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Just Counterterrorism

 

Just Counterterrorism

 

George Clifford

 

 

Published by Ethical Musings

 

 

Copyright 2014 George M. Clifford, III

All rights reserved.

 

Cover photo © iStockphoto.com

[][] Table of Contents

List of Abbreviations

Figure 1: The Just Counterterrorism Model

Introduction

Chapter 1: Defining the Problem

A. What Terrorism Is

B. What Terrorism Is Not

C. What Terrorists Want

D. How Terrorism Ends

Chapter 2: The Solution: Just Counterterrorism

A. The Inadequacy of a Warfighting Counterterrorism Model

1. Jus ad Bellum

2. Jus in Bello

3. Jus post Bellum

B. The Need for a New Counterterrorism Model

C. The Just Counterterrorism Model

Chapter 3: Justice for the Attacked

A. Courage

B. Prudence

C. Justice

D. Temperance

Chapter 4: Justice for Terrorists

A. Apprehension

1. Respect Rights

2. Uphold the Rule of Law

B. Interdiction

1. Just Cause

2. Right Intent

3. Right Authority

4. Reasonable Chance of Success

5. Proportional

6. Noncombatant Discrimination

7. Rapid closure

8. Case Studies

C. Adjudication

1. Impartiality

2. Procedural Fairness

Chapter 5: Justice for Others

A. Improve Equality

B. Improve Political Fairness

C. Improve Distributive Fairness

Chapter 6: Case Study: Northern Ireland

A. Justice for the Attacked

1. Courage

2. Prudence

3. Justice

4. Temperance

B. Justice for Terrorists

1. Apprehension

2. Interdiction

3. Adjudication

C. Justice for Others

1. Improve Equality

2. Improve Political Fairness

3. Improve Distributive Fairness

Conclusion

A. Just Counterterrorism Summarized

B. Developing a Just Counterterrorism Tradition

Notes

Bibliography

About the Author

[]List of Abbreviations

[]Figure 1: The Just Counterterrorism Model

[]Introduction

No doubt today’s Wise Men see themselves as devoted patriots. No doubt they even mean well. Yet that’s not good enough. As Paul Wolfowitz himself wrote, ‘No US president can justify a policy that fails to achieve its intended results by pointing to the purity and rectitude of his intentions.’

Andrew J. Bacevich, The Limits of Power1

On September 11, 2001, the Islamic extremist organization al Qaeda struck both New York City and Washington, DC. These attacks, now universally identified by their abbreviated date of 9/11, were a singularly transformative moment for terrorism and in United States (US) history.

Using a passenger jet as a weapon was not a novel idea. In the first recorded attempt, Algerian Islamist extremists hijacked an Air France commercial airliner in 1994, intending to fly it into the Eiffel tower. A French anti-terrorist unit successfully stormed the plane when the terrorists landed to refuel.2

The 9/11 attacks utilized a different scale and achieved unexpected results. The New York attack consisted of two hijacked passenger planes crashing into the landmark twin World Trade Center towers in lower Manhattan. One jet struck the World Trade Center’s North tower at 8:46 am; 17 minutes later, the second plane hit the South tower. Both airliners exploded on impact. The explosions ignited fires, fed by jet fuel, which caused the catastrophic structural failures responsible for both towers collapsing.3 Including persons on the ground as well as aboard the two planes, this horrendous attack killed almost 2,800 people.4 The exact death toll remains unknown because of the difficulty in locating and identifying the human remains scattered throughout the massive piles of intensely charred and compacted debris. The blast, fighting the fires, rescue operations, and inhalation of airborne ashes and dust injured countless thousands more.

Concurrently, al Qaeda operatives hijacked two other airliners. One they crashed into the Pentagon’s west wall. Passengers aboard the fourth plane, United Airlines Flight 93, having learned of the attacks on the World Trade Center surmised that the hijackers intended to use the jet as a weapon to attack yet another target. Evidence collected after the crash revealed that a small group of Flight 93’s passengers courageously seized the initiative and counterattacked their flight’s hijackers about thirty minutes after the hijacking. Before the counterattack could succeed, the terrorists lost control of the plane or intentionally flew the aircraft into the ground. Post-9/11 investigators remain unclear about whether the Flight 93 hijackers had targeted the White House or the US Capitol. Including both the passengers aboard these two planes and persons on the ground who died in the crashes, the terrorists killed an additional 229 people.

Osama bin Laden, al Qaeda, and their operatives had likely hoped, perhaps even anticipated, that the two planes crashing into the World Trade Center would ignite fires that would kill most or all of the people on the floors above the one(s) into which the planes flew. Apparently, the plan’s most optimistic projection was that the floors above the crash sites would collapse.5

The large number of people killed—over 3,000—marked a significant change in how terrorists operate:

Historically, terrorists have not taken the opportunities available to them to murder on a grand scale. They have not needed to. They could further their objectives and inflict widespread terror without inflicting widespread casualties. The most frequently cited aphorism making this point was made by the RAND analyst Brian Jenkins in 1974: ‘Terrorists want lots of people watching, not lots of people dead.’6

Yet thinking that Osama bin Laden and al Qaeda chose the 9/11 targets primarily because of the number of people likely to die is a mistake. A well-planned and executed attack on a crowded major league or university athletic stadium, for example, might have killed many more people.

Instead, Al Qaeda chose the 9/11 targets for their symbolic value. The World Trade Center, with its distinctive shape, height, high-profile tenants, and location near the heart of the United States’ financial capital, symbolized the country’s tremendous economic might. The Pentagon, which suffered comparatively little damage on 9/11, uniquely symbolizes the United States’ status as the world’s only military superpower. Although the fourth plane’s target remains unclear, both the Capitol and White House distinctively symbolize the United States’ government.

In several respects, each far more significant than the tragic deaths of thousands and extensive property damage, US reaction to the 9/11 attacks greatly exceeded what the terrorists might have imagined or hoped, helping the terrorists to achieve a remarkable victory.7 In the words of terrorism expert Louise Richardson, “Terrorism is, above all a game of psychological warfare.“8 For less than half a million dollars, 19 terrorists:

● Shattered the US mainland’s illusion of being impervious to foreign enemies, protected by geographic barriers that no enemy had successfully penetrated for almost two centuries

● Confronted the US population en masse with the potentially terrifying reality that a group of committed terrorists in a remote part of the globe hated them enough to commit suicide attacks against the US

● Inflicted an estimated $90 billion direct economic loss9 and as much as $3 trillion in indirect losses on the US economy10

● Underscored the vulnerability of all US citizens to attack, by seemingly sudden and malicious attacks against mostly civilians, people who were blissfully unaware of the scope of Islamic extremism, al Qaeda’s threat, and its reasons for attacking11

● Shifted the threat of terrorism to the front line of political, economic, and security concerns not only in the United States but also in Europe and all other developed countries.

No wonder that Osama bin Laden, then head of the al Qaeda terror network, publicly rejoiced over the devastating blow that his organization had struck against the country he considered Islam’s foremost enemy.

