Sunday, January 31, 2010

Overcoming impediments to international cooperation against terrorism

Transnational terrorism waged by Islamist terrorists represents a major challenge to international security, which necessitates an unwitting cooperation by all countries in order to effectively confront this asymmetric and unpredictable form of threat (Gray, 2002, pp. 8-11). The Global war on terrorists is not only a battle of arms and ideas (Posen, 2002, p.1), but also a battle for the hearts and minds, where all elements of international power including intelligence; law enforcement; military; financial, diplomatic and intellectual to defeat the terrorists and isolate their radical ideology that inspired others to join or support them (Probst, 2001, pp. 4-5: Posen, 2002, p.1))

Effective international cooperation in the war against terrorists cannot be achieved without addressing the impediments to such cooperation; among them are the lack of international agreement on the definition of terrorism itself, and placing domestic politics and national interests ahead of those of the international community as a whole. Using examples from ongoing policy efforts describe impediments to international cooperation against terrorism and assess ways in which these impediments can be overcome

Barry Posen in 2001 argued that the principal terrorist enemy confronting the United States today is a transnational movement of extremist organizations, networks, and individuals – and their state and non-state supporters – which have in common that they exploit Islam and use terrorism for ideological ends (p. 5). Al Qaeda (AQ), formed by Salafi Jihadists and led by Osama Ben Laden (OBL), perpetuated the most horrific terrorist attack in history on September the 11th, in New York and Washington, and is the main transnational Islamist terrorist group that exists today. AQ is seeking to establish pan-Islamic regime, create and exploit a division between the Muslim and non-Muslim world and within the Muslim world itself, and ignite a clash of civilizations, which OBL himself firmly believes

Therefore, the war on Islamist terrorism cannot be won without winning the war of ideas, which require the cooperation between the Muslim world and the West in particular, and among the entire nations in general. Such cooperation will not be achieved without reaching a common ground based on the shared human values and address the impediments that undermine international cooperation in the war on terrorism. Among these impediments are:

1- Absence of international agreement on the definition of terrorism

Islamist terrorism is not monolithic (Posen, 2001, p.5). Most of the ME and the Muslim world doesn't see eye for eye with the West in their classification of Foreign Terrorist Organizations (FTO), and in this regard, unlike AQ, HAMAS and Hezbollah are not considered terrorist organizations, but rather resistance movements against Israeli occupation (Bahgat, p. 58). John Waszark in 2004 argued that “the major weapon in the arsenal of the counterterrorist financing regime is the criminalization of material support for terrorist Organizations” (p. 683). Therefore, support to these organizations lie at the heart of disagreement between the West and Muslim world and is a major impediment to the war on Islamist terrorism, where the vast majority of the public, according to opinion polls in the Muslim world, are not willing to alter their financial practices to comply with anti-terrorism written laws (p. 692)

Furthermore, Gawdat Bahgat in 2004 explained how the opposition to US policies in the ME, Israel’s support, “America’s failure to be even-handed” in the Arab-Israeli conflict, invasion of Iraq, and labeling the GWOT as war against Islam, have contributed to rising anti-Americanism in the Muslim world in which terrorists and terrorism breed (p. 58).

Palestinian suffering is a very sensational issue across the Muslim world, and is a weapon that has been used very effectively by terrorists, especially AQ, to rally support and win sympathy for their action and also to feed into anti-Americanism. Therefore, dealing with Palestinian terrorism with its complexities through a separate strategy and within the context of the Arab-Israeli conflict, and not through narrow definitions that no one can agree on, will isolate AQ and give more momentum to the war on terrorism, which will be then defined as the brand of AQ terrorism. Consequently, the parameters for designating FTO need to be revisited, in which a distinction must be made between Islamist terrorist organizations with global agenda that use terrorist as a strategy, such as AQ, and other insurgencies that might of have used terrorism as a tactic during an armed conflict, but no longer do so, such as HAMAS and Hezbollah. Therefore, making such distinction, and engaging HAMAS and Hezbollah, provided that they end their terrorism against Israeli civilians, will pave the way to ending the blockade against Palestinians in Gaza which is galvanizing anti-American and sentiments in the region and aiding terrorists

