Tag: global terrorism

Are We Safer?

The leaders of the congressional intelligence committees say that the United States is not safer today than in recent years.

Sen. Dianne Feinstein (D-Calif.), chairwoman of the Senate Intelligence Committee, and Rep. Mike Rogers (R-Mich.), chairman of the House Intelligence Committee, said in an interview aired Sunday on CNN’s State of the Union that terrorism is up worldwide and the United States needs to be vigilant to combat the growing threats.

CNN’s Candy Crowley kicked off her sit-down interview, asking, “Are we safer now than we were a year ago, two years ago?”

“I don’t think so,” Feinstein replied. “I think terror is up worldwide, the statistics indicate that. The fatalities are way up. The numbers are way up.” Rogers concurred. “I absolutely agree that we’re not safer today … the pressure on our intelligence services to get it right to prevent an attack are enormous. And it’s getting more difficult.”

The recent uptick in terrorism reminds us of the need to remain vigilant. But it is also important to keep in mind long term trends. Below are two graphs generated by Cato’s new website, www.humanprogress.org, using Harvard University Professor Steven Pinker’s data. According to Pinker, there has been a sustained downward trend in deaths from terrorism.

 

Playing Chicken Again

As I wrote in this post, Senators McCain and Lieberman proposed a broad piece of anti-terrorism legislation. The Enemy Belligerent, Interrogation, Detention, and Prosecution Act of 2010 would use military detention to incapacitate suspected domestic terrorists, including American citizens. This is a sea change in counterterrorism policy and a break from American principles that mandate a day in court.

This bill is a bad idea for several reasons. First, for the points that I made in my previous post, the civilian criminal justice system successfully incapacitates domestic terrorists. Our laws are built to do that – it’s the international nature of al Qaeda and the necessity of military force in the expeditionary conflicts we are fighting that make things different. Second, I doubt that this policy will be seen as a bonanza for domestic counterterrorism, and the agencies responsible tasked with using military detention won’t actually have much use for it. Third, and most importantly, detaining American citizens minus a suspension of habeas is unconstitutional and will be held so in court.

The policy prescribed under this bill is to direct anyone apprehended and suspected of terrorism into military custody for their initial interrogation. The bill bars them from being read Miranda rights, directs a high-value detainee interrogation group to determine whether or not they fit the bill as an unprivileged enemy belligerent (Military Commissions Act 2009 language for unlawful enemy combatant), and further directs authorities to submit this information to Congress. Anyone designated as an enemy belligerent can be detained until the cessation of hostilities, which amounts to whenever Congress says that the war on terrorism is over.

The kicker is that aliens detained domestically under this system must be tried by a military commission. Citizens cannot be tried by military commissions, and the jurisdictional language in the Military Commissions Act (MCA) reflects this. Basically, the government would collect a bunch of intelligence that is inadmissible in federal courts and then hold American citizens indefinitely. Also, detaining large numbers of Muslim aliens (who may have strong ties to local Muslim communities) and prosecuting them in military commissions threatens to radicalize citizens who are Muslims. The perceived double standard – commissions for Muslims in America, civilian trials for everyone else – is counterproductive when it comes to defeating terrorist recruiting.

I say that this won’t be a bonanza for the intelligence community because I see this scenario playing out in three ways:

First, it might work as seamlessly as the bill’s sponsors describe. This could be true if we already have a lot of evidence, the suspect is arrested, temporarily transferred for a short session of non-admissible interrogation, and then kicked back to the civilian criminal justice system (true with citizens, not with aliens). There’s an argument that traditional police interrogations could get the same (or more) information that the military can, because military interrogators do not have the bargaining tools such as snitching on co-conspirators for reduced sentences, plea bargains and the like. I won’t belabor that, since it’s not the point of this post.

Second, there’s the possibility that the military and the intelligence community won’t want to get involved in a lot of these cases, essentially nullification of what Congress would dictate with this bill. The FBI would monitor the communications of someone like JihadJane, have mountains of evidence against her, and have a case that supports the arrest of her co-conspirators overseas. In this case military detention is unwarranted, so the military investigator shows up, decides that the law enforcement agents have the situation in hand, and high-fives them on the way out the door. The bulk of terrorism suspects don’t have a wealth of information about other plots, so mandating military detention is tying the Executive’s hands by making counterterrorism agents jump through additional bureaucratic hoops when they take people into custody. I thought this was something that conservatives oppose.

