Cross-Spectrum Similarities Between Violent Non-State Actors Sean Atkins

Fire Down Below: How the Underwear Bomber Revealed the U.S. Counterterrorism Community As Hemmed in by the Seams of Legislative Ambiguity

Braden Civins

On December 25, 2009 a 23-year old Nigerian intentions and provided the government ample national boarded Northwest Airlines Flight 253 in

opportunity to interdict or neutralize the threat. 6 Was Amsterdam, the Netherlands bound for Detroit,

this not the exact type of failure that permitted, in part, Michigan. As the plane neared its final destination,

the attacks of September 11, 2001 to take place? In light passengers heard sharp popping noises, smelled

of the dramatic overhaul of the intelligence community 7 something acrid, and saw smoke and flames emanating

(IC) undertaken in the wake of 9/11, how is it that the from seat 19A. Umar Farouk Abdulmutallab, his body

e ai ed so covered by a blanket, had triggered an explosive device

U.“. go e

e t s CT appa atus

fundamentally flawed as to allow a known radical sewn into the hem of his underwear by mixing the

Islamist with a bomb sewn into his underwear to board a chemical Pentaerythritol Tetranitrate (PETN) with

U.S.-bound flight?

Triacetone Triperoxide (TATP), using an acid-filled Part I of this paper examines the events presaging syringe. Quick-thinking passengers and crewmembers

the Christmas Day attack. Part II explains the complex

allocation of authorities and responsibilities among people aboard Flight 253 sustained serious injuries.

successfully put out the ensuing fire. 1 None of the 289

members of the CT community. Part III demonstrates Abdulmutallab was detained immediately upon the

how this confusion affected the handling, processing, flight s a i al at Detroit Metropolitan Airport by federal

and response to critical information provided by authorities and indicted by a federal grand jury two

e ad , . weeks later. 2 Pa t IV o side s Co g ess s post-hoc inquiries,

A dul atalla s fathe o No e

A preliminary review of the events leading up to questioning whether the inability to disrupt the plot was the Christmas Day attack conducted by the White House

justifia l la eled a failu e. Pa t V p o ides highlight ed hu a e o s a d a se ies of systemic

conclusions and Part VI, recommendations for corrective eakdo s that p e e ted the dete tio a d

action.

disruption of the attack. 3 The review identified several causes for the failure to interdict the plot to

I. A B RIEF L OOK AT THE T HREADS OF AN U NDER -

bring down Flight 253, but did not specify the degree to

H ANDED P LOT : T HE D OTS

which each contributed to the ultimate outcome. 4

a. U PBRINGING , E DUCATION , AND R ADICALIZATION hea i gs. Ad i ist atio offi ials testi o did little to uell Co g ess s out age o e the failu e, a d i deed

The attack prompted a flurry of congressional

As the son of a wealthy Nigerian banker, Umar prompted additional questions from congressional

Farouk Abdulmutallab demonstrated none of the members eager to assign fault and uncertain where

fundamentalist ardor at a young age that would later blame should lie. After all, several months prior to

motivate his attempt at achieving martyrdom on behalf Christmas Day, the counterterrorism (CT) community 5 of al Qaeda in the Arabian Peninsula (AQAP). 8 Like many had collected intelligence that indicated an impending

children of means, he enjoyed basketball and attack of the very type eventually carried out by

PlayStation. 9 By the time he graduated from the British Abdulmutallab. Moreover, the CT community had

International School in Lome, Togo in 2004, his views fragmentary information that, if collated and u de stood, ould ha e ide tified A dul utalla s

6 As noted by the White House Review, supra ote , t he U.“.

Government had sufficient information prior to [the attack] to

1 Scott Shane and Eric Lipton, Passe gers Qui k A tio Halted have potentially disrupted the AQAP plot —i.e. by identifying Attack, N.Y. T IMES , Dec. 26, 2009, at A1, available at

Mr. Abdulmutallab as a likely operative of AQAP and potentially http://www.nytimes.com/2009/12/27/us/27plane.html?pagew anted=1&_r=1

7 p e e ti g hi f o oa di g flight . .

u it is as i ed its t aditio al 3 U.S. v. Umar Farouk Abdulmutallab, 2:10-cr-20005-NGE-DAS.

The i tellige e o

ea i g, a d is i lusi e of the s alle CT o u it . The IC Summary of the White House Review of the December 25,

is comprised of 16 government organizations charged with all 2009 Attempted Terrorist Attack, Jan. 7, 2010 [hereinafter

manner of intelligence collection and analysis, including the White House Review] available at

Central Intelligence Agency, Defense Intelligence Agency, http://www.fas.org/irp/news/2010/01/whreview-summary.pdf. 4 National Security Agency, National Reconnaissance Office,

5 See id. National Geospatial Intelligence Agency, and the intelligence CT o

u it , fo pu poses of this study, refers to components of the Armed Forces. Components of the Federal terrorism-focused components of various government entities,

Bureau of Investigation, Department of Homeland Security, the specifically the National Counterterrorism Center in the Office

Drug Enforcement Agency, Department of Energy, and of the Director of National Intelligence, componaents of the

Department of Treasury are also members of the IC. Department of State, including consular officials and the Office

8 Adam Nossiter, Lonely Trek to Radicalism for Terror Suspect, of the Coordinator for Counterterrorism, and the Central

N.Y. T 9 IMES , Jan. 16, 2010 at A1.

Id.

I tellige e Age s Cou te te o is Ce te .

took a decidedly Islamist turn and he began openly for a month, training in preparation for the Christmas

advocating the cause of the Taliban. 10 An itinerant

Day attack. 21

student, Abdulmutallab traveled to Yemen in 2005 to study Arabic and, in 2006, studied engineering in

b. U NDER S USPICION : U.S. CT T AKES N OTICE London. 11 While he attended mosques kept under surveillance by British security services for their

The individual data points discussed below must propensity to att a t Isla ists, he o l appea ed o the

e essa il e ie ed agai st the a kd op of the IC s pe iphe of othe i estigatio s i to adi al suspe ts

recognition of the threat to U.S. interests posed by the e…he

as ot o side ed a te o ist th eat AQAP. The IC had st ategi i tellige e that AQAP hi self. 12 had the i te tio of taki g a tio agai st the U ited

In June 2008, U.S. consular officers in London 22 “tates p io to…De e e th. Furthermore, the IC issued Abdulmutallab a multi-year, multiple-visit tourist

had a ed epeatedl of the t pe of e plosi e de i e visa. 13 This visa was in fact the second U.S. visa

used by Abdulmutallab and the ways in which it might Abdulmutallab had obtained. In 2004, a visa request by 23 p o e a halle ge to s ee i g.

Abdulmutallab was initially denied after a consular In August 2009, the National Security Agency (NSA) official found false information on his application. 14 intercepted communications of AQAP leaders in Yemen

discussing a terror plot involving a Nigerian. However, the consular offici 24 al s supe iso o e tu ed NSA the de ial due to A dul utalla s lea e o d a d

translated and disseminated the information to the distinguished family. 15 Since the matter was considered

National Counterterrorism Center (NCTC). Subsequent resolved, it was not revisited when the 2008 visa

intercepts revealed that AQAP was planning an application was made. 16 operation for December 25. 25 On November 11, British In 2008, Abdulmutallab traveled to the United

intelligence officials sent their U.S. counterparts a cable S tates a d Eg pt efo e pu sui g a aste s deg ee i

e eali g that a a a ed U a Fa ouk had spoke

international business in Dubai. 17 In May 2009, the

to U.S.-born cleric and AQAP affiliate Anwar al-Awlaki

B itish go e 26 e t de ied A dul utalla s appli atio and pledged to commit jihad, or holy war. for renewal of a student visa and placed him on a watch

In October 2009, Abdulmutallab sent text

messages to his father, Alhaji Umaru Mutallab, the denial was predicated on a fraudulent visa

list to prevent him from re-entering Britain. 18 Because

p ofessi g to ha e fou d eal Isla a d i sisti g that application rather than national security concerns, U.S.

his family forget about him because he had no intention officials were not notified of this action despite the fact

of ever returning to Nigeria. 27 His father, alarmed by his that Abdulmutallab possessed a U.S. visa at the time. He

so s o i ous to e a d espousal of adi al ideolog , returned to Yemen in August 2009, ostensibly to resume

solicited the assistance of Nigerian officials to help him

19 locate his son and persuade him to return home. his studies. 28 Yemeni officials admitted him based on On the fact that his passport contained a valid U.S. visa. 20 November 19 and 20, Alhaji Umaru met with U.S. While there, Abdulmutallab stayed with an AQAP leader

officials from the Department of State (State) and the Central Intelligence Agency (CIA) at the U.S. Embassy in 29 Abuja, Nigeria.

The officials sent memos relating

Id. 11 Id. Multimedia graphic entitled From Student to Terrorism

22 Suspect available at Id. Aviation Security and Flight 253 before the S. Comm. on http://www.nytimes.com/imagepages/2010/01/17/world/17ab

Commerce, Science, and Transportation, 111th Cong. (Jan. 20, du-graphic.html. 12 2010) [hereinafter Aviation Security and Flight 253 Before the S.

13 Id. Comm. on Commerce] (statement of Michael Leiter, Director of Ruth Ellen Wassem, Immigration: Terrorist Grounds for NCTC).

Exclusion and Removal of Aliens, 19 C ONGRESSIONAL R ESEARCH

23 Id. AQAP had carried out an attack on a Senior Saudi CT

14 S (March 2010). official two months prior to Christmas Day in which a suicide John Solomon, Visa Denial was Reversed for Terrorism

ERVICE

bomber detonated PETN that was similarly sewn into his Suspect in 2004, W ASHINGTON P OST 15 , March 25, 2010. underwear. Although the attack did not achieve its objective,

Id. the PETN successfully detonated, killing the AQAP operative. 16 Id. Furthermore, a State Department spokesman noted that,

Also, on Nov. 11, 2009, a Somali man was arrested trying to the e as othi g i his appli atio o i a data ase at the

board a commercial airliner in Mogadishu carrying a syringe and ti e that ould i di ate the he should ot e ei e a isa,

explosives in his underwear – a homemade explosive device further adding that Abdulmutallab was enrolled at a reputable

similar to the one Abdulmutallab was carrying on Christmas London university and had ample financial resources. Ian Kelly,

24 On the Record Briefing, U.S. Department of State, Washington, Day. Timeline of Terror, supra note 18. D.C., Dec. 28, 2009.

25 Early Leads Before the Attack, supra note 11.

Eric Lipton, Eric Schmitt, and Mark Mazzetti, Review of Jet Lonely Trek to Radicalism, supra note 8.

Bomb Plot Shows More Missed Clues, N.Y. T IMES 18 , Jan. 17, 2010 at Russell Goldman and Huma Khan, Timeline of Terror: Clues in

A1.

Bo er U ar Farouk A dul utalla s Past, ABC N EWS , Dec. 30, 26 Detroit Bomber Cooperating with the FBI, T HE N ATIONAL (UAE), 2009, reporting that Abdulmutallab's application to renew his

Feb. 5, 2010, available at

student visa was denied because he applied to study "life http://www.thenational.ae/news/worldwide/americas/detroit- coaching" at a non-existent college.

bomber-co-operating-with-fbi.

28 United States, is interviewed on CNN's "The Situation Room," Lonely Trek to Radicalism, supra note 8.

19 Mohammed Albasha, Spokesman, Yemeni Embassy to the

29 Id.

20 December 29, 2009. Mark Mazzetti and Eric Lipton, Spy Agencies Failed to Collate Timeline of Terror, supra note 18.

Clues on Terror, N.Y. T IMES , Dec. 31, 2009, at A1.

general details of the meeting to designated to U“ i te ests i the A a ia Pe i sula; 36 (2) analysis components of the intelligence and law enforcement

indicating the possibility of AQAP directing attacks

against the U.S. homeland; 37 (3) indications that PETN biographical data on Abdulmutallab but did not share his

communities, including NCTC. 30 CIA then compiled

was becoming the weapon of choice for AQAP profile with NCTC or other members of the IC. 31 operations; (4) signals intercepts indicating AQAP was

NCTC e te ed A dul utalla s a e i to the recruiting a Nigerian national for a future operation; (5) Terrorist Information Datamart Environment (TIDE), the

a a le i di ati g a U a Fa ouk had et ith largest terrorist watchlist, which contained the names of

known AQAP affiliate Anwar al-Awlaki; (6) and the 550,000 people with potential ties to terrorist

information collected by State and CIA at the Abuja organizations. NCTC analysts, as a result of inadequate

Embassy suggesting that Abdulmutallab had fallen in information on Abdulmutallab, decided not to nominate

with extremists in Yemen. Administration officials later him for inclusion in the smaller, more refined watchlists

claimed the failure to detect and interdict Abdulmutallab that would have resulted in additional scrutiny at airport

did not result from inadequate information sharing checkpoints or denial of entry to board a U.S.-bound

among the CT community. Congressional testimony by flight.

NCTC officials echo and amplify this assertion, suggesting

c. AUGHT C W ITH O UR P ANTS D OWN : that NCTC and, perhaps, CIA all-source intelligence

A BDULMUTALLAB F LIES W IDE O PEN analysts had access to all of the intelligence described above.

On December 16, an unidentified individual in Enjoying the benefit of 20/20 hindsight, some in

A a, Gha a paid ash fo A dul utalla s ou d-trip Congress argued, given the wealth of available plane ticket to Detroit, Michigan. On the day of his flight

information on Abdulmutallab prior to the attack, the

near success of the Christmas Day plot marked a clear Flight 253 in Amsterdam on

Abdulmutallab did not check any luggage. 32 Boarding

failure on the part of the CT community. In Abdulmutallab was not subjected to any secondary

December 25,

congressional hearings, CT officials met with countless passenger screening. Department of Homeland Security

variations of the same basic query: what went wrong? (DHS) officials received a routine electronic notice of

Explanations offered by CT officials as to why the

A dul utalla s ai li e ese atio —which may have information was not collated reveal deficiencies in the included details about the cash payment to purchase his

analytic process, shortfalls in IC resource allocation and,

most troubling of all, continued confusion as to the flight from Amsterdam to Detroit, Customs and Border

ticket and his lack of baggage. 33 During the eight-hour

authorities, responsibilities, and functions of the various Patrol (CBP) officers discovered that Abdulmutallab was

members of the CT community. listed in the TIDE database and decided to question him 34 Prior to 9/11, the many databases of IC agencies immediately upon his arrival.

were disjointed and lacked interoperability. Stovepiping, or the tendency of agencies to husband information,

II. T HE L EGISLATIVE U NDERPINNINGS OF THE CT o

i ed ith the

all separating law enforcement

C OMMUNITY : T HE L OOSE E LASTIC H OLDING

investigations and intelligence operations, prevented

I T A LL T OGETHER authorities from watchlisting at least two 9/11 hijackers who were known to various law enforcement and

a. NTELLIGENCE I R EFORM : R EADJUSTING THE

intelligence authorities. 38 The Intelligence Reform and

C ONSTRICTIVE F ABRIC OF THE IC Terrorism Prevention Act of 2004 (IRTPA) 39 sought to The CT community had fragmentary intelligence

break down many of the barriers hindering interagency regarding the Christmas Day plot that, if properly

cooperation through the establishment of an collated and understood, would have resulted in

organization designed to serve as a single hub for all

A dul utalla s o i atio to a isa s ee i g 35 international terrorist threat information. IRTPA lookout list a d o de i spe tio list.

d desig ated it the p i a No e

By late

established NCTC a

e se e al dots of i fo atio had ee o ga izatio …fo a al zi g a d i teg ati g all collected from different components of the IC: (1)

i tellige e possessed o a ui ed…pe tai i g to strategic intelligence that AQAP posed a

g o i g th eat

terrorism and counterterrorism, excepting intelligence pertaining exclusively to domestic terrorists and

domestic counterterrorism 40 . NCTC, placed under the

Intelligence Reform: The Lessons and Implications of the 33 Early Leads Before the Attack, supra note 11.

Christmas Day Attack, Part I Before the S. Comm. On Homeland Mark Randol, The Department of Homeland Security Security and Governmental Affairs, 111th Cong. (Jan. 20, 2010)

Intelligence Enterprise: Operational Overview and Oversight [hereinafter Lessons and Implications, Part I Before the S. Challenges for Congress, 24 C ONGRESSIONAL R ESEARCH S ERVICE Homeland Security Comm.] (statement of the Hon. Dennis Blair,

34 (March 2010).

Director of National Intelligence). 37

Id.

35 Id.

Sharing and Analyzing Information to Prevent Terrorism 38 See National Commission on Terrorist Attacks Upon the Before the H. Comm. on the Judiciary, 111th Cong. (March 24,

United States, The 9/11 Commission Report 254-66 (New York: 2010) [hereinafter Sharing and Analyzing Information Before

W.W. Norton & Company, 2004) [hereinafter 9/11 Commission the H. Judiciary Comm.] (statement of Russell Travers, Deputy

Report].

Director for Information Sharing and Knowledge Development, 39 IRTPA, P.L. 108-458, 118 Stat. 3638 (enacted Dec. 17, 2004). NCTC).

40 Id. Subtitle B, Sec. 1021(d)(1); codified at 50 USC § 404o(d)(1).

authority of the Director of National Intelligence (DNI), is CT intelligence on a daily basis, often implicating tasked

ith se i g as the e t al a d sha ed thousands of identities. 45 Partial names and different knowledge bank on known and suspected terrorists and

41 spelli gs hi de NCTC s a ilit to d a li kages f o the

i te atio al te o g oups. data. 46 In 2009 alone, NCTC received 3,000 Visas Viper

cables, the type of transmittal sent by consular officials community has been forced to eliminate its analytic

E e ith NCTC s taski g, o e

e of the CT

to NCTC as a result of the meetings with Alhaji Umaru in components that receive and analyze information

the Abuja Embassy. 47

related to terrorism. On the contrary, although NCTC is NCTC officials insisted that the two Visas Viper the primary mechanism for the analysis and synthesis of

cables, discussed in Part IIIA, sent to NCTC as a result of international

the A uja eeti gs e isted la gel i the oise, a d continues to conduct its own all-source analysis with

there was simply nothing particularly alerting about capabilities and methods discrete from those of NCTC. 42 eithe dot. 48

While Congress expressed dismay over This i te tio al edu da

NCTC s i a ilit to sepa ate the heat f o the haff analytic process and hedge against the possibility of

se es to la e the

given what was known about Abdulmutallab, NCTC critical information falling through interagency gaps. 43 offi ials testi o suggests that, gi e the olu e of intelligence monitored by NCTC and the absence of a

b. NCTC s D IRECTORATE OF I NTELLIGENCE : single

piece

of

derogatory data suggesting

U NDER - EQUIPPED , U NDER - STAFFED , AND

Abdulmutallab posed a serious threat, the inability to U NDER - RESOURCED collate pertinent data was not an aberration. Piecing togethe f ag e ta i fo atio is a e o pli ated

With primary responsibility for the analysis of all challenge involving both numbers of analysts and the international terrorism-related information and a

use of technology to correlate vast amounts of statutory position at the heart of the IC, NCTC s

i fo atio housed i ultiple age ies a d s ste s. 49 Directorate of Intelligence (DI) bears the burden for the

NCTC officials acknowledged that technological progress failu e to ake se se of the f ag e ta i fo atio

was needed to improve intelligence analysis; 50 however, concerning

technological improvement alone is not a panacea for explanations shed light on why NCTC, at least in the view

curing the deficiencies of the analytic process. of Congress, came up short. As a general matter,

Understaffing was also a critical part of the improving intelligence collection has long been the focus

equation, with NCTC operating with around 600 analysts of the IC, with intelligence analysis historically regarded

when the Christmas Day attack occurred. As NCTC

as a secondary priority. 44

The incredibly high volume of

Director Michael E. Leiter noted in congressional

e simply need the people to do [the requires cutting-edge technology and a well-resourced

i tellige e e ei ed

NCTC s DI o a dail asis

testi o ,

analysis], because you can have the best Google-like tool staff to p o ess a d a al ze i fo atio i take. NCTC s

i the o ld ut …the people to o k that at h list DI receives and reviews around five thousand pieces of

a d look at that i fo atio a e still e essa . 52

NCTC did not have the manpower to sift through and

41 Id. Subtitle B, Sec. 1021(d)(6); codified at 50 USC § 404o(d)(6). analyze all available data, which would explain in part 42 In accordance with statute, CIA maintains the responsibility

ho a e espo si le fo a d esou e apa ilit to o elate a d e aluate i tellige e

h NCTC…pe so el

watchlisting did not search all available databases to related to national security and provide appropriate

uncover additional derogatory information that could dissemination of su h i tellige e. U.“.C. §

43 As NCTC Di e to Leite oted i testi o , Also ith ha e ee o elated ith A dul utalla . The White responsibility, pursuant to the president's conclusions and

-4a(d)(2).

consistent with past practice, was the CIA. We both had 45 Sharing and Analyzing Information Before the H. Judiciary responsibility to [collate the avail a le data o A dul utalla .

Comm., supra note 35 (statement of Russell Travers, NCTC). Aviation Security and Flight 253 Before the S. Comm. on

46 Id.

Commerce, supra note 22 (testimony of Michael Leiter, Director 47 Wassem, Immigration: Terrorist Grounds for Exclusion, supra of NCTC). At the same hearing, the Hon. Lee Hamilton

described the benefit of this redundancy, stating: 48 note 13. Sharing and Analyzing Information Before the H. Judiciary

Redundancy doesn't bother me particularly, because 49 Comm., supra note 35 (testimony of Russell Travers, NCTC). Id.

if you got the CIA doing analytical work on the threat 50 Aviation Security and Flight 253 Before the S. Comm. on and the NCTC, that's OK, because the thing that

Commerce, supra note 22 (in testimony, NCTC Director Leiter impresses me about the analyst is the work can be

asked, Do we have the systems in place that make it easy to boring -- I mean really boring, sorting through

connect those pieces of data in the first instance? And the massive amounts of data and trying to figure out

answer is yes in some places and not nearly enough so in what's right there or what's significant. And

others. Some agencies are far ahead of others. And we still have somebody's going to be asleep at the switch now

clearly some systems which are so rudimentary and basic, that 44 Intelligence Reform: The Lessons and Implications of the and then, so some redundancy doesn't bother me.

51 the ' e ot doi g a good jo of that . Richard Best, The National Counterterrorism Center (NCTC) — Christmas Day Attack, Part II Before the S. Comm. on Homeland

Responsibilities and Potential Congressional Concerns, at 4 Security and Governmental Affairs, 111th Cong. (Jan. 26, 2010)

C ONGRESSIONAL R ESEARCH S ERVICE (Jan. 15, 2010). (testimony of Lee Hamilton, Chair of the 9/11 Commission,

52 Aviation Security and Flight 253 Before the S. Comm. on stati g The olle tio side e' e -- we're very good at; the

Commerce, supra note 22 (statement by Michael Leiter, analyst side less good at. And I think the reason for it is because we simply haven't given it the

53 Director of NCTC). White House Review, supra note 3; see also supra note 51 p io it it dese es .

(offering a discussion of analytic responsibilities among the IC).

House ‘e ie fou d that o e of the failu es of the CT NCTC does not have derivative tasking authority by o

u it as that IC leade ship did ot i ease virtue of being within ODNI. Information flow between

a al ti esou es o ki g o the full AQAP th eat. If NCTC and the rest of the CT community is decidedly one- the ‘e ie s fi di g as efe i g to NCTC, the te

a . Bea i g that i i d, NCTC Di e to Leite s failu e as a is ha a te ization: NCTC does not

a congressional committee possess direct authority over either its budget or

testimony

before

investigating the attack on Flight 253 merits scrutiny. staffing. 54 The issue of inadequate resource allocation is

Leiter discussed the possibility of NCTC conducting

a symptom of a more fundamental deficiency in the operational follow-up when more information is needed 2004 intelligence reform legislation that is further

on a particular threat stream. He implied NCTC should evidenced, if not epitomiz

assert more authority over the process, claiming Strategic Operational Planning.

ed, NCTC s Di e to ate of

operational follow-up could be conducted through a system whereby NCTC identifies threats and tasks an

c. NCTC S

D IRECTORATE

OF

S TRATEGIC

agency with taking further investigative action. It was

O PERATIONAL P LANNING : J OCKEYING FOR

unclear whether Congress was receptive to the NCTC R ELEVANCE IN THE CT C OMMUNITY Di e to s i pli it e uest fo a easu e of autho it

over the tasking process. 60 NCTC s la k of taski g We therefore propose a new institution: a civilian-

authority might have been a moot point with respect to led unified joint command for counterterrorism. It should

the Christmas Day plot, as no publicly available combine strategic intelligence and joint operational

information suggests any IC agency tasked additional planning [emphasis added]. 55 – 9/11 Commission Report collection after receiving information on Abdulmutallab.

The White House Review found that one of the An examinat io of NCTC s autho it , o la k p i a e pla atio s fo the failu e to dete t the

thereof, to conduct operations offers insight into the Christmas Day plot was that no CT entity took

depth of o fusio su ou di g NCTC s ole i the CT espo si ilit fo u i g do

the th eat st ea s

community. IRTPA expressly prohibits the NCTC Director

f o di e t i g the e e utio of ou te te o is the i tellige e o

emanating from AQAP. 56 According to the President,

u it did ot agg essi el follo operati o s. 61 Although the scope of activity falling up on and prioritize particular streams of intelligence

ithi the defi itio of CT ope atio s is u e tai , it related to a possible attack aga i st the ho ela d. 57 likely entails operations intended to collect additional NCTC Director Leiter acknowledged that, by presidential

dots of i fo atio . Testif i g efo e Co g ess

i st u tio , NCTC ea s p i a espo si ilit to e su e following the Christmas Day attack, Leiter did not seek

any amendment to this prohibition. 62 While this White House Review, however, did not explicitly blame

a s ste of…follo -up of high p io it th eats. 58 The

p ohi itio a d Leite s a epta e of it a e this failur e o NCTC, stati g o l that,

unremarkable, they raise a perplexing question: just component of the CT community assumed responsibility 59 hat is NCTC s Di e to ate of “t ategi Ope atio al fo the th eat epo ti g.

o si gle

Planning?

The White House s elu ta e to pi this O e of NCTC s p i a issio s is to conduct responsibility on any one actor is telling —not because

strategic operational planning for counterterrorism the White House was trying to avoid taking ownership of

activities, integrating all instruments of national 63 the failu e fo the sake of politi al e pedie , ut

po e … ithi a d a o g age ies. IRTPA rather because of the uncertainty, codified in statute, as to where responsibility for following up on threats should lie. NCTC is only capable of conducting follow-up

by developing analytic resources devoted to focusing on Aviation Security and Flight 253 Before the S. Comm. on Commerce, supra note 22. NCTC Director Leite said, at least

specific pieces of information. Although the Office of the we will establish a system whereby each of these threats, when DNI (ODNI) has authority to task members of the IC with

we identify threats, can, in fact, be followed up through collecting additional information on specified targets,

appropriate department or agency action. And the results of that follow-up are reported back to the [NSC] to ensure that

they have the information they need to further direct action as

The NCTC Director is completely reliant upon the Director of e essa . Leite a k o ledged that, as o stituted, NCTC National Intelligence for determining budgetary allocations and

does not have the tasking authority he describes in terms of poli ith espe t to pe so el. NCTC s udget is

follow-up investigations: "I do not [have], nor do I believe the comparatively modest among members of the IC, and most

DNI as currently constructed has, all of the authorities to move NCTC spending goes to covering personnel expenses. NCTC —

all of the information in a way that will maximize the likelihood 55 Responsibilities and Potential Concerns, supra note 51, at 9.

of detecting these plots." Although the DNI possesses tasking 56 9/11 Commission Report, at 403, supra note 38.

authorities, many commentators suggest that authority is not White House Review, supra note 3 (finding that there was a

transmitted to NCTC which, in effect, had no such authority failu e ithi the CT community, starting with established

prior to the Christmas Day attack. See Marc Armbinder, The rules and protocols, to assign responsibility and accountability

Leiter They Are, the Quicker They Fall, T HE A TLANTIC (Jan. 7, for follow up of high priority threat streams, run down all leads,

2010), available at

57 a d t a k the th ough to o pletio . http://www.theatlantic.com/politics/archive/2010/01/the- Preside t O a a s ‘e arks o “e urit ‘eview of Attempted leiter-they-are-the-quicker-they-fall/33118/.

Terrorist Attack on Christmas Day (Jan. 7, 2010). 61 IRTPA, P.L. 108-458, Section 1021, Sec. 119(g). 58 Aviation Security and Flight 253 Before the S. Comm. on

62 Aviation Security and Flight 253 Before the S. Comm. on Commerce, supra note 22 (statement by Michael Leiter,

Commerce, supra note 22 (statement by Michael Leiter, 59 Director of NCTC).

Director of NCTC).

White House Review, supra note 3.

63 50 USCS § 404o(d)(2).

authority, 69 and IRTPA, although largely implementing Strategic Operational Planning (DSOP) to accomplish this

established the nominally contradictive 64 Directorate of

the / Co

issio s e o

e datio s ega di g

e d. D“OP as ha te ed to p o ide the o e ti e NCTC, refrained from granting DSOP this unprecedented tissue et ee atio al ou te te o is poli a d

power. 70 IRTPA also required the president to issue strategy established by the President, normally via the

guida e to the DNI to i ple e t efo i a a e National Security Council system, and counterterrorism

that respects and does not abrogate the statutory operations conducted by the departments and

espo si ilities of the heads of othe IC age ies. 71 age ies. 65

In theory, DSOP coordinates along both So, although DSOP was tasked with providing vertical and horizontal lines: it receives policy guidance

strategic operational plans for CT operations, which from the NSC and, through an interagency process,

includes coordinating operational activities among assig s … oles a d espo si ilities 66 to various CT agencies, assigning roles and responsibilities, and

agencies to implement the policy at an operational level. o ito i g pla s i ple e tatio , it as gi e o Assuming DSOP performs the functions ascribed to it by

ha e autho it to o pel age ies to alig thei statute, the threat posed by Abdulmutallab would fall

plans and activities, or to fulfill their roles and ithi D“OP s pu ie . 67 espo si ilities u de st ategi ope atio al pla s. 72 Nor

In reality, had NCTC analysts pieced together the was NCTC given the budgetary control necessary to available information on Abdulmutallab, it is unlikely

encourage interagency buy-in —the NCTC Director DSOP would have been able to coordinate any

possesses o l the a ilit to ad ise the DNI o the operational response to the identified threat. A report

extent to which counterterrorism recommendations and issued in February 2010 by the Project on National

budget proposals of departments, agencies and “e u it ‘efo PN“‘ ide tified se e al s ste i

elements of the United States government conform to

i pedi e ts that u de ut D“OP s ability to effect the p io ities esta lished the p eside t. 73 either strategic or operational planning, including:

DSOP, as a component of NCTC, lacks even the overlapping authorities among CT entities; inadequate

hi h pe so el o spe ifi o g essio al u de sta di g of D“OP s issio a d

autho it to dete i e

capabilities should be utilized by agencies in mission insufficient oversight of its activities; and inadequate

mechanisms to ensure means available to DSO P fo p io itiz[ing] resources and

execu tio . 74 Existing

participation in the interagency strategic operational investments

in capabilities

for

complex,

planning process at DSOP are weak, 75 and DSOP has

been reluctant to aggressively use what authority it has, issues raised by PNSR are important to understanding

ultidi e sio al CT issio s. 68 Two interrelated

preferring instead to rely on the willingness of other the foundational flaws in the CT community that allowed

a ge ies to suppo t D“OP s issio . Whe D“OP Abdulmutallab to slip through the cracks: (1) the

attempts to exercise its authority, CIA and State tend to overlapping authorities among NCTC, State, and CIA; and

esist hat the ie as D“OP s e oa h e t, usi g the (2) the institutional tensions inhibiting DSOP from

statuto ague ess of st ategi ope atio al pla i g managing collaborative interagency CT operations.

as a ea s to lo k D“OP s effo ts to live up to its As noted earlier, the NCTC Director is prohibited by

statutory mandate. As one NCTC official put it: statute from executing CT operations, leaving that

responsibility to individual agencies. Although the 9/11 If you started to do an operational plan they would Co

e ded that NCTC e gi e the sa , That's too ope atio al, that's too ta ti al. autho it of pla i g the a ti ities of othe age ies,

issio e o

You' e supposed to e fo used o e o st ategi . If the Commission did not specify the scope of this

we trended toward the strategic they would say,

69 See 9/11 Commission Report at 406, supra note 38. C OMPLEX N ATIONAL M ISSIONS : L ESSONS FROM THE N ATIONAL

64 P ROJECT ON N ATIONAL S ECURITY R EFORM , T OWARD I NTEGRATING

70 PNSR R EPORT at 33, supra note 64 (granting NCTC that C OUNTERTERRORISM C ENTER S D IRECTORATE OF S TRATEGIC O PERATIONAL

autho it as o side ed u p e ede ted PN“‘ e ause P LANNING , (Feb. 2010) at 47-51 [hereinafter referred to as PNSR few, if any, government agencies in the history of the U.S.

R EPORT ] ( e plai i g that the te joi t ope atio al pla i g government have had the ability to cut through the normal was the source of contentious debate, as it implied the allocation of too much authority to the DSOP —the compromise

71 bureaucratic hindrances common to all interagency processes). IRTPA 2004, P.L. 108-458, Title I, Subtitle A, § 1018, 118 Stat. la guage, st ategi ope atio al pla i g, e o d its

3670 (effective not later than six months after enactment, as contradiction in terms, has become a point of consternation for

provided by § 1097 of such Act, which appears as 50 USCS § 401 those in the DSOP). 65 note); see also The Lessons and Implications of the Christmas

Id. at XI. Day Attack: Intelligence Reform and Interagency Integration

67 50 USCS § 404o(d)(3). Before the S. Comm. on Homeland Security and Governmental A o di g to a state e t Leite , NCTC is i te ded to e a

Affairs, 111th Cong. (March 17, 2010) (testimony of the Hon. one stop shop for mapping out the terrorism threat and

Be ja i Po ell, Fo e Ge e al Cou sel to DNI, stati g t he designing a plan for the U.S. Government to counter it —

goal is not to diminish the authorities or the capabilities of one whether it is immediate, emerging, or long- te . Looming

organization in favor of another organization such as the DNI. Challenges in the War on Terror, Remarks by Michael Leiter to

The goal is to have an integrated intelligence community that is

the Washington Institute, Feb. 13, 2008. See also PNSR R EPORT o e tha the su of its pa ts .

stati g that, D“OP as p oposed to t a slate 72 PNSR R EPORT at 38, supra note 64. counterterrorism policy and strategy into strategic and

73 Codified at 50 USCS § 404o(f)(C). operational interagency plans that range from broad objectives

74 PNSR R EPORT at 47, supra note 64 (quoting NCTC Director to spe ifi tasks a d f o the lo g te to the i

Mi hael Leite s testi o efo e the House Co ittee o 49. 68

ediate at

Homeland Security on Oct. 4, 2007). PNSR R EPORT at XV, supra note 64.

75 Id. at 113.

No, ou should e 76 o e fo used o the

to compel operational activities by other departments operational. and agencies or ensure compliance with CT objectives

set forth by State. State/CT views itself as the leader of Interagency involvement in strategic operational

U.S. government CT efforts, and its mission statement is planning is entirely voluntary, with DSOP relegated to

laid out in terms strikingly similar to those of DSOP as facilitating interagency cooperation and coordination

It is therefore no surprise that rather than forcibly ensuring that it occurs.

77 prescribed by IRTPA.

As Leiter

DSOP planning processes often lack participation by

e plai ed i testi o , e e e o e a egotiato a d ediato of so ts, athe tha a di e to of a tio . 78

State personnel. It is also no surprise that the PNSR fou d that, a iguous deli eatio of oles a d

Leiter likely overstates the case, as other testimony responsibilities has resulted in duplication of effort and suggests NCTC s la k of autho it lea es it la gel u a le

et ee “tate a d NCTC. to perform even this arbitration function effectively.

79 i effi ie

While consular officials at the Abuja Embassy An examination of the authorities, culture, and

followed protocol by notifying NCTC of the meeting with institutional interests of State and CIA with respect to CT

A dul utalla s fathe , a ious lai s “tate offi ials reveal very little incentive for either entity to invest in

suggest CIA, rather than NCTC, called the shots in any DSOP-led processes.

subsequent operational planning that occurred with respect to Abdulmutallab. Given the nebulous lines of

d. S TITCHED T OGETHER : T RACING THE S EAMS OF

authority and responsibility among State, NCTC, and CIA,

A UTHORITY AND F UNCTION A MONG NCTC, the State officials who were privy to the information

S TATE , AND CIA

provided by Alhaji Umaru were justified in pursuing one of three routes in terms of operational response: (1)

deferring to NCTC to formulate a plan for running the established in 1972, following the attack by Black

“tate s Offi e fo Co ati g Te o is

as

threat to the ground; (2) deferring to CIA; or (3) September, a radical Palestinian terrorist organization,

assuming operational responsibility. 84 In light of the on Israeli athletes at the Munich Olympics. As the PNSR

existing collaborative relationship between State and CIA report notes, it has al a s o i all ee the p i a

in responding to international terrorism threats, entity within the U.S. government responsible for

strengthened by a history of mutual cooperation, it is managing

80 likely standard practice for State to defer to CIA to p og a s.

B statute, “tate s Offi e of the address the type of threat posed by Abdulmutallab. The Coordinator for Counterterrorism (State/CT), as it has

State-CIA relationship tends to further exclude NCTC o e to e k o , is ha ged ith p o idi g o e all

from exerting any influence on CT operational planning. supervision (including policy oversight of resources) of

81 CIA s

oad autho it to o du t i te atio al

operations relating to national security, codified in the NCTC Di e to , the Coo di ato as gi e o ha

i te atio al ou te te o is a ti ities.

Like the

e fifth fu tio of its legislative framework, has put

international terrorism in its crosshairs at least as far

The Lessons and Implications of the Christmas Day Attack: back as 1972. Although CIA s Cou te te o is Ce te Intelligence Reform and Interagency Integration Before the S.

(CTC) was only established in 1986 following the marine Comm. on Homeland Security and Governmental Affairs, supra

barracks bombing in Lebanon, CIA had, since 1947, note 71 (testimony of Richard Nelson, former DSOP official). 77 enjoyed premier status in the IC and served as the

PNSR R EPORT at 70, supra note 64 (Kevin Brock, former primary agency for combating all manner of Principal Deputy Director at NCTC, clarified this role by stating,

NCTC is ot di e ti g ope atio s…. We e he e just to ki d of international threats to the U.S. With its own all-source act as the air traffic controller and make sure everyone is

intelligence collection and paramilitary capabilities, CIA talki g . Furthermore, DSOP has tended not use its authorities

robustly and risk alienating its interagency partners and has fa o ed a st ateg of ai tai i g a oalitio of the illi g. Fo

82 Co pa e “tate/CT s issio state e t, to de elop a d lead example, DSOP has traditionally tended to shy away from any

a o ld ide effo t to o at te o is usi g all the assessment that holds departments and agencies accountable

instruments of statecraft: diplomacy, economic power, for fulfillment of certain objectives. While DSOP has the

i tellige e, la e fo e e t, a d ilita , a d p o idi g authority to assign roles and responsibilities and monitor

fo eig poli o e sight a d guida e to all U.“. Go e et department and agency implementation of strategic

i te atio al ou te te o is a ti ities ith that of D“OP, operational planning, there have been instances where

hi h is to o du t st ategi ope atio al pla i g fo CT departments and agencies did not participate in the planning

activities, integrating all instruments of national power, process, implement DS OP s st ategi ope atio al pla s, o e e

including diplomatic, financial, military, intelligence, homeland perform the roles and responsibilities assigned to it. 78 security, and law enforcement activities within and among

Intelligence Reform, Part I Before the S. Comm. on Homeland age ies. PNSR R EPORT at 117, supra note 64. Security and Governmental Affairs, supra note 12 (testimony by

NCTC Director Michael Leiter). 84 Id. While unilateral responsive action by State might seem far-

79 R i ha d Nelso testified, “o e od should e fetched with CIA case officers close at hand in U.S. embassies in a it ati g…de isio s at a u h lo e le el. A d that's a ole

o sulates o ld ide, “tate s Diplo ati “e u it “e i e does that NCTC could take -- undertake, but it can't do because it doesn't have the credibility and the authority currently to do

85 play a role in CT investigations abroad. The fifth fu tio , o igi all set fo th i the Natio al that. The Lessons and Implications of the Christmas Day Attack:

Security Act of 1947, Pub. L. No. 80-253, 61 Stat. 495, refers to Intelligence Reform and Interagency Integration Before the S.

CIA s statuto espo si ilit to pe fo su h othe fu tio s Comm. on Homeland Security, supra note 71. 80 and duties related to intelligence affecting the national security

81 PNSR R EPORT at 116, supra note 64. as the President or the Director of National Intelligence may P.L. 105-227 [H.R. 4328].

di e t… . U“C §

-404(a).

enjoyed de facto authority in addressing international

a iguous li es of autho it …this diffusio of te o is p io to I‘TPA s passage i

responsibility and accountability leads to ineffective o ga izatio s ole i the CT issio is i fo ed the 92 a age e t of the issio .

. If an

A former DSOP official, o ga izatio s histo , ultu e, a d leade ship… odified

referring to the coordination of CT activities, offers a statutes a d E e uti e O de s, 86 it should come as frank assessment of the current state of the CT

no great shock that CIA has been indisposed to

u it , oti g, the IC a d, a gua l the submitting its resources and personnel to the planning

government as a whole, still lacks a truly interactive activities of a newly-minted and ill-defined interagency

p o ess fo add essi g te o is . 93 planning process. The PNSR report describes one telling

In discussing NCTC authorities during a episode when a DSOP-drafted plan was roundly criticized

congressional hearing, NCTC Director Leiter noted that for not incorporating input from CIA. However, as CIA

the statutory language ostensibly placing NCTC in charge had not participated in the planning process and DSOP,

of CT ope atio s 94 as left pu posefull ague. reluctant to engage in a turf war with such a formidable

Perhaps this vagueness was an effort to provide the CT

community flexibility and leeway to adapt to the fluid CIA s i ol e e t, it is

and well-established agency, 87 did not attempt to solicit

o su p ise that CIA s

and dynamic threat posed by international terrorism. pe spe ti es e e ot full o side ed. 88 Statements by 9/11 Commission Chairman Lee Hamilton

Following the meetings between Embassy-based and Senator Susan Collins suggest that, while statutory CIA ope atio s offi e s a d A dul utalla s fathe o

vagueness exists, the more pertinent issue is the November 19 and 20, CIA analysts compiled biographical

unwillingness of those officials in offices created by data on Abdulmutallab. As noted in Part II, this

IRTPA to exercise existing authorities. 95 It is interesting information was not shared with NCTC. This information

to ote, ho e e , Ha ilto s ad o itio that NCTC sharing failure was attributed to the mere oversight of

should not be given tasking authority to assign roles and one office within CIA; it was not regarded as

responsibilities for conducting follow-up investigations. 96 symptomatic evidence of underlying confusion regarding

The fact that Hamilton, a co-author of the 9/11 proper authorities in CT operations. 89 Commission Report, makes somewhat inconsistent

hat NCTC s autho ities a d similar function to State/CT and CTC, lacks the authority,

DSOP, although nominally charged with serving a

lai s a out

responsibilities should be may simply reflect his budget, and institutional legitimacy of the other entities.

acknowledgment of the laborious horse-trading inherent DSOP has no mechanism to control any constituent part

in pursuing further reform. IRTPA was hard enough to of the CT community, and therefore no means by which

pass; perhaps it is best to leave well enough alone. to hold departments and agencies accountable for

Senator Collins has expressed similar concerns. missteps. Personnel from CT agencies serving in rotation 90 Acknowledging the messiness of the initial legislative

at NCTC remain beholden to their respective agencies. process, she recalled how §1018 of IRTPA, prohibiting Serving at DSOP, like many interagency posts, offers little

a d depa t e t chance for advancement. There is, to put it mildly, little

a ogat io of e isti g age

authorities, was the result of a compromise without

which the House Armed Services Committee would have interagency processes.

i e ti e fo the CT o

u it to u i to D“OP s

killed the entire intelligence reform bill. 97 Senator Even when NCTC has attempted to assign roles and

Joseph Lie e a s olo ful use of etapho to des i e responsibilities in CT operations, CT entities have refused

the deliberative process preceding passage of IRTPA to a ept NCTC s delegatio . All CT entities, including

amplified this point:

those in State, CIA, and the Department of Defense (DoD) possess the authority to plan and execute CT

operations. 91 The current structure is woefully

i effi ie t: t he ou te te o is s ste is a spide 92 PNSR R EPORT at 113, supra note 64. web of overlapping missions, conflicting cultures, and

93 The Lessons and Implications of the Christmas Day Attack: Intelligence Reform and Interagency Integration Before the S.

Comm. on Homeland Security and Governmental Affairs, supra 86

PNSR R 87 EPORT at 113, supra note 64. note 71 (testimony of Richard Nelson, former DSOP official). NCTC s elu ta e to asse t its i flue e o CT ope atio s, 94 Aviation Security and Flight 253 Before the S. Comm. on some critics maintain, is commonplace. One report notes that

Commerce, supra note 22 (statement of Michael Leiter, Director NCTC has de o st ated a see i g u illi g ess to take a old implementation approach and a preference to avoid

95 of NCTC). Intelligence Reform: The Lessons and Implications of the u eau ati o fli t. B ia ‘. ‘ei ald, Assessing the

Christmas Day Attack, Part II Before the S. Comm. On Homeland Natio al Cou terterroris Ce ter s Effe ti e ess i the glo al

Security and Governmental Affairs, supra note 44 (testimony of

Lee Hamilton, former co- hai , / Co issio , stati g, I 88 Pennsylvania) (2007).

War on Terror, U.S. A RMY W AR C OLLEGE (Carlisle Barracks,

think there probably are some ambiguities in the law, although PNSR R EPORT at 115, supra note 64.

you can argue, as I think Senator Collins was doing in her 89 Aviation Security and Flight 253 Before the S. Comm. on

opening statement, that it's more a failure of exercising Commerce, supra note 22 (statement of Michael Leiter, Director

autho it that a

96 iguit .

of NCTC).

Id. Ha ilto testified, I do 't thi k that's the ole of the

NCTC. I -- I am not quite sure where -- where that responsibility fosters continued loyalty of NCTC employees to their parent

O e iti of NCTC otes that it sustai s a e i o e t that

lies, but the assignment of responsibility to investigate and to age ies athe tha the NCTC itself. B ia ‘. ‘ei ald,

pursue a suspe t has to e e lea . Assessi g the Natio al Cou terterroris Ce ter s Effe ti e ess

97 The Christmas Day Attack: Intelligence Reform and 91 in the global War on Terror, supra note 87.

Interagency Integration Before the S. Comm. on Homeland Title X, USC.

Security and Governmental Affairs, supra note 71.

I can remember the debates, the extensive debates discussions with Alhaji through the Visas Viper system, about the various terms that we put into the 9/11

the standard form of interagency communication for legislation. And it's seems as if -- but not quite as

screening suspected terrorists. 101 The memo read, neat, that we were architects or construction

I fo atio at post suggests that Fa ouk a e 102 building. They're not as neat because there was [sic]

management operation deciding how best to build a

involved in Yemeni- ased e t e ists. However, a more interests at the table than the design and

o sula offi e isspelled A dul utalla s a e he construction teams. Because in some sense, the

o du ti g a a e he k i the “tate s Co solidated people at the table wanted to preserve the existing

Consular Database (CCD), a resource available to all parts of their building. 98 embassies and consulates containing the names of current U.S. visa holders. As a result of the misspelling,

Whatever the reason for legislative ambiguity, its the Visas Viper cable did not indicate that Abdulmutallab ultimate effect is to obscure lines of accountability and

held a visa. 103 On November 25, an amended cable responsibility, thereby hindering oversight and support

containing the correct spelling was sent to NCTC — of the CT o

u it . Despite the Ad i ist atio s however, for reasons that remain unclear, the second

a le as se t f o a othe “tate sou e i the the Christmas Day plot are distinct from those preceding

i siste e that the CT o

u it s failu es p e edi g

E ass , a d A dul utalla s isa status as ot the attacks on 9/11, the conclusions of the 9/11

checked prior to sending the amended cable. 104 NCTC Commission Report are unsettlingly applicable to the

f A dul utalla s status as a isa more recent case. The 9/11 Commission correctly

was not notified o

holder.

concluded that the inability of CT entities to conduct

A short time after the initial Visas Viper cable was joint action, share information, and connect the dots

se t, A dul utalla s a e as e te ed i to the were only symptoms of a larger disease plaguing the CT

Consular Lookout and Support System (CLASS), a community. The more fundamental problem, which

database of 27 million records of derogatory information IRTPA was specifically intended to address, was that:

used by consular officials to screen visa applicants for travel to the United States. 105 On this occasion,

A dul utalla s a e as spelled o e tl . The CLA““ and able to draw relevant intelligence from

[N]o one was firmly in charge of managing the case

anywhere in the government, assign responsibilities entry, which matches derogatory information to current

a oss the age ies…t a k p og ess, a d ui kl isa holde s i the CCD, esulted i a lookout that

bring obstacles up to the level where they could be o e ted A dul utalla s status as a isa holde ith

resolved. Responsibility and accountability were the information provided by his father. By design, the diffuse. 99 CLASS system only transmitted this information to the primary lookout system used by DHS. This information

As the individual components of the CT community

as

e el a essi le to t o agencies primarily

i te p et thei CT espo si ilities la gel ased o responsible for managing air travel watchlists, the their individual statutes, histories, bureaucratic cultures,

Fede al Bu eau of I estigatio s T a spo tatio

Screening Center (TSC) and NCTC, but was not required 106 pointing following the Christmas Day attack seems

a d u e t leade ship, 100 Co g ess s hist io i fi ge -

reading.

profoundly misguided. Rather than forcing CT officials to However, it is doubtful whether the misspelling in offer platitudes and reassurances that no such mistakes

the initial Visa Viper cable contributed to the overall will be made in the future, congressional inquiry should

failu e to dete t the AQAP plot. The o e tl spelled, reexamine the underlying framework of the CT

more detailed cable and the CLASS entry revealing community. Evidence of its debilitating effects on CT

ee e e tuall effo ts as laid a e the CT o

A dul utalla s

isa

status

consolidated into a single file. Depending on the the i fo atio p o ided A dul utalla s fathe i

u it s espo se to

timeframe in which this consolidation occurred, it is not Abuja.

III. U NDER -I NTEGRATION IN P RACTICE : H OW AN

Wassem, Immigration: Terrorist Grounds for Exclusion, at 20,

U NSTABLE L EGISLATIVE F OUNDATION P LAYS O UT

102 supra note 13.

AT THE O PERATIONAL L EVEL Intelligence Reform, Part I Before the S. Comm. on Homeland Security and Governmental Affairs, supra note 12 (testimony by

Patrick Kennedy, Under Secretary for Management, U.S.

HE EPARTMENT OF

A. T U.S. D S

TATE AS THE

UTER

Department of State).

103 Wassem, Immigration: Terrorist Grounds for Exclusion, at 20, M EETING

G ARMENT OF THE CT C OMMUNITY : T HE A BUJA

supra note 13.

Securing America's Safety: Improving the Effectiveness of Alhaji Umaru Mutallab, upon receiving unsettling

Anti-Terrorism Tools and Inter-Agency Communication Before text messages from his son described in Part I, visited

the S. Comm. on the Judiciary, 111th Cong. (Jan. 20, 2010) the U.S. Embassy in Abuja, Nigeria on November 19 and

(statement by Patrick Kennedy, Under Secretary for

20 to seek help. On November 20, the Embassy sent a 105 Management, U.S. Department of State). Sharing and Analyzing Information to Prevent Terrorism cable to NCTC providing a general overview of the

Before the H. Comm. on the Judiciary, supra note 35 (statement by Patrick Kennedy, Under Secretary of State for Management,

Department of State). 106

99 Id. Id. The Terrorist Screening Center, managed by the FBI was 100 9/11 Commission Report at 400, supra note 38.

established pursuant to Homeland Security Presidential PNSR R EPORT at 113, supra note 64.

Directive 6, signed by President Bush in 2003.

u easo a le to assu e the alidit of “tate s asse tio the Selectee or No- Fl lists. Based o “tate s i itial that …the isspelli g – our error – as o iated

report to NCTC, which contained scant details and made the pairing up of the correctly spelled cable and the

o e tio of A dul utalla s status as a isa holde , CLASS

NCTC was justified in not sending his name to TSC. Abdulmuta

entry providing

lla . 107 Although NCTC plays an advisory role in the visa

e o atio p o ess, e o atio ould ha e o l

B. T HE D ECISION N OT TO R EVOKE 108

occurred if there had been a successful integration of

It would be tempting to o lude that NCTC s failu e to o e t the dots, the , In congressional hearings following the Christmas

A BDULMUTALLAB S V ISA

i tellige e 113 NCTC.

played a role in the decision not to revoke Day attack, State officials repeatedly pointed out that

A dul utalla s isa. E e if this e e the ase, it is fa TSC is responsible for the continual vetting of names

from clear that NCTC should be held to account – NCTC lo ated i T“C s Te o ist “ ee i g Database (TSDB) and

analysts had relatively little cause to strictly scrutinize ai tai i g the se o da s ee i g “ele tee a d

the Visa Viper cable, as the State officials who drafted it No Fl at hlists. To dete i e hethe i di iduals i

did not include any assessment of its significance and the TSDB hold visas, all records added to the TSDB are

offered no recommendations as to how NCTC should

he ked agai st the “tate s CCD. 109 When a match

regard the information.

occurs, TSC sends a notice to State to flag cases for visa Although consular officers and the Secretary of

e o atio a d, a o di g to a “tate offi ial, I al ost State have discretionary authority to revoke a visa at any

time, all su h ases, isas a e e oked. 114 and consular officers are able to revoke visas on sent from NCTC and DHS.

110 Notices can also be

terrorist grounds, it is common practice for State to Alhaji U a u s isit to the E ass i A uja a d

defer to NCTC to identify suspected terrorists and make the subsequent discovery of Abd

ul utalla s status as a 115 the proper designations prior to visa revocation. State visa holder would seem alarming to any reasonable

officials have confirmed that, in accordance with observer. Even assuming State and DHS were the only

established protocol, both the November 20 Visa Viper departments fully aware of the situation by November

and the amended version, sent on November 25, went

20 (as NCTC had received the Visas Viper cable without to proper IC and law enforcement offices to solicit information regardin g A dul utalla s isa status , a d

additional information on Abdulmutallab. 116 While NCTC further assuming that these two pieces of information

plays an integral part in the advisory process that were all that was known to either department,

decides whether visas should be revoked, it does not,

e o atio of A dul utalla s isa should ha e at least contrary to an implication made by a State official been considered. Congressional hearings shed light on

testifying before Congress, have authority to unilaterally why Abdulmutallab was permitted to retain his visa after

e oke isas. This offi ial s i pli atio d e a ha sh November 20.

rebuke from Senator Collins and prompted NCTC One explanation is that the meetings on November

Director Leiter to jokingly express his surprise at learning 117

19 and 20 simply did not provide sufficient information 111 of NCTC s e fou d isa revocation authority. to justify visa revocation.

State officials also drew the ire of Congress by pla ed A dul utalla s a e o the TIDE list upon

As noted earlier, NCTC

repeatedly noting that DHS also possesses a measure of receiving the cable from the Abuja Embassy. Pursuant to

authority over visa revocation. 118 Although State did not established protocol, once Abdulmutallab was added to

explicitly suggest that DHS should have assumed TIDE, an NCTC analyst had to determine whether there

as a easo a le suspi io that A dul utalla

intended to engage in a terrorist attack. 112 Had the 114 White House Review, supra note 3. Immigration and Nationality Act, Section 221(i); codified at 8 easo a le

suspi io

sta da d

ee et,

USC § 1201(i).

Abdulmutallab would have been nominated for inclusion 115 Wassem, Immigration: Terrorist Grounds for Exclusion, at 20, o T“C s T“DB a d possi l o side ed fo pla e e t o

supra note 13. 116

Flight 253: Learning Lessons from an Averted Tragedy Before

the H. Comm. on Homeland Security, 111th Cong. (Jan. 27,

Securing America's Safety: Improving the Effectiveness of 2010) (statement of Tim Kennedy, U.S. Department of State). Anti-Terrorism Tools and Inter-Agency Communication Before 117 Lessons and Implications, Part I Before the S. Homeland

the S. Comm. on the Judiciary, supra note 104. 108 Security Comm., supra note 36. Sen. Collins took State to task, Although the legislative ambiguity underlying the CT

stating At the e least, A dul utalla should ha e ee community is amply demonstrated by both the decision-making

required to report to our embassy and explain his activities and process with respect to visa revocation and the failure to

answer questions before he was allowed to retain his visa. o i ate A dul utalla to eithe the sele tee o o fl

“tate has this autho it …But “tate failed to a t. Most watchlists, the explanations for non-revocation and the failure

disturbing, [State] is also pointing fingers at other agencies to to watchlist dovetail. A discussion of watchlisting practices and

e plai this failu e. Leite joki gl espo ded that he as how they applied to Abdulmutallab is omitted. 109

surprised to learn from the State Department that NCTC had Sharing and Analyzing Information to Prevent Terrorism, H.

