Terrorism - Harvard Law School · Web viewFreud: role of personality development as crucial motive behind individual decisions; particular terrorist seem to motivated by revenge for

Terrorism

What is terrorism?– The term is used very loosely, need to clarify to study it. One universal tenet is that it

is pejorative. – 7 crucial characteristics according to Richardson:

o 1) Politically inspired o 2) Act is violent (cyberterrorism problematic?) o 3) About communicating a message, not violent for the sake of violence,

convey a political message, a megaphoneo 4) Act and victim have symbolic significance o 5) Non-state actor (controversial), substate groups, states can use and

sponsor terrorism o 6) Victim and the target of the message are not usually the same o 7) deliberate targeting of non-combatants

Who are non-combatant? Were the Marines in Beirut victims of terrorism?

Our government’s position is that killing of soldiers, irrespective of their condition, was terrorism

Moral equivalence of Hiroshima to 9/11: Bin Laden’s point. What if the combat is not just military but economic? Is a trader

more of combatant in this context than a sleeping soldier? – Arguing that aims of the group are irrelevant. Arafat: no terrorism for just cause.

Hardest case: ANC in South Africa. Richardson argues that it is the means not the ends?

– Political context, ETA: When Franco was overthrown, did ETA change from non-terrorist to terrorist? They were the same group, using the same means to the same ends.

– Is terrorism ever justified? Gradations of morality? – Need a definition to get international cooperation on the issue? – State department defines terrorism as “premeditated, politically motivated violence

targeted against non-combatants by sub-national groups usually tend to influence an audience.” Includes military personnel not on active duty.

– Violence is rational in that it does achieve ends, there are 2nd tier objectives that terrorism does often succeed, maybe not the ultimate political goal

– The underlying goals vary group-by-group– Most common motivations:

o Desire for revenge (some humiliation or injustice) o Publicity (killing of Israeli Olympic team) o Release of comrades (despite public denials, most governments will

negotiate) o Causing disorder, undermine the myth that state can protect individuals o Provoke the government to forcefully retaliate, alienating the public,

creating more recruits o Show of strength, after the capture of leader, etc.

o Internal dynamics of organization, like any other organization – What about Chechens/FARC, is it a state because it controls and governs a significant

amount of territory? Insurgency v. terrorist? – An idea that all Islamic groups are part of a state?– Terrorism as a tactic, hard to accept this conversion.– State sponsorship:

o At one point, Cuba was on the list but no Afghanistan, Pakistan o One extreme is Pan-Am flight 103, actually dispatching security services

to commit the act, then close government ties, next government provides $, training facilities (Iran, Syria, Iraq), also situation where there is just pure $ (Libya funding IRA, but had no idea what their goals were, just to avenge Reagan/Thatcher bombing of Tripoli killing Kadafi’s 3yr-old son)

– How does WMD change the definition of terrorism? i.e. is the total destruction of a people a political goal?

– Definition for the course, treaty, statute – purposes of prosecution (the two will not always overlap).

History– Three most important precursors to modern terrorism

o Zealots Siccari Politically motivated – to remove Romans from Palestine, targeted

Romans and Jewish collaborators (killings were so widespread they appeared untargeted)

They would wait for big events and assassinate a figure Succeeded in creating a revolt, but the revolt itself was not

successful Most modern terrorist say they are acting on behalf of people,

wanting to inspire them to rise up (similar to Siccari) They also understood the need for mass publicity What set them apart was their zealotry, burn their own food supply

in order to display trust/devotion of protection of God o Assassins

Medieval, 11th-13th century Similar to Siccari, would stab people in public place, wanting a

larger audience and sympathy Inspired by purifying Islam Mixture of religious/political terrorism (prior to French revolution,

every terrorist group had this mix) Culture of martyrdom (would wait for the crowd to kill them after

they killed); accused of being on hashish (where the word assassin comes from).

Managed to last for two hundred years o Thugs

Lasted 600 years Dedicated to the goddess Kali

Only kill, non-European travelers, that they had befriended, not shedding their blood, and the slower the more painful the death the more impressed they thought Kali would be

The Tokyo sarin gas group leader was also a follower of Kali, note: they targeted travelers and by not shedding blood

– French Revolutiono Goal: establish a universal tendency towards “the good”o Initially only aimed at aristocrats, but widened as the conflict went on o The notion of the killers as the self-appointed guardians as the good of the

people that is seen in modern terrorists is seen hereo Also: it launched the ideologically side of politics, modern politics is

ideologically which is distinct from previous forms of politicso New Assumptions:

It is within man’s ability to dramatically change society (this is a new idea)

Man is naturally good; remove the structure you remove the evil Political violence is respectable, even admirable