2- Lack of clear understanding of foreign culture, especially Muslim culture

There is an inherent need by people in any country, religion or culture for prosperity, freedom and justice and aspiring to these values is not exclusive of particular countries or group of countries. In the Muslim world, tradition plays an important role, and most of these traditions stem from religion. Therefore, Anatol Lieven argued in 2001 that the USG should have basic knowledge of the Arab and Muslim world culture, traditions, value systems, and religious sects, as it conduct its GWOT. Such understanding of Muslim culture will help the GWOT on two fronts:

A) Build “culturally sophisticated profiles of asymmetric foes, so that we may stand some chance of understanding what might best discourage them [Islamist terrorists] from proceeding”, as Colin Gray argued in 2002 (p.11). Peter Probst in 2001 argued the greatest threat to national security that the US fails to appreciate remains problems of mindset and perception, which impacts terrorists thinking, operations, strategy, tactics, and planning (p. 4). Probst added that terrorists’ perception is their reality, and we must understand this reality through their lenses not through ours, which is colored by culture, history, personal experience and bureaucracy (p. 4)

B) Such knowledge and familiarity, according to Lieven, will enable the US to rightfully characterize the “enemy” and avoid alienating the majority of those in the Muslim world who perceive the GWOT as a war on Islam (p. 2). Furthermore, as George Perkovich in his fascinating 2005’s article “ Giving justice its due” argued it will enable us to realize how the ME today, contrary to Western thinking, is striving for justice more than freedom, and that should be the emphasis of US policies towards the Muslim world.

3- Respect of International Law, human rights and civil liberties

Several analysts criticize the GWOT, especially the US Patriot Act, and the war on Iraq for their encroachment on civil liberties, violating acceptable procedures of International Law, and creating the impression that US relies on brute force and undermines legal norms, which consequently compromise the international cooperation in the war on terrorists (Best, p. 26). Some argued that waging wars of choice on other countries in absence of credible and reliable evidence that they represented an imminent threat US (Record, 2003, p. 43 & p. 18)

The US cannot afford to lose the support of friendly nations in the war on terrorists, where security services of these nations can be important sources of information for US intelligence; they know their neighborhoods and have access that US agencies do not (Deutch & Smith, 2002, p. 65). Therefore, the US must work with the international organizations and avoid unilateral actions that threaten international unity.

However, as the nature of the enemy we face today has changed, and as governments are obliged to respect international law and make an effort to preserve civil liberties, people themselves, particularly in the US, might need to change their perception on what constitute violation of civil liberties and what does not.

Chalk and Rosenau explained how the European public opinion generally accepts government intrusion into citizens' personal life as "necessary evil" (p. 51). However, in the US, the single largest obstacle to domestic intelligence remains cultural, given the history and structure of the US, where "most Americans don’t like to feel that they are being spied upon by their government or neighbors (Burch, 2007, p. 19). Where to draw a line between security needs and civil liberties, is a question that Americans themselves are ought to reconcile and without infusing partisan politics in order to provide our intelligence agencies with the necessary tools to fight this asymmetric form of threat to our national security

4- Conflict with domestic politics

Since domestic politics often shape a country’s foreign policy decisions, governments tend to appease their domestic audience sometimes at the expense of its international standing and credibility. Barry Posen, in 2002, argued how the US has often failed to act out of fear of incurring modest costs; it has applied insufficient pressure on Israel to suppress its settlement policy in the West Bank and Gaza. He added that short-term domestic political gains or losses has often dominated decision-making (p 6), which has significantly hurt the US foreign policies, especially in the Middle East, and hence undermine the international cooperation in the fight against terrorists.

Furthermore, domestic partisan politics can also undermine our intelligence and law enforcement capabilities and distract reform efforts. For example, although the US has a solid legal oversight structure, however, the lack of bipartisan approach and the politicization of intelligence reforms represent an obstacle to effectively implement these reform initiatives. Burch in 2007, argued how the CIA was insulated from partisan politics from 1947-1967 because secrecy normally expected by intelligence agency was maintained and congressional knowledge and monitoring of intelligence operations was very limited (p. 3). Therefore, having less legislative and more judicial and/or independent internal oversight might be the best approach to shield national security agencies from partisan politics, as it is happening in Italy, France and other European countries

