Lecture 10 defeating terrorism

Defeating Terrorism
Counter-Terrorism and the Law
 Charles J. Dunlap: Use of law as a weapon of war – “Lawfare”
 Exploitation of real, perceived, or even orchestrated incidents of
law-of-war violations as an unconventional means of confronting a
superior military power.
 Theme: Rule-of-law is impediment to, not shield from, external danger
1999: Senior Colonel Qiao Liang and Senior Colonel Wang Xiangsui (PLA)
Book: “Unrestricted Warfare”
 Non-military means of national power to maneuver opponent into a
disadvantageous position
o Political action
o Economic warfare
o Network or cyber-warfare
o Terrorism

 Secretary of State Colin Powell:
 Would “reverse a century of U.S. policy and practice in supporting the
Geneva Conventions and (thereby) undermine protections of law of war
for our troops, both in this specific conflict and in general.”
 18 U.S. Code §§2340 and 2340A: Criminalize use of torture, applies both
within and without territory of U.S.
 John Yoo and Jay S. Bybee: President’s Article II powers as CinC.
2004: Jack Goldsmith withdrew the Yoo-Bybee series of memoranda
 Resigned in protest over issue of use of torture during interrogations.
January 22, 2009: President Barack Obama issued Executive Order 13491
 Abandoned legal basis in Bush administration memoranda on subject
Defeating Terrorism

2001: USA PATRIOT Act
 Broad legal authorities to combat terrorism
o Streamlined procedures to conduct specific types of intelligence
collection activities
2004: Intelligence Reform and Terror Prevention Act (IRTPA),
 Reform and restructure the U.S. Intelligence Community (DNI)
2006: Military Commissions Act (MCA)
 Passed in wake of Supreme Court’s decision in Hamdan v. Rumsfeld,
o “Trial by military commission for violations of the law of war."
o Sought to deprive Courts from accepting habeas corpus petitions
from detainees who had been deemed “enemy combatants.”
2008: Supreme Court ruled MCA unconstitutional
 Unconstitutional restrictions on detainee seeking to invoke their rights
 Detainees had right to habeas corpus to petition the Federal courts
2009: Congress addressed flaws found by Court in Boumediene decision
Defeating Terrorism

 1947: The National Security Act.
 Created United States Air Force,
 Re-organized the War Department into the D.O.D
 Created National Security Council (NSC)
 Created Central Intelligence Agency
o Director of Central Intelligence had nearly plenary control over
U.S. Intelligence Community.
President Truman: Concerned about a permanent intelligence structure
 Gestapo and Soviet Union’s NKVD
 Congress: Cold War environment significant trust of Intelligence and
national security communities.
 1968: Title III Omnibus Crime and Control and Safe Streets Act
prohibitions against wiretaps did not apply to entire Federal government
 Government’s interception of communications in connection with
foreign intelligence or terrorism was completely unregulated
Defeating Terrorism

1978: Foreign Intelligence Surveillance Act (FISA)
 FISA created judicial oversight to national security ops inside U.S.
o Judges, review applications for warrants to conduct national
security missions that might involve “United States persons.”
1981: Executive Order (E.O.) 12333, “United States Intelligence Activities.”
 Timely and accurate information about activities … of foreign powers,
organizations, and persons is essential to national security of the U.S.
 Intelligence community required to provide for Congressional oversight
of intelligence activities
FISA: Created a false dichotomy between national security missions and LEO’s
 Created situation where information gathered in course of a
national security mission was “tainted” and could not be used in the
law enforcement and prosecution process
Defeating Terrorism

 9/11/2001: Internal processes prevented information
sharing between agencies and law enforcement entities
2006: Congress passed PATRIOT re-Authorization and Improvement Act
 Created within Department of Justice a National Security Division
2007: Protect America Act (PAA)
 Encompass surveillance directed at person located outside of the U.S.
o No requirement to obtain a warrant from FISA Court
o PAA expired 195 days after President signed into law
2008: FISA Amendments Act
 Protection for corporations cooperating with Federal government
o National security exception to general ban on wiretaps
o Authorized surveillance and collection against U.S. person outside
the US, without a FISA warrant for up to one week.
2012: President Obama extended above provisions of FISA Amend until 2017
Defeating Terrorism