– 1848o Collapse of revolutionaries through the world o Blanque conclusion: mass spontaneity does not work, it has to be military

in nature o Carl Heinzen: AUthorites were to ruthless, too powerful for a revolution to

place, revolutionaries should use murder – technology could empower small groups

o Marx & Engles: Lesson – further prepare the proletariat for revolutionaries end, argued that even revolutionaries must act like solidiers (engels), marx rejected terrorism altogether – didn’t want to destroy government, just take it over.

o Bakum: aristocratic bored by inaction, goal to seize power by terrorist means, he believed violence could destroy governmental institutions (transformation of masses acting to small groups acting)

– Russian Anarchists and Irish Nationalistso Have the elitist self-confidence, thought they knew what the people want o 20th century developments:

Increasingly barbarism of terrorist Related to increasing barbaric nature of wars between

states? New significance due to spread of political ideology Social and technological changes, the means and the impact

available to terrorist Mass communication (murder or Israeli Olympic team)

This has all led to increasing isolation of terrorist – 20th Centrury – Lenin, Mao, Che

o Lenin – importance of capturing the urban elite, again idea that small groups could do much to further the cause

o Mao – demonstrated maintaining support of local, appreciating the influence of violence, he pushed for very selective use of force, he thought of violence not only against those who it was directed

o Che – he thought you should wait until conditions are right, 3 stages of revolution: 1) Small group successfully Defend against armies 2) Forces would equalize 3) Popular Army would form

o Carlos Morighella – realized that you couldn’t start a revolution in the jungles any more; developed the idea of the urban guerilla – question is what you do once inside the city; what do you target? This led to symbolic targets, but these were well protected. His answer was hit whoever you could hit. Deliberate provocation to win over people to the guerilla side. Boradening category of the enemy of the people. Transformation of rural revolutionary to urban guerilla, what we recognize as the modern terrorist.

Theories of Terrorism– Very sparse theoretical literature– Terrorist are extraordinary diverse, terroists groups are usually small so it is hard to

develop macro-theories: if poverty causes terrorism, why isn’t there terrorism in Africa?

– Psychological theorieso Why are the only species that commit mass murder?o Lorenz: human aggression is an natural instinct, harmful to repress it o Skinner/Pavolv; man is hedonistic machine adapting to hostile

environment, could manipulate human behavior to maximize pleasure, this theory seems so determinate

o Freud: role of personality development as crucial motive behind individual decisions; particular terrorist seem to motivated by revenge for someone identified with, also want terrorist to identify with victims to exert influence

– Organizational theorieso Hard to get info on these theories, cell like structures are more difficult to

infiltrate; small units who only know each other except the leader knows one more person in another cell

o Terrorism as a Military strategy; states can use to avert the risk of direct conflict also a good strategy for the weak, but the strong can use it as well

– Sociologicalo Theory of Relative Deprivation, based on the book “Why Men Rebel,” is

there a link between poverty and terrorism? It is more complicated, it is not your absolute deprivation but your relative depravation compared with people you identify with. In societies where people’s expectations have risen faster than the societies can meet. Refugee camps in Palestine, etc.

– Think about the theories that people are carrying in their headso Psychological: good for why individuals joined o Organizational: why people stayo Military: As a military strategy

o Sociological: Why societies produce terrorism Insert Adam notes

Battle of Algiers:– Who won? Does terrorism work? Depends on when you ask the question– Types of terrorism

o Nationalisto Social revolutionaryo Maoisto Religious

– Nationalists movements have lasted the longest, fighting for control of territory, it occurs all over the world (social revolutionary happen in rich countries, maoist in poor countries); goals are usually widely shared and they also offer a very specific solution

o Targets: political authority, security forces, members of the dominant ethnic groups, foreigners, “collaborators,”

o Social background: generally rise among communities that have done well,

o Creation of political parties can often end the proliferation of the terrorist; usually an inverse relationship between the 2 level of support

o Generally well funded from same ethnic groups abroad and sympathetic governments

o Not usually willing to accept compromise solutions – Social Revolutionary Movements

o Mostly limited to industrial countries o Replacing capitalism with another social system (classless society)o Violence necessary and wholesomeo Very hard to find them now, mostly a product of 1970’s (called

euroterrorism) o Driven by ideology rather than territory (analogous role to religion) o Ideology:

Marxist, any movement creates its antithesis Capitalism is the root cause of all the problems of the working

class Capitalism can only be displaced by force Proleteriat did not possess the necessary revolutionary

consciousness, they believe consumer economy was a narcotic, up to the small groups to inspire the uprising

Spark had to come from outside the masses Both capitalism and imperialism were in crisis Also children of privilege, university students

o Reason for the rise Spiritual void in Europe; demise of religion, family, patriotism,

etc.