118 Comm. on the Judiciary, supra note 35 (statement of Patrick visa revocation authority. Id. Flight 253: Learning Lessons from an Averted Tragedy Before Kennedy).

the H. Comm. on Homeland Security, supra note 116 (statement Id.

of

Ti Ke ed , t he Depa t e t has a lose a d p odu ti e Wassem, Immigration: Terrorist Grounds for Exclusion, at 20, partnership with DHS, whic h has autho it fo isa poli

; see Immigration: Terrorist Grounds for Exclusion, 112 supra note 13. also Wassem, Laura Rozen, What Happened After NCTC Got Report on

supra ote , fo a full dis ussio of “tate a d DH“ s espe ti e Abdulmutallab, P OLITICO , Dec. 29, 2009.

authorities over visa issuance and revocation.

responsibility for

e o atio , the uestio of DH“ s ole conspicuous and understandable, undoubtedly viewed in visa revocation and, more generally, its existential

the information gleaned from the Abuja meetings as an purpose as a member of the IC muddied the waters

opportunity. Rather than merely preventing one enough for congressional members to take aim at DHS

extremist from boarding a U.S.-bound flight, CIA would despite its utter lack of involvement in any decision

use the information gathered on Abdulmutallab to regarding Abdulmutallab prior to Christmas Day. DHS

locate and identify the more dangerous threat posed by Secretary Janet Napolitano felt compelled to spell out, in

his spo so i g et o k. While t a i g CIA s i ol e e t si ple te s, DH“ s asi ole i oth the IC a d the

with the investigation of Abdulmutallab is an assumptive immigration process:

exercise given the covert nature of CIA operations, there can be little doubt that CIA counseled against visa

What is our

revocation so as not to spook Abdulmutallab and [immigration/visa policy] field? And the fundamental

maintain the operational flexibility necessary to o t i utio …is to take i fo atio , i tel that has

eventually roll up the AQAP network. 123 been gathered and analyzed, and to push that out --

push that out operationally where it needs to go, or CIA s i ol e e t ith the ase of A dul utalla ,

push that out, most importantly -- or as importantly - however, extends beyond its role in counseling against - to state and local law enforcement. 119

visa revocation. Intelligence officers in the Abuja Embassy notified CIA headquarters of the meeting with

A dul utalla s fathe . Media a ou ts suggest CIA notion that it views its primary role in the intelligence

Other statements by DHS officials have reinforced the

analysts immediately compiled biographical information process with respect to immigration information is that

on Abdulmutallab. 124 Ho e e , due to a o e sight of consumer, rather than producer. 120 istake of a i di idual offi e

ithi CIA, the Despite

i fo atio as ot disse i ated i a a that it as responsibilities among State, DHS, and NCTC revealed by

the uncertainties

widely available to the rest of the intelligence congressional inquiry regarding the visa revocation

u it . 125

process, it is unlikely that this confusion played a major While this failure to share information might evoke ole i the de isio ot to e oke A dul utalla s isa.

the information hoarding among the IC that, the 9/11 There is, in fact, a far more compelling explanation.

Commission concluded, permitted the 9/11 plotters to carry their plan through to completion, NCTC Director

C.G OING C OMMANDO : T HE C ENTRAL I NTELLIGENCE

Leite i sisted that this istake as still diffe e t f o 126

A GENCY AND T HE E XPLANATION U NDERNEATH IT

what happened on 9/11.

Leiter did not publicly

A LL attribute much significance to the oversight and, in fact, lauded State and CIA for convening after the meeting

The driving force behind the decision not to revoke with Alhaji Umaru and deciding to make a

recommendation to NCTC to nominate Abdulmutallab refrain of State officials during congressional testimony:

A dul utalla s isa a e i fe ed f o a o

for inclusion on TIDE.

The e ha e ee u e ous ases he e ou u ilate al and uncoordinated revocation would have disrupted

D. L ESSONS F ROM A BUJA : T HE N AKED T RUTH important investigations that were underway by one of

The handling of information obtained from the sanction this practice: the Foreign Affairs Manual

ou atio al se u it pa t e s. 121

Federal regulations

November 19 and 20 meetings, the decision not to instructs consular officers, when they suspect a visa

e oke A dul utalla s isa, a d hate e espo si e revocation may involve law enforcement interests, to

(and unknown) action taken as a result of the consult with other agencies to determine whether

information should be contextualized with reference to revocation would hinder a law enforcement or

the discussion offered in Part II. The confusion over intelligence investigation. 122

Reports indicating that

who, between State and NCTC, bore the burden of

A dul utalla s fathe et ith CIA offi e s du i g his flagging Abdulmutallab as a threat worthy of visit to the Embassy in Abuja suggest CIA had a part to

consideration for inclusion on the Selectee or No Fly play in the decision not to revoke the visa.

watchlists was never resolved because State deferred to CIA, whose absence in the public records detailing

CIA s judg e t i ho to add ess the i fo atio the events leading up to the Christmas Day attack is both

provided by Alhaji Umaru. Neither State nor NCTC felt they needed to take the initiative on flagging

119 Aviation Security and Flight 253 Before the S. Comm. on

Commerce, supra note 22 (testimony of DHS Secretary Janet Kennedy acknowledged that this was indeed the case with Napolitano). 120

A dul utalla , oti g, A d o e of the e e s of the IC -- Securing America's Safety: Improving the Effectiveness of

and we'd be glad to give you that out of -- in private -- said, Anti-Terrorism Tools and Inter-Agency Communication Before "Please, do not revoke this visa. We have eyes on this person.

the S. Comm. on the Judiciary supra note 104, (statement of We are following this person who has the visa for the purpose David Heyman, Assistant Secretary for Policy, Department of

of trying to roll up an entire network, not just stop one person," Homeland Security).

supra, note 116.

Flight 253: Learning Lessons from an Averted Tragedy Before 124 Early Leads Before the Attack, supra note 11. the H. Comm. on Homeland Security, supra note 116. Kennedy

125 Aviation Security and Flight 253 Before the S. Comm. on explicitly stated that this was the case with Abdulmutallab, see

Commerce, supra note 22 (testimony of Michael Leiter, infra note 122. 122

Director, NCTC).

22 CFR § 41.

126 Id.

Abdulmutallab; CIA was on the case. Although any

IV. T HE B LAME G AME : U NDER W HERE C AN W E H IDE ?

clandestine operations conducted against Abdulmutallab and AQAP as a result of the meetings are classified, it is a

It did not take long after the Christmas Day attack safe assu ptio that D“OP s ole i ope atio al pla i g

for the finger-pointing to begin in earnest. Many blamed NCTC for failing to piece together information. as egligi le. As dis ussed i Pa t II, CIA s p i a i 127 NCTC conducting CT operations, taken together with the fact

Director Leiter was lambasted for going on vacation that it did not share its biographical profile of

immediately following the attack. 128 Others held CIA Abdulmutallab with NCTC, suggest that any action taken

responsible for not having shared biographical data on subsequent to the Abuja meetings did not involve much

Abdulmutallab with other agencies. 129 State was roundly consultation with NCTC despite its nominative role as

iti ized fo faili g to a t to e oke A dul utalla s 130 the CT o

u it s e t al hu . isa follo i g his fathe s isit to the Abuja consulate. Given the difficulty in discerning the particulars of

DHS Secretary Napolitano was taken to task in absentia CIA action taken as a result of the Abuja meeting, it

by a congressional member for not attending a cannot be categorically concluded that this episode is

The former vice president, illustrative of the problems identified in Part II.

congressional hearing. 131

Dick Cheney, launched withering attacks on President However, the fact that both State and NCTC were

Obama for demonstrating weakness in the War on justified in not assuming responsibility for taking further

Terror. 132 Administration officials shot back, blaming the action on visa revocation is telling. NCTC did not follow

previous administration for allowing al Qaeda to regroup up on the information for any or all of several reasons: it

by shifting its focus to military operations in Iraq. 133 It did not have the resources to do so and was therefore

did not take long for administration officials to start unable to correlate the information collected at Abuja

taking aim at one another. 134

ith othe a aila le dots ; “tate eithe did ot ealize Eager to assign blame, 135 many congressional or did not properly emphasize the gravity of the threat in

members demanded to know why no one had been fired the Visa Viper cable; and/or CIA had assumed

Either the desire to score responsibility for formulating and conducting an

as a result of the attack. 136

operational response as a result of the information

128 obtained from Alhaji Umaru. State was similarly Spy Agencies Failed to Collate Clues on Terror, supra note 29. White House Defe se Terror Aide s Va atio Da After De . blameless, as it rightly deferred to NCTC to search for

25 Attack, N EW Y ORK P OST , Jan. 7, 2010. further information on Abdulmutallab – which did not

129 Spy Agencies Failed to Collate Clues on Terror, supra note 29. request any further information from State – and it

130 At the e least, he should ha e ee e ui ed to epo t to deferred to CIA to formulate operational follow-up.

our embassy and explain his activities and answer questions Assuming CIA formulated a plan without consulting

before he was allowed to retain his visa. The State Department NCTC regarding its implementation, it too should not be

has this autho it …But the “tate Depa t e t failed to a t. Most held to account. Its actions accorded with its historical disturbing, the State Department is also pointing fingers at othe age ies to e plai this failu e. Lessons and Implications,

autonomy and purpose, and there is no statutory p o isio e ui i g it to defe to NCTC s judg e t i Part I Before the S. Homeland Security Comm, supra note 36 (remarks by Sen. Susan Collins). NCTC Director Leiter jokingly

operational planning.

responded that he was surprised to learn from the State recommendations in Parts V and VI, respectively, do not

131 Department that NCTC had visa revocation authority. Id. to suggest that NCTC should be dictating how CIA carries

‘ep. Paul B ou stated he as i e sed that “e eta out CT operations. The discussion above is offered to

Napolitano was not in attendance (she was in Spain during the highlight that DSOP is incapable of ensuring that it even

hearing, negotiating for stricter passenger screening standards

be made aware of CIA activity so that it can, at the very in foreign airports). Flight 253: Learning Lessons from an least, adjust its planning process to account for ongoing Averted Tragedy Before the H. Comm. on Homeland Security,

supra note 116.

operations. It is also offered to raise a more 132 Spy Agencies Failed to Collate Clues on Terror, supra note 29. fundamental question: if, as suggested above, State,

NCTC, and CIA performed largely in accordance with 134 Id. Although Leiter largely accepted responsibility, he offered

thei desig , ho did the CT o

so e iti is of othe offi es, stati g I as su p ised at the Abdulmutallab from boarding Flight 253?

u it fail to stop

sea hes e e t hitti g agai st Proponents of maintaining the statutory status quo

e te t to hi h othe age

e iti al data sets that ight e u o e ed this a d the of the CT community may argue that the connection

highlighted the fo NCTC… Lessons and Implications, Part I between the legislative underpinnings of the CT Before the S. Homeland Security Comm., supra note 36. FBI Director Mueller, when asked during congressional testimony

community and the handling of the information which agency is responsible for conducting follow-up provided by Alhaji Umaru at Abuja is tenuous. But this

investigations on threat streams, seemed to point the finger at argument does not address a more salient question:

CIA i stati g that so e pe so should ha e, a d did ot, pass what should the appropriate response to the Abuja

135 information to NCTC prior to the attack. meetings have been? The answer to that question

“e . Do ga stated, This is a tough jo . But still, I -- I think should entail a consideration of the legislative

you and us need to understand what failed, and who failed and framework, discussed in Part II, and the function and

ho's a ou ta le. Aviation Security and Flight 253 Before the purpose of NCTC, CIA, and State in the U.S. S. Comm. on Commerce, supra note 22. 136 Flight 253: Learning Lessons from an Averted Tragedy Before go e

e t s g eate CT effo ts. the H. Comm. on Homeland Security, supra note 116 (Rep. B ou de la ed, I thi k the p eside t of the U ited “tates should ask for the -- the resignation of Secretary Napolitano and get somebody there who is not in la- la la d . “e . M Cai , i a separate hearing, inquired of administration officials as to e t s g eate CT effo ts. the H. Comm. on Homeland Security, supra note 116 (Rep. B ou de la ed, I thi k the p eside t of the U ited “tates should ask for the -- the resignation of Secretary Napolitano and get somebody there who is not in la- la la d . “e . M Cai , i a separate hearing, inquired of administration officials as to

u it s fu tion and capabilities Congress had stacked the deck against CT efforts prevented many in Congress from parsing through the

through deficient legislation and the CT community complexity of events leading up to the Christmas Day

performed according to its design. If the deck is to be attack to determine what went wrong. In response to

reshuffled to ensure a higher probability of success in CT Co g ess s a age of a usato uestio i g, CT offi ials

efforts, Congress will have to play a critical role. As offered assurances that the system is sound and needs

much of the information regarding terrorist threats and only minor modification. Any additional authorities

remains classified, congressional required by the DNI and/or NCTC will be minor. 137 Rest

CT

operations

understanding of the CT community is particularly assured, remedial measures

important. 141 As the PNSR found, congressional support improvements are being made, responsibilities are being

are being taken,

and oversight of NCTC is complicated by the fact that straightened out, 138 and a comprehensive interagency

Co g ess does ot full u de sta d NCTC s fu tio o process is taking place to ensure that this does not

value. 142 Throughout congressional hearings committee happen again. Surely, a person who leaves a trail

members repeatedly expressed confusion regarding identical to that of Abdulmutallab will not have the

what NCTC does or is capable of doing. 143 opportunity to board a U.S.-bound flight. 139 That is not to say that the cause for further reform Much of the dialogue in congressional hearings

is lost, however. During the hearings, certain lines of was tragically misguided. Aside from simple human

questioning homed in on the confusion in authority error and failure to follow protocol as described in Part

between NCTC and the rest of the IC, 144 revealing an

III, neither of which were determinative factors in the acknowledgment by several congressional members of a ulti ate out o e, it is ot lea that a failu e

central problem, legislative ambiguity, affecting CT actually o u ed. E e ith espe t to NCTC s failu e

A hearing before the Senate Committee on to o e t the dots, Leite s o

efforts. 145

Homeland Security and Governmental Affairs got to the are particularly noteworthy:

e ts o the atte

The… atego of -- of failing is did you connect these 141 Go . Tho as Kea testified, s o the pu li a ot eall get two pieces of data? I frankly think that [this]

involved because of the nature of the information. So we are category is a lot harder to identify and -- and clearly

dependent in this area, more than any other, on congressional say you made a mistake. We want analysts to do

oversight. And that's why we made such a point in our report of that. But whether or not they actually could, and

sa i g ho i po ta t e thought o g essio al o e sight as. piece that all together, given the resources, the

Intelligence Reform: The Lessons and Implications of the workload they are facing, it's -- I think it's much more

Christmas Day Attack, Part II Before the S. Comm. on Homeland difficult to say that that was a clear failure. 140 Security and Governmental Affairs, supra note 44. 142 EPORT

at XV, supra note 64. While many congressional members were content to

143 PNSR R

“e uri g A eri a s “afet : I pro i g the Effe ti e ess of Anti-Terrorism Tools and Inter-Agency Communication Before

chalk the near success of the AQAP plot up to a failure by the S. Comm. on the Judiciary, supra note 104 (Senator the CT

o u it , Leite s testi o , pe haps Whitehouse expressed confusion regarding NCTC capabilities, unintentionally, seemed to implicitly implore Congress

stati g A d I do 't k o that ou NCTC s ste is desig ed to to conduct a more thorough examination of the

play in that quick a timeline or even to search for passenger adequacy of the current structure of the CT community.

characteristics that would seem to be inconsistent with the That the AQAP plot was not detected can only be

nature of the -- 144 of the flight .

regarded as a "failure" insofar as the CT community did ‘ep. Pas ell s state e t ith espe t to the “tate Depa t e t s isspelli g of A dul utalla s a e as particularly astute: This is human error, but maybe it's human

whether they had fired any personnel as a result of the attack). error precipitated by the fact that we have created a Lessons and Implications, Part I Before the S. Homeland Security

bureaucratic nightmare so that no one is held accountable. 137 Comm., supra note 36.

Flight 253: Learning Lessons from an Averted Tragedy Before Lessons and Implications, Part I Before the S. Homeland

the H. Comm. on Homeland Security, supra note 116. Security Comm., supra

ote DNI Blai oted t he 145 The Lessons and Implications of the Christmas Day Attack: authorities of the DNI, I think, heretofore were able to make the

Intelligence Reform and Interagency Integration Before the S. big pieces happen. There was lots of -- there was lots of sharing

Comm. on Homeland Security and Governmental Affairs, supra of information in this -- in this case. What we're finding now is

note 71. Senators Lieberman and Collins are acutely aware of some individual pieces in which I think more authority may be

the legislati e defi ie ies affli ti g NCTC. “e ato Colli s required). 138

opening statement in a March 17 hearing raised several salient Blair: We have a 30-day deadline that the president

points:

established to provide authoritative proposed pieces of paper that could be anything from executive order down to an

The question is, however, whether or not these intelligence community directive that -- which I would sign or --

authorities have been used as often, as effectively, or similar authorities within Secretary Napolitano's

and in the manner that Congress intended. For organization. 139

example, does the institutional resistance of Current and Projected Threats to the U.S. Before the S. Select

agencies like the CIA make the use of these Comm. on Intelligence, 111th Cong. (Feb. 2, 2010) (DNI Dennis

authorities such an onerous o deal that the…DNI is Blair confidently asse ted that, I' o fide t that so eo e

hesitant to embark upon the journey? Is the DNI who left the trail that Mr. Abdulmutallab did would now be --

concerned that exercising these authorities more 140 ould o e fou d .

aggressively might create ill will that will make it Flight 253: Learning Lessons from an Averted Tragedy Before

even more difficult to coordinate activities in other the H. Comm. on Homeland Security, supra note 116 (statement

areas?

by Michael Leiter, Director of NCTC).

hea t of the atte . A fo e DNI offi ial s testi o development of the CT community —they are piecemeal, noted many of the successes of intelligence reform and

ad hoc responses to the most recent threatening event. ably attacked many of the common criticisms of the DNI,

The most difficult challenge facing the CT concluding that executive branch support and guidance

u it is de idi g hat s a th eat i the fi st is essential to addressing the issues of overlapping and

This task often falls to NCTC and CIA. otherwise unclear lines of authority. 146

i sta e. 151

Information sharing and analysis are the key ingredients offi ial put the o us else he e. The offi ial s f a k

A former CIA

to identifying these threats. Information sharing has assessme t as that Co g ess ga e the DNI oad

improved since IRTPA, but problems remain. Some of responsibility, but not clear authority to carry out many

those problems were made clear by the events leading of these espo si ilities, a d this o fusio lies at the

up to Christmas Day, but they were relatively minor in hea t of the p o le . 147 CIA s i stitutio al ese t e t scale and it is doubtful they contributed in any significant

towards the DNI is well-documented and stems from a measure to the inability to detect the AQAP plot. number of perceived affronts, not least of which is the

Information analysis is the primary means to DNI s o i ati e p i a i the IC, ut the offi ial s

identify threats. Given the incredibly high traffic of testi o offe s lea e ide e that f i tio a d

intelligence received by the IC, technological limitations ist ust a o g the IC p i a il esults f o o fusio

that hinder the ability to sift through the data, and over authority and function. All sides of the debate

insufficient manpower to manage the data, connecting seem to agree that the allocation of authorities and

f ag e ta dots ill e ai a p i a halle ge. responsibilities of the DNI and NCTC should be clarified

Technological improvements are being made, but they by, at the very least, the president. The CIA official went

will do little if NCTC is unable to hire more analysts,

a step fu the , halle gi g Co g ess to take a f esh look receive raw data and finished intelligence products from at th e statute. 148 those components in a timely manner, and solicit follow- up assistance from the rest of the IC.

identified, follow up investigation must run those threats to the ground. The complexity of the system we have in place

V. C ONCLUSION : A LWAYS B E P REPARED , S EMPER U BI S UB U BI When threats

are

NCTC claims to be expanding the scope of threat streams toda to e su e the atio s se u it f o te o is a

that e ei e fu the i estigatio a d taski g pu suit

be overwhelming. The system reflects the broad tea s ith this spe ifi pu pose. 152 These narrowly- diversity of major players, dozens of strategic objectives,

focused teams, however, are analytic units only. As and an intricate web of relationships, roles, and

described by one media report, the new pursuit teams responsibilities. It evolved largely in a piecemeal, ad hoc

e espo si le fo ide tif i g th eads of fashion, without the benefit of an overarching strategy

ill

information — the a i g M . A dul utalla s fathe or blueprint for how best to organize for success. In part,

gave to officials at the United States Embassy in Nigeria, the complexity of the current system is due to successive

for instance — and tracking and connecting them to administrations redefining relationships, roles, and

othe tips. 153 While the development of pursuit teams responsibilities often without rescinding or fully

is an obvious step in the right direction, it is only a first integrating with the direction established by their 149

step. Responding to the intelligence is the other part of predecessors. the equation, and inadequate interagency cooperation

The s ste i eakdo s a d hu a e o s and disunity of effort, identified by the 9/11 Commission identified by the White House Review only partially

as fatal flaws in the CT system that prevented detection account for the inability of the CT community to identify

and interdiction of al Qaeda cell members who carried and disrupt the Christmas Day attack. Despite

out the 9/11 attacks, 154 continue to plague the CT inconsequential human errors and failure to follow

community.

protocol the system, as DHS Secretary Napolitano was

Intelligence experts categorically advocate for iti ized fo sa i g, o ked.

A failu e should

more senior-level support and involvement, particularly

be regarded as a natural consequence of an inadequate from the President, in clarifying the lines of authority legislative framework underlying the CT community.

The President has taken a number of This framework gives rise to a disunity of effort that bears far more resemblance to the disjointed and

within the IC. 155

divergent efforts of the IC and law enforcement agencies 151 Lessons and Implications, Part I Before the S. Homeland prior to the attacks on 9/11 than either the

Security Comm., supra note 36 (testimony of Michael Leiter, administration or Congress care to admit. The non-

152 Director of NCTC). Id.

disruptive improvements being made by DHS, State, 153 Eric Schmitt, New Teams Connect Dots on Terror Plots, N.Y. NCTC, and FBI are consistent with the overall

T IMES 154 , Jan. 29, 2010, appearing on A3.

155 9/11 Commission Report, at 401, supra note 38. The Lessons and Implications of the Christmas Day Attack:

146 Id. Testimony of the Hon. Benjamin Powell, Former General Intelligence Reform and Interagency Integration Before the S. Counsel to the office of the DNI. 147

Comm. on Homeland Security and Governmental Affairs, supra Id. Testimony of the Hon. Jeffrey H. Smith, former General

note 71 (testimony of Benjamin Powell, Former General Counsel to CIA.

Counsel to DNI); also Gov. Thomas Kean goes so far as to say it 148 Id.

is the sole responsibility of the President to clear up authority 149 PNSR R EPORT

at 1, supra note 64. a d udgeta issues: These a iguities a ause issio Peter Baker and Scott Shane, Obama Seeks to Reassure U.S.

confusion and sometimes a lack of clarity, perhaps, in the lanes After Bombing Attempt, N.Y. T IMES , Dec. 28, 2009, appearing at

in the road. But the burden is on the president to be clear on A1.

who is in charge of the intelligence community and where final who is in charge of the intelligence community and where final

VI. R ECOMMENDATIONS : S TITCHING U P THE H OLES

Christmas Day attack, he directed NCTC to design a T HAT L EAVE U S D ANGEROUSLY E XPOSED p o ess

he e the e ould e follo -up of priority th eat st ea s. Leite elie es this

ill e a

I tellige e efo is i o plete. A dul utalla s

e po e i g of st ategi ope atio al pla i g that ill ability to slip under the radar resulted from a lack of allo NCTC to de a d a ou ta ilit at a o e ta ti al

clear-cut delineation of authority and responsibility lev

el fo o e a d a oade a ge of th eats. 156 among the members of the CT community. It is Intelligence officials by and large seem content that

incumbent upon the President and Congress to eliminate executive branch guidance will address the confusion of

the present confusion and complete the reforms of the authority, and they largely deny that any substantive

IC undertaken in response to 9/11. Below are statutory amendment needs to occur to address the

recommendations of measure to achieve this objective. flaws revealed by the Christmas Day attack. It is also

The o flatio of the te s st ategi a d worth considering that the Christmas Day attack might

ope atio al i the a e a d issio of the Di e to ate have provided the impetus for CT offices to submit to

of “t ategi Ope atio al Pla i g has hi de ed D“OP 159 NCTC s i te age

p o esses. since its inception and rema i s a sig ifi a t p o le . However, there is only so much clarity that

As oted, joi t, ot st ategi , as the des ipto executive orders can provide amidst a background of

preferred by the 9/11 Commission. The term was legislative ambiguity. After all, §1018 called for this

opposed by those CT components charged with carrying exact guidance in 2004 by instructing the president to

out operations, which bristled at the possibility of ceding issue guideli es to e su e the effe ti e i ple e tatio 160 authority to a DNI-based office. The te st ategi ,

a d e e utio …of the autho ities g a ted to the DNI, 157 which was meant to emphasize the role of DSOP, and and this guidance, in the form of an amended EO 12,333,

more generally NCTC, as the interlocutor between the has brought the IC to its current state. 158 As long as the

NSC and various CT components charged with u de l i g statuto egi e li its NCTC s a ilit to

ope atio s, has put D“OP i a pla i g o a s la d. solicit meaningful interagency cooperation while 161 One way to address this problem is to bifurcate

i sisti g NCTC se e as the e t al hu of all CT effo ts, the D“OP i to st ategi a d ta ti al o po e ts. improvement in CT coordination is likely to be short-

However, bifurcation is a minor adjustment and does not lived.

address the underlying, more contentious issue of which office properly holds the authority to conduct operations.

A former DSOP official argues that although the authority to execute operations should not be granted to DSOP, it should be given increased authority over its

resources and personnel. 162

Increased authority might

improve the credibility of the DSOP among members of

autho it lies o udget a d o pe so el atte s. Lee the IC and increase interagency participation in the Hamilton agrees with this assessment. Intelligence Reform: The

planning process. However, this model, like that of the Lessons and Implications of the Christmas Day Attack, Part II Joint Chiefs of Staff, seems more adequately suited to

Before the S. Comm. on Homeland Security and Governmental bolstering strategic planning rather than improving the Affairs, supra note 44. 156

IC s a ilit to respond to the exigencies of the day, and Lessons and Implications, Part I Before the S. Homeland

does ot i g D“OP full i the loop ith espe t to Security Comm., supra note 36 (testimony of Michael Leiter,

CT operational planning.

157 Director of NCTC). Both the military, on the one hand, and the 158 IRTPA, P.L. 108-458. Lessons and Implications, Part I Before the S. Homeland

intelligence and law enforcement communities, on the Security Comm., supra ote . DNI De is Blai s e a ks at a

other, engage in strategic planning. A critical difference recent congressional hearing provide a frank assessment of the

between the two is that the CT efforts of intelligence and current state of the CT community:

law enforcement communities are more heavily focused on taking preventive action. For that reason, the Joint

I thi k ou' e putti g ou fi ge …o a ha a te isti Chiefs model is ill-suited for the IC. As there is general of the -- this combating terrorism effort that we

agreement that NCTC should not have operational need to tighten down with the -- with the strong

enthusiasm for counterterrorism, the -- a sense that authority, there are two alternative methods of ensuring

we all have to be working on it. I think we did not the IC s espo si e ess to NCTC th ough e e uti e drive some of these responsibilities as far as we

order, both of which require dramatic transformation of should of in terms of, "No kidding. OK, everybody's --

everybody's helping, but who is it -- who is it at the end?" And

I thi k… e eed to, a d a e goi g to 159 The Lessons and Implications of the Christmas Day Attack: tighten right down so that primary responsibilities,

Intelligence Reform and Interagency Integration Before the S. support responsibilities and ultimate responsibility

Comm. on Homeland Security and Governmental Affairs, supra are made to -- are – are made clearer. Because there -- there is a tendency to say, "Hey, I've got this new

160 note 71 (testimony of Richard Nelson, former DSOP official). PNSR R EPORT at 49-51, supra note 64. capability. Let me help you." And -- and we ought to

161 The Christmas Day Attack: Intelligence Reform and do that. But we should not allow that to interfere

Interagency Integration Before the S. Comm. on Homeland with a -- with a clear understanding of who -- who

Security and Governmental Affairs, supra note 71 (testimony of has the ultimate call.

Richard Nelson, former DSOP official). 162 Id.

the IC. execute operations in place. 165 However, Congress First, all terrorism-focused analytical components

should amend 50 USC § 404o(d)(2) to conform to the of the IC could be placed literally under the roof of NCTC.

recommendations of the 9/11 Commission and give Foldi g te o is a al sts i to the NCTC s Di e to ate of

DSOP a part to play in operational planning. Intelligence, with NCTC exerting direct authority over the

With respect to the primary missions of the NCTC, analysts, presents significant logistical obstacles that

the a e ded statute ould ead as follo s: To o du t were present in the initial establishment of the DNI.

joint strategic operational planning for counterterrorism Ho e e , NCTC s a so ptio of a al sts f o the IC at

a ti ities a e d e t highlighted . The ha ge is large would force every member of the IC to look to

ostensibly minor, but consequential in effect. DSOP NCTC for strategic and operational guidance, thereby

would be given a firmer statutory basis for involvement fulfilling the statutory mandate that NCTC serve as the

in interagency planning processes. The amendment also central hub of information sharing. By giving DSOP

p ese es the st ategi fu tio of D“OP, as a IC unfettered access to all terrorist threat-related

officials have acknowledged that strategic planning information and personnel by virtue of its proximity to

remains a glaring weakness of the IC. Furthermore, the strengthened NCTC DI, DSOP would have a better

NCTC has p o e apa le of defi i g the st ategi vantage point from which to assign roles and

ope atio al pa ado , p ese ti g a othe justifi atio responsibilities in CT operations.

fo ai tai i g its st ategi aspe t.

A second, more practicable but perhaps no less The second statutory amendment required to t a sfo ati e optio is to fold NCTC i to CIA s CTC. The

strengthen DSOP and eliminate confusion will likely be

far more politically challenging to codify. CIA is the o l age 166 that s still… e t al in terms Section of its relationships with other IC components, and it

404o(j)(2) of 50 USC, pertaining to the DSOP, currently remains the only entity responsible for the production of

reads (taking conforming changes from the earlier all-source intelligence and capable of conducting covert

suggested amendment into account): operations (aside from DoD). Relocating NCTC would strengthen the vertical coordination of CT efforts from

(2)(a) Joint strategic operational planning shall the NSC down to satellite programmers and operations

include the mission, objectives to be achieved, tasks officers in the field. With institutionalized collaboration

to be performed, interagency coordination of with NCTC, CTC would have access to all terrorism- operational activities, and the assignment of roles elated i fo atio i NCTC s DI, a d D“OP ould ha e and responsibilities [amendment emphasized].

proximity to those it charges with carrying out To ensure compliance with DSOP functions, Congress operations. NCTC/CTC would form a symbiotic

could amend current law by adding § 404o(j)(2)(b), relationship, with each organization accounting for the

which would state:

weaknesses of the other: NCTC would gain an institutionalized advisory role with respect to

(b) Those agencies identified by DSOP as necessary operational planning while CTC would benefit from

for the performance of missions under (2)(a) shall NCTC s statuto ole as the e tral hub of international

comply with the tasks assigned them by DSOP terrorism-related information. Although one result of

pursuant to (2)(a) unless they can show cause that the aggregation of NCTC and CTC would undercut a

compliance unduly burdens agency resources or central purpose of the 2004 reforms by returning CIA to

requires the agency to perform tasks contrary to preeminence among the IC at the cost of further those permitted by statute.

di i utio of the DNI s authority, clear statutory With this language, NCTC will be given a place at the la guage esta lishi g the DNI s supe io ole a d

table in joint strategic operational planning without granting additional budget and personnel authority to

running afoul of the pr ohi itio agai st NCTC s the DNI would ensure that NCTC and CTC remain subject

conducting operations. It will allow NCTC to function in to DNI authority.

accordance with the recommendations of the 9/11 These reforms can be effectuated by executive

Commission and will permit DSOP to fulfill its statutory order without running afoul of existing statutes. The

obligations.

President has broad authority to institutionalize Co g ess s atte pts to hold so eo e, a o e cooperation and coordination of CT activities through

accountable for the Christmas Day attack were not NCTC, but Congress also has a part to play. For the

guided solely by the need to score political points. reasons mentioned above, Congress should leave the

E su i g a ou ta ilit is i deed a aiso d et e of provision denying the NCTC Director the authority to

congressional committees. However, the critical point here is that given diffuse, conflicting, and overlapping authorities and responsibilities among members of the

163 See generally Patrick Neary, Intelligence Reform, 2001-2009: CT community, there is no adequate means of Requiescat in Pace? S TUDIES IN I NTELLIGENCE Vol. 54, No. 1

determining accountability. Presidents, current and (Extracts, March 2010) (describing the logistical difficulties,

former, can be blamed for providing insufficient o pou ded the IC s elu ta e to suppo t the DNI, i

establishing even a physical presence for the DNI).

164 The Lessons and Implications of the Christmas Day Attack: 165

50 USC § 404o(g).

Intelligence Reform and Interagency Integration Before the S. 166 As the Ho . Lee Ha ilto testified, that statute as e Comm. on Homeland Security and Governmental Affairs, supra

hard to pass. And it is not going to be amended quickly or soon, note 71 (testimony of the Hon. Jeffrey H. Smith, former General

so you're going to be l i i g ith it. Aviation Security and Flight Counsel to CIA).

253 Before the S. Comm. on Commerce, supra note 22.

guidance pursuant to § 1018 of IRTPA. However, to put A dul utalla o the T“DB; CIA s failu e to sea h Congress should recognize itself as responsible in the

information relating to first instance for establishing a CT community of such

databases

containing

Abdulmutallab; the failure to disseminate information to complexity as to give rise to the conditions that allowed

all app op iate ele e ts of CIA; CIA s failu e to Abdulmutallab to come so close to bringing down Flight

disseminate key reporting until after the attempted 253. By clarifying roles and responsibilities within the CT

atta k; CTC s li ited a e sea h hi h failed to community and offering necessary support to certain CT

produce key information on Abdulmutallab; CTC entities to enable them to fulfill their statutory mission,

a al sts failu e to connect the dots of information Congress would improve its ability to ensure

elati g to A dul utalla ; NCTC DI s failu e to o e t accountability in the conduct of CT operations.

the dots; a d NCTC Wat hlisti g Offi e s failu e to As the PN“‘ fou d, a ing the idea of vesting

conduct additional research on Abdulmutallab. 171 Most one individual with directive authority over departments

p edi ta l , ““CI faulted IC a al sts fo ot o e ti g

a d age ies…the e is o sil e ullet—no single ke epo ts pa tl ide tif i g A dul utalla , faili g to recommendation that ensures an integrated and unified

disseminate all available information on Abdulmutallab, ou te te o is issio . 167 Several steps need to be and focusing on the threat posed by AQAP to U.S.

taken to strengthen the CT community, and Congress interests in Yemen rather than to the homeland. 172 and the President bear the burden. Intelligence reform,

e datio s, like its fi di gs, ere begun in 2004, is not yet finished. The failu e to

““CI s e o

largely predictable. Regarding visa revocation, SSCI connect the dots relating to Abdulmutallab has been

i depe de t epeatedl des i ed as a failu e to alk the last

eo

e ded that “tate e e ise

judg e t a d autho it i the e o atio p o ess a d tactical m ile. It is time to walk the last tactical mile.

e datio s to “tate to de o Abdulmutallab should have never been allowed to board

that NCTC ake e o

revoke a U.S. visa based on terrorism-related

a U.S.-bound flight and, but for perhaps a deficient

tellige e. 173

On the inadequacy of search-related

e plosi e de i e, its ope ato s i a ilit to use it, a d the technology, SSCI charged certain department and agency courage and quick thinking of Flight

heads with undertaking a dizzying array of navel-gazing and crew, AQAP would have carried out the most

s passe ge s

de elop, et . 174 In significant terrorist attack against the U.S. since 9/11.

conclusions and recommendations regarding the failure Congress and the President have a limited opportunity

to connect the dots of information on Abdulmutallab, to right the ship and complete the implementation of

SSCI simply broadened its vocabulary, tasking reforms recommended by the 9/11 Commission.

o po e ts of the IC ith e su i g that a al sts u de sta d thei espo si ilit , o ga iz i g offi es i

VII. A B RIEF E PILOGUE a a e that opti izes a al sts a ility to understand

o du ti g additio al Less than a month following the completion of this

a aila le i fo atio , a d

research on targets. 175 Those follo i g Co g ess s analysis, the Senate Select Committee on Intelligence

failu es that allo ed (SSCI) made public portions of a 55-page classified report

i estigatio of the

Abdulmutallab to board Flight 253 were likely least entitled, Attempted Terrorist Attack on Northwest 168

e datio that the DNI: Airlines Flight 253.

su p ised ““CI s e o

The unclassified version of the

report contained only an Executive Summary and

roles and responsibilities of o

[R]eview

the

e ts. Fo tu atel , ““CI s p i a fi di gs e e counterterrorism analysts throughout the [IC] to included in the summary:

ensure that all agencies understand their counterterrorism role, their role in identifying and

 analyzing threats to the U.S. homeland, and that [CT] NCTC as ot o ga ized ade uatel to fulfill its issio s analysts actively collaborate across the IC to identify

 No single agency considered itself responsible fo t a ki g a d ide tif i g all te o is

172 Id.

th eats Id. The epo t s o l e elato poi ts of failu e that had not  Technology across the IC was inadequate to

been previously discussed at length in committee hearings were providing analysts with search enhancing tools

those of the IC s hief sig als i tellige e age , the N“A, needed to identify Abdulmutallab 169 opportunities that could have provided information on hi h ““CI faulted fo ot pu sui g pote tial olle tio

a d faili g to o i ate A dul utalla fo ““CI also ide tified fou tee spe ifi poi ts of failu e,

Abdulmutallab

watchlisting based on available information. However, neither

i ludi g a se ies of hu a e o s, te h i al p o le s, the unclassified portion of the report nor committee hearings systemic obstacles, analytical misjudgments, and

shed light on which agency, if any, holds responsibility for o peti g p io ities that o t i uted to the failu e to

tasking NSA with collecting additional information. The identify Abdulmutallab prior to his boarding Flight

o lusio a ot e d a f o ““CI s epo t that N“A itself 253. 170

The points of failure listed by SSCI were was responsible for determining that additional collection distributed among several agencies, and included:

activities needed to be undertaken to identify Abdulmutallab, “tate s failu e to e oke A dul utalla s isa; the failu e

pa ti ula l si e ““CI s ual s ith N“A seemed to have more to do ith its a klog of epo ts that e ui e e ie fo

at hlisti g athe tha its failu e to a t o its o i itiati e to 167

168 PNSR R EPORT at 13, supra note 64. strengthen its collection efforts against AQAP. S. R EP . N O . 111-119 (2010). 169 173 174 Id. at 4.

170 Id. at 1-2.

Id. at 6.

Id. at 2.

175 Id. at 6-9.

such threats . 176 continue to hinder efforts to combat the threat of terrorism.

I fai ess to ““CI,

a of the epo t s

recommendations remained classified. Giving SSCI the benefit of the doubt, it is worth considering that the classified recommendations contained more substance than those included in the Executive Summary. SSCI is to

be commended for recognizing that, contrary to assertions by administration officials that the failure to identify Abdulmutallab was unlike those that preceded 9/11 in that it was a failure to understand available intelligence rather than a failure to collect and share

a of the failu es that allo ed Abdulmutallab to board Flight 253 were, in fact, reminiscent of those identified in the 9/11 Commission Report.

i fo atio ,

e d, ““CI s fi di gs e e de o st ati e of Co g ess s failu e to take espo si ilit fo its o ole in the creation of a CT community rife with ambiguity in the roles and responsibilities of its constitutive parts. 177 Perhaps the most telling example of C o g ess i a ilit and/or unwillingness to address the uncertainty among the CT community was the fact that the report, while laying blame for the near success of the Christmas Day attack across the CT community, seemed to single out NCTC as the most culpable entity. The report cited the st o g la guage of NCTC s statuto fou datio a i g it the central hub of all terrorism-related information,

In the

o ludi g d espite its statuto issio , NCTC did ot believe it was the sole agency in the IC for piecing t ogethe all te o is th eats. The epo t took NCTC to task fo fail i g to o ga ize itself i a

ae

o siste t ith Co g ess s i te t o i a a e that would clearly identify the roles and responsibilities 178

e essa to o plete its issio

while making no

e tio of Co g ess s ulpa ilit i u de utti g NCTC s

a ilit to fulfill its issio . ““CI s e o

e datio s

e e a fu the efle tio of Co g ess i a ilit to understand its central role in creating and perpetuating

the system it so often criticizes. The unclassified portions of SSCI report validate the

e t al fi di gs of this stud . Co g ess s ide tifi atio of the a ious failu es of the CT community misses the point: the system performed in accordance with its statutory design. Co g ess s alls fo the CT o

u it to e ie , stud , e a i e,

de elop, e su e, et . ight add ess the spe ifi faili gs that allo ed the Ch ist as Da atta k to o u , ut Co g ess s failu e to asse ti el add ess the

statutory ambiguity underlying the CT community will

176 Id. at 9. 177 Dr. Amy Zegart has written extensively on intelligence reform and organizational deficiencies among national security agencies. Dr. Zegart has also examined the systemic reasons u de l i g Co g ess s i a ilit to u de sta d, u h less provide meaningful oversight for, the activities of the IC. Her findings offer considerable context to understanding congressional action taken in response to the Christmas Day attack. See Amy Zegart, The Domestic Sources of Irrational Intelligence Oversight, Presentation at the Robert S. Strauss Center for International Security and Law at the University of Texas (Sep. 15, 2010) (summary available at http://www.robertstrausscenter.org/events/125.) 178

S. R EP . N O . 111-119 at 11, supra note 168.

Jus Post Bellum: Reflections on the Right Way to End a War

‘i ha d M. O Mea a

There can be no Justice in war if there are not, ultimately,

1 Yet, a good deal of ‘u el s democide has responsible men and women. occurred in preparation for war, during war and, indeed, after war has officially ended. 6 Whether one argues that If you break it you own it. 2 war is ever a useful project in the conduct of affairs amongst men, it appears clear that humans have a long

Peace is not sought in order to provoke war, but war is history of its use, 7 that it is always terribly destructive, 8 waged in order to attain peace. Be a peacemaker, then,

and recourse to arms does not appear to be going away even by fighting, so that through your victory you might

any time soon. The good news is that there is a fairly bring those whom you defeat to the advantages of

robust articulation in both law and moral philosophy peace. 3 ega di g a politi al e tit s ight to sta t a a -project and how war is to be conducted. On the other hand, War is tough stuff. It is, at the very least, the

these articulations have been confounded by a organized projection of death and mayhem by some

bewildering set of war paradigms that do not fit neatly group against another, generally for purposes of

into these old articulations. Further, these new types of governance. 4 Its justifications are myriad, running the

force projections never seem to end. Finally, it appears gamut from self-defense, to humanitarian intervention,

clear that failure to end a war well, to win the peace, can to national aggrandizement to whim and revenge. And

yet, ironically, it is not the most heinous of human table 3.1. This is less than a third of the overall activities. As R. J. Rummel has noted in his discussion of

democide that we have been able to estimate. democide, the murder of civilians by government agents

There should be little doubt that while pre- acting authoritatively:

twentieth-century war has been of great historical interest and drama, governments have killed many

[I]n total, during the first eighty-eight years of this times more people in cold blood than they have in century [20 th century], almost 170 million men,

the heat of battle.

women, and children have been shot, beaten, tortured, knifed, burned, starved, frozen, crushed,

Referring to the 20 th century, including World Wars 1 or worked to death; buried alive, drowned, hung,

and 11, Rummel continues:

bombed, or killed in any other of the myriad ways Consider table 1.2 and figure 1.1: the list and its governments have inflicted death on unarmed,

g aph of this e tu s ega u de e s-those states helpless citizens and foreigners. The dead could

killing in cold blood, aside from warfare, 1 million or conceivably be nearly 360 million people. It is as

more men, women and children. These fifteen though our species has been devastated by a

megamurderers have wiped out over 151 million modern Black Plague. And indeed it has, but a

people, almost four times the almost 38,500,000 plague of Power, not germs . 5 attle dead f o all this e tu s i te atio al a d civil wars up to 1987,. The most absolute Powers-

namely, communist USSR, China, and preceding- Michael Waltzer, Just and Unjust Wars, A Moral Argument

Mao guerrillas; Khmer Rouge Cambodia, Vietnam, with Historical Illustrations 4th ed. ( Basic Books:New York,

and Yugoslavia, and fascist Nazi Germany-account 2 2006), 288.

6 for nearly 128 million of them, or 84 percent. 3. “e eta of “tate Coli Po ell s ad i e to P eside t Bush I id. I elie e that a a d democide can be understood

regarding the pending war in Iraq, 2002, referred to generally as within a common framework. They are part of the same social the Pottery Barn Rule, as cited by Bob Woodward, retrieved at

7 http://www.buffalo,edu/ubreporter/archives/vol36n13/articles p o ess: a ala i g of po e , he e Po e is sup e e. . See, for example, John Keegan, A History of Warfare (New 3 /Woodward.html, 3/5/2010.

York: Knopf 1993) and Donald Kagan, On the Origins of War and St. Augustine, Letter 189, to Boniface, in E.L. Fortin and D.

the Preservations of Peace (New York: Knopf Doubleday Kries (eds.), Augustine: Political Writings, trans. M.W. Tkacz and

Publishing Group, 1996).

O e is e i ded of P eside t Eise ho e s a i gs ega di g B ia O e d, Wa , Stanford Encyclopedia of Philosophy

D. Kries (Indianapolis: Hackett 1994) , 220.

preparations for war in 1953:

retrieved at http://plato.stanford.edu/entries/war, 03/26/2010, Every gun that is made, every warship launched, 1. 5

every rocket fired signifies, in the final sense, a R.J. Rummel, Death by Government (New Brunswick:

theft from those who hunger and are not fed, those Transaction Publishers, 2000), 9.Rummel defines democide as

who are cold and are not clothed. the .. u de of a pe so o people

a go e

e t,

The cost of one modern heavy bomber is this: a statistics are chilling and bear repeating:

i ludi g ge o ide, politi ide, a d ass u de . . ‘u

el s

modern brick school in more than 30 cities. Not even considered thus far is the human cost of

It is two electric power plants, each serving a town war-another way governments act as an agent of

of 60,000 population.

death. For the years 1740 to 1897 there were reportedly 230 international and revolutionary

It is two fine, fully equipped hospitals. We pay for a wars; according to one count, these wars killed

single fighter plane with a half million bushels of 20,154,000 people. If with more tolerance for gross

wheat. We pay for a single destroyer with new estimation we accept the calculations that have

homes that could have housed 8,000 people. been made of those killed in all international wars

Retrieved at http://www.quotedb.com/quotes/405, since 30 B.C. we get the 40,457,000 dead shown in

have catastrophic consequences and lead – even as the

A standard definition of war, one that carries with dead are buried, the monuments laid and the disabled

it many of the assumptions upon which the UN Charter march home

– to future wars. 9 Getting the peace right, and subsequent articulations of international law then, must be considered as important as determining

regarding constraints on war generally, appears in L. when and how to fight.

Oppe hei s t eatise o I te atio al La i :

What is war?

War is a contention between two or more States through their armed forces, for the purpose of

The use of the term war occurs in many contexts overpowering each other and imposing such conditions of peace as the victor pleases. 11

and can, even with the best of intentions, lead to very

sloppy discussions. At one level, there are the wars on Another commentator, Yoram Dinstein, notes that drugs, poverty and the like which seem to connote an

organized and focused effort at the eradication of a In large measure, the classification of a military particular condition. Somewhere in the middle are a

action as either war or a close d i ide t sho t of whole host of definitions which come out of domestic

a depe ds o the a i hi h the t o law and are meant to trigger certain legal ramifications

antagonists appraise the situation. As long as both such as trade restrictions, immigration procedures,

parties choose to consider what has transpired as a emergency powers for governments in the area of civil

mere incident, and provided that the incident is rights, or rights and responsibilities under insurance

rapidly closed, it is hard to gainsay that view. Once, contracts. On another level are definitions of war which however, one of the parties elects to engage in war, the other side is incapable of preventing that

speak to projections of force by states, each vying with

de elop e t…

the other in relative symmetry in order to obtain a peace which conforms to the aims and desires of the victor.

There is a marked difference between war and Finally, there are those asymmetric contests which are

peace: whereas it requires two States to conclude fought by states and non-state actors and which arise

a d to p ese e pea e…it takes a single State to out of guerrilla wars and insurgencies, wars of

embroil itself as well as its selected enemy in war. 12 intervention, wars against terrorists and terror generally

and proxy guerrilla wars. 10 A third commentator, Christine Gray, eschews the term war altogether as she discusses international law

(IL) and the use of force generally, noting that that is the term which is used by the UN Charter in its prohibition.

Even a cursory review of the manner in which World War 1

ended, for example, the failure to completely defeat the Article 2 The Organization and its Members, in German army, the terms and conditions of the Treaty of

pursuit of the Purposes stated in Article 1, shall act Versailles, the lack of political will by the victors to enforce the

in accordance with the following Principles: terms of the Treaty, must bolster the argument that the

peacemakers failed in their task of bringing World War 1 to a All Members shall refrain in their international successful conclusion. See generally Margaret MacMillian, Paris

relations from the threat or use of force against the 1919 (New York: Random House 2003); Manfred F.Boemeke,

territorial integrity or political independence of any Gerald D. Feldman, Elisabeth, eds.. The Treaty of Versailles, A

state, or in any other manner inconsistent with the reassessment after 75 Years (Cambridge: Cambridge University

Purposes of the United Nations. 13 Press, 1998).

10 There is a recognition in the 21 st Michael L. Gross notes that the dilemmas of asymmetric century that the

…has lost its raiso d être warfare turn on their head the assumptions and conditions of

classical peace/war dichoto

with the outlawry of war and the blurring of the traditional war between states.

In each type of conflict, assessments of military ou da ies et ee o fli t a d pea e.

This is necessity,

especially true in internal armed violence which is noncombatant immunity, reciprocity, and concern

reported to form, for example, 95% of all armed violence 15 for future peace will vary. In general asymmetric

between 1995 and 2005.

conflicts differ as a function of the actors involved, Given that wars, conflicts, projections of force, uses pa ti ipa ts goals o a ai s, a d the ea s the

of force and activities short of war all have varying war use to achieve them. Actors range from guerrillas

aims, tend to use multiple methods of conventional and and terrorists on the weaker side to states,

unconventional violence, have different levels of respect coalitions of states, and international forces under

UN auspices on the stronger side. Goals range from maintaining the status quo to changing it, and from

ed .H.Lauterpacht ed. ( defeating an enemy decisively in pitched battle to

11 L. Oppenheim, International Law, 7 th

London: Longmans Green & Co., 1952). (1952). simply staving off defeat in the hopes of setting

12 Yoram Dinstein, War, Aggression and Self-Defense, 4 th ed. incontestable

(New York: Cambridge University Press, 2005), 11. 13 settle e t…The ea s of a a o side a l .

conditions

for

a political

Christine Gray, International Law and the Use of Force, 2d ed. Some are conventional (missile and artillery) but

(Oxford: Oxford University Press, 2004), 3. many other means are unconventional and include

14 Ca ste . “tah , Chapter 5 JUS POST BELLUM: MAPPING THE torture, assassination, blackmail, terror, and

DI“CIPLINE “ i Ca ste “tah , Ja Kleff e eds. JUS POST nonlethal weapons.

BELLUM Towards a Law of Transition from Conflict to Peace Michael L. Gross, Moral Dilemmas of Modern War, Torture, Assassination, and Blackmail in an Age of Asymmetric Conflict

15 (The Hague: T.M.C. Asser Press 2008), 99. See Human Security Report 2005, The Changing face of Global (New York: Cambridge University Press, 2010), 14.

Violence, 18.

for civilian targets, and are fought by different groups of Iraq and Afghanistan as well as in multiple peacekeeping actors, traditional definitions of war as an activity

operations throughout the world. 19 The cessation of reserved to states and constrained by state authority

widespread and organized violence, then, does not would appear to be less and less relevant. 16 automatically signal peace and yet its achievement

This is not to say, however, that all these appea s to e a o g hu a it s highest alues. 20 R.J. categories of violence do not have some things in

Rummel speaks to the fragility of peace: common. They all, it would appear, comprise elements of violent advocacy; that is, they all use levels of violence

…pea e is a p ope t of o fli t s ste s a d a to obtain certain goals. While those goals may differ,

homeostatic of cybernetic property that enables the humanitarian intervention vs. terrorist bomb attacks,

system, in the course of its dynamic path, to remain violence in one form or another is the primary tool.

in some stated boundary. Where the boundary is Further, these activities are carried on by political drawn is not so important as the machinery by which the system stays within it wherever it is

communities, those who seek to impose their will on drawn. Most conflict systems exhibit what might be other groups through the use of violence. Finally, these

alled a B eak ou da at hi h the s ste activities violate the rights of others for the purpose of

suddenly changes into another or passes some point changing the way others operate.

of no return in its dynamic process. Thus, marital Brian Orend melds these different characteristics

conflict may lead to separation or divorce, industrial in his definition of war as follows:

conflict may lead to strikes, personal conflicts may lead to fisticuffs at the lower end of the social scale

War should be understood as an actual, intentional or to litigation at the upper end, and 21 international

and widespread armed conflict between political relations may degenerate into war. o

u ities…Wa is a phenomenon which occurs

only between political communities, defined as Finally, Rummel notes some of the characteristics those entities which either are states or intend to

of peace:

become states (in order to allow for civil war). Classical war is international war, a war between

… peace as a social contract is active, not passive. It diffe e t states… B ut just as frequent is war within

is created through negotiation, adjustment, a state

resolution, decisions. It comprises predictions o

u ities…Ce tai politi al p essu e g oups, like (expectations) about the future. It is manifested terrorist organizations, might also be considered

through cooperative interaction. Its existence politi al o

u ities i that the a e asso iatio s depends on congruence with the balance of powers. of people with a political purpose and, indeed, many

It is a phase in the dynamics of the conflict helix. of them aspire to statehood or to influence the development of statehood in certain lands.

19 “e e a K. “ha a, Chapte : ‘ECO“IDE‘ING THE JU“ AD Indeed, it seems that all warfare is precisely, and

BELLUM/JU“T IN BELLO DI“TINCTION in Jus Post Bellum, 29. ultimately, about governance. War is a violent way

20 Rummel takes note of this occupation: for determining who gets to say what goes on in a

Co side : Pea e at a p i e. The ost given territory, for example, regarding: who gets

disadvantageous peace is better than the most just power, who gets wealth and resources, whose

a . Pea e is o e i po ta t tha all justi e. I ideals prevail, who is a member and who is not,

prefer the most unjust peace to the justest war that which laws get made, what gets taught in schools,

where the border rests, how much tax is levied, and as e e aged. The e e e as a good a o a

ad pea e. foot otes o itted . so on. War is the ultimate means for deciding these

Yet, we agree little on what is peace. Perhaps the issues if a pea eful p o ess o esolutio a t e

most popular (Western) view is as an absence of agreed upon.

dissension, violence, or war, a meaning found in the New Testament and possibly an original meaning of

War, indeed, is governance by bludgeon. 17 the G eek o d fo pea e I e e…Pea e, ho e e , is also seen as concord, or harmony and tranquility. It

What is peace?

is viewed as peace of mind or serenity, especially in the East. It is defined as a state of law or civil

Peace is not the absence of war. As the discussion government, a state of justice or goodness, a above indicates, war is a delicate subject susceptible to

balance or equilibrium. multiple definitions and interpretations. The construct of

peace appears to carry with it the same problems. Henry Such meanings of peace function at different levels. Kissi ge , a o gst othe s, autio ed i Peace may be opposed to or an opposite of that …t o antagonistic conflict, violence, or war. It may refer world wars and an era of involvement and conflict

to an internal state (of mind or of nations) or to should now have taught us that peace is a process, not a

external relations. Or it may be narrow in o ditio .

This conclusion has been bolstered in conception, referring to specific relations in an recent years by the considerable violence experienced in

particular situation (like a peace treaty), or overarching, covering a whole society (as in a world

peace). Peace may be a dichotomy (it exists or it Gross, Moral Dilemmas in Modern War, 8-25.

does not) or continuous, passive or active, empirical

18 O e d, Wa , -2. Henry. Kissinger as cited in or abstract, descriptive or normative, or positive or ‘.J. ‘u el Chapte What is negative. Pea e? in Understanding Conflict and War: v. 5 The Just Peace

Rummel, Understanding Conflict and War, sec 2.1, 1-2. retrieved at http://www.hawaii.edu/powerkills/TJP.CHAP2HTM,

21 Ibid, 28.

By contrast, peace as the absence of violence or war admit to the need to conduct war in various situations is passive. True, it may be generated by negotiation

and articulate rules for the conduct of war as well. and resolution. But the resulting peace is inactive,

inert. It is a social void-something to build a wall around to protect and maintain. Any condition or

Just War Theory

structure or lack thereof constitutes such a peace as

long as there is no social violence-even a desert Just War Theory is a theory of ethics; it is a review without life. 22 of norms which seeks to determine when the inception of war is just, that is morally permitted; what conduct

Theorists from Aristotle to Michael Waltzer during a war is just, that is morally acceptable or appear to agree that the aim of war must be peace,

constrained; and what are the conditions for a just albeit a peace defined, at least in part, by the

peace, that is what should a peace look like. The belligerents involved. 23 There is a good deal of literature

question here is: what is mankind entitled to do morally regarding the rules which might apply to the making of

when it comes to the conduct of war? 25 The history of peace and what goals peacemaking should have. These

Just War Theory is long, reaching back as far as Socrates will be discussed below. It should be remembered,

and Aristotle, through Cicero and Augustine, Aquinas, however, that most contemporary wars are fought by

Grotius, Suarez, Vattel and Vitorio to Michael Waltzer, groups who have previously agreed to terms of peace in

considered the dean of contemporary Just War o e fo o a othe a d that the …a e age u 26 e of theorists. Its origins are a synthesis between Greco-

conflicts terminated per year in the 1990s was more Roman and Christian values and as will be seen below, than twice the average of all previous decades from

Just War Theory forms the basis for contemporary o a ds. 24 international law articulations. Its rules, as with much of

Western moral philosophy, are found in theology or in

What are the rules?

the concept of natural law. And it can be said – without too much fear of contradiction and despite the carnage

The big questions regarding war and peace have of the last 2500 years – to have influenced the conduct traditionally been articulated as follows:

of war profoundly.

