Brookings: Topics - Terrorism

Finally, Obama Breaks His Silence on Drones

Peter W. Singer — Thu, 23 May 2013 00:00:00 -0400

Over the last four years, there has been a strange irony. One of the greatest speakers of our era has largely kept silent about one of the signature aspects of his presidency.

Under President Obama's leadership, U.S. civilian intelligence agencies have carried out a series of not-so-covert operations in so-called secret wars that have reached a huge scale. There have been nearly 400 drone strikes in Pakistan and Yemen since 2008, in periods of activity that have ebbed and flowed dependent on everything from the availability of intelligence to local political tides.

But the long-term nature and growth in scale of the "drone wars" campaign made targeted killings a key feature of the administration's foreign policy, both in its internal approach to counter-terrorism and external perceptions of America. The advantages were clear to an administration that throughout this period faced a daily drumbeat of terrorism threats. Targeted killings by drones offered new means for action in ways that were more accurate, more proportionate and less risky to American lives than previous alternatives. They have repeatedly been used in successful operations that eliminated key terrorist leaders.

However, the short-term benefits came with long-term questions. As these operations increasingly were leaked to the media, they grew more and more controversial, whether from concern over civilian casualties, disputes over the appropriate role of the CIA versus the military in what had evolved into a massive air war campaign, Congress' sense that it was the victim of an executive branch end run or broader worry about the danger to constitutional powers.

As this played out, the president's absence from the debate became more and more telling. Yes, there were a couple of speeches by presidential aides finally acknowledging the use of such technology, quick mentions on late-night talk shows and even presidential jokes about drone strikes. But the administration's case in the public debate remained disjointed, tentative and, as the controversy surrounding John Brennan's confirmation hearings as CIA director illustrated, far from strategic or satisfactory. The time was long overdue for the true stamp of presidential voice and authority on the topic to be heard.

That is what makes the president's speech Thursday at National Defense University so important, and simultaneously so challenging for him. He has to try to strike a balance between arguing that terrorism threats will remain with us for the long term, as recent events in Boston and London would illustrate, but that the structures we gradually built up in response, from the prison at Guantanamo Bay, Cuba, to the drone campaign, cannot remain with us in their ad hoc manner for the long term.

Beyond all the internal policy questions — such as what the CIA should control versus what the Pentagon controls — he has a broader task. He must lay out the overdue case for regularizing, so to speak, our counter-terrorism strategy itself, from the means to the ends. This will require touching on thorny issues such as how to bring more transparency to the ugly task of a targeted killings campaign, how to create more interaction with Congress — which both wants and avoids oversight — and, finally, how to find a path out of the Gitmo conundrum.

Beginning this kind of discussion has been described by some as just a way to change the topic in the midst of other would-be scandals dominating the news cycle. But let's be crystal clear: The president is making a big bet by speaking out on issues on which he still enjoys fairly broad public support.

The reason to take this bet is that the speech offers enormous advantages over the alternative of remaining silent. Though it may or may not assuage the genuine concerns at home about the drone campaign, the very act is hugely important inside government. Only the president can operate above the interagency disputes, and his vision will set the terms of internal policy development across multiple agencies (why those staff speeches and confirmation hearings never could substitute for his voice).

In turn, the public side of the speech matters in a manner beyond any blip in domestic poll numbers. Here again, only the president can truly stake out America's vision in a way the world notices. If well played, the speech might even be the foundation for future international norms that need to be set in the post-9/11, post-Osama bin Laden world. This is all the more important as our technologies proliferate and other nations, such as Russia, China and Iran, may seek to follow (or misuse) our precedents in drone strikes and targeted killings.

The issues at play are not just about which agency gets to do what and when to tell whom on Capitol Hill, but also how the United States might build a global coalition of the like-minded on the future of counter-terrorism.

In short, sometimes a speech is more than just a speech. By finally speaking out on some of the key issues that have grown to define his place in foreign policy history, Obama has his chance, finally, to set the terms of the debate and steer it toward more positive ends.

Authors

Peter W. Singer

Publication: Los Angeles Times

Image Source: © Jason Reed / Reuters

The President’s National Security Speech: A Quick and Dirty Reaction – Part 1

Benjamin Wittes — Thu, 23 May 2013 16:53:00 -0400

One week ago, the Pentagon’s top lawyers went before the Senate Armed Services Committee and declared that the armed conflict with Al Qaeda and its associated forces under the Authorization for Use of Military Force (AUMF) would go on for another decade or two. They declared that it was geographically unbounded. They described themselves as having broad authority to target members of Al Qaeda and its associated forces.

If there was a unifying theme of President Obama’s speech today at the National Defense University, it was an effort to align himself as publicly as possible with the critics of the positions his administration is taking without undermining his administration’s operational flexibility in actual fact. To put it crassly, the president sought to rebuke his own administration for taking the positions it has—but also to make sure that it could continue to do so.

A great deal of the President’s speech was noise—noise in the form of broad, overarching accounts of his strategic vision, noise in the form of continuous veiled (or not-so-veiled) criticisms of his predecessor’s strategic vision and fidelity to American values, and noise in the form of apparent changes in policy that in actual fact change very little. But there are also a few important announcements contained in the speech. Over the next few posts, I will offer some initial thoughts, focused on trying to identify those aspects of the speech that seem to me either more than verbiage or as notable because they in fact reflect less than meets the eye.

The overarching theme of the speech definitely falls into the latter category. The President presents himself throughout the speech as bringing this war to a close: “[O]ur commitment to Constitutional principles has weathered every war, and every war has come to an end,” he said at the outset. And then, later on, he declares:

All these issues remind us that the choices we make about war can impact—in sometimes unintended ways—the openness and freedom on which our way of life depends. And that is why I intend to engage Congress about the existing Authorization to Use Military Force, or AUMF, to determine how we can continue to fight terrorists without keeping America on a perpetual war-time footing.

The AUMF is now nearly twelve years old. The Afghan War is coming to an end. Core al Qaeda is a shell of its former self. Groups like AQAP must be dealt with, but in the years to come, not every collection of thugs that labels themselves al Qaeda will pose a credible threat to the United States. Unless we discipline our thinking and our actions, we may be drawn into more wars we don’t need to fight, or continue to grant Presidents unbound powers more suited for traditional armed conflicts between nation states. So I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate. And I will not sign laws designed to expand this mandate further. Our systematic effort to dismantle terrorist organizations must continue. But this war, like all wars, must end. That’s what history advises. That’s what our democracy demands.

In other words, while the Pentagon regards the AUMF as providing the authority it needs to confront the enemy for the next two decades, the president wants to work with Congress to get off the war footing and to secure the document’s narrowing, and ultimate repeal. It’s a striking contrast, whomever one thinks is right.

A striking contrast, that is, unless one does not quite take Obama at face value on this. After all, Obama does not need Congress to narrow or repeal the AUMF or to get off of a war footing. He can do it himself, declaring hostilities over in whole or in part. And Obama, needless to say, did not do anything like that. To the contrary, he promised that “we must finish the work of defeating al Qaeda and its associated forces” and while he used a lot of nice words about law enforcement and a lot of disparaging words about perpetual states of war, he also promised to continue targeting the enemy with lethal force under the AUMF. In other words, he promised—without quite saying it directly—to keep waging war:

Moreover, America’s actions are legal. We were attacked on 9/11. Within a week, Congress overwhelmingly authorized the use of force. Under domestic law, and international law, the United States is at war with al Qaeda, the Taliban, and their associated forces. We are at war with an organization that right now would kill as many Americans as they could if we did not stop them first. So this is a just war—a war waged proportionally, in last resort, and in self-defense.

So count me a little confused: Are we heading for ten or twenty more years of war under the AUMF or are we on the road to peace and the primacy of peace-time authorities? Or are we, as I suspect, on a road to more use of peacetime authorities and less war under the AUMF, a different vocabulary for conflict, but ultimately long-term use of substantially the same authorities we have been using?

Authors

Benjamin Wittes

Publication: Lawfare

Image Source: © Larry Downing / Reuters

Obama’s National Security Speech and Pakistan

Bruce Riedel — Wed, 22 May 2013 10:22:00 -0400

On Thursday, President Obama plans to deliver a speech on national security and counterterrorism issues. The speech comes at a particularly awkward time in Pakistan, the epicenter of the global jihad for more than a decade. Nawaz Sharif has just been elected for an unprecedented third term in a nation extremely unhappy with America's counterterrorism policies, especially the drone war fought in its skies from bases in Afghanistan.

President Obama faces the challenge of defending his policies and explaining why they are needed. He must do this without further alienating an angry Pakistan and its newly elected civilian government which is struggling to find its own way to deal with the terror Frankenstein that threatens the world and Pakistan itself. It may be mission impossible. Despite years of drone attacks and the death of Osama bin Laden, Pakistan remains the base for the top three most wanted terrorists on the U.S. Most Wanted list: al Qaeda leader Ayman Zawahiri, Taliban chief Mullah Omar and Lashkar e Tayyiba (LeT) boss Hafez Saeed.

In fact, Omar and Saeed enjoy the patronship and protection of Pakistan's army. More global terror plots have originated in Pakistan than anywhere else since 9/11. Without the drones, there would be little or no pressure on the terror infrastructure in Pakistan. Despite over $25 billion in American economic and military aid since 9/11, the Pakistani authorities cannot be relied on to fight the danger posed by al Qaeda, the Afghan Taliban, or LeT. Obama recognized that fact when he sent the SEALs to kill bin Laden without telling any Pakistani official that we had found him hiding inside the highly secure Pakistani city of Abbottabad.

But Pakistan is also a victim of the terror monster it has coddled for decades. Over 45,000 Pakistanis have died in terror-related violence since 9/11, and dozens more died in the election campaign just ended. Sharif has pledged to seek a political solution to the violence. He has campaigned against the drones and faces a national consensus that wants them to end. His main opponent Imran Khan promised to shoot them down if elected (probably with American supplied F-16s).

