The Appeal of the Courts
Actually, we've already figured out how to win the legal war on terrorism.
In his second inaugural address, President Barack Obama alluded to the end of the nation’s post-9/11 wars, describing his vision of a world where "enduring security and lasting peace do not require perpetual war." Listening to the debate last week on whether Congress should expand its previous guidelines for using military force to combat terrorism, it was easy to wonder whether that vision would ever become a reality.
Yet the path to a postwar approach to terrorism has been well on display these past few weeks in Manhattan, exemplified in the foreign capture and federal criminal prosecutions of Sulayman Abu Ghaith, Osama bin Laden’s son-in-law, and Ibrahim Suleiman Adnan Adam Harun, an al Qaeda operative captured in Italy and extradited to the United States last year. Abu Ghaith pleaded not guilty; court filings suggest Harun is cooperating with investigators and may soon plead guilty.
Each of these cases could have gone a different route: U.S. special operations forces could have targeted each man, relying on the same statutory authority to use military force that has animated U.S. military counterterrorism operations since just after 9/11. Had either been in Afghanistan or Pakistan, that might have been what happened. But after 12 years of war, we have learned that we can neither kill our way to victory, nor rely on military force alone. The nearly 500 criminal cases related to international terrorism since 9/11 — including 67 cases involving defendants captured overseas, according to the Department of Justice — demonstrate the viability of a postwar paradigm for counterterrorism. This model uses military force when necessary and appropriate, but relies more heavily on diplomacy, intelligence, and, yes, law enforcement.
Abu Ghaith, for example, had reportedly been under the watchful eye of the U.S. intelligence community for years. After he slipped across the border from Iran into Turkey, Turkish authorities arrested him in Ankara and interrogated him there with the help of the U.S. interagency "High-Value Detainee Interrogation Group," comprising experts from the FBI, CIA, Department of Defense, and other agencies, supported by analysts who have been tracking the bin Laden family for more than a decade. Turkey declined to move Abu Ghaith directly to the United States over concerns he could face the death penalty. Instead, Washington brokered a deal whereby the Turks would send Abu Ghaith back to his native Kuwait by way of Jordan, a country with whose intelligence service the CIA has an extraordinarily close relationship. Abu Ghaith thus landed in Jordan to be met by FBI agents, who arrested him and flew him back to the Southern District of New York, so jurisdiction would fall to the court located just a few blocks from Ground Zero.
This model — surveillance abroad by military and intelligence agencies, strong allied cooperation, coupled with U.S. prosecution and incarceration — has now been used successfully in a range of cases. In 2011, U.S. military forces captured suspected terrorist Ahmed Warsame off the coast of Yemen, and later transferred him from Pentagon to Justice Department control. Warsame pled guilty to multiple federal terrorism charges, a number of which carry a minimum sentence of 30 years. According to news reports and government filings, Warsame’s cooperation has produced a great deal of valuable intelligence and evidence, including information that induced another defendant, Mohamed Ibrahim Ahmed, to plead guilty this past summer to crimes carrying a minimum sentence of 30 years in federal prison.
Similarly, in August 2012, local authorities apprehended three European men with alleged ties to the Somali terror group al-Shabab as they were making their way to Yemen. The FBI took custody of the men in November 2012, and on December 21 federal prosecutors hauled the trio into a Brooklyn court to face a multi-court terrorism indictment. The initial hearing took place in a sealed courtroom, following the federal courts’ well-established rules for handling classified information and evidence.
The Justice Department in fact has a far better record than the Defense Department in prosecuting and convicting terrorist suspects. The federal Bureau of Prisons houses more than 350 international terrorists at three special prisons in Florence, Colorado, Terre Haute, Indiana, and Marion, Illinois. Most of these terrorists are serving long sentences for their crimes, thanks to stiff sentencing guidelines in the federal criminal system for terrorism. In these facilities, they may be subject to security, restrictions, and monitoring protocols that equal or surpass the conditions for detainees at Guantánamo Bay. The endgame for these men is clear: With the legitimacy of their convictions and sentences beyond question, they now serve out their sentences in obscurity, without the ability to threaten our safety or to challenge U.S. policy from the public platform provided by still- novel military trials or legally uncertain detention.
This blended, postwar approach works precisely because the military plays a supporting, not a leading, role. A number of foreign intelligence and law enforcement agencies are far more likely to cooperate with their American intelligence and law enforcement counterparts than they are with the U.S. military. This was true in the Abu Ghaith case for Turkey and Jordan, two key allies in the counterterrorism effort against al Qaeda, both of which cooperated with U.S. intelligence and law enforcement agencies. The same was true in the Harun case, in which Italian authorities gave the suspect to the United States upon assurances he would be prosecuted in civilian court — and not transferred to Guantánamo Bay or charged before a military commission.
The strategic case for a less military-centric postwar approach is clear. Capturing individual terrorists and treating them all like warfighters (such as by detaining them under the laws of armed conflict) empowers them, feeds their propaganda efforts, and enables them to attract funds and recruits in their efforts against us. Worse, lumping together otherwise scarcely connected terror groups under the banner of al Qaeda "associates" — or "associates of associates" — can foster alliances where they might not otherwise exist, and inhibit the development of more individualized counterterrorism strategies aimed at isolating, disrupting, and dismantling specific terror groups.
Critically, the postwar approach does not compromise the acquisition of human intelligence. The Abu Ghaith
case shows the tremendous power of the Justice Department to leverage its remarkable track record of convictions, and all of the tools at its disposal in the federal criminal system, to produce reliable intelligence. Relaying an interview with one of the prosecutors, New York Times reporter William Rashbaum told the NewsHour that Abu Ghaith "had talked extensively after he was arrested," both before and after he had a lawyer. Prosecutors gathered so much intelligence from Abu Ghaith that their summary of the information he shared before his indictment was 22 pages long. With each successful prosecution comes a new trove of information and intelligence, creating a virtuous cycle of counterterrorism.
Let’s be clear: This is not a call for a law-enforcement-only approach. It is not a rejection of military force (including the power to detain) when a public case can be made that force is necessary to U.S. national security and in keeping with our obligations under domestic and international law. America’s targeting capability, our special operations teams, and our ability to deploy force globally may at times play a critical role. Rather, this is a call for the adoption of a blended, postwar approach that rebalances the use of military tools with others in our national kit in the interest of a counterterrorism strategy that is more effective and efficient. It is an argument, based on the evidence of the past 12 years, that successful counterterrorism need not require permanent war.
The debate about the role of military force in counterterrorism has crystallized recently with arguments for (and here in Foreign Policy, against) a revised, updated, and expanded Authorization for Use of Military Force, the law passed just days after 9/11 that provides the core legal basis for current U.S. counterterrorism operations. The case for a new AUMF builds from the premise that, while our foes may be changing, our need for military force to fight them is no different now than it was in the fall of 2001.
That is a flawed premise. As with the end of World War II or the end of the Cold War, we are at a historic inflection point. The war in Iraq is over, the war in Afghanistan is ending, and the United States and its allies have disrupted, dismantled, and degraded al Qaeda and many of its confederates. We now have a wealth of tools and capabilities to fight terrorism — tools that did not exist in 2001. The time has come for the United States to transition from its current war footing to a long-term, sustainable counterterrorism strategy. The Abu Ghaith, Harun, and Warsame cases, and the many like them, show we are ready.