Just War Theory speaks to three often considered When is war justified and who gets to do it? How

separate and distinct calculations regarding the conduct should we conduct ourselves as we go about the

of war which answer the questions set out above. To business of war?

begin a war (jus ad bellum), it must be considered just, that is the decision must conclude that there is a just

How should wars end and what does peace look like?

cause; there must be a right intention; it must be conducted by proper authorities; it must be the last

There are four traditions which dominate the resort; and there must be a probability of success. response to these questions: Just War Theory,

Finally, and perhaps of considerable import to the International Law, Realist Theory, and Pacifism. They all

question of how to end a war, there must be a assume that war, however it is defined, is a scourge, an

determination of proportionality, the idea that the activity to be avoided if at all possible. Yet the first three

universal goods to be obtained outweigh the universal evils which can be foreseen. 27 These determinations are constraints in that they limit the use of war to a very

discreet set of situations, such as self-defense, the

22 Ibid, 25-26.

23 B ia O e d, JU“T PO“T BELLUM: A JU“T WA‘ THEO‘Y defense of others, the protection of innocents and punishment of grievous wrong doing; define who can

24 PE‘“EPECTIVE, i Jus Post Bellum, 33. See Human Security Report 2005, The Changing Face of make the determination and who will be in charge of its

Global Violence, 53. Ironically, studies indicate that nationwide conduct; and require some consideration of the results mortality rates overall appear to be dropping as well.

of the conduct before war is initiated. Together, these determinations constitute justification for unleashing the

Several interrelated long-term changes projection of force, committing what would otherwise have been driving this counterintuitive

be held to be murder and mayhem on others. They also development:

i) The average war today is fought by smaller armies and impacts less territory than conflicts of the Cold war era. Smaller wars mean fewer war deaths and less impact on nationwide mortality rates.

25 A standard definition is as follows: ii) Dramatic long-term improvements in public health in the

(adj) moral (concerned with principles of right and wrong or developing world have steadily reduced mortality

conforming to standards of behavior and character based on rates in peacetime-and saved countless lives in

those p i iples o al se se ; a o al s uti ; a o al wartime.

lesso ; a o al ua da ; o al o i tio s ; a o al life. iii) Major increases in the level, scope, and effectiveness of

wordnetweb.princeton.edu/perl/webwn, retrieved at humanitarian assistance to war-affected

http://wordnetweb.princeton.edu/perl/webwn?s=moral, populations in countries in conflict since the end of

the Cold War have reduced wartime death tolls still 26 See generally, James Turner Johnson, The Just War Tradition further.

and the Restraint of War (Princeton, NJ: Princeton University Human Security Report 2009, The Shrinking Costs of War, 1-3.

Press, 1981); Walzer, Just and Unjust Wars. 27 Orend, War, 5-9; see also, Dinstein, War, Aggression and Self-

defense, 63-71.

provide legitimacy for the actor in that the violence can

unjust

ee 30 s a ilit to fight. Jus in bello conduct has

be said to be minimally just. received most of its articulation as it became conflated Even if a war is determined to be just, there are

with international law principles discussed below. constraints on how the war ought to be fought (Jus in

Just War theory does speak to the outcome of bello). A just actor must project violence within the

wars when it requires actors, as part of their calculus constraints of morally acceptable behavior in order to

regarding the projection of force, to determine that the insure that the violence is projected only on those who

esults efle t …at least a proportionality of benefits to are identified as participating in the war with that

osts. 31 In order to make this determination, however, degree of force necessary to accomplish the tactical and

the question must be answered what is the purpose of a strategic tasks necessary to accomplish the just goals of

just war? How does one know whether the results are so the conflict. Terms such as military necessity, discretion,

terrible as to render the original purposes of the and proportionality in the use of violence help to frame

projection of force unjustified? Some traditionally have this discussion. An actor, then, can be justified in the

answered that the purpose of a just war is to reestablish decision to project force and yet become an unjust actor

the status quo ante bellum, that set of circumstances by the manner in which it prosecutes that projection of

which existed before the war began. Waltzer, and force. Interestingly, there is a disturbing thread in Just

others, disagree and argue for a result which is more War Theory that deemphasizes the rules regarding the

secure and which reflects a more just state of affairs conduct of war and emphasizes the reasons for going to

than existed before the war began. 32 The rights of a war. The term jus in bello, for example, has little

community which have been violated and thus justify currency before the Enlightenment and really only

the use of force in defense of those rights should, it is

argued, at the least, be capable of vindication. This is an argument that ignores, or at least deemphasizes,

moves to the forefront in the twentieth century. 28 There

formulation, of course, constrains the aggrieved party the methodologies of war in the furtherance of a just

from taking actions which do more than vindicate rights cause. This argument implies that 1) if a

a to s ause is

lest that actor become an aggressor-unjust actor- as

well. This is consistent with the overall purpose of just and 2) the best way to bring a just war to an end is to

just, it should not be constrained as to how it fights 29 ;

war theory, that being the setting of moral constraints direct all necessary force towards the destruction the

on the aims, conduct, and results of war. 33

International Law (IL).

As one commentator notes: With the growth of the nation-state system, IL has … eithe te just ad bellum or jus in bello] can be

come to the forefront in order to answer the important found in the texts produced by other major

publicists during the interwar years, nor, according questions and regulate the conduct of war. First, it must

to our investigations, were they used in the courses

be emphasized that IL is positivist rather than normative; on war and peace given at the Hague Academy of

it speaks, at its best, to the utilitarian purpose of making International Law or in any other courses. The

breakthrough occurred only after the Second World War, when Paul Guggenheim, another disciple of

30 These arguments continue to have currency in the 21 st the School of Vienna, drew the terminological

century. Michael Gross, for example notes: distinction in one of the first major international law

…the e is p eli i a e ide e that targeted killings, treatises of the postwar era. A number of

aggressive interrogation, nonlethal weapons, and monographs subsequently took up the terms, which

attacks on participating civilians (by either side) soon gained widespread acceptance and were

reflect emerging norms of warfare. Whether these launched on their exceptionally successful career. In

norms are new rules or acceptable exceptions, they a thesis

itte u de Gugge hei s supe isio are far from the prohibitions and severe restrictions and published in 1956, Kotzsch gave them pride of

that currently characterize the laws of war. place, treating them in a manner to which we have

Gross, Moral Dilemmas of Modern War, 238. See also General grown accustomed and which we now take for

Coli Po ell s p os iptio s ega di g the use of fo e he ei granted.

he contended that forces should only be deployed when ‘o e t Kol , O igi of the T i Te s just ad ellu /jus i

national interest, commitment, and support have been ello. International Review of the Red Cross, 1997 no. 320, 555

established, but then there should be use of overwhelming retrieved at

force in the military encounter-rather than proportional http://www.icrc.org/web/eng/siteeng0.nsf/iwplist163/d9dad4e

response. Regarding the Iraqi Army in 1991, for example, he e8533daefc1256b66005affef, 03/31/2010.

oted the a ai , fi st e e goi g to ut it off, the e e Ian Clark puts the question this way:

goi g to kill it. Doug DuB i , Milita “t ateg : POWELL In a case where it is believed that there is only one

DOCT‘INE, Ba kg ou d, Appli atio a d C iti al A al sis, just party to the conflict, that is, one party whose

Newshour Extra, retrieved at

cause is just, why should that party be restrained in http://www.pbs.org/newshour/extra/teachers/lessonplans/iraq its prosecution of the war in the same manner as

/powelldoctrine_short.html, 03/31/2010; Ruth Wedgwood the unjust party? Since war is not a game, and we

Legal a d Ethi al Lesso s of NATO s Koso o Ca paig are not indifferent to its outcome in devising the

(Newport, Naval College 2002) ,434- ; a d “ha a, Chapte rules which govern it, why should we prejudice the

1 RECONSIDERING THE JUS AD BELLUM/JUS IN BELLO result by expecting the party which is fighting for a

DI“TINCTION, -29.

just cause to fight in such a way that it may lose? 31 B ia O e d, Justi e afte Wa , Ethics and International Ian Clark, Waging War: A Philosophical Introduction (Oxford:

Affairs, v. 16.1 (Spring 2002).

Oxford University Press, 1990) 36. 32 Waltzer, Just and Unjust Wars, 119. 33 O e d, Justi e afte Wa , .

man-made rules which aid mankind in the conduct of actors which will be useful and IL commentators are war. It does not speak to what ought to be appropriate

often heard to speak in terms of what is fair and right. 36 behavior amongst actors; rather it provides minimal

The history of IL as it pertains to war is instructive. standards of conduct which are adjudged by the

As nation-states eschewed normative and theological community of international actors to be in their interest

justifications for their existence and actions in the 17 th and to be useful in the constraint of the project of war. It

and 18 th centuries, states accepted their right to conduct assumes that war will occur and seeks to criminalize

war as a responsibility of statehood. The justice of a behavior in order to protect, where possible, the

state s ause i the p oje tio of fo e, the , lost a good potential for peaceful relations. It is not universal except

deal of its validity; rather states conducted war as a to the extent that all actors agree to its terms and it is

matter of right in the exercise of their responsibility to not immutable because it accepts changes to the rules as

pursue national policy. 37 How war was to be conducted, the international community deems them appropriate

however, began to take preeminence, reflecting as it did

age-old customary practices of warriors in the field. Carsten Stahns notes:

through treaty agreements or customary practice. 34 As

Purely utilitarian concerns abounded; treatment of fallen soldiers, prisoners of war, uninvolved civilians,

Moral theory and legal science share distinct origins destruction of non-military targets, use of new and rationales and approach the relationship

technologies. This movement acknowledged that de between jus ad bellum, jus in bello and jus post

facto wars would continue but that if they were bellum from different angles. Moral philosophy is

primarily concerned with the moral justification of conducted in a particularly barbaric manner, the peaces

warfare, under which the operation of the principles to be obtained would not last. Revenge, rising out of the of jus ad bellum, jus in bello and jus post bellum is

ashes of a particular conflict, might well stoke the fires of closely connected to the overall (just or unjust)

the next conflict, especially where armies were cause of the recourse to force. International

becoming democratized and ideological, and states lost lawyers, by contrast, tend to view each of these

the ability to turn the violence on and off at will. Thus, categories as autonomous rules of behavior, with

the exhortations of Abraham Lincoln during the the aim of maximizing compliance and respect for

American Civil War that

human dignity. It is therefore not contradictory to construe jus post bellum differently in each

discipline. 35 [w]ith malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to

IL has, however, become conflated with just war i d up the atio s ou ds, to a e fo hi ho principles as well as a whole host of other articulated

shall have borne the battle, and for his widow, and human rights articulations. Just war theorists, then, are

his orphan-to do all which may be achieved and often bogged down in suggesting best practices for

cherish a just and lasting peace among ourselves,

and with all nations. 38

A similar exhortation signed in St. Petersburg in

1868 recognized the purposes of war and the need to 34

A standard definition reads as follows: restrict certain weapons based on the following [L]aw is that element which binds the

considerations:

member of the community together in their adherence to recognized values and

standards. It is both permissive in Considering that the progress of civilization should have the effect of alleviating as much as possible

allowing individuals to establish their own

the calamities of war:

legal relations with rights and duties, as in the creation of contracts, and coercive, as

it punishes those who infringe its That the only legitimate object which States should egulatio s… endeavor to accomplish during war is to weaken the military forges of the enemy;

The rules of international law must be distinguished from what is called

international comity, or practices such as That for this purpose it is sufficient to disable the saluting the flags of foreign warships at

greatest possible number of men; sea, which are implemented solely

through courtesy and are not regarded as legally binding. Similarly, the mistake of

36 Jack L. Goldsmith, Erick A. Posner, the Limitations of confusing international law with

International Law (Oxford: Oxford University Press, 2005), 14- international morality must be avoided.

While they may meet at certain points, the former discipline is a legal one both

37 Tho as W. “ ith, The Ne La of Wa : Legiti izi g Hi-Tech as regards its content and its form while

a d I f ast u tu al Viole e International Studies Quarterly, v. the concept of international morality is a

46, n. 3 (Sep., 2002) ,358- ; Kol , O igi s of the t i te s branch of ethics. This does not mean that

; Ja es Tu e Joh so , The international law can be divorced from its

just ad ellu /jus i ello,

Just Wa Idea: The “tate of the Questio , 23 Social Philosophy values.

& Policy (2006).

Malcolm N. Shaw, International Law, 6

th

ed. (Cambridge:

38 A aha Li ol s “e o d I augu alAdd ess Ma h , 1865) Cambridge University Press, 2008), 2. 35 retrieved at http://libertyonline.hypermall.com/Lincoln.lincoln-

“tah , Chapte , Jus Post Bellu : Mappi g the Dis ipli es 2.html, 03/31/2010.

in Just Post Bellum, 112.

That this object would be exceeded by the enforce proscriptions, IL has had its failures. 42 It employment of arms which uselessly aggravate the

struggles, for example, with the reality that all actors are sufferings of disabled men, or render their death

not sovereign states and that evolving definitions of war inevitable;

are rarely covered by its articulations. Further, in a That the employment of such arms would,

globalized world, conflicts that have previously been therefore, be contrary to the laws o f hu a it … 39 considered domestic now clearly affect the entire global 43

As Bill Nash, the American General Thereafter, Conventions of various kinds and with

community.

responsible for peacekeeping operations in Bosnia- various participants occurred to address a myriad of

Herzegovina, oted, T he fi st ule of atio -building is issues including what was called the law of land warfare.

that e e thi g is elated to e e thi g, a d it s all 44 Through the Hague Conventions of 1899 and 1907 and

politi al. An entire human rights regime has grown up the Geneva Conventions of 1864, 1928, 1929, 1949 and

since World War Two, which demands vindication not 1975, an extremely robust set of rules and proscriptions

o l of state s ights ut also individual rights during and regarding conduct were enacted and ultimately agreed

after war is conducted and there is a growing recognition upon in part by most states forming the international

that economic and social rights are entitled to equal community. Aligned with but separate from a set of rules

pride of place with political and security rights. Finally, dealing with personal human rights, this body of law has

there are a whole host of actors who refuse to pay even been denominated international humanitarian law (IHL).

lip service to the proscriptions of IL as they conduct force There are enforcement mechanisms as well including

projection on the international stage. Post War conduct originally the Nuremburg Court system, multiple

of actors is rarely addressed in IL. There are some international courts and ultimately the International 45 discussions about the Responsibility to Protect (R2P)

Criminal Court. 40 and a fairly robust set of IL requirements for states in the On a separate track, and primarily as a result of the

law of belligerent occupation, but these have not found catastrophes of World Wars One and Two, IL developed

their way into binding treaties or custom or apply to only

a response to the question regarding the justification for 46 a very discreet set of circumstances.

a a to s p oje tio of fo e. I deed, IL e t ell beyond the reasoning of just war theory and attempted to outlaw war altogether. Beginning with the League of Natio s Cha te , th ough the Kellogg-Briand Treaty and 42 Goldsmith, the Limitations of International Law, 225-26; David

fi all the U ited Natio s Cha te , IL outla ed a Ke ed , The I te atio al Hu a ‘ights Mo e e t: Pa t of between states except in situations of self-defense or

the P o le ? Harvard Human Rights Journal v.15 (Spring where the international community, through the U.N.

41 See for example Security Council, sanctioned it. , G. ‘. Lu as J ., F o Jus ad bellum to Jus Ad Pacem: Rethinking Just War Criteria for the use of Military Force Like all systems of constraint, especially on the

fo Hu a ita ia E ds, i D. Chatte jee a d D. “ heid eds , international stage where there are minimal means to

Ethics and Foreign Interventions (Cambridge, Cambridge 44 University Press, 2003). Nash, quoted in O e d, Jus Post Bellu : A Just Wa theory

45 Pe spe ti e, in Jus Post bellum, 48. The responsibility to Protect (R2P) Doctrine appears to be an

39 Declaration of St. Petersburg: November 29, 1868 retrieved at

http://avalon.law.yale.edu/19th_century/decpeter.asp, emerging norm which requires that when a state is either 04/02/2010.

unwilling or unable to fulfill its responsibility to protect its own 40 See, for example, Richard J. Goldstone, For Humanity,

populations, UN members are obligated to take action to Reflections of a War Crimes Investigator (New Haven, Ct.: Yale

minimize human suffering. Most important, it involves the University Press, 2000); Omer Bartov, Atina Grossman, Mary

responsibility to prevent such atrocities from occurring, and if Nolan ed. Crimes of War, Guilt and Denial in the Twentieth

prevention fails, it requires states to react and rebuild. See Century (New York:The New Press, 2002); Gary Johnathan Bass,

generally, Gareth Evans, the Responsibility to Protect: Ending Stay the Hand of Vengeance, The Politics of War Crimes

Mass Atrocity Crimes Once and For All (Washington D.C.: 41 Tribunals (Princeton, NJ: Princeton University Press, 2000). The UN Charter reads in pertinent part:

46 Brookings Institution Press, 2008). See generally, Yoram Dinstein, The International Law of Nothing in the present Charter shall impair the

Belligerent Occupation (Cambridge: Cambridge University Press, inherent right of individual or collective self-defense

if an armed attack occurs against a Member of the The authority of an Occupying Power is not derived United Nations, until the Security Council has taken

from the will of the people, and democracy is not of measures necessary to maintain international peace

any functional relevance to the running of an and security. Measures taken by Members in the

occupied territory. Belligerent occupation is not exercise of this right of self-defence shall be

designed to win the hearts and minds of the local immediately reported to the Security Council and

inhabitants; it has military-or security-objectives, shall not in any way affect the authority and

a d its fou datio is the po e of the a o et. responsibility of the Security Council under the

The jurisdictional rights of the military government present Charter to take at any time such action as it

i a o upied te ito …ste f o effe ti e o t ol deems necessary in order to maintain or restore

alone. LOIAC [The Law of International Armed peace and security.

Conflict] offers the inhabitants of the territory vital Charter of the United Nations, CHAPTER V11: ACTION WITH

safeguards against possible maltreatment by the RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE,

Occupying Power. But belligerent occupation must AND ACTS OF AGGRESSION, Article 51 (1945) retrieved at

be acknowledged for what it is and for what it is http://www.un.org/en/documents/charter/chapter7.shtml,

not. 35.

Realism

other countries-but it cannot be a prescription for America. It cannot be our purpose. America cannot

While realism has had many twists and turns in its and will not live by realpolitik alone. Our foreign explanations over the years, for purposes of this paper it

policy must be driven by something beyond power. can be said that the doctrine has two purposes 1) to Unless conservatives present ideals to challenge the liberal ideal of a domesticated international

provide an explanation regarding how actors, especially community, they will lose the debate. states, act on the international stage and 2) to explain a

set of assumptions upon which realist statesmen Which is why amongst American conservatives, operate when they make decisions about when to go to

another, more idealist, school has arisen that sees war, how to conduct war, and how wars end. The

A e i a s atio al i te est as a e p essio of doctrine has a long history ranging from Thucydides,

values. 48

Machiavelli and Hobbes to Hans Morgenthau, George

Kennan, Reinhold Niebuhr, Henry Kissinger and Kenneth In essence, there are benefits to cooperation – to Waltz. Traditional realism speaks to power and security

the adherence to multilateral organizations and issues, the ability of states to survive and prosper in an

international law regimes – which are either too difficult anarchical world. Realists assume the appropriateness of

to obtain or which cannot be obtained in a unilateral war if and only if it is necessary to obtain a national

fashion. Going to war within the framework of UN interest and find it unreasonable for states to constrain

conducting war within the legal themselves regarding the tools used to conduct wars or

constraints,

proscriptions of the various Conventions, and even the ways that wars should end. Constraints and

finishing a war by a long and expensive round of nation- responsibilities found in just war theory and IL hold little

building and development aid all have ramifications cachet

which unilateral action often cannot produce. Joseph requirement for states to survive and prosper. The logic

when measured

against the

absolute

Nye argues that soft power, which arises from the of Ho e s di tu Bellum omnium contra omnes, the

attractive ess of a ou t s ultu e, politi al ideals, a d war of all against all, is often cited by realists to describe

policies, is the ability of a state to persuade other states

the state of the international community where there is and actors to share its objectives or desired outcomes. no overarching governance to reign in the natural

Adherence to restraints regarding conduct during war, requirements of states to survive, one against the

for example, often benefits soldiers on the ground; other. 47 adherence to treaties which ban certain types of

There is a strain of realism, however, that speaks weapons such as weapons of mass destruction can aid in to the efficacy of restraints in war. In a globalized

the security of the domestic and foreign battlefield; and international environment where states find it more and

ensuring that states who have lost wars are able to more difficult to operate unilaterally, there is an interest

reenter the international community on terms beneficial in developing soft as well as hard power in order to

to both the victor and the defeated can lessen the survive and prosper. Charles Krauthammer, for example,

possibility of war for the next generation. For realists, notes the problem when dealing with the domestic

adherence to these restraints is not based on the political debate between realists [conservatives] and

normative philosophy of how states ought to act, nor is idealists [liberals] in the United States:

state conduct restrained by the legalisms of IL. Rather, adherence is based on the assumption that cooperation

But here we come up against the limits of realism: with other states coupled with hard power is in the You cannot live by power along. Realism is a

atio al i te est, leadi g to the state s a ilit to p o ide valuable antidote to the woolly internationalism of

security and prosperity for its citizens. 50 the 1990s. But realism can only take you so far.

Pacifism

Its basic problem lies in its definition of national

interest as classically offered by its great theorist, Hans Morgenthau: interest defined as power.

Pacifism is a doctrine which objects to war Morgenthau postulated that what drives nations,

outright, specifically to the kinds and degrees of violence what motivates their foreign policy, is the will to

that war involves, e.g. mass killing for political reasons. It power-to keep it and expand it.

efe e es Ga dhi s a paig agai st the B itish i I dia

s a d Ma ti Luthe Ki g J . s o -violent For most Americans, will to power might be a correct description of the world-of what motivates

i the

48 Cha les K autha e , De o ati ‘ealis , A A e i a

Foreign Policy for a Unipolar World , (Washington D.C. 2004) ,

Victor Hanson, Carthage and Culture: Landmark Battles in the

Rise to Western Power (New York: Random House, 2002); 49 Joseph Nye, Soft Power: The Means to Success in World Henry Kissinger, Diplomacy (New York: Simon & Schuster,

Politics (New York: Perseus Books Group, 2004), 5-6. ; “tephe M. Walt, I te atio al ‘elatio s: O e Wo ld,

50 Krauthammer speaks in terms of democratic realism, for Ma Theo ies, Foreign Policy, n. 110 (Spring 1998); H. J.

example:

Morgenthau, Politics among Nation, 7 th

And this is its axiom: We will support democracy McGraw- Hill Co pa ies,

ed. (New York:

everywhere, but we will commit blood and treasure Thought a d Neo ealist Theo , i Controversies in

; K.e eth Waltz ‘ealist

only in places where there is a strategic necessity- International Relations Theory: Realism and the Neoliberal

meaning, places central to the larger war against the Challenge,

ed. Cha les Kegle Ne Yo k: “t. Ma ti s P ess, existential enemy, the enemy that poses a global ; Joh Mea shei e , The False P o ise of I te atio al

mortal threat to freedom. I stitutio s, International Security 19:3 (Winter 1994-95).

K authei e , De o ati ‘ealis , .

civil rights activities in the 1960s. It proposes that war is theory requirement seems to imply that conflict can only such a terrible human activity that it should be outlawed

be initiated where an actor determines that the end in all its forms and argues that the other theories which

result will be less traumatic, especially to the innocent purport to constrain its conduct are routinely

who will be affected, than the benefits to be obtained. manipulated and distorted to make their restraints

There is a further implication here; should an actor meaningless. Finally, it implores individuals to renounce

determine the necessity for conflict, it must be prepared the use of the projection of force as a matter of

to, and indeed has a moral obligation to, right the conscience. There is a long Eastern, as well as Western,

economic, social, and political trauma which its conflict tradition of the doctrine, in addition to religious and

will create. 53

secular justifications for its arguments. In its purest form, Brian Orend asks the question, what are the ends however, it can be said that pacifism rejects any

or goals of a just war? He provides the following answer: argument for the projection of force by states or other actors. It, therefore, does not need to concern itself with

The general answer is a more secure possession of conduct during war or obligations which may attend the

our rights, both individual and collective. The aim of victor. 51 a just and lawful war, we know, is the resistance of

aggression and the vindication of the fundamental rights of societies, ultimately on behalf of the

THE RIGHT WAY TO END A WAR

human rights of their individual citizens. These values revolve around the concept of a minimally

Given the discussion above, it may be concluded just and hence legitimate community. Such a that there is no one right way to end a war. The wide

community is one which does all it reasonably can divergence in the justifications for the projection of

to: (i) gain recognition as being legitimate in the force, e.g. response to a terrorist event or invasion of a

eyes of its own people and the international state, for example; the nature of the conflict, e.g.

community: (ii) adhere to basic rules of conventional or unconventional asymmetric warfare; the

international justice and good international practices used to prosecute the war, e.g. targeted killing, citizenship, notably non-aggression: and (iii) satisfy the human rights of its individual member (to

enhanced interrogation techniques or strict compliance

subsistence, with the jus in bello requirements of international

security,

liberty, equality and

recognition. 54

humanitarian law (IHL) by one or both sides; and the manner in which the conflict is concluded, swift

He suggests a number of principles which would be capitulation by a state, regime change, continued

….at least pe issi le ith ega d to a just settle e t of insurgency, aggressor victory etc. These and multiple

a just a : ‘ights i di ation, (2) Proportionality and other variables influence how the parties will act post

publicity, (3) Discrimination, (4) Punishment, (5) bellum. And yet, the manner in which a conflict is

Compensation and (6) Rehabilitation. 55 He goes on to concluded can make all the difference.

suggest some concrete guidance in order to affect a just Principles regarding jus post bellum are at present 52 result.

incomplete and subject to considerable argument, yet 1. Adhere diligently to the laws of war during the the basic premise, found in jus ad bellum seems to apply.

regime take-down and occupation; Before states can morally project force they must

2. Purge much of the old regime and prosecute its determine the proportionality of the results, that is does

war criminals;

the foreseeable end outweigh the damage which the 3. Disarm and demilitarize the society; 4. Provide effective military and police security for

projection of force will inevitably cause? This just war the whole country. Work with a cross-section of locals on a new rights-respecting constitution which

51 See, for example M. Ghandi, Non-Violence in Peace and War, features checks and balances; 1942-1949 (New York: Garland Publishing, 1972); Martin Luther

5. Allow other, non-state asso iatio s, o i il King, A Testament of Hope: the Essential Writing of Martin

so iet , to flou ish;

Luther King, Jr. ed. J. Washington (New York: HarperOne, 1990); 6. Forego compensation and sanctions in favor of Be t a d ‘ussell, The Futu e of Pa ifis , The American Scholar

investing in and re-building the economy; (13: 7-13 1943); Jenny Teichman, Pacifism and the Just War

7. If necessary, revamp educational curricula to (Oxford: Oxford University Press, 1986).

purge past propaganda and cement new values; 52 M. F ee a , D. Djukie, Chapte , JU“T PO“T BELLUM AND 8. Ensure that the benefits of the new order will be;

T‘AN“ITIONAL JU“TICE, i “tah et al eds. Jus Post Bellum, (i) concrete; and (ii) widely, not narrowly 224. See also T. Seybolt, Humanitarian Military Invention, The

distributed; and

Conditions for Success and Failure (Oxford: Oxford University Press, 2008).

A great deal of ink has been spilled on this topic [human security as a justification for military intervention] already, much of it

53 Mi hael Waltze , Just a d U just O upatio , Dissent by international lawyers and moral

a d ‘egi e Cha ge a d Just Wa , Dissent philosophers whose legal and moral

Wi te

e ; “ha a, ‘ECON“IDE‘ING THE JU“ AD debates have shifted ground considerably

“u

BELLUM/ JU“ IN BELLO DI“TINCTION, i Just Post Bellum, 29. since the end of the Cold War but whose a gu e ts e ai i a state of i i le

54 O e d, JU“ PO“T BELLUM: A JU“T WA‘ THEO‘Y ig o a e of e pi i al suppo t. p. .

PE‘“PECTIVE, i Jus Post Bellum, 39. See also, J. L. Holzgrefe, Robert Keohane eds. Humanitarian

55 Ibid, 40-45.

Intervention: Ethical, Legal and Political Dilemmas (Cambridge: Cambridge University Press, 2003).

9. Follow an orderly, not-too-hasty exit strategy to the domestic criminal codes of actors. Yet occupiers, when the new regime can stand on its own two 56 in a general sense, are staying longer, projecting force in

feet. and among civilians, and assuming responsibilities for the administration of civil society that were not originally

Anyone who has spent any time working at peace- contemplated by IHL. This legal black hole has been keeping, peace-making, nation-building or the provision

described by Charles Garraway as follows: of humanitarian aid knows that the devil is in the details.

The above represent a fair checklist of discreet areas to But not only are the actors on the battlefield

be addressed should one actor intend to involve itself in changing, so is the battlefield itself. Soldiers are no the project of wholesale transition of a society from one

frequently involved in post-conflict situations where set of values and political mechanisms to another. These

the international rules are far from clear. What is are not inexpensive undertakings. As U.S. actions in Iraq

the entitlement to use force during a period of and Afghanistan have demonstrated, accomplishing the

o upatio ? Do o at ules appl IHL o ha e above goals can take decades, contribute to multiple

we moved to a more threat based regime? And additional deaths and destruction and cause cultural what is the positio

he e ajo o at ope atio s a ha e eased ut iole e pe sists?

collisions, which may never be healed. They represent, In Helmand province, some years after the initial one might argue, very Western constructions of what a

intervention, United Kingdom and other NATO minimally just society ought to look like. Finally, they are

forces have been involved in what one senior officer open to the

criticism that the enumerated described as the most intense fighting since the responsibilities are akin to requiring actor A, who has

Korean War. But what law applies to the actions of been assaulted by actor B, to pay not only for the court

those soldiers? On what basis are targeting proceedings used to vindicate his rights, but the

decisions taken? The stark difference between psychological counseling necessary to cure the malady status based and threat based legal regimes causes inevitable difficulties when operating in the grey

that caused actor B to act-out in the first place. Yet, the area that is post- o fli t…I deed does the question remains, is an actor which has prosecuted a just

Convention-or the International Covenant on Civil war required to undertake these types of activities in

and Political Rights-even apply in situations of this order to be judged moral? Ethicists have yet to come to

nature where troops are operating outsides their

a consensus on this issue. 57 national boundaries? These are issues over which To date, international law does not specifically

there is strong disagreement, particularly within the address conduct, post bellum, except in the area of IHL.

United States, and yet for members of the armed Here, parties to conflicts argue that their ability to forces, they are critical. They may represent the difference between a gallantry medal and a

regulate the conduct of actors post-conflict is limited by prosecution for murder. 59 the conditions on the ground, the emergent and often

chaotic nature of the environment, the breakdown in While the realist tradition might well embrace civil authority, the lack of resources to create a robust

Coli Po ell s a i that a i ediate a d lea e it civil society and other legal and actual constraints. There

strategy after the projection of force is appropriate to is considerable disagreement as to whether occupiers

the vindication of the national interest, the reality on the are bound to enforce the expansive human rights found

ground is that in a globalized international environment in the various human rights treaties that bind, generally,

definitions of national interest are less clear than they signers of these treaties to treatment of individuals

have been in the past and the ramifications of force

projection, no matter how small, affect multiple sets of courts, as a rule, restrict their prosecutorial jurisdiction

within their jurisdictions. 58 And international criminal

international actors now and in the future. What is the to grave breaches of IHL, leaving lesser breaches of IHL

national interest, for example, for the invasion of Iraq? There are multiple answers. One might be the

56 Ibid,45-49. dest u tio of “aada Hussei s a ilit to foste 57 Interestingly, Orend moves beyond the question of morality

international terrorism and the proliferation of weapons and into the field of utility (realism?) and international law as he

of mass destruction. Another might be regime change in describes the above responsibilities.

order to ensure that this particular dictator could no I reply that war-winners, war-losers and the

longer play havoc with the regional political order and international community could all profit from clear

standards, guidelines and benchmarks for behavior thus disrupt the free-flow of energy, etc. A third interest

in difficult post-war scenarios. It is in all our might be the creation of the first Arab democracy in interests to regulate behavior in post-war moments,

order to begin the development of a reasonably secure and to channel it in the direction of minimal justice

and peaceful region. Each of these tasks requires and political legitimacy. 52.

different levels of force projection, time-tables and

commitments of blood and treasure. The same analysis ‘alph Wilde, A‘E HUMAN ‘IGHT“ NO‘M“ PA‘T OF THE JUST holds for force projection in Sierra Leone, Bosnia-

PO“T BELLUM, AND “HOULD THEY BE? i Jus Post Bellum. Herzegovina, the Democratic Republic of Congo, Rwanda, or Sudan.

The question of the applicability of international human rights norms to situations of foreign occupation/administration, thereby forming part of the jus post bellum is as

59 Cha les Ga a a , THE ‘ELEVANCE OF JU“ PO“T BELLUM: A important as it is under-evaluated. 185.

P‘ACTIONE‘ “ PE‘“PECTIVE, i Jus Post Bellum, 157.

How to use force, it is recognized, also carries with its ramifications for the future as well. No longer is the issio of the i fa t al a s to lose ith a d dest o the e e . The U.“. A

s Field Ma ual ega di g the

proper application of force notes:

Section V1-Rules of Engagement 2-66 The proper application of force is a critical component to any successful

counterinsurgency, the center of gravity is public support. In order to defeat an insurgent force, US forces must be able to separate insurgents from the population. At the same time, US forces must conduct themselves in a manner that enables them to maintain popular domestic support. Excessive or indiscriminant use of force is likely to alienate the local populace, thereby increasing support for insurgent forces. Insufficient use of force results in increased risks to US and multinational forces and perceived weaknesses that can jeopardize the mission by emboldening insurgents and undermining domestic popular support. Achieving the

appropriate balance

requires

a thorough

understanding of the nature and causes of the i su ge , the e d state, a d the ilita s ole i a

counterinsurgency operation. 60

The lesson here is that while all politics is local, increasingly all politics is international as well; especially for those, like the United States, which benefit the most from the interconectiveness of the global economic environment.

How to Judge a Successful End to Conflict?

While just war theorists seek conditions in a post bellum environment which outweigh the harms caused by war (constraints on starting a war) and international law speaks primarily to the conduct of actors in war, it may be the utilitarians or realists that stretch the continuum of responsibilities required of victors in the future (after the war).

Redefining national interest, then, may well require leaving the battlefield in a state that will not require a return for the next generation; cleaning up the battle space of weapons, setting conditions for security and economic growth, and insuring that those left behind are capable of joining the international community with a degree of domestic tranquility that permits global integration. Since these projects take time, hasty judgment adds little to meaningful analysis. Actors who would wage war need to remember, however, that war, no matter how it is defined, has never been cheap. Yet in a global world, the price of a failed

peace can be even more expensive.

FMI 3-07-22 Counterinsurgency Operations retrieved at http://www.fas.org/irp/dodir/army/fm13-07-22.pdf, 04/02.2010.

Shedding New Light on North Korea's Nuclear Ambitions

Nellwyn Olson

I. Introduction

As the United States confronts new and ever p og a s pose. The disti tio et ee No th Ko ea s evolving security threats with innovative and adaptive

capacity, capability, and completed construction of thinking, there is one security threat that has persisted

nuclear weapons becomes lost as discussions focus on for almost a quarter of a century and has been met with

the number of nuclear bombs that North Korea can repetitive alarms and cyclical reactions: the North

produce; identifying these distinctions will be critical to Korean nuclear threat. Almost a decade ago, U.S.

defining points of friction or opportunities for relations with North Korea were on an upswing with the

negotiations.

October 2000 Joint communiqué expressing mutual interest in achieving peace and security; North/South

Histor of North Korea s Nu lear Progra Korean relations were even significantly improved with the first inter-Korean summit in June of that year. The

The source of North Korea's nuclear threat has stark contrast with the current relations with North

often been linked to the country's capabilities and Korea demonstrates the fluctuating, but ever present

intentions to produce nuclear weapons, and their past task of confronting North Korea nuclear threats.

nuclear and missile tests. Although it is difficult to Solutions over how best to deal with North Korea have

o etel ide tif No th Ko ea s u lea i te tio s, the ranged from military intervention, United Nations

ou t s past actions warrant concern over the current Security Council sanctions, bilateral and multi-lateral

capacities for nuclear weapons development and negotiations, to stick-and-carrot offerings. The dialogue

proliferation.

over North Korea's nuclear issue has reignited after each No th Ko ea s e e ship to the Nu lea No - nuclear test or discovery and has often led to equating

Proliferation Treaty (NPT), from 1985 through 2003, has North Korean nuclear endeavors with the production of

been an opportunity for some international oversight nuclear weapons.

o e the ou t s u lea p og a s. Du i g this ti e, “iegf ied He ke s 1 most recent visit to North

International Atomic Energy Agency (IAEA) 2 inspections Korea's Yongbyon site in November 2010 reignited

have uncovered inconsistencies and attempted controversies over the country's nuclear ambitions and

deceptions by North Korea that have increased suspicion u lea eapo s p og a . As o e of the o ld s ost

that North Korea was diverting fissile material to develop

, IAEA testi g of No th Ko ea s occasion analysts' worst-case scenarios and the

de o ized ou t ies, No th Ko ea s e dea o s ofte

u lea eapo s. I

fuel rods for its 5Mwe gas-graphite reactor indicated the international community's stick-and-carrot treatment.

possibility or three different episodes of plutonium Whether North Korea deserves this reputation is open to

separation between 1989 and 1991, which contradicted interpretation which will not be addressed in this paper.

No th Ko ea s laim of a single episode of plutonium Perceptions regarding North Korea are problematic

separation in 1990. One of the IAEA inspectors stated, however, when they are derived from over-generalized

We had to app oa h No th Ko ea ha de a d ha de assessments, intuitive leaps, and preconceived

as they realized we were going to discover their expectations. This paper seeks to articulate a more

o gdoi gs. 3 During this period, according to IAEA ua ed assess e t of No th Ko ea s u e t u lea

officials, there was also evidence of North Korea program by highlighting how common and problematic

attempting to hide or camouflage facilities of particular intuitive leaps create obstacles for an accurate

interest to the IAEA inspectors. 4 According to evaluation of North Korea's nuclear capabilities and can

i iste of ato i harm future negotiations.

O e do fe , the No th Ko ea

e e g , Choi Hak Gu , told IAEA i spe to s, E e if e 5 had do e it heated , e ould e e ad it it.

II. The North Korean Nuclear Threat

The IAEA s diffi ult i a ou ti g fo No th Ko ea s past

u lea histo had fu the ed the The e is o de ial that No th Ko ea s u lea

speculation on possible attempts by North Korea to apa ilities pose a th eat to No th East Asia s se u it .

develop nuclear weapons. Such speculation was later in Because of the limited availability of knowledge on

line with the c ou t s u lea eapo s tests on No th Ko ea s u lea p og a , the e is de ate o e

a d Ma , . No th Ko ea s, as exactly what type of threat and how much of a threat

O to e ,

He ke des i es, li ited a d less-than-successful their

2 The IAEA is an independent international organization that works closely with the United Nations on several nuclear

issues. The IAEA conducts inspections to verify that countries 1

Siegfried Hecker served as director of Los Alamos Laboratory implement proper protocols and procedures as contained from 1986-1997 and is currently a Co-Director of the Center

within the NPT.

for International Security and Cooperation and Professor at 3 Don Oberdorfer, The Two Koreas. (Basic Books, 2001), 270- Stanford University. Hecker has made several visits, in an

unofficial capacity, to the North Korean nuclear complex.

5 Ibid., 275. Ibid., 278.

known structures, the 5MWe gas-graphite reactor u lea test histo , se e el u de hel ed a al sts 11 worst-case-scenario estimates, however they did

appeared dormant but remained on stand-by mode confirm obs e e s e pe tatio s of the ou t s ilita

while the 50MWe gas-graphite reactor continued to nuclear ambitions. 6 stand abandoned as a pile of iron and concrete.

Hecker provided a balanced and objective analysis Current Concerns

of his findings by contrasting his views with possible out o es. He e p essed elief i No th Ko ea s pu suit

Currently there is no IAEA oversight of North of nuclear electricity as genuine while balancing his Ko ea s u lea a ti ities, as No th Ko ea e ai s the

assessments by citing the facility's capacity to amass a only country to have withdrawn from the NPT. Any

certain amount of weapons-grade nuclear material. In discussion of rejoining the NPT and IAEA inspections will

another example of Hecker's objective analysis, he noted likely be closely linked with Iran's obligations under the

that the 5MWe gas-graphite reactor is in stand-by mode, treaty. Iran is a current NPT member and claims to be

but could become operational within six months with developing a civilian nuclear energy program which has

reconstruction of the cooling tower. In addition, he

compared the ease with which various facilities could be also concerns that North Korea may attempt to sell its

elicited international concern. 7 In addition, there are

employed to produce fissile material while also nuclear technologies, fissile material, and/or its technical

comparing their civilian use capabilities. knowledge to countries and terrorists. Gi e No th Ko ea s past a tio s, it is

IV. Media Coverage on North Korean Developments

understandable to react with suspicion and unease towards their most recent nuclear endeavors. However,

Although some of Hecker's observations have been if e ie No th Ko ea s a tio s i te s of the a ou t

disseminated widely through recent commentary on of bombs they can produce or the amount of technology

North Korean nuclear developments, his objectivity and and knowledge they are capable of proliferating, then

nuanced approach have largely failed to command the overgeneralizations caused by fears can cause us to lose

same attention. Following Hecker's most recent visit, a track of the more nuanced details. Such nuanced details

large portion of articles mentioned North Korea's will likely become obstacles to the resumption of six-

uranium enrichment only when linked with fears of party talks and bilateral negotiations or they can provide

producing more bomb fuel. When media reports an opportunity for areas of mutual cooperation or at

mentioned the North Korean stated goal of producing least international o e sight o No th Ko ea s u lea

civilian power, it was often framed within the context of activities.

hiding more sinister ambitions. In an article for Foreign Policy Magazine, Josh

III. The Facts of North Korean Nuclear Facilities

Rogin illustrates the popular view of North Korean initiatives as a cover for illicit activity:

On November 12th, Siegfried Hecker, accompanied by John Lewis and Robert Carlin, traveled to the

As tensions spiral upwards on the Korean peninsula, Yongbyon Nuclear Complex to observe North Korea's

North Korea's construction of a light water nuclear latest nuc lea e dea o s. He ke s p ese ts a o je ti e

reactor in addition to its new, sophisticated uranium analysis from his observations in his November 20, 2010

enrichment facility, allows the regime to claim that its

8 summary which will be briefly summarized below. enrichment program is for domestic civilian power needs -- as [sic] the same argument that Iran makes -- according Currently, North Korea is constructing an 9 [to] the first Western scientist allowed to visit the

estimated 25-30MWe Light Water Reactor (LWR) 10 facility. 12

which, according to North Korean officials, is a small

prototype for a larger LWR to be built once the Many media reports have simply stopped technology is mastered. A recently constructed uranium

mentioning the North Korea's stated pursuit of nuclear enrichment facility is reported to be operational and

energy all together, and simply equated actions involving contain 2000 gas-centrifuges. These two facilities,

North Korean nuclear endeavors with the pursuit nuclear according to Hecker, appear to be designed primarily for

weapons.

generating civilian nuclear power. As for previously The absence of any mention of dual-use technology and civilian nuclear endeavors invites unproven assumptions to become fact:

With No th Ko ea s hoi e to use e t ifuges to e i h “iegf ied “. He ke , ‘edefi i g de u lea izatio i No th uranium to fuel its nuclear weapons, an axis of states that use the technology has now emerged with North

7 Ko ea, Bulletin of the Atomic Scientists. December 20. David Al ight a d Paul B a a , Taki g “to k: No th Ko ea's 13 Korea, Pakistan and Iran.

U a iu E i h e t P og a . The Institute for Science and 8 International Security (2010): 28.

“iegf ied “. He ke , A ‘etu T ip to No th Ko ea s Yo g o Gas Graphite Reactors do not require enriched uranium, use Nu lea Co ple , Center for International Security and

natural uranium as a feed and use CO 2 or helium as a coolant, Cooperation of Stanford University (2010).

and graphite as a moderator.

9 Megawatt of electricity (MWe): Measurement of electricity 12 Josh Rogin, "Hecker: North Korea Now Has Same Nuclear 10 which is equivalent to 1000 watts of electricity.

Defe se as I a , Foreign Policy Magazine (2010) Light Water Reactors require low enriched uranium as fuel

13 Ch isti e Ki , Getti g a g ip o the e t ifuge su te fuge, and use water as a moderator.

Korea JoongAng Daily, November 23, 2010.

Countries with a stake in the protracted multinational nuclear endeavors, yet such figures should be put into efforts to denuclearize North Korea are crafting a

perspective.

concerted reaction, possibly including new sanctions, to the No th s latest u lea dis losu e that it is e uippi g itself with another capability to produce nuclear

Civilian and Military Uses of Nuclear Technology

weapons. 14

With each new simplified equation captured by In current media reports, No th Ko ea s e e t the popular discourse on North Korean endeavors, the

construction of a prototype LWR and uranium pu li s a d edia s k ee jerk reaction to North Korean

enrichment facility has spurred fear of an increased activities becomes all the more solidified. With multi-

capability for North Korea to acquire nuclear weapons. lateral and bilateral discussions already "mired in

With nuclear enrichment facilities, it is relatively easy to

transition from the production of low enriched uranium North Korea's nuclear ambitions will likely be an

distrust and accusations," 15 achieving a consensus on

(LEU), which can be used to fuel nuclear reactors, to the obstacle in the pursuit of an overall agreement between

production of highly enriched uranium (HEU), as used for the United States and North Korea.

the development of medical isotopes and nuclear weapons. 18 Concerns over increased capacity for nuclear

derived from uranium enrichment have been focused predominantly on Iran It is possible that North Korea could use the

V. Discussion in Detail

weapons

development

and North Korea despite this quality being common to current uranium enrichment facilities or have additional

any country or company who engages in uranium hidden facilities that produce highly enriched uranium

enrichment. Using the same parts, highly enriched that they are stockpiling to create nuclear weapons. The

uranium can be achieved by rearranging the cascades (a link between North Korea's current endeavors and

specific arrangement of centrifuges) thus enabling the stockpiling

low enriched uranium to flow through a greater number oversimplified, and in my opinion, is tenuous at best. To

nuclear bombs

of separation step. 19

provide some clarity on the current debate, further The ability to derive fissile material from dual-use la ifi atio o No th Ko ea s u lea e dea o s ill e

technology, a trait common to all uranium enrichment discussed.

facilities, has been so closely associated with North Korean endeavors that any pursuit of nuclear energy will

Prior North Korean Claims likely face skepticism and alarm from the American perspective. The divergent perspectives between North

Although many observers were taken by surprise Korean insistence on engaging in civilian nuclear power on November 12, 2010 when the public learned about

and the views of most analysts of North Korean ambition North Korea's efforts to build a light water reactor,

to increase its nuclear weapons capacity will likely North Korea had first announced its intentions in 2009 in

provide considerable friction in present relations and response to UN sanctions. A North Korean spokesman

future negotiations. Even outside of negotiations, North issued a state e t o Ap il that the DP‘K ill ake

Korea's uranium enrichment facility has become a

a decision to build a light water reactor power plant and battleground of speculation over the presence of start the technological development for ensuring self-

additional uranium sites, proliferation of enrichment production of nuclear fuel as its first process without

knowledge, and other issues. Referring to U.S. initiatives dela . 16 against North Korea's enrichment facilities, chief non-

proliferation advisor, Gary Samore, stated, "The U.S. and “iegfried He ker s ‘ea tio

its allies are doing everything we can to try to make sure that we complicate matters for [North Korea]". 20 The P io to He ke s latest isit to the Yo g o

dual-use characteristic common to all enrichment Complex, he did not believe that North Korea could

facilities has been forgotten or ignored when framed

a hie e this goal o a la ge s ale. I No th Ko ea s within the North Korean context. Choi e: Bo s o e Ele t i it , o-authored by Hecker,

e elie e that No th Ko ea is ot Focus on Number of Centrifuges technically prepared to enrich uranium beyond the la o ato s ale o to uild its o LW‘. 17

he e plai s

In several

The number of centrifuges has often been used as

a ti les, He ke s ea tio is oupled with the description evidence to demonstrate the alarming size of the North of thousands of centrifuges to paint a scene for an

Korea's nuclear facilities. On its own, the number of impressive and ominous endeavor. Such ominous

centrifuges does not provide a clear overview of North descriptions are typical when describing North Korean

Korea's enrichment capabilities, yet the described

lip, Possi le Ne “a tio s fo U a iu , Housto G. Wood, Ale a de Glase , a d ‘ “. Ke p, The Gas 15 Korea JoonAng Daily, November 23, 2010.

Moon Gwang-

Ce t ifuge a d Nu lea Weapo s P olife atio , Physics Today Siegfried S. He ke , Lesso s Lea ed f o the North Korea

19 (2008): 42-43. Kenneth D. Kok, Nuclear Engineering Handbook, Mechanical 16 Nu lea C isis, Daedalus. (2010): 50-54. “iegf ied “. He ke , The ‘isks of No th Ko ea's Nu lea 20 Engineering Series. (CRC Press 2009), 273-275. 17 ‘esta t, Bulletin of the Atomic Scientists (2009).

Da id E. “a ge a d Willia J. B oad, U.“. Co ludes N. Siegfried S. Hecker et al., "North Korea's Choice: Bombs over

Ko ea Has Mo e Nu lea “ites, The New York Times, Ele t i it , The Bridge. Vol. 40, 2 (2010): 9.

December 14, 2010.

number of centrifuges has taken on a meaning of its own Concerns over North Korea's LWR Construction to signify North Korean nuclear ambitions. Indeed it is typical for an enrichment facility to contain thousands of

Several media sources have voiced concerns that a centrifuges.

light water reactor could be an opportunity for North One relevant concern regarding the number of

Korea to produce weapons-grade plutonium. Given that centrifuges is how North Korea acquired these parts.

l ight ate ea to s p odu e ea to g ade pluto iu Many analysts trace North Korean parts to elaborate

athe tha eapo s g ade pluto iu , it is a u h less procurement schemes through front companies engaged

attractive means of obtaining plutonium for nuclear in smuggling. 21 Regardless of whether North Korea's

weapons. 25 Thus, it could be possible to produce a nuclear enrichment parts came from international

plutonium bomb, however spent LWR fuel is several sources, as analysts suspect, or were developed

steps away from this end and weapons grade plutonium indigenously, as stated by North Korean officials,

could be acquired by North Korea by other more extensive UN Security Council sanctions have not

effi ie t ea s. As He ke poi ted out, if No th Ko ea s prevented North Korea's ability to develop its uranium

goal was the production of plutonium, this could be enrichment program.

achieved much more easily from the 5MWe gas-graphite reactor that is currently on standby. 26 The light water Uranium Hexafluoride: A Possible Clue

reactors were proposed in the Agreed Framework 27 specifically because they were formulated more towards The number of North Korea's gas centrifuges has

the production of electricity than for bombs. received the vast amount of attention, but a more important and less discussed issue is North Korea's

Electric Power vs. Nuclear Weapons ability to produce uranium hexafluoride, a feed material for its gas centrifuges during uranium enrichment.

Despite the North Korea's statement of its nuclear According to Hecker, "Yongbyon had never

energy pursuit and Siegfried Hecker's observations admitted having made uranium hexafluoride previously

confirming this notion, much of the current dialogue has because it is not required for gas-graphite reactor fuel.

unequivocally focused on the opportunity for the Yet, now they claim they have this capability on site;

production of fissile materials. After the Agreed however I was not allowed to see it. Nevertheless, my

framework was signed, the partially constructed 50MWe hosts made the case that they have everything they 22 gas-graphite reactor (geared towards dual-use) and the

eed to u the e t ifuge fa ilit . 200MWe reactor (seemingly designed for electricity Even if North Korea could produce Uranium

production) were dismantled. With the two promised hexafluoride, understanding the purity of the

1,000MWe LWR failing to come into fruition, it is telling hexafluoride produced is critical to understanding North

that even North Korea's construction of a 25-30MWe Korea's ability to feed large scale enrichment facilities.

LWR is causing alarm over weapons creation. Uranium hexafluoride that fails to meet the purity

Currently, Hecker points out, South Korea operates requirements will corrode the barriers, the separating 23 20 light water reactors which provides nearly 40% of the elements, of the gas centrifuges.

country's electricity. 28 He also suggests that, in North achieving less-than-ideal purity for its Uranium

If North Korea is

a d de elopi g i ilia hexafluoride, then the current nuclear enrichment

Ko ea s ase, "gi i g up the o

nuclear power could help lift its economy and its people facilities

out of po e t . 29 Now that North Koreans could argue maintenance and repair to the centrifuges making it

would require

extensive

equipment

they are beginning down this path, U.S. fears have only costly to run large scale enrichment facilities and seem

increased due to the potential for proliferation and to contradict some previous claims of North Korea's

hidden facilities.

proliferation activities. If North Korea is adept at producing uranium hexafluoride of optimal purity, it could give credence to the assessment that North Korea was seeking to supply Libya's nuclear facilities in the

early 2000's. 24 25

U.S. Department of Energy, Nonproliferation and Arms

Control Assessment of Weapons-Usable Fissile Material

Storage and Excess Plutonium Disposition Alternatives. Office of Scientific and Technical Information. Department of Energy.

(January 1997): 38.

26 “iegf ied “. He ke , A ‘etu T ip to No th Ko ea's Yo g o

Nuclear Complex , Center for International Security and

Da id Al ight a d Paul B a a , Taki g “to k: No th Ko ea's Cooperation of Stanford University (2010): 6. U a iu E i h e t P og a . The Institute for Science and

27 The Agreed Framework was signed in 1994 between the 22 International Security (2010): 2.

U ited “tates a d the De o ati People s ‘epu li of Ko ea “iegf ied “. He ke , ‘edefi i g de u lea izatio i No th (North Korea) whereby North Korea would freeze its nuclear

23 Ko ea, Bulletin of the Atomic Scientists. December 20, 2010. reactors and related facilities in exchange for more efficient Kenneth D. Kok, Nuclear Engineering Handbook, Mechanical

nuclear energy technology and steps towards normalization of Engineering Series. (CRC Press 2009), 270-271; David Albright

political and economic relations between the two countries. a d Paul B a a , Taki g “to k: No th Ko ea's U a iu

28 “iegf ied “. He ke , “ea C. Lee, a d Chai B au , No th E i h e t P og a . The Institute for Science and

Korea's Choi e: Bo s o e Ele t i it , The Bridge. Vol. 40, 2 24 International Security (2010): 8.

Ibid., 9-10.