Mandating military custody gets hairier in real emergencies. Imagine a parallel to the 1993 WTC bombing where the FBI knows that a cell is assembling a bomb but doesn’t sweep up the suspects before the bomb is operational and in a truck bound for its intended target. Agents lose track of the suspects, but quickly locate one of them and take him into custody. The new law would mandate that they first get the guy into military custody before asking him where the bomb is going. Besides creating an incentive to put military investigators (CID, NCIS, or OSI) on every Joint Terrorism Task Force in America (possible Posse Comitatus and 10 U.S.C. 375 issues with this and the rest of the bill), this doesn’t even guarantee that a military investigator is with the agents who capture the suspect that we need information from right now. Under the current “soft-on-terrorism law enforcement approach” the law enforcement agents can question the suspect directly and be assured that the exigency of the situation makes his statements admissible in court via Quarles, where the Court created a “public safety” exception for the post-arrest, pre-Miranda questioning of a rapist who had hidden his gun in a supermarket. A bomb heading toward the federal building or a shopping mall is a bigger threat than a revolver mixed in with the fresh fruit, and courts get this. If the course of action dictated to the people on the ground fails the “ticking bomb” scenario, it ought to be opposed by all armchair counterterrorism experts who take their cues from 24.

The third possibility is a worst-case scenario. Suppose we have an American citizen who gets taken into military custody, gives up a lot of information, but then won’t repeat it when he is kicked back to the civilian law enforcement system. Some will make the case that this is justification for an honest-to-goodness preventive detention system to keep such a person in custody.

This raises the question of constitutionality with regard to holding American citizens as domestic enemy combatants. More to the point, it resurrects the case of Yaser Hamdi with a differently-situated plaintiff. Hamdi was a dual US-Saudi citizen who was captured on the battlefield in Afghanistan. He was brought to the US and kept in a naval brig in Charleston, South Carolina. The Supreme Court heard his case and the plurality held that he could be detained as an enemy combatant, but that some form of administrative hearing was required to balance his liberty interest versus the government’s national security concerns.

Justices Scalia and Stevens dissented and got this case right (agreeing with Cato’s brief). American citizens cannot be held without trial short of suspending habeas corpus, and Congress has not supplied language to comply with the Non-Detention Act when it passed the Authorization for the Use of Military Force after 9/11.

After all, President Bush’s military order of November 13, 2001 directs the Secretary of Defense to detain and try enemy aliens by military commission. The Military Commissions Acts of 2006 and 2009 have not deviated from this language.

The court challenge that results is a return to the Executive playing “chicken” with the courts, and the Executive continuously losing.

Courts will distinguish domestic terrorism suspects from those who participated in hostilities on the battlefield. This was the reasoning behind Jose Padilla’s loss in the 4th Circuit. He had been on the battlefield and escaped, parallel to Yaser Hamdi and the Nazi saboteurs of the Quirin case. This distinguished him from Lambdin Milligan, the post-Civil War domestic terrorist who was ordered out of a military commission and back into the civilian courts.

Even those who disagree with Scalia and Stevens can count votes on the Court. The narrow circumstances in Hamdi are not present here, and the battlefield/civil society distinction has the potential to sway all but two or three of the justices. Kennedy indicated displeasure with the jurisdictional shell game the Bush administration played with Jose Padilla, along with Roberts and Stevens. Souter, Ginsburg, and Breyer voted to hear his case even after he had been transferred from enemy combatant status to federal court.

The bottom line is that this bill mandates treating all terrorist attacks as acts of war and not criminal violations, when some are clearly both. It isn’t bad policy because there is no justification for military force – there is – it’s bad policy because it prohibits a pragmatic legal response to terrorism. If the law enforcement paradigm gets results for the threat, use it. The same goes for the military paradigm. But let’s not pick one over the other for the sake of domestic politics.

Terrorism and Security Systems

Terrorism presents a complex set of security problems. That’s easy to see in the welter of discussion about the recent attempted bombing on a plane flying from Amsterdam into Detroit. The media and blogs are poring over the many different security systems implicated by this story. Unfortunately, many are reviewing them all at once, which is very confusing.

Each security system aimed to protect against terror attacks and other threats involves difficult and complex balancing among many different interests and values. Each system deserves separate consideration, along with analysis of how they interact with one another.

A helpful way to unpack security is by thinking in terms of “layers.” Calling it security “layering” is a way of describing the many different practices and technologies that limit threats to the things we prize. (It’s another lens on security, compatible with the risk management framework I laid out shortly after the Fort Hood shooting.)

Let’s think about some of the security layers deployed to protect people on airplanes against someone like the individual who sought to bomb this flight into Detroit. There are many different security layers. Examining how they worked or failed positions us to tune our security systems better for the future.

It would make sense to start with the security measure that ultimately ceased the attack—human intervention—and move out layer-by-layer from there. But we should actually start by pondering what course events might have followed if the attack hadn’t been thwarted when it was.

The design of airplanes is a security layer that this event did not implicate. Few people are aware that planes are designed to survive damage—even significant damage—and still remain aloft. The seat assignment of this would-be bomber comes into play here, of course. Did he seek out a seat along the wing intending to damage fuel tanks, or was it just a chance assignment? We don’t know yet.