Unrealized expectations of post-war era, defeating fascism did not bring about peace and justice, science did not eliminate famine; prospect of nuclear

Alienation of the rapid speed of change Anti-US feeling (Vietnam war)

o Social Revolutionary movements tended to be very ephemeralo Weather Underground: detsory American liberalism and classless society;

symbanese liberation army also; both much smaller than European groups o Live very isolated lives, believe they are part of mass international

movemento The leaders often were political science profs who would issue detailed,

specific manifestoso Almost exclusively in the citieso Targets

High profile business, political targets Reveal fascist tendencies of the state

o Are there lessons to apply to religious groups? o U.S. never experienced a social revolution, we have never developed the

extremes that Europeans have – Maoist

o Mostly in Latin America, now there is one in Nepal, shining path is the most famous one

o Maoism is template for revolution, little focus on what the new society would look like

o Mostly emerged from countryside and then moved into the citieso Most common in Latin America, cultural – politics pretty violent,

economic conditionso Leaderships is educated, but followship tended to not beo Universities again played a key role o Shining Path emerged in a very isolated region,o Social revolutionaries mostly formed in urban areas o Capturing Guzman completely decapitated the movement (they cut a deal

with him) o Final figure: 20,000 casualties (maybe more?)

Palestinian Guest Lecturer– Systematic Terrorism v. Spontaneous Terrorism – Spontaneous terrorism: personal circumstances, with no specific end in mind, the act

is sufficient– Systemtic terrorism: more likely a group, interested in the end, and also interested in

self-preservation to experience the end victory – Achieving a total transform the situation v. change in the balance in the power

relationship so you can achieve a better negotiating position

– Increase the power of Palestinian negotiating position v. make negotiation completely impossible

– Is there an absence/impossible point of balance? – The problem with use of force, is that there is problem of diminishing return, the

more force you use, the less amount that each bit of new force will have an effect – Groups need local support: Hamas it has been proven, to the extent it feels that the

population at large is against terrorism, it will reduce its act of terrorism – To the extent that there is verifiable hope, the less terrorism there will be, not hope by

itself but verifiable hope – Free from the inside in order to be free outside – Hamas provides a lot social services – Israelis and Palestinian are Siamese twins – No one can agree on the past, but it is more possible to agree on a future– Ariel Merrari

o Nationalist/ethnic conflicts are very hard to resolve, they last for generations, centuries (irish/british, basque/Spanish and many others)

o Why are they so stubborn? One important reason is that nationalist ethnic conflicts are about intangible and indivisible matters, they have do with pride, vision of history, status of “the nation,” religion, historical hatred, aspirations for the future, they come from the guts not from the head, it is not rational

o Some matters are non-negotiableo Israel-Palestine is probably more difficult than others

Not just two ethnic groups fighting over a piece of land, but there is also religion, culture (even though 50% of israeli’s are from “arab” countries, but for some reason it represents “the west,” western superiority)

History Origins – birth of the Zionist movement, Israel is the

rebirth of the old biblical kingdom of the Jews Jews were expelled from Judea and Samaria by the Romans

in the last of the rebellion The word Palestine is a roman word (Palestina); after

expelling the jews the romans renamed Judea and Samaria Palestina, there were always jews in Palestine but there population was small; the rules of Palestine changed over the years and jews were not allowed to come in big numbers, and most didn’t want to

The Zionist movement started in the late 19th century, it was a movement of the repatriation of Jews to Palestine, to the old Jewish land; it was a spiritual movement behind the ideas of emancipation, etc.; it was also generated by persecution of Jews in western countires especially in Eastern Europe (primarily Russia.)

Palestine was under Ottoman rule, jews started returning, it was national liberation movement by the jews

At the beginning of the movement there were 500,000 arabas and about 55,000 jews.

At the end of 1017, Balfour made a declaration promising the jews a national homeland in Palestine , but no one really quite realized the complexity of the problem of establishing the homeland

There was no Palestinian identity yet, Palestine was not a political identity

All Middle East borders were all part of the ottoman empire, and the current boundaries were determined by English and French (sikes and piccault); these borders not only became sanctified but they also created national identified

The Arab nationalist movement started at the same time as Zionism, part of the air at that time; ethnic groups looking liberation

Palestinian nationalism, as a subset of arab nationalism, was actually prompted by the Balfour declaration because it promised Jews homeland in Palestine and the Arabs there felt specifically threatened, a counter-movement in response to Balfour trying to abort the declaration of Jewish homeland, a lot of lobbying

A series of riots in Palestine by Arabs against Jews, 1919, 1920, 1921, 1929 (Jews living in Hebron were massacred); 1936-1939 Palestinian guerillas carried out attacks against British and jews; also jewish terrorist groups (Stern group, etc.) carried out terrorist attacks against the British;

After WWII, they decided to bring the matter back to UN; in 1947 general assembly adopted a partition plan; the country was to be divided between Jews and Arabs according to existing majorities (there were about 650,000 jews, twice as many Arabs); the Jewish leadership was unhappy but nevertheless accepted the resolution and immediately recognized by the U.S. and Soviet Union, the Palestinian leadership without dissension totally rejected the partition plan; Arab states also rejected the plan and in fact invaded on the day the state was declared (3/15/48); Israel won the war (received arms from Czechs but not U.S.); armistice agreements were signed (not peace agreements) but not Iraq, technically still at a state of war with Israel