Moreover, as the 2004’s National Commission Report on terrorists financings have indicated, domestic politics has also played a role in countries like Saudi Arabia, where the balance that the government has tried to strike between the Wahhabi clergy and the more liberal ruling elite, have rendered the Saudis skeptical of US new strategies in the war on terrorism, until the country itself became a victim of a series of terrorist attacks from May of 2003 and November of 2004. Since then, Saudi Arabia viewed AQ as a domestic threat (p. 123) and has dramatically increased its cooperation with the US in the fight against terrorism to an unprecedented level (p. 126), stepped up their crackdown on terrorist financiers, captured or killed many AQ suspects and disrupted several terrorist cells (pp. 124-128)


5- Differences in Intelligence and law enforcement agencies’ structures and philosophy from one country to the other

According to Chalk and Rosenau, 2004’s comparative study of four European countries—UK, France, Canada and Australia—differences exist in the culture and modes of operations between these countries and their counterparts in the US, despite of shared strengths and weaknesses in their operational and organizational structure. These differences might stall cooperation and adds to layers of bureaucracy and create some difficulties coordinating policies and strategies. Furthermore, foreign counterterrorism agencies, which include intelligence and law enforcement, might not have the same guidelines that regulate the balance between national security and civil liberties. Therefore, the quality of information gathered by intelligence, as well as its credibility might be undermined, especially if a country has history of human rights abuses, torture or racial discrimination, or if some countries perceive certain intelligence information politically motivated, which can prevent some countries from acting upon intelligence information gathered by that country

Among the various reasons cited in 2004’s National Commission’s report on terrorist financing for Saudis’ lack of cooperation with the US their inaction against Islamic charities, such as HIF, suspected of financing terrorists, was the lack of specific and credible intelligence available for the Saudis to move against these organizations

6- Deconflating the threat

Jeffrey Record in 2003 argued that in declaring the “we [US] make no distinction between terrorists and those who knowingly harbor or provide aid to them” (p. 10), the US broadened the scope of its enemies, risked international and popular support, and undermined the resources to fight wars of necessity by lumping in the same basket all terrorist organizations, in addition to rouge states such as Iraq, Iran and North Korea, and failed states, such as Afghanistan, instead of focusing on AQ and Islamist terrorists as the main threat to US (p. 13 & p. 18). Therefore Record argued that while transnational terrorist organizations’ most potent protection is statelessness (p. 16) therefore they are undeterrable, there is no evidence that rouge states, such as North Korea and Iran, are not subject to effective deterrence (p. 17).

7- lack of written anti-terrorism laws in some countries and lack of enforcement

Among the major hurdles in waging an effective global financial war on terrorism is the lack of written anti-terrorism laws in some countries to disrupt the financial networks funneling monies to terrorists, or the lack of enforcement of such laws when they exist.

John Waszak in 2005 argued that “the problem of suppressing terrorist financing is not necessarily one of the laws or law enforcement. Rather, the suppression of terrorist financing is made difficult for [various] non-legal reasons” (p. 707), which include:

1- Sensitivity and restraint: since terrorists rely, among other sources, on money collected from Islamic charities and mandatory zakat paid by Muslim individuals and businesses, it will is logistically difficult to sort out and clamp down on terrorist finances without running into the risk of restricting one of the main pillars Islam—zakat—and offending majority of mainstream Muslims. Therefore, counterterrorist strategists must communicate effectively with Muslim leaders and communities in the US and “be sensitive to peaceful followers of Islam not materially supportive of terrorism or terrorist organizations” (pp. 707-708)

2- Lack of financial intelligence network with the essential resources and tools for law enforcement: The building of such global network requires strong political and economic will by countries which are major international players in the fight against terrorism, such as US, Saudi Arabia and UAE. This will might be lacking in some countries because of several complex political, economic, and cultural reasons that must be addressed by policy makers (pp. 708-709).

Therefore, micromanaging an unfocused financial war on terrorism by going after every individual, charity, business or organization with suspected ties or links to terrorists, can be exhaustive, and will create an atmosphere of phobia that is counterproductive. It will be more effective to focus on identifying and detecting patterns of financial transactions that can predict early phases of terrorists’ operations. This can be achieved by combining financial information with counterterrorist intelligence, coordination between financial institutions, law enforcement and intelligence agencies, outreach to the private sector, and rely on diplomacy to achieve international engagement and ending state sponsorship of terrorism (FATF, pp. 29-35)


Conclusion

The Global war on Islamist terrorists is not only a battle of arms and ideas, but also a battle for the hearts and minds, where all elements of international power including intelligence; law enforcement; military; financial, diplomatic and intellectual to defeat the terrorists and isolate their radical ideology that inspired others to join or support them. Therefore, the war on terrorism cannot be won without winning the war of ideas, which require the cooperation between the Muslim world and the West in particular, and the entire world in general. Such cooperation will not be achieved without reaching a common ground based on the shared human values and addressing the impediments that undermine international cooperation in the war on terrorism.