Obama significantly expanded drone attacks in 2009 and many dangerous terrorists have been eliminated by them. The price has been to further alienate the Pakistani people. His speech this Thursday is not likely to please many in Pakistan. The already very difficult U.S.-Pakistan bilateral relationship is at a crucial juncture with the first ever transition from one elected Pakistani civilian government to another in the country's history after a full term in office. Reconciling our counter-terror mission with our interest in promoting democracy in Pakistan will not be easy. If it is impossible, then the fate of U.S. relations with the most dangerous country in the world is headed toward an even more deadly outcome.

Authors

Bruce Riedel

Image Source: © Larry Downing / Reuters

Protecting U.S. Citizens’ Constitutional Rights During the War on Terror

Robert M. Chesney and Benjamin Wittes — Wed, 22 May 2013 09:20:00 -0400

Editor’s Note: On Wednesday, May 22, Robert Chesney and Benjamin Wittes testified before the House Committee on the Judiciary on the subject “Protecting U.S. Citizens’ Constitutional Rights During the War on Terror.”

Thank you, Chairman Goodlatte, Ranking Member Conyers, and members of the committee for this opportunity to give our views on the subject of military detention under the laws of war of terrorist suspects arrested within the United States.

This written statement represents the views of Robert Chesney, Professor of Law at the University of Texas School of Law and Non-Resident Senior Fellow at the Brookings Institution, and Benjamin Wittes, Senior Fellow at the Brookings Institution.

We would like to make four major points today, points which lead to a single recommendation:

First, a review of the relevant case law suggests that the Supreme Court as currently aligned would probably not approve the use of long-term military detention under color of the Authorization for the Use of Military force (AUMF) with respect to a United States citizen detainee who was arrested by law enforcement authorities within the United States. Whether it would approve detention for a non-citizen captured within the United States is also in doubt, though the matter is less clear in that setting.

Second, current criminal justice authorities provide ample grounds for ensuring the incapacitation of such persons in most foreseeable instances. There is little if anything to be gained for the executive branch in gambling with the domestic military detention option, which would carry significant litigation risk and guarantee divisive political friction.

Third, although the Bush administration did use military detention for domestic captures in two instances—one involving a citizen, another a non-citizen—it typically relied on the criminal justice system instead. Indeed, in the case of the citizen detainee, it eventually backed away in the face of a looming judicial reversal. The Obama administration has stayed this course, taking similar action with respect to the domestic non-citizen detainee in military custody. Today it is highly unlikely that an administration of either party would attempt to use these authorities again.

Fourth, because these options nonetheless have not formally been foreclosed in law, there are periodic surges of interest in them by both political supporters and opponents. Supporters demand their use in cases like that of the Boston Marathon bombing. Opponents, meanwhile, have gone to court to seek injunctive relief against law of war detention authorities based on speculative fears of military detentions that will not take place. All of this is disruptive, undesirable, and unnecessary.

Based on these observations, we therefore recommend that Congress codify in statute today’s practical status quo. That is, Congress should state explicitly that detention authority under the AUMF and the NDAA does not extend to any persons captured within the territory of the United States. We provide a more expansive discussion of these points below, in two parts. The first part outlines the legal context against which these issues arise today. The second discusses the practical and policy consequences of leaving the current status quo uncodified in statute and explains our recommendation for legislation.

The Legal Context of Military Detention of Citizens and Persons Captured Within the United States

In some circumstances, the domestic use of law of war detention clearly is lawful and appropriate. The American Civil War provides the best example: Just about every one of the Confederate soldiers attacked and detained by Union forces in that conflict were American citizens. The problem of citizens’ fighting for the enemy has not been limited to the Civil War, however. For varying reasons, American citizens have fought for the enemy in several other conflicts as well.

World War II provides a pair of striking examples that resulted in federal court decisions. One involved an American citizen--Gaetano Territo--who grew up in Italy and was conscripted into the Italian Army, only to be captured during the allied invasion of Sicily and then held for years as a POW. The other involved a group of saboteurs--two of with claims to American citizenship--who were dispatched by the German military to conduct a campaign of bombings in the United States, only to be captured after one of the men reached out to the FBI to reveal the plot. Both cases generated clear statements from the courts to the effect that an American who becomes a member of the enemy’s armed forces during a war has no right to be treated differently than other enemy soldiers. In re Territo (a Ninth Circuit decision) applied that rule in affirming that it was perfectly lawful to hold Territo as a POW, and Ex parte Quirin (a Supreme Court decision) not only said the same but also approved prosecution by military commission for both the citizens and non-citizens among the captured German saboteurs.

Not all cases are so clear cut, however. Consider the famous case Ex parte Milligan, which involved events during the American Civil War. Milligan and others were taken into custody by military authorities in Indiana, and eventually prosecuted by military commission for plotting to seize arms and use them to break prisoners out of a nearby POW camp maintained by the Union. The Supreme Court ultimately held that Milligan should not have been subjected to these measures because he was not said to be part of the Confederate armed forces and because the civilian courts were still open and functioning in Indiana at that time.

The line between Milligan, on one hand, and Territo and Quirin, on the other, is clear enough: persons who are part of the armed forces of the enemy during an armed conflict are not relieved from military detention (or from prosecution by military commission in the event of a war crime allegation) simply by virtue of being U.S. citizens. Where the person is not part of the enemy’s armed forces, however, military detention or trial is not an option if ordinary civilian courts remain open. This thumbnail sketch provides key context for understanding post-9/11 debates regarding the constitutionality of military detention for U.S. citizens.

But there is a second important element to consider as well: in the context of any given conflict fought under color of a congressional authorization to use force, the courts have to consider whether Congress intended for the executive branch to wield detention authority over citizens in the first place. This was not a question that generated attention prior to the mid-20th century, but it is a pressing question today, thanks to the Non-Detention Act of 1971 (18 USC § 4001(a)), which provides that citizens may not be detained other than pursuant to statute. That law requires the executive branch, and ultimately the courts, to ask whether an authorization to use force that may not mention detention explicitly nonetheless authorizes it implicitly--and thus counts as sufficient statutory authority to satisfy the Non-Detention Act.

Against this backdrop, consider the events of the post-9/11 period as they relate to the detention of citizens and of other persons captured within the United States. The question of citizen detention arose briefly at the very outset of the conflict in Afghanistan, thanks to the capture of “American Taliban” John Walker Lindh. Lindh was in military custody initially, and unavoidably so in the circumstances. After a time, however, the Bush administration chose to transfer him into the civilian criminal justice system in the United States, the first of many successful prosecutions in the Bush years involving persons linked to the Taliban and al Qaeda. That move prevented exploration of whether Lindh could simply have been held for the duration of hostilities like other enemy fighters.

As it turned out, however, Lindh was not the only citizen fighting with the Taliban. Yaser Esam Hamdi had been born in Louisiana, and thus had a plausible claim to citizenship as well. This came out after his capture in Afghanistan and after his transfer to Guantanamo. At that point, he was promptly shifted to a military facility within the United States, but unlike Lindh, Hamdi remained in military custody. His situation was quite similar to that of Gaetano Territo (the Italian-American POW discussed above) except that crucially, Hamdi did not concede that he had been part of the enemy’s armed forces. Ultimately, his habeas corpus petition reached the Supreme Court, which in 2004 issued a split decision: As a citizen, Hamdi was entitled to more process than he had thus far received, but on the other hand, he would indeed be subject to military detention if the government could prove he had been a Taliban fighter, as it alleged.

The Court in Hamdi went out of its way to confine its holding to the particular facts presented in that case, plainly conscious that other fact patterns might arise in circumstances that did not so clearly track Territo or Quirin. The justices had one such example before them at that very moment: the case of Jose Padilla.

Jose Padilla was an American citizen who went abroad to join the jihad movement prior to 9/11. He became famous in May 2002 when he was arrested in Chicago coming off an international flight. The government announced that he was an al Qaeda agent planning an attack in the United States, possibly involving a “dirty” (i.e., radiological) bomb. He was not arrested on criminal charges, however, but rather was held on a “material witness” arrest warrant (a centuries-old statutory authority to use the power of arrest when necessary to ensure that a witness is available to testify before a grand jury or at trial). As we explain in more detail in the next section, the problem the government faced was that its knowledge about Padilla’s plans was based at least in part on the coercive--and highly classified--interrogation of a separate suspected al Qaeda member. With criminal prosecution not plausible for the time being, and the clock ticking on the viability of material-witness detention, the Bush administration eventually opted to shift Padilla into military custody. Habeas litigation, not surprisingly, followed thereafter.

Padilla’s case closely resembled the Quirin scenario, in that he was said to be an agent of the enemy who had entered the United States surreptitiously in an attempt to carry out bombings. It also had elements of Milligan, however, in that that Padilla was not alleged to be a soldier in any sort of recognized armed force, but rather was part of a clandestine terrorist network. That terrorist network was the enemy in the current conflict, of course, which is why many viewed the situation as a direct repeat of Quirin. This made sense to the first district judge to consider the matter, at any rate. Relying on Quirin and distinguishing Milligan, future Attorney General Michael Mukasey held in Padilla ex rel. Newman v. Bush that Padilla was detainable in theory, expressly rejecting the argument that his citizenship immunized him--though also insisting that Padilla be allowed to challenge the factual basis for the government’s claims. The Second Circuit Court of Appeals reversed, however, concluding that for a non-battlefield capture like Padilla, the Non-Detention Act would not be satisfied without a clear statement from Congress of its intention for the AUMF to provide detention authority over citizens.

The stage was set for the Supreme Court to settle the matter, but things quickly got complicated. Four of the Justices took the position that Padilla was not subject to detention. Five, however, withheld judgment on the merits in favor of focusing on a procedural error: The petition, they said, should have been litigated in the federal court in South Carolina and in the Fourth Circuit Court of Appeals, not in New York and in the Second Circuit.