Depending on how events might have unfolded in the event of an actual blast, various other layers may have come into play: pilot training, other design elements of the plane like redundant controls, availability of first aid equipment, flight crew training, and so on.

The good news—worth stating again because much commentary overlooks it—is that this plot failed.

The security layer we credit most for its failure is the direct intervention of other passengers. People who discuss only government programs or policies overlook an important, forceful, and highly adaptive security layer: empowered individuals. We should not prefer to rely on this kind of human intervention, of course—it kicks in far too late for comfort. But it is there, and in this case it worked.

Next, there is weapons detection. The consensus is strong that this layer failed, but this layer did some work, which also shouldn’t be overlooked.

To get it past anticipated security checks, the “bomb” had to be modified in a way that ultimately reduced it to a far less dangerous incendiary device. It wasn’t human intervention alone, but the combination of the weapons detection layer and the human layer that foiled the plot.

Nonetheless, given the consensus that weapons detection failed outright, it is likely that millimeter wave scanning (aka “strip-search machines”) will see broader adoption in air security, trumping privacy concerns that had dealt it some setbacks.

Another layer—more clearly a failure—was the watch list/no-fly list system (or systems). Watch-lists are porous when they’re at their best: They can only catch people already known to be threats, and then only those who are accurately identified at the airport.

Secretary Napolitano originally said that there wasn’t specific derogatory information to justify placing this person on a no-fly list, but unfolding reporting suggests that this was not the case. I agree that watch-listing failed, but I struggle to imagine how it could actually succeed. What general rule, administered on the scale required, could properly deny boarding to genuine attackers without unacceptably denying travel to thousands and thousands of non-attackers every year? Making sense of watch-listing is difficult, and it’s no surprise to me that this security layer failed.

A sibling layer is visa management. Unlike the last-minute decision whether or not to allow a person onto a plane, visa applications can be examined with some leisure, using not only lists of derogatory information but also information gathered from applicants and other sources.

Foreign nationals have no right to enter the United States, and the decision to exclude people seems well placed at this layer compared to last-minute use of watch-lists or no-fly lists.  By comparison to authorities in the UK, who evidently excluded him, it appears to have been error to allow the Detroit bomb plotter to have kept his U.S. visa. This is yet another security issue deserving investigation.

Other security layers, of course, include whatever intelligence  might have been picked up in Yemen and whatever actions might have been taken in light of it.

Are there more layers of security to examine? Undoubtedly there are.

One of interest to me might be called the “strategic layer”—steps to deny terrorists the strategic gains they seek. It is unclear what goal, if any, the Detroit bomb plotter had, but  U.S. National War College professor of strategy Audrey Kurth Cronin identifies a number of “strategies of leverage” terrorism seeks to exploit.

Terrorists are weak actors, unable to muster conventional forces that threaten a state directly. So they try to use the power of the states they attack to achieve their aims. Provocation is an example—getting a state to overreact and undercut its own legitimacy. Polarization is another: Most often in domestic contexts, terror attacks can drive wedges among different ethnic, religious, or cultural groups, destabilizing the state and society.

Mobilization is the strategy of leverage most likely at play here—seeking to recruit and rally the masses to a cause. There’s no argument that this alienated loner is an articulate strategist, of course, but his attack could signal the importance of terrorism to a worldwide audience, making terrorism more attractive to opponents of U.S. power.

Even a failed attack could send such a signal if U.S. government authorities allow it. I wrote in an earlier post how their reactions will dictate the “success” or “failure” of this attack as terrorism.

As to the strategic layer, I believe that, amid programmatic and policy failures, President Obama is due credit for his handling of communications. It was very pleasing to see a Washington Post story Monday headlined: “Obama Addresses Airline Security in Low-Key Fashion.” He is obligated to respond to domestic demands for communication, of course, but declining to exalt terrorism and this incident should not earn him demerits. It should earn him applause.

The alternative—hustling the president of the United States in front of cameras to make incautious statements—would send an unfortunate signal to the world: Any young man, from anywhere across the globe, can poke the president of the United States in the eye, even if his attack on a U.S. target fails. Such a message would invite more terrorist acts.

Attacks not mounted aren’t measured, of course, but attacks would likely increase if it appeared that attacking the U.S. and its interests could visibly fluster the U.S. president. The discipline shown by the White House during this event is an important contribution to our security from the next attack. Politicians beneath President Obama’s grade should take a lesson and control their reactions as well.

Next, I hope to see communications that subtly and appropriately portray the underwear bomb plotter as the loser that he is. I have declined to use his name, because this wretch should go namelessly to oblivion. And I am pleased to see that U.S. authorities have released an image of his underwear, half-suspecting that this was done to help make his legacy the indignity of being beaten by Americans and having his underwear displayed to the world. 

