicalization programs where they are public partnerships, they can benefit from both sides of it. they can say, you are protected in a certain area. but what i do now is directly aiming at abolishing these central principles. these constitutionalized. if this system that you're propagating, would be realized, 100%, right now, in the u.s., would any person who is not part of your group, racial group or religious group, have different, or same rights of how we can
treat them from today, tomorrow, try to force them to the country, would you put them in camps? would you grant them much lesser rights of speech? would they have to pay an extra tax? would they get killed right away? so these indicators are very essential in figuring out where you're going. >> thank you, daniel. you know, it's -- i can feel the response in the audience from americans. that this is a very european perspective. >> it is. >> yeah. and in this country, we let an awful lot of stuff fly. i wonder again, rashad, how does the united states, which is barely -- barely put its toe in the water in intervention, how does it find that way? >> i think actually it's a couple things. in the uk, it's a balanced
process. so there can not be any coercive approach towards individuals. either they choose to engage or they don't. if they choose to engage then it's a process with the whole deradicalization. in that sense, it is something that the state supports lends its support. >> if they're radical, why do they engage? >> this is the question, why do radicals engage? i don't know if i should make any comments. the thing is why do people take steps forward because they fundamentally believe they have something to offer. and maybe they believe they have something authentic to offer to give back to humanity or society. or that it's either benevolent
or an improvement. they want to engage for the radical world that is generally better for the u.s., for their community, or for the country. so, actually, that's one reason, they want to present it. secondly, with a lotp2x of individuals, obviously, they want what they're doing known. human beings aren't black and white, there are generally a set of complexities. the reason you have leakage is because people also want an intervention. it's the same reason why people who talk about suicide. because they are feeling -- and when they do, we know we should take it seriously. but actually, they're reaching out as well. so, there's those factors. in almost all cases, you have a high level of people. i do think there are early
interventions and the problem really is it seems like we're controlling the politicaretty an of people. in that sense, i think there's a very reasonable part in the uk. and why it's impossible in the u.s. because they're talking about extremism being illegal. or liberal. or banning organizations that promote or undermine democracy or human rights. there are lots of people that go from the right and left wing, especially in the uk who are fighting against that because it is quite a horrific conservative requested idea. on the other side of that, i
think there's a moral imperative, a civil society, as a whole, to stand up and do something about this. and so, what really a partnersh between government that you mentioned this earlier and between civil society so they actually -- we as civil society can engage in the preventive process in countering these arguments and governments support and facilitate that. if there's a sociopolitical economic interest in doing so and the argument put out on an economic basis alone we should do something. on a social moral perspective, we can't sit back and do nothing. we've had a huge number of migrants out of syria and iraq. between 1 million and 2 million people at the european borders. people are talking about are we
taking extremists into europe and all sorts of debates? we've exported a brigade of 5,000 extremists to go and join isis. on one hand we have a moral responsibility to not send terrorists abroad, which is what we've been doing. and hence my point earlier that actually we have contained, incubated these things. >> angela, i'm trying to find this line or this balance between public and private. you're deputy director of a private ngo. if you can, talk about in abstract if you like, what's the right relationship between an ngo that does early interventions and the government?