Notwithstanding the Supreme Court’s vacating of the Second Circuit’s ruling, it was clear from the contemporaneous Hamdi decision that one of the five justices in Padilla majority almost certainly would side with Padilla on the merits. Justice Scalia dissented in Hamdi, arguing that detention should not be available for U.S. citizens even in the clearer circumstances Hamdi presented. It thus appeared only a matter of time and procedure before a majority of the Court would hold that detention under the AUMF was not available for U.S. citizens captured inside the United States.

We never found out what would happen, however. Padilla prevailed again on remand to a district judge in South Carolina, and then lost before the Fourth Circuit based on a new argument: that Padilla was exactly like Hamdi in that he had borne arms on the Afghan battlefield in late 2001, but simply had been luckier in remaining free until 2002. At any rate, the next stop was the Supreme Court, again, and no small prospect of defeat for the government. Most observers believe this prospect explains why the Bush administration at that stage transferred Padilla back to civilian custody--where he faced criminal trial at long last. Padilla was prosecuted in federal court in Florida on charges relating to his pre-9/11 conduct (going abroad in hopes of joining the jihad movement, in effect), was convicted, and is now serving a prison sentence.

The end of the Padilla litigation did not end the opportunity for courts to struggle with the question of detention authority in the United States. There was one other domestic military detainee in the Bush years, a Qatari man named Ali Saleh Kahlah al-Marri. As in Padilla’s case, the government first used civilian authorities to detain al-Marri after concluding that he might be an al Qaeda agent. As in Padilla’s case, it eventually moved him into military custody. And as in Padilla’s case, the resulting habeas litigation was a mess, with a variety of judges embracing a broad array of different theories. First, the district judge concluded that there was no obstacle to detaining al-Marri, as he was not a citizen and thus the AUMF need not be more explicit in providing for detention in his case. The Fourth Circuit disagreed, however, with the initial panel opinion concluding that as a lawful resident, al-Marri had Fifth Amendment rights, that those rights precluded detention beyond what the law of war might allow in this case, and that the law of war did not permit detention in this circumstance. This in turn led to an en banc banc review by the full court, which splintered wildly across an array of opinions. A slim majority sided with the government, but without a single unifying theory to explain that result. Once more, the Supreme Court might have resolved the matter, and it did grant certiorari in an apparent bid to do so. But following the Padilla path once again, the government--now the Obama administration--transferred al-Marri to the civilian criminal justice system, mooting the issue and leaving the question of detention authority for domestic captures under the AUMF in doubt.

There has been no new case of domestic military detention--whether involving citizens or non-citizens--since those cases from the early years of post-9/11 counterterrorism, nor any clarification of the legal questions that the aforementioned cases raised.

Indeed, the issues involved appeared entirely dormant until Congress took up the question of domestic detention in the course of crafting the National Defense Authorization Act for Fiscal Year 2012. An initial draft of that bill contained a clause that provided for detention authority to extend to citizens and to others within the United States. The language used to accomplish that result was decidedly indirect, but once its meaning became clear, it drew extensive criticism. There was sharp debate in Congress--and more generally--with respect to whether such authority should, in fact, be confirmed, and proposals emerged to reframe the bill to accomplish the opposite result--i.e., clarifying that there is not detention authority in such cases. This proved equally difficult to move forward, so in the end, Congress opted for the easiest course of action: the NDAA FY’12 explicitly states that nothing in the bill should be taken as weighing in one way or the other on the question of domestic and citizen detention.

The net (and intended) effect was to leave in place the veil of uncertainty that had been generated by the combination of the Hamdi, Padilla, and al-Marri decisions of the prior decade. Future presidents were left free to roll the dice by asserting such authority, or not, as they might see fit to try.

What Should Congress Do?

In our view, Congress should put this issue to rest at last by clarifying that neither the AUMF nor the NDAA FY’12 should be read to confer detention authority over persons captured in the United States (regardless of citizenship). The benefits of keeping the option open in theory are slim, while the offsetting costs are substantial.

We say the benefits are slim chiefly because the executive branch has so little interest in using detention authority domestically. The Bush administration had little appetite for military detention in such cases all along, preferring in almost all instances involving al Qaeda suspects in the United States to stick with the civilian criminal justice system. The experiment of military detention with Padilla and al-Marri did little to encourage a different course, given the legal uncertainty the cases exposed. That uncertainty has, in turn, created an enormous disincentive for any administration—of whatever political stripe—to attempt this sort of detention again. A de facto policy thus developed in favor of using the criminal justice apparatus whenever humanly possible for terrorist suspects apprehended in the United States. And whenever humanly possible turned out to mean always; while military detention may remain potentially available as a theoretical matter, it is not functionally available for the simple reasons that (i) executive branch lawyers are not adequately confident that the Supreme Court would affirm its legality and (ii) in any event, they have a viable and far-more-reliable alternative in the criminal justice apparatus.

In September 2010, the Obama administration made this unstated policy official, announcing that it would use the criminal justice system exclusively both for domestic captures and for citizens captured anywhere in the world. In a speech at the Harvard Law School, then-White House official John Brennan stated:

it is the firm position of the Obama Administration that suspected terrorists arrested inside the United States will—in keeping with long-standing tradition—be processed through our Article III courts. As they should be. Our military does not patrol our streets or enforce our laws—nor should it.

. . .

Similarly, when it comes to U.S. citizens involved in terrorist-related activity, whether they are captured overseas or at home, we will prosecute them in our criminal justice system.

To put the matter simply, military detention for citizens or for terrorist suspects captured domestically, was tried a handful of times early in the Bush administration; the strategy was abandoned; it has been many years since there was any appetite in the executive branch—under the control of either party—for trying it again; and it has for some time been the stated policy of the executive branch not to attempt it under any circumstances. We do not expect any administration of either party to break blithely with the consensus that has developed absent some dramatically changed circumstance. The litigation risk is simply too great, and the criminal justice system’s performance has been too strong to warrant assuming this risk.

But ironically, even as this strong executive norm against military detention of domestic captures and citizens has developed, a fierce commitment to this type of detention has also developed in some quarters. The fact that the norm against detention is not currently written into law has helped fuel this commitment, enabling the persistent perception that there is greater policy latitude than functionally exists. The result is that every time a major terrorist suspect has been taken into custody domestically in recent years—the arrest of Djokhar Tsarnaev is only the most recent example—the country explodes in the exact same unproductive and divisive political debate. To caricature it only slightly, one side argues that the suspect should have been held in military custody, instead of being processed through the criminal justice system; it decries the reading of the suspect his Miranda rights; and it criticizes the administration, more generally, for a supposed return to a pre-9/11 law enforcement paradigm. The other side, meanwhile, defends the civilian justice system, while also demanding the closure of Guantánamo and attacking the performance of military commissions for good measure.

This kabuki dance of a debate is not merely a matter of rhetoric. Separate and apart from the U.S. citizen detention language we described above, in the course of producing the 2012 NDAA Congress also explored the option of mandating military detention for suspects (citizen or not) taken into custody within the United States. The administration resisted these efforts, and the resulting language in conference committee ultimately stopped far short of requiring military detention. The administration further softened the effects of that language, moreover, through its subsequent interpretation of the new language. All of which brings us back to our point: there is a big gulf between the real, functional state of play (in which the criminal justice system provides the exclusive means of processing terrorist suspects captured within the United States) and the perception in some quarters that military detention remains a viable option, perhaps even a norm, for domestic and citizen terrorist captures.

That gulf has real costs. Most obviously, it generates significant political friction every time a major terrorist arrest happens in the United States. It increases the apparent political polarization of an area that should be above politics—and in which the counterterrorism reality is far less polarized than the inter-branch relations over the issue would suggest. And it reinforces the perception that domestic military detention remains a viable option, needlessly alarming those who fear it and needlessly misleading those who wish to see it. The resulting confusion fuels sharp debate over something that is no longer meaningfully an option in functional terms. That debate even spills over at times into litigation, most notably—and disruptively—in the context of the Hedges case in New York (in which journalists and activists persuaded a district judge to enjoin enforcement of detention authority, despite the utter implausibility of the claim that they might be subjected to it).

To be clear, closing off the possibility of the executive branch’s trying such detention again in the future is not without potential costs. Consider the Padilla case once more. Contrary to the mythology that has developed about it over the years, the decision to move Padilla into military custody did not result from some ideological commitment on the part of the Bush administration to domestic military detention or to expanding executive power. It was, rather, a least-bad alternative in a circumstance in which options within the criminal justice system appeared to have run out. Recall that the government initially held Padilla in the criminal justice system. As then-Deputy Attorney General James Comey explained in 2004:

Padilla was arrested by the FBI in Chicago on a material witness warrant authorized by a federal judge in New York. And he was transferred to Manhattan where I was then the United States attorney.

He was appointed a lawyer at public expense. And we set about trying to see if he would tell the grand jury what he knew about al Qaeda.

With time running out in that process, on June 9th of 2002, just about two years ago, the president of the United States ordered that Padilla be turned over to the custody of the Department of Defense as an enemy combatant, where he remains.

. . .

Had we tried to make a case against Jose Padilla through our criminal justice system, something that I, as the United States attorney in New York, could not do at that time without jeopardizing intelligence sources, he would very likely have followed his lawyer's advice and said nothing, which would have been his constitutional right.

He would likely have ended up a free man, with our only hope being to try to follow him 24 hours a day, seven days a week, and hope—pray, really—that we didn't lose him.

It is certainly possible that we will one day again confront a case in which strong evidence exists that an individual member of an AUMF-covered group poses a huge threat within the United States, but in which the evidence supporting this view is either too sensitive to disclose or inadmissible for any of several reasons. In such a situation, legislation prohibiting the military detention of suspects captured in the United States in theory could precipitate an outcome like the one that Comey feared in 2002. From that perspective, the option of at least attempting to sustain military detention, despite the legal uncertainty we described above, would be attractive.

For a variety of reasons, however, we believe that situation is far less likely to develop today than it was in 2002. Law enforcement practice has improved substantially in this space. The FBI and Justice Department have developed significant expertise in handling suspects like Padilla. And as we mentioned before, one of the reasons the information developed against Padilla was unusable by Comey was that it had been obtained by the CIA using highly-coercive means; those means are no longer in use. None of this eliminates the possibility of a case like Padilla’s developing in the future, of course, but it does suggest that such scenarios are unlikely to arise. Indeed, such a situation has not arisen since the earliest years of the war on terror.