International cooperation can be achieved by formulating new strategy in the GWOT that does not deal with Islamist terrorism as a monolithic threat. A distinction must be made between Islamist terrorist organizations with global agenda that use terrorist as a strategy, such as AQ, and other insurgencies that used terrorism as a tactic during an armed conflict, but no longer do so, such as HAMAS and Hezbollah. Dealing with Palestinian terrorism with its complexities through a separate strategy and within the context of the Arab-Israeli conflict, and not through narrow definitions that no one can agree on, will isolate AQ and give more momentum to the war on terrorism.

Better understanding and appreciation of the Arab and Muslim world culture, traditions, value systems, and religious sects, will avoid alienating the majority of those in the Muslim world who perceive the GWOT as a war on Islam, and will help shape counterterrorism based on terrorists’ perception, and therefore reduce intelligence gaps and vulnerabilities

Furthermore, broadening the scope of enemies by lumping deterrable rouge states and undeterrable transnational terrorist groups will risk international agreement and unity and compromise cooperation.

As governments are obliged to uphold International Law, respect human rights, and work within international norms, peoples also need to redraw the line between national security and civil liberties, where sacrifice of some the personal freedoms might be necessary in order to meet the challenges of the new transnational terrorist threat posed by non state actors.

Effective international cooperation can also be achieved by improving quality of intelligence and seeking better coordination between law enforcement and intelligence services in different countries. Identifying and detecting patterns of financial transactions that can predict early phases of terrorists’ operations. This can be achieved by combining financial information with counterterrorist intelligence, coordination between financial institutions, law enforcement and intelligence agencies, outreach to the private sector, and rely on diplomacy to achieve international engagement and ending state sponsorship of terrorism


References


Bahgat, G. (2004, Winter). Saudi Arabia and the War on Terrorism. Arabic Studies
Quarterly, 26 (1), pp. 51-63. Retrieved from Academic Search Premier
Best, R. A. (2001, December). Intelligence and law enforcement: Countering transnational
threats to the U.S. , Congressional Research Service, pdf document
Chalk, P. & Rosenau, W. (2004). Confronting the "Enemy Within": Security intelligence,
the police, and counterterrorism in four democracies, RAND, Available at:
http://www.rand.org/publications/MG/MG100/
Deutch, J., & Smith, J. (2002). Smarter Intelligence. Foreign Policy, (128), 64. Retrieved

from Academic Search Premier .

FATF Report (2008, February). Terrorist Financing. Public website

Gray, C. (2002). Thinking Asymmetrically in Times of Terror. Parameters: US Army War
College, 32(1), 5. Retrieved from Academic Search Premier
Perkovich, G. (2005). Giving Justice Its Due. Foreign Affairs, 84(4), pp. 79-93. Retrieved
from Academic Search Premier.
Posen, B. (2001, December). The struggle against terrorism: Grand strategy, strategy, and
tactics, International Security, 26 (3 )
Probst, P. (2001, March). Intelligence and Force Protection vs. Terrorism", in James M.
Smith and William C. Thomas, eds., The Terrorism Threat and U.S. Government
Response: Operational and Organizational Factors, Colorado Springs, CO: USAF
Institute for National Security Studies, March 2001, pdf file Available at
http://www.dtic.mil/cgibin/GetTRDoc?AD=ADA409533&Location=U2&doc=GetTR
Lieven, A. (2001, October). Fighting Terrorism: Lessons from the Cold War. Policy Brief,

Carnegie Endowment

Record, J. (2003, December). Bounding the Global War on Terrorism. US Army War College

Strategic Studies Institute. Available at

http://www.strategicstudiesinstitute.army.mil/pubs/display.cfm?PubID=207

Waszak, J. D.G. (2004). The obstacles to suppressing radical Islamic terrorist financing.