2012-2013 ©James L. Feldkamp. All rights reserved
Counter-Terrorism
The Diplomacy of Counterterrorism:
Lessons’ Learned, Ignored and Disputed
 Consistent long term steps against phenomenon of terrorism
 Multifaceted policy includes:
o Political
o Legal
o Diplomatic
o Economic
o Military elements
 Realistic expectations:
 LEO techniques
 States to combine their efforts (interests)
 Appropriate use of military force
 Trends: Globalization of terrorist threat:
 Twice as many people died in IT attacks in second half of nineties than
in first half, even though total number of incidents had declined.
 Budget increased from $6 Billion in 1998 to $9.7 Billion in 2001 (40%)

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 Middle East continues to be locus of most terrorist activity
 Central/South Asia, Balkans and Caucasus growing in significance
Internet: Increased global reach for recruitment / coordination of operations
 Breakdown of barriers between countries removed traditional means to
track movements of known criminals
 Globalization: Challenge, or opportunity for improved cross border
and transcontinental cooperation
 Terrorism is always a dependent variable
o Resurgence of hostage taking
o Specter of chemical, biological, radiological, and nuclear attacks
o Politically motivated terrorists (aren't’ they all ?)
o Open ended religious or apocryphal aims
o Terrorists: unprecedented capability and access to means of attack
Counter-Terrorism

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 Terrorism has nowhere been a strategic success (?: Irgun)
 OK Bomb splintered radical anti-federal government organizations
o Widespread revulsion at methods among groups that they
purported to attract or serve
Major terrorist successes, rather than leading to a growing political momentum
supportive of a cause, could sow seeds of fragmentation and counter-reaction
 Lessons learned (effective): Stealthy, incremental, pragmatic, defensive
 Cost of disruption & defense greater than cost of opportunistic attacks
 Threat evolved more quickly than US political & budgetary response
o Counter – Terrorism is reactive:
• Skyjackings in the 1960
• Hostage taking in the 60-70’s
• US focus on state sponsored in the 1970’s
• Physical security in the 1980’s
Counter-Terrorism

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 Areas of focus:
1. LEO techniques
2. Military responses
 Dealing with terrorist’s complex political motivation or fanaticisms
 Just and unjust motivations; Legitimate and illegitimate concessions
 Worthy and unworthy political causes…..there can be no progress
toward SOCIAL JUSTICE in an atmosphere of violence and insecurity
 Legal inflexibility prevents kinds of concessions that are necessary in
short run to negotiate a longer term solutions
 Military: Only way to dramatically pre-empt and disrupt plots
o Attack terrorist’s assets with speed and flexibility
o Military force is rarely successful at stopping terrorism over time,
since it tends to drive existing groups even further underground
Counter-Terrorism

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 Unilateral action: Results can be an overall increase in
political sympathy for terrorist or their cause
 Terrorism is a tactic, a means, not an end in itself
 Sustained military campaign and law enforcement best way to build
foundation of international cooperation over time
o Multifaceted campaign: Social, economic, legal, and political
o 20th century bureaucracies must be replaced
 Public attention rises as events occur:
 America’s penchant for publicity presents problems for partners
o Feinstein's report on torture, camps, financing exposed secrets
 Proclamation of international cooperation often hurts it, and is
opportunistic
 Leaks endanger sources
o NYT exposure of “Terrorist Finance Tracking Program” (TFTP).
Counter-Terrorism

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 International partners become wary of sharing information
with US, which hampers joint efforts to defeat common threats
 High profile target presented by US also deters potential partners from
opening themselves by association to new terrorist threats
 Balance, breadth and long term consistency in approach to CT
 Shore up international coalition to anticipate, prevent and deter attacks
not just react to them
 Long term struggle not susceptible to a quick fix
 US should work to enhance international and bilateral cooperation
Counter-Terrorism

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Defeating Terrorism
Understanding and Defeating Al Qaeda
 Seminal Strategists of Holy War in the Modern Islamic World
1. Abdullah Azzam
2. Sayyid Qutb
3. Ayman al Zawahiri
4. Brigadier S. K. Malik
1979: Momentous year between West and Muslim worlds
1. Witnessed the establishment of a theocratic dictatorship in Iran
2. Extremists set siege to the Grand Mosque in Mecca, to “cleanse”
holiest sites in Islam from the influence of the apostate House of Saud
3. USSR invaded Afghanistan