After Israel won the war, there were 700,000 palestinian in Israeli areas about 500,000 were either expelled or ran away and after hostitlies stopped the refugees remained in Palestine and other surrounding Arab countries (Jordan controlled West Bank, Egyptian ruled Gaza); refugee

camps created; this related to what should be done with these refugees

No Arab state but Jordan gave Palestinians citizenship and they did because they wanted to incorporate Palestine into Jordan

Westbank (6,000 sq. Km,); Gaza (650 sq. km), Israel 20,000 sq. km.; Tel Aviv is a 10 min drive from the west bank border

The first generation of Palestinians that underwent the war did not do much, there were a few terrorist groups, incursions, etc.; Arab states surrounding Israel refused to make peace to negotiate; they were a couple of wars 1956, Israel invaded the Sinai peninsula after Egypt supported fedayun and blocked Israeli shipping in the starights, there was the 1967 in which Israel occupied the west bank and the gaza strip

Why did it take so long for Palestianians to rise up themselves, PLO started in 1959 and started terrorism 1965; why not a before? There is a theory – twenty year theory – the children of national trauma when they group up they rebel; surges of anarcharism in the 19th century happened in 20 year leaps. We are now preparing the next generation of Palestinian insurgents.

The terrorists starting operating BEFORE the 1967 occupation

Yassir Araft and Fatah took over the PLO in 1968 PLO and Arab States adamantly opposed to negotiate with

Israel In 1974 the arab states adopted the 3 No’s, no negotiation

no recognition, and no peace; so Israel had the terrortories and pretty soon Israeli nationalists started a movement for inhabitating the west bank and the gaza strip

Israeli government first tried to remove, but then acquiesced; when a right wing government was elected settlements expanded in great numbers

PLO during these years opted for an armed struggle intended to bring about the collapse of the state of Israel, based on various doctrines

o Spark theory – Palestinians attack and Israel response expands to a larger Arab-Israeli war

o Inspired by Algeria and Vietnam – a guerilla war, but they soon learned that there were no jungles to hide in Judea and Samaria and the Israeli was able to contain insurgents efficiently; insurgents were in exile in Lebannon, were ultimately expelled by Syria

What led to Oslo in 1993, it wasn’t that all of sudden the Palestinians decided to recognize Israel’s existence nor did the Israeli’s just decide to make peace one day

Both sides were kind of forced to go to the negotiation, despair and a lack of alternatives

After gul war I, the PLO sided with Iraq and were therefore were punished by Saudi Arabia and Kuwait; they lost much of their popularity in the third world; Arafat thought the PLO movement might be at risk of irrelevancy plus they had tried terrorism and insurgency and it didn’t work, non-violent resistance also didn’t work

Israel was tired of being an occupying force, the first infitada (by and large non-violent) changed the israeli’s minds and expressed itself through democracy

When both sides start out the conflict they frame it as an existential matter, but this was re-thought, about 80% of the Israelis including right wing said they were willing to give up gaza, the definition of what is existential because of friction with reality

Why did the Oslo accords fail? The current infitada broke out for several reasons, basic distrust on both sides, good intentions of the other side (public opinion polls are mirror images of each other). 2/3 want peace on both sides and more than 2/3 on each sides don’t trust the other side. There is a lot of bad blood on both sides.

While the peace process WAS GOING ON there were 43 suicide attacks inside Israel, Palestinians were not let in, and the spiral of hatred began again, Hamas was trying to derail the peace process and it did

Also the Israeli government continued to support creation of new settlements, the population doubled during the oslo process a terrible mistake on the part of Israel

The second infitada was not spontaneous, it was orchestrated by Arafat after he was offered 95% of the West Bank plus 5% of Israeli land in compensation; part of Jerusalem and he was offered gradual control of their own borders but the refugee problem remained unsolved, the majority of Palestinians want Israel to allow the 1948 refugees to return to the homes, but for Israel this is the end of the Jewish state. Israel will never allow it and how important for Palestinians?

Signs that people are tiring of violence On Israeli side, there is no carrot that goes with the stick,

Israeli policy does not offer Political hope to Palestinian, and almost same is true of Palestinian policy, as viewed by the Israelis

Thinks that there will be an agreement in the near future Sometimes sense of tiredness is not reflected in opinion

polls Question is long-range, how stable will this agreement be?

Here he is not so optimistic, thinks the conflict might simmer for many years to come, the basic geopolitical figures are not going to change? Arabs will still view Israel as jewish enclave, economically richer, different culture, different politics and as a symbol of western superiority and domination, a constant reminder for Arabs of their glorious past and not so glorious present.

Why men rebel? It is relative depravation; what we were and what are now, and what we are now and what we want to be. And this will not change for a long time.