In the shocked and terror-filled aftermath of the 9/11 attacks on New York and Washington, DC, President George W. Bush realized that a majority of United States citizens, in accord with his own predispositions, expected decisive action. After all, the 9/11 attacks were the first significant foreign attacks against the United States mainland since the War of 1812. In the intervening two centuries, only a handful of mostly ineffectual attacks had occurred, some of them directed against territories rather than states. In 1941, when Japan attacked Pearl Harbor, Hawaii was still a US territory, not achieving statehood until 1959. During World War II, the Japanese also put some troops ashore in the Aleutians, part of the then territory of Alaska. The Germans landed a handful of saboteurs on the US east coast, but US authorities apprehended all of those put ashore before they attempted any sabotage. A Japanese sub shelled a West Coast town causing no casualties and German U-boats sank coastal shipping early in the war, but authorities kept these incidents secret to avoid panicking the public.

President Bush boldly declared, “We will make no distinction between the terrorists who committed these acts [the 9/11 attacks] and those who harbor them.“12 Incidentally, that statement echoes a far less publicized statement by senior Clinton administration official Thomas Pickering to the same effect.13 On October 7, 2001, less than a month after 9/11, the United States invaded Afghanistan, rapidly removed the Taliban from power, eventually killed Osama bin Laden after more than a decade of failed attempts, and struggled to establish democracy and to destroy al Qaeda during its 12-year occupation of Afghanistan. In 2003, in its next major counterterrorism move, the US invaded Iraq, quickly conquered it, and then occupied it for nine years. US domestic responses to terrorism’s threat have included imposition of extensive security screenings at transportation hubs, airports, and many large gatherings, creation of a new cabinet department responsible for homeland security, and fast passage of a sweeping new counterterrorism law, the USA Patriot Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism).

To date, the United States’ extensive international and domestic responses have failed to end or substantially mitigate the terrorist threat. After years of valiant and costly efforts, the US remains, in the words of former CIA terrorism expert Michael Scheuer, “less secure than it was on what al Qaeda refers to as ‘the Tuesday of God’s glory’….“14 In the period 2003-2005, the years during which the US invaded and occupied Afghanistan and then Iraq, the number of attacks al Qaeda conducted globally actually increased.15

What has gone wrong? Why has the world’s only global superpower been unable to eliminate, or even to reduce significantly, the terrorist threat? What ethical principles shape a just, morally responsible, and effective counterterrorism strategy and tactics? How can countries and the global community work to build peace in this age of terror? This book attempts to answer those questions and proposes a new model for shaping effective, ethical counterterrorism strategy and tactics.

No single ethical model for shaping and assessing counterterrorism strategy and tactics has garnered the support of a majority of ethicists. Nor have elected leaders or government officials actually responsible for counterterrorism policy and programs in any country adopted an ethical counterterrorism model. Instead, perceived opportunities to strike a blow against terrorists and short-term political considerations are the two main catalysts that drive well-intentioned but ad hoc decisions about counterterrorism strategy, tactics, and policies. These decisions have consistently proven unable to reduce terrorism significantly, much less to end it.

Indeed, the problem is even more basic. No commonly accepted definition of terrorism exists. Politicians, pundits, and the public frequently use the emotionally laden words terror and terrorism to connote a disconcertingly disparate array of problems and threats. This imprecise usage frequently refers to insurgencies, non-state terrorism, some counterterrorism measures, and criminal acts such as kidnappings and mass murders. Occasionally, people even stretch the terms terror and terrorism to describe major natural disasters. Only one commonality—the tendency to evoke the emotion of great, perhaps even irrational, fear—links all of these phenomena. Rhetorically conflating these very different phenomena into a single, ill-defined concept has contributed to the mistaken impression that terrorism is a problem without a solution and implicitly encouraged extravagant spending on counterterrorism. This ambiguity also deprives policymakers of analytical assistance in formulating effective counterterrorism strategy and tactics.

Chapter 1 presents the rationale for specifically defining the word terrorism as non-state actors utilizing a strategy or tactic of violence against innocent civilians in an attempt to achieve political goals of power for the non-state actors and greater justice for the community they claim to represent. The proposed definition seeks to circumscribe the problem with sufficient breadth to encompass both domestic and international non-state terrorism, regardless of geography or ideology, but also with sufficient precision to define a problem that has viable solutions. Reviewing and summarizing the historical evidence about the aims and fate of terror organizations demonstrates that all non-state terror groups eventually end while highlighting effective counterterrorism strategies and tactics.

Prior to 9/11, counterterrorism was generally a law enforcement responsibility.16 The 9/11 attacks, perpetrated by an international network operating from another country and benefiting from that country’s support, posed seemingly insurmountable difficulties in relying upon law enforcement to bring the guilty to the bar of justice. The Global War on Terror (GWOT) that President George W. Bush declared was a rather abrupt innovation for the US in counterterrorism, depending primarily upon direct action by US armed forces and intelligence agencies instead of law enforcement agencies. Under President Obama, the US continued to regard and to respond to international terrorism as a military problem.17 Chapter 2’s first section examines this continuing war on terrorism through the lens of Just War Theory, which is the most widely accepted paradigm for evaluating a war’s morality. The analysis, relying on Chapter 1’s definition of terrorism and lessons learned about how terrorism ends, concludes that a warfighting counterterrorism strategy is unjust and will generally fail. An analysis of the dynamics of asymmetric conflicts sheds further light on the inherent limitations of warfighting as a counterterrorism strategy.

Chapter 2’s second section begins by enumerating four design criteria for shaping and assessing counterterrorism strategy and tactics, along with the rationale for each, that any proposed model should satisfy. The criteria emerge out of Chapter 1’s review of how terrorism ends. In particular, a counterterrorism model should be demonstrably effective, comprehensive, ethical, and sufficiently flexible to encompass non-state terrorism’s geographic and ideological diversity. Since effectiveness is a sine qua non for any counterterrorism model, the design criteria might appear to point toward a consequentialist or utilitarian approach. However, for reasons the section elucidates, an ethic centered on justice is in fact essential. The section finishes with an appraisal of the two existing counterterrorism approaches (law enforcement and warfighting) and of several recently proposed models, explaining why all fail to satisfy the design criteria. States therefore need a new model for assessing and shaping counterterrorism strategy and tactics.

The third section of Chapter 2 introduces the proposed Just Counterterrorism Model, which is developed in chapters 3-5 and outlined in Figure 1. Each of the Just Counterterrorism Model’s three components concentrates on one of the three groups of stakeholders identifiable in conjunction with any terrorist act: Justice for the Attacked—the community that the terrorists have attacked or threatened; Justice for Terrorists—the terrorists; and Justice for Others—the community that spawned and then enables the terrorists to operate. A component’s criteria, along with any subordinate constituent elements that a criterion may have, provide a practical paradigm for determining or assessing counterterrorism strategy and tactics as it pertains to that set of stakeholders. The Just Counterterrorism Model does not prescribe a set of universal counterterrorism ukases. Instead, the Model is contextual, i.e., the Model is a flexible paradigm for shaping or assessing counterterrorism strategy and tactics in response to a particular terror group.

A corollary of Chapter 1’s argument that issues of political power and justice constitute terrorism’s ideological and motivational core is that any effective counterterrorism strategy must build upon an ethic of justice with respect to the three groups of stakeholders affected by any terror strategy or tactic. Justice, however, is a notoriously difficult idea to define. John Rawls, arguably the twentieth century’s most prominent philosopher interested in the theory and praxis of justice, defined justice in terms of fairness; his concept of justice as fairness, for reasons explained in Chapter 2, determines and informs every facet of the Just Counterterrorism Model.