I am also pleased to see him called the “underwear bomber” in some news reports. I would call him the “underwear bomb plotter” because he only managed to light a fire. This is not to trivialize the attack, but to diminish the standing of the person who committed it. People around the world who might consider terrorism are watching how we react to this event, and I want no one to believe that following in the footsteps of the underwear bomb plotter is a good idea.

Let’s also observe that the plane he would have brought down bore innocent women and children. Among them likely were many good Muslim people. Had he succeeded, he would have added to the count of orphaned children in the world. This is not someone to emulate, and official communications should be sounding these themes if they aren’t already.

Given how difficult it is to physically foreclose all vectors of attack while maintaining our society as open and free, strategic communications like this—to deny terrorists the rhetorical gains they seek from us—are very important. Portraying this person as a wrongheaded failure is part of the strategic layer in our security, far preferable to treating him as a diabolical anti-hero.

This incomplete discussion is intended only to illustrate the many different security layers at issue in the underwear bomb plot. Thoughtful readers will undoubtedly find gaps and misstatements in this discussion based on more precise facts and better technical or programmatic knowledge than I have.

Thankfully, we have an opportunity to learn about our security from this failed attack. Had it succeeded, it appears that our society remains ill-equipped to maintain an even keel. The intensity of commentary and analysis on this event shows that a successful terrorist would likely knock us off our game. The impulse to do something—anything—would overwhelm us, and we would likely overreact by retaliating imprecisely, by pouring our energy into security measures that don’t actually work, and so on. Such missteps are congenial to terrorism, and we should try to avoid them.

What’s New in Pakistan?

200903_innocent_blogThis weekend, protesters supporting Pakistani opposition leader Nawaz Sharif (PML-N) clashed with police in riot gear in downtown Lahore. The sight of lawyers being tear-gassed is shocking to many Americans. But what should be more shocking—yet extremely more complicated to work through as explained below—is America’s continued backing of Pakistan’s unpopular president, Asif Ali Zardari, who continues to obstruct his democratic opposition and (until recently) the reappointment of ousted Chief Justice Iftikar Chaudrhy.

It’s easy for people in the West to dismiss these demonstrations as the outgrowth of the country’s petty political infighting. But Americans must recognize that historically, U.S. policy and assistance has either enhanced the position of Pakistan’s military at the expense of its civilian leaders, or has helped domestic civilian leaders more popular within Washington than within their home country. Throughout the Cold War and up to the present day, these domestically unpopular figures devoted more government resources toward themselves, their own political parties, and their own bureaucratic expansion rather than toward economic and social reforms to modernize and better educate Pakistan’s population. Consequently, Pakistani citizens began to blame American aid and support for their own deteriorating situation.

Certainly Pakistan’s domestic power struggles and ceaseless political infighting will continue to overshadow a menace more sinister than legislative rivals—i.e.-the Taliban, al Qaeda and other militant groups sweeping through large swaths of Pakistani territory.

But for long-term stability, U.S. policymakers must jettison the idea that a foreign leader’s denunciation of America means that leader poses a direct threat to U.S. interests. What America should want most is stability and continuity, particularly within Pakistan if we want to prevent the convergence of global terrorism and nuclear proliferation. Thus, in a perverse way, Sharif’s condemnation of the United States, coupled with his unwavering support for restoring judges sacked by Musharraf, has shored up his support within Pakistan, and his rise to power may actually bring solidity to the country.

The question of whether the military will step back in is much more complicated. Last August when the military backed away from politics, that move was based on political expediency (a desire to repair its tarnished image) rather than on political principle (a desire to restore the country’s democratic rights). If people in the military begin to feel that the country is slipping out of control they would attempt to retake power. There are, however, two main reasons why the military would not try to reassert its authority: 1) political pressure from Washington (the belief that with the military focused on governing, it would take its focus off combating the insurgency); and 2) pragmatism (after all, if Pakistanis are in an uproar over Sharif, imagine the protests that would ensue if army generals tried to impose martial law).

But when it comes to foreign policy, anything is possible, and Pakistan’s government has swung like a pendulum between military dictators and electoral democracies throughout its 61-year history. Because civilian leaders do not have a monopoly on government decision-making, U.S. policymakers must cultivate relations with both the civilians and the military, as civilians may be in power one day and the military in power the next.

Pakistan’s army is on standby ahead of today’s planned sit-in by lawyers in Islamabad, and authorities warn that such a protest would paralyze the government. The best U.S. Secretary of State Hillary Clinton can do is work with both Zardari and Sharif to arrive at a negotiated settlement to restoring judges and ending the political deadlock. But overall, Pakistan’s long-term success depends on the strength of its civilian institutions and the public’s repudiation of extremism. In this respect, America must be committed to strengthening cooperation not only with the Pakistani Government but with the Pakistani people.

Update: Sharif this morning calls off protest