29 Ibid., 10.

Speculation of Hidden Facilities The Limits of future IAEA Oversight and North Korean NPT Membership The revelation of hidden nuclear facilities in North Korea is a recurring theme in media coverage and in

The resumption of IAEA inspections is a critical first negotiations. Such concerns are legitimate however

step but not a solution to "resolving the North Korean international actions on such certainties have come at a

nuclear issue." IAEA oversight can verify that North steep price. Don Oberdorfer, a Korea expert, described

Korea is not converting their enrichment facilities to how North Korean negotiators in 1999 were able to use

produce highly enriched uranium or diverting fissile American concern over a possible nuclear facility for a

material, however concerns regarding covert facilities, nuclear weapons program at Kumchang-ni cavern to

nuclear proliferation, and North Korea's pursuit will obtain 600,000 tons of UN food for access to the facility,

likely continue to plague the oversight process, as it has which "was not a nuclear facility and was unsuitable for

in the past. North Korea is not currently a NPT member su h pu poses. 30 Regardless of whether there is state, the country announced its withdrawal 1993 and

agreement on Oberdorfer's interpretation of the officially withdrew in 2003. However, even if the country Kimchang-ni negotiations, he highlights the risks

returned to the NPT and accepted the safeguards, associated with estimating the size and capabilities of

concern over dual-use nuclear technology and weapons North Korea's nuclear facilities. North Korea's capacity to

proliferation will likely remain. Addressing such concerns produce and proliferate nuclear weapons combined with

requires looking beyond the scope of North Korea's their past demonstration of nuclear tests and possession

nuclear program to address the scope IAEA oversight of weapons grade uranium spawn speculation and alarm

and the limitations of the NPT. The NPT upholds the over the existence of covert nuclear facilities and the

"inalienable rights of all parties to the treaty to develop stockpiling of more fissile material. Overestimation of

research, production and use of nuclear energy for the extent of North Korea's covert nuclear facilities risks

peaceful purposes... in conformity with Articles I and II of providing North Korea with extra negotiating leverage

this treaty" (Article IV of the NPT), however, North Korea and sending the IAEA and international intelligence

violated Article II with its production and test of nuclear analysts on a wild goose chase.

weapons. Given that North Korea is the only country to withdraw from the NPT, there is question of exactly

VI. Reactions and Prospects of North Korea and

what rights North Korea has under the NPT for nuclear

energy production given previous treaty violations. If North Korea were to rejoin the NPT, given that Concern over North Korea's ability to proliferate or

the NPT

they are considered a non-nuclear weapons state, they produce nuclear weapons will always be a primary

would be required to submit to the Safeguards concern and indeed past missile tests and evidence of

Agreement and confront the same issues as in the past. proliferation may legitimize these sentiments. It is

Michael Spies notes the limits of IAEA safeguards absolutely essential, however, that our fears do not

application in that "they do not address the dictate the facts on which we base negotiations with

circumstances where a state has diverted nuclear North Korea. As Hecker describes lessons learned from

material using indigenous material and equipment, as the North Korean crisis, he observes, "In Washington, 33 as the ase i No th Ko ea. According to Article XII.7

the threat was often exaggerated for political purposes. of the IAEA Statute, "In the event of non-compliance... Hence it is important to get accurate, publically available

[the Agency can] suspend or terminate assistance and te h i al assess e ts of u lea apa ilities. 31 withdraw any materials made available by the Agency or

a member." Such actions would be irrelevant to North stalled until North Korea takes visible steps to dismantle

Currently progress in multi-lateral negotiations are

Korea who claims to use indigenous talent and its nuclear program, relegating direct talks between the

equipment for their program or is able to acquire the U.S. and North Korea to unofficial diplomatic missions. 32 material amidst United Nations Security Council (UNSC)

The wide discrepancy over the perceived threats from

sanctions.

North Korea regarding its proliferation of nuclear If North Korea agreed to the Additional Protocols weapons, the possibility of additional enrichment

INFCIRC/540 this could assuage fears of possible facilities, and the capacity to divert uranium to increase

clandestine nuclear facilities in North Korea because it its nuclear stockpile makes it difficult to pin down exactly

would give the IAEA authority to investigate undeclared what the steps towards might denuclearization consist

out "location-specific of.

'environmental sampling.'" 34 North Korea would be highly unlikely to approve such a drastic increase in IAEA oversight because the Additional Protocols also provides the IAEA with the right to access and require reporting on all activities throughout the entire nuclear fuel cycle from mining to production (Article 5.a). By requiring

30 Don Oberdorfer, The Two Koreas. (Basic Books, 2001), 412.

Mi hael “pies, I a a d the Li its of the Nu lea No - Siegfried S. He ke , Lesso s Lea ed f o the No th Ko ea

P olife atio ‘egi e, American University International Law 32 Nu lea C isis, Daedalus. (2010): 50-54. Christophe

34 Review (2006): 419.

We e , Bill ‘i ha dso T a els to No th Ko ea Theodore Hirsch, The IAEA Additional Protocol What It Is and o U offi ial Diplo ati Missio , Politi s Dail . De e

Why It Matters. The Nonproliferation Review Fall-Winter 2010.

North Korea to enable access to its production the United States should respond by trying to play a role capabilities, North Korea would have to prove that it is

within North Korea's nuclear fuel cycle. One possible role indeed capable of manufacturing all the components for

could be engaging in a trade whereby the U.S. acquires its nuclear facilities, as they had previously claimed, or

North Korean spent fuel rods and then provides new fuel risk losing face with evidence that North Korea did

rods for North Korean LWR. Simply stated, the U.S. indeed import much of their equipment. Any

needs to develop a strategic partnership with North discrepancy over claims of importing or exporting

Ko ea i a a e that a o odates No th Ko ea s materials or the indigenous production of certain parts

efforts to achieve energy security, while providing will likely invite further increase scrutiny of North

acceptable oversight and control over opportunities for Korea's endeavors. Compliance with additional protocols

diversion of fissile material.

is viewed as a confidence building measure, not required In the 1997 KEDO 38 reached a procurement but once signed is legally binding. Due to the increased

agreement, in which it was to provide LWR fuel. This IAEA scrutiny and the legal risks faced by North Korea

agreement obviated the need to develop uranium rejoining the NPT and submitting to the Additional

enrichment facilities in the DPRK and it contributed protocols,

toward an easing of fears regarding the production of inspections will likely take time to implement, and thus it

extensive and

comprehensive

IAEA

fissile material from uranium enrichment. If the Agreed is critical for the international community to achieve

Framework had gone through, under Article III.2 of the some current oversight through negotiations.

NPT, the provision of nuclear fuel would have enabled safeguard protocols and IAEA oversight of the proposed

VII. Recommendations

LWR even with North Korea's non-member NPT. Now that North Korea has demonstrated its commitment and

Given the overall negative reception of ability to develop uranium enrichment facilities the Pyongyang's showcase of its progress in nuclear

United States must find a way to establish the oversight endeavors, much of the attention over relations with

that is desperately needed.

North Korea has narrowed in on denuclearization. Carlin Although U.S. acquisition of North Korean spent and Lewis elucidate the key to success in past

fuel rods is oriented towards back-end reprocessing as negotiations: "The negotiations themselves were stuck

opposed to the KEDO agreement of front end until the United States recognized the agreement would

orientation, both proposals represent an attempt to

assuage fears about potential "cheating" by engaging in party talks stalled over the U.S. demand for North

have to go beyond nonproliferation." 35 With the six-

long-term partnerships. Now that North Korea is no Korean to take steps towards denuclearization, any

longer part of the NPT, the U.S. should be trying to gain resulting negotiation would likely incorporate the sticks

some insight into North Korean nuclear activity by and carrots method to try and settle U.S. concerns about

becoming integrated into No th Ko ea s u lea le North Korea's nuclear threat. As Carlin and Lewis

rather than further isolating North Korea. illustrate, this short term approach ignores North Korea's strategic needs. One of the most obvious needs, in light of North Korean claims and efforts, is the provision of energy. A second overall need that Carlin and Lewis describe is a "desire for a long-term, strategic

elatio ship ith the U ited “tates that. 36 The inability for UNSC sanctions to prevent the

development of North Korea's nuclear development demonstrates that North Korea could continue expanding its nuclear program. If the U.S. would like to influence the outcome of North Korean nuclear initiatives it would seem there is no choice but to engage in negotiations. Hecker proposed one basis for negotiation, in what he calls "the three no's – no more bombs, no better bombs, and no exports – in return for one yes: Washington's willingness to seriously address North Korea's fundamental insecurity along the lines of

the joint communiqué." 37 Given both North Korea's desire to develop its nuclear power infrastructure while ideally developing a long-term strategic relationship with the United States,

Robert Ca li a d Joh W. Le is, Negotiati g ith No th Korea: 1992-

, Ce te fo I te atio al “e u it a d

Cooperation of Stanford University. January (2008): 5. 38 KEDO is a consortium of countries including the United States, 36 Robert Ca li a d Joh W. Le is, Negotiati g ith No th

Japan, and South Korea developed in 1995 to provide funding Korea: 1992-

, Ce te fo I te atio al “e u it a d and assistance for the implementation of the key parts of the 37 Cooperation of Stanford University. January (2008): 21.

Agreed Framework. Its responsibilities included the financing “iegf ied “ He ke , What I Fou d i No th Ko ea, Foreign of the two Light Water Reactors.

Affairs. December 9, 2010.

Cross-Spectrum Similarities Between Violent Non-State Actors

Sean Atkins

Introduction Understanding armed non-state organizations is

how they operate. These similarities and their increased o e of the ost p essi g o e s i toda s se u ity

threat potential urges us to examine the follow-on environment. Whether on the local, state, or

questions: do deeper similarities exist between these international level, violent non-state actors as a whole

groups and, if so, can the way we deal with one set of represent one of the most troubling issues for national

groups provide any lessons in dealing with another? security practitioners, and the danger they pose is compounded by their nebulous and elusive natures. As

Overview John Robb, a theorist on the evolution of warfare and former special operations pilot, described in his

This article explores the possibility of deeper testimony before the US Congress last year:

similarities between armed non-state groups. It attempts to move beyond top layer similarities (such as

The threat the US faces today is as dire as the in methods, stated motivations or goals - all of which darkest days of the Cold War. In fact, this threat

have been addressed elsewhere) and to discern may be even more dangerous because it is so

similarities in more fundamental variables and insidious. The threat we face is a combination of

characteristics in order to answer the question: What glo al s ste i th eats … a d the apid e e ge e

of violent non-state groups ... 1 fundamental similarities exist between violent non-state actors? In the end it proposes that, while there are no

It is also a problem that continues to grow in universal variables or characteristics, many are scope. Terror, insurgent, militia, and criminal groups,

exceedingly common.

equipped with readily available communication and The following analysis utilizes extensive research travel technology, have shifted from regional to major

within one category of violent non-state actor, street strategic challenges. They have increased their

gangs, and compares this to primary and secondary o ga izatio al effe ti e ess, thei lethalit , a d thei

evidence regarding other violent non-state actors. ability to op

e ate o a t ul o ld ide s ale. 2 Instead of searching for similarities in what they do, it Further complicating the matter, contemporary

likenesses in variables and researchers have recognized a growing nexus between

investigates

the

characteristics at the individual, group and community various types of groups (whether analyzing insurgent

levels. Most of this evidence is relatively recent and groups in Iraq, terrorist groups like Al Qaeda or street in

therefore primarily qualitative. There are, however, gangs in South America) and increasing similarities in

sections that utilize quantitative data where it is available.

The VNSA Continuum 1

For purposes of this paper the continuum belowwas developed and will be referred to in the sections ahead:

Robb, John. Congressional Testimony. House Armed Services

2 Committee. 2 Apr 2009. Ha lo , Que i e H. Glo alizatio a d the T a sfo atio of

A ed G oups. Armed Groups: Studies in National Security, Counterterrorism, and Counterinsurgency. Ed. Jeffrey H. Norwitz. Washington D.C. US Department of the Navy. 2008.

The Continuum to share a similar environment to urban criminal groups like street gangs. This environmental shift may be one

Traditionally, armed non-state groups have been reason for adapting techniques and operational distributed along a horizontal continuum. They are

methods. 10

generally grouped by logical distinctions in: Blurring is not limited to insurgent or terrorist

3 1. groups. Similar conclusions are being drawn about Motivation criminal organizations like gangs. As Max Manwaring, an

2. Size expert in insurgencies and their relation to gangs,

3. Organization

recognized:

4. Function whether a gang is specifically a criminal or insurgent

Blurring of Lines type organization is irrelevant. Its putative objective is to neutralize, control, or depose governments to

ensure self-determined (nondemocratic) ends. 11 In more recent years international security

researchers have noticed a blurring of the lines Examples of this abound. Recently drug cartels in traditionally observed between VNSAs across the

Juarez, Mexico, have been able to wrest control from the continuum. This blurring has been evident in motivation,

government. In one case the a cartel was able to size, organization and particularly function. What this

remove the police chief, Roberto Orduña Cruz, by may imply is deeper commonalities between these

vowing to kill a police officer every 48 hours until he groups than had been considered before.

resigned. 12 They have also intimidated the mayor Observers are now finding that many distinctions

himself, threatening to decapitate him and his family previously ade et ee VN“As a e o lo ge e

unless he backed off. 13 Gangs and other criminal groups useful for discerning or assessing the security

a e halle gi g the legiti a of the state, pa ti ula l la ds ape. 4 Oehme describes the situation as thus: in regions where the culture of democracy is challenged

…terrorists and insurgents are resorting to by corruption and reinforced by the inability of political o ga ized i e … also oppo tu isti all seeki g out

systems to function well enough to provide public criminal networks when specialized support is

goods. 14 They are acting as surrogates or alternative needed... Conversely, violent criminal organizations

governments in these areas as well as infiltrating have been known to employ operational

governmental and nongovernmental organizations to

approaches similar to terror networks to intimidate

or gain concessions from provincial government

further their aims.

officials 5 … Youth Aspect

Groups that take one particular form are found assuming the functions of others such as insurgent

A benefit of comparing gang studies to information

groups robbing banks or criminal groups defending regarding other VNSAs is their focus on the youth

component. Studies have determined that gang-joining today primarily consist of local intimidation for economic

minority populations at risk. 6 For instance, IRA activities

rates vary by age with the highest levels found in the teenage years. or political purposes as well as the occasional 16 This can be useful as the analysis drawn

from here may be well suited to address the youth frequently resort to kidnapping, embezzlement, oil

spectacular bank robbery. 7 Political insurgents in Iraq

component of other VNSAs.

Youth involvement in VNSAs across the spectrum is the Abu Sayyaf Group, a terrorist organizations in the

smuggling, theft, fraud and extortion. 8 In the Philippines

often recognized as a critical component but is not southern islands, has conducted kidnappings, bank

always addressed or understood. Within most VNSAs it is

usually the youthful component, at the bottom of the have urbanized away from rural bases they have come

robberies and general looting activities. 9 As insurgencies

organization, that makes up the mass of its ranks and are most often the ones conducting the majority of the

g oup s ope atio s. This is illustrated by the vertical

U de ood, Pete T. Pi ates, Viki gs, a d Teuto i K ights. spectrum overlaid on the horizontal VNSA continuum. Armed Groups: Studies in National Security, Counterterrorism, and Counterinsurgency. Ed. Jeffrey H. Norwitz. Washington

4 D.C. US Department of the Navy. 2008.

Oehme, Chester G. III. Terrorists, Insurgents, and Crime – 10 Hoff a , F a k G. Neo-Classical I su ge ? Parameters. Growing Nexus? Studies in Conflict and Terrorism. 31:1, 80-93.

Summer, 2007: 71-87.

5 2008. Manwaring, Max G. A Contemporary Challenge to State 6 Ibid.

Sovereignty Gangs and Other Illicit Transnational Criminal

Organizations in Central America, El Salvador, Mexico, Jamaica I ish ‘epu li a A

Ho t, Ti oth D. Adapti g to a Cha gi g E i o e t: The

as a A ed G oup. Armed Groups: and Brazil. Carlisle: Strategic Studies Institute. 2007. Studies in National Security, Counterterrorism, and

12 La e , Ma . With Fo e, Me i a D ug Ca tels Get Thei Counterinsurgency. Ed. Jeffrey H. Norwitz. Washington D.C.

Wa . New York Times. 01 March 2009. Accessed 8 Mar 2009. US Department of the Navy. 2008.

( http://www.nytimes.com/2009/03/01/world/americas/01juar ez.html?em )

15 Manwaring, 10 F ake, Cha les O. A u “a af: Displa s of Viole e a d the

16 Proliferation of Contested Identities Among Philippine Ibid. Klein, Malcom W. and Maxson, Cheryl L. Street Gang Patterns Musli s. American Anthropologist 100.1 (1998): 41-54.

and Policies. Oxford. Oxford University Press. 2006.

Age Spectrum Overlaid the VNSA Continuum VNSAs is difficult to overstate and the existing gang research may provide useful insight, lessons and

This point is evident in Afghanistan where youth perspective for those studying VNSAs elsewhere on the play a visibly large role within terror and insurgent

continuum.

groups. Indeed, the very first US military member killed

i the a o te o as a G ee Be et killed a - Local Aspect year-

old s ipe . 17 On the release of a video showing a boy beheading a blindfolded man, Taliban commander

Street gang research also tends to focus on the Mullah Ha atullah Kha o

local. While some gangs have more recently become the non-Muslims that o u ou gste s a e… Mujahadee s

e ted, ...We want to tell

extra-localized –or even globalized- organizations, they

a d… ill e ou Hol Wa o 18 a de s i the futu e. have traditionally been both active and prosecuted on Even Senior Al Qaeda leader Ayman Al-Zawahiri first

the local level. This is an important asset if attempting became an active member of a Jihadi cell at the age of

to transfer lessons to international security challenges

16. like terrorism and insurgencies, which, at their roots, are In Iraq, with its myriad of active VNSA groups,

local issues that require addressing at that level. youth also play a central role. Even in 2004, very early on, there were 107 juveniles classified as high-risk

This lo al fo us, e e he a g oup s presence security threats held in the Abu Ghraib prison alone. 19 extends beyond a localized area, has recognized benefit By 2007 some 800 juveniles, between the age of 11 and

when examining other VNSAs. In his testimony

16, were held in detainment facilities. 20 Foreign fighters

regarding the future of VNSAs before the US Congress,

Joh ‘o e o 26 e ded that, e should fo us o the Chehab, a journalist who interviewed insurgents inside

flowing into Iraq were mainly young men. 21 As Zaki

He noted that in nearly all of the foreseeable the I a esista e, e og ized, ...Hundreds of

lo al.

futu e o fli ts i ol i g VN“As the a ilit to a age 27 disaffected young Arabs from every kind of background,

lo al o ditio s is pa a ou t. This is particularly hethe Isla ists o atio alists… wasted no time in

i po ta t i toda s o te t he e VN“As, hethe olu tee i g. 22 He further noted that although

operating in a city or across the globe, commonly use weapons were available to all and most Iraqis had

decentralized organizational structures that shift t ai i g, those ho a tuall a ied out the atta ks

autonomy and initiative to local levels. 28

e e ou g Isla ists. 23 In traveling through Iraq,

interviewing the insurgents Ghaith Abdul-ahad found In analyzing data compiled on the global Jihadi that the all d ea t of ei g pa t of the jihadi

movement, Clint Watts, co-director of PJ Sage, found o e e t, of ei g ujahedee … all those people a e

that city and nodal strategies were far more likely to

He The strong youth component is not limited to

young 29 – , , , , aiu. succeed in disrupting the targeted groups.

suggests:

Islamic terrorism or insurgency movements. It is ... microscopically focusing on flashpoint cities and reflected in groups operating in different locations,

dense social network hubs rather than nations or populations and times. For example, the Red Brigades,

egio s … Weste ou t ies ust look past an Italian terror organization that operated primarily

international boundaries and focus on cities and 30 du i g the

s, o sisted p i a il of outh. I o e hubs of radicalization. t pi al atta k, t o ouths o a oto ycle shot and

wounded Giorgio Bohretti, a 53-year-old bank Looking at the decades of available gang

e e uti e. 25 The importance of the youth aspect to research, with a long history of focusing on the local, may offer new perspectives and tools with which to

approach other VNSAs.

“i ge , Pete W. Child e o the Battlefield: The B eakdown of Mo al No s. Armed Groups: Studies in National Security,

Counterterrorism, and Counterinsurgency. Ed. Jeffrey H. Norwitz. Washington D.C. US Department of the Navy. 2008. 18

‘eute s, Tali a ideo of o e e utio e auses a ge . April, 2007.

20 Singer, 362 21 Ibid. Felter, Joseph and Fishman, Brian. Al-

Qa ida s Fo eig

Fighters in Iraq: A First Look at the Sinjar Records. New York. Combating Terrorism Center. 2008. 22

Chehab, Zaki. Inside the Resistance. New York. Nation Books. 2006. 23 Ibid., 18 24 Abdul-ahad, Ghaith. Interview. Frontline. Public

Broadcasting Corporation. Aug 2005. Accessed 21 Jan 2009. ( http://www.pbs.org/wgbh/pages/frontline/insurgency/intervie

Robb

ws/abdulahad.html )

27 Ibid.

25 “ ith, Paul J. The Italia ‘ed B igades -1984): Political

28 Hanlon, 119

‘e olutio a d Th eats to the “tate. Armed Groups: Studies in 29 Watts, Clint. Beyond Iraq & Afghanistan: What Foreign National Security, Counterterrorism, and Counterinsurgency.

Fighter Data Reveals About the Future of Terrorism. PJ Sage. Ed. Jeffrey H. Norwitz. Washington D.C. US Department of the

Navy. 2008

30 Ibid., 6

Age Spectrum Overlaid the VNSA Continuum

Previous Criminal Acts This section addresses common fundamental

Commonalities

It may be obvious, but nonetheless useful, to note variables, risk factors and characteristics between gangs

that prior illegal activity may identify those who are and other VNSAs. It is divided into three sections, each

more susceptible to recruitment into what are addressing a different level of analysis: individual, group

essentially criminal organizations, whether a street gang, and community.

insurgent or terrorist group. A study on gangs produced The first thing to note is that it moves beyond

for the Canadian government summarizes a vast simple explanations of stated grievances to find common

collection of gang studies when stating that, underlying factors. In examining 1,043 civil-war ex-

esea he s ha e i di ated that p io a ts of combatants, Macartan Humphrys, a Columbia University

e e sig ifi a tl o elated ith a outh s p ofesso a d e pe t i i il a , fou d that e pi i al

deli ue

decision to join a g

a g. 3

results challenge standard interpretations of grievance- Past illegal activity indicates an attitude or outlook ased a ou ts of pa ti ipatio . 1 While a g oup s stated that finds it less difficult to cross legal or moral

grievances can tell an analyst much, in forming policy boundaries. A majority of gang studies that focus on decisions there may be utility in looking beyond these.

i di idual a ia les fi d that outh attitudes to a d The second item to note of is that these variables

deli ue t eha io is a isk factor. 4 A clear terrorist or make a complex web of influence. They vary in

insurgent example of this factor was Abu Musab al- appearance across different cases. Due to contextual

Zarqawi, the former leader of al- Qaedai s I a -based differences, such as culture and location, some are found

insurgent organization. He was first arrested and jailed in a majority of cases studied while others may show up

not for bombings or kidnappings, but for petty crimes as in only a few. Further, these variables often interact with

a youth in Jordan. 5

each other increasing their overall influence. This lack of moral or legal boundaries may also

partially explain how some VNSAs can easily move between criminal acts like robbery and kidnapping for

Individual Level Factors

At their lowest level terror attacks and insurgent ransom to political violence like terror or insurgent operations are a matter of individual choice. Each

attacks. As described in the introduction, VNSAs are terrorist or insurgent chooses to join the group and

sliding back and forth on the horizontal spectrum and ultimately to pull the trigger or detonate an Improvised

into more than one category Explosive Device (IED). As anthropologist Charles Frake

often

fitting

simultaneously. If individuals are able to cross moral and states, Cu e t iole e, i the ou tai s of Bos ia,

legal boundaries for one particular reason then perhaps the streets of New York, the pubs of Belfast, the subways

it is easier to cross them for others, political or of Tokyo, and the islands of the Philippines, is, in the

otherwise.

situation and moment of occurrence, an act of

2 i di iduals ith i di idual oti es a d i te t. Exposure to Turmoil

What

follows is an analysis of some of the factors that

A i di idual s e posu e to t au ati e e ts, particularly where violence is involved, also appears to

influence the motives and intent of those individuals

who choose to participate in violent non-state groups.

be a somewhat common factor shared by VNSAs across

Lafontaine, Tania; Ferguson, Myles and Wormith J. Stephen.

Street Gangs: A review of the Empirical Literature on

1. 1 Humphreys, Macartan and Wei stei , Je e M. Who Community and Corrections-Based Prevention, Intervention and Fights? The Dete i a ts of Pa ti ipatio i Ci il Wa .

Suppression Strategies. Paper prepared for the Canadian The American Journal of Political Science 52.2 (2008): 436-

Government. June 2005.

Klein, 148

Frake, 41

5 Chehab, 49 5 Chehab, 49

always an issue of ethnicity or religious background. The influence potential recruits. Personal experiences with

Red Brigades would test potential recruits to ensure they extreme violence, whether in South Central Los Angeles,

were capable of shedding their old identities and any Palesti e o I a a i flue e i di iduals life hoi es 14 connection to it, family, friends or otherwise.

and provide justification for and normalization of violent Further, for some VNSA members, the motivating activities.

force behind the issue of identity may be simpler than a Gang and terror group studies appear to agree on

complex detachment from ethnic of cultural roots. this point, many of which note that those who were

While researching The Real IRA and The Continuity IRA, exposed to violence and emotional distress in their

Morton Cole, a UK based journalist, found that many of

the youth involved with the resurgence of violence and Maxson noted that, generally speaking, there were a

childhood were more likely to become involved. 6 Klein

du i g

15 a ted to ide tif ith so ethi g that is

higher concentration of youth who experienced a series

Fahmi Salem Said Al Sani, a Yemeni who of negative life events in gangs. Kellerhals, in

7 e ellious.

travelled to the Al Farouq Al Qaeda training camp in researching terrorist groups, found that:

, e a ked that he did t go to Individuals who endure trauma may undergo

Afgha ista du i g

fight a o e ut e ause he felt it as i po ta t i 16 o i g of age.

dissociation, or a state of already being dead. The oti atio ehi d a i di idual s issues of This t pe of e tal f eezi g… a lead the identity may be tied to weak ethnic or cultural individual to become unemotional about foundations, or to something as simple as the urge of killing

youth toward rebelliousness and proving maturity. generations who see or experience war, Eithe a , a i di idual s se se of ide tit a d ho a torture and

group may build or shape that are crucial to youth normalize violent acts in their minds... These development and can play a significant role in motivating people find it much easier to become a

other horrors

eventually

8 membership in VNSAs.

At the simplest level, VNSA terrorist or a suicide bomber. activity is based on individuals seeking to satisfy

Identity questions of identity, status, need for belonging, and perceived protection, and not to commit crimes. 18

Security and strong factor for those joining VNSAs. This is

“eeki g to uild o fi d o e s ide tit is a o

particularly true for younger individuals and for those Some individuals are drawn to membership in who feel detached from their ethnic, cultural or other

armed groups for the perception of security that it can bases for identity. The Canadian gang study notes that

provide. Among the many individual factors identified in

ga g esea h, safet a d p ote tio ofte ea hes the p o le s . Specifically cited in multiple gang studies

ga g e

e s te ded to e pe so s ith ide tit

top of the list. 19 One study that engaged St Louis gangs, were those who felt weak attachments to their ethnic 10 for example, showed that members selected protection

group or a lack of cultural identity. more often (54%) than any other reason for joining. 20 Similar to gang membership, issues of identity are

Follow-up questions from other studies revealed that commonly found within membership of other VNSAs. As

gang members often felt threatened and joined to seek Jessi a “te , Ha a d s oted e pe t o te o ists a d

physical protection, find safety and to protect their militants, stated in a recent intervie

11 , The e s a st o g

neighborhoods. 21

The logi al uestio that follo s ide tif i g the principal founder of the Philippine terrorist organization

feeli g of o fused ide tit .

Abubakar Janjalani, the

eed fo p ote tio as a fa to is: p ote tio f o Abu Sayyef Group (ASG) was himself born into a split

what? The answer to this question can be the same for Muslim-Christian family. In growing ASG, Janjalani

insurgent and gang member: protection from rival tapped i to a la ge pool of disaffe ted Musli s… to 12 groups. Rival street gang violence is responsible for

f o thei eth i oots du i g the p e edi g de ades. As Juergensmeyer found in researching terror groups,

14 Smith, 18

to li e i a state of a is to li e i a o ld i hi h 15 Cole, Mo to . ‘eal I‘A, ‘eal Life. The Independent Mar. individuals know who they are, why they have suffered,

13 2009. Accessed 16 Apr. 2009.

hose ha d the ha e ee hu iliated… ( http://www.independent.co.uk/news/uk/home-news/real-ira-

real-life-1645360.html )

Wittes, Benjamin. The Current Detainee Population of

7 Lafontaine, 31 Guantanamo: An Empirical Study. Washington D.C. Brookings 8 Klein, 148

Institution. 2008. Accessed 04 Jan 2009. Kelle hals, Me ie D. J . P ofile of a Suicide Terrorist Defies

(http://www.brookings.edu/~/media/Files/rc/reports/2008/121 Co 9 o “te eot pes. Americe.gov

6_detainees_wittes/1216_detainees_wittes.pdf) Lafontaine, 31

Maggio, Ed a d J. The Th eat of A ed “t eet Ga gs i 11 Ibid., 31 and 34

A e i a. Armed Groups: Studies in National Security, “te , Jessi a. Pa el dis ussa t. The Maki g of a Te o ist. Counterterrorism, and Counterinsurgency. Ed. Jeffrey H. Talk of the Nation. Hosted by Neal Conan. 18 Jul 2005.

Norwitz. Washington D.C. US Department of the Navy. 2008.

13 Frake, 48 19 Meilahn, Kathleen. Klein, 8 The “t ategi La ds ape: A oidi g

20 Futu e Ge e atio s of Viole t E t e ists. Strategic Insights. Lafontaine, 31 Klein, 157 July 2008.

21 Ibid.

hundreds of deaths in the US annually. In Los Angeles in This factor also appears in detainee data from 1987, for instance, members of gangs were held

Guantanamo and records on foreign fighters captured responsible for 205 deaths. 22 from insurgents in Iraq. The modern Sunni mujahid who

olu tee s to fight as a te o ist o i su ge t has ti e communities, and the insecurity it produces, is often

This ta geti g of e e

i di iduals a d

on his hands and a lack of purpose, making him more mirrored in civil war or insurgent situations. On a far

susceptible to radicalization and giving him enough free larger scale, nearly 1,400 Iraqi civilians were murdered in

Tales of Jihadi targeted killings in Baghdad during May of 2006.

23 ti e to t a el i suppo t of jihad.

ad e tu e i fo eig la ds f o etu i g fighte s a Sectarian based violence has torn apart much of Iraq and

be influential to youth under the influence of this factor. produced innumerable localized insurgent groups. In

In interviews with Jared Cohen, young Palestinian addition to fighting the coalition, these groups are set up

e ted, What choice do we have? They to defend against targeted sectarian attacks. Reactionary

ilita ts o

try to create special programs for us to experience life

g oups ofte fo i espo se to th eats to thei outside the a ps, ut e still fa e so a p o le s… 31 o

u ities … fo us o the t aditio al ilita task of This lack of meaningful protecting the p

24 e ha e o e te tai

e t.

opulatio . activity or purpose, in particular, links directly into the Iraq is a stark example but not the only one. In

next common factor between VNSA members: desire for Sierra Leone VNSAs vying for power fueled a particularly

a purpose in life.

bloody conflict. Fighters within civil-warring groups generally believe that they are safer inside a fighting

Purpose Seeking

faction than outside of it. 25 Humphreys, who has

researched this angle of the conflict extensively, found Gang and insurgent/terror group members share that:

the desire for a purpose to their lives that membership The relationship between personal security and the

in these groups appears to offer. Gang research de isio to joi a e ellio is st o gl sig ifi a t …

describes the typical gang member as someone who had lower feelings of purpose in life. even after controlling for a range of other factors 32 Whereas the typical

…The possi ilit of i p o i g o e s pe so al gang member might find purpose in protecting his security, it appears, provides an important

neighborhood, modern Jihadis are commonly influenced by the idea of

motivation for joining a faction ... 26

de otio to his faith a d o u it . 33 Ghaith Abdul-Ahad, an Iraqi reporter who has

countless insurgents, recounts his of their members. Among the more prominent is the

VNSAs persist because they satisfy particular needs

interviewed

conversation with a group of foreign fighters in Northern perceived protection membership provides from rival groups. 27

Iraq:

They dreamt of being part of the jihadi movement, Free Time

of being mujahideen, and Iraq provided them with the opportunity to fulfill this dream, ...to send

VNSA members often possess excess leisure time people, se d o e , eate the ideologi al ause… and have few meaningful activities to occupy it with.

But for those young men, ... they have this romantic The previously mentioned Canadian study noticed that

dream of Osama bin Laden, of mujahideen, of research often found that gang members reported a Afghanistan, and they wanted to fulfill these dreams

in Fallujah and Iraq. 34

greater amount of unstructured time spent with their peers. 28

Several gang studies go on to identify seeking

29 Jared Cohen found similar desires and dreams in

his discussions with young Lebanese Fatah militants. Membership offers gratification to individuals with a

e ite e t as a easo fo

e e ship.

One of the groups he spoke with commented that, need for engaging activities and who possess excess free

i side he e e a e so e od … We a t to o t ibute time.

to so iet … At least if e fight, e feel as though e belong to something that is trying to bring about

change. 22 35

‘ei hold, ‘o e t. Ga g Viole e “ho ks Los A geles. New York Times. 08 Feb 2008. Accessed 04 Jan 2009.

It is not only Jihadis and gangsters that are (http://www.nytimes.com/1988/02/08/us/gang-violence-

motivated by a need for purpose in life. The Italian Red shocks-los-angeles.html)

Brigades provide another example. The Red Brigades

23 Bo ge , Julia a d Ho a d, Mi hael. Baghdad has Bloodiest was originally commanded by Renato Curcio and his wife Mo th as ,

ta geted Killi gs Add to Toll. The Gaurdian Margherita Cagol, who were trained hotel bookkeepers Jun. 2006. Accessed 20 Apr. 2009.

that found their mundane lives unappealing. 36 They ( http://www.guardian.co.uk/world/2006/jun/07/iraq.iraqtimeli

found greater purpose in creating a movement to ne ) 24 Ha es, T. X. A ed G oups: Cha gi g the ‘ules. Armed

Groups: Studies in National Security, Counterterrorism, and

Counterinsurgency. Ed. Jeffrey H. Norwitz. Washington D.C. 31 US Department of the Navy. 2008. Watts, 2 Cohen, Jared. Children of Jihad. New York. Gotham. 2008. 25 Humphreys, 442

32 Lafontaine, 31

26 Ibid., 449

Watts, 8

28 Klein, 165

35 Abdul-Ahad

29 Lafontaine, 30

Cohen, 172

Ibid., 34

36 Smith, 16 36 Smith, 16

Status, Respect and Power group of more than 200 Saudi sociologists, who Youth are often motivated by the idea of wielding

gathered in Riyadh in 2005 to discuss terrorism, power over others and earning respect and status within

o luded that a u happ ho e is the ause of thei so ial g oup. O e of life s ajo oti ato s o youths going astray and eventually taking to terrorist

a ti ities.

occasion not even second to survival, is the need to be

One of the sociologists pointed out that

38 Studies have consistently identified so e od . broken homes are bereft of understanding or status a d espe t as the top easo fo ga g

u i atio a d that su h a fa il e i o et membership. 39 Additio all , Go do fou d that status leads to frustration, which eventually leads the youth to

deprivation can be a cause of delinquency. 40 be misfits in society who resort to

efa ious a ti ities. 48

A similar desire for power, status and respect may It is not only lack of family involvement that influence insurgent and terrorist group recruits as well.

encourages VNSA membership; families and friends can In researching ASG in the Philippines, Frake found that

also actively encourage membership through their own the eed to e so e od as o l satisfied th ough affiliations. Family or peer connections to gangs can

41 e og itio f o o e s fello s. provide the quick track to membership, which is Writing on Abu Musab al-Zarqawi, Mary Anne Weaver, a noted journalist who

reflected in the findings of multiple gang studies and in

has covered militant Islam extensively, remarked that the experience of insurgents/terrorists. the e as a a het i ol ed i fighti g the jihad. 42 A 2003 study of Rochester gang members found

After fighting in Afghanistan, Zarqawi discovered that that more than half indicated that having friends or

the community that had previously ignored him had now family in the gang was the primary reason they joined. accorded him a high social position and respect. As with

Studies conducted by Howell and Lahey found that many VNSA members, maintaining and increasing social

previous association with antisocial peers was a position became an important motivating factor for

significant contributor to gang membership. 51 Klein, )a a i s futu e a ti ities. To help u de sta d this,

with further analysis on this variable, notes that friend Singer asks us to:

relations is not only a risk factor for gang joining, but they can influence of amplify other risk factors as well. 52 Imagine the temptation you might have if a group of

For potential terrorists or insurgents family older boys wearing natty uniforms and cool

members and friends provide the social pressure and sunglasses were to show up at your school and

reinforcement of political or religious justifications for force all the teachers to bow down to show who is

eall i ha ge. The the i ite ou to joi violence. 53 Analysis of the Sinjar Records, a foreign-

them, with the promise that you too can wield such insurgent registry in Iraq, shows that friendships played influence. 43 a key role in recruitment. 54 Many of the fighters crossed into Iraq with hometown friends, suggesting that al- 55 Family and Peer Factors

Qaida targeted existing groups of friends. Interviews with Guantanamo detainees suggests a similar pattern

I additio to the i di idual s sea h fo p i ate for terrorists and insurgents captured in Afghanistan. meaning and social respect, there is the semi-public

The data indicates that returning fighters influenced

i flue e of o e s fa il a d f ie ds. Mode ga g groups of friends to join them and that the ones that did literature reveals that peer and family-related factors

so travelled together, presumably reinforcing each 56 are highly influential in gang participation and a weak

othe s de isio .

family foundation is a significant indicator of

participation. 44 Go do fou d that ithi deli ue ts Group Level Structure and Processes Factors

families, marital relations were poorer, there was less family cohesion, less af

Studying VNSAs at the group level explains the pa e ts.

45 fe tio sho …

oth

As a result, the sons felt weaker emotional rationale for their operational motivations and ties to their parents and had a lower estimate of his pa e ts o e fo thei elfa e. 46

ed. B oke Ho es Bla ed fo Ibid., 17

47 ‘asooldee , Moha

Tu i g Youth to Te o is . Arab News. 24 Mar 2005. 39 Frake, 41

Accessed 13 Dec 2008.

40 Lafontaine, 34 (http://www.arabnews.com/services/print/print.asp?artid=609 Go do , ‘o e t A. “o ial Le el, “o ial Disa ilit , a d Ga g &d= …B oke % Ho es% Bla ed% fo % Turning%2

I te a tio . The American Journal of Sociology 73.1 (1967):

0Youth%20to%20Terrorism)

Lafontaine, 34 Wea e , Ma A e. The “ho t, Viole t Life of A u Musa 50 Klein, 157

al- )a a i. The Atlantic. Jul 2006. Accessed 22 Feb 2009.

51 Lafontaine, 30

( http://www.theatlantic.com/doc/200607/zarqawi/2 )

52 Klein, 147

44 Singer, 363

54 Watts, 8

45 Klein, 148

Felter

46 Gordon, 50

55 Ibid., 28

Ibid.

56 Watts, 2 56 Watts, 2

rely on this media amplification to achieve maximum psychological effect and thus affirm the power of the

Image, Media and Recruitment organization. These legitimate newscasts can spread terror among their targets, and affirmation of success

A VN“A s i age is pa a ou t to its o ti ued among their sympathizers, sources of funding, and

e iste e a d g o th. It is the g oup s i age that

potential recruits. 63

add esses a d e ploits the i di idual s ps hologi al needs: status, respect, power, identity, purpose and

For example, a March 2006 story produced by the perception of security. The image is often communicated

Oakla d Califo ia CB“ affiliate told the i side sto of via readily accessible mass media such as the internet,

the Norteno versus Soreno gang wars. 64 The broadcast music, or television or even by word of mouth from local

pushed the previously-localized gangs into community veterans.

consciousness and caused generalized fear of the Image building and recognition are essential to the

escalating violence. The Abu Sayyef Group, a Philippine recruiting process. Gang imagery distributed through the

terrorist organization, received similar publicity during popula edia o ies, lothi g st les, usi , … see s

its naissance when the International Herald Tribune to ha e o e i flue e o lo al ga g a ti it tha movement of actual gang members. 57

featured a story on the group. The article was appointed

ith a page ide photo, o iousl staged, of p otot pi the popula outh ultu e, o tai

Once spread into

te o ists t i g to look g i … hile image has proven difficult. Even the Saudi Arabian

e t of a ga g s

65 a dishi g a th eate i g a iet of eapo s.

The headline read: government could not prevent Sunni-led Islamic militant

Isla i ‘e els “tu Ma ila ith Thei Fe o it . 66 groups from crossing into Iraq once the movement was popularized among Saudi youth. 58 In addition to mass media, both legitimate and The internet is a vital medium in VNSA image

propagandist, there is also a word of mouth element to campaigns, whether terrorist, insurgent or domestic

VNSA image building that plays a central role. Although a st eet ga g. Ma of A e i a s ost oto ious ga gs

community might respond as a whole to mass media, have become web- sa , sho asi g illegal e ploits,

individual recruits are influenced by real-life examples of making threats, and honoring killed and jailed

local gang members who have attained social position members. 59 This seems a direct parallel to insurgent and

and can regale an audience with their exploits. The New terror websites which showcase videos of their violent

York chapter of the Bloods street gang exploited this by acts with the logo of the group claiming responsibility,

organizing meet-and-greet mixers between current post audio or video clips of threatening speeches by

members and potential recruits. 67 Likewise, both the leaders, and honor killed and captured members. 60 Sinjar Records and data on the Guantanamo detainees Some particularly marketing-savvy VNSA groups

indicate that Al Qaeda deploys veteran fighters to return

ha e esta lished lifest le pu li atio s that p o ote to their hometowns as recruiters. 68 the g oup s a ti ities a d i te ests to aspi i g e es and the curious public. The January 2009 issue of Sada

Oppositional Culture al-Malahim, an online magazine published by Al-Qaeda

i Ye e , o tai ed a o d f o sheik D . A a al- Many VNSAs exhibit a group culture based on Zaw ahi i , a a ti le o Al-Tayammum and life in prison,

opposition, whether to official authority, rival VNSA

a d the sto of The Lio of Ja f: A i Hu a da group or some other perceived threat to its ascendancy. among others. 61 An Urdu language online magazine

This oppositional culture establishes a perceived social published by the militant group Jaish-e-Mohammad and

pu pose, of ei g pa t of a so iet of us e sus the targeted for the pre-teen demographic, suggests that

struggling to exist in an unfriendly and unforgiving militants assume greater social status than doctors or 69 environment. As sociologist Robert Gordon recognized:

engineers. 62 The group interaction brought about by the

Public media attention, even when negative, is also demands of an external environment for solutions

e t al to uildi g a VN“A s i age. Nightl e s asts to instrumental problems promotes positive that detail gang violence often identify groups by name,

sentiments between members. From these pu li ize the g oup s activity and help create an image of

statements it would follow that if a group lacked a

63 Meilahn

64 Vas uez, Joe Oakla d Mu de s. CBS 5 Evening News. Mar 59 Chehab, 182

58 Klein, 57

2006. Accessed 22 Feb 2009. Glaze , A d e . Autho ities “a Ga gs Usi g I te et. The (http://www.youtube.com/watch?v=IrxR_xOKs4)

Washington Post Jul. 2006. Accessed 12 Dec. 2008.

65 Frake, 41

(http://www.washington post.com/wp-

67 Ibid.

60 dyn/content/article/2006/07/06/AR2006070600886.html) Co te, Mi haela gelo. Weeha ke Poli e I te upt 61 Chehab, 60

Suspected Gang Recruitment Meeting and Walk Away with Heggha e , Tho as. Ne Issue of “ada al-Malahi .

Valua le Note ook. The Jersey Journal Nov. 2008. Accessed Jihadica. 2009. Accessed 19 Jan. 2009.

14 Apr. 2009.

62 (http://www.jihadica.com/new-issue-of-sada-al-malahim) (http://www.nj.com/hudson/index.ssf/2008/11/wehawken_pol “iddi ue, Qa deel. Child Ma t s. Jihadica. 11 Mar 2009. ice_interrupt_susp.html)

Accessed 11 Mar 2009. (http://www.jihadica.com/child-

68 Felter, 28; Watts, 2

martyrs)

69 Maggio, 190 69 Maggio, 190

e s a ts of iole e o i teg ated i to a de a di g e te al s ste … the

o de to justif a ga g e

other criminal activity. This sentiment is illustrated in it would fail to generate a major part of the rewards

the words of Mohammed Sadiq Khan, recorded before and sentiments that its members might expect to

gain from it. 70 taking part in the 2005 London bombings:

democratically elected governments Street gangs provide access to and legitimization

Your

continuously perpetuate atrocities against my

of oppositional attitudes and behaviors. 71 This culture

people all over the world, and your support of them

ha esses the i di idual s ese t e t of so iet s makes you directly responsible, just as I am directly institutions such as the police, schools, or discriminatory

responsible for protecting and avenging my Muslim 81 employers. 72 In his studies of urban street gangs,

brothers and sisters.

Ve katesh fou d a o

o ideolog ega di g the

Terror groups like Al Qaeda feed on local or larger authorities as wholly or partially hostile or as

u app e iati e of the thi gs hi h eall atte . With this justification a VNSA

73 community grievances.

e e s a tio s a e see as justified, selfless a d heroic and victims can be seen as complicit enemies. 83

e s of I a s se u it very definition, founded on opposition to existing power

The same can be said about other VNSAs across

As Zarqawi stated

a out e

the horizontal spectrum. Insurgent groups are, by their

fo es, those ho oope ate ith the A e i a s a e 84 structures. Abu Musab al-Zarqawi emphasized his

i fidels… a d the dese e to e killed.

g oup s oppositio al ultu e The legitimate media can again provide a buttress des i i g the I a i for VNSA movements. International broadcast of

government and its security forces as composed of

i fidels . prisoner abuse at Abu Ghraib, videos of Israeli attacks on

The Armed Islamic Group of Algeria (GIA) Palestinian camps or domestic police abuse support the rejected not just the Algerian government but also much

of Algerian society as kuffar (apostates). 75 This

VN“A s atio ale fo thei i age as i ti -crusaders against an unjust Establishment. In addition to garnering

opposition can be based on deep historical roots. As more recruits, these images may also serve to Frake notes: demoralize the general public in official prosecution of

During the course of southern Philippines history,

VNSAs.

ethnic, religious, political, modernistic, and religionistic strata of identity formation, together

Amplification of Delinquent Behavior with outlaw outcroppings in each stratum, shape

the fault lines of divisiveness along which violent Exhaustive sociological research on group conflict threatens to erupt. 76 behaviors indicates the behavior of an individual will

alter in a group setting. In the case of VNSAs across the Further, counter-VNSA actions by domestic or

spectrum the group process serves to amplify an international institutions can help build and tighten this

i di idual s p ope sit to o it a ts of iole e o cultural foundation. As Lien discovered of Oslo based

77 delinquency. This is especially well-documented within

ga gs, the a o ga gs justifies the a i g ga g.

gang studies.

Klein, in his review of gang research in the US observed In his research on normative features of gang that ea h eje tio of the ga g e el ei fo es its

violence, Decker found that gang violence is at least

cohesiveness and its dependence upon itself. 78 The US

pa tiall a outg o th of a olle ti e p o ess. 85 The

A s ou te i su ge

filed Ma ual also e og izes

social facilitation model suggests that ga g e es delinquent profiles are similar to non-gang members in

this same point about insurgencies. 79

u it efo e the joi , a d it is the ga g s an idea of injustice and victimization. VNSA members

This oppositional culture factor is often based on

the o

g oup p o esses… that ele ate i i al a ti it . 86 As conceive ideas of compassion, love and sacrifice based

Go do otes i his studies, su h a … p o ess a e on self- pe eptio s as a i ti of so iet s opp essio ,

80 racism, inequality or suppression. capable of involving in serious delinquency boys who Gang experts suffer from milder degrees of social disability, but in

Malcolm Klein and Cheryl Maxson found that the whom severe pathology seems absent. 87 perception of injustice and victimization is necessary in

These processes are at work within other VNSA groups as well. Profiles of terrorists or insurgents often

reveal a contrast between pre- and post-membership 71 Gordon, 58 activities in regard to violence or criminality. Even the

72 Klein, 158 Ibid., 206 - 207

most seemingly solitary actors, suicide bombers, do not Ve katesh, “udhi Alladi. The “o ial O ga izatio of “t eet Ga g A ti it i a U a Ghetto. The American Journal of Sociology. 103.1. 1997: 82-111.

74 Chehab, 56 81 Khan, Mohammed Sadiq. Videotaped Speech. 1 September 75 B a , Da iel. Talki g With I su ge ts: A Guide fo the

2003. Accessed 4 Jan. 2009. Pe ple ed. The Washington Quarterly 32.2 (2009): 125-137. 76 82 ( http://www.memritv.org/clip/en/0/0/0/0/0/144/835.htm )

77 Frake, 51 Klein, 206 - 207

83 Army, 8 Klein, 206 - 207

78 Ibid.

84 Chehab, 56

79 United States Department of the Army. The US Army/Marine 85 De ke . Colle ti e a d No ati e Featu es of Ga g Corps Counterinsurgency Field Manual. Chicago. Chicago

Viole e. Justice Quarterly 13.2 (1996): 243-264. 86 80 University Press. 2007.

Klein, 75

Ibid.

87 Gordon, 62 87 Gordon, 62

factions and aims. 96

their organizations. 89 These organizations provide In Iraq, organizations like Hamas, Salah ad-Din and emotional encouragement, financial and religious

20 th Revolutionary Brigades have active groups in incentive and logistical support to suicide bombers at

multiple cities. Zaka Al-Din Abd Al Fatah Suliman, an every step from their induction into the VNSA to their

insurgent tasked with beheading Iraqi national ultimate act. It is by nature a group activity aimed to

guardsmen, for instance, claimed to be part of a small

group headed by Ahmad Ibrahim, which was in turn have otherwise avoided.

a plif a i di idual s a ilit to o

it a ts they would

affiliated ith the Li e atio A 97 . These groups can Studies on gang violence amplification reveal even

be classified as affiliates rather than a single cohesive more about the process and its effectiveness. One

organization. By sharing a popularized brand name, all controlled study of violence amplification in Rochester

diffuse activities can be credited to affiliates, increasing

ga gs, sho ed that g oup-induced crime amplification their prestige as a whole and attracting publicity and took place at high rates regardless of the character of

financial support. This does not, however, guarantee the ga g eigh o hood. 90 This might explain similar uniformity in agenda as various affiliates struggle for

observations of the amplification factor within other ascendency within the larger VNSA. As Curry states, VNSAs with diverse membership and locales. Further,

toda s s all a s a e a fu all of e a led g oups this amplification appears to be self-reinforcing. With

i g fo i flue e. 98

increased criminal activity comes a corresponding boost in group cohesion which itself leads to greater crime

This amorphous organizational structure is involvement and increased resistance to official efforts. 91 reflected in a loose form of leadership for most VNSAs.

For gangs, leadership is generally ephemeral and turnover is high. 99 Group actions are determined more

Structure and Leadership by the group itself and local context than by any particular individual. This is also typical of insurgent

VNSAs across the spectrum are often characterized groups who must quickly react to and exploit changes in by loose leadership and decentralized organization. The

the local social or political contexts. Leadership for majority of VNSAs, whether street gang, terror or

modern terror groups reflect this as well where: insurgent group are composed of small loosely-affiliated

and semi-autonomous cells. Although there are notable there is no single, central leadership, command, or head ua te s … De isio -making and operations are

exceptions in groups that maintain greater cohesion and decentralized, allowing for local initiative and clear hierarchy, this, particularly with contemporary

autonomy. Thus the design may sometimes appear VNSAs, is a smaller fraction.

acephalous (headless), and at other times Street gangs do not generally fit a standard rigid

polycephalous (Hydra-headed). 100 hierarchy. Decker, in his study on collective and

normative features of gang violence, found that violence and particularly retaliatory violence was an outgrowth

Community Level Factors

that reflected a loose organizational structure and 92 diffuse goals. Klein and Maxson found while compiling

Variables found at the community level are some gang research, that street gangs are almost always

of the more influential to creation of and participation in o e a loose olle tio of li ues o et o ks tha a

VNSAs, and interact heavily with those at the individual si gle, ohe e t hole. 93 and group levels of analysis. As Klein and Maxson found,

Insurgent groups also defy traditional organization the sta ilit of ga gi g p o a l lies o e i the and classification. 94 In Afghanistan, for instance, the

characteristics of the particular community than in the insurgency is made up of Taliban members, Hezb-i-

particular group of young people who comprise the Islami, the Jalaluddin Haqqani network, as well as local 101 ga g.

tribes and criminal networks. 95 Each of these groups

breaks further down into loosely connected subgroups

and clans. Although the diffuse nature allows widespread geographical and social influence, it also

96 Cu , Pete E. “ all Wa s a e Lo al: De u ki g Cu e t Assu ptio s A out Cou te i g “ all A ed G oups. Armed

Groups: Studies in National Security, Counterterrorism, and

Hoffman, B u e. The Logi of “ui ide Te o is . The Counterinsurgency. Ed. Jeffrey H. Norwitz. Washington D.C. Atlantic Jun. 2003. Accessed 10 Sep. 2008.

US Department of the Navy. 2008.

89 (http://www.theatlantic.com/doc/200306/hoffman) Suliman, Zaka Al-Din Abd Al-Fatah. Videotaped Interview. 31 90 Kellerhalls

Mar 2005. Accessed 25 Jan 2009.

91 Klein, 163 (http://www.memritv.org/clip/en/0/0/0/0/0/144/630.htm) Ibid., 196

94 Klein, 195 Arquilla, John; Ronfeldt, David; and Zanini, Michele. 95 Army, 100

Networks, Netwar, and Information- Age Te o is . Jones, Seth G. Counterinsurgency in Afghanistan. Santa

Countering the New Terrorism. Santa Monica: Rand. 1999. Monica: Rand, 2008.

101 Klein, 189

Lack of Opportunity t pi al ujahid is likel u e plo ed o a stude t 111 hi h usuall a ou ts to the sa e thi g . Communities that possess limited or no economic, social or recreational opportunities are particularly

Social Foundation susceptible to VNSA

development. 102 Lack of

employment is a particularly influential variable.

as a o u it s so ial Without work potential members have ample free-time

The e a e t o

foundation can allow and even facilitate VNSA (an important individual factor). It also presents an

emergence and growth: through a weak or open social economic motivation to participation in VNSAs. For

foundation or through one that actually supports the street gang members the quick and easy income crime

VNSA. Either way, the more intertwined and accepted a provides is attractive. In Iraq, the draw for many

VNSA becomes within a community, the stronger it is. insurgents was the promise of pay for each particular act

As Epstei otes a out i su ge ts, the populatio of of violence. Further, VNSAs fulfill many social needs such

any given area holds the key to the success of any as purpose and status which have been traditionally met 112 i su ge o e e t ithi that a ea.

by legitimate employment.

u it s so ial fou datio is ade up of the Gang research has clearly connected this factor to

social relationships between community residents. gang emergence and participation. Klein and Maxson

These are formed and held together with formal and find that gangs are particularly common in areas with

informal social ties and through social institutions like

de li es i the u

e of jo s i holesale, etail, a d religious centers, community groups, and political

a ufa tu i g t ades. E t -level positions in these 113 agencies. Bursik and Grasmick categorized these industries typically employ emerging youth. 103 Jackson,

relationships as private (as in relationships among Wells a d Weisheit s studies o ga g e e ge e

friends), parochial (as in casual relationships among highlight economic transitions and disadvantage. 104 neighbors that link to local groups), and public (those

that link to agencies outside the community). Maggio also found that: 114 It is Regardless of race, gangs thrive when certain

through these ties that a community exerts its influence conditions in a community are present. An area of

over its members and what occurs within it. the

A solid social foundation enables durable de eased so ial oppo tu ities … a aise the

atio ith

o ti uous po e t , …a d

resistance to VNSAs. If a community has established potential for street gangs to emerge. 105 accepted norms of behavior and community members feel free to act when these norms are violated, then

Lack of opportunity within a community influences VNSA development is difficult. As Sampson discovered in the establishment and sustainment of other VNSAs.

his research of gangs in the Chicago area, there were Evidence from interviews and recovered insurgent

lower levels of crime and violence in communities that 115

e o ds i di ates that lo al, g ass oots e uit e t possessed greater collective efficacy. Further, this effo ts

e te ed i a eas that ha e… li ited 106 collective efficacy often withstood competing influence

of other structural variables. This factor was also seen interviews with Iraqi insurgents Chehab found that

e plo e t oppo tu ities.

In his

extensive

operating in Iraq within what became commonly known

as the A ake i g o e e t. It as du i g this ti e situation. 107 In discussions with Palestinian militants in

h ighe u e plo e t

fu the i fla ed the

that local Iraqi communities solidified their social Lebanon, Cohen was continually told about the lack of

foundations to actively reject unwanted insurgent opportunities present in the camps.

elements within their communities. particular stated:

As one in

The erosion of this type of solid social foundation has been found to correlate to increased VNSA activity. We can study and some of us even study outside of

Gang research continually notes social instability in areas the a p, ut fo hat? We a t o k, e a t

where gangs are active. 116 Fagan, for example, found find jobs; we get nothing for our hard work. We feel

that loss of intergenerational job networks was a catalyst depressed because we cannot have the opportunity

for success even if we try … 109 for the disruption of the social foundations at the private and parochial levels. 117 Additionally, Vigil revealed that

In the Philippines, ASG founder Abubakar Janjalani gang persistence was directly connected to the erosion specifically targeted the vast pool of young unemployed

e ha is s fo i fo al so ial and disaffected Muslims. 110 Regardless of location, the

of a

o 118 u it s

He found that economic and social marginalization of his target communities was at the heart of the degradation. A further note here: both

o t ol.

111 Watts, 2

112 Epstei , Da id G. The Poli e ‘ole i Cou te i su ge 104 Klein, 214

103 Lafontaine, 30

Effo ts. The Journal of Criminal Law, Criminology, and Police 105 Ibid., 216

Science 59.1 (1968): 148-151.