Rawls maintained that justice encapsulates and expresses a community’s virtue. The four cardinal virtues of the western philosophical tradition that emerged out of the ancient Greek philosophical tradition and Christianity— courage, prudence, justice, and temperance—provide a conceptual framework for understanding a community’s virtue. Thus, Chapter 3 (Justice for the Attacked) uses the cardinal virtues, interpreted from a Rawlsian perspective, as the four criteria for describing an attacked community’s ethical, efficacious response to terrorism. Succinctly summarized, people need courage to resist succumbing to terror and to continue with life in the face of unknown threats. Prudence helps a community’s leaders and opinion makers to select sound, affordable defensive measures that will reduce future vulnerability to terror attacks without unduly compromising the community’s values. A just community responds to terror threats and attacks by adhering to the rule of law, seeking justice for terrorists, and promoting improved justice for the constituency upon whom the terror group’s continued existence depends. Lastly, temperance signifies choosing efficacious even if significantly delayed counterterrorism responses over quick responses, regardless of their probable efficacy.

Chapter 4 (Justice for Terrorists) extends Chapter 2’s argument that waging war on terror has the de facto, even if unintentional, effect of glorifying terrorists by implying that terrorists are warriors comparable in status to military personnel. In fact, terrorists are criminals whom governments should seek to bring to justice. The chapter’s sections of Apprehension, Interdiction, and Adjudication each explicate one of Justice for Terrorists’ three eponymous criteria. These criteria apply Rawls’ concept of justice as fairness directly to terrorists. Briefly, Apprehension connotes law enforcement agencies, in cases of domestic terrorists or of international terrorists operating in an area where the rule of law prevails, working to identify, arrest, and interrogate terror suspects while upholding the rule of law and respecting rights. Interdiction connotes a state’s response to terrorists in a location where the rule of law does not prevail. Its seven constituent elements—just cause, right intent, right authority, reasonable chance of success, proportionality, noncombatant discrimination, and rapid closure—adapt Just War Theory criteria to the exigencies of counterterrorism in areas where the rule of law does not prevail. Together, these seven elements delineate a protocol that balances respect for state sovereignty with the need to deny international terrorists safe havens from which to operate. Adjudication connotes legally trying terrorist suspects arrested by Apprehension or captured in an Interdiction, acquitting the innocent, and punishing the guilty. Impartiality and procedural fairness are Adjudication’s two constituent elements and apply to trials and punishment. Among other topics, the chapter addresses torture, the use of drones in counterterrorism, and the tension between intelligence gathering and security, on the one hand, and freedom and privacy, on the other.

Just Counterterrorism contends that persistent, widespread, and egregious injustice, combined with real or perceived powerlessness to improve the situation, spawns terrorist organizations and enables them to flourish. No community, given terrorism’s immorality, affords a terror organization the support the group needs to survive and to operate in the absence of substantive injustice. Ending the threat posed by one terrorist organization without reducing (or ending) the injustice that was the group’s precursor leaves conditions intact for the emergence of new terror groups. The Just Counterterrorism Model’s final component, Justice for Others, developed in Chapter 5, argues that Rawls’ concept of justice as fairness should shape a state’s policies to improve equality, political fairness, and distributive fairness (Justice for Others’ three criteria), thus ameliorating the injustice in which the terrorism has its roots. Supporting justice for others, in conjunction with pursuing justice for terrorists and promoting justice within an attacked or threatened community, is analogous to not only defending against and killing mosquitoes in one’s yard but also to draining the swamp in which the mosquitoes breed.

As this Introduction’s epigraph emphasized, results matter when dealing with terrorists and terror groups. In order to warrant adoption by scholars or implementation by the political leaders and government officials responsible for counterterrorism, any proposed counterterrorism model—ethical or otherwise—must offer a reasonable chance of success in reducing or ending terrorism. Consequently, the Just Counterterrorism Model’s development in Chapters 3-5 relies upon numerous examples, drawn mainly but not exclusively from US efforts against al Qaeda and Israel’s struggle against Palestinian terrorists. The examples illustratively suggest the efficacy of the Model’s components. To demonstrate the Just Counterterrorism Model’s potential for formulating and subsequently assessing effective, comprehensive, ethical counterterrorism, Chapter 6 is a case study of Great Britain’s long counterterrorism struggle in Northern Ireland. Because Northern Ireland counterterrorism did not involve any interdictions, the Interdiction section of Justice for Terrorists (Chapter 4b) ends with two mini-case studies that use Interdiction’s seven constituent elements to assess the US practices of extraordinary rendition and targeted killing.

Just Counterterrorism’s development of the proposed Just Counterterrorism Model is an exercise in applied ethics that takes Sun Tzu’s famous dictum in The Art of War to know one’s enemy seriously. Ethical models that address the contemporary threat of terrorism must accurately understand the nature and dynamics of the problem in order to have a reasonable chance of being efficacious and attractive to public policy decision makers. The proposed Just Counterterrorism Model may not be the definitive, permanent solution to domestic and international terrorism. However, this volume argues that the Just Counterterrorism Model’s blueprint for an efficacious, ethical, and comprehensive counterterrorism model represents a significant step forward from current ad hoc, politically expedient approaches and other proposed counterterrorism models.

Finally, I gratefully acknowledge my debts to all those whose assistance made this book possible: my students from 2003 to 2005 at the Naval Postgraduate School, who provided inspiration and insight; my colleagues in teaching there, Mark Smith and Darrell Wesley, exceptional dialogue partners; the many people with whom I discussed the ideas that grew into, or who read earlier drafts of, Just Counterterrorism; and Marcia Talley for the cover. Most importantly, this book would have been impossible without the support and unfailing encouragement of my beloved wife, Susan.

 

[]Chapter 1: Defining the Problem

What is terrorism? Accurately defining that term is the essential first step in developing an ethical and effective counterterrorism model. Regardless of the type of problem, effective problem-solving models usually begin by developing a clear statement of the problem. A good definition of terrorism provides the foundation for understanding why terrorism is always immoral, differentiates terrorism from other problems, helps to explain why groups adopt a terror strategy (overall campaign plan) or terror tactics (plans for specific acts or engagements), and assists in identifying the dynamics or conditions required to defeat a terror group.

Furthermore, unless one begins with a clear definition of the problem of terrorism formulating ethical and effective responses—that is, developing an ethical and effective counterterrorism strategy and tactics—depends upon chance successes achieved in a potentially costly process of trial and error. Wrong or inept counterterrorism moves can increase the risk of being attacked by terrorists, cede critical advantages to terrorists, and waste scarce resources. Partially understanding, or even misunderstanding, terrorism can also cause counterterrorism moves to have adverse ramifications by inadvertently exacerbating the terror threat when terrorists take advantage of political ineptitude, policy weaknesses, and public outrage.18

Illustratively, the United States since 9/11 has achieved some very visible and noteworthy counterterrorism successes. US forces eventually killed Osama bin Laden. Costly domestic defensive measures and numerous actions abroad have diminished the direct threat from al Qaeda and its closest allies. Most significantly, the US has not suffered another major terrorist attack. However, those successes are no substitute for a comprehensive counterterrorism strategy,19 which would most likely have enabled the US to achieve substantially larger, more enduring counterterrorism success as well as greater security at less cost. In fact, the United States has paid a high price for counterterrorism blunders since 9/11, costs largely attributable to relying on ad hoc, disjointed moves rather than a well-researched, carefully planned, and comprehensive counterterrorism strategy to shapes effective tactics. These costs, discussed more fully in the next two chapters, include the deaths of thousands of US citizens in two wars, extensive domestic invasions of privacy, capitulation to a culture of fear, the wasteful expenditure of trillions of dollars, and the loss of much international good will and respect. In spite of its costly counterterrorism moves, the US in 2014 probably remains almost as vulnerable to terrorist attacks as it was pre-9/11. Israel’s reliance on a similar ad hoc, disjointed approach has proven no more satisfactory,20 underscoring the necessity for states to implement a coherent counterterrorism strategy to be effective in ending terror.21