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 Abdullah Azzam: Mentor to Osama bin Laden
 Wrote fatwa, holy war was fard ayn – an individual obligation
-believers need no permission to self-mobilize
 Created Maktab al Khidamat (MAK), Afghan Services Bureau in 1984
o MAK would later become al Qaeda
 Portray Holy War: War of freedom-loving guerillas vs. despotic Kremlin
 Built coalition with Saudi’s who wanted to spread their puritanical
Wahabbi version of Islam beyond Arabian Peninsula
 Involved Pakistan’s military, and Inter-Services Intelligence (ISI)
o Islamabad convinced Washington that it should be middle-man
providing American and Saudi assets to the Mujahedeen
 Azzam and UBL: Part of much smaller Arab Mujahedeen force and
never in direct contact with US assets
 CIA and BND reports placed the number of MAK fighters at 50,000
Defeating Terrorism

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Defeating Terrorism
 Qutb: Milestones:
 Muslim world lost its preeminent position and the godless infidel
nation of the United States must be destroyed in order to rid the world
of jahilliyyah, or “pagan ignorance of Allah”
o Reestablishment of the theocratic empire “Caliphate”
o Most powerful weapon is holy war, or Jihad
o Belief that Islam is not to be understood as just a religion, but
Instead as a “revolutionary party,” with mission to mobilize the
masses and capture global power

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Defeating Terrorism
 Ayman al Zawahiri, MD
 Member of the Muslim Brotherhood (MB)
 Became one of the leaders of Egyptian Islamic Jihad (EIJ)
o UBL’s puritanical Wahabbi melded with Zawahiri’s MB ideology
o MAK: Changed into al-Qaeda with UBL CEO, and Zawahiri as deputy
 Knights Under the Prophet’s Banner (Warriors Under Flag of Mohammad)
 Islam must rejuvenate itself with an assault on all that is unIslamic
 Uses example of Mujahedeen victory in Afghanistan to illustrate that
holy warriors of Islam are capable of defeating a superpower

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Defeating Terrorism
 Brigadier S. K. Malik: Wrote Quranic Concept of War
 Greatest ideological and strategic thinker to Global Jihad
Clausewitz: War is “continuation of politics with an admixture of different
means.”
Malik reverses centuries of warfare perception with Quranic Concept of War
1. Instead war is to only serve one purpose
o Realization of Allah’s sovereignty here on Earth
2. Multiple centers-of-gravity in war are also fallacious, as is
insistence that the concept of refers to physical targets
o Only one C-o-G: the soul of your enemy
3. Only target that matters is the faith system of the infidel
o Most effective weapon in war is terror

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Defeating Terrorism
 Dr. Thomas A. Marks; two schools of insurgent thought
1. Che Guevara (labeled focoist)
 Enemy is targeted by insurgent leader through a catalytic dynamic
o Leader inspires people to follow him to challenge the
oppressive regime through his own deeds and example
2. Mao Tse Tung (people’s war school of insurgency)
 Insurgents grows through violent and non-violent means
o Build “mass-base” of support and “counter-state,” to challenge
existing state head-on
 Che: Ended up on all the T-shirts and dead at age 39. A LOSER!
 Mao: Died in his own bed an old man
 1st Chairman of the Communist Party of China

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Defeating Terrorism
 Kuwait in 1990: Invaded by Saddam Hussein
 UBL approached King of Saudi Arabia to offer services
 UBL evolved from guerilla jihadist to a terrorist jihadist
o Railed openly against the House of Saud (stripped of Saudi citizenship)
 UBL redefined modern Jihad to mean attack of civilians on foreign soil,
vice the 1980s guerrilla warfare against the USSR.
Failure of the WTC attack of 1993 –came al Qaeda’s international campaign of terror:
• 1993: First World Trade Center attack
• 1994: Bojinka plot in the Philippines
• 1998: U.S. embassies in East Africa
• 2000: USS Cole of the port of Aden
• September 11th 2001
• 2001: November Shoe bomber plot
• 2002: al Qaeda executed the Bali bombings
• 2004: Madrid and Khobar Towers attacks
• 2005: 7/7 attacks in London, Sharm el-Sheikh and Amman, Jordan
• 2009: Christmas Day attempted attack on Northwest flight 253
• 2010: Cargo plane
• 2011: Benghazi