Maggio, 190

113 Klein, 218

106 Watts, 7

114 Ibid.

107 Chehab, 19

Ibid.

109 Cohen, 166

117 Ibid., 216

110 Ibid, 172

Ibid., 218

Frake, 48

118 Ibid.

Fagan and Vigil identified diminished economic they could not unproblematically claim to be spokespersons. opportunities as being related to this variable, which 122

links it to the lack of opportunities factor discussed above.

Positive gang contributions could be as simple and VNSAs across the spectrum often utilize similar

inexpensive as periodic disbursements of groceries and

Residents saw that the group provided a foundations or to exploit those that are already weak or

methods to subvert resistance by existing social

clothing.

measure of public order such as enforcement, policing,

open. In discussing insurgents, Epstein describes these as escort, protection and punishment. In essence, pe suasio , fa o s, a d fo e. 119 He further notes

e ause of the offi ial autho ities i a ti it ithi the that, the fi st steps the fo a i su ge t to take a e

community, the street gang came to rival them as those that will insure him a welcome within the mass of

provider of public goods and services. 125 What resulted the people. 120 Through these methods VNSAs have

was the increasing and open acceptance of the gang and quickly degraded or, in some cases, even replaced the

its illicit resources. 126

existing dominant social forces. In researching the Saints The rise of other armed groups that reside further street gang, Venkatesh discovered that:

down the spectrum also often takes place in communities with weak official institutions and

I effe t, the “ai ts o s iousl t ied to i teg ate underserved populations. The groups fill the vacuums themselves into the social fabric, using economic

left by the incapacity of poor governments to serve and power as their foundation to build relations with

u ities. These a eas se e as the safe comprehensive presence – spatial, material,

o t ol its o

residents and local organizations... due to this

havens and sanctuaries armed groups exploit to evade ideological – I a gue that the ea l

detection, plan operations, train forces, and stockpile the arrival of the street gang as an important 127 supplies. The discrediting and usurping of official

s sig aled

element in the social organizatio community. 121

of the…

government control is a priority of insurgencies in particular. 128 Hammes recognized that:

This is mirrored by the activity of insurgent groups In essence, these armed groups represent a return like the Taliban who have replaced, overlaid or

to earlier security arrangements, because a state integrated into tribal social foundations in Pakistan and has failed in its basic social contract of providing security for its population. These are the ethnic-

Afghanistan, as well as Al Qaeda related elements in Iraq sectarian militias we have seen develop around the who direct their members to inter-marry into host

world in response to insecurity. Groups like the o

Tamil Tigers and the Supreme Council for the Islamic social fabric.

u ities i o de to i teg ate i to a o

u it s

‘e olutio i I a s “CI‘I s Bad Militia are typical of reactionary groups. 129

Weak Institutions The power and service vacuums left by weak

Communities with a rampant VNSA presence often institutions promotes VNSAs across the spectrum into possess weak or non-existent official institutions. Places 130 ever-more powerful paramilitary organizations.

where states or local governments refuse to or cannot Relatively small investments by official governments in effectively provide basic services leave a void that many

basic services could be the easiest tools in thwarting VNSAs are eager to fill and capitalize on, further

VNSAs at their earliest stages.

integrating themselves within the community. As such, this variable is closely tied to the social foundations

Schools and Education variable. Examples of this are found across the spectrum

of armed groups. One of the most prevalent community services Gang research has identified many very clear

among various VNSAs is the establishment of schools situations where this variable is found active. Venkatesh

and educational facilities. Parents in underserved noted a particularly stark example:

regions are eager to give their children free educational opportunities. Not only do schools engender goodwill

In the void created by both Council and housing amongst the host community, it also provides the authorit

i a tio , the “ai ts… ha eled illi itl perfect recruiting ground for future members or obtained revenues from drug economies to the

ge e al eside tial populatio . This p o ess … had

supporters of VNSAs.

It is the prevalence of impressionable youth that the Saints gang to vie for the sponsorship of

se e al effe ts o … the o

u it : it e a les

makes schools such an attractive recruiting ground. One resident constituencies that had previously granted

of the London suicide bombers, Sadiq Khan, was a their allegiance to the Council; (2) as such, the base

mentor and assistant teacher at a school in Yorkshire of tenant allegiance the Councils had previously relied on was no longer self-evident, and their influence

123 administered Blackstone slowly eroded because Venkatesh, 91

124 Ibid., 96 125 Ibid., 98 Ibid., 102 126 Ibid., 93 127

128 Hanlon, 123

120 Epstien, 148 Ibid.

129 Epstein, 151

130 Hammes, 451 Underwood, 10

121 Venkatesh, 92 121 Venkatesh, 92

hostility. Within the Chicago gang area Venkatesh their enrolling foreign Muslim students and for their

iti is fo fo

studied, community members perceived themselves as training of a new breed of Taliban that is destabilizing

isolated community amidst hostile official the democratic government in Afghanistan and

an

authorities. 140 Jihadist groups looking to recruit p o idi g safe ha e s to Isla ist ilita ts. 132 In one insurgents for Afghanistan and Iraq focused on areas

case, students of the Jamia Hafsa and Jamia Faridia that exhibited some form of social isolation. 141 As Jessica madrassas occupied a government building, directly

“te des i es a out the aki g of te o ists, the e s a challenging the Pakistani government. The stand-off

e st o g feeli g of… p ofou d i justi e that the resulted in a military operation and the deaths of dozens

te o ist leade s a e apitalizi g o . 142 Paul Wilkinson of students.

it as u si g g udges . 143 Lack of education is a prevalent, but not universal,

describes

characteristic of VNSA membership. It is also important

Variable Interdependence

to note here the interplay between lack of education and lack of opportunities. Economic opportunities

A review of common variables and characteristics become even more limited for those with little

indicates that many individual and group similarities are education. Maggio notes that regardless of race or other

sourced in or tied to community-level issues. There is factors, lower education rates within a community can

heavy interdependence between the lower levels and a significantly raise the potential for street gangs to

u it s la k of oppo tu ities, eak so ial emerge. 133 Hu ph e s stud of VN“A a ti it i “ie a foundations, weak official institutions, and isolation or Leone found that education was a good predictor of

marginalization. These all clearly hold heavy influence on membership. 134 Cohen, in talks with Palestinian militants

individual level factors such as seeking purpose, identity within the Mia Mia camp, discovered that there were

issues, status, respect, power and free time and not enough books to go around in classrooms and

boredom. It also can be easily tied to group level factors tea he s so eti es did t e e sho up. 135 In Iraq, the

like oppositional culture.

insurgent Adnan Elias exhibits a typical profile. In his Gang researchers and counter-gang practitioners post-detention interview by Iraqi security forces, Elias

have noticed this correlation as well. Klein and Maxson admits to being illiterate with a 4 th -grade general

e og ized that, the ai p o le with street gangs in education before going on to describe his role in

the long run is not the gangs themselves, but the societal

u it p o esses that spa these ga gs. 144 This suggests that the community-level variables are the

kidnapping and beheading policemen. 136 ad o

Isolation and Marginalization primary targets of counter-VNSA efforts and must be

A o addressed first if a lasting impact is desired. u it s a tual o pe ei ed isolatio ,

However tantalizing it is to ascribe a singular marginalization or injustice within the larger society is variable to VNSA membership, each aspect (individual, commonly found in areas with a VNSA presence. This ele e t a feed i to a d a plif a g oup s oppositio al group and community) is interdependent and each

i pa ts a i di idual s oti atio s to a i g deg ees. culture. In Sierra Leone, VNSA members were most often those that e e A recent article on street gangs recognizes this interplay: a gi alized f o politi al decision

aki g… alie ated f o If a young adult is devoid of opportunities for

ai st ea politi al

p o esses. Hu ph e s a al sis fou d a st o g advancement and the possibility to earn respect and correlation between recruitment and alienation from the

develop an identity/purpose in his/her life, in addition to system. Individuals who were not connected to any

missing positive social influences the young adult is left political party were two to three times more likely to join vulnerable to filling these voids through socially

undesirable outlets. Gang culture is one realm in which VNSAs.

these voids may be filled in a relatively immediate Gang research shows similar findings. Vigil, for

manner for these young adults. It gives them a sense of

i sta e, e ealed that oth the so ial a d e o o i belonging, identity, and a purpose.

a gi alizatio of i ig a t o 139 u ities pla ed a significant role in gang emergence. In some cases the

He e t, Ia . Pa el dis ussa t. The Maki g of a Te o ist. Talk of the Nation. Hosted by Neal Conan. 18 Jul 2005.

132 Tufail, Ah ad. I ui a d A al sis No. . MEM‘I.

Accessed 23 Jan 2009.( http://www.memri.org/bin/articles.cgi?Page=subjects&A rea=urdu&ID=IA46208 ) 133 134 Maggio, 190 135 Humphreys, 447

136 Cohen, 166

141 Venkatesh, 101 Watts, 7

Elias, Adnan. Interview on Al-Iraqiya TV. 20 Apr 2005.

Accessed 23 Jan 2009.

142 Stern

137 ( http://www.memritv.org/clip/en/0/0/0/0/0/144/650.htm )

143 Wilkinson, Paul. Pa el dis ussa t. The Maki g of a 138 Humphreys, 440

Te o ist. Talk of the Nation. Hosted by Neal Conan. 18 Jul 139 Ibid., 447

Klein, 218

144 Klein, 106

Conclusion

International security experts have recognized the rising similarities between different forms of non-state violent groups. This has led to a blurring of lines between what were previously considered distinct categories of groups. In turn, this blurring has suggested that there might be more fundamental likenesses between groups with potential implications for decisions on how to counter them.

Comparing the vast amount of existing gang research and counter-gang experience to current knowledge of other forms of VNSAs reveals common variables and characteristics at the individual, group and community levels of analysis. It suggests the supreme importance of community level variables in addressing VNSAs. Further, analyzing counter-gang experience and research can provide fresh insight into countering

The VNSA Variable Interdependence Cyclone

other VNSAs.

Armed non-state groups are a growing challenge to modern international and domestic security. Understanding the nature of and similarities between

VNSAs at the individual, group and community levels is central to countering this increasingly dangerous

security challenge.

An Assessment of UK Anti-Terrorism Strategy and the Human Rights Implications Associated with its Implementation

Emmanouela Mylonaki and Tim Burton, CPS Introduction

Post-2001 there has been an increased use of executive powers as an alternative strategy to Following 9/11, anti-terrorism legislation in the

prosecution. The House of Lords declared section 23 of United Kingdom became more stringent, thus widening

the Anti-terrorism, Crime and Security Act 2001 (ACTSA the scope of offences that qualify as terrorist acts and

2001) 7 as incompatible with the European Convention encroaching on the human rights and fundamental

on Human Rights (ECHR). Such incompatibility was freedoms of the accused. Despite the distinction

based on the grounds that part 4 of the ACTSA powers et ee the te s a ti-te o is a d

were discriminating against foreign nationals. The UK te o is the a e ofte used i te ha gea l .

ou te -

governmental response was to replace part 4 of the UK Whereas counter-terrorism broadly refers to offensive

act with a new system of control orders. 8 measures of a preventive, deterrent and pre-emptive

From 2003 onwards, the UK government has been nature, anti-terrorism refers to the construction and use

particularly active in the fight against terrorism as

evident by the adoption of the two versions of the UK terrorism, by definition, is therefore narrower in scope.

of defensive measures to reduce a terrorist threat. 1 Anti-

counter-terrorism st ateg k o as CONTE“T st ateg . The varied nature of terrorist offences necessitates

CONTE“T o p ises fou ele e ts: Prevention,

a range of governmental responses, which poses Pursuit, Protection, and Preparedness. 9 When the difficulties in evaluating the effectiveness of the UK anti- terrorism strategy by using a universal methodology. 2

strategy was announced the role of anti-terrorism legislation was described as the framework within which

Instead a comparative approach is used to identify to dis a tle the a hi e of te o is . 10 The present similarities between the anti-terrorism strategy in the

a ti le fo uses o the p e e t a d pu suit st a ds of United Kingdom and the United States. Besides the

this strategy.

effectiveness of a strategy in achieving its political aims, The p e e t st a d i ludes dete e e easu es legitimacy and public confidence are equally important

3 factors, and thus emphasis is places on such factors. to p e e t those 11 ho fa ilitate te o is a d

e ou age othe s , with the purpose of making it more difficult for terrorists to operate. 12 The Terrorism Act

Evolution of the United Kingdom Anti-terrorism

2000 (TA 2000) with its proscription provisions and the

Strategy

Terrorism Act 2006 (TA 2006) with offences of encouragement and glorification of terrorism and

The complex nature of terrorism indicates that dissemination of terrorist publications fall within these there is a need for a multifaceted strategy which, ideally,

4 dete e e easu es u de the p e e t st a d. As upholds the rule of law and liberty. Since 2001, the UK

will be seen, the broad reach of the legislation is able to anti-terrorism strategy has substantially changed as

target individuals who are not terrorists. This carries the highlighted i To Blai s p o ou e e t that the ules

danger of radicalising innocent victims into becoming of the ga e e e ha gi g ith his

-point plan

terrorists.

addressing extremism and its causes. 5

Prosecution is aimed at disrupting terrorist activity Bo s state e t to the House of Co

Lately Gordon

a d falls ithi the pu suit st a d. 14 Since the aim of the go e

o s outli ed

e t s espo se to glo al i te ational pu suit is to edu e the te o ist th eat oth to the UK te o is

the i t odu tio of e po e s a d

and overseas

this extends to include alternative measures of control such as prosecution and

terrorism-related offences. 6

1 US Department of Defence Dictionary of Military and 7 A v Secretary of State for the Home Department [2004] UKHL Associated Terms (as amended 31 October 2009)

56; [2005] 2 AC 68.

http://www.dtic.mil/doctrine/dod_dictionary/ accessed 07 8 Measu es to Co at Te o is – powers in Part 4 of the Anti- 2 March 2010.

O al “tate e t B Hoffman and J Morrison-Taw, A Strategic Framework for

te o is , C i e a d “e u it A t

Charles Clarke, the Home Secretary, in January 2005 , Countering Terrorism in F Reinares (ed), European Democracies

http://press.homeoffice.gov.uk/Speeches/speeches-archive/st- Against

combat-terrorism-0105 accessed 03 May 2010. Intergovernmental Cooperation (Aldershot Ashgate 2000), p.p.

Terrorism: Governmental

Policies

and

9 HM Go e e t, Cou te i g I te atio al Te o is : the 3 3-7.

Lo do T“O 06) p. 1 Ibid, p.p. 8

U ited Ki gdo s “t ateg C

4 P Heymann, Terrorism and America A Commonsense Strategy – 19. 10 H Blears, The Tools to Combat Terrorism, Speech to the Royal For A Democratic Society (The MIT Press, Cambridge

para. 5 and p. 5 para. 22.

United Services Institute in February 2005, 5 Massachusetts 1998), p. p. 153 – 154.

http://press.homeoffice.gov.uk/Speeches/speeches-archive/sp- PM s P ess Co fe e e August tools-combat-terrorism-0205 accessed 01 May 2010.

www.number10.gov.uk/output/Page8041.asp accessed 28

11 Supra note 9, p. 1, para. 6.

6 February 2010.

Ibid, p. 12 para. 50.

Statement on security and counter-terrorism 20 January 2010 ,

14 Ibid, p.11, para.50. Ibid, p. 2, para. 7.

www.number10.gov.uk/output/Page22206.asp accessed 28

February 2010.

15 Ibid, p. 16 para. 64.

deportation. 16 Prosecution in itself is recognised to have indictments in terrorism trials contained terrorism indirect effect. For example, prosecuting non-terrorist

offences 28 under the US terrorism statutes. 29 Post 9/11, offences such as fraud can further disrupt terrorist

the US Department of Justice increased the use of networks. 17 Whilst the reduction of the terrorist risk is

terrorism related charges 30 and non-terrorist charges 31 the main aim of the strategy, there is a willingness to

as a means to prevent terrorist attacks by disrupting extend the ambit of prosecution and also use executive

terrorist networks. This strategy in the United States has measures as alternatives to prosecution. This raises

also led to increases in non-terrorist charges such as important issues about the net-widening effect of the

identity theft and immigration frauds as a design to strategy, its legitimacy, and its adherence to human

a terrorism rights standards. It is clear that the strategy is not limited

emasculate

those

identified in

investigation. 32 Therefore, strategies for dealing with to p ose utio si e se u it easu es a e to e take

terrorism have evolved to use a greater range of legal

powers to target not simply terrorists and acts of aspect of the strategy demonstrates its flexible and

where the prosecution of offences is not possible. 18 This

terrorism, but activities facilitating the organisation and invasive nature. For example, deportation is a measure

operation of terrorists.

Likewise, the UK strategy has taken this direction. The strategy points out the results that

under both the pursuit 19 and prevent 20 strand.

Haubrich illustrates the comparative rarity of terrorism p ose utio has deli e ed i dis upti g te o ist

charges. For example there was not a single charge

ed under ACTSA 2001 between September 2001 and Khan, Abu Hamza, Andrew Rowe, Saajid Badat, and

a ti it , as as e ide t i the ases of Moha

2005. 33 He also argues that the TA 2000 enables Kamel Bourgass. 21 The Home Office (lead government

prosecutors to extend the reach of terrorism department for counter-terrorism) data on prosecution

prosecution. 34 As Haubrich argues, this result in more is revealing. There have been 310 prosecutions from

people brought into the ambit of terrorism and

2001-2008 with a 74% conviction rate 22 raising to 86%

criminalised as terrorists. 35 This similarity of the UK

strategy to the United States strategy emphasises that su ess ate asks a diffe e e. Fo e a ple, the

for the 29 terrorism trials in 2009. 23 However, this

the Wa o Te o has e te ded its ea h to people percentage of those 1,759 terrorism arrests since 11

who are not terrorists and extended its reach to acts September 2001 resulting in charge and conviction is

which are not necessarily acts of terrorism. Extending 13% 24 and of-201 arrests for the year ending September

the reach of the UK strategy to the prosecution of

30 th , 2009, 66 were charged with the majority being non anyone deemed to be associated with terrorism makes terrorism related offences (42) and only 17 directly

the anti-terrorism measures of a counter-terrorist nature

moving towards deterrence and aggressive prosecution. emphasis on prosecuting people believed to be associated with terrorism. Indeed, since 2001, 30% of

charged under the terrorism legislation. 25 This suggests

National Security Strategy in the United Kingdom

the main charges under terrorism legislation have been for possession of an article for terrorist purposes (such

Terrorism is one of a number of security challenges as documents, compact discs or computer hard drives),

that can be included within an overarching strategy. 14% for fundraising for illicit activity and 12% for

There is now an identifiable change of approach where

e 26 e ship of a p os i ed o ga isatio . This shift the anti-terrorism strategy, as one of a number of away from prosecuting terrorism under terrorism

security challenges (also transnational crime, global legislation is becoming a more prevalent strategy for

instability, civil emergencies, foreign states, nuclear countering terrorism. This is demonstrated by a similar

weapons), is brought within a composite strategy. The shift in the United States towards trying suspected

terrorists with non-terrorism offences. 27 Only 32% of

http://www.lawandsecurity.org/publications/TTRCFinalJan14.p

28 df accessed 03 May 2010.

17 Ibid, p. 17 para. 69.

Ibid, p. 4.

18 Ibid, p. 17 para. 70.

29 Ibid, p. 5. The primary terrorism statutes are listed as: 18 19 Ibid, p. 18 para. 72.

U.S.C. 2332 (Terrorism); 18 U.S.C. 2339A (Material Support to Ibid, p. 18 para. 73.

Terrorists); 18 U.S.C. 2339B (Material Support to a Foreign

21 Ibid, p. 12. Terrorist Organization); 50 U.S.C. 1705 (Financial Support to a 22 Ibid, p. 18 para. 71.

Foreign Terrorist Organization) Ho e Offi e, Ope atio of Poli e Po e s u de the http://www.lawandsecurity.org/publications/TTRCComplete.pd

Terrorism Act 2000 and subsequent legislation: Arrests,

f accessed 11 March 2010.

outcomes and stops & searches Quarterly update to September 30 K Wainstein, Terrorism Prosecution and the Primacy of G eat B itai Ho e Offi e “tatisti al Bulleti /

Prevention Since 9/11 in J Grossman (ed) Terrorist Trial Report February 2010) Table 1.4 p. 10

Card: September 11, 2001 – September 11, 2009 (The Center on http://www.homeoffice.gov.uk/rds/pdfs10/hosb0410.pdf

Law and Security, New York University School of Law 2010) accessed 11 March 2010. 23 page 21

24 Ibid, Table 1.5 p. 11. http://www.lawandsecurity.org/publications/TTRCFinalJan14.p 25 Ibid, Table 1.5, p.5.

df accessed 03 May 2010.

Ibid, Table 1.2 p. 8.

31 Ibid.

26 Ibid.

32 Supra note 27, p. 22.

27 J Grossman (ed), Terrorist Trial Report Card: September 11, 33 D Haubrich, Anti-Terrorism Laws And Slippery Slopes: A Reply 2001 – September 11, 2009 (The Center on Law and Security,

To Waddington (2006) Policing and Society 16 (4) 405, p. 408. New York University School of Law 2010) executive summary (ii)

34 Ibid, p. 409.

the e ol i g e o d

35 Ibid, p. 411.

moral legitimacy which raises questions about the national security in the UK, has elevated terrorism from

2008 National Security Strategy 36 , which conceptualises

efficacy of the UK strategy. The UK NSS has been

a threat to state security to a concept encompassing criticised as not describing a meaningful strategy in threats to the population 37 and an attack on values. 38 terms of how its aims and values 54 will be delivered. 55 The shift is from legislative response to public

Although the UK is considered to have acknowledged the engagement 39 whilst

challenges brought about by the increase in international

extremism. 40 A new concept

is

transnational and international terrorism, the National

i te depe de e

he e the t a s atio al a d Security Strategy does not set out a strategy to deal with

international aspects of terrorism intersect 41 so there is

these challenges. 56 Although recognised that the

a universal response addressing all threats to security. 42 terrorist threat no longer divides into national and For example, the strengthening of borders and the

international and requires a national security National Identity Scheme tackles both terrorism and

approach, 57 the NSS has been criticised as being unclear transnational crime. 43 The new face of terrorism as

as to how its aims will be delivered. 58 That the terrorist embodied by Al Qaeda is the diffusion of a common

threat is considered by the UK government to not ideolog esulti g i a loose et o k of affiliated

amount to a strategic threat to the UK 59 is at odds with group 44 45 s 60 and includes autonomous groups. Making the Wa o Te o doctrine according to which such terrorism threats part of a national security

terrorism threat should be perceived as a strategic strategy shows that a separate anti-terrorism strategy is

threat to the UK. This reflects the difficulty with no longer tenable. However, the problem with this

attempting to combine national and international national security approach is finding a right balance

strategy. 61 Reducing the terrorist threat to one which between security and liberty. 46 does not affect the UK strategically, raises questions as The United States has a centralised Department of

to hethe it is legiti ate fo the UK to appl the Wa Ho ela d “e u it , he eas the UK elies o the lead

o Te o app oa h to the atio al p ose utio of go e

e t depa t e t odel fo do esti se u it

international terrorism.

issues. 47 In other words the department with expertise

responds to the current crisis. 48 Some argue that the UK

Changes to the National Security in the United Kingdom

st ateg a ok ithout a ho ela d se u it

Post 9/11

department; 49 however, the absence of such a department makes it difficult to react to domestic

The revised CONTEST strategy echoes the NSS with security issues. 50 the emphasis now on public participation. Thus, the anti-

Whatever the merits of either model, it is terrorism strategy can be seen to be no longer purely a recognised that the terrorist threat no longer neatly

legislative response. Public participation is now divides into national and international problems. 51 emphasised as central to successful delivery of the

However, the difficulty is combining the two particularly strategy, with responsibility for rejecting extremism

i the ase of a ho ela d se u it odel. 62 A generic being made the responsibility of everyone. Also the

53 p e e t st a d has e pa ded problem is the role of the public in domestic security. 63 to prevent terrorism at It is this generic problem combined with the issue of

an earlier stage with the aim to stop people from joining 64 the terrorist cause.

The concept of a working

partnership has been developed in which communities 36

Ca i et Offi e, The Natio al “e u it “t ateg of the U ited are empowered to assist in the fight against terrorism. 65 Kingdom – “e u it i a i te depe de t o ld C

The key difference is the wholesale revision of the London TSO 2008).

to prevent individuals becoming 38 Ibid, p. 3 para.1.5. 39 Ibid, p. 28 para.4.14.

terrorists and stop people from supporting violent

Ibid, p. 26 para. 4.8 Despite commitments made by the UK 40 – 4.9.

extremism.

41 Ibid, p. 27 para. 4.10. 42 Ibid, p. p 23 -24 para. 3.53 and para. 3.54.

43 Ibid, p. 24 paragraph 3.57.

54 J Gow, The United Kingdom National Security Strategy: the 44 ibid p.p. 56 – 57 para. 4.109 and para. 4.110.

Need for New Bearings in Security Policy, (2009) 80 (1) The A Zelinsky and M Shubik, Research Note: Terrorist Groups as

Political Quarterly 126, p. 131.

Business Firms: A New Typological Framework, (2009) 21

56 Ibid, p.p. 127 Terrorism and Political Violence, p. 327 . – 128.

57 Ibid, p.129. A Ki , The Lo do Bo

e s as “elf-Starters: A Case Study

58 Supra note 46, p. 251. Supra note 54, p.p. 127

in Indigenous Radicalization and the Emergence of Autonomous

Cliques, (2007) 30 Studies in Conflict and Terrorism 415, p. 59 Ca i et Offi e, The Natio al “e u it “t ateg of the U ited – 128.

426. 46 Kingdom – “e u it i a i te depe de t o ld C 7291 J Baker, In The Common Defense National Security Law For

60 Perilous Times (Cambridge University Press 2007), p. 11. London TSO 2008), p. 11 para. 3.9. Supra note 54, p. 129. 47 F Gregory, National governance structures to manage the

62 Supra note 46, p.p. 252 – 253.

response to terrorist threats and attacks in P Wilkinson (ed),

HM Go e e t, The U ited Ki gdo s “t ateg fo

Cou te i g I te atio al Te o is C Lo do T“O Ibid, p. 119.

Homeland Security in the UK (Routledge 2007), p.p. 117 48 – 119.

2009) p. 57 and p. 87.

49 Ibid, p. 135.

63 Ibid, p. 58 para.7.11.

51 Ibid, p.p.132 – 133 and p. 136.

65 Ibid, p. 87.

Supra note 46, p. 251.

66 Ibid, p. 84 para. 9.12 and para. 9.13. 53 Ibid, p.p.. 252 – 253.

Ibid, p. 58 para. 7.11.

Supra note 47, p. 123.

67 Ibid, p. 87.

government to the protection of human rights, its anti- 2009. 79 Proscription and asset freezing remain in place te o is st ateg fails to p ese e a d p ote t the

and 80 and the Counter-Terrorism Act 2008 is seen to freedom of assembly and association, and freedom of

enhance asset-freezing powers in addition to increasing thought, conscience and religion as provided for within

police investigative powers. 81 The strategy, therefore, Articles 10, 11 and 9 (respectively) in the ECHR. The UK

continues the existing framework of combining Government does, however, acknowledge that the right

legislative and executive measures. The continuous use to thought a d spee h ill ot e i i alised. 68 of executive measures raises concerns as the measures

The anti-terrorism strategy has moved beyond may become a permanent feature of anti-terrorism confronting cause and effect to altering the conditions in

strategy, even when the justification for their use has

which terrorism is thought to flourish. 69 Although

passed.

CONTE“T s app oa h is a o ust app oa h ai ed at Official assessment of the system ignores the removing the threat of terrorism, it is also capable of

human rights implications. The UK Parliament Home being used against all political beliefs. This is evidenced,

Affairs Committee in reviewing the dual structure of for example, by reference to a 2008 Police Strategy

strategic delivery by the Office for Security and Counter- where staff will work with neighbourhood policing teams

Terrorism 82 and police responsibility for anti-terrorist to ide tif a d take a tio agai st i di iduals deemed

operations 83 , reported confidence in this system. 84

Reporting on CONTEST in 2010 the government, UK Border Agency will use powers of exclusion and

to be exploiting vulnerable people. 70 If this fails then the

unsurprisingly, suggested that the strategy achieved its

aims. 85 However, there is no mechanism to make Home Secretary will invoke the power to either revoke

deportation including UK residents. 71 Moreover, the

independent evaluation of CONTEST because the Public British citizenship or exclude foreign nationals from

assessments are classified entering the UK. 72 This illustrates that maintenance of

Service

Agreement

information. 86 Moreover, the UK Parliament Home national security comes at a price to the preservation of

Affairs Committee did not provide any coherent values of freedom of expression and freedom of

evidence that it was successful in stopping extremism. 87 movement. However, it should be noted that such

The strategy however, has run into problems as preventive approach is unprecedented and due to its

evidenced by negative court rulings such as the January novelty it is too soon to evaluate it in terms of

2010 ECHR ruling against section 44 of the Terrorism Act success/failure. 73 But at this stage, one can argue that

2010 88 and the Supreme Court ruling against asset the wide ranging nature of the strategy creates the real

freezing using secondary legislation. 89 The UK danger of seen terrorism activity wherever the

government responded by saying that the ECHR ruling authorities turn their attention to. Despite the UK

would be appealed and emergency legislation has go e

e t s i te tio to use o l p opo tio ate restored asset freezing with further legislation to follow, 90 measures, there is a risk that the expansion of the

in order to combat terrorism financing. This further strategy will target any ideologically motivated activity 74 demonstrates that the strategy is unyielding.

(for example riots) as well as terrorism. 91 Thus, the Some argue that CONTEST has upheld liberty. For measures adopted may no longer be proportionate. In

e a ple Kostakopoulou a gues that the UK s post / addition, CONTEST does not consider the negative

75 espo se has ee a o l p os i ed i its se u it impact the measures may have in radicalising people. a ati e app oa h a d its o st u tio displa s a siege

However, the UK strategy is not dissimilar to the ode of de o a . 92 She further argues that this European Union (EU) Counter-Terrorism Strategy based

replaces a rights-based model where human rights are on similar four strands with an objective to stop

recruitment and radicalisation. 76

U de the pu sue st a d e e uti e easu es a e

80 still perceived as a necessary alternative to Ibid, p. 68, para. 8.35.

Ibid, p.68 para 8.36-8.37

prosecution. In particular control orders continue in

81 Ibid, p. 69 para. 8.41.

82 http://www.security.homeoffice.gov.uk/about-us/ accessed as of December 10 th , 2008 to 40 as at March 10 th ,

spite of judicial challenge 78 with an increase of 15 orders

83 Ho e Affai s Co 03 May 2010. ittee, P oje t CONTE“T: The

G oe

e t s Cou te -Te o is “t ateg Ni th ‘epo t

[Session 2008-09] HC (2008-09) 212 Ev 22 Charles Farr OBE

69 Ibid, p. 87.

Q132

70 Ibid, p. 56 para. 7.03. http://www.publications.parliament.uk/pa/cm200809/cmselect Ibid, p. 85 para. 9.16.

/cmhaff/212/212.pdf accessed 03 April 2010.

72 Ibid, p. 89.

85 Ibid, para. 15 - 16.

73 Ibid, p. 66, para. 8.19 -8.22. HM Go e e t, The U ited Ki gdo s “t ateg fo 74 Ibid, p. 99.

Cou te i g I te atio al Te o is A ual ‘epo t Ma h Ibid, p. 56 para. 7.03.

(Cm 7833 Norwich The Stationery Office 2010) p. 27. 75 C Pa tazis a d “ Pe e to , Poli T a sfe a d the UK s

87 Ibid, p.26 para. 7.02 and 7.04.

Wa o Te o : A Politi al E o o App oa h, Policy and Politics 363, p.368.

88 Ibid, p. 12 para. 3.02.

Gillan and Quinton v The United Kingdom [2009] ECHR 28 12 The EU Counter Terrorism Strategy 14469/4/05 REV 4

January 2010 Application no 4158/05. Brussels

6 89 A v HM Treasury and Others [2010] UKSC 2. http://register.consilium.eu.int/pdf/en/05/st14/st14469-

90 Supra note 86, p. 9 para. 2.05 and p. 10 para. 2.12. re04.en05.pdf accessed 21 April 2010.

92 Ibid, p. 157.

78 Supra note 75, p. 66 para.8.18 D Kostakopoulou, How To Do Things With Security Post 9/11, Supra note 62, p. 68 para.8.33 – 8.34.

(2008) Oxford Journal of Legal Studies 28(2) 317, p. 319.

disclosure of the evidence upon which the orders were eed to

observed and respected. 93 Further, she advocates the

o e a a f o the Wa o Te o issued. 105 Proportionality is also an issue because Lord approach. 94 Perhaps the UK strategy has moved away

Carlile suggested only the minimum number of

f o the Wa o Te o app oa h ad o ati g isk obligations necessary to meet public safety is management 95 and encouraging the public to become

imposed. 106 His idea of limiting the categories of cases in more involved. However, its basis is the anti-terrorism

which control orders apply was rejected in the legislative framework, itself the legacy of threat and

go e 107 e t s epl to Lo d Ca lile s epo t. The response. As Kostakopoulou argues, this legacy means

o se ue e of the light tou h o de s is the o t ol greater potential interference to liberty because the

order system now contains different criteria for making enabling effect is to spread the strategic response to the

orders. The government is reluctant to abandon this threat outwards to all aspects of society beyond

s ste , despite a k o ledgi g that the p a ti e of light terrorism.

tou h o de s is difficult to justify. 108 Co t ol o de s a e o -de ogati g ade

E ecutive Measures of the UK s National “ecurit

the Secretary of State under section 2 of the Prevention

Strategy Post 9/11

of Terrorism Act 2005 (PTA 2005), which means that the restrictions they contain do not involve derogating from

a e de ogati g u de se tio individu al a d the go e

Perhaps the conflict between the rights of the

the ECHR. Or they

e t s dut to p ote t to

of the PTA 2005 where the proposed restrictions involve protect the public right to life under Article 2 ECHR 97 derogating from the ECHR and are made by the court on

e o es lea efe e e to the i positio of o t ol application from the Secretary of State. Non-derogating o de s the UK Ho e “e eta . “u h o de s a e

orders should last for 12-months with renewal only if imposed against an individual and contain obligations on

necessary for public protection. 109 Lord Carlile has him restricting his liberty, freedom of association and use of services. 98

questioned the UK practice of repeated renewal of non- In AF & Others Lord Hoffmann

derogating control orders. 110 The government previously commented that upholding the rule of law and

rejected his proposal of a presumption against extension safeguarding against wrong decisions may not provide

beyond 2 years.

This illustrates the difficulty with

executive measures embedded in a permanent strategy is the purpose of control orders, as Lord Scott points out,

adequate public protection. 99

Although public protection

and those measures taking on a permanent quality. the duty of the courts is not to protect the public but to

Once a control order has been made, the police are apply the law. 100 These contrasting duties emphasise the

under a duty to keep criminal prosecution as a difficulty with reconciling Human Rights and security.

possibility. 112 However, it follows that a control order British courts have openly ruled against the

which is effective should prevent criminal offences imposition of control orders. In AF v Others where it was

occurring and therefore there will be no need to decided that the controlee has to know the substance of

prosecute the person subject to the control order. the allegation against him 101 two orders were revoked

Therefore, the continuation of the order becomes and then replaced with new orders containing fewer 102

justified because of its effectiveness in preventing conditions.

The judicial decisions against control criminal offences. Indeed, Walke has stated that o orders challenge the validity of them and trigger

one subject to an order has subsequently been questions as to the continuation of the application of

p ose uted as a alte ati e to the o de . 113 control orders. The opinion of Lord Carlile (independent

Whilst the emphasis has been on the procedural reviewer of control orders) in reviewing such orders is

fairness in imposing control orders, it is questionable that orders should be the exception substantial risk cases. 104

and only apply to

whether the control order regime is fully compliant with He is iti al of the light tou h ECHR rights. On the fifth renewal of the regime 114 the UK

practice, interpreting this as being used to avoid Parliament Joint Committee on Human Rights view was that the system is no longer sustainable. This is due to

the fact that the system could not guarantee procedural

94 ibid, p. 322. fairness and is interfering with ECHR Article 5 right to 95 Ibid, p. 341.

liberty. 115 Case law raises this question of interference Ibid, p. 322.

97 Ibid, p. 334. AF & Others [2009] UKHL 28 per Lord Hope paragraph 76,

Ibid, p. 30 paragraph 84.

Osman v UK Application No 23452/94 28 October 1998 (2000) 106 Ibid, p. 12 para. 21, p. 30 para. 84, p. p. 41 – 42 para. 118. 29 EHRR 245.

Ho e Offi e, The Government Reply To The Report By Lord 99 Section 1(1) and 1 (4) Prevention of Terrorism Act 2005. AF & Others [2009] UKHL 28 per Lord Hoffman paragraph 70

108 Ca lile C

Lo do The “tatio e Offi e , p. .

109 Ibid, p. 8.

100 74. 110 AF & Others [2009] UKHL 28 per Lord Scott paragraph 91. Section 2 (6) Prevention of Terrorism Act 2005. Supra note 104, p.p. 43

– 44, para. 121. AF & Others [2009] UKHL 28 per Lord Philips paragraph 57 –

111 Ibid, p. 45 para. 124.

113 Section 8 (4) Prevention of Terrorism Act 2005.

C Walker, The Threat of Terrorism and the Fate of Control 103 Ca lile C

Ho e Offi e, The Go e e t ‘epl To The ‘epo t B Lo d

Lo do The “tatio e Offi e

p. .

Orders, (2010) Public Law Jan 4, p. 6. Lo d Ca lile, Fifth ‘epo t Of The I depe de t ‘e ie e 114 Prevention of Terrorism Act 2005 (Continuance in force of

Pursuant To Section 14 (3) Of The Prevention Of Terrorism Act

sections 1 to 9) Order 2010. 115

Joint Committee on Human Rights , Cou te -Terrorism 96. 104

Lo do The “tatio e Offi e

p. a d p. pa a.

Policy and Human Rights (Sixteenth Report): Annual Renewal of Ibid, p. 31 para. 85.

Control Orders Legislation 2010 [9 th Report Session 2009-10] HL Control Orders Legislation 2010 [9 th Report Session 2009-10] HL

of liberty as opposed to merely a restriction on liberty. 128 point at which this becomes a deprivation of liberty is

Yet in acknowledging the interaction of ECHR rights and arbitrary when Secretary of State for the Home

acknowledging that factors specific to the individual Department v JJ & Others 116 is considered. Whilst

could be taken into account, the argument about the reaching the conclusion that 18- hour curfews breached

proportionality of control orders becomes difficult to Article 5, Lord Brown was of the view that 12-14 hours

sustain. If the balance can be tipped by the restriction to did not constitute a breach of Article 5 and regarded 16

the ECHR Article 8 right to family life, then to hold this as hours as the acceptable limit. 117 It is difficult to see what

o l a dep i atio of li e t if u usuall dest u ti e of makes 16 hours the acceptable limit where 18 hours is

the life of the controlee is to fail to acknowledge the regarded as a loss of liberty. 118 On the other hand Lord

terms of ECHR Article 5.

Bingham took the view there was no dividing line 119 in Where control orders are concerned, the deciding that curfew conditions amounted to solitary

deprivation of liberty under ECHR Article 5(1) (c) is confinement. 120 The Joint Committee voiced concerns

pe itted he e the easu e is easo a l o side ed about this impact of control orders on lives. 121 Thus, the

itti g a offe e . I the ECHR Article 8 right of respect for private and family life

e essa to p e e t his o

European Court of Human Rights case of Guzzardi v is also engaged. 122 In giving evidence before the

this phrase was considered to be limited to Committee, human rights lawyer Gareth Peirce pointed

Italy 129

gi i g “tates a ea s to p e e t a o ete and out that although the orders may only affect a small

spe ified offe e . 130 Neither does the ECHR Article 5 (1) number of individuals, the wider impact was a sense of injustice. 123

e eptio of dete tio to se u e the fulfil e t of This argument is based on the fact that

a o ligatio p es i ed la appl he e ge e al control orders operate outside the criminal justice

obligations are imposed by the legislative measures. 131 system and challenge principles such as the presumption

The debate on the use of executive measures of innocence and the right of a fair trial. Therefore,

highlights that-there is no middle ground between legitimacy is in question. Indeed the Joint Committee

security and liberty. The anti-terrorism strategy is was critical of the increased practice of relocating

skewed towards executive control founded on

i di iduals to othe a eas of the ou t as pa t of light

one-sided choice between tou h o de s. 124 prosecution and executive control is a consequence of There is now a serious issue about the

intelligence. 132 The

managing the terrorist threat. 133 The limitation is that compatibility of control orders with ECHR rights. This

this reduces the protection of individual liberties. Having follows the recent ruling of the UK Supreme Court

considered the question of alternatives to control recently in R (on the application of AP) v Secretary of

orders, many academics such as Walker suggested the

State for the Home Department. 134 The relocation of AP use of surveillance. from London to the Midlands with the purpose of

The use of banning named terrorist organisations removing him from associating with Islamist extremists

p os iptio is a othe e e uti e easu e hi h in London meant that those restrictions to his ECHR

raises Human Rights issues. The 2010 CONTEST Report Article 8 right was a factor relevant to the issue of

states that su h easu es help to ake the UK a o e 135 whether the control order breached ECHR Article 5 right

e t fo te o is . However, when to liberty. Therefore, ECHR Article 8 rights could be a

hostile e i o

proscription was part of the former Prevention of decisive factor in tipping the balance in respect of ECHR

Terrorism (Temporary Provisions) Act 1989 the efficacy Article 5. 126 Judge Lord Brown also found that in of such measures was doubted. Walker described

considering whether a control order amounts to the proscription as a measure which was purely symbolic deprivation of liberty subjective factors and person

intended to put terrorist organisations out of public specific factors

sight. – such as the difficulty of family visits – 136 The difference now is that by Section 1 (4) of the could be taken into account. 127 In spite of this, Lord

TA 2000, proscription is extended to international Brown continues to hold the view that other conditions ould ha e to e u usuall dest u ti e of the life of the

64 HC 395, p. 34 para. 111 – 112. 128 R (on the application of AP) v Secretary of State for the Home http://www.publications.parliament.uk/pa/jt200910/jtselect/jtr

Department [2010] UKSC 24; [2010] 3 WLR 51 per Lord Brown 116 ights/64/64.pdf accessed 11 April 2010.

at para 4.

[2007] UKHL 45.

129 (1981) 3 EHRR 333.

117 [2007] UKHL 45 at para. 105.

131 Guzzardi v Italy (1981) 3 EHRR 333 at para 102. 119 [2007] UKHL 45 per Lord Brown at para. 108.

Ibid, para 101.

120 [2007] UKHL 45 at para. 17.

C Walker, Intelligence and Anti-terrorism legislation in the [2007] UKHL 45 at para. 24.

United Kingdom, (2005) 44 Crime Law and Social Change 387,

122 Supra note 116, p. 16 para. 44.

133 p.p. 387 – 390 and p. 413.

123 [2007] UKHL 45 per Lord Hoffmann at paragraph 34. D Bonner, Executive Measures, Terrorism and National 124 Supra note 122.

Security (Ashgate 2007) p.p. 214 – 216. Ibid, p. 5 para. 41.

134 Supra note 132

125 [2010] UKSC 24; [\2010] 3 WLR 51.

e t, The U ited Ki gdo s “t ateg fo R (on the application of AP) v Secretary of State for the Home

135 HM Go e

Cou te i g I te atio al Te o is A ual ‘epo t Ma h Department [2010] UKSC 24; [2010] 3 WLR 51 per Lord Brown

(Cm 7833 Norwich The Stationery Office 2010) p. 10 para. 2.10. at para 12.

nd 127

C Walker, The Prevention of Terrorism in British Law (2 edn Ibid, para 15 and para. 19.

Manchester University Press 1992) p. 64.

organisations. 137 Walker considers that proscription had

d of TA fo the limited value on the grounds this can drive an

te o is u de se tio

The Home Secretary organisation underground. 138 In his latest report on the

purposes of proscription.

p os i ed the People s Mojahadee O ga isatio of operation of the TA 2000, Lord Carlile echoes the doubt

Iran in spite of no evidence of the organisation about the value of proscription, reporting that

presenting a specific threat. 147 Proscription has also been proscription does little to protect the public other than

applied to support the international community in the to label dangerous organisations and provide grounds to

Wa o Te o , as e ide ed ith the recent p ose ute lo e le el a ti it .

proscription of al-Shabaab. 148 In this case the been raised by various scholars. 140 Proscription is

Similar doubts have

e t s a gu e t that Section 3(5)(d) TA 2000 considered by the government to be essential to

go e

continued to apply to an inactive organisation with a addressing militant radicalisation, as evidenced by the

history of activity 149 was rejected on the grounds that recent proscription of Al Muhajiroun. 141 It remains to be

merely an intention to take up arms in the future is not seen what effect this will have on preventing

othe ise o e ed i te o is . 150 The limit of the radicalisation. Out of 80 convictions under the TA 2000

legislation therefore is that proscription cannot apply to since September 11 th , 2001, 15 were for sections 11 to

those organisations without military capability and not

13 offences of membership and support of proscribed taking active steps to engage in terrorist acts. 151 This organisations and the wearing of uniform in public.

questions the extent to which the government can There were no convictions in 2003 to 2005 or in 2008 to

justifiably interfere with the rights of free speech, 2009. 142 Yet the list of proscribed international

assembly and association. 152 The aforementioned organisations grew to 45 at the end of 2008. 143 This

affirmation that proscription requires a nexus between growth in the number of international organisations

an organisation and terrorism and expressing an suggests proscription has had limited deterrence.

intention is insufficient, calls into question recent This then raises the issue of proscription

proscription and its proportionality. interfering with ECHR Article 10 freedom of expression

Freezing of financial assets also raises the question and ECHR Article 11 freedom of assembly and

of the proportionate use of executive power. This was association. In Attor e Ge eral s ‘efere e No of

evident in A v HM Treasury and Others 153 where in 2002), it was considered that Section 11 (1) TA 2000

dispute were Orders 154 made under section 1 of the interfered with the right to freedom of expression but

as appea ed e essa o was necessary and proportionate. 144 In proscribing an

U ited Natio s A t

e pedie t to gi e effe t to “e u it Cou il ‘esolutio s organisation under Section 3(4) of TA 2000 the Secretary

1373 and 1452. The justification for making the orders of State may only exercise his power against named

was to prevent and suppress the financing of terrorist organisations if he believes the organisation is involved

acts and take measures against Al- Qaida. He Majest s in terrorist activities. By Section 3 (5) of TA 2000 an

Treasury used section 1 of the United Nations Act 1946 organisation is not only concerned in terrorism by acts of

to make the appellants subject to directions freezing terrorism it commits or participates in, or where it

financial assets and criminalising any financial 155 promotes or encourages terrorism, but also where it is

The UK Supreme Court noted that this othe ise o e ed i te o is . The ase of Secretary

transaction.

system supplanted the existing scheme under Part 2 of of State for the Home Department v Lord Alton of 156 ACTSA 2001 with a more draconian system. The UK

Liverpool 145 considered the extent to which an Supreme Court held this to be an affront to basic rights, o ga isatio a e said to e othe ise o e ed i 157 e ause the o ds e essa o e pedie t do not permit disproportionate interference with individual

rights. N Rasiah, Reviewing Proscription Under The Terrorism Act 158 There is no parallel with other jurisdictions to

this use of executive measures via secondary legislation 138 2000, (2008) 13 (3) Judicial Review p. 187, para. 2. C Walke , Bla ksto e s Guide to The Anti-Terrorism Legislation (2 nd edn Oxford University Press 2009) p. 53 para.

N Rasiah, Reviewing Proscription Under The Terrorism Act

2000, (2008) 13 (3) Judicial Review p. 190 para. 21. Te o is A t

Lo d Ca lile, ‘epo t o the Ope atio i of the

a d of Pa t of the Te o is A t 147 Secretary of State for the Home Department v Lord Alton of (London The Stationery Office 2009) p. 12 para. 50 – 51

Liverpool [2008] EWCA Civ 443 para. 12. http://security.homeoffice.gov.uk/news-

148 SI 2010 No. 611. House of Commons Hansard Debates for 04 publications/publication-search/legislation/terrorism-act-

March 2010 David Hanson Column 1035 and 1036 2000/independent-review-responses/Lord-Carlile-report-

http://www.publications.parliament.uk/pa/cm200910/cmhansr 09?view=Binary accessed 03 May 2010.

d/chan50.pdf accessed 03 May 2010.

B Dickson, Law versus terrorism: can law win?, (2005) 1 149 Secretary of State for the Home Department v Lord Alton of European Human Rights Law Review 11 p.p.16 141 – 17.

SI 2010 No. 34; Hansard 20 January 2010 Security and 150 Liverpool [2008] EWCA Civ 443 para. 29. Ibid, para. 127

Counterterrorism 999 – 1000 Lord Strathclyde

151 Ibid, para. 37

http://www.publications.parliament.uk/pa/ld200910/ldhansrd/

153 text/100120-0002.htm#10012064000394 accessed 03 May Supra note 147, p. 190, para. 18. [2010] UKSC 2. 142 2010.

154 Terrorism (United Nations Measures) Order 2006 SI Supra note 22, Table 1.10 (a).

2006/2657, Al-Qaida and Taliban (United Nations Measures) 143 Lo d Ca lile, Fifth ‘epo t Of The I depe de t ‘e ie e Order 2006 SI 2006/2952.

Pursuant To Section 14 (3) Of The Prevention Of Terrorism Act

156 [2010] UKSC 2 at paragraph 38.

157 [2010] UKSC 2 at paragraph 5 per Lord Hope. 145 2005] 1 Cr App R 28 paragraph 54.

Lo do The “tatio e Offi e

p. .

[2010] UKSC 2, para. 45.

[2008] EWCA Civ 443.

158 Ibid, para. 47.

to target terrorism. 159 The restoration of the domestic detention power, concern was repeated about the asset freezing regime by subsequent emergency

adequacy of procedural safeguards for authorisation of legislation 160 and the publication of the draft Terrorist

extended detention. 166 The continued debate is Asset-Freezing Bill which by clause 2 replicates the

illuminating. In discussing the alternative to pre-charge Treasury power to designate on a reasonable suspicion

detention the Joint Committee pointed out that with the test and repeats the previous rationale of giving the

increased range of terrorism offences those on the Treasury

periphery are being arrested. 167 As this implies, the label obligations 161 shows that the UK strategy is entrenched.

power to

implement

international

te o ist suspe t akes the a ti-terrorism strategy The justification for this is worded in the CONTEST 2010

inflexible. 168

annual report as a commitment to the maintenance of The underlying purpose of pre-charge detention

a effe ti e a d p opo tio ate asset egi e . 162 Yet the becomes apparent when considering the government Supreme Court not only commented on the

case for a 90-day period. The evidence before the Home proportionality of using section 1 (1) of the 1946 Act, but

Affairs Committee was that the purpose of early arrest is also on the directions under the invalid Orders.

to disrupt conspiracies in the interests of public safety. 169 The use of executive measures has become an

La elled p e e tati e dete tio this is the eal d i e ingrained practice which is beginning to be challenged in

for extended detention. 170 This may explain why the UK courts on the grounds of proportionality. The

arguments for alternatives such as bail, charging on a Human Rights implications of the implementation of the

threshold test of reasonable suspicion of a criminal UK strategy are broader than the question of how

offence having been committed, and the use of intercept proportionate measures are. Proscription becomes

e t s i siste e difficult to justify where there are no active steps by an

e ide e, has ot ha ged the go e

on the need for extended powers of detention without organisation to engage in terrorist acts. Nonetheless

charge. An audit of rights commented on an emerging proscription has been used against organisations on the

shado s ste of i i al justi e o t olled the periphery of terrorist activity and this is a potential

executive. 171

threat to free speech, assembly, and association. The use Ope atio Path a epo ted o Lo d Ca lile of secondary legislation to freeze financial assets is

demonstrates the shortcomings of the argument for without precedent and yet the curbing of this by the UK

p e e tati e dete tio . 172 Although the initial Supreme Court led to emergency legislation designed to

applications for warrants of further detention were reinstate the power.

granted 173 , the UK High Court said further application 174 would hav e to sho a eal p ospe t of e ide e .

The

finding that nothing of value was obtained during detention is not an isolated case. 175 I the ai li e li uid Detention of terrorist suspects before charge illustrates the difficulty of balancing human rights and

Legislative Measures of the National Security Strategy

the requirement of the executive for the greatest power 29 para. 82 – 83 http://www.publications.parliament.uk/pa/jt200910/jtselect/jtr

available in the event of an emergency. After the House ights/86/86.pdf accessed 15 April 2010. of Lords rejected the proposed 42-day period for

166 Ibid, p. 26, para. 69

detention without charge in the counter-terrorism bill, 163 Joi t Co ittee o Hu a ‘ights, Cou te -Terrorism Policy the government produced a draft emergency bill with

and Human Rights (Sixteenth Report): Annual Renewal of the idea that this could become law in the event of

Control Orders Legislation 2010 [9 th Report Session 2009-10] HL emergency. 164 The UK Parliament Joint Committee on

64 HC 395.

Human Rights urged the government to withdraw this http://www.publications.parliament.uk/pa/jt200910/jtselect/jtr bill on the grounds that legislation rushed through in an

ights/64/64.pdf accessed 11 April 2010.p. 30 , para. 88. 168 emergency receives less scrutiny and enactment could S Greer, Human Rights and the Struggle Against Terrorism in

breach ECHR Article 5 rights. 165

the United Kingdom, (2008) 2 European Human Rights Law

On the existing 28-day

169 Review 163, p. 169.

Ho e Affai s Co ittee, Te o is Dete tio Po e s

Fourth Report [Session 2005- 06] HC (2006) 910-1 p. 30 para.

160 Ibid, para. 50 – 53.

The Terrorist Asset-Freezing (Temporary Provisions) Act 2010 http://www.publications.parliament.uk/pa/cm200506/cmselect 161 In Force 10 February 2010 – 31 December 2010. 170 /cmhaff/910/910i.pdf accessed 16 April 2010.

Pu li atio i d aft of the Te o ist Asset-F eezi g Bill C Ibid, p.p. 30 – 31 para. 94 – 95. 7806 February 2010 Explanatory notes paragraph 8,

A Blick and T Choudhury and S Weir, The Rules of the Game http://www.hm-

Terrorism Community and Human Rights, (The Joseph treasury.gov.uk/d/finsanc_assetfreezingbill_draft_050210.pdf

Rowntree Reform Trust 2006) , p. 48 accessed 14 April 2010. 162

http://www.jrrt.org.uk/uploads/Terrorism_final.pdf accessed 163 Supra note 62, p. 10 para. 2.12.

16 April 2010.

Counter-Terrorism(Temporary Provisions)Bill, 172 Lord Carlile, Operation Pathway Report Following Review www.parliament.uk/deposits/depositedpapers/2008/DEP2008-

(October 2009) http://security.homeoffice.gov.uk/news- 164 2775.pdf accessed 15 April 2010.

publications/publication-search/legislation/terrorism-act- 2000/operation-pathway-report?view=Binary accessed 16 April

http://www.telegraph.co.uk/news/newstopics/politics/lawando

rder/3192152/Jacqui-Smith-creates-emergency-bill-after-42- 173 Lo d Ca lile, Fifth Report Of The Independent Reviewer 165 day-detention-defeat.html accessed 15 April 2010.

Pursuant To Section 14 (3) Of The Prevention Of Terrorism Act Joint Co

Lo do The “tatio e Offi e pa ag aph . and Human Rights (Seventeenth Report): Bringing Human

ittee o Hu a ‘ights, Cou te -Terrorism Policy

Ibid, para. 80.

Rights Back In [16 th Report Session 2009-10] HL 86 HC 111, p.