Much depends on education, changing fundamental attitudes and approach.

– Achille Lauroo Abu Abaaso Options

Rescue Negotiation concessions Stall

o Operation subgroup in charge o What are the concerns/stakes?

Deter future terrorism Not encourage terrorism (show it is profitable thing to do)

Concessions Media coverage Collateral damage Create martyrs

Preserve international law/reputation Preserve Middle East Policy Saving lives Moral superior [Politics] Don’t want to look like a paper tiger Use a trained force Want to peddle our idea of “no negotiations” with hostages U.S. Morale Maintaining NATO Prevent Retaliation

o Same list for Italy Middle East policy Saving lives NATO Prevent Retaliation

o Non-matching set of objectives, likely to go different ways o State Department says it is Abu Abaas, CIA says its Yakub, DIA says it’s

a spinoff of Yakub o Arafat had a no “international terrorism” rule, also had good relations with

both Italy and Egypt o Why might it be Arafat?

It might have been a mistake, this makes the prospect of the negotiations seem good

o Kidnapping v. hostages/barricade o Media, hostages families, other countries o What policies are possible?

One is a flexible policy; concede if necessary, the idea is saving human lives

Official u.s. line is no negotiations, this was announced in 1973, two American diplomats were taken hostage in Khartoum, by Black September took over the Saudi Embassy, demanded Jordan and ISrael would release members of Black September and U.S. would release the assassin of Robert Kennedy

Nixon said we don’t concede to terrorist demands The basic idea is that if you reward terrorism they will do it again Question between these two policies is not moral but practical? Hardline policy does have an effect, if you are terrorist and take

two hostages and demand $10MM and the government says no, what would you do next time? You increase the number of pawns. Government responses do influence terrorist demands, no doubt about it.

Decisionmakers must realize that negotiation with terrorist is fundamentally different than negotiation with commercial kidnappers.

Second, Decisionmakers cannot be exposed to emotions.

Deterence– The central issue in dealing with coping with terrorism – Why have groups been deterred in using WMD up until now? Surprising. – Even in 70’s people were writing about the possibility of terrorists using WMD. – Terrorist adopted dynamite soon after it was invented…– Chemical weapons were used in WWI, Nukes used in WWII – First WMD use was sarin gas attack in Tokyo, killing 12 – Next appearance is anthrax in U.S. – Are terrorists in general unwilling to use WMD?

o Fear of repercussions? Government license to annihilate them. o Breaking of the rules by terrorists would lead to the government breaking

the rules o Is this still true after 9/11? It is probably less true.

o Terrorists have gone nuts with WMD since 9/11. But we know at least that Al Qaeda and affiliated groups there is a genuine interest in utilizing WMD.

o 9/11 was a failure of deterrence – Can terrorism be deterred?

o Are terrorists group rational or irrational? o Deterrence by punishment v. Deterrence by denial o Look at the theories of deterrence

International Relations Deterring states Nuclear confrontation, how can we deter a surprise nuclear

attack on the U.S.? Pretty simple: two states in all or none situation; mutually

assured destruction Also conventional deterrence, can we deter states from

waging conventional war, much more complicated… Very little literature in deterring sub-state groups and

politically motivated sub-state groups It is assumed that the adversary is rational, but if the

adversary is not rational then you can’t really expect what you calculate

Was Hitler rational? How about Qadafi? Sadaam? Another issue is credibility, credibility of the threat of

punishment – credibility of intent and credibility of capability.

Nuclear submarines could annihilate the USSR even if the U.S. was already annihilated

But is the U.S. credible when they say they are capable of getting all terrorists? Evidently not.

Are terrorists rational?o How you deter who someone who wants to die? o Convince them they go to hell not heaven. Alternate

translation of Koran that they get 70 white grapes instead of 70 virgins.

Criminology Deterring individuals General agreement that deterrence does work, punishment

does deter criminals Magnitude of punishment Immediacy of punishment

o Politically motivated groups expect their rewards in the far, far future

o Can you deter people with a very long view? Stigma/Shame with being labeled a criminal is at least as

strong deterrent as the punishment

The Stigma associated with crime, but this does not apply equally to politically-motivated violence, they are not shamed by their action and punishment

o Look at empirical evidence o Differeniate between and within different targets

States Groups Individual Terrorists Individual Sympathizer

o Also differentiate between domestic terrorism and terrorism from abroad Domestic the credibility of intent and capability are 100% Bin Laden called the U.S. is a paper tiger cited

1983 Lebanon 1993 Somalia even if U.S. did wage war in Afghanistan, they would lose

just like the Soviets were, who he claimed was stronger than the U.S. army and the soviet union collapsed as a result

He questions both the credibility of intent and credibility of ability

o Have we been able to deter state sponsorship of terrorism? Military approach

Air strikes on Libyao Was it successful?