Case Western Reserve Journal of International Law, 36(2/3), pp. 673-710. Retrieved

from Academic Search Premier

Sunday, January 10, 2010

Key elements in counterterrorism strategies

Paul Pillar in 2001 argued that terrorism deserves to be condemned and actively opposed by all the world’s nations because it involves conduct that offend universal values involving human life and the suffering of innocents. In this regard, counterterrorism is of a piece with international humanitarian law as it has evolved for more than a century and been codified in The Hague and Geneva conventions on the conduct of warfare and is a similarly apt subject for multilateral diplomacy (Pillar, p. 78)

Following the attacks of 9/11, the US National Security Strategy became multifaceted, and more focused as far as its threat assessment and its articulation of the nature of the “new terrorism” the country faces, compared to pre 9/11. The presence of a comprehensive, integrated and more coordinated national strategy that includes several intelligence, law enforcement and security agencies highlights the main characteristics of counterterrorism (CT) today (Hoffman, 2001; Lieven, 2001, p. 1)

Furthermore, as Pillar explained, there are several elements upon which this new post 9/11 counterterrorism strategy should address, which includes: Roots, capabilities, intentions and defenses (pp. 29-40). According to Pillar, no single approach makes an effective counterterrorism policy, which must have several elements these elements.

1- Roots

Terrorism does not arise randomly (Pillar, 2001, p. 30). Nonetheless, the National Security Strategy for the US lacks a clear understanding of the roots of terrorism’s asymmetric threats (Gray, 2002, p. 5), and consequently, a clear strategy to deal with and address these threats, without which CT today remains ineffective in its ability to prevent future terrorist attack.

A major flaw in the US national counterterrorism strategy is its downplaying of the role of the Arab-Israeli conflict and the perceived US bias towards Israel among Arabs/Muslims public opinion, as well as the US policies in Iraq during the period of economic sanctions ending with the Iraq war as some of the causes of Islamist terrorism (National Strategy for Combating Terrorism, 2006, p. 8)

Another flaw in the US national counterterrorism strategy is its mischaracterization of the Al Qaeda (AQ)’s reasons of waging jihad against the “US and the crusaders” as their hatred towards Western civilization, freedom and democracy, which is not what AQ’s literature clearly indicated.

Barry Posen, in 2001/2002, argued that AQ targeted the US mainly for its policies in the Middle East responsible for the killing and suffering of millions of Muslims in countries such as Iraq, the Israeli occupation of Palestine, and imposing upon Muslims a Western culture deeply offensive to traditional Islam (p. 1). Furthermore, the US military presence in Saudi Arabia is considered by bin Laden as a desecration of the Islamic holy land. Posen’s argument seem to correlate more accurately with AQ’s statements and videotapes released in Arabic

Furthermore, the US national counterterrorism strategy emphasized the role of democracy in combating terrorism through the”advancement of freedom and human dignity through effective democracy.” (National Strategy for Combating Terrorism,2006, p.8). However, democracy promotion does not seem to be a priority for the current US administration, which eased up pressure exerted by the Bush administration on autocratic regimes to in the Middle East to democratize, in favor of their cooperation the Arab-Israeli peace negotiations, Iran, and other areas that serves the interests of the US. Therefore, the lack of consistency in US foreign policies in the Middle East represents a gap in the US counterterrorist strategy

Anatol Lieven in 2001 argued that the US Global War On Terror (GWOT) should be waged in a fashion similar to the Cold War and drawing from its lessons (p. 1). He makes a valid argument that the USG should have basic knowledge of the Arab and Muslim world culture, traditions, value systems, and religious sects, as it conduct its WOT, by incorporating experts in these areas (p. 2). A need to build “culturally sophisticated profiles of asymmetric foes, so that we may stand some chance of understanding what might best discourage them from proceeding”, as Colin Gray argued in 2002 (p.11). Such knowledge and familiarity, according to Lieven, will enable the US to rightfully characterize the “enemy” and avoid alienating the majority of those in the Muslim world who perceive the WOT as a war on Islam (P. 2)