175 Ibid, para. 88.

o ase the ai p otago ists e e ha ged ithi people sus epti le to p ea hi g to t a sitio to

14 days of detention whilst those detained up to the 28- undertaking terrorist acts. 184 This illustrates anti-terrorist day limit were either not charged or were subsequently

legislation has a counter-terrorist purpose. acquitted. The implication was that pre-charge detention

Arguably, the encouragement offence can operates unfairly against those on the periphery. 176 This

i i alise e e p ea hi g . The offe e i ludes ot exposes a Human Rights deficit in the anti-terrorism

o l e ou age e t ut othe i du e e t a d strategy. As distinct from non-terrorist investigations

therefore applies not only to express or implied early arrest will be on a threshold basis of reasonable

statements of encouragement. 185 As section 1 (5) TA suspicion of terrorism offences, where for example the

2006 makes it irrelevant whether encouragement relates full extent of a conspiracy is unknown and the full

to either particular acts or particular Convention evidence is yet to emerge. As Lord Carlile points out a

offences and whether anyone was induced or Section 41 TA 2000, arrest is unique in terms being a

encouraged, and includes past and future glorification 186 , terrorist is not a criminal offence. 177 As compliance with

the offence is capable of including any expression ECHR Article 5 is by judicial scrutiny in each case of

construed as the encouragement of terrorism. 187 whether there is justification for further detention the

Fu the o e, the defi itio of a ts of te o is hi h argument for extended detention for a preventative

are encouraged by section 20 TA 2006 includes anything purpose cannot be justified. 178 within the meaning of section 1 (5) of TA 2000. Section

The use of legislative measures for a preventative defi es a a t of te o is as a a t o th eat of purpose and intervention at an earlier stage in terrorist

a tio ith the pu pose of ot o l to i flue e the plots is shown by the UK development of anticipatory

government but also to intimidate a section of the public offences. Sections 1 to 3 of the TA 2006 are part of the

for the advancement of a political, religious or preventive strategy against the expression of terrorism,

ideological cause. 188 Because of this the encouragement the intention being to create a permanent legislative

offence can be argued to catch all forms of protest at the

f a e o k fo add essi g te o is as opposed to detriment to freedom of expression. 189 Since the responding to it. 179 Counter-Terrorism Act 2008 widened the definition of

It is acknowledged that section 1 TA 2006 terrorist purpose to include racial 190 – thereby widening encouragement of terrorism offence is controversial. 180 the encouragement offence – this shows the

Ho e e , Lo d Ca lile s ie as that se tio did ot implementation of anti-terrorism strategy targeting all

e e p ea hi g . 181 As developments now extremism can be readily achieved by amending the 191 show, criminalising encouragement of terrorism

i i alise

The role of the legal definition facilitates suppression of extremist views without

definition of terrorism.

of terrorism in expanding offences is part of the early prosecution for criminal offences. Where material

interventionist strategy. 192 This challenges legal certainty published on the internet relates to encouragement of

and leaves scope for confusion as to when views terrorism or dissemination, Section 3 TA 2006 applies to

sympathetic to terrorism amount to encouragement. 193 give police the power to either require the removal of 182

Criminalising the dissemination of terrorist internet material or modification of its content. February 1 st

publications is equally wide as this includes the , 2010 the Home Office launched an online

On

possession of a publication with a view to dissemination

scheme for the public to report terrorist material to a 195 and recklessness will suffice. In Bilal Mohammed police team investigating extremist sites with the

his reckless sale of material amounting to a terrorist intention police will use these powers. 183 This is a

publication drew the distinction between his case and strategy to prevent people becoming influenced by

that of a dedicated extremist seeking to encourage terrorism. Indeed, when the 2006 Act was in its draft stage and was put to the Home Secretary his response was that the purpose was to make it more difficult for

184 Hansard Commons Draft Terrorism Bill Minutes of Evidence

HC 515-i 11 October 2005 Q3 Rt Hon Charles Clark MP

176 A N Baj a a d B O ‘eill , Pu li /Hu a ‘ights: Te o ising http://www.publications.parliament.uk/pa/cm200506/cmselect

the Innocent, (2010) 160 New Law Journal, p. 481. 177 185 /cmhaff/515/5101102.htm accessed 18 April 2010. Section 1 (1) Terrorism Act 2006. Lo d Ca lile, Fifth ‘epo t Of The I depe de t ‘e ie e 186 Section 1 (3) Terrorism Act 2006.

Pursuant To Section 14 (3) Of The Prevention Of Terrorism Act

Lo do The “tatio e Offi e

, pa a. .

A Hunt, Criminal Prohibitions on Direct and Indirect

R (on the application of I) v Westminster Magistrates Court Encouragement of Terrorism, (2007) Crim LR (6) 441, p. 448 [2008] EWHC 2146 (Admin) at para. 21

– 23. and I Ward, God, Terror and Law, (2008) 28 (4) Oxford Journal

of Legal Studies 783, p. 788.

Hansard Commons Draft Terrorism Bill Minutes of 188 Section 1 (1) (a) (b) (c) Terrorism Act 2000. Evidence HC 515-i 11 October 2005 Q2 Rt Hon Charles

D McKeever, The Human Rights Act and Anti-terrorism in the Clark MP

UK: One Great Leap Forward By Parliament, But Are The Courts http://www.publications.parliament.uk/pa/cm200506/cmselect

Able To Slow The Steady Retreat That Has Followed?, (2010) Jan /cmhaff/515/5101102.htm accessed 18 April 2010. 180

Public Law 110, p. 128.

Lo d Ca lile, The Defi itio of Te o is C No i h 190 191 Section 75 (1) (2) (a) Counter-Terrorism Act 2008. 181 The Stationery Office March 2007) , p. 38 para. 68.

Supra note 190, p. 116.

Ibid, p.p.40

– 41 para. 72. 192 C Walke , Bla ksto e s Guide to The A ti-Terrorism Section 3 (3) Terrorism Act 2006.

Legislation (2 nd edn Oxford University Press 2009) p. 8 para. 183 P ess ‘elease, Pu li epo ti g e ha is fo te o ist 1.24.

ate ial o the i te et Fe ua 193 http://press.homeoffice.gov.uk/press-releases/public-

194 Supra note 188, p.p. 449 – 450. Terrorism Act 2006 section 2 (2) (f).

reporting-terrorist accessed 17 April 2010.

195 Terrorism Act 2006 section 2 (1) (c).

terrorist activity. 196 The significance of this, as pointed measures as a key part of the anti-terrorism strategy has out by Ramage, is that people who have no proven link

created legislation capable of being used not only to to terrorism can be prosecuted on the basis that their

prevent terrorism but suppress views. This is a threat to acts create a remote risk of harm. 197 This is noted in the

the ECHR Article 10 right to freedom of expression. distinction Hunt draws between the dissemination

But this development of the UK strategy appears offence and incitement, in that the possessor of a

to be in keeping with what the Council of Europe has terrorist publication need have no direct involvement in

encouraged EU Member States to adopt. For example, encouraging terrorism. 198 the Council of Europe in 2008 modified its 2002

All the aforementioned measures go beyond the Framework Decision on combating terrorism, which is Council of Europe Convention on the Prevention of

the basis of the counter-terrorist policy of the European Terrorism (CEPT) obligations to take effective measures

Union. 208 The 2008 amendment by the Council of Europe to prevent terrorism. 199 Under Article 5 (1) of the CEPT,

requires EU Member States to criminalise acts linked to pu li p o o atio e ui es i te t to i ite a te o ist

terrorist activities, particularly by taking action against offence and a casual connection between publication

the publication and dissemination of materials capable and a danger that offences may be committed. Like the

of inciting people to commit acts of terrorism. In turn, CEPT, the international obligation is also to prevent

this is justified in accordance with international law incitement and to show causal connection. 200 Whilst

obligations under United Nations Security Council Article 19 of the International Covenant on Civil and

Resolution 1624 (2005) in order to prevent incitement to Political Rights permits restriction to freedom of

commit terrorist acts. 209 The amendment to the expression and the ECHR Article 10 right is a qualified

Framework decision is considered an important step right, the removal of the conditions of incitement and

towards targeting the use of the internet to incite harm reduces protection.

terrorism. 210

The UK Parliament Joint Committee on Human Recent case law suggests freedom of expression is Rights identified that section 1 of the TA 2006 was wider

becoming eroded by a general approach of asking what than Article 5 CEPT 201 , risking making this incompatible

is in the interests of national security. For example in the with the ECHR Article 10 right. 202 The fundamental

context of glorifying terrorism offences, Sottiaux iti is of the e ou age e t offe e as the hilli g

criticised the recent ECHR decision of Leroy v France 211 effe t of the offe e p e e ti g people oi i g thei

as moving away from traditional incitement law 212 to views 203 leading to disproportionate interference with 204

deciding- as in this case- hethe M Le o s a too of free speech.

As reviewed by the International the World Trade Centre twin towers could be Commission of Jurists, States including the UK have gone

interpreted as glorifying violence despite his intention to beyond

simply express Anti-Americanism. incitement. The UK indirect encouragement provision

The UK Strategy goes beyond targeting the was cited as one of the most controversial examples of 206

organisers of terrorist training. Whereas section 6 TA this.

The real danger is that the use of anti-terrorism 2006 reflects Article 7 of the CEPT in criminalising 214 legislation is no longer perceived to be legitimate but instead victimises people for their views. 207

training for terrorism , Section 8 goes further to

The UK role

criminalise attendance at places used for terrorist

i the Wa o Te o ha i g e phasised p e e tati e training. The UK Court of Appeal case of R v Da Costa 215 and Others

considered the construction of the two

sections. Whilst the test in Section 6 (1) (b) is that the

Abdul Rahman and Bilal Mohammed [2008] EWCA Crim 1465 at para. 34

p o ide k o s a atte dee s i te tio to use his

training for terrorist purposes S Ramage, The Little Red School Book and Other Harmful 216 , for the Section 8

Publications, (2008) 186 Criminal Lawyer 1 offence it is sufficient that the training is given for 198 Supra note 188 , p. 445. 199 Council of Europe Convention on the Prevention of Terrorism

CETS No 196 Cou il F a e o k De isio / /JHA of No e e http://conventions.coe.int/Treaty/Commun/QueVoulezVous.as

2008 amending Framework Decision 2002/475/JHA on 200 p?NT=196&CM=1&CL=ENG accessed 03 May 2010.

o ati g te o is Offi ial Jou al of the Eu opea U io L UN Security Council Resolution 1624 (2005) adopted 14

330/21 para. (2).

September 2005 UN Doc S/RES/1624 (2005).

210 Ibid, .para. 7 and 8.

Joi t Co ittee o Hu a ‘ights, The Cou il of Eu ope st MEMO/08/255 Amendment of the Framework Decision on Co e tio o the P e e tio of Te o is

combating terrorism Brussels 18 April 2008 2006-07] HL 26 HC 247, para. 22 – 39,

Report Session

http://www.libertysecurity.org/article2010.html accessed 21 http://www.publications.parliament.uk/pa/jt200607/jtselect/jtr

April 2010.

36109/03 Unreported October 2 2008 ECHR. 203 Ibid, para. 29.

ights/26/26.pdf accessed 17 April 2010.

212 S Sottiaux, Leroy v France: Apology of Terrorism and the Ibid, para. 40

– 49. 205 Ibid, para. 47.

Malaise of the European Court of Human Rights, Free Speech

Eu opea Hu a ‘ights La ‘e ie International Commission of J u ists, Assessi g Da age, Urging Action: Report of the Eminent Jurists Panel on Terrorism,

Ju isp ude e

213 415, p. p. 417 - 420. Supra note 211, p.p. 420

– 422. Counter- te o is a d Hu a ‘ights Ge e a

, p.p.

214 Council of Europe Convention on the Prevention of Terrorism CETS No 196

206 – 128. 207 Ibid, p.p. 129 – 130.

http://conventions.coe.int/Treaty/Commun/QueVoulezVous.as C Walker, Clamping Down on Terrorism in the United

p?NT=196&CM=1&CL=ENG accessed 03 May 2010. Kingdom, (2006) 4 (5) Journal of International Criminal Justice

216 1137, p. 1141. [2009] EWCA Crim 482 R v Da Costa and Others[2009] EWCA Crim 482 at para. 15.

strategy is able to target. Its far reaching nature carries belief 218 and does not need an intention to put the

the implication that there has been a noticeable shift training to use 219 or otherwise can commit the offence

away from targeting terrorists and terrorism. This without undergoing training 220 , criminal liability is much

defi es a e e a i the Wa o Te o he e the wider for those that take part than for the promoters

emphasis is no longer on terrorist conflict but on using and organisers of terrorist training.

criminal justice to prevent terrorism. Pre-charge This extended reach of the legislation in the anti-

detention is used to make early arrests in the interests of terrorism strategy is illustrated by the possession

disrupting terrorist activity. The implication is that the offences. The UK Court of Appeal in R v Malik 221 executive controls criminal justice at the expense of the

observed that where material is downloaded from the ECHR Article 5 right to liberty. Anticipatory offences internet with the intention to be used to assist acts of

created under TA 2006 have created a legislative terrorism the section 58 TA 2000 offence of the

framework designed to enhance the prevention of collection of information could be committed. 222 This

terrorism. The ability to use this legislation to silence could be the case even if intention is subsequently

expression of extremist views particularly illustrates the abandoned and it implies that mere possession could

use of anti-terrorism legislation as a mechanism of suffice. Indeed in R v G 223 the UK House of Lords

control. The problem is acute once the definition of confirmed that as section 58 is concerned with the

terrorism is widened. Then any extremist view can be atu e of the i fo atio possessed, the the pu pose

targeted, threatening to stifle freedom of expression. for collecting information is irrelevant. Recently in R v Muhammed (Sultan) 224 , the UK Court of Appeal held that

Arbitrary Use of Anti-Terrorism Powers in the United

section 58 TA 2000 is not to be narrowly interpreted so

Kingdom

as to be only limited to furthering the actual commission or preparation of terrorist acts. It was held that it is

In practice there is a risk of the arbitrary use of impractical to distinguish between the stages of

power. On available evidence the Section 44 TA 2000, preparation required for a document or record to

stop and search power is of questionable value beyond become useful to a person committing or preparing an

deterrent effect especially where the number of police act. 227 225 Absent reasonable excuse, this has wide searches is out of proportion to arrests. Section 44 (2)

application to those who possess material for non- TA 2000 gives a police constable in uniform terrorist purposes.

authorisation to stop and search a pedestrian. The Therefore, the strategy disproportionately targets

authorisation can cover an area of place and can be the those on the periphery, fantasists as opposed to

whole or part of a police area. The requirement in terrorists. 226 This is facilitated by the difference of section 44 (3) TA 2000 is that authorisation may be given

protective intention tests applied to genuine terrorists

a se io offi e o l if o side ed e pedie t fo the and those on the periphery. By the nature of the

p e e tio of a ts of te o is . “i e easo a le offences they are charged with, the former are subject

suspi io is ot e ui ed to use Section 44 TA 2000 to to less protection where specific intention and

stop and search people, the power can be used against 228 connected purpose are absent, a difference the courts

as confirmed by the European Court of Human have reinforced.

anyone

Rights in Gillan and Quinton v The United Kingdom. 229 The UK, whilst acting in accordance with

The finding was that the use of the power amounted to a international obligations and European policy, has made

breach of ECHR Article 8 rights of respect for private the legislative measures capable of wide use against 230 life. This was on the grounds that the use of the power

those on the periphery of terrorism. In doing so, it has was arbitrary because of the broad discretion police not addressed the issue of how to safeguard rights. The

officers have in their exercise of the stop and search real threat becomes that anyone in possession of

power once given what amounts to a blanket authority material deemed to be for a terrorist purpose regardless 231 to use the power. The authorisation procedure itself

lack any assessment of anti-terrorism legislation. This shows how the

of their intent is capable of being targeted under the

authorisation continuously implementation of the strategy again affects rights of

proportionality 232 and

renewed on a rolling basis without any scrutiny. 233 This freedom of expression, assembly and association. It is

has the following ramification: there has to be control over the risk of arbitrary use to justify interference in ECHR rights. The evidence of the excessive use of the

218 Section 8 (1) (c) Terrorism Act 2006. 219 Section 8 (2) (a) (b) Terrorism Act 2006. R v Da Costa and Others [2009] EWCA Crim 482 at paragraph

21. 220 221 Section 8 (3) (a) Terrorism Act 2006.

222 [2008] EWCA Crim 1450. D Thiel, Policing Terrorism A Review of the Evidence, (The 223 R v Malik [2008] EWCA Crim 1450 at paragraph 41.

Police Foundation 2009), p. p. 32

[2009] UKHL 13; [2010] 1 AC 43 HL.

Ibid, p.p. 32

225 [2010] EWCA Crim 227. [2009] ECHR 28 12 January 2010 Application no 4158/05 226 [2010] EWCA Crim 227 at paragraph 46.

231 Ibid, para. 87. ibid, para. 85.

K D Ewing, Bonfire of the liberties New Labour Human Rights

and the Rule of Law (Oxford University Press 2010), p. 211.

233 Ibid, para. 80. Ibid, para. 81 – 82.

power 234 demonstrates that the UK anti-terrorism should be made subject to derogation and instead strategy is too reliant on discretion. 235 alternatives should be found. 245 As seen with the continued use of control orders despite the government

Counter-terrorism Measures in the United Kingdom

identifying that international terrorism is not a strategic

and the War on Terror

threat to the UK, the use of extraordinary measures are becoming a permanent feature of the UK anti-terrorism

Co pa ed to the U“ o eptualisatio of the Wa 236 strategy. With the emphasis now on pre-emptive o Te o as a ilita espo se , Europe takes a long- term view of addressing underlying causes 237

measures and the paradox of a legislative system where

people committing anticipatory offences are less focus on investigation and prevention. As seen the UK

with the

protected by the law (and more easily prosecuted) the aligns to this EU model and vice versa. However, post-

implications are that liberty (whether of person or 9/11, the UK role has interpreted international obligations to use anti-terrorism legislation 239

expression) is becoming reduced to the question of what

is in the best interests of national security. deterrence purposes remodelling domestic criminal law

for

The counter-productive effects of this are to aggressively target terrorism as opposed to

suggested by Campbell and Connolly using Northern terrorists. It is the pre-emptive aspect of the strategy

Ireland as an object lesson. 246 The talk of a g e zo e that has created new laws targeting an ever greater

of executive power created by anti-terrorist law 247 , range of people and activities 241 embedding national

which moves beyond law however much cloaked with security into the criminal justice system.

This creates a

legislative authority 248 creating a new species of violent

e pa adig fo the a o te o is . As see hu a opposition, thereby sustaining terrorism. 249 They cite the rights compliance is becoming questionable.

use of the anti-terrorist stop and search powers in the To use the te i olog Wa o Te o is to

UK as evidence of indiscriminate use capable of suggest action is being taken against armed conflict and

alienating British Muslims. 250 The impact of the UK anti- therefore International Humanitarian Law (IHL) rules

terrorism legislation post 9/11 is to make all Muslims applying to armed conflict become applicable. As Duffy

potential terrorist suspects. 251 The negative aspect of the identifies, the terminology can be a pretext to use IHL to

a o te o is is this di isi e ess 252 as demonstrated justify the detention of terrorists on the grounds of

by for example proscription 253 and reinforced by enemy combatants and whether such steps are taken

discretionary powers within the TA 2000. 254 This results the danger is the ambiguities surrounding the loose use

in a dual criminal justice system with an extraordinary of terminology enable States to manipulate the law. 243 sphere directed not at prosecution but at pre-empting

But the UK anti-terrorism strategy does not justify the terrorism. 255 It is the pre-emptive aspect of the strategy use of this terminology. Having taken the stance that

that has created new laws targeting an ever greater terrorism is a threat to be managed and the risk of

range of people and activities before terrorist acts have terrorism can be reduced by appropriate measures, the

been committed 256 embedding national security into an UK strategy is not prosecuting a war on terror but

anti-terrorism criminal justice system. 257 It remains to devising measures for controlling terrorism. This

be seen whether this is positive or negative in the long- demands higher standards of legal protection to those

term. Arguably the UK contribution has been to develop affected by the measures. As Walker identified the UK

the concept of pre-emption in the domestic law sphere terrorism legislation follows the criminal justice model

the e eati g a e pa adig fo the Wa o and not a war model. This has clear implications for

Terror is .

detention without trial and the application of control

The implementation of the strategy therefore orders.

His argument is that extraordinary measures creates the very conditions for radicalisation the strategy

seeks to avoid. 258 Whilst the strengths of the UK strategy

234 Ibid, para. 84. 235 R Edwards, Stop and Search, Terrorism and the Human

Rights Deficit, (2008) 37 (3) Common Law World Review 211,

246 p.p. 223 Ibid.

– 230. C Campbell and I Connolly, Making War on Terror? Global H Duff , The Wa o Te o a d the F a e o k of

Lessons from Northern Ireland (2006) 69 (6) Modern Law International Law (Cambridge University Press 2005), p. 123.

Review 935, p. 937.

D Keohane, The Absent Friend: EU Foreign Policy and

248 Ibid, p.943. Ibid, p. 944.

Counter-Terrorism, (2008) 46 (1) Journal Common Market

238 Studies 125, p.p. 134

– 135. 249 Ibid, p.p. 954 – 956. M Lehto, War on Terror – Armed Conflict With Al-Qaida?

250 Ibid, p.p.956

e to , F o the Old to the Ne 239 503.

(2010) 78 Nordic Journal of International Law 499, p.p. 502 -

C Pa tazis a d “ Pe

Suspect Community: Examining the Impacts of Recent UK B Brandon, Terrorism, Human Rights and the Rule of Law:

Counter-Terrorist Legislation (2009) 49 (5) British Journal of Yea s of the UK s Legal ‘espo se to Te o is

Ci

Criminology p. 646.

253 Ibid, p.p. 650 D Whittaker, Counter-Terrorism and Human Rights (Pearson – 651. Ibid, p. 652. Education Limited 2009).

LR 981 p. 996.

255 Ibid, .p. 653. Ibid, .p. 654.

241 J McCulloch and S Pickering, Pre-Crime and Counter-

Te o is : I agi i g Futu e C i e i the Wa o Te o 256 J McCulloch and S Pickering, Pre-Crime and Counter- (2009) 49 (5) British Journal of Criminology 628 p. 633. 242

Te o is : I agi i g Futu e C i e i the Wa o Te o 243 Ibid, p.p.634 – 640.

49 (5) British Journal of Criminology 628, p. 633. 244 Supra note 247, p.p. 271 – 272.

258 ibid, p.p. 634 Supra note 208. – 640. Ibid, p. 661.

Conclusion

Anti-terrorist legislation has a counter-terrorism purpose and counter-terrorist policy is driving the evolution of anti-terrorism strategy. This is reflected in the development of anticipatory offences and is clear from the expression of the strategy as an overarching counter-terrorism national

security

strategy.

hybridisation of the criminal justice model can be detected from the increasing use of executive power. This is reflected in control orders, proscription and the use of financial restraint. In effect there is legal ground lying between the criminal justice model and the war

odel. Whilst the UK does ot ha e a ho ela d se u it odel o pa a le to the U ited “tates, the UK model can be defined as a national security model in which anti-terrorism legislation has the lead role. This has clear implications for human rights as they are in danger of becoming offset as opposed to being an equal interplay of liberty and security. The implications of the emerging imbalance are the UK long-term contribution to the Wa o Te o ould e the fu the a e of extremism

as an

unintended

consequence.

Creating More Turmoil: Why UAV strikes Will Be Counterproductive in Yemen

William Mayborn

Introduction:

This paper seeks to answer the question of focus their ambushes, sniper attacks, and small to whether the U.S. should expand the use of Unmanned

medium sized bombs on the Yemini army and police Aerial Vehicles (UAVs) to execute targeted killings in

forces. 5

Yemen. This is an important question for two reasons: Aside from the two insurgencies, the Yemeni

1) al Qaeda affiliates use Yemen as a safe haven for government is facing dire social, political, and economic planning and executing terrorist operations, and 2) the

challenges: an illiteracy rate greater than 50%, half the current political upheaval in Tunisia, Libiya and Egypt is

population earns less than $2 a day, and 75% of state encouraging further demonstrations and protests in

revenues come from oil resources that are predicted to Yemen. To answer the UAV expansion question this

run dry by 2017. 6 With a population of 23.4 million, 7 paper will examine political instability issues in Yemen,

Yemen has an estimated 250,000 refugees from the al recent Yemeni terrorist activities, current U.S. policy

Houthi insurgency battles. 8 In comparing global index towards Yemen, previous use of a Predator drone in

values, Yemen ranks as one of the worst countries in the Yemen, and ways to improve Yemen-U.S. counter-

areas of Human Development, Failed State, Political terrorism cooperation.

Stability, Government Effectiveness, and Rule of Law. 9 Defense analyst C. C. Brafman Kittner proposes

Yemen Instability and Governance Issues:

that weak governments that are unable to inhibit weapons proliferation, transnational criminal activities,

Yemeni internal political discord continues to and drug trafficking are ideal countries for terrorists to hamper the development of the nation as it contends

find safe havens. She explains that in weak st ates the with two secessionist insurgencies: the Northwest al Houthi insurgency 1

e ee of state so e eig t still e ists a d a a tuall (also referred to as the Believing Youth, or Shabab al Moumineen), 2

shield the terrorist organizations from international

and the

countermeasures. 10 Kittner points to the Yemen comparatively less contentious Southern insurgency. 3 situatio as a e a ple of a e t al go e

ets Ye e i P eside t Ali A dallah “alih s i su ge t

inability to control mountainous border areas inhabited difficulties compound the terrorist problem because

by terrorists and smugglers. 11 In addition, the Yemen insurgent-held areas offer operational space to terrorist

border areas are tribal areas outside of the central groups.

Since 2004, the Yemen and Saudi Arabian

governments have tried to link the al Houthi insurgents

6 Freeman, p. 1013.

to al Qaeda in an attempt to garner international U.S. Senate Committee on Foreign Relations, Al Qaeda in approval of their military focused counter insurgency

Yemen and Somalia: A Ticking Time Bomb, January 21, 2010, methods. Saudi Arabian warplanes attacked al Houthi

U.S. Government Printing Office, pp. 8-9, positions inside Yemen on November 5, 2010; Saudi http://frwebgate.access.gpo.gov/cgi-

A a ia s fi st oss border military intervention since bin/getdoc.cgi?dbname=111_cong_senate_committee_prints& docid=f:54494.pdf, (Dec. 6, 2010).

Other estimates state that the oil reserves will expire by 2020 to insurgents do express disdainful rhetoric against Saudi

1991 when they participated in the Gulf War. 4 Al Houthi

7 2030, see Yemen on the Brink: Implications for U.S. Policy, p. 14. and U.S. governments because both support their

CIA- The World Factbook, Yemen, Central Intelligence Agency, opposition, the Yemen government, but the al Houthi

https://www.cia.gov/library/publications/the-world- insurgents have not attacked Westerners to date. They

8 factbook/geos/ym.html, (Dec. 9, 2010). House of Representatives, Committee on Foreign Affairs,

Yemen on the Brink: Implications for U.S. Policy, February 3, 1

Office of the Coordinator for Counterterrorism, Country 2010, U.S. Government Printing Office, p. 10. Reports on Terrorism 2009, August 5, 2010, U.S. State

http://permanent.access.gpo.gov/lps123153/54939.pdf, (Dec. Department, http://www.state.gov/s/ct/rls/crt/2009/140886.htm, (Nov. 29,

Ed a d Ne a , Weak “tates, “tate Failu e a d Te o is , 2010). 2

Terrorism and Political Violence, 2010, p. 480,

http://www.informaworld.com/smpp/content~db=all~content= Yemen: An Ana l sis of the “ha a al Mou i ee , Studies in

Ja k F ee a , The al Houthi i su ge i the No th of

a783497486~tab=content~order=page 10 , (Nov. 3, 2010). Conflict and Terrorism, 2009, p. 1008.

C istia a C. B af a Kitt e , The ‘ole of “afe Ha e s i http://www.informaworld.com/smpp/content~db=all~content=

Isla ist Te o is , Terrorism and Political Violence, 2007, p. a916106970~frm=titlelink?words=houthi,insurgency,north,yem

3 en,analysis,shabab,moumineen, (Nov. 3, 2010). http://www.informaworld.com/smpp/content~db=all~content= Agence France Presse 18 killed in south Yemen violence this

a780502437~frm=titlelink?words=role,safe,havens,islamist,terr year: report, April 17, 2010, Google News,

orism (Nov. 3, 2010).

http://www.google.com/hostednews/afp/article/ALeqM5gpQH 11 Kittner, p. 309. Kittner makes an interesting observation that bHPPIGbgzBxShvlEhgwurgLw, (Dec. 7, 2010).

honey smuggling from Yemen into Saudi Arabia is a lucrative 4 Joost ‘. Hilte a , Diso de o the Bo de , Foreign Affairs, trade for terrorists, and the honey containers are often

December 16, 2009, o side ed too ess fo the usto i spe to s. Thus, ho e http://www.foreignaffairs.com/articles/65730/joost-r-

containers are perfect for concealing drugs, arms, gold, hiltermann/disorder-on-the-border, (Nov. 3, 2010).

electronic equipment and cash.

2010 printer cartridge bombs. go e 20 e t s autho it , a d the ofte offe hospitalit Also, it should be noted to Islamist terrorists. 12 that the Fort Hood shooting 21 can be linked to Yemen- In January 2011, Secretary of State Hillary Clinton

based American imam, Anwar al-Awlaki. 22 visited Yemen and expressed her fears concerning the political fragility of the country. With the recent events

Current U.S. Policy:

i Tu isia a d Eg pt, the se eta s fea s a e ei g realized as demonstrations in southern Yemen and in the

The U.“. go e

e t e og izes that Ye e s

insurgent and terrorist security challenges are hindering current Salih government could lead to further unrest in

capital have increased in fervency. 13 The removal of the

the social, economic and political development the country and encourage more Islamist terrorist

problems; therefore, U.S. foreign policy toward Yemen organizations to seek safe haven in Yemen. 23 atte pts to e holisti a d fle i le. The current

policy seeks to accomplish two goals:

Yemeni Terror Operations:

“t e gthe the Go e e t of Ye e s a ilit to Yemeni based terrorism came to the forefront of

promote security and minimize the threat from U.S. attention when the U.S.S. Cole was attacked on

violent extremists within its borders. October 12, 2000 killing 17 U.S. Navy personnel, and

Mitigate Ye e s e o o i isis a d defi ie ies wounding 39. 14

The atio e pe ie ed a in government capacity, provision of services, ief pe iod transparency, and adherence to the rule of law. 24 of al due to su essful egotiatio s et ee the Yemen government and extremists, and improved U.S.-

The U.S. government has sought to help refugees

from the al Houthi insurgency with $7.4 million in food 2004, Al Qaeda and Sunni Islamists in Yemen reacted to

Yemeni counter-terrorism cooperation. 15 However, after

aid, $3.1 million in relief aid, and $4.4 million in refugee the U.S. invasion of Iraq by attacking Western targets

assistance aid. 16 25 At present, U.S. military aid is an and Yemen security targets.

illio to assist Ye e s ou te - was on the U.S. Embassy in S a a a o “epte

The most notable attack

esti ated $

terrorism efforts by providing helicopters, materials, and 2008 killing eleven Yemeni civilian security personnel.

U.S. Special Forces trainers. 26 U.S. military leaders plan The U.S. State Department responded by evacuating all

to increase military aid in 2011 to an estimated $250 o esse tial pe so el f o the “a a a e ass . 17 million. 27 The U.S. State Department report implies that

The terrorist threat in Yemen became increasingly these counter-terrorism resources led to four successes adverse in January 2009 when al Qaeda Yemen (AQY)

in 2009:

and Al Qaeda elements in Saudi Arabia merged to form

al Qaeda in the Arabian Peninsula (AQAP). After the (1) January 19, 2009, the Yemen Counter-terrorism creation of AQAP there was an increase in terrorist

Unit raided an AQ cell in the apital it of “a a a planning and recruitment for operations in Saudi Arabia

killing two suspects, capturing one suspect and and against foreign nationals in Yemen. 18

confiscation of a large weapons cache containing has also produced an increase in attempts to bomb U.S.

The merger

machine guns, RPGs and mortars. domestic targets from Yemen: for example, the

(2) March 2009, successful arrest of a Saudi AQAP

Ch ist as 19 u de ea o e and the October

e e i Ta iz, Ye e . (3) June 2009, successful arrest and surrender of a

Saudi AQAP member and a Saudi AQAP financier,

Hasan Hessian bin Alwan.

12 Ibid, p. 311.

13 Nad a Bak i a d J. Da id Good a , Thousands in Yemen 20 Fo P i te a t idge o plot details see Bo as P otest Agai st the Go e

designed to explode on cargo plane – UK PM , British 2011,

e t, New York Times, January 27,

Broadcasting Corporation, October 30, 2010, http://www.nytimes.com/2011/01/28/world/middleeast/28ye

http://www.bbc.co.uk/news/world-us-canada-11657486, (Dec. 14 men.html?_r=1&scp=2&sq=Yemen&st=cse, (Jan. 29, 2011). Seth G. Jones and Martin C. Libicki, How terrorist groups end:

21 For Fort Hood shooting details see Elisabeth Bumiller and 8, 2010). lesso s for ou teri g al Qa ida, RAND MG741-1, RAND

“ ott “ha e, Pe tago ‘epo t o Fo t Hood Details Failu es , Corporation,

New York Times, January 15, 2010, http://www.rand.org/content/dam/rand/pubs/monographs/20

http://www.nytimes.com/2010/01/16/us/politics/16hasan.html 15 08/RAND_MG741-1.pdf, (Nov. 29, 2010) p. 187.

22 , (Dec. 8, 2010).

16 Al Qaeda in Yemen and Somalia: A Ticking Time Bomb, p. 11. 23 Ibid, p. 12. Al Qaeda in Yemen and Somalia: A Ticking Time Bomb, p. 9. Yemen on the Brink: Implications for U.S. Policy, p. 10.

18 Ibid, p. 8.

24 Ibid, p. 10.

25 House of Representatives, Committee on Foreign Affairs, March 15, 2009- Four South Korean tourists were killed in a

Country Reports on Terrorism 2009 .

26 Ye e o the B i k: I pli atio s fo U.“. Poli suicide bomb attack. , p. . Da , U“ eighs optio s agai st ilita t th eat i Ye e , March 18, 2009- South Korean government motorcade was

November 2, 2010, http://www.dawn.com/2010/11/02/us- attacked by a suicide bomb attack.

weighs-options-against-militant-threat-in-yemen.html, (Dec. 7, June 2009- N i e fo eig e s e e kid apped i “a ada, Ye e :

three confirmed deaths, six still missing.

G eg Mille , G eg Jaffe a d Ka e DeYou g, U.“. deplo i g Fo U de ea o e details see “te e E la ge , Ye e

drones in Yemen to hunt for Al- Qaeda, has et to fi e issiles , “a s Bo

“uspe t Met With Qaeda Figu es , New York Times, Washington Post, November 7, 2010. January 7, 2010,

http://www.washingtonpost.com/wp- http://www.nytimes.com/2010/01/08/world/middleeast/08ye

dyn/content/article/2010/11/06/AR2010110604454_pf.html, men.html, (Dec. 8, 2010).

(Dec. 9, 2010).

(4) December 17, 2009 and December 24, 2009, two 28 Policy Recommendations:

AQAP sites were struck.

The above policy indicators of increased military These are important successes because they display

assistance and training, combined with greater Ye e i P eside t Ali “alih s esol e to atta k al Qaeda

intelligence gathering capabilities show that the Obama bases and operatives, and counters previous rumors that

administration is moving towards increased UAV use in the president owed Osama bin Laden a debt of gratitude

29 the next 12 to 18 months. 37 for quelling a 1994 separatist movement. This paper recommends that expanded UAV use to launch tactical strikes is not

an advisable course of action given the fragile political

Previous Predator Use in Yemen:

situation in Yemen. UAVs may bring about tactical success, but will hamper the long-term strategic goals of In November 2002 the U.S. ordered a Predator 30 defeating AQAP for several reasons.

strike on al Qaeda operative, Al Harethi, as his car was driving away from a civilian area. 31 Al Harethi was a key First, UAV targeted killings should not be used in Yemen because counter-terrorism needs to be suspect in the U.S.S. Cole bombing of October, 2000. 32 performed by a police force, not the military. The UAVs In response the Yemeni government presented a façade

should be used for intelligence collection purposes to of disapproval to assuage the grumbling and complaints

support the police mission. It should be noted that the of Yemeni citizens, but it is well documented that the

Yemeni police were largely responsible for bringing an Yemeni

ed s cooperation with the U.S. prior to and after November

government increased

counter-terrorism

e d to a p e ious Ye e i te o ist g oup, Moha

Previous Yemen counter-terrorism operations to Effe ti e poli i g i I a s A a P o i e i capture Al Harethi on the Yemen-Saudi border cost the

34 Yemen military dearly in December 2001. offers another example of how a state can successfully Criticism of

e adi ate al Qaeda s p ese e. The U.“. assisted A a the strike from General Yahya al Mutawakel, Deputy

police force gained legitimacy from the local tribal Ge e al of the People s Co g ess Pa t , o e ed ot

sheikhs that formed the Anbar Salvation Council who the st ike s o u e e, but the acknowledgement that

were willing to fight al Qaeda in Iraq. 39 This supports the the strike violated a secrecy agreement between Yemen

35 and the United States. testimony of Mark Cochrane, Former Chief of Training for the Police Service of Northern Ireland, when he

The November 2002 Predator attack is the only asserted that counter-terrorism is a police issue. 40 known use of Predator UAVs for targeted killing in

To support police efforts Yemeni law makers will Yemen. In contrast, the United States has had significant

need to stop stalling and pass effective counter- success in targeting al Qaeda and Taliban leaders with

terrorism laws. It has been cited that the absence of UAVs in Pakistan. In September and October 2010, the

counter- te o is legislatio e ha es Ye e s appeal United States launched 38 UAV attacks in Pakistan. The

as a terrorist safe haven and operational base. Yemeni difference in Predator UAV usage in Pakistan and Yemen

prosecutors often use other vague laws to prosecute is explained as a function of intelligence. Defense

terrorists, such as fraudulent document charges or gang experts cite the amount of intelligence on the Taliban

membership charges. 41 In addition, the Yemen and al Qaeda operations in Pakistan is nearing ten years

government will need to invest in secure prisons of collection while Yemen collection is just beginning.

because they have a history of prison escapes freeing U.S. officials are signaling that an increase in the number

dangerous operatives. 42 For example, in 2006 a group of of CIA operatives, U.S. Special Forces teams, and NSA

al Qaeda leaders escaped from a Yemeni prison. 43 signal intelligence collectors moving into Yemen may

36 rectify the intelligence collection deficiency. The second reason that the U.S. should avoid expansion of Predator attacks in Yemen is that

intervention in the area could create a significant

a klash f o a populatio that is ofte hostile to the

U ited “tates. 44 Middle East expert Joost Hiltermann

Offi e of the Coo di ato fo Cou te te o is , Cou t explains that foreign backing of the President Ali 29 Reports on Terr o is

A dallah “alih s egi e akes hi appear ineffective in Willia C. Ba ks, Legal “a tua ies a d P edato “t ikes i controlling the affairs of the country; therefore, the use

the Wa o Te o , i Mi hael A. I es, ed., Denial of Sanctuary: Understanding Terrorist Safe Havens, (London:

of UAVs ould da age the Ye e i go e 45 ets Praeger Security International), p. 117. For more information

legitimacy.

on the history of Islamist extremism in Yemen in the 1980s and 1990s see: Al Qaeda in Yemen and Somalia: A Ticking Time Bomb, p. 11.

30 For technical information on Predator UAVs see Banks pp.

38 Ibid. Jones and Libicki, p. 167.

114-115.

40 by the death of Kamal Derwish, an American citizen, who was Ibid, pp. 90-94. Ma k Co h a e, The I po ta e of I tellige e i No the

31 Banks, pp. 116 and 117. This Predator strike was complicated

32 riding in the car with Al Harethi (see p. 120). I ela d s Co fli t – A P a titio e s Pe spe ti e , “ o oft Ibid, p. 114.

International Affairs Seminar, November 12, 2010. 33 Banks, pp. 116-17.

41 Country Reports on Terrorism 2009 . 34 Ibid, p. 116. No details were provided on the exact amount of

42 Al Qaeda in Yemen and Somalia: A Ticking Time Bomb, p. 12. Yemeni military casualties.

44 Yemen on the Brink: Implications for U.S. Policy, p. 9. 36 Ibid, p. 121. Miller, Jaffe and DeYoung.

45 Hilte a , Diso de o the Bo de . Al Qaeda in Yemen and Somalia: A Ticking Time Bomb, p. 8.

Foreign military presence or evidence of their attacks can exacerbate the already hostile attitudes towards the United States and Western allies. In his work, Dying to Win, Robert Pape stated:

Although multiple factors are at work, consideration of the most prominent suicide attacks in 2005 shows that the strategic logic of suicide terrorism —and especially the presence of Western combat forces in Iraq and on the Arabian Peninsula —remains the core

factor driving the threat we face. 46

‘o e t Pape s positio a e see i the Ye e i context when looking at the effects of the May 2010 cruise missile strikes against AQAP. The attack had deleterious effects on U.S.-Yemen relations because a Yemeni deputy governor was killed who was purportedly

was having disarmament negotiations with al Qaeda. Also, locals staged mass protests in Marib Province after they found U.S. markings on cluster munitions. President Salih was forced to respond with troops to

quell the tribal protests. 47

Yemen state officials speak to the drawbacks of potential UAV strikes as being counterproductive. As Mohammed A. Abdulahoum, a senior Yemeni official

a sked, Wh gain enemies right now? Americans are not rejected in Yemen; the West is respected. Why waste all this for one or two strikes when you don't know who

ou' e st iki g?

Conclusion

The U.S. should avoid use of UAVs for targeted killing in Yemen to avoid harming the legitimacy of the Yemen central government and keep counterterrorism in the hands of law enforcement rather than the military. The Yemen state has serious political, social, and economic issues that are compounded by insurgents and terrorists and cannot afford increased instability. To keep the Salih regime as an ally, the U.S. cannot use

tools that create local animosity and instability. 48 The

U.S. should engage in constructive efforts to build an effective Yemeni police force and counter-terrorism units that can pursue AQAP operatives. These constructive efforts could include UAVs for intelligence gathering purposes, rather than counterproductive missile strikes.

46 R. A. Pape, Dying to Win: Why Suicide Terrorists Do It,

47 (London: Gibson Square Books, 2006; 1 edn. 2005), pp. v-vi. 48 Miller, Jaffe and DeYoung. Banks, p. 123.

st

Somali Piracy and the Western Response

Brendon Noto

Introduction

September 9, 2010, Captain Alexander Martin and

The U“ Na s a ti-piracy mission has evolved into

its second phase demonstrating policy ake s g udgi g climbed onboard the Motor Vessel Magellan Star, which

23 Marines, of the 15

th

Marine Expeditionary Unit,

willingness to see piracy for what it is. The first phase had been hijacked by Somali pirates the previous day.

i ol ed the U“ Na s use of ships a d e uip e t, The boarding was the latest example of the U “ ilita s

which were designed for radically different missions, for willingness to use force in order to rescue hostage

anti-piracy operations. The second phase began when sailors. 1 Western navies have used force to in order to

the US Navy began transforming its existing resources to remove Somali pirates from hijacked ships with

the anti-piracy mission. A third phase could further increased frequency. It is likely that this will result in

improve US anti-piracy operations if the US Navy increased casualties in what was the relatively peaceful

designed ships and equipment specifically for anti-piracy practice of Somali piracy.

operations. If piracy is a result of globalization and failed Piracy became a threat to shipping after the

states, it is only a matter of time before the third phase ollapse of “o alia s go e

becomes a reality because piracy will spread to other emergence as a, if not the, failed state. This threat,

eti

, a d “o alia s

failed states in littoral regions.

which has conjured images of pirates from the Caribbean Piracy will persist until there is a stable or the Barbary states, should not be ignored as a threat

government that pacifies Somalia. There are steps that from the past. Somali pirates have shown the

can and should be taken in order to discourage piracy willingness and the ability to attack energy and weapons

and promote stability in Somalia until that happens. shipments. The Gulf of Aden is the sea lane used to

Adapting and designing resources for the anti-piracy transport the majority of Eur ope s oil f o the Middle

mission is just one of those steps. Others include East. If left unchecked piracy could have a negative

prosecuting pirates, arming merchant ships that impact on Western quality of life, and have a

transport critical supplies, and supporting the African destabilizing effect on East Africa.

U io s AU pea ekeepi g effo ts i “o alia. It is up to Piracy is an internationally recognized crime, but

the Somali people to eliminate the practice of piracy in Western states have been of two minds about it.

the Horn of Africa (HOA), but the West can, and should, America and the European Union (EU), which have

take all necessary measures to prevent it, and to create shown a willingness to send ships to protect

an atmosphere that encourages the formation a stable international shipping, lost interest when it was time to

government in Somalia.

prosecute pirates. This duality of purpose was a symptom of how policy makers saw pirates as potential

I: Somali History

terrorists on one hand, and obsolete criminals on the other. Until Western leaders stop exaggerating the

When World War II ended, Great Britain ruled over threat of piracy by linking it with terrorism without

s, “o alia was divided evidence to support such claims, and ridiculing pirates as

a u ified “o alia. I the

between British and Italian UN Trusteeships. 2 In July 3 an anachronistic threat, they will not develop a coherent

1960, the two territories were granted independence. policy to address the threat.

“o alia s P eside t A di ‘ashid Ali “he a ke as Combined Task Forces (CTF) 150 and 151,

assassinated in 1969, and Major General Mohamed Siad Operations Atatlanta and Ocean Shield, have shown the 4 Barre took over the reins of the Somali government.

Weste Na ies a ilit to di e t pi ate atta ks f o the Barre ruled Somalia during the 1970s and 1980s, but 5 Gulf of Aden to the Indian Ocean. They have also shown

stability under Barre would not last. Though the Barre the West s i a ilit to stop “o ali pi a altogethe ,

e t did ot fall u til Ja ua , a ple something that the Supreme Council of Islamic Courts

go e

evidence suggests that by the mid-1980s Somalia was (SCIC) accomplished, when it consolidated power in 6 already a failed state. Once Barre was deposed,

southern Somalia. US leaders have spoken about the Somalia fell into civil war and broke apart into regions necessity of a land option in order to end the pirate attacks. If piracy was a threat as dangerous as

international terrorism would the US have convinced 2 “o alia - Trusteeship and Protectorate: The Road to Ethiopia to invade Somalia in order to evict the Independen

e, Country Studies, available at http://countrystudies.us/somalia/14.htm (accessed October 14,

fundamentalist Islamic regime?

3 Ke eth Joh Me khaus, Go e a e ithout Go e eti “o alia “poile s, “tate Buildi g a d Politi s of Copi g,

International Security, 31, no. 3 (2006): 74-106. Ale a de Ma ti , E olutio of a “hip Takedo , 4 D . ‘a ee Khooshie Lal Pa ja i, The Pi ates of “o alia: Proceedings, 136 (November 2010), 38-41, and Alexander

e tal P e ? William & Ma ti , The Magella “ta : Pi ate Takedo , Fo e ‘e o

Oppo tu isti P edato s o E i o

Mary Environmental Law & Policy Review, 34, no. 1 (2010): 396. “t le, US Naval Institute, September 2010, available at

5 Ki e l )isk Ma te , Wa lo dis i Co pa ati e http://blog.usni.org/2010/09/10/the-magellan-star.

6 Perspec ti e, International Security, 31, no. 3 (2006): 52. Menkhaus, 80.

ruled by warlords, the most powerful being General of this region, which calls into question the ability or the Mohammed Farah Aideed.

will of the Puntland government to police its own In 1992, warlords agreed to a ceasefire, United

Pu tla d s po t it E l is a oto ious pi ate Nevertheless, the Puntland government claims UNO“OM I, a d at this poi t, P eside t Geo ge H.W.

territory. 15

Nations (UN) intervention arrived in the form of

haven. 16

to suppo t the T a sitio al Co stitutio a d is st i i g Bush made the fateful decision to lead a large-scale

for the unity of the Somali people and the creation of a

7 i te atio al i te e tio to halt the ass sta atio . 17 “o ali go e e t.

Later under President Bill Clinton, the US would lead UN Operation Restore Hope and UNOSOM II, a more

Somalia

ambitious policy with less clearly defined goals. As a result of the Mogadishu incident on October 3-4, 1993,

The southern half of Somalia has lacked an when 18 American soldiers died, the US decided to

operational government since General Barre was abandon its effort to restore stability to Somalia. 8 o e th o i

a d se es as the lo gest-running After the failure of Operation Restore Hope,

instance of complete state collapse in postcolonial Somalia has not had a unified government. Despite

In 2008, 2009, and 2010, Foreign Policy resistance from the international governing bodies to

histo . 18

ranked Somalia the most failed state in the world, 19 and recognize breakaway governments, Somalia has split

it has been in the top ten since the Failed State Index was created in 2005. i to th ee sepa ate egio s e ause “o alila d a d 20 Somalia has seen the rise of two Puntland, have separated the former declaring

major radical Islamic militias and has been a haven for independence in 1991 and the latter declaring autonomy

warlords and civil war. UN food aid is a common target i

. 9 of theft by warlords, which, when coupled with a major drought, has contributed to the displacement of over a

million people, causing half a million refugees to flee Somalia. 21 The international community supported the Somaliland has enjoyed a stable government since

Somaliland and Puntland

, the latest of o e tha a 1996, despite a lack of international recognition.

eatio of the TFG i

dozen attempts to re- eate a fu tio i g state… et Ke eth Me khaus epo ted, “o alila d has also built

remained unable even to establish a base in up a

odest ut fu tio al state st u tu e. 10 Mogadishu. 22 The TFG governed Somalia from Kenya in Somaliland has been relatively peaceful compared to the

2006, and President, Abdullahi Yusuf Ahmed, did not rest of Somalia because its population has strong clan

appea i Mogadishu u til

due to the TFG s

inability to control large areas of the country. 23 include support of business leade s, P eside t Egal s

ties and its clans have promoted peace. 11 Other factors

By 2006, the SCIC, also called the Union of Islamic leade ship, a d the populatio s

it e t… to

Courts (UIC), had achieved dominance over most of pea e a d ule of la , hi h has helped u if the 12 southern and central Somalia and brought order to 24

society. Mogadishu. 25 The SCIC banned the charcoal and drug The international community refuses to support

26 controlled, effectively stamped out piracy in areas it 27 “o alila d e ause the est of “o alia does ot a t

trades,

and took active steps to combat piracy. it, 13 and there are fears that it could set a precedent

Anthony Davis said:

that would spark future breakaway states in other African countries. 14 By granting support to the Somali Transitional Federal Government (TFG) as opposed to

the government of Somaliland, the international 15 Moha ed Ado , The pi ate ki gs of Pu tla d, AJE - Al community shows a lack of understanding of Jazeera English, 16 Oct. 2010, available at “o alia s

http://english.aljazeera.net/news/africa/2009/06/20096141252 political situation and a refusal to engage in policies that

45860630.html.

help the Somali people. 16 Ma Ha pe , Life i “o alia's pi ate to , BBC News, 18 Puntland was the second unrecognized breakaway

Sept. 2008, 16 Oct. 2010, available at region of Somalia, and most pirate activity is based out

http://news.bbc.co.uk/2/hi/7623329.stm. 17 Pu tla d “tate P ofile, Puntland, 15 Oct. 2010, available at

www.puntland-gov.net/profile.asp.

7 ‘.D. Hooke , J‘, Ha d Da 's Night: A ‘et ospe ti e o the 18

19 Menkhaus, 74.

Failed “tates I de , Foreign Policy, 16 Oct. 2010, 8 no. 3 (2009): 129.

A e i a I te e tio i “o alia, Joint Force Quarterly, 54,

The

20 Ibid., 133, and Michael Miklaucic, and Robe available at http://www.foreignpolicy.com/failedstates. The Failed “tates I de , Foreign Policy, Jul/Aug.149 (2005): Be o d the Cold Wa : Pakista a d “o alia, I

t B. Oakle , Essa

56-65.

Commanding Heights: Strategic Lessons From Complex

22 Panjabi, 392.

Operations, Washington DC: The Center for Complex Operations

23 and the Center for Technology and National Security Policy, Marten, 53. Panjabi, 407. 2009. 145-47.

27 Marten, 53. Panjabi , 412. Frederic P. Miller, Agnes F. Vandome, and John McBrewster, 12 Menkhaus, 93.

Piracy in Somalia: Piracy in Somalia, International Maritime “o alila d A No ad's Life is Ha d, The Economist, August

Bureau, List of ships attacked by Somali pirates, Operation 55, 1999, available at

Enduring Freedom - Horn of Africa, Operation Atatlanta, 14 http://www.economist.com/node/230314/print.

Combined Task Force 150, Basel Convention (Hagerstown: Menkhaus, 92.

Alphascript, 2009), 1.

The UIC announced that they would punish those control over its territory and borders. A failed state engaged in piracy... For a time the incidents ceased,

is one that can no longer reproduce the conditions until they struck the United Arab Emirates cargo

for its own existence. 34 ship, MV Veesham I … The UIC i espo se… recaptured the vessel and rescued the crew after a gun battle with the pirates. 28

Thus a failed state has no functional government, military, and lacks control over its borders. This applies to southern and central Somalia since 1991. Piracy as

The lull in piracy did not last because international defi ed the UN i the Co e tio of the La of the politics portrayed the SCIC as Islamic fundamentalists.

“ea

The potential threat of a jihadist government in Somalia Article 101 Definition of Piracy out eighed the “CIC s a ti-piracy policy to Western

Piracy consists of any of the following acts: policy makers. Due to the perceived threat from the SCIC, and US

(a) any illegal acts of violence or detention, or pressure to destroy a potential Islamic terrorist sponsor,

any act of depredation, committed for private Ethiopia – a regional United States ally – invaded

ends by the crew or the passengers of a private Somalia in late 2006 and brought down the SCIC. ship or a private aircraft, and directed: 29 At (i) on the high seas, against another ship or

the Djibouti Peace Agreement of 2008, Ethiopia, agreed aircraft, or against persons or property on

board such ship or aircraft; by the Ethiopian invasion the Shabab Militia emerged as

to withdraw its troops. 30 In the power vacuum created

(ii) against a ship, aircraft, persons or property

in a place outside the jurisdiction of any State; “age said its su ess as less a i di ato of its o

the dominant player in southern Somalia. 31 Andre Le

(b) any act of voluntary participation in the strength, and more a function of the weakness of... the

operation of a ship or of an aircraft with TFG. 32 The Shabab Militia has been linked to al-Qaeda,

knowledge of facts making it a pirate ship or including running terrorist training camps, and stopped aircraft; (c) any act of inciting or of intentionally

UN food aid shipments. The Economist reported that facilitating an act described in subparagraph (a) Shabab, is even more radical than the Islamic Courts

or (b). 35

movement which the Americans and Ethiopians originally took on. It is suspected of being linked by

33 In summary, piracy is a violent attack committed o e to the pi ates… a d ideolog to al-Qaeda.

o the high seas p i ate i di iduals. “o alia is a Thus international support for the TFG has led to the

failed state since 1991, and Somalis who commit violent eviction of the SCIC, who combated piracy and crime,

acts, such as hijacking ships in the Gulf of Aden or the and has caused the rise of the Shabab Militia a group

Indian Ocean are pirates.

tied to both al-Qaeda and pirates.

Types of Piracy

II: Modern Piracy

The International Maritime Bureau (IMB) outlined Modern piracy originates primarily from failed

th ee t pes of pi a : Lo -Le el A ed ‘o e … states. In order to eliminate confusion that may arise

Medium- Le el A ed Assault a d ‘o e MLAA‘ … from the use of terms, two terms will be defined: failed

a d Majo C i i al Hija k. “o ali pi a ost state, and piracy. A failed state, according to the Crisis

ese les MLAA‘, hi h is des i ed as atta ks f o State Research Center, is a state that is in

well organized gangs comprising 10 to 30 heavily armed

36 A o ditio of state ollapse – e.g. a state that can e

e … pi ates, espe iall off “o alia… take

Somali pirates rarely kill prisoners; no longer perform its basic security, and

e e s hostage.

most violent deaths resulted from shootouts with naval development functions and that has no effective

personnel who attempted to free the prisoners. 37

28 The e a e th ee a eas he e the atta k o u s:

Anthony M. Davis, Terrorism and the Maritime Transportation Pi a At Pie … Pi a At A ho age… Pi a Agai st

System Are We on a Collision Course? (Livermore: Wingspan “hips U de a , a d though the e ha e ee i sta es 2008) 119-20.

of food aid being hijacked at pier, the vast majority of

29 Napoleo A. Ba fo, Ethiopia's I asio of “o alia i :

Moti es a d Lesso s Lea ed, African Journal of Political

Science and International Relations, 4:2 (2010): 59-61.

C isis, F agile a d Failed “tates Defi itio s used the Modalities fo I ple e tatio of Cessatio of A ed

C“‘C, Crisis State Research Center, available at Co f o tatio , United Nations Political Office for Somalia, 26

www.crisisstates.com/download/drc/FailedState.pdf. Oct. 2008, 18 Oct. 2010, available at

35 P ea le to the U ited Natio s Co e tio o the La of unpos.unmissions.org/Portals/UNPOS/Repository%20UNPOS/0

the “ea, United Nations, available at 81026%20-

http://www.un.org/Depts/los/convention_agreements/texts/u %20Modalities%20for%20Implementation%20of%20Cessation%

nclos/part7.htm. 31 20of%20Armed%20Confrontation.pdf. 36

A d e Le “age, “o alia's E dless T a sitio : B eaki g the Mi hael “teh , Mode Pi a : G o i g Th eat to “hipping, Deadlo k, Strategic Forum, 257 (2010): 1-2. CSR Strategic

Cou te Th eat Te h olog a d Ta ti s, Naval Forces, 26, no. 5 Forum. Web. 18 Oct. 2010.

33 Le Sage, 4. Da id A e, Thi gs You Did 't K o A out “o ali Pi ates, “o alila d A a h i “o alia: The La less Ho , The

Wall Street Journal, April 27, 2009, available at Economist, November 20, 2008, available at

http://online.wsj.com/article/sb124060718735454125.html?KE http://www.economist.com/node/12637009/print.

YWORDS=somali+piracy.