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Defeating Terrorism
 Al Qaeda: Can’t out-do the mass-casualty attack of 9/11
 Scouts for operatives in the U.S. with U.S. citizenship
o Faisal Shahzad: Times Square bomber
o Major Nidal Hasan: Fort Hood shooter
• Boston marathon attacks too fall under this new strategy
 Key to new approach was a systematic radicalization system
 Talent-spotters identify potential operatives (often in mosques)
 Assist in absorption into the ideological world of the Jihad
 Facilitate their “weaponization”
 Religiously sanction their deployment as suicide terrorists
 UBL very focoist, or Guevarist understanding of unconventional warfare.
 September 11th: Meant to function as global trigger for Ummah to
rise up and follow bin Laden

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Defeating Terrorism
 Jihadi community is a learning organism
 Less direct kinetic attacks but by building schools and
clinics wins hearts and minds (e.g. Hamas and Hizballah )
 Support structures for counter-state, which Mao saw as indispensable
to victory using indirect approach.
Arab Spring: Rejection of authoritarian regimes to new political structures
which favored puritanical Muslim Brotherhood interpretations of Islamic law
 Cold War: War more ideological than it was kinetic
 Must relearn lessons and apply today without stultifying effect of P.C.
 We need to understand what the enemy fights for, not just how he fights
 Sun Tsu: “Tactics without strategy is merely the noise before defeat.”

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Defeating Terrorism
“Reflecting on Terror after Charlie Hebdo.
What Now?”
 Abu Mohamed al-Adnani praised
 Paris attacks
 Sydney siege
 Failed plot in Belgium
 Gunman who shot soldier at Canada’s War memorial before attacking
parliament
 Is violence the only way forward for Islam; Is democracy irrelevant
and every non-Muslim, and even many Muslims, legitimate targets?
 Much less random and more targeted than media would have us
believe?
 New vs. Old Terrorism
 Visual images are not particularly aimed at indigenous population of
“western” countries, but at potentially radicalizable young people in the
Islamic world

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Defeating Terrorism
“Reflecting on Terror after Charlie Hebdo.
What Now?”
 Cherif and Said Kouachi: Attacks not random (police officers, journalists,
Jewish supermarket)
 Kouachi brothers fell off police radar because they had originally been
pretty criminal and appeared to have returned to old habits
 Terrorist cells in the west have been ordered to be self-financing and
crime is an acceptable means for fund raising.
 Week of the Charlie Hebdo murders:
 Boko Haram: Killed 2000 people in a massacre in Borno province
 Yemeni government given into Houthi Shia tribesmen,
 Syria, Iraq, Libya in flames
o Symbolic attacks are replaced by more spontaneous acts of revenge
o May break up quickly - but the break up will be bloody

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 Counterterrorism: Law-enforcement vs. National security matter?
 Obama administration: Decided to make criminal justice system
America’s default response to terrorism
 Protecting defendant’s rights, is central imperative in all proceedings
in criminal justice system
 Detainee as an unlawful enemy combatant:
 Prisoner of war: Targeted civilians you have not complied with
law-of-war requirements ; ergo not be protected by Geneva Conventions
o Don’t content ourselves with “name, rank and serial numbers”
o We should hold him for an extensive period of time, make him feel
helpless and dependent, and pressure him to tell us what he knows.
 Lawyers advice….plea bargain.
Enemies, Not Defendants:
Let the Law of War Meet the War on Terror
Defeating Terrorism

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 Ex Parte Quirin
 FDR ignored ruling which Justices tried to interfere
w/ CinC’s treatment of Nazi saboteurs capture in N.Y .and Chicago
 Constitution makes:
 Political branches responsible for conduct of War
 Curts have no role in war under the Constitution
o Usurp because political branches have been too craven to stand up
Criminal trail: Presumed innocent.
 Jose Padilla (aka: dirty bomber)
 Yaser Esam Hamdi: Apprehended overseas in battlefield circumstances
 Ali Saleh Kahlah al-Marri: Arrested in the US in December 2001
(2009 indicted and pleaded guilty)
Enemies, Not Defendants…
Defeating Terrorism