However, as Paul Pillar argued, doing something about the roots involves the management of numerous foreign policy matters that are not primarily the responsibility of people in counterterrorism (p. 30), which remains a challenge in itself. Some of these grievances are expressed directly by terrorists such as political repression, lack of self-determination, the depravity of other rulers (p. 30). Therefore, policy initiatives, peace progress, political reforms and economic reforms should be made part of measures aimed at addressing the roots of terrorism (p. 31). Furthermore, counterterrorism is not the only consideration in determining US policies. Some things that are potentially terrorist-breeding and considered unjust, may be viewed by the US for politically and ethically sound reasons, as not unjust and in no need for major change (p. 32)

Moreover, there will always remain a core of incorrigibles’ roots of terrorism, and these will include terrorists about whom the US must worry the most. Their viewpoints are simply too extreme to be accommodated (Pillar, 2001, p. 32)

2- Capabilities

Reducing the capabilities of terrorist groups to conduct attacks is at the heart of US counterterrorism programs. However, terrorists can still inflict mass casualties, which might not require much capability.

3- Intentions

Why do terrorists do what they do, matters. Nonetheless, no matter what the terrorists’ intentions are, the US has made its policy that it will make no concessions to terrorists, because not rewarding terrorism will give terrorists less incentive to try using it again (Pillar, 2001, p. 35). Although the US at times made concessions to terrorism, e.g. Iran-Contra affair, the incorrigibility of some hardcore terrorists’ demands is the main limitation of this element of counterterrorism, and therefore, there is no way to influence their intentions over long term (p. 37)

4- Defenses

Defenses against terrorism include security measures, anti-terrorist defenses, and physical defenses. The anti-terrorist defenses constitute a very large proportion f the US fight against terrorism (Pillar, 2001, p. 37). Furthermore, research and development of new antiterrorist technologies continues through the Technical Support Working Group created by the federal government (p. 38)

However, as Pillar argued, the comprehensive protection for everything in the terrorists’ sights would be prohibitively expensive (Pillar, 2001, p. 39). As the Crowe panel acknowledged, “We understand that there will never be enough money to do all that should be done, we will have to live with partial solutions, and in turn, a high level of threat and vulnerability for quite sometimes. Furthermore, terrorists themselves shift their targets depending on the limitations due to security countermeasures (p. 39)
Counterterrorist instruments

In order to ensure that a counterterrorism strategy contains some or all main four elements mentioned above, Paul Pillar in 2001, suggested five various instruments to be implemented. He argued that all instruments needs to be employed and that each element can be pursued with more than one instrument (p. 73)
These instruments of counterterrorism strategy include:

1- Diplomacy

Diplomacy influences all elements of counterterrorism, including roots, intentions, capabilities and defenses. Through diplomacy, the US can seek peace, improve its image, and persuade allies to cooperate in the fight against terrorism and combat anti-Americanism.

Therefore, effective counterterrorist diplomacy must be practiced not only by Foreign Service Officers, but also by immigration officers, FBI agents, CIA officers, and all other branches of government (Pillar, 2001, p. 74)

Counterterrorism diplomacy supports other instruments, including the application of criminal law by negotiating treaties and extraditing terrorist fugitives among states. By encouraging states not to allow terrorist groups to operate within their borders, the time and effort spent by intelligence services can then be limited and directed into other avenues (Pillar, 2001, p. 75). In order for counterterrorist diplomacy to be effective, cooperation from other states is necessary, which can be achieved through bilateral or multilateral negotiations leading to more powerful resolutions. Multilateral resolutions, e.g. UN, G8, or NATO, can provide more latitude to obtain cooperation by countries that are reluctant to bear its responsibilities in the GWOT. The case of Pan Am 103 and the implementation of UN Resolutions forcing Libya through multilateral diplomacy to cooperate in the investigations that led to successfully prosecuting those responsible for the crime (p. 76). Moreover, collective interventions through multilateral diplomacy reinforce international norms against use of terrorism (p. 77)

Among the major achievements of multilateral counterterrorist diplomacy is the rejection by the international community and UN General Assembly of terrorism as tactic against occupation, which was used predominately and condoned during the 1970. The Geneva Diplomatic Conference on the Reaffirmation of International Humanitarian Law Applicable in Armed Conflict, which met from 1974 to 1977, adopted a protocol that diluted the legal distinction between armed conflict and terrorist acts when it defined a combatant as someone who belongs to the “armed forces of a party to the conflict” needs to distinguish himself from the civilian population only “while….engaged in an attack or in a military operation preparatory to an attack (Pillar, 2001, p. 79)
Criminal law

Despite its shortcomings, applying the rule of law in terrorist cases remains a fundamental part in counterterrorism. The US national security will be served better when terrorists get punished for what they have done, which in turn, not only prevent them from conducting further attacks, but also might deter others from committing more acts of terrorism (Pillar, 2001,p. 81) Moreover, applying the rule of law reinforces democratic principles of the US, with freedom and justice their basic tenets.