It just channeled Libya’s behavior underground

The outsourced terrorism (Japanese) Non-military approach

o Deterrence can either make you stop it or just hide that you did it o U.S. prior to 9/11 viewed terrorism as a crime versus viewing terrorism as

a war o How did U.S. respond to Pan Am bombing, after 3 years got 2 grand jury

indictments o Went to the U.N. passed trade sanctionso Libya finally agreed to have the agents stand trialo And now have agreed to pay reparations o It’s almost as if U.S. indicted Japanese pilots after pearl harbor o Were Israeli strikes effective in deterring terrorists?

Generally speaking, no Strikes create fear AND Hatred

Deterrence only works when fear outweighs hatred Terrorist don’t expect to win in a physical way, they want to

change public policies, it is all about public opinion

o Deterrence message must be communicated when the strikes take place; think about Iraq --- most people receive the message to be American Imperialism

o Public opinion is important on both sides o Israel has used assassinations killing terrorist group operatives, Ariel

thinks it is morally justifiedo Question is whether it deters? It incapacitates but does it deter?o Can we deter suicide bombers?

Not all but we can deter some, they do care about their families and their homes

o Collective punishment? – Domestic Politics of Terrorism

o 72% of Bush supporters think that Iraq had WMDo 75% of Bush supporters think that Iraq was giving significant support to

Al Qaida o 82% of both Bush/Kerry supporters see the Bush as saying as Iraq has

WMD o Only 31% of Bush supporters think that majority opposes the war in Iraq o 57% of Bush supporters think that world would approve Bush’s reelection o 51% of Bush supporters think he support Kyoto, 53% think he support the

ICC – Democracies and Counter-Terrorism

o Are democracies peculiarly suspectible to terrorism and hindered in fighting?

o Democracies suffer 3 times amount terrorist attacks o Gereater protection of civil liberties more terrorismo More TV more terrorism

– Characteristicso Freedom of movement, association, legal system requires evidence of

breaking the law – Counterterrorism

o Terrorism as war (military)o Terrorism as crime

– Dangerso Overreaction

– Overall lesson of Latin American experienceo Keep the political aim firmly in mind, it is not just military threat but a

politically one – Detention – Torture

o Feds define torture severe mental (prolonged mental harm) or physical pain, under the threat of death or torture to yourself or others

o The statute explicitly and only applies extraterritorially

o In Guantanamo, for habeas purposes the government wants to argue that it is not U.S. territory, but is U.S. territory for the purpose of the torture statute

o The statute was enacted under Convention against Torture and Cruelty, but the Senate put in reservations (by torture and cruelty we just mean what is prohibited by the 5th, 8th and 14th amendment)

o Chavez – A guy is shot by the police, and is made a paraplegic, the police lieutenant gets him to confess to provoking the shooting prior to the surgery, two questions: does it violate the 5th amendment and does it violate 14th amendment? Chavez says it is not violation of 5th amendment because it was never used at trial. 8th amendment prohibits cruel and unusual punishment, but is interrogating punishment?

o Considerations Law – International (Geneva Convention, Torture & Cruelty, etc.)

& Domestic 4th Geneva convention has to do with occupied territory Justice department said torture of Al Qaida in Afghanistan,

because the pain needs to cause a collapse of bodily organ, and congress can’t constitutionally impede President’s ability to interrogate in the war zone

National Security - Is it effective? How does it work versus things that are not torture? How much would you pay to take back the Abu Gharib pictures?

Domestic spillover danger to us, legally and politically o Make the list of techniques at a high level

Do we want the list to be public? o Should the president be allowed to override the convention. o What is the damage remedy? o Detention

Sup. Ct. says that Congress has authorized the detention of anyone associated with 9/11 events

Britain has indefinite detention of alien who can’t be deported o Arrest v. Detain

Have to release reason– Cooperation/Diplomacy on Terrorism

o One root cause for lack of cooperation is definition of terrorismo Political offense exemptions to most extradition treatieso Another exemption was for enemies of all governments o An early form of cooperation in international terrorism o Initiatives on counter-terrorism cooperation initiatives spurred by

catastropheo Two conventions on terrorism and ICC, only country to initially ratify was

India o Hijacking conventions (no agreement on definition of terrorism necessary)

just that hijackings and bombing of aviation was a crime

o Very specific conventions have been more successful with universal o Munich did precipitate a debate on a broader ban on international

terrorism o Currently there are twelve multilateral treaties on specific “terrorist”

crimes o Then there are bilateral arrangements; one between U.S. and Cuba, a

hijacking agreement, both governments o Somalia and West Germanyo France and Spain (ETA) o Functional cooperation: State department trains foreign security services

in counter-terrorism o Western Europe countries have faced different types of terrorism

(nationalism v. socialist) o Historical reasons why France will negotiate openly with terrorists o Europe has come closest to forming a regional counterterrorism policy

they only cooperate when they have to (guard their sovereignty) o U.S. was biggest sponsor of terrorism in the 80’s, the contras, in Chileo Big spectrum of what it means for a state to sponsor terrorism (libya

support of IRA o National Security Doctrine

Two unprecedented claims Right to preemption Claim to predominance

– Asset Forfeitureo What happens if you can trace the history of the money.