Aside from a Padilla-like scenario, a ban on military detention in domestic capture scenarios thus would foreclose no course of action that is realistically available to the executive branch at this stage given its own preferences. It would, rather, merely codify the existing understanding reflected in executive branch policy and practice—policy and practice reinforced over the years by well-informed expectations about the likely views of the justices on the underlying legal issues.

Adopting such a change, it is worth emphasizing, would run with the grain of America’s traditional wariness when it comes to a domestic security role for the U.S. military. There have unfortunately been times in our nation’s history when it has been necessary and proper for the military to play such a role. It is far from clear that this is the case today, however, given the demonstrated capacity of the criminal justice system in the counterterrorism context.

In the final analysis, we conclude that the manifest legal uncertainty and political friction overhanging the domestic military detention option entail costs that, in our view, outweigh the hypothetical benefits of continuing to leave that option open as a statutory matter. We therefore favor legislation that would clarify that military detention in counterterrorism under the AUMF is not available with respect to any persons--whether United States citizens or aliens--arrested within the United States.

We look forward to addressing your questions.

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Holder: We've Droned 4 Americans, 3 By Accident. Oops.

Spencer Ackerman and Noah Shachtman — Wed, 22 May 2013 19:39:00 -0400

In an extraordinary admission, Attorney General Eric Holder has told Congress that U.S. drone strikes since 2009 have killed four Americans — three of whom were “not specifically targeted.”

For all the effort that the Obama administration has gone to in asserting that its drones only kill the people that the administration intends to kill, Holder wrote in a letter today to Sen. Patrick Leahy (D-Vt.) that Samir Khan, 16-year-old Abdulrahman Awlaki and Jude Kenan Mohammad were “not specifically targeted by the United States.” The fourth American to die in a drone strike since 2009 was Abdulrahman’s father Anwar Awlaki, a radical propagandist whom the U.S. killed in Yemen in 2011.

The five-page letter, obtained and published by Charlie Savage of The New York Times, does not explain the circumstances that led to the unintentional killings of Khan, Mohammad and the younger Awlaki. Holder does not apologize for the killings, nor explain whether their deaths resulted from errant targeting, mistaken identity or another circumstance.

But after acknowledging that the administration did “not specifically targe[t]” those three Americans, Holder defended killing Americans the administration believes to be members of al-Qaida without due process, a constitutionally questionable proposition.

“It is clear and logical that United States citizenship alone does not make such individuals immune from being targeted,” Holder wrote to Leahy. “Rather, it means the government must take special care and take into account all relevant constitutional considerations, the laws of war, and other laws with respect to U.S. citizens — even those who are leading efforts to kill their fellow, innocent Americans.”

Holder’s criteria are familiar, thanks to a Justice Department “white paper” on targeted killing that leaked in February. To target an American that American must be a “senior operational leader” of al-Qaida “or its associated forces”; capturing him or her must be “not feasible”; the strike would conform to the laws of war; and “a thorough and careful review” inside the executive branch determines that the American is part of an “imminent” attack. Oh, and the drone strike can only be done outside the U.S., Holder emphasizes, in an apparent nod to the concerns of Sen. Rand Paul.

Only the concept of “imminence” here is far broader than its conventional definition. Nor does Holder explain what undergirds the determination that an American cannot be captured; the relative ease of drone strikes creates a structural disincentive for a policymaker to opt for a risky capture operation.

Americans are a tiny fraction of the people killed by U.S. drone strikes. Sen. Lindsey Graham (R-SC) recently estimated that 4700 people have died from drone-launched missiles. An unknown percentage of those casualties are people whose identities are not known to the government but who are presumed to be terrorists based on their patterns of travel and other behavior.

It’s worth noting that this is not an exhaustive list of Americans killed by U.S. drone strikes. Kamal Derwish of Lackawanna, NY was killed in a November 2002 missile strike launched from a Predator drone, one of the first such cases. It’s unclear why Holder did not list American deaths from pre-2009 strikes in his tally.

Khan was the editor of Inspire, the English-language webzine of al-Qaida’s Yemen offshoot. He was killed in the September 2011 strike that killed Anwar Awlaki. Abdulrahman, a teenager born in Denver, was killed in Yemen shortly thereafter, alongside his 17-year old cousin.

Jude Kenan Mohamad travelled to Pakistan from North Carolina in 2008, allegedly to become a jihadi, and never returned. He was arrested in 2009 for trying to enter Pakistan’s tribal regions without the proper paperwork. But he skipped out on his court date, and vanished. Friends feared him dead after a November, 2011 drone strike. But his status — alive or dead — was never officially confirmed until now. Mohamad’s FBI wanted poster does not list his death. (“The FBI won’t declare a person dead until there’s physical evidence, DNA evidence,” a law-enforcement source explains to Danger Room.) Nor have outside terrorist trackers like the Long War Journal counted Mohamad among the droned. (“I don’t track him as being killed,” says Bill Roggio, the Journal’s editor.)

Buried within the letter is another startling admission from Holder. This week, Holder writes, Obama approved “a document that institutionalizes the Administration’s exacting standards and processes for reviewing and approving operations to capture or use lethal force against terrorist targets outside the United States and areas of active hostilities.” That would be the infamous Disposition Matrix, the bureaucratic codification of the administration’s so-called targeted killing program. Congress will now be “notified and briefed” on the document, so expect something resembling it to leak to the press.

It’s fitting that Obama has approved the disposition matrix and Holder has acknowledged the drone killings of Americans this week. Tomorrow, Obama will give a speech about the future course of the war on terrorism. It remains to be seen if he will acknowledge accidentally killing three American citizens without due process — one of whom was a teenager.

Authors

Spencer Ackerman
Noah Shachtman

Publication: Danger Room Blog

Counter-Terrorism and Emergency Management: Keeping a Proper Balance

Jibum Chung — Tue, 07 May 2013 12:16:00 -0400

Counter-terrorism strategies and tactics are rightly in the consciousness of officials and civilians in the wake of the Boston Marathon bombing. While preventing future attacks should be a leading priority for government at all levels, officials must take care not to focus only on the threat of terrorist attacks. Doing so could diminish the resources, preparation, and skills needed for management of other disasters, and therefore result in greater risk to the population.

Psychology of terrorism

The major characteristic of contemporary terrorism is its unexpectedness. The time and manner of attacks are unpredictable and catch targeted communities – normally innocent civilians – by surprise. In the past, targets of were often political and symbolic figures, not the general public, and the perpetrators proudly notified who they were and why they had acted. The purposes and targets of contemporary terrorism, on the other hand, are often very unclear. Terrorists attack innocent civilians indiscriminately without prior notification, making attacks more difficult to prevent.

Even though the physical damage from terror attacks is normally smaller than that from large natural disasters, the psychological damage of such terror attacks is significant. Early research performed by Paul Slovic and others in 1980s delved into this concept of psychological damage. Using psychometric methodologies, they defined several important characteristics of many different forms of risk. At that time, in the wake of the Three Mile Island (TMI) nuclear power plant accident in 1979, their main research target was nuclear power plants. Slovic underlined the importance of psychological effects of risk stating that “despite the fact that not a single person died (in the TMI accident), … no other accident in our history has produced such costly societal impacts.”[1] Reminiscent of today’s terror attacks, they concluded that the nuclear risk is unknown, dread, uncontrollable, involuntary, and likely to affect future generations, so it has a very critical impact on the minds of the general public. Contemporary terrorism shares many of these characteristics: it is usually unknown, frightening, uncontrollable, involuntary, and also indiscriminately fatal to even children (future generations). It surely has significant psychological effects on people’s minds.

Terrorism and media

For the news media, terrorism is a very strong “product” which easily attracts a lot of viewers. Most media aggressively sell the product, terrorism, and help sow fear as people enthusiastically consume the product. In a seminal work on the “social amplification of risk,” Roger Kasperson and colleagues[2] described how the public perception of risk interacts with social and cultural systems (such as the media) and can be amplified during the information delivery process, sometimes resulting in “institutionalized fear.” This amplification process can eventually generate certain public behaviors, some negative and some positive, and may result in disruptions in society. Obviously, some risks are more likely to be amplified than others. Terrorism, because of its special characteristics, is easily amplified. Also, today’s social network communication technologies, such as Facebook and Twitter, can accelerate and strengthen the amplification process.

Thus, the media focus and public concerns create political pressure, and national emergency management policymakers prioritize counter–terrorism, or “civil defense,” over other forms of risk management, such as “civil protection” against all hazards including natural disasters.

Civil defense again?

Culturally and historically, “civil defense” is quite different from “civil protection.” Civil defense, “born out of wartime efforts to organize air-raid precautions, sheltering arrangements and alarms for non-combatants,” has military origins and focuses on protection against foreign military attacks.[3] Civil protection, on the other hand, has disaster origins and focuses on many forms of natural and man-made disasters and other public safety issues. In the Cold War era, civil defense against nuclear attack was the main objective of national emergency management in the United States. At that time, nuclear attack was an “institutionalized fear” made by media and government authorities. Many American homes and public buildings prepared nuclear fallout shelters, illustrating this fear very clearly.

Following the end of Cold War and recognition of the increasing trend of large man-made and natural disasters, “civil protection” gradually replaced the term “civil defense” in most countries. Civil protection focuses more on generic disasters than on the armed aggression, and administratively it is more decentralized than civil defense. In the United States, the Federal Emergency Management Agency (FEMA) was established in 1979. It was mainly a civil defense organization during the Cold War, but in the last two decades has worked to redirect some resources toward the management of various disasters (civil protection). James Witt, director of FEMA under President Clinton, clarified this change of direction. As the FEMA website explains, “the end of the Cold War also allowed Witt to redirect more of FEMA's limited resources from civil defense into disaster relief, recovery and mitigation programs.”[4] FEMA also introduced an “all hazards approach,” recognizing the many different kinds of disasters that may require mitigation, preparedness, response, and recovery.