[]A. What Terrorism Is

Although no single definition of terrorism enjoys universal acceptance,22 some of the best-known definitions overlap considerably, suggesting that a consensus may be emerging. Harvard professor of international relations Louise Richardson in her book, What Terrorists Want, succinctly defines terrorism as “deliberately and violently targeting civilians for political purposes.“23 Political philosopher C.A.J. Coady defines terrorism as “the organized use of violence to attack noncombatants or innocents (in a special sense) or their property for political purposes.“24 Likewise, the US Federal Bureau of Investigation (FBI) defines terrorism as “the unlawful use of force against persons or property to intimidate or coerce a government, the civilian population or any segment thereof, in furtherance of political or social objectives.“25 By 2003, the Bush administration had arrived at a similar definition of terrorism: “premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents. Those who employ terrorism, regardless of their specific secular or religious objectives, strive to subvert the rule of law and effect change through violence and fear.“26

Collectively, those definitions presume that terrorism consists of acts that have, as Richardson explains, seven crucial characteristics:

1. The perpetrator(s) must have political motivations for committing the act

2. The act is violent or threatens violence

3. The act’s purpose is to send a message, not to defeat the enemy

4. The act and victim(s) usually have symbolic significance

5. The act is the deed of a sub-state group

6. The victim and the audience of the act are not the same

7. The act must deliberately target civilians.27

A brief analysis of the first terrorist attack on the World Trade Center in New York City, when a car bomb exploded in an underground garage at the Center and killed one hundred people in 1993, usefully illustrates those characteristics:

1. The perpetrator(s) must have political motivations for committing the act. The Islamic Group, headed by radical Islamist cleric Sheikh Omar Abdel Rahman, carried out the attack. The Islamic Group’s openly expressed political goal was overthrowing Egypt’s government and replacing it with an Islamic state.

2. The act is violent or threatens violence. The attack killed 100 people. Although this was far more than the six who died in the first al Qaeda attack on the World Trade Center, also in 1993, the Islamic Group’s attack probably never had the potential or intent to destroy the complex.

3. The act’s purpose is to send a message, not to defeat the enemy. Those killed were not Egyptian government or military personnel, not even Egyptian civilians, but innocent non-Egyptian civilians who lived and worked in New York City, all of whom were almost certainly unaware of the Islamic Group’s existence.

4. The act and victim(s) usually have symbolic significance. The 1993 attack on the World Trade Center in no way directly threatened the Egyptian government’s stability. Instead, the Islamic Group sought to call attention to their cause by attacking a high-profile symbolic target. Since the 1979 Camp David Accords, the United States has annually given Egypt significant economic assistance and the World Trade Center was a highly visible symbol of US economic power. The attack succeeded in bringing the Islamic Group much notoriety.

5. The act is the deed of a sub-state group. The Islamic Group was a small sub-state group with little formal power and negligible influence in Egypt or anywhere else.

6. The victim and the audience of the act are not the same. The Islamic Group wanted to send a message, in a broad sense, to the global community and, more narrowly, to Egyptian decision makers. Islamic Group members believed that they fought on behalf of Egypt’s people for whom the Group wanted to establish the blessings they believe derive from living in an Islamic state. They believed that those blessings include ending foreign intervention in Egypt’s internal affairs, improving the standard of living for the poorest Egyptians, and freer exercise of their version of Islam. Other Islamic Group goals, such as the destruction of Israel, many people will regard as ethically problematic or objectionable, although those goals are likely to evoke passionate, positive responses from the Group’s Egyptian constituency.

7. The act must deliberately target civilians. The World Trade Center was in no sense a military or government target; the attack’s victims were civilians.

Richardson’s seven definitional criteria helpfully illuminate four essential truths about terrorism frequently lost in visceral, emotion driven responses to terrorist acts. First, effective counterterrorism is always theoretically possible. Contrary to much anti-terrorist rhetoric,28 terrorists are neither insane nor nihilists without values who believe that life is meaningless. Although the thought that most terrorists either suffer from mental illness or grew up with seriously deprived childhoods may offer some reassurance that the world is not on the precipice of chaos, those ideas are erroneous. Terrorists, in general, do not fit the profile of fictional Dr. Hannibal “the Cannibal” Lecter29 or of actual sociopaths motivated by sadistic or masochistic tendencies. Nor do most terrorists grow up in broken homes or in the socio-economic underclass.30

Instead, terrorism results from intentional, rational, goal-oriented choices by a weak sub-state group and its members who are trying to rectify real or perceived injustices. Terrorists generally regard themselves as soldiers fighting to achieve specific objectives on behalf of a constituency.31 Consequently, viewing each terror group as a distinct problem with its own underlying rationale, while recognizing that the group may have tentacles connecting it to other terror groups, frames counterterrorism as a discrete set of manageable and achievable tasks.

Second, contrary to what most terrorists and some theorists argue,32 terrorism is never a moral response to injustice. No justification of terrorism has ever demonstrated that attacks against an oppressor’s armed forces, police, or other means of oppression always fail under certain circumstances, leaving terror as the only possible means of ending injustice. More broadly, no one has shown that attacks against the innocent are morally justifiable in consequentialist terms, i.e., producing more good for the larger community than harm done to the innocent. Deontological justifications of terrorism are invariably couched in divine command language, i.e., the terror group (or its leader or spiritual guide) believes that God has commanded the group to adopt a terror strategy or tactics. These justifications ring hollow to people who do not share the theological outlook of the group, its leader, or spiritual guide. In sum, the various arguments for the morality of terrorism are unpersuasive.33

In stark contrast to any popular image or propaganda that attempts to portray terrorists as freedom fighters, defenders of justice, or modern-day Robin Hoods, terrorists are criminals who immorally target the innocent. Terrorists dehumanize the innocent by reducing them to a means to an end,34 thereby increasing social injustice. From a Rawlsian perspective, terrorism is always wrong because it denies the basic rights of the innocent people whom the terrorists threaten or attack. Among these basic rights are the rights to life and liberty.35 Dissident attacks, even in the face of the most egregious evil, should target oppressors or the means of oppression, not the innocent. Attacks on such targets are not terrorism but forms of guerilla or clandestine warfighting, as discussed in this chapter’s next section.

Third, counterterrorism initiatives that divorce the application of force against terrorists from political change often fail. These responses focus on ending or retaliating against morally reprehensible terrorist attacks while ignoring the existence of the actual injustice that led the sub-state group to engage in terrorism and enabled them to develop an enabling constituency.36 This enabling constituency is the water in which the terrorists (the fish) swim in Mao’s famous dictum, “The people are like water and the army is like fish.“37

Typically, only the most flagrantly objectionable aspects of a terrorist organization’s political agenda receive significant media attention. This lends regrettable public credibility to myopically classifying terrorism and counterterrorism as exclusively military or law enforcement affairs. Terrorist agendas often include proposed policies that, if implemented, might represent significant steps towards a more stable peace or greater justice, e.g., the Kurdish people yearning for self-determination and their own homeland, desires that prompted the Kurdistan Workers Party (PKK) to launch a terror campaign in Turkey. However, even the most ethically imperative elements of a terror group’s agenda can never justify the group harming the innocent by adopting a terror strategy or tactics.