However, bringing justice to terrorists through imprisonment or even capital punishment might not be effective deterrence with terrorists who are driven by religious ideology, and whose ultimate goal is to seek death to become martyrs. Furthermore, terrorists might exploit the legal system and use trials in open courts to disseminate propaganda for their cause, seek to justify their violence, and alter public perception regarding the nature of their heinous crimes. Often, the targeted audience in such propaganda would be the sympathizers and potential recruits, who the terrorists are keen on not losing their support.

Pillar, in 2001, warned of potential complacency when applying criminal justice in counterterrorism, which can be manifested through:

1- Confusing criminal justice as an instrument of counterterrorism with counterterrorism itself (p. 81). In other words, because criminal justice is focused on the punishment of terrorists after they commit their crimes, the main goal of counterterrorism should always remain the prevention of terrorists from conducting future operations

2- Prosecuting and successfully convicting terrorists might give a misleading sense of closure on terrorist crimes, that are still open, and terrorists will continue to plan and conduct their operations (Pillar, 2001, p. 82)

Although criminal justice has been playing an increasingly essential role in international counterterrorism efforts, applying criminal justice in terrorism cases remains a national issue, which Pillar argued could be because of various reasons, among them,

1- Difficulty to prosecute foreign terrorists and gather evidence that would stand in court, since most of the investigations require unfettered cooperation by foreign governments and may compromise intelligence sources. The federal government enacted the Classified Information Procedure Act (CIPA) in order to protect sensitive information during trials (Pillar, 2001, p. 85)

2- Lack of cooperation by some foreign governments despite of their commitments to the fight against terrorism. This ambivalence might be stemming from notions of sovereignty and national laws that might prohibit extradition or oppose capital punishment, in addition to political or public pressure on the governments not be perceived as collaborating with the USG, especially in some of the Middle East countries where anti-Americanism is influencing public sentiment. For example, the Khubar Towers and African embassy bombings cases (Pillar, 2001, p. 87)

3- Legal challenges in the application of international law governing extraterritorial prosecution of terrorists. The extraterritorial application for the US criminal law to terrorism relies heavily on cooperation of other states (Pillar, 2001, p. 86)

Therefore, due to the global nature of terrorism, the International Criminal Court (ICC) was proposed as a viable forum to prosecute terrorists, withstanding the various logistical hurdles and objections by major states including the US. Concerns were voiced regarding the mechanisms of handling of sensitive material and possible exploitation of intelligence sources (Pillar, 2001, p. 89).

Transferring suspected terrorists to other countries, such as Israel and several “moderate” Muslim states, for interrogation and possible prosecution, appeared to be an attractive option for USG in order to avoid possible retaliation by terrorist groups, or offending Muslim population (Pillar, 2001, pp. 91-92). However, when news about rendition operations becomes public, as in the case of CIA secret transfer of terrorist suspects to countries accused of poor human rights records and torture, the harm to US interests can be more.
Financial Controls

Contrary to common belief, controlling finances of terrorist groups and individuals plays a modest and secondary role in counterterrorism (pp. 93-94). Freezing terrorists’ monies and financial assets can undermine their ability to operate, that’s why the US has pursued their financial livelihood. Among other challenges facing financial war on terrorism is the fact the most of the financial operations take place outside the US, where, similar to criminal justice, foreign countries’ cooperation in clamping down on terrorists finances have not been limited (p. 95).

Furthermore, terrorist networks have developed multiple channels to move money around the globe outside the formal banking systems, therefore it is difficult to track. Moreover, terrorism is cheap, which makes impossible to eradicate (p. 94). It does not require significant sums of monies to blow up a truck or destroy a building in order to spread fear and make political statement.