The September 11, 2001 terror attack dramatically changed the direction of emergency management in the United States. After the attack, the United States hastily constructed the Department of Homeland Security and downgraded FEMA, whose main duty was civil protection. This attracted criticism from some public administration experts that the U.S. government concentrated too much on terrorism, perhaps because of the “social amplification” of the risk in the wake of the attack, despite the many other critical risks facing U.S. citizens. Basically, the critics charged, the United States changed the direction of its emergency management from civil protection back to Cold War-style civil defense.

Balance collapsed in emergency management

The cost of that shift in priorities was on full display when Hurricane Katrina struck New Orleans in 2005, easily destroying the weak levee system and submerging much of New Orleans under water. Federal and local governments’ mitigation, response and recovery to the Hurricane Katrina were mostly inadequate – resulting in the most severe disaster damage in U.S. history at that time. Due to budget cuts, the Army Corps of Engineers had been unable to strengthen the levee system protecting New Orleans. After the flooding and other damage occurred, the governments’ disaster situation awareness was poor. Communication among authorities and between authorities and civilians was broken. Assistance from the federal government was delayed and insufficient, and people died while awaiting rescue or other assistance. Critics also charged that too many government officials were not familiar with the “National Response Plan” which was implemented in December 2004 after 9/11 terrorist attack. Planning and training for large natural disasters were insufficient after the implementation of the plan. In short, too great a focus on counter-terrorism undermined capacities for natural disaster mitigation, response, and recovery in the post-9/11 United States.

This not only the case in the United States, however. The United Kingdom experienced a similar transition after the 7/7 London bombings in 2005, in which suicide attacks by four home-grown terrorists killed 55 civilians. In response, the U.K. government introduced several measures such as the Prevention of Terrorism Bill. Critics said that some responses to the attacks were anti-liberal, militarizing, and centralizing, and were in the wrong direction from the viewpoint of an all hazards approach. The problem, as one observer wrote, was that “too great a focus on one type of threat and on institutional preparedness can divert attention away from other problematic areas and distance the public.”[5]

In South Korea, the provocations of North Korea can divert the direction of national emergency management. South Korea had been under a thorough civil defense-oriented culture since the end of the Korean War in 1953. All citizens, for example, must participate in compulsory civil defense training preparing for military attacks from North Korea, and there is a military service requirement for men.

The mood of reconciliation that developed on the Korean Peninsula during the post-Cold War Kim Dae-jung and Roh Moo-hyun administrations (1998-2008) changed the direction of Korean emergency management policies, highlighted by the 2004 establishment of the South Korean National Emergency Management Agency (NEMA) by the Roh Moo-hyun administration. Large disasters such as Typhoon Rusa in 2002 and the Daegu subway accident in 2004 demanded a comprehensive emergency management system that can manage the all types of hazards, not only a military attack by North Korea. South Korea is gradually replacing its civil defense culture with one of civil protection. The Lee Myung-bak administration (2008-2013) established the Ministry of Public Administration and Security (MOPAS) in 2008. MOPAS enlarged the scope of disaster management to include fostering a safety culture and anticipating future disasters induced by climate change. The Ministry has proposed civil protection strategies such as promoting public safety awareness, strengthening leadership of local governments, and promoting participation of private companies in disaster preparation and mitigation. Also, MOPAS pushed ahead several projects like the “Safe City” initiative that tries to enhance the safety level of local communities by encouraging the participation of various local stakeholders in preparation, mitigation, and response planning an activities. This means that the civil protection ideals and an all hazards approach were widely adopted as a government policy direction at that time.

However, the bombardment of Yeonpyeong Island by North Korean forces in November 2010, which was unexpected and resulted in four deaths, changed this trend back again. After the Yeonpyeong Island bombardment, most projects for disaster and safety management were canceled and delayed because the highest priority was placed on national defense against North Korea. To some extent, this mirrors the experiences of the United States after 2001 and the United Kingdom after 2005. Although the deaths by Yeonpyeong Island bombardment were relatively few compared 209 deaths in Typhoon Rusa and 192 deaths in the Daegu subway accident, the political impact on the Korean government was huge.

Keeping a balance in emergency management

Civil protection and an all hazards approach are vital to maintaining preparation and the best possible response to major natural and man-made disaster. But they can be weakened if governments focus too heavily on national security (including civil defense against terrorism). And that can result in the other large disasters. Keeping balance in emergency management planning, and implementing an all hazards approach are crucial to effect public administration in this area.

The United States is at risk from a diverse range of natural and man-made disasters. Climate change will produce historically strong hurricanes like Katrina and Sandy more and more frequently. There is a high possibility of large earthquakes and outbreaks of new pandemic diseases. As indicated by the recent Texas fertilizer plant explosion, man-made disasters can also have big impacts. To cite another area where civil protection should not be neglected, the number of road fatalities per one million inhabitants was 111 per million inhabitants – or, well over 30,000 individuals – in the United States in 2009. This rate is almost three times Japan’s rate of 45 fatalities per one million inhabitants, and higher than the European Union average of 70 fatalities per one million inhabitants.

How do we keep balance in emergency management? Though officials in democratic countries such as South Korea and the United States must respond to public opinion, approaches to emergency management should be decided neither by public opinion, which can be easily agitated by shocking incidents, nor by the news media which tend to follow sensational events. Although the number of casualties in the Boston terror attack was much smaller than Texas explosion, the psychological impact and news attractiveness of Boston were much higher. Indeed, the news of the Texas fertilizer plant explosion was almost swept away in an ocean of news about Boston. Instead, priorities in emergency management should be decided based on the scientific evidence, accurate statistics, and rational policy planning.

Counter-terrorism is necessary and obviously very important. Governments must take policy measures to prevent terrorism, but they should resist contributing to institutionalized fear. They must also remember that human beings are surrounded by a plethora of risks, many of which cause more physical damage than terrorism. Governments should prepare policy measures for mitigation, preparedness, response, and recovery for all hazards we can encounter, and should keep a balance based on sciences and accurate statistical data.

For this purpose, a number policy measures are appropriate. First, we need a clear cost-benefit analyses of the current policies in emergency management. According to research conducted by John Mueller and Mark G Stewart and published in 2011,[6] the United States has spent over $1.1 trillion on homeland security after 9/11; Mueller and Stewart evaluate the effectiveness of this massive spending as very low. If this money, or some of it, had been applied to other public safety areas, such as climate change mitigation or industrial safety management where the cost effectiveness is high, the United States could be a safer place.

Second, people should know what the real risks are. The well known risks such as traffic accidents, industrial accidents, and floods kill far more people in America than terrorism does. According to several psychological research studies, familiarity can reduce the level of the public’s risk perception. So, there is a much smaller sense of urgency about many of the risks that surround us every day. Science and statistics on risks, and governmental efforts to provide information and education about risks, can help individuals and local communities effectively increase their overall safety level.

[1] Slovic, P. “Perception of Risk,” Science, Vol. 236, No. 4799 (1987): 283.

[2] Kasperson, R., Renn, O., Slovic, P., Brown, H. and Emel, J. “Social Amplification of Risk: a Conceptual Framework,” Risk Analysis, 8(2), (1988): 177-187.

[3] Alexander, D. “From Civil Defense to Civil Protection--and Back Again,” Disaster Prevention Management, 11(3), (2002): 209.

[4] FEMA, about the agency, http://www.fema.gov/about-agency.

[5] O'Brien, G. “UK Emergency Preparedness: A Step in the Right Direction?” Journal of International Affairs, Vol. 59, No. 2 (2006): 79.

[6] Mueller, J. and Stewart, M.G., Terror, Security, and Money: Balancing the Risks, Benefits, and Costs of Homeland Security (New York: Oxford University Press, 2011).

Authors

Jibum Chung

Image Source: © Kim Kyung Hoon / Reuters

President Obama's Guantanamo Comments

Benjamin Wittes — Wed, 01 May 2013 09:37:00 -0400

I confess myself mystified by President Obama’s comments about Guantanamo this morning. Here is what the President said—with the parts I find confusing bolded:

QUESTION: Mr. President, as you’re probably aware, there’s a growing hunger strike at Guantanamo Bay among prisoners there. Is it any surprise, really, that they would prefer death, rather than have no end in sight to their confinement?

OBAMA: Well, it is not a surprise to me that we’ve got problems in Guantanamo, which is why when I was campaigning in 2007 and 2008 and when I was elected in 2008, I said we need to close Guantanamo.

I continue to believe that we’ve got to close Guantanamo. I think, well, you know, I think it is critical for us to understand that Guantanamo is not necessary to keep America safe. It is expensive. It is inefficient. It hurts us, in terms of our international standing. It lessens cooperation with our allies on counter-terrorism efforts. It is a recruitment tool for extremists. It needs to be closed.

Now, Congress determined that they would not let us close it. And despite the fact that there are a number of the folks who are currently in Guantanamo, who the courts have said could be returned to their country of origin or potentially a third country, I’m gonna go back at this. I’ve asked my team to review everything that’s currently being done in Guantanamo, everything that we can do administratively, and I’m gonna reengage with Congress to try to make the case that this is not something that’s in the best interest of the American people.

And it’s not sustainable. I mean, the notion that we’re going to continue to keep over 100 individuals in a no-man’s land in perpetuity, even at a time when we’ve wound down the war in Iraq, we’re winding down the war in Afghanistan, and we’re having success defeating Al Qaida core, we’ve kept the pressure up on all these trans-national terrorist networks.

When we transfer detention authority in Afghanistan, the idea that we would still maintain forever a group of individuals who have not been tried, that is contrary to who we are. It is contrary to our interests and it needs to stop.

Now, it’s a hard case to make because, you know, I think for a lot of Americans the notion is “out of sight, out of mind.” And it’s easy to demagogue the issue. That’s what happened the first time this came up. I’m going to go back at it because I think it’s important.