Fourth, given the definition of terrorism as violence by non-state actors against innocent people for political purposes,38 every terror threat or attack necessarily involves three sets of stakeholders:

1. The innocent civilian population(s) from among whom the terrorists select their targets

2. The terrorists and government forces arrayed against them

3. The population(s) from whom the terrorists emerged, from whom they recruit and obtain support, and whose cause they espouse.

Potentially efficacious counterterrorism models must address all three sets of stakeholders.

[]B. What Terrorism Is Not

Terrorism, whether employed as a strategy or a tactic, has no inherent ethical, political, or religious ideology. The West’s news media and political leaders have often narrowly focused on acts perpetrated by terror groups with a radical Islamist ideology. This has unfortunately distorted the true breadth of the problem. Terror groups, from both the right and left extremes of the political spectrum, operate in many countries. These groups espouse a variety of religious faiths—or no faith at all.

The following organizations, listed alphabetically and annotated with the group’s primary religious or ideological orientation and geographic locus of operations, are a few of the literally hundreds of terror groups active during the last eighty years:

Al Qaeda (Sunni Islamist; global)

Anti-Balaka groups (Christian; Central African Republic)

Aum Shinrikyo (Buddhist; Japan)

Hamas (Sunni Islamist; Middle East)

Hezbollah (Shiite Islamist; Middle East)

Khalistanis (Sikh; India)

Irgun (Jewish; Palestine/Israel)

Ku Klux Klan (Protestant Christian; US)

Nuclei Armati Rivoluzionari (Fascist; Italy)

Red Army Faction (Communist; Germany)

Shining Path (Communist; Peru)

Tamil Tigers (Hindu; Sri Lanka)

Warriors of Christ the King (Roman Catholic Christian; Spain)

That brief list illustrates the true ideological breadth and geographic range of groups that have adopted a terror strategy or tactics.

Treating any religion, much less all religion, as synonymous with terrorism wrongly links, and sometimes wrongly equates, two distinct subjects. All of the world’s major religions strive to promote world peace; they unambiguously and unwaveringly condemn attacks on innocent civilians. All major religions teach the Golden Rule, i.e., to treat others the way we wish they would treat us. At a minimum, attacking the innocent violates that universal ethical principle. From a Christian perspective, terrorism is always immoral.39 Islam’s equally unambiguous condemnation of terror is at least as old, dating from the Middle Ages.40

However, as the preceding catalogue of terrorist organizations and their ideologies makes apparent, formal religious teachings have not prevented individuals and groups who claim to represent a particular religion from perverting that tradition’s teachings to justify terrorist acts. This perversion is perhaps most unexpected in the case of Buddhism, which teaches an ethnic of ahimsa, do no harm. Although religious individuals may sympathize with a terror organization’s aims, none of the world’s major religions endorses terrorism as either a strategy or tactic. Thus, painting counterterrorism as a battle against a particular religion or religions confuses rather than contributes to understanding and defeating terrorism. Significantly, an exhaustive study of all suicide bombings that occurred in the last one hundred years concluded that religion apparently does not cause suicide bombing. Instead, the study found that suicide bombing is a “nationalist response to military occupation by a culturally alien democratic power.“41

A terror organization may be exogenous (operating internationally and perhaps in the group’s homeland) or endogenous (active only in the group’s homeland) and from either the right or left end of the political spectrum. Al Qaeda exemplifies an exogenous terror group, having committed terrorist acts on several continents, sometimes from bases located on a different continent. As in many countries, a variety of endogenous terror groups is active in the US. Active US domestic terror groups espousing a Christian orientation include some white supremacist organizations such as the Ku Klux Klan (KKK) and the Aryan Nation, several right wing anti-federalist militias, and the anti-abortion group Operation Rescue. Non-Christian US domestic groups have also used terror, e.g., the Black Panthers, Symbionese Liberation Front, and Jewish Defense League in the mid-twentieth century and, more recently, the Animal Liberation Front. US domestic groups receive relatively little media attention, infrequently commit terrorist acts, yet pose an ongoing threat to internal peace and security.

In the absence of political motives, perpetrators of illegal violence—for example, kidnappers, mass murderers, and serial killers—are not terrorists even though their heinous crimes may widely trigger the heightened state of fear termed terror. Instead, these individuals are simply exceptionally violent criminals. For instance, in 2002, snipers John Allen Muhammad and Lee Boyd Malvo killed ten people in seemingly random attacks that traumatized the Washington, DC, metro area. However, Muhammad and Malvo’s killing spree evidently lacked a political agenda. Whatever their motivation, they were exceptionally violent criminals, but not terrorists. Similarly, the Boston Marathon bombings were not terrorist acts because the perpetrators, regardless of their personal beliefs, failed to link their attacks to political goals.

Insisting on adhering to a strict definition of terrorism and terrorist (a person or group that commits terrorist acts) preserves terrorism as a problem with at least a theoretically possible solution. Excluding other criminals—not just Muhammad and Malvo, but also mass murderers, serial killers, organized crime, criminal gangs, and others who fail to satisfy Richardson’s seven-part definition of terrorism—recognizes that a wide variety of heinous crimes exist, each representing a discrete, although perhaps partially overlapping, set of criminal paradigms and law enforcement challenges. People understandably fear natural disasters, but earthquakes, tornados, and storms have little in common with non-state terrorism. Rebel attacks against government forces and their foreign allies may cause well-founded fear among the populace, as in Iraq, Afghanistan, and elsewhere. Insurgents, however, often opt to attack legitimate military targets, explicitly rejecting a terrorist strategy that targets civilians.

Terrorism constitutes a unique problem, sometimes coinciding with but distinct from the various types of war and warfighting tactics and strategies intended to cause fear.42 A helpful taxonomy posits three types of war: open, guerilla, and clandestine.43 WWI and WWII exemplify open wars conducted by uniformed military forces. The Viet Cong conducted mostly guerilla campaigns and operations during the US war in Vietnam. Clandestine wars are fought covertly, often relying upon special operations forces such as the Green Berets or SEALs. Engendering fear among enemy forces is an ethical and historically important military tactic in all three types of war. The uniformed member of a state’s military, the guerilla (a category that includes partisans who are guerrillas operating in enemy held territory), and the special operations warrior are all warfighters. The Law of Armed Conflict governs the targeting of military facilities and personnel, regardless of whether the war is open, guerilla, or clandestine and regardless of whether the combatants are uniformed forces, guerillas, or partisans.

In open war, militaries routinely attempt to frighten their opponents with the aim of either persuading them to surrender or to fight less effectively. The US designed the Shock and Awe campaign that launched the first Gulf War in 1991 to reduce the military effectiveness of the Iraqi military by destroying their equipment, the infrastructure required for an effective military resistance, and the Iraqi army’s morale and cohesion. Military history is replete with hundreds of other examples of fighting forces attempting to use intimidation and fear to gain strategic or tactical advantage. This is not terrorism when directed against warriors or militarily valuable targets, intended to gain a military (perhaps even decisive) advantage, and perpetrated in the course of war. Warriors need courage precisely because warfighting is a risky, frightening endeavor. When warfighters seek to achieve victory through terrorizing civilians, the warfighters violate the jus in bello principle of noncombatant immunity (cf. Chapter 2’s summary of Just War Theory).