Can find out the financiers Who is getting the money You can freeze it or seize it, reduce resources of the terrorist

Same tension and strategies as you have whether to detain or follow a suspect

Argument in federal government of what is more important thing to do, no obvious answer

o Charities – Can give money but not know the purpose Material support for terrorism statute (knowingly provides material

support), if the organization on the list (Sec’y of State) Actual v. imputed knowledge Unfair if you just want to support legitimate activities of

terrorist org. Administrative hearing for designation

– Forfeiture Assetso Allow banks to forfeit assets to the government o What type of assets can you forfeit?

Contraband Instrumentalities with which the crime took/taking place

Proceeds of the crimeo Two types of forfeiture

Criminal - Jury determines whether various assets were instrumentalities and proceeds, so part of the criminal verdict is that your estate in the Hamptons is given to the U.S.

Civil - More common type, until recently government could seize any assets they had probable cause that they instrumentalities, proceeds. Now it has changed that feds need to prove by preponderance of the evidence.

If property us overseas split the proceeds with government – Money Laundering Statutes

o Why would you want to make it crime to try to hide the source of the money? Keeping sources hidden. Making a crime to runaway from crime.

o Feds can get crimes they couldn’t usually reach o Crime for banks not to report $10,000 cash deposits (exemptions for

ongoing) Structuring/Smurfing (deposits of $9,992)

– Hiding the criminal history of money is thought to involved 3 stepso Turn cash into another asset (bank account, yacht, house in the hamptons,

house in Ireland) o Keep transferring it to other things in very complicated/complex way (sell

stocks to buy a house to buy a yacht to buy a business)o Get it back to yourself in a non-suspicious way (buy a business and send

you dividends, inheriting) o Banks also requited to file an SAR

– Is it the same problem in terrorism?o We’re not looking for how money was made but what will it be used for. o Trying to identify wealthy individuals, charities, which start out with

money – IAEA

o President has power to freeze assets in national emergency – FATF - 40 recommendations on how to fight money-laundering, had to add 10 other

recommendations when terrorism came along – Banks are suppose to look out for suspicious transactions, the critical part is the bank

detecting irregularities v. Know your customer – Bank is regulated by a whole host of federal regulators – How do you judge whether something is worth the cost or not? – One question on Louis/Ari, on the early part, very broad– One question on recommendation on legal choice deal with terrorism– Domestic Intelligence

o The things we want to know are: 1) who are the terrorists and 2) what are the terrorist plans, we want to learn either one of these (or ideally both)

o There are two groups gathering information The federal government (FBI, but keep out the foreign intelligence

agencies Foreign Intelligence Agencies

Domestic Police force (Homeland security etc.) From these pieces of info, FBI must “connect the dots.”

o Data Mining See handout Terrorist always have killer move of new faces

o FBI need info from Targets of terrorism (buildings, etc.) People who provide resources for terrorists (car rental agencies,

etc.) People who will live among the terrorists, who seek them out for

help/privacy Getting info from these sources requires trust

o The way to bring together FBI and Boston local police together is the “Joint Task Forces,” trading info/suspicions all of which goes to FBI headquarters

o The info between foreign intelligence agencies and FBI, joint FBI-CIA agency call TTIC (Terrorism Target Integration Center)

o Need probable cause for electronic surveillance o Domestically, terrorist are only here for a limited time in U.S., likely to

spend much more time doing their planning, training abroad so foreign intelligence becomes very important

o Strategic intelligence is finding out about the organizational infrastructure, membership makeup, capabilities and procedures

o Tactical Intelligence – probably not getting any tactical info from Guantanamo detainees 3 years after they have been detained

o Before 9/11 the FBI was wildly decentralized and info was collected in case files organized on particular case for particular crime (prosecution-oriented files); only sometimes would pure “intelligence” unrelated to an open investigation, new mandate to change this to “tasking”

o Foreign Intelligence NSA picks up any thing audio Another agency to gather visual intelligence CIA tasked to use human resources

o Traditionally, the people who respond to tasking, these people are kept separate from analysts who come up with intelligence estimates/briefings, the analysts look political science/history professors

Director of Operations is in charge of spying Director of Intelligence is in charge of analysis - involves being

suspicious of all intelligence/sourceso If we want info from abroad we can get info in a variety of ways

Use satellites to take photos Listen into conversations Human sources (local police or intelligence agency)