QUESTION: Meanwhile, you continue to force-feed (inaudible).

No, I don’t — I don’t want these individuals to die. Obviously, the Pentagon is — is trying to manage the situation as best as they can. But I think all of us should reflect on why exactly are we doing this. Why are we doing this? I mean, we’ve got a whole bunch of individuals who have been tried who are currently in maximum security prisons around the country. Nothing’s happened to them. Justice has been served. It’s been done in a way that’s consistent with our Constitution; consistent with due process; consistent with rule of law; consistent with our traditions.

The — the individual who attempted to bomb Times Square, in prison serving a life sentence. Individual who tried to bomb planes in Detroit, in prison serving a life sentence. A Somali who was part of al-Shabaab who we captured, in prison.

So we can handle this.

And I understand that in the immediate aftermath of 9/11, with the traumas that had taken place, why for a lot of Americans the notion was somehow that we had to create a special facility like Guantanamo and we couldn’t handle this in a normal, conventional fashion. I understand that reaction. But we’re now over a decade out. We should be wiser. We should have more experience in how we prosecute terrorists. And this is a lingering, you know, problem that is not gonna get better. It’s gonna get worse. It’s gonna fester.

And so I’m gonna, as I said before, we’re — examine every option that we have administratively to try to deal with this issue, but ultimately we’re also gonna need some help from Congress. And I’m gonna ask some — some folks over there who, you know, care about fighting terrorism, but also care about who we are as a people to — to step up and help me on it.

The President’s comments are bewildering because his own policies give rise to the vast majority of the concerns about which he so earnestly delivered himself in these remarks.

Remember that Obama himself has imposed a moratorium on repatriating people to Yemen. And Obama himself has insisted that nearly 50 detainees cannot either be tried or transferred.

True, he would hold such people in a domestic facility, rather than at Guantanamo Bay. But so what? does the President not understand when he frets about “the notion that we’re going to continue to keep over 100 individuals in a no-man’s land in perpetuity” that if Congress let him do exactly as he wished, he would still be doing exactly that—except that the number might not reach 100 and the location would not be at Guantanamo? Does he not understand his own policy proposals—to maintain a residual group of detainees indefinitely—when he worries that “When we transfer detention authority in Afghanistan, the idea that we would still maintain forever a group of individuals who have not been tried, that is contrary to who we are. It is contrary to our interests and it needs to stop”? Does he not understand when he intones that we are wiser now than we were after 9/11 and no longer need a site like Guantanamo to hold non-criminal terrorist detainees that he is proposing to build a new one?

Pardon me, but I don’t get it.

This was reposted from the Lawfare Blog »

Authors

Benjamin Wittes

Publication: Lawfare

Lone Wolf Terrorists – No Easy Catch

Bruce Riedel — Tue, 30 Apr 2013 00:00:00 -0400

The terrible attack on the Boston Marathon is the most vivid and violent demonstration of terrorism confronting the United States and its allies today. Instead of large, complex plots hatched by organized jihadist terror gangs abroad, the new challenge is homegrown Muslim extremists who use the internet to self-radicalize and learn how to build bombs and create chaos by studying Al Qaeda texts online.

Much remains unknown about the two brothers, Tamerlan and Dzhokhar Tsarnaev, who allegedly built the bombs that exploded near the finish line of the marathon and killed three and wounded more than 200 on April 15. Experience shows that it’s dangerous to draw too many conclusions about a terror plot until the investigation is finished, but a preliminary judgment or two can be made about the Boston case.

The surviving terrorist, Dzhokhar, has reportedly told investigators that he and his brother were not part of an organized terror group like Al Qaeda or a broader conspiracy in the United States and that they decided to attack the marathon only a week or so before the event. They then decided to drive to New York City and carry out another attack in Times Square as a follow-up. The police stopped them before they got out of Boston, killing Tamerlan and capturing Dzhokhar.

The two reportedly learned how to build their bombs from an internet magazine produced by Al Qaeda called Inspire, the brainchild of an American citizen of Yemeni origin, Anwar al Awlaki, killed in a 2011 drone strike in Yemen. They also listened to tapes of Awlaki’s sermons on jihad, available on the internet. The older brother, Tamerlan, traveled to Russia last year, and his activities there remain largely a mystery. He may have had contact with the Chechen jihadist movement which has longstanding ties to Al Qaeda and especially its leader, Ayman al Zawahiri, who traveled there in the 1990s.

Read the full article »

Authors

Bruce Riedel

Publication: YaleGlobal Online

Image Source: © Brian Snyder / Reuters

These Classy Defense Contractors Are Already Looking to Cash In on Boston

Noah Shachtman — Fri, 26 Apr 2013 00:00:00 -0400

The newly-limbless victims from the Boston Marathon attack are still being treated, and the alleged bomber has only been in custody for a few days. But for a handful of defense and intelligence contractors, it’s never too early to start pimping their products as the solution to the next terrorist strike.

“The Boston Marathon bombing has proven the need for real time video and data analysis from all types of cameras, including user mobile devices, surveillance cameras, and network footage,” Chris Carmichael, CEO of Ubiquity Broadcasting Corporation, says in a press release. As it happens, his company offers an intelligent video system that does just that.

Piggybacking on big events a long-standing trick of the PR trade. It’s a way to garner attention for products that might ordinarily get ignored. So dress-makers jump on the Oscars. Social media monitors issue “analysis” of Twitter’s reaction to the Presidential debates. And the night after the Boston bombings, an explosive detection outfit called Implant Sciences emailed reporters to say that its “quantum sniffer” was the kind of “technology needed to prevent attacks like this… It is the most sensitive detection system ever created and it can save lives.”

Not to be outdone, a publicist from a facial recognition firm, FaceFirst, boasted to reporters a few days later that “this technology can identify individuals with prior arrests, terrorists and persons of interest in a matter of seconds.” He also sighed that “the last few month [sic] have been pretty hectic for due to the use of face recognition in the finding of the Boston Marathon Bombers and other high profile cases.”

One small problem: facial recognition wasn’t used to catch Dzhokhar and Tamerlan Tsarnaev, the accused attackers.

Thankfully, some of the companies boasting of their roles in the bombing response actually did help in that response.

During its quarterly earnings call this week, iRobot CEO Colin Angle was happy to let reporters know that, yes, one of the firm’s PackBot machines certainly was used to investigate a car driven by one of the bombing suspects. ”The company’s response to the Boston Marathon bombings continues a long tradition of iRobot’s responsiveness in a time of crisis and speaks to our values and commitment as an organization,” he crowed.

The Emergency Communications Network firm not-so-humble bragged in a statement that ”on Monday alone, more than 228,000 calls, tens of thousands of texts and emails, in addition to 700 CodeRED Mobile Alert app notifications kept citizens informed of critical public safety messages specific to their areas… On Tuesday, ECN client Massachusetts Institute of Technology used the CodeRED system to notify students, faculty and staff of a suspicious package on campus. More than 20,000 calls were launched in 11 minutes and 18,000 text messages were sent in three minutes, allowing MIT to proactively communicate with their campus community during a time of heightened awareness and vigilance.”

Others trying to ride the attack’s media wave had, at best, tangential connections to the tragedy. Afront group set up by outdoor advertising companies to promote billboards in Los Angeles decided that the bombing was a perfect excuse to renew its call for digital signs alongside L.A.’s freeways. An anti-Islam outfit pounced on the attack to demand that Muslims be stripped of their Constitutional rights. And when the news broke that bombing suspect Tamerlan Tsarnaev purchased hundreds of dollars’ worth of fireworks, the American Pyrotechnics Association quickly issued a statement defending its industry.

“Could these consumer fireworks devices be used to produce a pipe bomb or pressure cooker bomb like the bombs involved at the Boston marathon? Perhaps; however, it would take a significant volume of these small aerial shells to extract the volume of chemicals necessary to create a significant blast,” reads the press release. “Contrary to media reports, consumer fireworks have rarely been used in such destructive activities.”

Book publishers were also quick turn the awful attack that left three people dead into a marketing opportunity.

“This terrorist event left millions of citizens concerned about their family’s personal safety and wondering what they should do to plan and protect themselves,” notes one press release. ”Those answers are at your fingertips,” said Rob Stern, principal of Defense Research LLC, developer of the ‘Citizens’ Emergency Response Guide.’

“Can the reasons for the Boston Marathon bombing be understood by reading a 39 page book?” asks another press release, this one from a publisher hawking a novel from some guy named Morris Matthews.” Revered by America’s traveling carnival community, he brings a blend of ancient Ayurvedic wisdom and ‘Middle American’ horse sense to his writings.

If only he had used that horse sense to stop this press release before it was issued.

– with Spencer Ackerman

Authors

Noah Shachtman

Publication: Danger Room (Wired)

Image Source: © Jim Bourg / Reuters

The Chechen War Comes to Boston

Pavel K. Baev — Thu, 25 Apr 2013 00:00:00 -0400

In the days that have passed since the terrorist attack in Boston, the many details of this crime and the even greater volume of speculations have still provided no satisfactory explanation of reasons and motives. What had seemed to be a picture of an émigré family working hard for their pieces of the American dream turned out to be a story of failed socialization and a frustrated search for identity that turned into blind hatred. The US media has focused on the blunders of the security services in preventing this premeditated crime, on the shortcomings of the American immigration policy (currently distorted by the deadlocked battles in the US Congress), or on the continuing mutations of Islamic extremism. There is, however, a twist to this tragic story that sets it apart from other cases of quiet Americans turning into Muslim fanatics. This twist originates in the humanitarian catastrophe in the North Caucasus and spins through the protracted agony of the Chechen diaspora.