Somali acts of piracy have been against ships underway Oil shipments are particularly vulnerable to pirate and

attacks due to their low freeboard (the distance between water and deck of a ship). Yet, it is an

Piracy against ships underway offers a lot of exaggeration to imply that Somali pirates would be able opportunities but requires also some nautical

to blockade a major straight, such as the Gulf of Aden, abilities and suitable vessels. There are three

for days on end. The US fifth and sixth fleets maintain a a ia ts… sho t-te seizu e… lo g-te seizu e…

pe a e t seizu e… the pi ates a e usuall hea il constant presence in the vicinity of the choke points that armed with automatic weapons, grenade launchers

connect the Mediterranean Sea and the Persian Gulf. and other military equipment. 38 US Navy leadership had a policy of equating piracy

with terrorism, linking pirate networks with terrorist “o ali pi a ost ese les lo g-term seizure

networks, and making piracy appear as dangerous to

he e pi ates a e stea i g the ship to a se et pla e, international and US national security as terrorism, and and from there the pirates demand a ransom for the

implied piracy was a critical threat to maritime security. ship, cargo and crew. 39 Furthermore, the claim could be made that Somali

pirates were eco-terrorists, but eco-terrorism is not as

Piracy and Terrorism

dangerous to international order as jihadist terrorists such as al-Qaeda. The threat of Somali eco-terrorism, if

The US Navy leadership exaggerates the threat Somali eco-terrorists exist, does not extend beyond the posed by piracy by linking pirates to terrorists and

confines of Somali territorial waters. Yet claims that downplays the threat by comparing modern pirates with

Somali pirates were dangerous to world order have been their historical counterparts. The threat to international

made along with comments that compare the Somali shipping is relatively small, with the exception of energy

pirates to the Barbary corsairs. This shows a duality of shipments, but raises the cost of shipping. However,

US naval policy. Pirates were both dangerous and piracy has only been linked to terrorism by superficial

comical. In 2006, CNO Mullen both compared the associations.

their eighteenth century US Navy Chief of Naval Operations (CNO) and

counterparts and exaggerated the threat when he said: “e eta s of the Na “ECNAV all pi ates te o ists o

try to link the two. Statements by Navy leaders show Glo alizatio … te o ists, p olife ato s of W-M-D that linking piracy and terrorism was US Navy policy. In

and other weapons, organized criminals, smugglers, CNO Ve Cla k said pi ates a e o du ti g drug traffickers and pirates. Yes, pirates. Only today they sail the seas with satellite phones and

premeditated, politically motivated violence against laser-guided weapons instead of cutlasses and

i o e t seafa e s. That is usi g te o , that s

muskets. 40 43

I “ECNAV E gla d said te o ists have already shown an ability to exploit the seas with

te o is .

Most recently CNO Roughead stated that attacks such as USS Cole and links to piracy and smuggli

g. 41 In 2005 CNO Mullen warned that piracy Consider the age old naval task of convoying... this could shut down important sea lanes:

was something we did in our navy to counter the Barbary pirates in the 19th century... if you think the

Pi a … It is a glo al th eat to se u it e ause of value of convoying or protecting trade has its deepening ties to international criminal

di i ished: o side the Gulf of Ade … the th eat networks, smuggling of hazardous cargoes, and

of pirates against commercial shipping in the Gulf of disruption of vital commerce. Imagine a major

Aden was enough of a concern to bring together an international Fleet of ships. seaport or international strait that handles the flow 44

of hundreds of ships and thousands of containers each day – i agi e that iti al

The US Navy has a proud heritage and enjoys o ld s e o o ippled o dis upted fo da s o

ode of the

relating current events to past victories; however this weeks or months. 42 practice can confuse the issue. The Barbary pirates have

little in common with their Somali counterparts. Rather than connecting piracy with terrorism, exaggerating the

threat of piracy, or making pirates appear like something

39 Stehr, 20-21. from the past, Navy leaders should address the true 40 Ibid.. 21.

threat that piracy poses to the international community Ve Cla k, Edited ‘e a ks, “pee h, International Seapower and regions directly affected.

Symposium, Naval War College, Newport, R.I. October 27, 2003, available at http://www. navy.mil/navydata/people/cno/speeches/clark031027.txt.

Mike Mulle , ‘e a ks as Deli e ed, “pee h, Current Go do ‘. E gla d, ‘e a ks B , “pee h, The Naval Institute

Strategy Forum, Naval War College, Newport, RI. June 14, Warfighter s “ posiu , Virginia Beach, VA, September 29,

2006, available at

2004, available at http://www. www.navy.mil/navydata/people/cno/mullen/cno_csf140606.pd navy.mil/navydata/people/secnav/England/speeches/england0

f.

40929.txt. 44 Ga ‘oughead, Deli e s ‘e a ks at the Co fe e e of

Defe se Asso iatio s, “pee h, Conference of Defense “eapo e “ posiu , “pee h, National Defense University,

42 Mike Mulle , ‘e a ks as Deli e ed for the 17 th International

Associations, Ottawa, Canada. March 3, 2010, available at Washington, DC, August 16, 2005, available at http://www.

http://www.navy.mil/navydata/people/cno/Roughead/Speech/ navy.mil/navydata/people/cno/mullen/speeches/mullen05092

100303%20Remarks%20as%20delivered%20at%20the%20Conf 1.txt.

erence%20of%20Defence%20Associations%20FINAL.doc.

Experts have disagreed with the pirate-terrorist Somali pirates may have begun their operations li k fo e a ple Ma ti Mu ph stated that

targeting foreign fishermen, but they descended into comes to piracy itself, there is no worthwhile evidence,

he it

profiteering and criminality.

despite the speculation, of any cooperation between Somali pirates fit the definition of piracy; they are pi ates a d i su ge t/te o ists, 45 and in Small Boats, not state-sponsored and they commit violence on the

Weak States, Dirty Money he wrote: high seas. They are not terrorists, and there are no verified links that connect Somali pirates with terrorists.

Since the events of 9/11, a strain in security Somali pirates are criminals and the threat they pose to discourse has yoked piracy and maritime terrorism

the international community and East Africa should not together; has viewed them as complementary to

be exaggerated, nor blown off as a comical anachronistic the point where some commentators has suggest that a pi a -te o is e us e ists o ight exist threat indicative of the distant past.

in the future. The impetus behind this can again be

traced to the false analogy between aircraft and

III: Somali Piracy

ships which led to the suggestion that pirates could help terrorists learn how to steal and control ships

Money is the motivating force behind Somali fo atta k pu poses. Ne us is a e ocative word

piracy. Somalia has no functional economy, and ransom that needs to be used with care because, in this

payments from hijacked ships inject millions of dollars context, it can gloss over the motivational and

into the region. It was estimated that in 2008, ransoms operational reasons that generally keep criminals

and terrorists apart and imply an instrumentality inje ted $ illio i to Pu tla d s e o o . Pi a has

that does not exist. 46 also become a prestigious career due to the relative wealth of pirates compared to average Somalis. 52 The Thus if the Somali pirates are not connected to

average pirate is believed to make more than $20,000 terrorists, the final question regarding this subject is, are 53 each year, compared to the average per capita GDP of

Somali pirates eco-terrorists? Somali of around $600 a year; the average pirate is Some Somali pirates claim that they are protecting 54 rich. Perhaps as much as 20% of the ransom money is

their waters from over fishing and toxic waste dumping, reinvested in the Somali economy, 55 but David Axe said and as early as 1995 Somali political leaders complained

that osses a pull i $ illio a ea ... a pi ates

are heading for greener pastures, and real money is figures exist, but it was estimated that Somali fishermen

about the illegal practices to the UN and EU. 47 No exact

flo i g out of the ou t ith the . 56 Thus, piracy for lose roughly $100 to $300 million a year due to foreign

Somalia is a mixed blessing. It injects cash into the

economy, but this causes detriments including inflation tsunami, the UN acknowledged that barrels which

ships illegally fishing in Somali waters. 48 After the 2004

and the fear of piracy, which has forced the UN to use contained nuclear waste had washed up on Somali

more expensive overland food aid shipments, and most shores, and believed that the Somali people were being 57 of the ransom money leaves Somalia.

poisoned by the toxic waste that had been dumped in

their waters. 49 In response to the illegal activity during

Pirate Tactics and Methodology

the 1990s, Somali fishermen joined forces and began

charging foreign fishermen a toll to fish in Somali The pirates operate off of the eastern coast of waters. 50 Though the Somali pirate-fishermen may have

Somali, and, according to the BBC, there are three types. had a noble beginning, the situation changed. As the US

BBC s Moha ed Moha ed, said that the first type of “tate Depa t e t o

pi ate is the Ex-fishe e , the se o d is the E - violent attacks up to 1,000 miles and more from

e ted, pi ates... conduct

ilitia e , a d the thi d a e te h i al e pe ts ho 58 “o alia s sho es o p i ate a hts, passe ge uise

Pirates are said to be between liners, and commercial vessels such as tankers and

ope ate e uip e t.

20-35 years old and originate from the Puntland o tai e ships that a e lea l ot i ol ed i fishi g. 51 region. 59 The pirate groups operate out of coastal cities,

45 Ma ti N. Mu ph , “upp essio of Pi a a d Maritime 2009,

Te o is . A “uita le ‘ole fo the Na ? Naval War College http://www.state.gov/r/pa/prs/ps/2009/dec/133784.htm. Review, 60.3 (2007): 31.

Panjabi, 447-48.

Martin N. Murphy, Small Boats, Weak States, Dirty Money: 53 “o alia s Pi ates: A Lo g Wa of the Wate s, The Piracy and Maritime Terrorism in the Modern World (New York:

Economist, January 7, 2010, available at Columbia 2009) 380. 47 http://www.economist.com/node/15214052/print.

Wo ld Fa t ook, Central Intelligence Agency, available at L esle A e Wa e , Pie es of Eight: A App aisal of U.“.

Panjabi , 423.

https://www.cia.gov/library/publications/the-world- Cou te pi a Optio s I the Ho of Af i a, Naval War

factbook/geos/so.html.

College Review, 63.2 (2010) 62 and Lauren Ploch; Christopher

56 Panjabi , 448.

M. Bla ha d; ‘o ald O ‘ou ke; ‘. Chu k Maso ; ‘a le O. Ki g,

Thi gs You Did 't K o A out “o ali Pi ates. Pi a Off the Ho of Af i a, Co g essio al ‘esea h “e i e,

57 A e,

A tho Mit hell, Pi ates hija k UN food aid ship, The April 19, 2010, 10.

Guardian, available at

Panjabi , 430. http://www.guardian.co.uk/world/2007/feb/26/international. 50 I id., a d A e,

Thi gs You Did 't K o A out “o ali

mainsection/print. 58

51 Pirates." ‘o Hu te , “o ali pi ates li i g the high life, BBC News, “etti g the ‘e o d “t aight: No Justifi atio fo Pi a Off the

available at http://news.bbc.co.uk/2/hi/7650415.stm. Coast of “o alia, U.S. Department of State, December 17,

59 Miller, 4.

This extends the range that the pirates can operate and to be at least four pirate groups.

the most notorious of which is Eyl, 60 and there are said

is a major factor why piracy attacks have occurred as far away from Somalia as the island nation of the Seychelles.

Four main pirate groups are operating along the Pirates attack other ships in speed boats that are “o ali oast. The Natio al Volu tee Coast Gua d…

e uipped ith satellite pho es a d GP“ e uip e t, 67 The Ma ka g oup… The thi d sig ifi ant pirate group is composed of traditional Somali fishermen

a d t pi all a ed with military assault rifles and 68 operating around Puntland and referred to as the

In order to board the Puntland Group. The Somali Marines are the most

rocket- p opelled g e ades.

targeted ships the pirates can use grappling hooks or an

61 powerful and sophisticated of the pirate groups. 69 alu i u ladde . Jee a Vasaga said that atta ks typically begin with pirates firing distress flares as a

Martin Murphy said:

e a ed ith automatic weapons and rocket-propelled grenade Much attention was devoted to curbing the

ea s of lu i g passi g ships…

launchers rush towards the ship in speedboats, aiming to a ti ities of the “o ali Ma i es , hi h du i g its

cut off escape by approaching from different first active period, from 2005-2006, was the most

In order to force the ships to submit the effective pirate gang operating off Somalia. It stood

di e tio s. 70

pir ates ill fi e upo thei ta gets ith s all a s, out e ause it as illi g to e tu e fa out to sea…

their competence in general, should not be automatic weapons, and rocket- p opelled g e ades.

Anthony Davis, explained why cargo ships will stop and pirates were re-assembling at Xaradheere, the

e agge ated… ea l i

the e as a epo t that

allow the pirates onboard

“o ali Ma i es fo e ase… the suspi io is that it is the ei igo ated “o ali a i es that ha e

Even though the cargo ship is much larger than the been responsible for most, if not all, of the large

pirate boat, just a few sailors operated them. If scale piracy that has taken place off Somalia in the

attacked by an RPG, the ship becomes vulnerable to

pe iod et ee the ICU s ollapse i 62 a d ea l

fi e… Whe o ati g a fi e, the ship ust stop o 2008. else the prevailing wind caused by the forward

otio of the essel feeds the fi e… A i i al e Thus, the most common Somali pirates are in their

with no security protection stands little chance of twenties and thirties, and former fishermen.

successfully fighting a fire and out maneuvering a smaller, faster boat armed with weapons. 72

Pirate towns are located in Puntland and the

ungoverned region of Southern Somalia. According to the Natio al “e u it Cou il N“C , “o ali pi ates Thus the crew of the cargo ship has a choice between risking a fire at sea or capture by pirates.

operate from well-equipped and well-armed bases Once the pirates are onboard they take the vessel, ashore along the Indian Ocean coast of Central Somalia crew, and cargo hostage, and pilot the vessel into Somali and Puntland, from the port towns of Caluula, Eyl, ate s. F o the e the o ta t the essel s o e a d

Ho o, a d Ha adhee e Xa adhee e . 63 Caluula and Eyl

demand a ransom. According to the IMB are located within Puntland and Hobyo and Haradheere

are in central Somalia. Eyl has benefitted the most from Pirates say ransom money is paid in large piracy revenues which has funded new building

denomination US dollar bills. It is delivered to them construction that caters to the needs of the pirates. 64 in burlap sacks which are either dropped from

The pirates also operate out of Yemen, which they use a helicopters or cased in waterproof suitcases loaded resupply point, and they utilize the ports of Al Mukalla

onto tiny skiffs. Ransom money has also been and Ash Shihr in Yemen, Mogadishu in Somalia, and

delivered to pirates via parachute. 73

Bosaso i Pu tla d as ases fo thei othe ships. 65

Thus it is not only the lack of effective government in The ship s o e s usuall pa the a so ith Somalia that encouraged piracy, but also a lack of

money receive d f o o ea a i e i su a e, that Yemeni deterrence.

covers events such as piracy, and in return the pirates do Mother ships are formerly pirated fishing dhows, 74 not harm the ship or the crew. The negotiations

sailing vessels that are used to launch motor boats. 66 usually involve middle men, Somalis that live in Europe

60 Panjabi, 447.

Pi ates hija k UN food aid ship, Guardian, Pi ates, GlobalSecurity.org, available at

http://www.guardian.co.uk/world/2007/feb/26/international. http://www.globalsecurity.org/military/world/para/pirates.htm

mainsection/print.

63 Murphy, Small Boats, Weak States, Dirty Money, 104-105. “etti g the ‘e o d “t aight: No Justifi atio fo Pi a off the Countering Piracy Off the Horn of Africa: Partnership and

Coast of “o alia.

Action Plan, National Security Council, 2008, MERLN, available

Thi gs You Did t K o A out “o ali Pi ates. at

70 A e,

Jee a Vasaga , Pi ates hija k tsu a i aid ship, The http://www.marad.dot.gov/documents/Countering_Piracy_Off

Guardian, available at

_The_Horn_of_Africa_-_Partnership__Action_Plan.pdf, and Dr. http://www.guardian.co.uk/society/2005/jul/01/internationalai Muha

ad “. Megalo atis, The MV FAINA Pi a C isis danddevelopment.internationalnews. Ch o i le, California Chronicle. December 07, 2008.

71 Countering Piracy Off the Horn of Africa: Partnership and <http://www.californiachronicle.com/articles/view/84087.

72 Action Plan, 5.

66 Ploch, 11. 74 Countering Piracy Off the Horn of Africa: Partnership and Miller. 5. ‘a le O. Ki g, O ea Pi a a d Its I pa t o I su a e, Action Plan, 5.

Congressional Research Service, February 6, 2009, 1.

or the Middle East, and if the money is transferred The IMO also reported an increase in pirate attacks overseas, it is funneled into Somalia. 75 in 2009, compared to 2008. In 2008 the IMO reported The crews of the hijacked ships are usually well

160 attacks committed and attempted, 80 415 in 2009, 81 taken care of because it is good business to keep the

and 41 in the first quarter of 2010. 82 The difference may prisoners alive. The hostages are worth ransom money

come from a deviation in the definition of piracy and and if the hostages are returned alive foreign navies

that the IMB relies on voluntary reports of pirate attacks.

Both records show an increase in piracy between 2008 pirates are able to ask for, and receive, ransom money

have little incentive to risk rescue missions. 76 Somali

and 2009. The low number of attacks reported by the because they have the unique ability to bring the pirated

IMO in the first quarter of 2010 was most likely due to vessel into the safety of Somali waters. Pirates from

o soo seaso s hi h u f o Ma a d other countries do not have the ability to keep a ship for

the

83 The Office months on end as they negotiate the ransom. 77

of Na al I tellige e ONI , lists eathe as the p i a safe-havens were removed Somali pirates may resort to

If pirate

fa to dete i i g he pi ates ill ope ate. 84 In April, traditional hit-and-run tactics that are practiced by

when the monsoon season ended, it is likely that piracy pirates in other parts of the world. The average ransom

es alated. The IMB s epo t fo the fi st th ee ua te s has been estimated to be between $1 and $2 million and

of 2010 confirmed that. There have already been 44 rising. 78 As the ransom amounts increases, so have the

attacks in the Gulf of Aden, 56 in Somali waters and 24 in number of pirate attacks.

the Red Sea. 85 Compare those numbers with 2008, which had 19 in the Gulf of Aden, 92 in Somali waters,

Pirate Attacks

and 0 attacks in the Red Sea. Thus 2010, has already had more pirate attacks than 2008, and the May –

Somali piracy has risen since the late 1990s. September monsoon season has ended which should International efforts to prevent it have had little effect

allow for a sharp increase in attacks for the remainder of on the number of attacks. The one period that saw a

the year. A change in the pattern of attacks from decrease in attacks was when the SCIC controlled most

January – September of 2009, and 2010, was that attacks of southern Somalia. International efforts have had an

in the Gulf of Aden have reduced, and attacks in Somali impact on the location where the attacks occur, but

waters and the Red Sea have increased. almost none on preventing attacks. Pirates have adapted

The increase in piracy is a sign that increased to new tactical environments. Pirate activity is also

international efforts have had little impact in reducing affected by the time of the year, less pirate activity takes

Somali piracy. The international community, led by the place during the two monsoon seasons.

United States, has increased anti-piracy operations off of The IMB Piracy Reporting Center has tracked the

the HOA. In 2009, the height of Somali piracy, was when number of pirate attacks off the coast of Somalia, in the

The Combined Maritime Forces established CTF 151 Indian Ocean, Red Sea, Gulf of Aden and Gulf of Oman,

Jan. 8 specifically for counter- pi a ope atio s. 86 CTF- the areas where Somali pirates were the most active.

151 broke off from CTF-150, wh i h as eated ith The IMB stated that off the coast of Somali 35 attacks occurred in 2005, 10 in 2006, 31 in 2007, 19 in 2008, and

80 in 2009. In the Indian Ocean one attack occurred in 80 ‘epo ts O A ts of Pi a a d A ed Robbery Against Ships: 2005, and one in 2009. The Red Sea only had pirate

, International Maritime Organization, attacks in 2009, when there were 15. The Gulf of Aden

A ual ‘epo t

available at

had 10 attacks in 2005, 10 in 2006, 13 in 2007, 92 in www.imo.org/OurWork/Security/PiracyArmedRobbery/Monthl 2008, and 116 in 2009. Eritrea, Kenya, Madagascar,

y%20and%20annual%20piarcy%20and%20armed%20robbery% Oman, Tanzania, and the Seychelles are also victims of 20report/133-Annual2008.pdf. 81 ‘epo ts O A ts of Pi a and Armed Robbery Against Ships:

Somali piracy and between them saw 8 attacks in 2005,

A ual ‘epo t

, International Maritime Organization,

9 in 2006, 20 in 2007, 17 in 2008, and 10 in 2009. In all

available at

the areas of Somali pirate activity, there were 54 attacks http://www.imo.org/OurWork/Security/PiracyArmedRobbery/ in 2005, 29 in 2006, 61 in 2007, 128 in 2008, and 222 in

Monthly%20and%20annual%20piarcy%20and%20armed%20ro 2009. 79 Thus the number of attacks have doubled two

82 bbery%20report/152-Annual2009.pdf. years in a row from 2006, to 2008, and nearly doubled

‘epo ts On Acts of Piracy and Armed Robbery Against Ships: again in 2009. These trends are supported by IMO

Fi st Qua te l ‘epo t, International Maritime Organization, statistics. available at http://www.imo.org/OurWork/Security/PiracyArmedRobbery/ Monthly%20and%20annual%20piarcy%20and%20armed%20ro

bbery%20report/153-1Q2010.pdf. 83

Julia Bo ge , Pi a a d a so pa e ts: ‘isk usi ess - safe transactions,

84 Warner, 73.

The Guardian, November 11, 2008, available Ho of Af i a: Th eat Fa to s fo Co e ial “hippi g a d at http://www.guardian.co.uk/world/2008/nov/19/piracy-

Fo e ast of Pi ate A ti it Th ough , US Department of 76 somalia1.

Transportation Maritime Administration, available at 77 A e, Te Thi gs You Did t K o A out “o ali Pi ates.

www.marad.dot.gov/documents/Factors_Affecting_Pirate_Succ 78 Ploch, 12.

ess_HOA.pdf .

79 “o alia s Pi ates: A Lo g Wa of the Wate s.

85 Pi a a d A ed ‘o e Agai st “hips: ‘epo t fo the Pi a a d A ed ‘o e Against Ships: Annual Report

Period 1 January – “epte e , International Maritime , International Maritime Bureau, available at

Bureau.

www.mfa.gr/softlib/%CE%95%CF%84%CE%AE%CF%83%CE%B9 86 Ne Cou te -Pi a Task Fo e Esta lished, The U.S. Navy, %CE%B1%20%CE%B1%CE%BD%CE%B1%CF%86%CE%BF%CF%8

January 9, 2009, available at

1%CE%AC%20%CE%B3%CE%B9%CE%B1%20%CF%84%CE%. http://www.navy.mil/search/display.asp?story_id=.

the intent to preclude the use of sea by terrorists to Muslim flagged ship showed an independence of action that move weapons and personnel ; it is a coalition task force

reinforces the categorization that pirates are criminals and that has been dedicated to preventing piracy, over the

not jihadist terrorists. The seizure of the Faina was the time period that the Horn of Africa saw the greatest

attack that showed the world that pirates and Somali pirates

in particular, are dangerous. Had the pirates unloaded the created the United States African Command, which

increase in piracy. 87 President George W. Bush also

tanks into Somali, The Economist said it ould e e ough to tip t

ai s to add ess the oots of i sta ilit p o oti g 95 he ala e i a s all lo al a . The Faina had three civil

Russian crew members and the attack provoked Russia into professionalism, and capacity-building programs which

and defense

sending a frigate to patrol the Horn of Africa. 96 In the allow Africans to

help the sel es. 88 Yet the only group ultranationalist Putin era Russia, it is likely that the Faina that has decreased Somali piracy was the SCIC. Most

attack was an insult to Russian national pride. 97 The Faina experts look for a solution inside Somalia to end piracy

incident showed that Somali pirates could become more because operations at sea have not solved the problem.

than an economic nuisance. Finally the Maersk Alabama The US Secretary of Defense Robert Gates agreed when

was the first successful attack on an American flagged ship

he said that the e is o pu el ilita solutio to it, by Somali pirates. This was a direct challenge to US

supremacy. Captain Richard Phillips was saved when Navy unless you get something on land that begins to change

a d that the e s eall o a i

ie to o t ol it

89 “EAL s ipe s… killed th ee pi ates holdi g hi at the e uatio fo these kids.

gu poi t. 98

Thus Somali pirates have defied regional

Specific Attacks

powers that they are linked to by religion, European powers, and America the global super power. In the case of the

Three pirate attacks that have received the most Sirius Star and the Faina the pirates received a ransom and international attention: the MV Sirius Star, the MV Faina,

returned the ship, however when the pirates challenged the and the MV Maersk Alabama. Each attack became

power of the US that they were killed. Most importantly, notorious for different reasons, but what they had in

these cases brought attention to the problem and showed common was a blatant disregard for the established

that if left to its own devices the problem could escalate. international power structure. Pirates challenged the

po e of “audi A a ia, the o ld s leadi g oil supplie , 90 Global Shipping

Russia the former Soviet super power, and the United States, the remaining super power. The Sirius Star,

The Gulf of Aden is a choke point that makes ships which transported 2 million barrels of crude oil, was

easier targets than they are in open seas. The narrow attacked on November 15, 2008; the Faina, transporting

Gulf is a mixed blessing for pirates because it also makes

33 T-72 Main Battle Tanks as well as anti-aircraft guns 91 92 it easier for warships to patrol due to the concentrated and small arms,

was attacked September 25, 2008; number of ships. A warship can protect a larger number

of ships than it could in the Indian Ocean. It is not only attacked on April 8, 2009.

and the Maersk Alabama, transporting food aid, 93 94 was

the number of ships that makes the Gulf of Aden an By seizing the Sirius Star the pirates showed that they

important shipping lane, but also the cargo. were not a Pan-Islamic movement because they would not

More than 20,000 ships travel through the Gulf of respect the sovereignty of a Muslim power. The attack on a 99 Aden every year. Between 11- 100 % of the o ld s

crude oil passes through the Gulf

a d o e % of

international maritime trade moving through the Gulf of 87

Ade is ith Eu ope.

Massi o A ati, Ma iti e Ope atio s Off the HOA, Naval 101

A large amount of oil shipped

88 T a sfo i g Natio al “e u it : AF‘ICOM--An Emerging from the Middle East to North America travels through Co

Forces, 1 (2010): 27.

a d “ opsis a d Ke I sights, National Defense the Indian Ocean and around the Cape of Good Hope of University, February 19-20, 2008, available at

South Africa. Thus, the Gulf of Aden and the Indian www.ndu.edu/ctnsp/NCW_course/AFRICOM%20Summary%20

89 Notes.pdf (March 17, 2008).

Pete “piegel, Gates “a s “o alia Go e e t Is Ke to

96 http://online.wsj.com/article/SB123967368677815883.html. “o alila d A a h i “o alia: The La less Ho .

P o le , The Wall Street Journal, April 14, 2009, available at

Da s off the “o ali Coast: MV The o ld's top o su e s a d p odu e s of oil, CNN, June

Muha ad “ha saddi ,

FAINA C isis E ote a th a d th Updates, De e e , 3, 2008, available at

2008, available at http://www.afroarticles.com/article- http://www.cnn.com/2008/US/06/02/oil.map/index.html. 91 dashboard/Article/38-Days-off-the-Somali-Coast--MV-FAINA- Ni k B o , T-72 main battle tanks finally unloaded from MV Crisis-%E2%80%93-Ecoterra-36th-and-37th-Updates/142250.

Fai a, Jane's Information Group, February 17, 2009, available 97 Ast id Tu i ez, ‘ussia Natio alis a d Vladi i Puti 's at

‘ussia, George Washington University, available at http://www.janes.com/news/defence/land/idr/idr090217_1_n. shtml.

98 www.gwu.edu/~ieresgwu/assets/docs/ponars/pm_0151.pdf.

Pi a off “o alia: Pe ils of the sea, The Economist, April 16, 93 Miller, 29-31.

99 2009, available at http://www.economist.com/node/13496719. Mathe Wea e , Ti eli e: “o ali pi ates atte pted 100 Rawle O. King, 1.

hija ki g of Mae sk Ala a a a go ship, The Guardian April 9, Ibid., 1, and Countering Piracy Off the Horn of Africa: 2009, available at

Partnership and Action Plan, 4.

http://www.guardian.co.uk/world/2009/apr/09/somali-pirates- 101 E o o i I pa t of Pi a i the Gulf of Ade o Glo al us-ship. 94

T ade, US Department of Transportation Maritime Mae sk A-Class, GlobalSecurity.org, available at

Administration, available at

http://www.globalsecurity.org/military/systems/ship/maersk- http://www.marad.dot.gov/documents/HOA_Economic%20Imp a.htm.

act%20of%20Piracy.pdf.

Ocean are major sea lanes that allow for critical oil 2009. 109 Independent powers such as Russia, China, and supplies to reach the Europe and United States.

Iran have also participated in anti-piracy operations. Piracy is also a threat to Somalia and the region as

CTF-150 was forced to participate in anti-piracy

a hole. O e thi d of “o alia s populatio is fed the operations as a result of the increase in Somali piracy. 110 U ited Natio s Wo ld Food P og a

It is not clear when CTF-150 began actively pursuing deli e ed sea. Also pote tiall affe ted pi a a e

% of hi h a e

pirates, but the incident when the USS Winston S. the i la d a kets in East and Central Africa that

Churchill DDG-81, captured a pirate ship on January 21, depe d o i po ts f o po ts o the I dia O ea . 102 2006, has been established as the first example of CTF-

The majority of ships that pass through the Gulf of s a ti e a ti-piracy operations. 111 However, the ship Aden and the Indian Ocean are not disturbed by pirates.

histories of the USS Oscar Austin DDG-79, USS Donald For example, Lesle A e Wa e said that I

Cook DDG-75, and the USS Gonzalez DDG-66, prove that the approximately thirty thousand vessels that pass

, of

s a ti e a ti-piracy operations were conducted through the Gulf of Aden every year, 217 were attacked.

CTF-

in the third quarter of 2005. During its 2005-2006 Of these, only forty- se e e e su essfull hija ked…

deployment, the Os a Austi se ed as a dete e t fo only 0.72 percent of the ships that traversed the gulf

potential piracy operation

s, a d o No e

joined Operation Foresail. On September 21, 2005, the percent of attempted pirate attacks are foiled without

e e atta ked i .

Warner also sai

d that

Go zalez, epo ted to the Ho of Af i a i suppo t of assista e f o a ships, up f o

pi a ope atio s, 2008.

pe e t i

the Global War on Terrorism and anti-

It is unlikely that this will decrease the allure of and the Gonzalez, continued anti-piracy operations until pi a fo “o alis. A ou t 112 ith a u a November. The Os a Austi s Visit, Boa d, “ea h,

u e plo e t ate… at % a d the rural equivalent at and Seizure (VBSS) team boarded the MV Al Manara, on %, eeds

o e tha lo e su ess ates to January 24, 2006 in order to restore control of the ship discourage them. 105 to its crew 113 and the Donald Cook, participated in anti-

Thus, pirates are motivated by the ransom. Piracy piracy operations during the period of November 3- offers high rewards and low risks. The pirates use

violence in order to convince the targeted ship to stop, December 12, 2004, the German Frigate but rarely use violence after the hijack because the crew

Mecklenburg-Vorpommern, which was assigned to CTF- is part of the ransom. Piracy has been on the rise after

150, sent a helicopter to defend a yacht that was the SCIC was removed from power in 2006; more

attacked in the Gulf of Aden. The Mecklenburg- alarming for the international community than the

Vorpommern was conducting anti-terrorism operations numbers of attacks are the potential targets. The Gulf of

March 17, 2005 US Coast Guard Cutter Aden and Indian Ocean allow the transport of critical oil

at the time. 115

Munro (WHEC-724), HMS Invincible R-05, and HMS shipments to Europe and North America. Successful

Nottingham D-91, responded to a report of an act of hijackings such as the MV Sirius Star, the MV Faina, and

piracy. The three ships acting under the CTF-150 the MV Maersk Alabama have shown that Somali pirates

command, arrested the pirates and restored control of 116 are willing to attack oil and arms shipments, and Middle

th e essel to the ship s e . Eastern, European, and American ships. Even though

CTF-151 was as a result of the rapid growth of only a small percentage of ships are attacked, the attacks

Somali piracy in 2008. It is similar in structure to CTF- have a negative regional impact.

Ope atio O ea “hield, NATO, available at http://www.manw.nato.int/page_operation_ocean_shield. 110 Anti-piracy operations off the Horn of Africa began

IV: Western Naval Response to Somali Piracy

Gu To e a s, Ne Co a de CTF- , Naval Forces,

1.2009, 55-56.

as an offshoot of anti-terrorism operations. After the

111 Miller, 55 and 65.

U““ Go zalez DDG- “hip Histo ‘epo t, Washington tasked with combating maritime terrorism.

terrorist attacks on September 11, 2001, CTF-150 was

113 Naval Yards, Ship History Archives, Washington, D.C. 2009, the US Navy created CTF-151, a coalition task force

In January

U““ Os a Austi DDG- “hip Histo ‘epo t, Washington devoted to conducting anti-piracy operations off the

114 Naval Yards, Ship History Archives, Washington, D.C. coast of Somalia. 107

In 2008 the EU created Operation U““ Do ald Cook DDG-75 Ship Histo ‘epo t, Washington Atatlanta, which was tasked with protecting shipping

Naval Yards, Ship History Archives, Washington. D.C. 115 from Somali pirates. 108

NAT Coalitio Ma iti e Fo es Dete Pi ate Atta k Off Ye e , O s o t i utio to a ti- The U.S. Navy, December 15, 2004, available at

piracy, called Operation Ocean Shield, began August 12, http://www.navy.mil/search/display.asp?story_id=16309 , and Cha les D ago ette, Wo ld ide Th eat to “hippi g Ma i e Wa i g I fo atio , Office of Naval Intelligence Civil Maritime Analysis Department, December 22, 2004, available at

http://www.nga.mil/MSISiteContent/StaticFiles/MISC/wwtts/w

103 Warner, 67. Ibid., 65.

116 wtts_20041222000000.txt

Coalitio Ma iti e Fo es I te ept Hija ked Vessel, The 105 Ibid., 69 and 73.

U.S. Navy, March 18, 2005, available at Panjabi, 389.

http://www.navy.mil/search/display.asp?story_id=17550, and 106 Co i ed Task Fo e

, Naval Forces Central Command, Cha les D ago ette, Wo ld ide Th eat to “hippi g Ma i e 107 available at http://www.cusnc.navy.mil/cmf/150/index.html.

Wa i g I fo atio , Office of Naval Intelligence Civil Co

i ed Task Fo e , Naval Forces Central Command, Maritime Analysis Department, March 23, 2005, available at 108 available at http://www.cusnc.navy.mil/cmf/151/index.html.

http://www.nga.mil/MSISiteContent/StaticFiles/MISC/wwtts/w Miller, 60.

wtts_20050323000000.txt.

150. 117 Ships assigned to CTF-151 are only responsible defensive missile launch capability is not relevant when for conducting anti-piracy operations.

combating piracy.

EU Naval Force Somalia Operation Atatlanta was Smaller ships are valuable in anti-piracy missions created on November 11, 2008. 118

because they offer a cost effective presence. For Operation Atatlanta in order to support the UN Security

The EU created

example the maximum crew size of an LCS is 100 officers Council Resolutions 1814, 1816, 1838, and 1846. 119 and enlisted, 127 the USS Ronald Reagan CVN-76, a

Resolution 1816 authorized foreign navies to enter carrier, can house over 6,000 128 , and the destroyer USS Somali territorial waters in order to conduct anti-piracy

Thus, the crew of one destroyer operations, with TFG permission, for a six month period. 120

Oscar Austin 380. 129

ould a th ee o fou LC“ s. The LC“ is also elatively Resolutions 1838 and 1846 extended the six

inexpensive. It costs $480 million, compared to the month period. 121 NATO s Ope atio O ea “hield, as average cost to build a US Navy ship; estimates range

created on August 17, 2009. 122 It looks to disrupt piracy from $2.1 to $2.7 billion. 130 Thus, for the same amount off of the HOA in a similar manner to CTF-151, and

of money and manpower the US Navy can build and Operation Atatlanta. 123 ai tai fou LC“ s. “hips o l ha e between 15-30

minutes to get help once attacked. 131 An anti-piracy force of numerous smaller, faster ships is more efficient Between the various international anti-piracy

US Navy

than a smaller force of ships designed for fleet and land operations there are roughly 30 ships patrolling the

engagements because they could assist more pirated HOA, at any given time, and CTF-151 commands more

vessels. 132

than 20 of them. 124 The US Navy has committed There have be e t o phases i the U“ Na s a ti- amphibious landing ships, supply ships, cruisers, and

piracy mission. The first was preCTF-151 when the Navy destroyers to combat piracy. This may change in favor of

used resources designed for other missions. The second smaller ships such as patrol craft, frigates, 125 and the

phase began with the creation of CTF-151 when the US Littoral Combat Ship (LCS). 126 Smaller ships do not suffer

Navy altered its resources in order to adapt to the anti- from the drawbacks that have sidelined them from

piracy mission. A third phase may develop, if piracy traditional naval missions. A lack of offensive and

continues, and would involve the US Navy designing its resources with anti-piracy as a primary mission.

Many of the changes that the US Navy has made in

order to strengthen its Anti-Terrorism Force Protection

118 Co i ed Task Fo e ." have also made ships more effective at combating Ja ie “OLANA, EU H‘, o g atulates Cd e A to ios

Versatility is the key to the second phase PAPAIOANNOU on his appointment as the EU Force

pirates. 133

weapons. The US Navy sees piracy as one of many Co

a de fo OP ATALANTA, European Union Naval Force missions and is slowly adapting its weapons to combat Somalia - Operation Atalanta, available at

http://www.eunavfor.eu/2008/12/javier-solana-eu-hr- all of them. Examples of new systems that the US Navy congratulates-cdre-antonios-papaioannou-on-his-appointment-

brought online in order to fight piracy and other threats as-the-eu-force-commander-for-op-atalanta/.

include: the GAU-17 7.62mm mini gun, the MK 49 Mod 0 119 Eu opea U io Na al Fo e “o alia - Ope atio Atala ta,

remote controlled 12.7mm gun, MK38 Mod 2 25mm European Union Naval Force Somalia, available at

canon, and the MK15 Phalanx Close-In Weapon System 120 http://www.eunavfor.eu/about-us/mission/.

Block 1B. By adding short range firepower the US Navy U ited Natio s “e u it Cou il ‘esolutio

made ships more effective at fighting piracy. Nations Security Council, June 2, 2008, available at http://daccess-dds-

, United

The U“ Na s VB““ tea s a e a othe e a ple of ny.un.org/doc/UNDOC/GEN/N08/361/77/PDF/N0836177.pdf?O

adapting a resource that was designed for the Global penElement.

War on Terrorism and converted for the anti-piracy

mission. VBSS teams were designed in order to enforce Nations Security Council, October 7, 2008. http://daccess-dds-

U ited Natio s “e u it Cou il ‘esolutio , United

UN Resolutions after the first Gulf War. After 9/11 the ny.un.org/doc/UNDOC/GEN/N08/538/84/PDF/N0853884.pdf?O

issio of a VB““ tea as to oa d ships i sea h of pe Ele e t , a d U ited Natio s “e u it Cou il ‘esolutio

te o ists that utilize the o ld s o ea s to t affi , United Nations Security Council, December 2, 2008,

eapo s a d othe o t a a d, a d the ha e ee available at http://daccess-dds-

used to combat piracy. 134

ny.un.org/doc/UNDOC/GEN/N08/630/29/PDF/N0863029.pdf?O penElement.

123 Ope atio O ea “hield.

Ibid, 17.

NATO Wa ships Meet fo Cou te Pi a Missio 128 U““ ‘ONALD ‘EAGAN, Naval Vessel Registry, available at Ha do e , Headquarters Allied Maritime Command

http://www.nvr.navy.mil/nvrships/details/CVN76.htm. Northwood, August 6, 2010, available at

129 Os a Austi , Naval Vessel Registry, available at http://www.manw.nato.int/pdf/Press%20Releases%202010/Ju

http://www.nvr.navy.mil/nvrships/details/DDG79.htm. n%20-%20Dec%202010/SNMG1/SNMG1%202010%2017.pdf ,

130 The Lo g-Te Outlook fo the U.“. Na s Fleet, a d NATO Wa ship HM“ Mo t ose ‘a es To Assist “hip Afte

131 Congressional Budget Office, January 20, 2010, 7-10. Pi ate Atta k, Headquarters Allied Maritime Command

Ploch, 12.

133 Mu ph , “upp essio of Pi a a d Ma iti e Te o is , . http://www.manw.nato.int/pdf/Press%20Releases%202010/Ju Massi o A ati, Weapo s Optimised for Anti-Terrorist and n%20-%20Dec%202010/SNMG1/SNMG1%202010%2029.pdf.

Northwood, available at

Pi ate Ope atio s, Naval Forces, 2.2008, 55. 125 Warner, 72 and Ploch, 22.

Anti-

134 Ed Ba ke , VB““: E ol i g ith the Missio , 126 Kreisher, 6.

GlobalSecurity.org, April 4, 2009, available at

http://www.globalsecurity.org/military/library/news/2009/04/ and Budgetary Analysis, 66.

Ma ti Mu ph , Litto al Co at “hip, Center for Strategic

mil-090425-nns05.htm , a d A d e Ki g, Nassau C eates VB““

VBSS teams are trained to participate in Maritime She concluded that it would not be possible to Interdiction Operations, traditionally anti-terrorism and

ignore Somali piracy because of the commerce that anti-smuggling operations. They are taught to board

transits through the Gulf of Aden. The cash-based vessels from Rigid Hull Inflatable Boats (RHIB) with

“o ali e o o akes t a i g the pi ates fi a es telescopic poles and metal ladders. A RHIB is lowered

impractical. Increasing the defensive capabilities of from a ship into the water and the VBSS team uses it to

merchant ships succeeded in making them harder board suspicious vessels. VBSS teams, with the

targets, at the price of higher shipping costs. Naval exception of Special Forces, are not trained in school for

patrols reduce the success rate of piracy, not eliminate anti-piracy operations. 135 it. US military will not pursue pirates on land. Progress

The US government developed specific goals in has ee ade i uildi g lo al a s a ti-piracy order to prevent Somali piracy attacks in the Gulf of

operations, but any major impact would be in the future. Aden and the Indian Ocean. Secretary of State Hillary

Finally, local efforts on land were counterproductive. 139 Clinton announced four steps to fight piracy. The first is

US policy makers, such as former Secretary of for ship owners to stop paying ransoms, second an

“tate Co doleezza ‘i e, a k o ledge that maritime expanded multinational response which includes

ope atio s alo e a e i suffi ie t. 140 This is the attacking pirate assets, third pressuring the leaders of

limitation of the US anti-piracy policy; it only attacks Puntland and the TFG to combat piracy within their

piracy at sea. Support for the TFG has not produced borders, and fourth build ship self defense

tangible results and the US is unwilling to commit troops capabilities. 136

The NSC recommended three steps and on land in Somalia while engaged in wars in Iraq and the fi st as to p e e t pi ate atta ks educing the

Afghanistan. With new weapons, the maritime ul e a ilit of the a iti e do ai to pi a , se o d

operations may become more effective, but they will not to i te upt a d te i ate a ts of pi a , a d thi d to

be able to stop piracy. President Barrack Obama

articulated his position on Somalia when he said that accountable for their actions by facilitating the prosecution of suspected pir ates. 137

e su e that those ho o

it a ts of pi a a e held

A summary of US

Imposing peace from the outside through military

a tipi a poli as Lesle Wa e s ide tifi atio of fo e o oe io is ot a e ipe fo su ess… Life under colonialism is still well remembered and

Eight ou te pi a ethods… i use o u de leaves a bitter aftertaste. Instead, keeping the consideration by the United States:

hotspots cool is better left to the Africans, although - Accepting piracy as a cost of doing business

they need assistance in the form of training and - Tracing and targeting pirate finances 141 equipping their military peacekeeping units.

- Increasing the defenses of merchant vessels

- Address legal impediments to combating piracy America will help Somalis help themselves, but - Continuing multinational naval patrols

there will not be another Operation Restore Hope under - Pursuing kinetic operations on land

the Obama administration.

- Building local and regional maritime security-

sector capacity

The Smaller the Better

- Building local and regional security-sector capacity

on land. 138

If the piracy problem is left to the Somali people to deal with, it is possible that pirates will be attacking

shipping in the Gulf of Aden and the Indian Ocean for the

Tea , USS Nassau Public Affairs, February 14, 2007, available foreseeable future. It is also possible that unstable at http://www.navy.mil/search/display.asp?story_id=27783.

nations near other shipping routes will develop pirate 135 Ma iti e I te di tio Ope atio s MIO , Recce Group.

networks. It is expensive for foreign navies to keep ships available at

deployed off the coast of Somalia. Fast Attack Craft www.reccegroup.com/Recce%20Group_Course_Maritime%20I

(FAC) could help protect shipping at a fraction of the cost nterdiction%20Operations.pdf, see also “tate e t of Wo k fo

it takes to deploy larger ships. If the US and the UN are Instructional Support in the West Region For Navy Security

unwilling, or unable, to restore stability to Somalia the Forces Training Under the Direction of the Center for Security

Services," US Navy, available at responsibility falls on the AU. Thus, FAC and operations cryptome.quintessenz.at/mirror/dodi/navsec-sow.pdf, see also

such as AU Mission in Somalia (AMISOM) may be T aining Course Control Document for Visit, Board, Search, &

economical options to reduce, if not remove, the threat Seizure (VBSS) Team Mechanical Breacher Mechbreachervbss,"

of piracy.

NAVAIR Orlando Training Systems Division, available at It could take a force three times the size of the US https://www.neco.navy.mil/necoattach/N0018910R0064Attach

Navy to protect all ships that pass through waters that ment_C_TCCD_for_VBSS_Breacher.pdf, and see also T‘AINING

are affected by Somali Pirates. 142 In order to stop piracy COURSE CONTROL DOCUMENT FOR NON-COMPLIANT

BOARDING, VISIT, BOARD, SEARCH AND SEIZURE (NCB-VBSS) in the Gulf of Aden alone, it will take a task force of

TEAM TRAINER A-830-0395 ‘EVI“ION A , Center for Security

136 Services (CENSECFOR), June 30, 2008.

140 Ibid., 65-79.

Hilla ‘odha Cli to , A ou ement of Counter-Piracy Co doleezza ‘i e, Co ati g the “ ou ge of Pi a , I itiati es, U.S. Department of State, April 15, 2009,

Speech, United Nations Security Council, December 16, 2008, Washington DC, available at

New York, New York,

137 http://wwwstate.gov/secretary/rm/2009a/04/121758.htm. http://merln.ndu.edu/archivepdf/AF/State/113269.pdf.

Cou te i g Pi a Off the Ho of Af i a: Pa t e ship & 141 Willia E. Wa d, a d Tho as P. Gal i , Af i a s Future Is Up

A tio Pla , -12. to Af i a s, Joint Force Quarterly, 58 3 rd Quarter, 2010, 7-8. Warner, 65.

142 Warner, 74.

around 60 combat ships. The Indian Ocean is much AMISOM lost the good will of the Somali people larger and would require a bigger force. 143

due to charges of AU troops of killing civilians. 150 possible to stop piracy in the Gulf of Aden if the multi-

Thus it is

Opinions can change with time if the presence of the AU national effort were reinforced; however this would

soldiers produces tangible benefits for Somalia. cause the pirates to shift their operations into the Indian

President Obama was correct that another US or UN Ocean. This would have a negative impact on the

peacekeeping mission would have probably been seen as nations that ship goods on the Indian Ocean, and in

a neocolonialist invasion. The US is better served by particular the South Eastern region of Africa.

providing logistical support for AMISOM, which it has FAC will not solve the piracy problem by increasing

done by providing more than $160 million worth of the number of ships off the HOA. They can make it more

services and equipment. 151 Despite this, the difficult for pirates to operate in coastal areas such as

international effort had not given the AU the resources it the Red Sea and the Gulf of Aden, and they allow smaller

A land maritime nations that lack the resources of the

required to accomplish its mission in Somalia. 152

solution to the piracy problem is the best option because traditional western powers, to protect their shipping.

the only decrease in piracy activity came as a result of FAC are preferable in coastal anti-piracy operations

the “CIC s do i a e i southe “o alia. With that i because they are faster, cheaper, require less upkeep,

mind, if the AU troops were well trained and supplied, and the hea ie a a e t of a f igate p o ides little

and came in large enough numbers they should be able

ad a tage, he fighti g pi ates. 144 By comparing the to temporarily impose stability. The situation is Norwegian Fridtjof Nansen class frigate and the

complicated by clan loyalties and factions, but it is not Norwegian Skjold class FAC the advantages of the FAC

AMI“OM s issio to ule “o alia, o l to gi e the TFG a are evident. The frigate costs $600 million, more than

chance to do so. 153

half a billion dollars than the $65 million for the Skjold class FAC. The frigate has a crew of 120 and the FAC a

Private Security on Merchant Ships and the Impact of

crew of 15. 145 The top speed of the frigate is 27 knots

Piracy on Shipping Costs

and the FAC has a top speed of 55+ knots. 146

The

American Oliver Hazard Perry class frigates are often Merchant vessels should implement more efficient sold, or given, to allied navies after they have been

methods of defending themselves against pirate attacks. decommissioned by the US Navy. 147

There have been developments in this field that lower American frigates can have a crew of over 200 sailors 148

The refurbished

the probability that pirates will successfully board ships; and a top speed of 29 knots.

however, they raise the cost of transport. The ONI superior to their larger brethren when fighting piracy;

The Skjold class FACs are

identified five key threat factors weather, merchant ship they are cheaper, faster, and require a much smaller

speed, the time of day, expanded attacks in the Indian crew compliment. Frigates are not as well suited for

Ocean, and how targets were selected. They found that anti-piracy operations due to their large crew and slower

weather was the most important factor that determined speed, even if they are free. For countries that cannot

when pirates attack. Ships were safer during the two afford the $65 million price tag India and China have built FACs that cost less than $15 million. 149

monsoon seasons, at night, and when traveling at high

speeds. Pirates were operating deeper into the Indian fraction of the price of a larger ship FACs provide a viable

Thus at a

Ocean as a result of increased patrols in the Gulf of alternative for countries that need to protect their

Aden, and there was no indication of pirates having been shipping, but have a limited budget and a shortage of

i fo ed of ship s outes; i ti s e e ta gets of 154 trained personnel.

opportunity.

Convoys have been implemented in the Gulf of

Aden in order to protect shipping. The Internationally

143 Ploch, 13. Recognized Transit Corridor (IRTC) has helped reduce the

155 F ied a , No a , Cou te i g the Pi ate a d Te o ist success rate of pirate attacks in the Gulf of Aden. The Th eat, Naval Forces, 27.5, 2006, 83-84. 145

IRTC allows warships to protect large numbers of No a s Ne Na se Class F igates: Capa ilities a d

merchants by grouping them together, and ships help Co t o e sies, Defense Industry Daily. available at

protect each other. Convoys slow down shipping which http://www.defenseindustrydaily.com/norways-new-nansen-

results in a loss of money for shipping companies, and it class-frigates-capabilities-and-controversies-02329/; and see

also The “kjold Class Fast ‘ea tio C aft, Umoe Mandal, 2000, available at http://www.foils.org/skjold%20brief.pdf.

146 F idtjof Na se F lass P‘OJECT

NEW F‘IGATE,

150 Warner, 79.

GlobalSecurity.org, available at

152 http://www.globalsecurity.org/military/world/europe/nansen.h Ploch, 3. Warner, 78-79 tm; and see also

, United Nations 147 Thei ‘oles, Naval Forces, 1, 2010, 17.

A thu G. “elf, Fast Atta k C aft FAC a d 153 UN “e u it Cou il ‘esolutio

Security Council, August 20, 2007, available at Pak to get $ illio U“ a ship f ee of ost, The Indian

http://www.un.org/Docs/sc/unsc_resolutions07.htm. Express, available at http://www.indianexpress.com/news/pak-

154 Ho of Af i a: Th eat Fa to s fo Co e ial “hippi g a d 148 to-get-65-million-us-warship-free-of-c/611941.

. Ma ieke J. ‘iet eld, Pi a Co side atio s o Passage of the http://www.nvr.navy.mil/nvrships/details/FFG61.htm; and see

Forecast of Pirate Activity Through 200 U““ I g aha , Naval Vessel Registry, available at

Gulf of Aden and/or the North West Indian Ocean East of also FFG- Oli e Haza d Pe Class, GlobalSecurity.org,

Af i a, Royal Netherlands Institute for Sea Research, available available at

at

149 http://www.globalsecurity.org/military/systems/ship/ffg-7.htm. http://www.eurocean.org/np4/file/863/Piracy_Gulf_of_Aden__ Self, 22.

_Indian_Ocean.pdf.

is possible that the lost revenue costs more than the

Some progress has been made making it ransom payments. 156 easier for countries to prosecute pirates, but most only In order to defend ships, crews have increased

warlords. 162

prosecute pirates they catch in the act of piracy, or surveillance in order to detect attacks sooner, rehearsed

pirates that attacked a ship from their country. 163 The lock down methods to prevent pirates from accessing

West does not want to prosecute pirates for reasons the crew, barbed wire and electric fences, and the

that range from expense to possibly having to grant increased use of nonlethal devices such as fire-hoses,

pirates immigrant status at the end of their prison term. and long-range acoustic devices (LRAD) have successfully

In order to avoid prosecuting pirates in Europe or p e e ted oa di g s, as ha e Moloto o ktails a d

America, the EU, UK, and US, made arrangements with covering decks with broken glass. 157

Kenya, to prosecute them. 164 The Seychelles have also techniques have been successful pirates may be

Though these

agreed to prosecute pirates, but the small nation has a adapting to them, in which case more violent methods

very limited prison capacity. Both Kenya and the may be required for crews to defend themselves. 158 Seychelles have been given money to update their

There has been rising support for merchant ships justice systems in order to deal with the increased to arm themselves in order to fight pirates; however, it

number of prisoners and court cases. However, Kenya could complicate the situation. For example, crews are

has voiced reluctance to become a dumping ground for not trained in firearms safety or marksmanship, some

pirates without the West sharing the burden. 165 ports do not allow armed ships to dock, security teams

The lack of enthusiasm for prosecution is an are expensive, armed ships could increase the threat of

in di atio of the West s desi e to ig o e the growing terrorism, and gun battles would escalate the violence.

problem. It looks as though the US and Europe are Despite the drawbacks, the US has embarked security

willing to send their ships to fight piracy as long as they teams on ships that carry military supplies off the

do not have anything more important for them to do, HOA. 159

Armed crews may be necessary for critical but when it comes to making a long term commitment shipments such military hardware and energy, but are

there is a reluctance. With the Somali economy in a not cost effective for other shipments.

disastrous state there is a financial incentive for Somali The cost of insurance to ship products through the

men to turn to piracy. Prison sentences will not Gulf of Aden has increased due to piracy. Cost to insure

eliminate Somali piracy, but large scale prosecution

a container rose from $900 to $9,000 and war-risk would be one element in a multi-pronged strategy to insurance may increase the cost of insuring a ship

discourage the growing trend.

between $10,000 and $20,000 per trip. Options to avoid the Gulf of Aden also increase the cost of shipping. If a

Conclusion

merchant ship reroutes around the Cape of Good Hope it adds nearly 3,000 miles to the trip. This increases

The Western response has shown a reluctance to operating costs and reduces the number of deliveries the

combat piracy in a realistic manner. This is due to a ship can make. An estimate of the increased costs

desire to fight pirates as though they were terrorists, merchants face due to piracy is $60,000 for a security

and a lack of follow up that degraded mission guard per trip through the Gulf of Aden, $20,000 to

effectiveness. Somali pirates are not terrorists; they $30,000 for an LRAD and an operator, or $3.5 million in

have no proven links to terrorist networks, nor are they fuel annually to reroute a ship around the Cape of Good

interlopers from the past armed with cutlasses and Hope. 160

Merchant ships can mitigate the risks muskets. Somali pirates are dangerous, but they do not associated with piracy, but it is impossible to remove the

threaten Western society. The threat is first regional risk without raising the cost of shipping.

and second global. Pirate attacks in the Gulf of Aden and the Indian Ocean have had a destabilizing effect on the

Catch and Release

East African region. By hijacking arms, and food aid shipments, pirates have the ability to alter the balance of

Despite international law that gives any country power, and increase the risk of famine, in a region that is that apprehends a pirate the right to prosecute, most do

fraught with instability and starvation. The global threat not. 161

The Danish Navy released pirates even though is primarily commercial with increased shipping costs as they found evidence of pirate activity, which included

the likely result. However, critical supplies that are weapons and plans to divide the ransom with Somali

Paulo Prada,

a d Ale ‘oth, O the La less “eas, It s Not

Eas Putti g “o ali Pi ates i the Do k, The Wall Street 156

157 Ploch, 36-37. Journal, December 12, 2008, available at Ibid., 34; Warner, 68- , “teh , Mode Pi a : G o i g

163 http://online.wsj.com/article/SB122903542171799663.html. Th eat to “hippi g, Cou te Th eat Te h olog a d Ta ti s, -

Pi a Wo g “ig als, The Economist, May 7, 2009, available 158 ; a d A e,

Thi gs You Do t K o A out “o ali Pi ates. 164 at http://www.economist.com/node/13610785/print. 159 Pi a a d P i ate E te p ise.

165 Ploch, 34-35, and Warner 69-70. Panjabi, 481-84. Warner, 71-

; a d Mi hael O iego, “e helles to E o o i I pa t of Pi a i the Gulf of Ade o Glo al

Esta lish ‘egio al Cou t to P ose ute Pi ates, VOA, May 6, 161 T ade.