Moral problem of using foreign intelligence agencies – dubious techniques, the more unpopular the government the more complete security apparatus it is likely to have

o Nothing more important than intelligence and military is not trained for it o Lawyer’s problem in the intelligence o The rules for spying abroad you are always in violation of the law of the

foreign country, sometimes in violation of customary international law (president is authorized to disregard customary int’l law) and never in violation of U.S. law. This came up to the Sup. Ct. in relation to the case of the killing of a DEA agent, we kidnapped the suspect, the Sup. Ct. said no problem and in another case we broke into a house in violation of search and seizure law in Mexico, Sup. Ct. that people with minimal contacts with U.S. enjoy any constitutional protection from searches

o Non-resident aliens get no protections abroad, undoubtedly will violate local laws

o What happens you target a non-U.S. person abroad and you pick up info about an American suspect, which rules apply?

o The other the cia does (which is now being crowded by special ops) is covert ops (tries to mettle with the state of the world without leaving U.S. fingerprints)

o Afghanistan – CIA bought arms in Europe o We gave mujadeen’s American-made SAM’s and turned the tide of the

Soviet Invasion o Targeted killings

We were really bad at killing Fidel (exploding cigar, exploding seashell he was supposed pick up while scuba diving)

Executive order forbidding assignation, we took it very seriously for a while (CIA would support a coup in Panama because it would involve killing Noriega)

Recently Clinton authorized killing Bin Laden, and now certainly can kill al qaida leaders, but this is not an overturning of the executive order but because we are at “war” and can kill enemies

It is unclear whether the ban is for foreign leaders or any extrajudicial killings

Israeli have systemically assassinated Hamas leaders, but doesn’t seem to reduce terrorism

– Organization to address the questionso How do you think about organization o Who are the players and what needs to be done

International UN; NATO Bilateral Law/Treaties & Conventions

National Local Government

Crisis/Consequence management Private Orgs

o Prevention

Only 5 ways (Deterrence, Deny access to resource/targets, intelligence, incapacitate, …)

o Crisis Managemento Consequence Management o Deterrence/Retaliation/Punishment

– Harms & Benefits of multiplicity of organizations o Harms: Duplication; Lack of synergies (sharing info., security); Gaps; lack

of accountability, misallocation of resources o Benefits: specialization; competition

– Reorganization also to give a new emphasis (like Energy/Enviorment, just give a a big boost to a particular policy area); almost impossible to change a policy without a reorganization

o Two new departments: agency dedicated to public diplomacy and one dedicated exclusively to protection against nuclear attack

– DHS, DOD, DOJ/FBI, DOS, CIA, DOTre, DOE, DHHS, how could you coordinate them more closely?

o Pres/VPo WH/Czar (but unless she has budget/hiring& firing power, her authority

won’t be plenary) o Lead Agency o Carter: the whole organization depends on the President/Vp approval

– Intelligenceo Give a single intelligence figure, the power to hire/fire/budget o DOD is saying you are ripping up cooperative relationships between battle

field commanders and DOD intelligence officers o FBI – regards the problem of remaking the FBI into 50% or more an

intelligence org. – Last question

o Important not to create a society where people think they are always being spied on

Keep foreign intelligence agencies abroad Statutorily defined powers Try to set up oversight devices you can trust to deal with secret

agencies (probably congressional)– How to think about issues

o First issue: how much you are willing to pay in a reduction in danger of terrorism (aside: mark off nuclear and biological)

o For the non-nuclear/non-biological threat, the likelihood that one would die in 1 in 100,000.

o If one of the extraordinary steps reduced the chance of another 9/11 by 10%

o 600,000 people died in WWII and civil waro Long-term v. short-termo First want to know how effective the step (things they are short of and

can’t easily replaced)

How easily terrorists can replace what you’ve taken away o Next, one step might gives the terrorist group other things it needs

(assignation creates new recruits)o Next the cost of the step (civil liberties, national unity, $, lives, national

pride, national rightness, relations with allies, importance of encouraging lawfulness)

o Last step, have to try to structure the alternative methods to gain the same benefits but at lower costs

o Updates: Power of symbols: only issue is whether IRA will permit the

destroying of their weapons be photographed ETA is alive and well; want to distinguish themselves from other

terrorists (giving warnings, etc.) South Africa: armed wing of ANC head is now sec. Of def.

o What drives terrorism: Ehtno-Nationalism - any reason to believe this will decline?

Richardson, says no. We will have more ethno-terrorism Religion – won’t decline either Political ideology – anarchists, etc. Richardson thinks this is

declining o What is the best predictor of future predictor?

Past behavior!?!?!o Ayun

Ashihara – leader Because they were a religious group they were protected from

surveillance 50,000 members, vast tracks of land in Russia and Australia, assets

of $1B, They had 300 PHD scientists in their membership It was still hard for them to do it, made 12 attacks but only 1

succeeded The first 8 attempts involved biological weapons, they didn’t work

so they turned to chemical weapons o Think about who would use these weapons and what they would want to

achieve o Louise: ask questions about the particular organization