One family in the trail of tears

The uprooting of the Tsarnaev family was a micro-episode in Stalin’s punishment of the Chechens and other peoples that were forcefully displaced from the Caucasus and dumped into Siberia and Central Asia in February 1944. Most of the survivors were allowed to return to their devastated villages in 1957, but the Tsarnaevs, who had managed to find steady jobs in Kyrgyzstan, opted to stay. It was the fast decomposition of social fabric in the newly-independent Kyrgyzstan after the collapse of the USSR in 1991 that forced them to flee, but the North Caucasus, which had been badly affected by the war that engulfed Chechnya in 1994, proved to be an equally unwelcoming home. An attempt to return to Central Asia was another failure, and they joined the sad journey of many Chechen families moving from temporary shelters in Turkey to refugee centers in Poland to asylum-seekers institutions in Austria or Norway. The difference was that this family ended up in the US, where the Chechen community is so small that, much to the dismay of the Czech Republic, first reports on the manhunt misrepresented the Tsarnaev brothers as Czechs.

As he passed his teenage years in Boston suburbia, Tamerlan Tsarnaev never developed a feeling that he could fit in despite his moderate success as amateur boxer. It is unclear how he convinced his American girlfriend to convert to Islam and to marry him, but it is a fact that he was once arrested for beating her. His father Anzor dismissed that episode as nonsense: “In America, you can’t touch a woman,” implying that in the Caucasus, a self-respecting man wouldn’t think twice about it. Unable to find a job at 26, Tamerlan was probably deeply frustrated with the role of house-father taking care of his baby daughter, while his wife supported the household with her salary. His sister married an American and cut ties with the family, but Tamerlan had a strong influence on his younger brother Dzhokhar. Still a teenager, the youngest Tsarnaev was struggling with college courses and his habit of smoking marihuana didn’t help.

The call of the war

Confused about their identity, both brothers kindled a passion for their imaginary homeland Chechnya, but it was the older one who found a way to blend this yearning with a progressively consuming devotion to Islam. The local mosque was unable to satisfy this craving and he turned to surfing through the archipelago of proselytizing and extremist websites. His parents could have checked that journey, but a few years ago they returned to Russia and settled in Makhachkala, Dagestan. In early 2012, Tamerlan came to visit them and stayed for as long as six months. It was this exposure to war as a way of life that most probably sealed his violent radicalization.

Dagestan is indeed the theater of a protracted low-intensity civil war of unique complexity, in which feuds between criminal clans are barely distinguishable from guerilla attacks of rebels of various persuasions and underground Islamic networks challenge the alliance of authorities and clergy. According to NGO data for 2012, 405 people were killed and 290 wounded in the republic. Russian society pays scant attention to the shootouts and explosions, and in the West, this smoldering war in a far corner of Europe is completely forgotten. Russian troops stick to their routine of counter-terrorist operations, but the rebels now see themselves not as ‘al-Qaeda franchises’ but as a part of the powerful revival of political Islam. Tamerlan had plentiful opportunities to internalize this powerful message.

Kadyrov can and will deny everything

Russian media is full of speculations about the ‘setup’ of the Tsarnaev brothers and ‘plots’ of US special services, but these conspiracy theories avoid one person who has benefitted from the Boston bombing – Chechnya’s warlord-president Ramzan Kadyrov. He described Tamerlan and Dzhokhar as ‘products of American culture’ but counts on this terrible incident to severely discredit the whole Chechen diaspora, which he seeks to terrorize with every means available. He was irked by his de-facto inclusion in the ‘Magnitsky list’ and knows that the Obama administration has suffered a painful ‘lesson’. More importantly, he expects that Moscow has registered the message that cutting federal subsidies to Chechnya would be unhelpful. US investigators will struggle to establish how the idea of taking the ‘jihad’ from the war-torn Mahachkala to the finish line of the Boston marathon was planted in Tamerlan’s head, but Kadyrov, the master of terror in Grozny, had a good week and enjoys being untouchable in the matter.

Authors

Pavel K. Baev

Publication: NRK

Could al-Qaeda Direct a Canadian Plot From Iran?

Bruce Riedel — Wed, 24 Apr 2013 15:30:00 -0400

The revelation of an alleged plot to attack the Canada-U.S. train system by a small cell somehow connected to al-Qaeda’s presence in Iran has sparked interest in the relationship between the Sunni Muslim terror group and the Shia Muslim Iranian government. There is no doubt that al-Qaeda has a presence in Iran – but how it relates to the Tehran regime has been murky for years.

The relationship between al-Qaeda and the Islamic Republic of Iran has been shrouded in mystery and secrecy for years. Al-Qaeda operatives have transited through Iran regularly before and after Sept. 11, 2001, and some found sanctuary in Iran after fleeing Afghanistan in late 2001, although the circumstances of their status in Iran was always unclear. But the hints of occasional operational co-operation between al-Qaeda and Tehran are mostly outweighed by the very considerable and public evidence of the deep animosity between Sunni-extremist al-Qaeda and Shia-extremist Iran.

Antipathy for each other is at the root of their ideologies and narratives. It has been most visible in their competition for influence in Iraq, and now also in Syria.

The Sept. 11 plot is a good place to start if we wish to understand the mystery. The 9/11 Commission report concluded that there was evidence of contacts between Osama bin Laden and Iran (through its Lebanese Hezbollah ally) dating back to his years in Khartoum in the mid 1990s.

Read the full article »

Authors

Bruce Riedel

Publication: The Globe and Mail

Fighting Salafi-Jihadist Insurgencies: How Much Does Religion Really Matter?

Daniel L. Byman — Tue, 23 Apr 2013 13:08:00 -0400

Abstract:

How do jihadist insurgencies differ from non-jihadist ones? Jihadist insurgents, like all insurgents, seek to control the government, need money and weapons, and thrive where government is weak. Yet their cause—jihad at local, regional, and global levels—gives them instant friends and resources, but also built-in enemies and burdens. Jihadist insurgents often organize, recruit, and fund-raise differently than traditional insurgent groups. The agendas of these militant groups often go against the local residents' sense of nationalism and anger these communities with their extreme interpretations of Islam. To take advantage of this, the United States can amplify local voices that are best able to discredit these insurgents and press allied regimes to disrupt the mosques, schools, and fund-raising networks that help support them. However, Washington should also recognize that weakening these groups at the local level may make them more likely to embrace international terrorism. Allied efforts to co-opt jihadists may make area societies and governments less favorable to other U.S. policies. Finally, failed democratization—a particularly salient issue given the Arab Spring—risks playing into the jihadist narrative.

Read the article » (subscription required)

Authors

Daniel L. Byman

Publication: Studies in Conflict & Terrorism

The Limits of U.S. Cooperation with Russia on Counterterrorism

Fiona Hill — Mon, 22 Apr 2013 00:00:00 -0400

In the wake of the Boston bombings, some have speculated whether cooperation on counter-terrorism could put the U.S.-Russian relationship back on a more stable footing at a particular tense moment in bilateral relations. This will not be an easy task, even if both President Putin and President Obama are willing to try.

When Vladimir Putin became Russian president in the 2000s, coordination on anti-terrorism efforts was his central idea for Russian-U.S. cooperation. Chechnya was an integral element for Putin. Even before the events of September 11, 2001, Putin repeatedly warned the United States of the connection between Russia’s Chechen insurgency and international terrorism. Now, 12 years later, when terrorists of Chechen ethnicity have struck the United States itself, that connection appears to have been made for him.

On Tuesday April 16, right after the Boston bombings, Putin was quick to extend his condolences to Obama and to try to revitalize Russian-U.S. cooperation on counter-terrorism. In fact, Putin’s message to Obama in response to the Boston bombings is almost identical to his message to President Bush after the 9/11 attacks, when Russia extended similar offers of intelligence-sharing in Afghanistan.

The first question the U.S. intelligence services asked after word of the bombs was: did we pick up any “chatter” from al-Qaeda and other terrorist groups that would hint at this? Now we’re asking, did the Russian FSB (the successor to the KGB) pick up chatter from Chechen groups or other extremist networks in Russia, especially given the FSB’s already-established interest in Tamerlan Tsarnaev, the older of the two brothers involved in the Boston bombings?

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Authors

Fiona Hill

Publication: MSNBC

Organizing and Managing Intelligence Analysis to Fight Terrorism

Mon, 22 Apr 2013 10:00:00 -0400

Event Information

April 22, 2013
10:00 AM - 11:30 AM EDT

Saul/Zilkha Rooms
Brookings Institution
1775 Massachusetts Avenue NW
Washington, DC 20036

Register for the Event
A discussion with Philip Mudd on his new book, "Takedown: the Hunt for al Qaeda" (University of Pennsylvania Press, 2013)

I made a mistake. I thought we were fighting al Qaeda. What we were fighting was al Qaedism, and al Qaeda itself, the group, was only a subset of that. - Philip Mudd

Listen to this engaging conversation between Bruce Riedel, director of the Brookings Intelligence Project and a former CIA officer, and Philip Mudd, a former CIA and FBI counter-terrorism official. The two intelligence veterans had a provocative, wide-ranging coversation about how the U.S. intelligence community does its work, touching on the Boston Marathon bombings, the investigation of the two Tsarnaev brothers suspected of commiting the act and their origins in Chechnya, and comparison to the 2006 plot to blow up jumbo jets flying between Britain and North America. The conversation also considered to free speech rights and the potential conflict with extremist actions.

The elder of the two brothers who are accused of being responsible for the attack on the Boston Marathon, Tamerlan, traveled to Russia sometime in the last year. He seems to fit a pattern that we've been seeing more and more frequently. Radicalized Americans, Muslims, who seem to have a fairly normal life the United States, and then something changes dramatically. - Bruce Riedel

If you look at the 7/7 attacks in the UK in 2005, if you look at the attempt that was well publicized in Canada—I'm going to guess that was about three-four years ago—to blow up the Parliament, you will often find somebody in that circle, psychologically, who plays the role of an older brother or father figure. Someone who has the respect of younger folks. - Philip Mudd

As an outside, nongovernment commentator, I would say the likelihood of a terrorist group conceiving, plotting, organizing, training, executing a 9/11 style attack, it's hard for me to imagine that. - Philip Mudd

On April 22, the Intelligence Project at Brookings, hosted a discussion with Philip Mudd on his new book, Takedown: the Hunt for al Qaeda (University of Pennsylvania Press, 2013), which examines how the intelligence community collects, analyzes and employs data to combat terrorism, and details the challenges still ahead in the war against al Qaeda. Mudd served as the deputy director of the Central Intelligence Agency’s Counterterrorism Center, the deputy director of the Federal Bureau of Investigation’s National Security Branch and as the FBI’s senior intelligence adviser.