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 What techniques do President, Congress, and American people want the
intelligence community to use?
 Are we prepared to redefine or stretch the ethical limits of behavior?
 Willing to relinquish some of individual rights in the interest of
safety for all U.S. citizens?
 Historical Aversion
 Considered immoral, dishonorable & inconsistent with free society
 Back in the day spying was considered disreputable and ungentlemanly
o Captain Nathan Hale “any kind of services necessary to the public
good becomes honorable by being necessary.”
 Latin maxim: “necessity has no law”? Is any kind of service permissible
if it serves the public interest and who determines what is necessary?
Intelligence and the War on Terror:
How Dirty are We Willing to Get Our Hands?
Defeating Terrorism

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 1947 DoD act OSS = CIA (American Gestapo)
 Doolittle Report: “There are no rules in such a game….”
 Communism replaced by Terrorism:
 Facing external threat are we are more open to “dirty tricks?”
 When do we betray values we are fighting so hard to defend?
o What will be the moral costs of our victory?
 New Rules for a New Game?
 9/11 Cheney “vital for us to use any means at our disposal…
achieve our objective.”
 US intelligence has been under a magnifying glass: second guessed at
every turn. Criticized in Congress and lambasted by press
 Public has no need to know about specific operations or sensitive
sources and methods -They should know what our moral parameters are
Defeating Terrorism

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 Recent movies paint inaccurate picture
 Debate on morality of spying with so many misconceptions to overcome
 Second, spying has become increasingly politicized
 Professor.…making a basic and fatal error by even examining the topic
 “By posing these questions you are making the erroneous assumptions
that anything the CIA could EVER do could ever be moral. The CIA is a
fundamentally immoral institution supporting a fundamentally
immoral government.”
 Rules: Congress and the executive branch should make the rules
 Politicians unwilling to put their names on documents, laws or orders
that could be construed by political opponents as stretching moral
limits
 Often our intelligence personnel have been left with ambiguity, uncertainty,
and even potential criminal liability.
Defeating Terrorism

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 Risk avers and self restrained- not a good way to win
 Intelligence should know where the line is!
 Congress must act to provide the boundaries
 Moral aspects of spying. Assassinations, torture, rendition and electronic
eavesdropping and subtler moral issues.
Case Studies:
 Combating terrorism at its source by addressing the scourges of poverty,
discrimination and disenfranchisement
 US has a war to fight – we cannot wait until we have won over hearts
and minds of our adversaries
 Intelligence: Unlike military colleagues, lack detailed rules of
engagement, standing orders, and international conventions to
define limits of behavior
Defeating Terrorism

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Defeating Terrorism
A Nasty Business
 “Good” police work against terrorists has necessity to
involve nasty and brutish means
The Battle of Algiers (circa 1966) !
 French colonial rule in Algeria vs. National Liberation Front (FLN)
 Do the ends justify the means?
o Tactically the program was effective but actively encouraged
widespread human- rights abuses, including torture
o Victory depends on the acquisition of intelligence
“Do the innocent [That is, next victims of terrorist attacks] deserve more
protection than the guilty?”
 Quest for timely intelligence will U.S. do bad things - resorting to measures
that we would never have contemplated in a less exigent situation?
 (FBI. e.g. baby in a box, or Ahmed with a nuke!) Ethical Dilemma?

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 The Battle of Algiers:
 Tactically right, strategically wrong!
o Brutality drove Algerian Muslim community into arms of
the FLN, swelling organization's ranks and increasing its support
o Army’s achievement in city was therefore bought at cost of
eventual political defeat…..five years after victory-France withdrew
 LTTE-Tamil Tigers:
 “Thomas” (aka the Terminator)
o “Terrorism can only be fought by thoroughly “terrorizing” the
Terrorists.”
(e.g. bomb-murdered one terrorist, got information to defuse bomb
** “There are not good people and bad people” … “Only good circumstances
and bad circumstances. Sometimes in bad circumstances good people
have to do bad things.”
Defeating Terrorism
A Nasty Business

Back up slides

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 Moscow has always been the jihadist preferable objective.
 Jihadist strikes in Russia has been the result of two major developments:
1. Rejuvenation of training and infrastructure on Duran line along Afghanistan-
Pakistan
2. Expansion of jihadist Jamaat system in North Caucasus due to reopening of
supply lines via Georgia
Key commanders involved in anti-Russia operations are
1. Abu-Hanifah: Bosnians and Chechens (Mujahedin from the Caucasus)
2. Abu-Akash: Commands Uzbeks, Tajiks and other Central Asians
3. Abu-Nasir: Commands the Uighurs and Pakistanis
 Master plan: Pincer offensive launched from Caucasus and Afghanistan;
converging at heart of Central Asia then surging northwards into heart of Russia
The Moscow Bombing
Counter-Terrorism