Guerillas, a category that includes many of the colonial units that fought in the American Revolution, are warriors whose unexpected attacks and ambushes may incite fear, who hope to achieve military victory, but who do not target innocent civilians. In Palestine, before World War II, some Jewish fighters—correctly described as guerillas—focused their attacks on British military and police units. Other Jewish activists attacked civilians and targets that had symbolic rather than military value, e.g., the Irgun’s infamous bombing of the King David hotel that killed 91 and injured five.44 Those bombers were terrorists, whose actions satisfy all seven elements of Richardson’s definition. They sought to erode political support in Britain for Britain’s colonial rule of Palestine by targeting innocent civilians. Obviously, some groups fight as both guerillas and terrorists. Combining the two sets of activities into a single problem conflates two radically different problems, each best solved in ways that may overlap but that retain substantial and important distinctions. Counterterrorism measures recommended for a community attacked or threatened by terrorists, for example, do not apply in waging counterinsurgency against guerillas who only attack legitimate military targets.

The 1983 Islamic Jihad bombing of the Marine barracks in Beirut, which many people regard as a terrorist act, is accurately characterized as a guerilla attack. US Marines are warriors, not civilians. That is, they are combatants. They were on a dangerous military peacekeeping mission and had taken defensive measures to protect their barracks. Furthermore, although Islamic Jihad had no realistic chance of defeating the United States, Islamic Jihad did hope that the attack would expedite an unsuccessful end to the US peacekeeping mission, an outcome they achieved. In other words, the attack on the barracks was not terrorism. The attack satisfied only five or six of the seven criteria for terrorist acts, failing to fulfill the seventh (deliberately targeting civilians) and perhaps the third (not aiming to defeat the enemy—the assessment depends upon the definition of defeat and Islamic Jihad’s actual strategic goal or goals).

More recently, some observers, journalists, and others have confused insurgency and terrorism. Insurgents—sometimes called insurrectionists, secessionists, rebels, or revolutionaries—frequently operate with a strategy or tactics that combine terror with one or more of the three conventional warfighting modalities. An insurgency, according to a RAND study on the subject, is an internal conflict in which “(1) a group or groups are trying to overthrow the government or secede from it, (2) more than 1,000 have died over the course of the war, and (3) more than 100 have died on each side.“45 One may quibble about the thresholds in the second and third criteria, but the definition usefully delimits both an insurgency’s goal and size.

Although insurgents’ real goal is to defeat the existing regime, an intermediate goal may be to spread fear (terror) among not only military and government personnel but also civilians, thereby challenging the regime’s perceived legitimacy, threatening its stability, and degrading its ability to fight. Reliance on a terror strategy or tactics may simultaneously help the group to develop the momentum and strength required to wage a viable insurgency. Most insurgencies, at least initially, employ some terror tactics, if not an actual terror strategy.46 Insurgents cannot achieve their political aims unless they develop sufficient popular support and strength to replace their reliance on terror with other methods. Ultimately, in order to prevail, insurgents must capture and control territory. RAND research indicates that the larger an insurgent group is, and the more popular support that the group has, the less likely the group is to rely on terror and the more effective any military response will be.47

Insurgents’ reliance on terror—like all terrorism—is always identifiable by the targeting of innocent civilians. Al Qaeda attacks in Iraq in the decade following the 2003 US invasion melded a concurrent reliance on guerilla and terror tactics. Al Qaeda sought to establish a Sunni Islamist state in Iraq, which required overthrowing the government. They conducted various types of covert and guerilla attacks against US forces, police, and other Iraqi government security personnel and facilities using improvised explosive devices, snipers, and other methods. They hoped to spread fear among the occupiers and Iraqi forces, destabilize the regime, and eventually topple it. Concurrently, al Qaeda in Iraq conducted a terrorism campaign against Shiite civilians and government officials, attacking them in public places and mosques to inculcate widespread terror, delegitimize the government, diminish US political support for the occupation, and raise al Qaeda’s international profile.48

Conflating terrorism with the various types of war or warfighting tactics/strategies intended to create fear stretches the concept of terrorism to include phenomena that lack terrorism’s seven characteristics. This fusing generally results in ignoring two differences vital for developing an effective opposing strategy: (1) terrorists tend to hold more radical political views than insurgents do; (2) terrorists also have fewer non-violent options available because they do not control territory and have weaker claims to political legitimacy. Thus, for example, terrorists do not provide social services to people.49 Conversely, indiscriminately labeling types of combat or warfighting strategies/tactics designed to engender fear as terrorism blurs differences that essential for understanding a war’s real dynamics, greatly compounding the difficulty of formulating an effective counter strategy and tactics.

Illustratively, Israel tends to label all Palestinian violence as terrorism when some of the violence is more accurately identified as guerilla or even open war. Palestinian groups like Hamas and Hezbollah have sizable fighting forces under their control, some of whom are uniformed.50 In the early twenty-first century, Hezbollah, classified by the US and Israel as a terror group, may in fact be the world’s most formidable guerilla organization.51 Much of the Palestinian-Israeli conflict is actually an insurgency, calling for a counterinsurgency rather than a counterterrorism strategy and tactics.52 Effectively countering a multifaceted entity requires adopting a multifaceted response matched to the group’s strategies and tactics, e.g., responding to a group using both guerillas and terror with an integrated counter-guerilla/counterinsurgency and counterterrorism strategy.

Counterinsurgency may at times utilize elements of counterterrorism along with other strategic and tactical elements. This overlap, however, does not warrant equating counterinsurgency and counterterrorism or subsuming one of those activities into the other. For example, counterterrorism would have proven an ineffective Union strategy against the Confederacy in the American Civil War and counterinsurgency an ineffective response against the KKK, a terror group that has never aspired to achieve territorial independence. More broadly, “analysis suggests that there is no battlefield solution to terrorism. Military force usually has the opposite effect from what is intended: It is often overused, alienates the local population by its heavy-handed nature, and provides a window of opportunity for terrorist-group recruitment.“53

Classifying a particular event or attack as either terrorism or warfighting can be difficult. Either type of attack may kill innocent civilians and individuals an opposition group has identified—rightly or wrongly—as part of the forces of oppression, e.g., security, law enforcement, intelligence, military, and some other government personnel. Attackers may wrongly categorize some groups as legitimate targets rather than correctly recognizing them as innocent civilians. In the extreme, this becomes highly problematic, as when al Qaeda identifies anyone who does not share al Qaeda’s understanding of Islam as a legitimate target. More commonly, the attacker’s intent will determine whether observers should classify the attack as terrorism or warfighting, i.e., who did the group target, the forces of oppression or innocents? Examining a group’s actions over time can also clarify patterns, exposing the group as primarily warfighters, terrorists, or opportunists who employ whatever tactic appeals or seems advantageous in the moment.

Arguably, al Qaeda’s 9/11 attack on the Pentagon was an act of war because the target was a US military installation. Viewed contextually as one of four 9/11 attacks, al Qaeda clearly intended the attack on the Pentagon symbolically, dramatizing US military impotence rather than an as attack on the military, per se. Far more people died on 9/11 in New York than at the Pentagon; the World Trade Center, not the Pentagon has become emblematic of 9/11. In other words, the 9/11 attacks viewed as a whole are most helpfully understood as an act of terrorism rather than of war; the attacks satisfy all seven facets of the definition of terrorism.