Brookings Senior Fellow Bruce Riedel, director of the Intelligence Project, provided introductory remarks and moderated the discussion.

Video

Homegrown Terrorism in the Boston Bombings, President Obama's Middle East Visit, and the Israeli-Palestinian Peace Process

Martin S. Indyk — Sat, 20 Apr 2013 00:00:00 -0400

Editor's Note: In an interview with Dana Weiss on Israel’s Meet the Press (Channel 2), Martin Indyk discusses homegrown terrorism in the Boston Marathon bombings, as well as President Obama’s recent trip to the Middle East, the role of Secretary of State John Kerry, and prospects for peace between Israel and Palestine. Read an excerpt below, and watch the full interview at mako.co.il (interview starts at 10:05).

Dana Weiss: You’re here for the INSS conference, but of course the focus is naturally on the events back in the U.S., and as we see the unfolding events in Boston, it’s quite clear that terror has struck again at the heart of America.

Martin Indyk: It’s the great irony, I’m here in Israel, which is normally ground zero for terrorism, and it’s happening in our backyard, in Boston. And it’s a big shock, I think, to Americans who thought that so many years after 9/11, so much effort taken to fight al-Qaeda, the taking out of Osama bin Laden himself, the sense that we had them on the ropes – and here, an act of homegrown terrorism that appears to be Islamist-related, jihadist-related – and how do you deal with homegrown terrorists?

It’s a kind of shock for the system, because look at what happened on 7/7 in London – those kinds of attacks from, again, homegrown terrorists there – it’s a very scary thing to imagine that they’re in our midst – and how do you find them under those circumstances?

Dana Weiss: And you know, the President asked not to jump to conclusions and to wait for the facts, but I think it’s quite clear that as you said, it’s not enough to get rid of bin Laden. There is actually no way to eliminate this terror, especially when it’s back to the extreme Muslim terror against the West.

Martin Indyk: Well, if that’s what we’re facing – and we have to be careful jumping to conclusions – but if that’s what we’re facing, then yes, it’s a long struggle that is, at its heart, ideological. And that’s, essentially, people turn to extremist actions – terrorist actions – for a range of motives, but certainly it seems that for Muslim believers, there’s a potential to move to an extreme point because of the teachings and extremist ideology that’s being perpetrated out there every day out there on the internet; places like Inspire magazine, and they can learn, get their instructions and learn how to build their bombs, and it becomes a metastasized problem.

Dana Weiss: And do you think it will affect in any way the American policy in the Middle East, pulling out of Afghanistan, even dealing with the situation here in our region?

Martin Indyk: No, I don’t think so. I think that the American people are tired of wars in this part of the world. Obama is holding up, it’s an achievement, of ending America’s involvement in wars in the greater Middle East, and that is very popular in the United States; with the United States Armed Forces as well. And so I think that people now draw a distinction between having to fight terrorism, wherever it rises as a threat, and avoiding the kind of ground wars in the Middle East. And of course Obama’s use of drones has, I think, led the American public to believe that we have a kind of easy way of dealing with this…

Dana Weiss: …yeah, from a far distance…

Martin Indyk: …from a distance, but not when it’s in your backyard.

Authors

Martin S. Indyk

Publication: Israel's Meet the Press (Channel 2)

Four Reasons Sens. Graham and McCain are Wrong about Military Detention for Dzhokar Tsarnaev

Benjamin Wittes — Sat, 20 Apr 2013 15:00:00 -0400

Sens. Lindsey Graham and John McCain were quick out of the box last night in declaring that the Obama administration should hold Dzhokar Tsarnaev in military detention for his role in the Boston bombing:

Now that the suspect is in custody, the last thing we should want is for him to remain silent. It is absolutely vital the suspect be questioned for intelligence gathering purposes. We need to know about any possible future attacks which could take additional American lives. The least of our worries is a criminal trial which will likely be held years from now.

Under the Law of War we can hold this suspect as a potential enemy combatant not entitled to Miranda warnings or the appointment of counsel. Our goal at this critical juncture should be to gather intelligence and protect our nation from further attacks.

We remain under threat from radical Islam and we hope the Obama Administration will seriously consider the enemy combatant option.

We will stand behind the Administration if they decide to hold this suspect as an enemy combatant.

Bobby quickly explained why this is both unnecessary and a bad idea; this very fine Wall Street Journal blog sketches out why it would pose legal problems as well. But the idea has had legs on Twitter, so I want to bring together in one place and explain the several distinct but overlapping reasons why it would be not merely ill-advised but absolutely nuts to try to treat Tsarnaev as an enemy combatant.

Broadly speaking, there are four reasons:

First and most important, Tsarnaev may not be an enemy combatant. Graham and McCain warn that “The accused perpetrators of these acts were not common criminals attempting to profit from a criminal enterprise, but terrorists trying to injure, maim, and kill innocent Americans.” That’s certainly true. But not every terrorist with a bomb is an enemy combatant whose military detention is authorized by law. Some are just killers with bombs. Under the AUMF as interpreted by the courts, and under the NDAA as passed by Congress, the administration is authorized to hold in military detention only those who are “part of” or “substantially supporting” Al Qaeda, the Taliban, or associated forces. Nothing that has come to light publicly has shown that Tsarnaev was operating as part of any group covered by the AUMF. Unless and until such evidence arises, military detention is not merely a bad idea. It is simply not legally available. Particularly for those of us who support military detention in appropriate circumstances and have argued for its propriety and legality, it is absolutely essential to reject it where the facts do not support it. Military detention does not flow legally from the fact of someone’s being more than just a common criminal. It flows from the fact of someone’s being a part of a military enemy’s fighting cadre. Calling for detention of people who don’t meet—or may not meet—that threshold comes perilously close to calling for a roving power to lock up nasty people.

Second, assuming for a moment that the facts as they emerge would support an enemy combatant designation, there’s the small matter of Tsarnaev’s citizenship. Tsarnaev is reportedly a naturalized American citizen, and the government’s appetite for the detention of American citizens under the laws of war has waned—and rightly so. This began under the Bush administration, which tried twice—in the early cases of Yaser Hamdi and Jose Padilla—to detain U.S. citizens under the laws of war and ultimately backed down both times. The question of whether such detention is legally appropriate for a U.S. citizen captured by law enforcement remains an open one. But it’s an open question that no sane executive would want to test in the presence of a viable alternative—like, say, an open-and-shut prosecution in federal court. As a matter of policy, it was informally off the table long ago, and the Obama administration made that informal policy formal. John Brennan, in a speech at Harvard Law School, declared:

when it comes to U.S. citizens involved in terrorist-related activity, whether they are captured overseas or at home, we will prosecute them in our criminal justice system. There is bipartisan agreement that U.S. citizens should not be tried by military commission.

Third, even if the reports of Tsarnaev’s citizenship prove erroneous, he was certainly captured in the United States, and the military detention of domestic captures is problematic for many of the same reasons that the detention of the citizen poses difficulties. Again, whether it is or is not legally available is an open question of law; this was the issue in the Al Marri case. But this is not a question of law that any administration should be eager to test. And just as it has adopted a policy of not testing the citizen detention question, the Obama administration has taken military detention off the table for domestic captures. As Brennan put it,

it is the firm position of the Obama Administration that suspected terrorists arrested inside the United States will—in keeping with long-standing tradition—be processed through our Article III courts. As they should be. Our military does not patrol our streets or enforce our laws—nor should it.

Fourth, even if all of these legal and policy problems could be overcome, as Bobby explained last night, military detention offers no clear advantages in this case and has several big disadvantages. The public safety exception to Miranda means the FBI has a considerable degree of flexibility in conducting this interrogation, so there’s no particular reason to expect the Bureau will be unable to glean from Tsarnaev the answers to the critical questions at stake right now: Are there accomplices still at large, and to what extent was the bombing the work of any foreign group? On the other hand, military detention would gravely complicate the longer-term interest in punishment and in Tsarnaev’s legitimate long-term incarceration. In the Hamdi and Padilla and Al Marri cases, the consequence of military detention was a substantially shorter sentence than the suspect’s conduct would have supported.

In short, there is simply no case for military detention here. By pushing for it, Sens. Graham and McCain risk bringing into disrepute the one avenue realistically open to those who want answers and justice.

***

This was reposted from Lawfare, where Wittes and others have been following the situation surrounding the Boston bombing. You can read more on the Lawfare Blog »

Authors

Benjamin Wittes

Brookings: Topics - Terrorism

Finally, Obama Breaks His Silence on Drones

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The President’s National Security Speech: A Quick and Dirty Reaction – Part 1

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Obama’s National Security Speech and Pakistan

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Protecting U.S. Citizens’ Constitutional Rights During the War on Terror

Downloads

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Holder: We've Droned 4 Americans, 3 By Accident. Oops.

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Counter-Terrorism and Emergency Management: Keeping a Proper Balance

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President Obama's Guantanamo Comments

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Lone Wolf Terrorists – No Easy Catch

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These Classy Defense Contractors Are Already Looking to Cash In on Boston

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The Chechen War Comes to Boston

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Could al-Qaeda Direct a Canadian Plot From Iran?

Authors

Fighting Salafi-Jihadist Insurgencies: How Much Does Religion Really Matter?

Authors

The Limits of U.S. Cooperation with Russia on Counterterrorism

Authors

Organizing and Managing Intelligence Analysis to Fight Terrorism

Event Information

Video

Audio

Transcript

Event Materials

Homegrown Terrorism in the Boston Bombings, President Obama's Middle East Visit, and the Israeli-Palestinian Peace Process

Authors

Four Reasons Sens. Graham and McCain are Wrong about Military Detention for Dzhokar Tsarnaev

Authors