Anzor Astemirov
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 Declared objective of this master plan:
 Establishment of the Islamic Emirate of Khorasan
o Encompassing central Asian republics, north part of Afghanistan,
Pakistan and Iran
 Tbilisi: Exploit jihadist terrorism to hit Russian pipelines and hope of ensnaring
U.S. into actively supporting a confrontation with Russia
 Wanted the jihadists to conduct “acts of sabotage to blow up railway tracks,
electricity lines and energy pipelines to divert pipeline construction back to
Georgian territory
 Emirate of the Caucasus emboldened Chechen jihadist leader Dokka Umarov to
unleash a new wave of terrorism at the heart of Russia….WHY?
The Moscow Bombing
Counter-Terrorism

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 March 2, 2010: Killed Said Buryatsky (aka Alexander Tikhomirove) trained under
the militant wing of the Muslim Brotherhood.
 March 17, 2010: Killed Arab Abu Khaled. – operating under believe that Umarov
was to be there….nice Intel.
 March 21, 2010: Killed Akhmadov
 March 24, 2010: Killed Anzor Astemirov (aka Emir Sayfullah) head of the Sharia
court of the Caucasus Emirate.
 Only 7 of 30 Black Widows are known dead:
 2 died March 29th, 2010
 2 died in Kizlyar on March 31, 2010
 19 unaccounted
The Moscow Bombing
Counter-Terrorism
Said Buryatsky

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Defeating Terrorism
Deterring and Dissuading
Nuclear Terrorism
Terrorist group may become nuclear-armed in primarily two ways.
1. May buy or steal a nuclear weapon that has fallen out of state control
2. Build an improvised nuclear device after acquiring necessary material to do so
Underlying tenant of nuclear deterrence theory
 Credible and overwhelming force of using nukes
 US policy: As long as nukes exist the U.S. will sustain a safe, secure and
effective nuclear arsenal both to deter and assure
 Most conflicts and crises are determined by the “attitudes’ expectations,
perceptions, and behavior of antagonists”
Law of armed conflict
 Customary international law
 International treaty law

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 Lawful targeting is based on three assumptions
1. Belligerence rights to injure the enemy are not unlimited
2. Launching attacks against civilian populations is prohibited
3. Combatants must distinguish from non-combatants spare non-combatants
injury as much as possible
 Places of worship, schools, etc., lose protective status if used to support military acts
 Military response should not exceed force needed to accomplish the objective
 Deterrence is ineffective against terrorist leadership, since a credible US
response following an act of nuclear terrorism may not be viable
 Terrorists are unlawful combatants
 Not authorized by government: nonstate terrorist fall in this category
 Consequently they may be killed, captured or be tried as war criminals
Defeating Terrorism
Nuclear Terrorism

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U.S. must adapt by holding at risk those objects the terrorist value most.
 Targets could include places holding special religious or cultural significance.
 Cause terrorists leadership to determine such an act will fail at achieving desired
objectives and therefore won’t pursue a nuclear option.
 Strategy of prevention should use both military and nonmilitary approaches
 Military necessity are considered a nuke response would still be a viable option
 If Al Qaeda believes the U.S. would seek them out, threaten their survival, they
might be deterred from employing a nuke or improvised nuclear device
Hold “fully accountable” states that enables terrorist to obtain, or facilitate the use nukes
against U.S. or its interest
 Response may include a nuclear option
 Strategy to cause countries or adversaries from initiating military actions
Defeating Terrorism
Nuclear Terrorism

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Dissuasion activities must occur before a threat manifests itself “shaping activities”
 Works outside the potential threat of military action
 Seeks to convey the futility of using or proliferating nukes or nuclear material
 4 Aspects:
o Interdiction
o Consequence management
o Nuclear forensics
o Monetary interception
Leaders of most terrorist organizations including Al Qaeda are rational and function
strategically - they can in fact be deterred to some degree.
Defeating Terrorism
Nuclear Terrorism

Lecture 10 defeating terrorism

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