Governments wisely regard one terror incident that occurs as part of what is obviously a clandestine or guerilla war as an anomaly to be exploited for its potential propaganda value. Conversely, a government confronting a terror group that occasionally targets non-civilians will probably find employing a counterterrorism strategy and tactics most effective against what remains a terror group.

[]C. What Terrorists Want

Terrorism scholar Audrey Kurth Cronin has observed, “Terrorism is a tactic of the weak aimed at exploiting chinks in the armor of the more powerful.“54 Terrorists adopt a terror strategy or tactics for one main reason: they believe that they lack any viable, non-terror alternative.55 Sub-state actors rationally adopt terrorist strategy or tactics when they perceive that they have insufficient resources to challenge an existing government successfully using a more direct means, such as openly initiating a civil war.56 Reinhold Niebuhr, for example, presciently predicted that Palestinian Arabs displaced voluntarily or otherwise when Israel became a state in 1948, unable to wage an insurgency, would resort to terrorism as their only way to regain their homeland.57

Terrorists hope to build strength and to achieve their ultimate political goals through the three instrumental goals of revenge, renown, and reaction.58 Terrorists who seek revenge want to retaliate or to get even for the perceived injustices that they or their larger group (sect, ethnic faction, tribe, etc.) have suffered. Seeking revenge on their enemies for harm inflicted—an eye for an eye, or even worse—was a common dynamic of separatist and pro-union terrorists in Northern Ireland during decades of intermittent atrocities. The desire for revenge also figures prominently in Palestinian terrorist rhetoric and recruiting.

Renown—public awareness or perhaps more accurately public infamy—connotes a terror group seeking to increase pressure on the government that the terrorists oppose as well as to attract additional recruits and resources to the terrorists’ cause:

When we hijack a plane, it has more effect than if we killed a hundred Israelis in battle,’ the Palestinian Marxist leader George Habash once said. ‘At least the world is talking about us now.’ By the mid-1980s, the American analyst Brian Jenkins’s observation had become famous: ‘Terrorists want a lot of people watching and a lot of people listening and not a lot of people dead.’ He coined another oft-repeated phrase: ‘Terrorism is theater.’59

Likewise, novelist Don DeLillo has written, “Terrorism is the language of being noticed”; sociologist Mark Jurgensmeyer coined an even more memorable phrase, “performance violence,” to capture terrorists’ desire for renown.60

The upsurge in the “performance violence” of international terrorism that began in the latter part of the twentieth century is at least partially attributable to globalization and the internet: “Particularly in an era of globalization, means matter. The global megaphone, the 24/7 global news media and internet news cycle, casts a wider broadcast net for terrorists to spread their messages, a net not filtered by governments or Western media outlets.“61 Some terror groups have their own media outlets, such as the al-Manar satellite TV stations Hezbollah owns and operates.62 Bin Laden believed that “the media war of this century is one of the strongest methods” of terrorism.63 The definitive chronicler of the history of guerrilla war, Max Boot, quotes and then updates Lawrence of Arabia: “As T.E. Lawrence famously said, ‘The printing press is the greatest weapon in the armory of the modern commander.’ A present-day rebel might substitute ‘the internet’ for ‘the printing press,’ but the essential insight remains valid.“64 The internet’s advent has had the unintended consequence of making terrorism a more attractive, and potentially more viable, strategy.65

In seeking reaction, terror groups aim to increase popular support for their cause by provoking counterterrorism moves that enlarge and intensify perceived injustice. From the beginning of its existence as a Palestinian terror group, Fatah sought Israeli retaliation in order to enlist Arab states in the struggle to return Palestine to Palestinians: “Fatah theorists promoted the idea of ‘consecutive detonation,’ so that Fatah action would provoke an Israeli response, which in turn would galvanize the Arab people and the Arab masses. Eventually these actions would force an Arab regime response.“66

Initial responses from around the world, including in most Muslim communities, to al Qaeda’s horrendous 9/11 attacks, particularly on the twin towers of the World Trade Center, was enormously sympathetic to the United States. Al Qaeda’s blatant disregard for Islamic teachings against terrorism deeply offended Sunni and Shiite Muslims alike, as well as most Islamic governments. Even Hezbollah, a global terror network that at times rivals the reach of al Qaeda, felt constrained in the wake of the 9/11 attack to avoid actions that might invite American retaliation.67 Muslim sympathy quickly dissipated or turned to quiet opposition when the United States used 9/11 as an excuse to invade Afghanistan and then Iraq.68 “‘The notion of a war on terrorism,’ one British intelligence official told us [RAND researchers Seth Jones and Martin Libicki], ‘suggests to Muslims abroad that the United States is fighting a war on Muslims. And the response has to be jihad, or holy war. War convinces people to do jihad.’“69 In other words, Gulf War II gave al Qaeda exactly the type of reaction it had desired to achieve on 9/11, turning initial failure into an immense success.

Even a failed attack can trigger a reaction that cedes gains to the terror group responsible, leading scholar Mathieu Deflem to conclude, “There is no such thing as a failed attack.“70 A failed attack that prompts heightened fears, results in expensive new security measures, and garners much free publicity for the terror group may achieve the same results as if the attack had succeeded. For example, al Qaeda of the Arabian Peninsula’s planned 2009 Christmas Day attack on an airliner failed but al Qaeda nevertheless claimed victory, having stoked widespread fears among aircrews and passengers.71

The instrumental goals of revenge, renown, and reaction are not mutually exclusive. Indeed, a successful terrorist attack will often achieve some measure of revenge, elevate the group’s public profile (renown), and trigger a reaction that mobilizes new support for the terror group. A RAND corporation study, after analyzing the 648 terror groups worldwide that were active between 1968 and 2006, concluded:

Indeed, most terrorist organizations are implicitly strategic calculators. They use violence to achieve specific political purposes, such as coercing a target government to change policy, mobilizing additional recruits and financial support, or achieving independence. They usually have a set of hierarchically ordered goals and choose strategies that best advance them.72

Cronin’s comprehensive study of terror groups active in the second half of the twentieth century enabled her to identify five ways in which a group may employ terror to leverage the political process to achieve its political goals. First, attacks may provoke the government to respond in ways that its population or the international community perceives as even more unjust and intolerable. This leads, second, to further polarization between dissidents and the current regime and, third, may prompt additional government mobilization and expansion of support for, and recruitment by, the dissidents. Fourth, terrorist attacks may actually compel government concessions or other actions. Finally, dissidents may hope that their terror strategy or tactics will erode a state’s domestic or international legitimacy.73

Groups that want to rectify injustice can achieve their instrumental aims of revenge, renown, and reaction, while leveraging the political process, by directly targeting the oppressor, the oppressor’s forces, or the means of oppression. These attacks may achieve slower initial progress toward the group’s political goals, but the group will advantageously occupy the moral high ground, fighting as guerillas or insurgents rather than as terrorists. Admittedly, such attacks are generally riskier, as the forces of oppression, whether military or law enforcement, may reasonably anticipate some level of at least sporadic resistance, perhaps violent, and are probably equipped and perhaps trained to respond. However, in response to attacks by dissidents, oppressors and their forces frequently react with unjust, indiscriminate, and disproportionately violent tactics intended to quash resistance and to intimidate their foes. Responses of this sort are often counterproductive, initiating a continuing spiral of increasing violence74 and magnifying the dissident group’s potential gains from both successful and unsuccessful attacks. Alternatively, effective counterterrorism strategies promote courageous and just responses while avoiding escalating or exacerbating the situation (cf. Chapter 3).