Therefore, as Pillar argued, the value of the financial control instrument in counterterrorism will always be more symbolic demonstrating the US seriousness in countering terrorism than the material one of impoverishing terrorist groups (p. 96)
Military Force

Pillar argued that the use of military force in counterterrorism must always be an instrument available for the US to undermine terrorists’ capabilities, although it should be limited to punitive retaliatory situations (p. 99) where a high standard of proof in establishing responsibility for terrorist incident can be maintained (p. 107). He added that the cost of using military force unwisely can be staggering, especially on the diplomatic and international relations fronts, where the US is often perceived as superpower using its military muscle offensively (p. 106).

Despite of public domestic support to retaliatory military strikes against terrorist targets, foreign reactions have been mixture of cynicism and criticism of the real US intentions (p. 107). Furthermore, opponents of use of military force argue there has been no concrete evidence to conclude that military strikes have been successful in weakening terrorists’ capabilities and prevent them from conducting future attacks (pp. 102-103)

Furthermore, the use of destructive and indiscriminatory military force in retaliation to terrorist attacks have inflamed public opinion especially in the Muslim world, and have contributed to rising anti-Americanism. Since the US has began utilizing its military forces to in counterterrorism, all countries that have been attacks were Muslim, including Libya in 1986, Iraq in 1993, Afghanistan and Sudan in 1998, ending with the invasion of Iraq in 2002 following the attacks of 9/11 (p. 100). Therefore, the US was portrayed by radical Islamists as the new “crusader” seeking to kill Muslims and strike poor Muslim nations (p. 107).

The use of military force as a counterterrorist instrument should be lethal, precise, and based on sound, credible and reliable intelligence in order to destroy terrorists’ capabilities and prevent future attacks with the least amount of collateral damage. This task can be best achieved by the Special Forces, which is the center of the US military’s capabilities to apply armed force to terrorists (p. 98)
Intelligence and Covert Action

Intelligence supports all the other counterterrorist instruments, with specific information as well as strategic assessments (p. 116). Therefore, it’s the most substantial instrument of counterterrorism (p.110). Human and tactical intelligence are the two main arms for information collection about terrorists, followed by meticulous process of information analysis, that should involve and coordinate with all other branches of security (pp. 110-112)

However, inherent problems and limitations with both collection and analysis of intelligence on terrorism undermine the feasibility of tactical warnings of potential terrorist attacks (p. 115). Similar to some of the European countries, some argue that the creation of a stand-alone domestic intelligence services entity is in the US is a necessary tool for CT, in order to address the limitations in intelligence information collection and analysis.

Rosenau and Chalk in 2004 argued that although significant cultural, historical, and political differences exist between the US and other countries examined in their study, and that intelligence institutions cannot and be replicated from one country to the other, there are in these countries measures that can be adopted by the US (p. XV), among them are:

1- Creating a domestic intelligence agency that focuses solely on information gathering, penetrating terrorist cells, but has no law enforcement capabilities (p. 43). However, there is no evidence to suggest that the presence of domestic intelligence agencies have actually been effective in preventing terrorist attacks in these countries, compared to what we have today in the US. The Bombings in London, Bali and Mumbai serve as example of the shortfalls in some of strategies implement by these domestic intelligence agencies in their respective countries

2- Extensive use of intelligence services in local community and reliance on information derived from HUMINT information (p. 35). Australia in particular posses a public outreach programs that emphasizes on increasing public understanding and awareness of its role, and building public trust, that can be helpful for the US (p. 37). In the countries examined in the RAND study, the emphasis on HUMINT and community intelligence/outreach was done through their domestic intelligence agencies, however, in the US in absence of such agency, this strategy can be pursued by FBI Field Intelligence Groups (FIGs) spread throughout the country, but under the direct control of the Director of National Intelligence (DNI) and/or the NCTC not the FBI itself, which is one of the recommendations of the 9/11 Commission (Burch, 2007, p. 15)

Therefore, creating a domestic intelligence agency seem to be natural, especially that a series of reform initiatives from 1998 to 2001have not been able to reshape the culture within the existing intelligence agencies, especially the FBI, which seem to be resistant to change. A domestic intelligence agency that has the organizational strategic structure to effectively and precisely perform its mission of information gathering relying mainly on HUMINT and local community intelligence; effectively coordinate and share information with law enforcement and other foreign intelligence; governed by the constitutional safeguards to prevent the abuse of its power in surveillance and monitoring of private citizens for political gain, and is subject to independent internal and external oversight, can be the most valuable tool in the fight against terrorism


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