or should there not be one at all? >> are you trying to get me in trouble? >> not at all. >> we can all play a part in interventions and disengagements but we have to define the roles and what's needed and who is best suited for each different aspect. so, for instance, the easiest example i can give is when i was an adolescent and becoming radicalized, i was headed toward violence. i'm always asked what would have stopped you? what could have been done? what kind of person could have approached you? what would you have heard that would have changed your mind. i've thought about this for years, and i know the kind of teenager i was, it would have taken someone with real life experience that actually
understood what i felt, what i was going through, the obstacles that i faced, the issues that i dealt with. so i think when we go out and look at these relationships, there has to be support. there have to be people that can go out and act. there have to be all of these different aspects of it. this may be unpopular, and i apologize if it is. i do not believe that relationship between ngos like mine and say law enforcement should in any way be intelligence. it should not be telling on people, giving up information. if we're to truly go in there and do this work, we have to create communities of trust. another example i can give, when we get feedback, for instance we recently produced four psa
messages. we targeted individuals currently involved in the violent far right in the u.s. we expected a negative response but in essence what we're doing out there is saying, number one, we have been there. we've had the experience. we know what it's like. so behind closed doors when you're feeling like this really isn't what you thought it was going to be, you know, there are things that you just didn't understand, those feelings of guilt or shame or doubt are creeping in, we get a response from some individuals that is so intense, so filled with rage, and we'll hear things like you're the worst traitors of all because you knew the truth and you walked away. those are the kind of responses that are telling us we're striking nerves. we're doing a good job because those individuals that are voicing that, they are probably
the ones that are having those doubts. they're the ones entertaining them and they feel ashamed. they think they're going to get caught. they don't know what to do. so when we look at things like that and start to build these relationships between government, between ngos and people on the ground, we need to keep this in mind. i'm going to be a lot more successful going out and doing some intervention work, some cve, because i'm a credible voice. because i've been there. and especially with the far right in the u.s., we're dealing with people that cling to conspiracy theories, paranoia, they already don't trust the government or law enforcement. so we need to be very clear about those lines in the relationship there. so there's always room for collaboration. we all have a part to play. we just need to define those roles very carefully. >> thank you. daniel, you had a point you want to make. >> i want to comment on this
problematic or highly debated question of the relationship between an intervention program, the clients and authorities, security agencies. i know that there are programs run by intelligence agencies who just use that for hard intelligence gathering, names, addresses, group structures, anything like that, which actually hurts the idea of intervention but also hurts the families. it puts the family at risk or the social environment at risk and it's accepting risk to burn them by simply getting a couple of names. but i'm very positive about counterterrorism acquisition programs. many people think, i suspect in the u.s., that it is seen as a weird, soft approach to something that should be handled by the pros, by agents, fbi, intelligence. so if you look at how do
deradicalization programs operate, many include former military, they know what they're doing. they do risk assessment in an area that overlaps. you can identify concrete aspects like reduce manpower of a terrorist group. you pull out human skills and knowledge out of that group. the group needs to refill that gap. needs to invest resources in recruitment and train other people within the hierarchy and it's proven that this organizational cost that you put onto these groups by getting people out can even cause a complete collapse of a terrorist group or radical cell. plus, what i would call soft intelligence gathering. i'm not talking about individual names and addresses but for example you locate where a new recruiter is active or a new group is active or a new topic of recruitment is active or a new style of jihadism has
emerged. obviously that's something that you can pass onto the authorities. you gain a lot, especially knowledge about radicalization process, about connections that you can use in training and skill building for probation staff and police and for teachers that is very, very influential and very important, and you make the work of law enforcement much easier and much more effective by providing that additional angle. working with families and people who want to get out themselves closes the gap of that network of counterterrorism network and actually it helps to remove a blindfold of that area, that social area where radicalization occurs and you can actually help the police to become much more effective. >> thank you. i want to open it up for questions. before i do, i want to ask lorenzo a final one. i'm in a think tank. you're in a think tank.
we have to think in our tanks about what kind of policies come out of this stuff. you and i have been thinking a lot about why it is we don't have intervention programs in the united states for political radicalism. even angela's program, you were telling me, is unique in this country. i know working on jihadism there's the word organization in d.c. and some others that work on it, but it's still in an early stage and there hasn't been a lot of support from the u.s. government for these kind of efforts. i got my own ideas as to why. i'm curious why you think there hasn't been a groundswell in the government for these kind of programs? >> that's a very good question. i think there's a combination of overlapping reasons. there's not really even a debate into building some kind of intervention when it comes to the right wing extremism.
the debate is just on jihadist threat. something that again we can discuss. we have seen a lot of talk but in reality very little resources, very little action. i think there's a variety of reasons. one is the fact that at the end of the day the threat has not been as big -- the domestic side at least -- as in european countries. we have never seen the sense of urgency that exists in european countries. if at the end of the day you look at which european countries are most active, those are touched by some sort of an attack. >> is it worth doing? >> i would argue yes some small scale intervention. i'm saying that has somewhat prevented the initial trigger, the dutch have been very active. the b