2010, available at

Ploch, 31- , a d Ja es P. Te , Eli i ati g High “eas http://www.voanews.com/english/news/Seychelles-to- Pi a : Legal a d Poli Co side atio s, Joint Force Quarterly,

Establish-Regional-Court-to-Prosecute-Pirates-92969969.html. rd 54, (3 Quarter 2009).

shipped through these sea lanes are vulnerable, and necessary to combat pirates at sea. With the creation of could adversely impact dependent economies.

CTF 151, Operation Atatlanta, and Operation Ocean The international community has shown an

Shield the naval effort has made steps in the right inconsistent approach to anti-piracy operations. Catch

direction, but there is more to be done. Piracy can and release and the unwillingness of Western nations to

threaten critical supplies and destabilize regions. If support a stable government in Somaliland are troubling.

globalization is the cause of piracy, this is a threat that The TFG has been unable to govern Somalia, and for a

will be around for the foreseeable future. It is for this period of time it was forced into exile in Kenya, yet the

reason that world powers should use this opportunity to U“ o ti ues to suppo t this go e

learn what they can on how to best fight piracy. SCIC was another example of the US showing a lack of commitment to the anti-piracy mission. The US decided to favor its battle with Islamic fundamentalists and overthrew the one government that had effectively reduced piracy off the HOA.

e t. Ousti g the

There is no cure for Somali piracy, short of a stable government in Somalia. The US refuses to take the steps necessary to ensure that the TFG has the time necessary to establish a functional government. This is due in part to the two land wars that the US is involved in, and the disastrous outcome of Operation Restore Hope. The AU mission in Somalia, AMISOM, is an alternative to a Western, neocolonial peacekeeping mission. If AMISOM were properly manned, equipped, and funded the TFG could have a fighting chance to control Mogadishu and reclaim territory from the Shabab Militia. If the US lent support to Somaliland, Puntland, and the TFG, with AMISOM assistance, in return for anti-piracy measures, piracy would decline. It is the safe haven on land that allows piracy to flourish; if the pirates were attacked on land as well as at sea it would be a less lucrative profession.

Prosecuting pirates is necessary in order to create

a deterrent to committing acts of piracy. Releasing pirates shows a lack of commitment to the anti-piracy mission and is a signal to pirates that there are no consequences. There are, however, economic motivations for Somali fishermen to turn to piracy. The ravaged Somali economy offers few economic opportunities as promising as the piracy.

The US Navy, and its European counterparts, could increase the efficiency of their anti-piracy operations as

well. If the US evolved from the second stage of anti- piracy operations into the third stage, which involves ships and equipment designed for anti-piracy, it could increase its ability to protect shipping. More, smaller ships would have a profound impact on the international task fo es a ilit to e i o e pla es at the sa e ti e, which is a key to interrupting pirate attacks.

Arming ships that transport critical supplies would reduce the threat of those shipments being successfully hijacked. It is not advisable to arm all ships that travel through the HOA, but there are steps that all ships can take to decrease the rate of successful hijackings. Passive defenses such as barbed wire, combined with updated and rehearsed security plans would make merchants harder targets. Travelling at night and during the monsoon seasons would also reduce the likelihood of attack.

Somali piracy will continue to be a threat for years to come; if and when it ends, piracy will most likely develop somewhere else. That is why it is important that the US and Europe, develop mechanisms in order to prosecute pirates, and their navies develop the tools

Counterterrorism Strategies: A Comparative Analysis of Ethiopia and Kenya

Simon Nyambura

Introduction

The contemporary international system, and particularly The failure by states to reach a consensus on a definition the Horn of African sub-region, is faced with enormous

of terrorism has hindered development of universally challenges of maintaining international peace and security.

acceptable counterterrorism strategies. This study will International and domestic terrorism pose one of the major

define terrorism as conceptualized by Stapley (2005). security challenges that confront many countries. This has

Stapley defined terrorism as the use or threatened use forced many countries to institute counterterrorism

of violence on noncombatant populations to create and strategies to deal with terrorism and terrorists. This paper

exploit fear in a larger population for political reasons. 3 critically assesses the counterterrorism strategies and

Like definition of terrorism no consensus has been mechanisms instituted by Ethiopia and Kenya to deal with

arrived at in defining counterterrorism. This paper will the threat of terrorism. The role of the United States (US) is

conceptualize counterterrorism borrowing from Norton also analyzed.

(2006:37), who observes that counter-terrorism may be Counterterrorism strategies in Ethiopia and Kenya are

defi ed oadl as those state a tio s that ai to driven by the United States (US). The two countries have had

suppress terrorist violence, utilizing any or all tools of strong diplomatic and military cordial relations since the

statecraft including the use of military force, criminal law Cold War era. The US has supported the two countries

measures, intelligence operations, regulatory controls, militarily and economically. US foreign policy makers also

a d diplo a . Thus, It can be seen as a preventive and seem to view the two countries as occupying a strategic geo-

responsive mechanism to terrorists activities. 4 location in the Horn of Africa and have kept in a friendly

One major determinant of counterterrorism engagement.

strategy is the regime governance structures within a state. Krueger (2007) and Crenshaw (2001) argue that

Theoretical Argument and Hypothesis

democracies are easier targets for terrorists compared to autocratic regimes. Democracies also find more

The period preceding 9/11 revealed that states prefer to hindrance in their response to terrorists activities due to pursue counter-terrorism policies without recourse to

the open nature of democratic society coupled with international regimes. At that time, state counter-terrorism

scrutiny from human rights groups and the media. policies were characterized by their national particularity,

Kenya, which is a fairly good democracy compared to and focused on domestic terrorists. The development of

Ethiopia which is an autocratic regime, has had to deal counter-terrorism policies reflected domestic political

with human rights groups that opposed anti-terrorism processes and different national approaches, and could be

laws. Specifically, labeling the laws as merely towing to explained by different self-conceptions and institutional

the US drive and its national interests. On the other practices. Despite the end of the Cold War, there remained

hand, Ethiopia has been able to ruthlessly crack down on significant constraints upon multilateral cooperation against

suspected terrorist because of the closed nature of its terrorism. Where cooperation occurred, states preferred

regime.

small groupings of like- minded states, often operating at the regional level, through ad hoc mechanisms, or reacting to events. Of course, states had cooperated multilaterally in

Hypothesis

some ways and had, for example, negotiated 12 international conventions on terrorism-related offences in

Regime type determines ho te o ists target and UN platforms. 1 subsequent counterterrorism strategies implemented by

The Horn of Africa is filled with weak, corrupt, and the government and international community. warring states including one failed state, Somalia, which is

seen as fertile ground for Islamists fundamentalists and

terrorists. Yet, the i te atio al o

u it s espo se to

regional terrorist threats was limited and unsustained.

Ethiopia and Kenya

Following the 9/11 attacks against the United States, the Horn of Africa once again came under intense scrutiny by

The two countries are part of the strategic Horn of counter-terrorism policy makers specialists and remains a

Africa sub-region. The Horn of Africa sub-region is strategic focal point in the American war on terrorism. 2 situated at the southern end of the Red Sea, near the

Strait of Bab al-Mandab, across from the Arabian Peninsula. It provides a prime spot from which to project power and provide rear area support for military

Ald i h, ‘.J. . Da ge ous Liaiso s: Post-September 11

. Te o is : Its Goals, Ta gets, a d I tellige e Allia es. Harvard International Review, 24(3): 50-

“taple , C aig

“t ategies U k o Magazi e.

. A Coalitio of Coalitio s: Dagne, Ted.2002. Africa and the War on Terrorism .Specialist

4 Norton

. Be sahel, N.

I te atio al Coope atio Agai st Te o is . Studies in Conflict in International Relations foreign Affairs, Defense, and Trade

and Terrorism, 29: 35-49.

Division. CRS Report for Congress. http://fpc.state.gov/documents/organization/7959.pdf Division. CRS Report for Congress. http://fpc.state.gov/documents/organization/7959.pdf

o fi i g al Qaeda s fi lo al p ese e. Although the ground for terrorism. Indeed, in recent years, as Chau

1998 bombing of the American embassy in Nairobi (2007) observes, the Horn of Africa has emerged as an

demonstrated the presence of terrorists groups, the important staging area, training center, and a favored

government took a long time to explicitly acknowledge place to target U.S. interests. On August 7, 1998, the Al

the local nature of this threat. Yet, ever since a radical Qaeda terrorist group targeted the U.S. embassies in

Palestinian group was implicated in the bombing of the Kenya and Tanzania. In June 1995, members of the

Norfolk Hotel in Nairobi in 1981, Kenya has been seen as Islamic Group, an Egyptian extremist group, tried to

a soft target by international terrorism experts. 8 assassinate President Hosni Mubarak of Egypt in Addis

Evidence unveiled during the trial in New York of Ababa, Ethiopia. 5 four men linked to the bombing of American embassies Chau adds that most of the Horn of African

in East Africa in 1998 revealed a terror network that had countries overwhelmingly expressed their support for

flourished in Kenya, taking advantage of lax immigration the U.S.-led efforts on the war against terrorism shortly

and security laws. The core leadership of the Kenyan cell after the September 11 attacks on New York and

consisted primarily of citizens of the Gulf states, Somalia, Washington. Some Horn of African countries are sharing

Pakistan, and the Comoro Islands who had assimilated intelligence and are coordinating with Washington to

into local cultures along the Indian Ocean sea- board. fight terrorism in the sub-region. The governments of

They, in turn, gradually recruited local Kenyans, Kenya and Ethiopia are working closely with U.S. officials

particularly from the coast. Due to the corruption to prevent fleeing Al- Qaeda members from establishing

endemic in the immigration system, foreign residents of

a presence in Somalia. The Horn of Africa may not be as the Kenyan cell obtained citizenship and set up small important to the United States in this phase of the war

businesses and Muslim non-governmental organizations against terrorism as Pakistan, but in the next phase of

(NGOs). 9 the terror war the Horn of Africa may prove to be key. 6 Kagwanja (2007) further observes that Al Qaeda The CIA World fact book estimates the population

struck again in November 2002 with an attack on the and religious composition of the two countries to be as

Paradise Hotel in Mombasa and an attempt to shoot follows:

down an Israel airliner in Mombasa. The coordinated

Ethiopia

assault also o fi ed al Qaeda s lo al suppo t a d  Population: About 85 million people.

illustrated their ability to evade Kenyan security while  Religion: 60% Christians 32% Muslims

transporting arms like the surface-to-air missiles (SAMs)  Landlocked country no navy.

used in the attack. One can hence argue that there is growing evidence of an indigenous terrorist movement

Kenya

in Kenya.

 Population: 39 million. After the arrest of the Yemeni suspects linked to al  Religion: 80% Christians 10% Muslims.

Qaeda i “o alia i Ma h , Ke a s fo eig  Indian Ocean has navy

ministry acknowledged the involvement of Kenyan nationals in the 1998 and 2002 bombings. The first phase

Threat of Terrorism in Kenya

of arrests focused solely on foreigners, in particular, Yemeni, Pakistani, and Somali. In the second phase of

Kenya is perceived as a soft target for terrorist arrests, the bulk of the suspects have been local people activities. There are many Western interests in Kenya,

linked to businesses. There have also been inconclusive which form a good target for terrorists. On August 7,

reports of links between the Kenyan cell of al Qaeda and 1998, mid-morning explosions killed 213 people, 12 of

the largest radical Islamist group in Somalia, al Ittihad al whom were U.S. citizens, at the U.S. embassy in Nairobi,

Islamiya (AIAI), stemming from the apparent mobility of Kenya, and eleven people (non-Americans) at the U.S.

some of the key leaders between Kenya and Somalia, embassy in Dar es Salaam, Tanzania. As many as 5,000

e e s, AIAI is the ost people were injured in Nairobi, and 86 in Dar es Salaam.

AIAI s ase. With ,

powerful radical band in the Horn of Africa, and it has On August 20, 1998, President Clinton directed U.S.

been funded by al Qaeda in the past. Other reports have military forces to attack a terrorist training complex in

identified the Dabaab refugee camp on the Somalia- Afghanistan and pharmaceutical factory in Sudan

Kenya border as a training ground for Islamic extremists, believed to be manufacturing precursors for chemical

through a Muslim charity, al Haramain, that has weapons. 7 established religious schools and social programs. In

The terrorists activities in Kenya have for a long 1998, Kenya revoked the registration of Muslim NGOs, time been perceived as the work on external forces,

including al Haramain, because of their links to however, in May, 2003, the Kenyan government 10 terrorism.

admitted that a key member of the al Qaeda terror

5 Donovan C. Chau, Political Warfare in Sub-Saharan Africa: U.S. 8 Kag a ja, Pete . Glo al Cop U“A “eeks Mo e P ese e i Capabilities and Chinese Operations in Ethiopia, Kenya, Nigeria,

Af i a, Nation (Nairobi), July 20, 2007, available from and South Africa, Carlisle, PA: Strategic Studies Institute, U.S.

http://africapi.org/siteimages/Africa%20Policy%20Brief%20No.

Army War College, March 2007. 6 %2029%202007.pdf 9 .

7 See footnote 5 above.

See footnote 8 above.

For more, see Dagne, Ted. 2002.

10 Ibid

Challenges

The Kenyan parliament has been unable to reach a consensus on enactment of the Anti-Terrorism Bill and the Anti-Money Laundering and Combating the Financing of Terrorism. Muslim human right groups opposed two bills in legislation as being imposed by the US. This has blurred the fight against terror due to weak legal framework.

U.S.-Kenya Relations on Counterterrorism

From the 1990s to today, USG initiatives have mutated from the African Crisis Response Initiative (ACRI) to the African Contingency Operations Training and Assistance program (ACOTA) and now the Global Peace Operations Initiative (GPOI). The U.S. has been relatively active in the Horn of Africa for example theU.S. led UN Unified Task Force engaged in Operation RESTORE HOPE (December 1992 to May 1993) in response to the Somali humanitarian crisis after civil war erupted with the fall of the Siad Barre regime. U.S. forces continued participating in the UN Operation in Somalia (UNOSOM II). In October 1993, the U.S. led Task Force Ranger (composed primarily of Special Operations forces) engaged Somali militia forces in Mogadishu, which resulted in the deaths of 18 American soldiers. As

a result of American deaths, U.S. forces withdrew in March 1994, but later returned in February 1995, to complete withdrawal of UN forces the following

month. 11 U.S. and Kenyan forces have conducted regular t ai i g e e ises k o as Edged Mallet si e along the northern coast. According to the US Department of Defense (DOD), the exercise is designed to strengthen military to military relationships, increase interoperability, familiarize U.S. personnel with the environmental and operational characteristics of Kenya, demonstrate amphibious capabilities, refine and maintain operational readiness of participating forces, and promote rapport and understanding between Kenyan and U.S. personnel. Since 1980 and, more recently early 1990s, the United States has had informal military access to Kenyan facilities in exchange for military assistance. The defense approach has facilitated this access to Kenya, demonstrating one of the benefits of this type of approach. In addition to its military to military relations, the history of U.S. engagement in Ke a s politi al, e o o i and social spheres has created a sound ally for the DoD in East Africa, st ategi all sig ifi a t due to Ke a s useful positio astride the western Indian Ocean as well as its support

for Western interests in the region. 12

As early as January 2002, the U.S. military directed intelligence assets to conduct surveillance and reconnaissance missions over parts of Somalia. U.S., British, and French aircraft were known to have taken photographs of suspected terrorist (specifically, al Qaeda) training sites and facilities. Later that year, DoD

11 Brown, John. 2006. The United States Army in Somalia 1992- 1994. pg. 7-10 available at

http://www.history.army.mil/brochures/Somalia/Somalia.htm 12 Kagwanja, 2007.

established the Combined Joint Task Force-Horn of Africa (CJTF-HOA), which arrived in the region in December and went ashore to a former French Foreign Legion outpost, Camp Lemonier, in May 2003. Nearly from the onset, CJTF-HOA operations have included humanitarian missions (infrastructure and water resource projects), medical missions (such as dental and veterinary), as well as military training missions. DoD, thus, spent little time solidifying its position in the Horn of Africa for future counterterrorism missions, which is a tangible onset of the defense approach. Before CJTF- HOA landed ashore, simultaneous terrorist attacks struck the Kenyan port town of Mombasa in November 2002. Al-Qaeda used a car bomb to attack the Israeli-owned Paradise Hotel (killing 18) and unsuccessfully attempted to shoot down an Israeli charter aircraft using surface-to- air missiles. In the wake of the Mombasa attacks and a heightened state of security, plain-clothed U.S. Marines were deployed in May 2003 throughout the Kenyan capital of Nairobi in the vicinity of embassies and soft targets such as foreign residences and an outdoor shopping center frequented by Westerners. U.S. and British Marines also conducted missi o s alo g Ke a s borders with Sudan and Somalia. In this case, U.S. policy was reactive again favoring the defense approach to

counterterrorism. 13

Security cooperation has long been an important aspect of Kenyan-U.S. relations, underscored by airbase, port access, and over-flight agreements since the Cold War. Since 1998, the United States has spent nearly $3.1 million on anti-terrorism assistance, including training more than 500 Kenyan security personnel in the United States. These programs have been complemented by other initiatives such as the U.S. donation of $1 million in ai po t se u it e uip e t u de the “afe “kies fo Af i a p og a to i p o e a iatio safet . Ke a is a important partner in the U.S. Combined Joint Task Force –Horn of Africa (CJTFHOA) in Djibouti that seeks to check terrorism. This program envisages the U.S. training of regional militaries in counter-terrorism procedures. Furthermore, as part of the multinational campaign, a special anti-terrorism squad, composed of the German Naval Air Wing, is currently based in Mombasa to monitor ships plying the Gulf of Aden and the Somali

coast. 14 Counterterrorism

is

viewed with mixed perceptions and emotions in Kenya. The political context of tends that shape local views. In Kenya, for example, political opposition in the forms of human rights campaigners and coastal Muslims has prevented counterterrorism legislation from passing. The aggrieved view such measures as forms of victimization and denial of due process of law, which in turn illustrates their exclusion from political power.

13 Donovan C. Chau. 2008. U.S. Counterterrorism in Sub-Saharan Africa: Understanding costs, cultures, and conflicts. Pg. 24-28.

Available at: http://www.strategicstudiesinstitute.army.mil/pdffiles/PUB821. pdf 14

Kagwanja, 2007.

Terrorism threat in Ethiopia US- Ethiopia Relation on Counterterrorism

In June 1995, members of the Islamic Group, an In December 2006, the Ethiopian military launched Egyptian extremist group, tried to assassinate President

an intervening attack into Somalia after the Islamic Hosni Mubarak of Egypt in Addis Ababa, Ethiopia. The

Courts Union (ICU) overtook the fledgling Somali eleven-man assassination team had been given safe

Transitional Federal Government (TFG). Perhaps haven in Sudan where they prepared for the

unknown to the ICU, the US DoD has been on a quiet assassination. The team was divided into two groups:

campaign to capture or kill al-Qaeda leaders in the Horn nine were sent to Ethiopia to carry out the assassination;

of Africa since the 1998 embassy bombings in Nairobi and two remained in Sudan to plan and direct the killing

and Dar es Salaam. For several years, DoD has been of Mubarak. The weapons used in the assassination

troops for counterterrorism attempt were flown into Ethiopia by Sudan Airways,

training

Ethiopian

operations in camps near the Somalia border, including although the Sudan government denied complicity in the

Ethiopian Special Forces known as Agazi Commandos. foiled attempt. 15 The U.S. military used an airstrip in eastern Ethiopia to

Ethiopia is a Marxist-Leninist regime that has mount air strikes against Islamic militants in neighboring practiced governmental terrorism since the overthrew of

Somalia, launching two AC-130 gunship strikes on Emperor Haile Selassie in 1974. Ethiopian Airlines has a

January 6 and 23, 2007. Furthermore, it is believed that history of airplane hijackings. Al Ittihad al Islamiya (AIAI),

there was significant sharing of intelligence with the based in Somalia, and indigenous local groups including

Ethiopian military on ICU positions, including the use of the Oromo Liberation Front, the militant wing of the

American satellite information. In addition, a U.S. Special Ogadeni National Liberation Front, and the now

Operations unit, Task Force 88, was believed to have quiescent Islamic Front for the Liberation of Oromia

been deployed in Ethiopia and Kenya and ventured into have carried out kidnappings, assassination attempts,

Somalia. 19

mining of roads, and bombings of bars, hotels, and The final example of U.S. counterterrorism in SSA public buildings. But Ethiopia appears to have remained

is the aforementioned formation of AFRICOM, which free of terrorist attacks instigated by al Qaeda and other

deserves further discussion here. Announced in February Middle East terrorist groups. 16 2007, AFRICOM achieved initial operating capability as a

Recent relations between Muslims and Christians sub-unified command in October 2007 and is intended have been generally cordial. Ethiopian Muslims have not

to achieve full operating capability (as a stand-alone been receptive to Islamic radicalism and lack centralized

. Mu h of AF‘ICOM s ission power. They tend to identify first with their ethnic kin.

a d i O to e

area will center on war prevention and a so-called Muslims and Christians are geographically intermixed

Phase )e o st ateg of e gage e t, hi h throughout most of the country. Islam in Ethiopia has

encompasses preventing conflicts at their inception been benign during the past century. But there is

using all available means such as theater security 20 potential for religious conflict. A few hundred Ethiopian

cooperation and allied capacity building. Muslims marched in Addis Ababa to demonstrate

A final example of the development approach was support for Iraqi leader Saddam Hussein during the 1991

initiated in June 2003. The United States announced a Gulf War. Ethiopian security forces quickly dispersed

$100 million commitment for the East Africa them. After Ethiopia joined the coalition of the willing

Counterterrorism Initiative (EACTI). EACTI provides agai st “adda Hussei s egi e i

, poli e 17 counterterrorism equipment, training, and assistance to prevented a Muslim demonstration in Addis Ababa. six countries in the region: Djibouti, Eritrea, Ethiopia,

Ethiopia has a tough, effective security apparatus Tanzania, Uganda, and Kenya. 21 that dates f o the e olutio a oppositio s lo g conflict with the Derg regime. Many security service

Conclusion

personnel are veterans of this military campaign. Their tactics are firm, some would say harsh, and they have

If Ethiopia and Kenya, with the support of United developed

States, are serious about dealing with terrorism in the Corruption seems to be minimal in the service. As a

an impressive

operational

capacity.

Horn of Africa, the first step must be to greatly enhance result, Ethiopia is not as soft a target as nearby countries

human intelligence on the ground. The Horn of Africa is a such as Kenya, Tanzania, and Uganda. But its security

society in which telephones are rare, Internet service is far from infallible. 18 communications is severely limited those in the capital and business deals depend largely on familial relationships. Thus, high-tech monitoring systems are of little use. People must be on the ground, not just in the capital but also in rural and remote areas in order to map the connections and trace financial patterns that

can be used by terrorists. Conditions that favor al

Qaeda s operations in Horn of Africa include: corruption;

15 Donovan, 2008. p. 26-27 16 Douglas, Farah. 2004.

Naiso Ngo a, Ci il-Military Relations in Africa: Navigating Donovan C. Chau, 2008. pg. 20-21 U ha ted Wate s, African Security Review, Vol. 15, No. 4,

20 Donovan C. Chau, 2008. pg.1-3.

December 1, 2006, p. 99. 21 Donovan C. Chau, 2008. pg. 10-12.

conflicts over natural resources that are little studied or understood; lack of government control in vast areas; the emergence of sophisticated organized criminal networks and the failed State of Somalia need to be dealt with promptly as they are the ideal operating grounds for terrorists and other groups that pose significant threats Ethiopia, Kenya and U.S. national security and the stability of much of Horn of Africa.

There is also a need to deal with fear that counterterrorism is being used in some of the Horn of Africa countries for regime survival and state security rather than to actually prevent terrorist attacks from occurring. This is seen to undermine the democratic gains that have been released since the introduction of political pluralism in most of the countries in the sub- region

Cyber-terrorism

Jack Jarmon

The Internet is a critical infrastructure necessary to the government, finance, energy, etc., have intensified our functioning of commerce government and personal

upo ICT. communication and national security. The system is not secure. – Intelligence and National Security Alliance

so iet s use a d depe de

In cyberspace, the war has begun

report, November 2009 What, then, is cyberspace? Metaphorically, it is In a 2002 report prepared by the Center for

the realm of computer transactions. Physically, it is the Strategic and International Studies (CSIS), Jim Lewis, a

hardware, software, and transport elements that equate former official with the Department of State and the

to the network architectures through which energy Department of Commerce wrote:

passes delivering information. However, less specific or technical - but as unerring, is the definition by the

The idea that hackers are going to bring the nation to its science-fiction novelist William Gibson who first knees is too far-fetched a scenario to be taken seriously.

introduced the term. In his 1984 book Neuromancer, he Nations are more robust than the early analysts of

a o se sual hallu i atio . …A Infrastructure systems [are] more flexible and responsive

expresses cyberspace as

cyberterrorism and cyber warfare gave them credit for.

graphic representation of data abstracted from the in restoring service than the early analysts realized, in

banks of every o pute i the hu a s ste . part because they have to deal with failure on a routine

Although both definitions can be considered true, for the basis. 1 purposes of this book the definition offered by the U.S. Joint Chiefs of Staff is the most appropriate for the

Six years later, in its 2008 report, Securing

following discussion:

Cyberspace for the 44 th Presidency, the same CSIS concluded:

A domain characterized by the use of electronics and the electromagnetic spectrum  to store, modify, and Cybersecurity is among the most serious economic and

exchange data via networked systems and associated national security challenges we face in the twenty-first

physical infrastructure. 3

century. Our investigations and interviews for this report made it clear we are in a long-term struggle with

This st ategi defi itio , athe tha Gi so s criminals, foreign intelligence agencies, militaries, and

e spa e a d others with whom we are intimately and unavoidably

hallu i atio , allo s us to dis uss

attendant concepts with the same terms that we use to connected through a global digital network; and this

understand and express our notions about the oceans, struggle does more real damage every day to the

economic health and national security of the United the ecosystem, outer space, or other frontiers of human States than any other threat. As one general put it in his

endeavor where serious challenges co-exist alongside briefing to us: In cyberspace, the war has begun.

opportunities for cooperation. However, to have a basic grasp of those concepts and terms, we need to devote

Interestingly, the project director for the 2008 some time and explanation to clarifying the elements report was, again, Jim Lewis. The contrast of analysis is

and scientific principles that make comprehension of the not only striking for its reversal of positions, but also in

current information/communication system possible. its tone. The 2008 report called for a profound

Also, such familiarity with the facts gives us a sense of reorganization of our national defenses that embraces a

the s ste s f agilit a d our own national vulnerability. spirit of partnership between the US Government, its

An understanding of cyberspace begins with an allies, and the private sector. It also urges a break with

understanding of telecommunications. In cyberspace the past on issues of de-regulation, security

circuits, or routes, that information travels can be classification, and the call for leadership in order to drive

physical (copper wiring, optical cable) or radiation based forward a comprehensive cybersecurity strategy. The

(microwave, WiFi). Vulnerability to attack is a feature of authors also concede that the information age has

the transmission medium. Physical connections are forced us to re-think how federal government operates

subject to tapping and severed connections. Radiation across boundaries within and outside itself. 2 based connections can be disrupted from broadcasted

How such previous attitudes could have been electro-magnetic signals. Walter Morris, Computing overturned so radically in a relatively brief span of time reveals more about the dynamic of the information- communication technology (ICT) revolution rather than

 What is known as the electromagnetic spectrum is the it does about errors in a pa ti ula e pe t s a al sis. Not

combination of electric and magnetic fields. The reciprocal only the pace of technology but also the rate of growth

relationship between electricity and magnetism form the and expansion of critical infrastructures, such as

medium. When these forces are unified mathematically they create electromagnetic (EM) waves of radio and light. The oscillation of atomic interaction determines wave frequencies, which govern over such properties as visibility, energy, and can

1 C e te o is : Ho ‘eal is the Th eat, U ited “tates create the separate pathways, or wavelengths, along which

2 Institute of Peace, December 2004 th

information streams.

“e u i g C e spa e fo the P eside , Ce te fo 3 Yannakogeorgos, Panayotis, Technologies of Militarization and Strategic and International Studies Commission Report,

Security in Cyberspace, doctoral dissertation, Rutgers University, Washington, December 2008, p. 78

April 2009, p. 28

Manager at Rutgers University, offers a wide-angle perspective on the domain of telecommunications:

While cyberspace refers to a non-physical abstraction, it is achieved 
 using computers networked via various means of communication. 
 Information is exchanged between the nodes on a network in numerous ways, some physically connected

transmitters/receivers. Whether physically connected or radio

transmitted, the integrity and security of these circuits

a e ested i the o u i atio s ste s a ilit to redirect traffic to alternative pathways in the event of circuit failure. Whether a copper-based, wireless, or optical data transport environment, a network is

resilient to outside physical attack and disruption due to this fundamental element - redundancy. A simple but significant feature, redundancy merely refers to the multiple paths by which information flows. As stated above, those multiple pathways can be copper wiring, radio frequency, or optical fiber. As long as communication flow has a reliable and alternate (redundant) route, the circulation of information continues as a matter of routine.

The material elements of these paths made little difference in the original scheme. The ability to withstand an intentional or natural onslaught and maintain operational stability by diverting a signal to an alternative routing system was the only concern in the early design, and is still the major concern today. What has changed is the growth of these networks, the volume of information transmitted, the threat vector, and our struggle to adapt to a new and perilous environment. These changes arose from the natural and irresistible forces of technological development and advancement.

Once optical cable made possible the transport of high volumes of data at the speed of light, the growth in optical fiber networks over copper cable systems surged robustly and irreversibly. The change over in technology set loose immense growth in the capacity and efficiency of I/C networks. It also unleashed a dependence on electronic networks, which is nothing less than a systemic addiction. Although optical fiber cannot yet replace copper in every instance, its impact on telecommunications has been momentous and incontrovertible. In a frequently used metaphor, wavelengths of light are the traffic lanes, which information travels along the information highway. When lanes become inaccessible or over-burdened with data, we use alternative routes by switching lanes or adding more. Adding more lanes, or in other words, widening the bandwidth was the solution and one of the drivers of investment craze of the late nineties. It, also, may have been a contributing factor to the over- investment and eventual implosion of the telecommunication industry.

What, exactly then, is it that streams along the information highway? In most transport forms, electronic messages are disaggregated into bits of data at the origin point - contained and sent in the form of small packets that have routing information in what is

called a packet header. Routers along the network read the packet headers and relay the packets toward their destination. At the destination point the data is re- assembled as packets arrive to form the original message. A breakdown or interruption of transmission any place along the network will not cause a system failure. The data packets will simply be rerouted. Unless messages are encrypted or transmitted over virtual private networks (VPNs), information flows according to this ode of t a spo t. The s ste s ope ess contributes to this resiliency as well as its vulnerability. VPNs are often considered more secure. However, as opposed to a packet routing system, if a message is intercepted at a point within a VPN or an encryption decoded before it reaches its destination, the message can be revealed and security is compromised.

The data packet system relies upon standardized communication protocols to assure operation and control. The Transmission Control Protocol/Internet Protocol (TCP/IP) is the common set of protocols (the rules governing the transmission of data between devices) invented in the early stages of development, and used today to form the global system of interconnected networks. It is the military grade protocol suite that transports packets of information between devices and throughout the network as it verifies correct delivery between servers. By reading the IP header, a routing device can determine the source and destination of each packet. The critical information in the IP header allows the transport layer of the TCP/IP, o p oto ol sta k to ope ate a oss et o ks. The IP header is simply a string of numbers that machines, such as routers, read to direct packets toward their destinations and, hence, form connections. At the receiving end, the header carries information that also instructs the destination computer how to recreate the message from the incoming packet data.

These strings of numbers, by which machines communicate, are translated into letters by the Domain Name System (DNS) for easier understanding by

humans. Therefore, rather than having to type 66.249.90.104 when accessing a search engine, you can enter the more user friendly Uniform Resource Locator

U‘L : google. o . Thi tee oot se e s house the DNS databases, which facilitate translation between IPs and URLs. The former U.S. Department of Commerce agency, Internet Corporation for Assigned Names and Numbers (ICANN), allocates top-level designations such as com, org, edu, and so on, and maintains and updates the data. ICANN is now a private entity, and as a result of international pressure, has recently facilitated the movement from a less English-centric system of domain naming to accommodate other languages. The policy shift is a modest signal that there may be progress away from a U.S. - dominated Internet toward a spirit of international cooperation and a truly global public good.

The Inception of Cyberspace

In 1968 the Advanced Research Projects Agency (ARPA), which later became the Defense Advanced Research Projects Agency (DARPA), began work on what In 1968 the Advanced Research Projects Agency (ARPA), which later became the Defense Advanced Research Projects Agency (DARPA), began work on what

e t s o igi al i te sio p oje t s goal as to i e t a o

o pute s. Due to the go e

to keep the function and system limited and proprietary, which could sustain physical attacks and survive

u i atio s et o k,

much of the security issues we face today are inherited malfunctions occurring at other points along the system.

traits of a previous generation of development. ARPAnet, as it was called, required a minimum level of

Today the Department of Defense, alone, has security because the number of users were, initially

15,000 computer networks and seven million computers small, trusted, and known to one another. Shortly after

and other network devices. DoD withstands more than the inception of ARPAnet, the National Science

three million log-ons each day. 7 For the above reasons Foundation (NSF) realized the potential impact this

TCP/IP, which lacks even base security controls, is technology could have on university research.

perilously outdated. 8 It is from this design of over thirty- Unfortunately, to have access to ARPAnet an institution

five years ago that the current network of connection had to have a research contract with the Department of

support between autonomous systems and domain Defense. The disadvantage of having no contractual

name services depends. Therefore, the Internet is relationship with DoD put many universities outside the

inadequately secure by these current communication circle, or circuit, of research and information sharing.

protocols. Despite our good intensions, in the haste to Under such conditions the full potential of these new

maximize its utility we have sacrificed resiliency and skills and equipment would not be met.

imperiled the stability of the many networks, upon In order to provide an apparatus to keep pace with

which we so dearly depend. As if conceding these the technology, the NSF created a successor system

points, among its defensive strategy recommendations, called NSFNET. NSFNET linked to ARPnet with a

the National Research Council goes as far as to urge: backbone network, which employed TCP/IP. From the

Mi i al e posu e to the I te et, hi h is i he e tl start NSFNET was an instantaneous success and within a

i se u e. 9 As a result of several top-level meetings (and, short time, became overloaded. The NSF realized it

e datio the could not continue financing the build out indefinitely

pe haps, i espo se to the N‘C s e o

Bush White House launched its National Cybersecurity

Initiative (CNSI) during the waning days of its the 1990s companies called Internet Services Providers

and, therefore, set plans for its commercialization. 4 By

e -i itiati e i luded a (ISPs) overtook an Internet, which previously had been

ad i ist atio . The

dramatic re-scaling of the points at which federal dominated by government, university, and industrial

networks connect with the Internet. The Office of researchers. These ISPs competed in regional areas

Ma age e t a d Budget set a li itatio of poi ts of based upon price and quality of service, and in the

. Ho e e , i Ma h , the process signed up millions of customers. As Andrew

p ese e Ju e

Homeland Security Secretary, Michael Chertoff Tannenbaum remarks in his seminal work, Computer

10 e et, ith espe t Networks:

e a ked: e ha e o fi al u

to a su e of all poi ts of p ese e. According to Bruce McConnell, former chief of information Many people like to criticize the Federal Government

technology and policy at the Office of Management and for not being innovative, but in the area of

Budget, T i g to atalog he e thi gs a e so ou a networking, it was the DoD and the NSF that created

is a dau ti g task i a d of itself. 11 the infrastructure that formed the basis of the

turn them off

Internet and then handed it over to industry to

operate. 5

As the modern Internet grew beyond its original, conceptual boundaries, features such as the capability to

have voice communication or Voice over Internet Protocol (VoIP) were added. This made it increasingly

depended upon the Public Telecommunications Network

(PTN). The expanding interdependency between PTN and the Internet further elevates the risk of

infrastructure vulnerability. Since PTN has become more software driven, our reliance on computer networks has intensified. Increased usage demanded a need for larger scale of operations and resulted in the

7 L , Willia , Deput “e eta of Defe se, i U“ C eates creation of more access points.

a d to Defe d Co pute Net o ks, At its inception as a U.S. military project the

Milita C e Co

Global Security, 15 June 2009 8

I te et s se u it o e s e e i i al. It as a Ha o k, Bill, Ho to “top Talki g A out-And Start Fixing open system because it was closed to others outside its

e “e u it P o le s, Cutte IT Jou al May 2006), in small circle of users with authorized access to specific Yannakogeorgos, p. 212 9 Making the Nation Safer: The Role of Science and Technology government-owned and sponsored large mainframe

in Countering Terrorism, National Research Council of the National Academies, The National Academies Press, Washington, D.C., 2002, p.150

4 Tannenbaum, Andrew, Computer Networks, Prentice Hall PTR, 10 Ha is, “ha e, Chi a s C e Militia i National Journal Upper Saddle River, NJ, fourth edition, 2003, p. 56-8 5 Magazine, May 31, 2008,

6 Ibid, p. 56 http://www.nationaljournal.com/njmagazine/cs_20080531_69 Nasheri, Hedieh, Economic Espionage And Industrial Spying, Cambridge University Press, 2005, p. 98

11 48.php Ibid

INTERNET ARCHITECTURE

some time to come – for our adversaries to create an offense than for us to create a defense.

Source: Computer Networks, Prentice Hall, 2003 The April 2009 Cyberspace Policy Review Report and others have also called for a national comprehensive strategy that includes codes and best practices standards. Until these situations are addressed, the

conclusions, doubts, and fears expressed above will remain.

Unfortunately, the barriers to amending the prevailing security environment are severely challenging to national governments and international commerce. The private sector primarily owns the electronic infrastructure, making security a business decision. In order to meet the demands of global commerce, corporate strategists are forced to favor their revenue generating units over investment in security. As long as the threat of catastrophe remains only an abstract fear, corporate boards will continue to view their responsibilities as vested in creating and accumulating assets, while leaving to subordinates the job of protecting those assets.

Equally unfortunate is that the public sector often

takes its cues from the private sector. Deregulation of the telecommunications industry by obliging legislation

In the view of the above assessments, our present and government agencies has over time helped to security challenges are unmet. No longer a closed

accelerate the growth of the Internet. Subsequently, the research project, but rather a global public good, the

increased in the number of networks and access points architecture suffers from host of vulnerabilities. A

only increases the opportunity and odds for an attack. report released on May 29 th , 2009 by the Acting Senior

This lack of regulatory oversight has had its impact on Director for Cyberspace assessed the information and

security. The lack of benchmarks to uphold security communication infrastructure as thus:

standards and the failure to create any incentives for industry to seriously self-regulate has consequences for

Without major advances in the security of these national security. With only market incentive to drive systems or significant change in how they are

the demand for improved and secure protocols, even constructed or operated, it is doubtful that the United

existing methods and approaches to network security, States can protect itself from the growing threat of

although well known, are foregone. 15 New technologies cybercrime and state-sponsored intrusions and

that would create a more robust security network are, to operations. Our digital infrastructure has already

suffered intrusions that have allowed criminals to steal the lament of many, under-developed. Rather than a

hundreds of millions of dollars and nation-states and distributed security dynamic, the current system is an other entities to steal intellectual property and

assembly of off-the-shelf components in practice to sensitive military information. Other intrusions

maximize existing capacity. 16 Hence, partly because of threaten to damage portions of our critical

over-dependence in market forces, the current system is infrastructure. These and other risks have the potential

left open and dangerously at risk. This benign neglect to u de i e the Natio s o fide e i the

could, at some future point, be a root cause of a national information systems that underlie our economic and

catastrophe. Writing in 2006, Dan Verton remarked in national security interests. 12 Black Ice: The Invisible Threat of Cyber Terrorism:

In the absence of a major upgrade in system … the o ept of allo i g market forces to dictate security the approach to se u it has ee a pat h o k

13 of niche products and work- security requirements remains the centerpiece of the

G.W. Bush ad i ist atio s poli o e se u it … are responsible for many analysts claiming that security

a ou ds.

Such methods

government regulation of the Internet and software will always be a step behind attackers. 14

As Melissa 17 security requirements is out of the question. Hathaway, lead member of the team, which prepared

the 60-Day Cyberspace Policy Review for President The author presses the point to suggest that such Obama, stated:

approaches to national security by the previous … ou te h i al defe ses ha e ot kept pa e ith the

administration nearly abdicates any role it had for this threat, and it remains easier today – and I suspect for

12 Cyberspace Policy Review: Assuring and Trusted and Resilient Information and Communication Infrastructure, April 2009

15

16 Strategic and International Studies Commission Report, Making the Nation Safer, p.145 14 Washington, December 2008, p. 58

13 “e u i g C e spa e fo the

th P eside , Ce te fo

17 Ibid, p.141, 152 Verton, Dan, Black Ice: The Invisible threat to Cyber- Nasheri, Hedieh, p. 51

Terrorism, McGraw-Hill, Emeryville, CA 2006, p.25

responsibility. 18 The continuing competitive pressure of the free market economy has forced the world systems of communication and transport to outgrow the apparatus of international laws, codes, and commercial best practices standards. These factors facilitated trade in the industrial age. However, in the information age, the clash of modern technology, economic imperative, and the current structure of interstate relations is a significant hindrance to reform. Despite the complexity of the threat and the problems that a vulnerable ICT infrastructure present, a security regime at any level will not have consensus support if, at the same time, it does not enable business. The policy dilemma is how to assure that information is secure and commerce is not compromised. Cyberspace today, as with the global supply chain, bears a set of formidable traits: enormity of size, opaqueness, complexity, and hence - vulnerability. It is another anarchic realm where states sometimes view cooperation as contrary to national interest. Global corporations can simultaneously be victims and unsuspecting abettors of crime. It is also an environment where the definition of what constitutes illegal activity, acts of war, and ownership of property rights and accountability remain obscure. Furthermore, in addition to these conditions is the complexity of a st uggle ith i ti ate a d u a oida le ad ersaries

oted i the C“I“ s epo t. Ad e sa ies i this ase a

be state and non-state actors, previous foes or traditional allies. The world has changed dramatically since the inception of the Internet with the advancements in technology. The upgrade in architecture, security, and policy should also reflect the change in culture and the new nature of competition.

The Militarization of Cyber Space From its beginnings as a closed military project

cyber space has undergone several generations of evolution. With the commercialization of the Internet in the early 1990s, the increase in efficiency, reduction of

cost, ease of access, and inherent insecurity has shaped the way we must now approach our method of

interaction and commerce and the attendant issues of national defense and global competition. Today, it seems ironic that as the Internet expands to become a vast public good that we may be faced with the prospect of its re-militarization. However, in this scenario the reality is far more threatening and the consequences far less fathomable. As national borders become blurred by the imperatives of global commerce and manipulated by the lure of transnational crime, so do the roles of state and non-state actors become complex and transformative. The transformation may well determine the way we assess power alignments, rules of governance, and the separation of human, sovereign, and individual rights of privacy.

Despite the hope that many had that the information age would bring with it new accesses to empowerment and a spirit of democracy, the trend is that these hopes may give way to a revived and ominous

Yannakogeorgos, Panayotis, Promises and Pitfalls of the National Strategy to Secure Cyberspace, Division of Global Affairs, Rutgers University, 2009, p. 9-10

era of competition between states. Signaling these developments, in November 2008, the U.S.-China Economic and Security Review Commission made the following recommendation to Congress:

The Commission recommends that Congress urge the Administration to engage in consultations with its allies on an alliance based approach to dealing with cyber

attacks originating in China. 19 The study further asserts that Chinese military

planners believe the United States is waging a cyber- based war on their nation, and therefore, in order to protect their intelligence and infrastructure assets China

ust de elop its o apa ilities. These apa ilities will not only allow China to defend its own exploitable weakness, but also wreck havoc upon the U.S. system, which they believe is extremely vulnerable because of its dependency on information technology. Additionally, the autho s ai tai that pa t of Chi a s st ateg is the contention that pre-emption is key to the success in an outbreak of hostilities, either, conventionally or with

respect to cyber operations. 20 However, in a report compiled by Chatham House, the assessment is that Chi a s p i a fo us has ee i preparation for counter strike capabilities, rather than a first strike maneuver. Yet, the same report goes on to say:

In order to offset its conventional weakness the PRC is transforming its armed forces from a mechanized to an

i fo atio fo e a d ha e stated they intend to use i fo atio as a tool of a o as a a to a hie e

i to ithout a . 21

In the post-Cold War era of conflict cyber capabilities are asymmetric capabilities that allow a less armed opponent to engage a stronger military foe effectively and successfully. The ability to disrupt, delay, or obfuscate conventional operations affords those with limited military power a menacing defensive and offensive advantage. Without the release of a single missile, bomb, or lose of life, the United States could be completely paralyzed. Our dependence on inter-locking networks for commerce, financial services, communications, utility grids, government and military logistical needs, leaves the U.S. a nation at risk. Whether they are private sector networks, unclassified government archives, or classified and secure systems – all are vulnerable to varying degrees. What is more, as the general interviewed in the 2008 CSIS report asserts: the war has begun.

Beginning in 2003, investigators believe that cyber attacks originating in China have systematically and routinely been launched against government targets in the U.S. This massive cyber-espionage operation,

ode a e Tita ‘ai , is the a het pe of post-modern warfare. The operation illustrates not only the paradigm shift of technology and strategy, but also the potential

19 2008 Report to Congress of the U.S.-China Economic and Security Commission, p. 168

20 Ibid. p. 166 21 Cornish, Paul, Livingston, David, Clemente, Dave, Yorke,

Clai e, O C e Wa , Chatha House ‘epo t, November 2010, p. 6 Clai e, O C e Wa , Chatha House ‘epo t, November 2010, p. 6

e ou age e t. 25 These individuals are often trained extended future. More immediately, Operation Titan

at Chinese military academies in cyber operations and Rain reflects an inadequacy by our current defense

the transference of such skills to the new arena of cyber structure to assess and respond effectively and even

war is seamless. As Robert Keohane and Joseph Nye legally to such attacks. The assault calls into question

have noted above, the environment of competition issues over jurisdictional responsibilities, rights of

wrought by globalization has transformed and redefined privacy, and the roles of nation states and the private

military tactics. In their assessment it is not, necessarily, sector over accountability for security.

et of glo al ilita po e and the inter-connections among networks [has raised]

desig that the as

e optio s fo a fa e. Yet, eithe is it e e random choice that they cite the Chinese in their examples as major players in the information war. The distrust from past conflict still lingers in the post-Cold War era of competition. Exacerbated by previous

i al ies, toda s thi ke i g a e a of i easi gl , intensive and extensive web of international relations makes the combination of terrorism, drug trafficking, environmental degradation, and computer virus propagation attractive as well as cost effective and

militarily potent.

According to a 2005 Time article, a mid-level In a conflict of such asymmetric weaponry the systems analyst first uncovered Titan Rain while doing

advantages of a cyber-strike are multiple and varied.

Firstly, they can be launched instantaneously. A target by his government handlers for his work in discovering

volunteer work for military intelligence. 22 Initially lauded

would have little or no timeframe to prepare in the intrusion, Sean Carpenter subsequently lost his

defending itself. A second feature of an attack is the security clearance and was fired from his job with Sandia

inability to establish attribution. Attribution, or the Corporation. His offenses were the inappropriate use of

identification of the source of a cyber attack, is an issue company information and violating U.S. law by breaking

of serious concern. Cyber attacks not only move at the

i to a fo eig atio s o pute s ste . P io to his speed of light, they occur in layers and travel along legal problems, Carpenter donated months of his time

tortuously, indirect paths toward their objective. Since and energy to helping the Department of Defense and

the current communication protocols lack the the FBI track down the source of these electronic

sophistication of the evolving array of hacking tools, it intrusions. His investigation lead to the conclusion that

has become an increasing struggle for legitimate users to information systems had been compromised from

attribute incursions to a guilty source or point of numerous U.S. Government agencies, including the

origination. Therefore, by their nature, cyber attacks United States Air Force, NASA, Redstone Arsenal military

make it difficult for their victims to identify the enemy base, and also the World Bank. He believes the

and, hence, retaliate appropriately. Finally, despite the operations originated from Guangdong province in China

absence of violence, cyber war can have the same and the information was warehoused somewhere in

destructive power as conventional warfare. Physical South Korea before finding its way back to Guangdong.

fo e, o a ki eti atta k, ai s to dest o a e e s Expert estimates claim that as much as 20 terabytes of

ability to wage war. Disabling a power grid, food supply, information, or twice the print collection of the Library

or any combination of elements of critical infrastructure

can net the same result. Gen. James Cartwright, Vice betrayal by government authorities and company

of Congress, was gathered. 23 Adding to his sense of

Chairman of the Joint Chiefs of Staff claims that the officials, Carpenter was dismayed that the investigative

e atta k ould: … e in the 26 tools he acquired are not being used. After months of

o se ue es of a

ag itude of a eapo of ass dest u tio . Yet, o k he a ge s at the thought that o o e: …asked fo

these acts of aggression are without a multilateral the passwords or other tools that could enable them to

consensus on whether they legally constitute acts of war. pick up the investigative trail at the Guangdong 27 The problem inhibits our ability to respond, re- oute . 24 organize our defense community, set standards, design

According to the 2008 Commission Report to and coordinate effective global cybersecurity policy, or Congress, there may be as many as 250 hacker groups

fairly judge and discharge Sean Carpenter of his operating in China with either government support or

circumstances.

This asymmetric feature of cyber war is its most compelling for the United States. The strategic

advantages once held by hegemonic powers in the Thornburgh, Nathan, The Invasion of the Chinese Cyberspies,

interstate system are neutralized in the information age. 23 Ti e.Co , August ,

e spa e is lo , a d the C e se u it , o k i p og ess, U i e sit of Pe s l a ia,

“ hif a , Jaso , The Need fo a “t ategi App oa h to The ost of ilita izi g

April 2009, quoting Majo Ge e al Willia Lo d i Ai Fo e a d the C e spa e Missio Defe di g the Ai Fo e s

25 2008 Report to Congress of the U.S.-China Economic and Co pute Net o k i the Futu e, Ce te fo “t ateg a d

Security Commission, p. 164

Technology, Dec 2007

27 Harris op. cit.

24 Thornburg 24 Thornburg

Revolution in Military Affairs (RMA). RMA is the state actors is no longer an obstacle. Consequences of

application of IT to military purposes. The ever- this paradigm shift in warfare are the proliferation of

expanding application of ICT and the rise of duel use cyber warfare programs and development of non-

technology have created a mesh of opportunities and traditional alliances between state and non-state actors,

risks ripe for exploitation. Since the end of the Cold War

there has been a feverish effort by the American military environment jurisdictional divides become meaningless

criminal gangs and terrorists organizations. 28 In this

to adapt its forces to the emerging paradigm. The effort to aggressors and create barriers for guardians of

has also been met by less powerful states and non-state infrastructure assets and prosecutors of cyber crime.

actors, which recognize the relative competitive gains Furthermore, international codes of justice and best

they can achieve militarily against traditional superior practices standards are unenforceable, and the attempts

powers. 33 As expressed by the Chinese word for crisis, to establish order is uncoordinated and at times,

the confluence of these trends has offered up a insincere. As stated above, similar to the international

convergence of opportunity and danger for China and its supply chain, the system is plagued by its utter vastness

perceived rivals. It is a crisis that the PRC hopes to and often, intended opaqueness. A colleague has

exploit against its adversaries on the one hand, and on described Cyberspa

the other hand, deflect as it seeks to defend its national ilde ess.

29 e as: a ele t o ag eti

The authors of the CSIS report refers to it

interests.

as: According to Michael Pillsbury of the National … pa t to s ua e he e people e gage i politi s

Institute of St ategi “tudies, Chi a s o effo ts to and speech), part Main Street (where people shop),

compete in RMA has resulted in projects known as part dark alleys (where crime occurs), part secret

corridors (where spies engage in economic and military assassi s a e . Ha i g the p oje t ode

shashoujian

espionage), and part battlefield. 30 number 998, shashoujian is believed to be a response to

A e i a s o ti ued effo ts i ‘MA a d a i po ta t Moreover, the technological threat vector posed

instrument in countering US hegemony in regional and by cyber war is metamorphic and tightly interlinked with

global affairs. 34 Metaphorically, the term broadly refers the global economy. Adding to our dilemmas is the fact

to any action, technique, configuration of power, or that the defense network in place to protect commerce

technology deployed to overcome and reverse the tide and civil society is rooted in an interstate system

of battle. The concept has been part of the discourse on encumbered by layers of formal protocol. Claims of

ilita poli i Chi a s si e, at least, . 35 In 1999 national interest, state sovereignty rights, and political

PRC President Jiang Zemin, a former Chairman of the parochialism are the conditions of a former epoch and

Central Military Commission, declared: the mortmain, which hangs malignantly over the effort

to adapt and meet the challenges of the new reality. We should set great store by stepping up high The efo e, the o uest of this ilde ess ill e ui e technology innovation for national defense purposes

and by developing technology useable for both military reorganizing society through policies that are more

and civil purposes as well, and we should also master multilateral and, which can offer incentive for

several shashoujian for safeguarding our national collaboration on a much grander scale. Otherwise, the

sovereignty and security as soon as possible. 36 alternative may be a partial return to Cold War power alignments and struggles with the addition of a cast of

Compensating for its relative late arrival to cyber actors that include corrupt regimes, technologically

warfare, China attempts to gain parity with the US and sophisticated terrorists, and criminal organizations.

Russia through projects such as shashoujian. For many in the military establishment, the inspiration for these

A Return to the Cold War effo ts has o igi s i a Chi ese p o e : kill ith a o o ed s o d. The e p essio espeaks of Chi a s In the case of China, many analysts fear its leaders

military policies that seek to overcome technological deficiencies with superior strategies. not only view cyber warfare as central to the overhaul of 37 If ou a e the national military, but also an important pathway

limited in your strength, then borrow the strength of

toward economic development. nd Aware of their ou e e , so said Sun Zi, the legendary 2 Century comparative economic and military inferiority verses the

U.S. the People s Republic of China (PRC) seeks to

neutralize their disadvantages. By maximizing new 32 Joh sto , Alaste Iai , To a d Co te tualizi g the Co ept realisms posited by the asymmetric environment of the

of a Shashoujian Assassi s Ma e , Ha a d U i e sit information age, China hopes it can level the playing Government Department, Aug. 2002, P. 27 33 Kaldor, Mary, Beyond Militarism, Arms Races, and Arms Control, essay prepared for the Nobel Peace Prize Centennial

Symposium, December 2001

35 and Security in Cyberspace, p. 14 Ibid Pillsbury, Michael,

Yannakogeorgos, Panayotis, Technologies of Militarization

Chi a s Militar “trateg To ard the U.“.: Ibid, p. 1

A View from Open Sources, US-China Economic and Security “e u i g C e spa e fo the

Review Commission, November 2001 Strategic and International Studies Commission Report,

30 th

P eside , Ce te fo

37 Johnston, p. 325

31 Washington, December 2008 Tho as, Ti oth L., Chi a s Ele t o i “t ategies, i Schifman, p. 12-14

Military Review, May-June 2001

BCE military strategist and traditionally recognized author of The Art of War. By taking the advice from an ancient text, China has girt itself to vigorously compete in the cyber conflict. As part of this strategy, the People s Li e atio A

PLA has ee establishing and cultivating relationships with patriotic hackers. Ha kti is , o the o

i atio of politi al a ti is and computer hacking, has evolved into a new phenomenon – state hacktivism. State hacktivism involves patriotic hackers who are motivated for nationalistic reasons, and operate in the service of their countries. In this practice area, China is particularly expert in organization and recruitment. The government sponsored Network Crack Program Hacker (NCPH), identifies proficient groups of hackers through competitions. Those selected receive monthly stipends from the PLA. According to Panayotis Yannakogeorgos of Rutgers University, they are recruited to not only ply their craft on foreign targets, but also to teach army cadets the tactics and tools for conducting cyber war. Joel Brenner, a former senior government counterintelligence official whose past posts include inspector general for the National Security Agency and chief executive of the Office of the Directorate of National Intellig e e e a ks a out Chi a s

e- threat:

Some [attacks], we have high confidence, are coming from government-sponsored sites. The Chinese operate both through government agencies, as we do, but they also operate through sponsoring other organizations that are engaging in this kind of international hacking, whether or not under specific di e tio . It s a ki d of

e - ilitia …It s o i g i olu es that a e just stagge i g. 38

Not only as political rivals, but also as business partners, China has capit alized o the o o ed s o d to breach security defenses and make gains in the struggle over cyber space. American and non-U.S. based

ICT firms are often unwitting hosts of the strategy. 39 Competitive pressures force U.S. companies to rely on Chi a s outsourced production facilities to assemble and manufacture products. Because of the efficiencies of the extended enterprise, the attractive pricing of products from developing countries and transition economies, and the dynamic of the global market place, Western companies are irresistibly lured into commercial alliances with non-Western partners. These joint venture arrangements are openings for a hostile player to implant viruses, malware, Trojan horses, and backdoors into equipment for proprietary civilian and military use. Once commercially available, the corrupted technology and component parts can infest systems anywhere in the world. The subversion of information systems is subtle, mostly impossible to detect, and potentially ruinous. The disabling of the U.S. Pacific Command Headquarters has been attributed to