A dissident group fighting against injustice by directly attacking the forces of injustice may inspire fear among those forces, but this is not terrorism, regardless of media reports or regime rhetoric to the contrary. Although the group’s attacks may injure some innocents (called collateral damage in euphemistic military terminology), the dissidents did not target innocent people hoping to influence unrelated political forces. Attacks that intentionally target the innocent to influence a third party political process—integral elements of the definition of a terrorist act—are always immoral, even when perpetrators design their attacks as “symbolic, provocative violence.“75

[]D. How Terrorism Ends

The problem of terrorism is millennia old. Yet history has repeatedly validated the proposition that terrorism is not an unsolvable problem: groups using a terror strategy or tactics generally fail.76 Even small states can defeat terror groups.77 No terror group has ever successfully displaced a democratic state.78

Before examining how terrorism ends, it is important to remember that both terror tactics and strategies are like the visible portion of an iceberg: the larger problem is often not readily visible and thus easily goes unnoticed until too late. In particular, an important common denominator among groups that employ either a terror strategy or tactics is the group’s commitment to rectifying perceived social injustice(s), something tacitly implied in the first element of Richardson’s delineation of the seven characteristics of terrorism i.e., political motives.

Sharp disputes about what constitutes justice blind some analysts and much popular opinion to the motives of particular terror groups. For example, al Qaeda contends that true Muslims adhere to the radical Sunni version of Islam al Qaeda favors, most Muslim governments are apostate, and Muslims have a duty to overthrow those governments and to kill all infidels and apostates. Only by taking these actions can faithful Muslims fully submit to God, restore the caliphate to Muslim lands (if not to the entire world), and establish the fullness of peace and justice on earth that God desires. The preponderance of both Muslims and non-Muslims reject al Qaeda’s claims and religious ideology, finding their aims as morally repugnant as their methods. Nevertheless, al Qaeda’s aim is to rectify injustice, though its understanding of what constitutes justice is, from a great many perspectives, including Rawls’, substantially and irredeemably flawed.

Prior to 9/11, the study of terrorism and counterterrorism was an often-neglected scholarly backwater. Post-9/11, much of the writing about terrorism has been polemical rather than the product of careful research. Alan Dershowitz’s Why Terrorism Works: Understanding the Threat and Responding to the Challenge exemplifies this genre. In his passionate defense of Israel, he excuses Jewish terrorism against the British: “Terrorism certainly contributed to the achievement of this goal [the end of British rule], but other factors were much more important…“79 Meanwhile, Dershowitz unreservedly condemns Palestinian terrorism, attributes any successes that it may have achieved to misguided international support for the Palestinians, and argues that the way to defeat terrorism is to make it a losing proposition for terrorists and their supporters. In pursuit of the latter objective, he advocates extensive intelligence gathering at some expense to personal privacy, national ID cards, restrictions on individual movement, and limited but hard-hitting application of force while preserving due process, fair trials, and the accused’s right to counsel.

Polemical works typically generate more heat than light. Sifting constructive insights and proposals from opinions more colored by emotional commitments than real evidence is a challenge. Dershowitz’s views are obviously prejudiced and hypocritical. His advocacy of preserving criminal rights and due process is arguably incongruous with his support for using lethal force while limiting privacy and freedom of movement. Major human rights violations may aid in suppressing terrorism but impose unacceptable limits on freedom that are not necessarily sustainable long-term. Dershowitz also ignores the growing problem of terrorism against Palestinians by Jewish settlers on the West Bank and their supporters, violence that does not always trigger a response by Israeli authorities and, when it does, is often more lenient than in the case of Palestinian terrorists.80

Systematic global reviews of terror groups comprehensively scrutinize how and why terrorism ends. Unlike more narrowly focused studies of counterterrorism policies and programs that achieved some success in one or perhaps several contexts, systemic studies advantageously consider the full gamut of counterterrorism measures that states have employed and are more likely to identify extenuating factors that limit a measure’s broader applicability.

In the first systematic look at how terror groups end, RAND scholars Seth Jones and Martin Libicki identified 648 groups, worldwide, who employed a terror strategy or tactics in the period spanning 1968 to 2006. They determined that 268 of those groups had ended by disappearing, dissolving, being destroyed by external forces, or integrating into the political mainstream. A political settlement ended 43 percent of the other groups, most of whom had pursued narrow policy aims. Police action was responsible for ending 40 percent. Only 10 percent of the groups, after morphing into something other than a terror organization, achieved anything describable as victory. Military action terminated just seven percent of the groups. These statistics suggest that states pursue a counterterrorism strategy “that emphasizes policing and intelligence gathering rather than a ‘war on terrorism’ approach that relies heavily on military force.“81 The next chapter develops this rationale more fully and outlines a comprehensive alternative paradigm, the Just Counterterrorism Model.

The second comprehensive study of how terrorism ends, by Cronin, identified 457 terror groups active between 1968 and 2006 that conducted a sustained terror strategy or extensively employed terrorist tactics. This eliminated consideration of another 416 groups who did not conduct terror attacks on more than one day, whose attacks caused no civilian casualties, or who primarily targeted military personnel or facilities. Using her sample of 457 groups, Cronin enumerated six different ways in which terror groups end:

1. Decapitation (catching or killing the leader)

2. Negotiation (transition toward a legitimate political process)

3. Success (achieving the group’s objective)

4. Failure (imploding, provoking a backlash, marginalization)

5. Repression (forcefully crushed)

6. Reorientation (transitioning to another modus operandi)82

Cronin’s analysis pinpoints factors most frequently associated with each of the six causes terror groups end. With respect to the first cause, decapitation, she concludes:

Decapitation is virtually always irresistible for governments facing a terrorist campaign, and it may result in tactical gains; but while a well-publicized arrest may have devastating effects on a campaign, there is no evidence to support the claim that killing leaders results in strategic success. … On the basis of the historical record, arresting a leader is more effective in damaging a group than killing him.83

Although a majority, approaching a consensus, of scholars concludes that decapitation is ineffective if not counterproductive, one study found that decapitation, over a term longer than two years, shortens the lifespan of terror organizations. However, terror groups’ lifespan also correlated with leadership turnover and not just decapitation, suggesting that the effect on a terror group of removing its leader reduces the group’s lifespan because of the instability decapitation introduces into the terror group rather than decapitation, per se.84 Even if decapitation is helpful in ending a terror group, the extended period required for decapitation to contribute to the group’s demise will generally necessitate reliance on additional approaches.

Regardless of a government’s public rhetoric about refusing to negotiate with terrorists (Cronin’s second way that terror groups end), most democratic governments eventually negotiate with long lasting terror groups. Concessions do not correlate with increased terrorist attacks when those concessions represent steps toward diminished injustice. Conversely, paying ransoms to obtain the return of kidnap victims or hostages exemplifies unhelpful concessions that backfire by encouraging rather than diminishing terror attacks and other crimes. However, most terror groups refuse to negotiate.

Negotiations, like decapitation, rarely end terrorism. Instead, negotiations are most effective as an information strategy, designed to influence public opinion by countering the symbolism of the terrorists’ attacks and demonstrating the government’s commitment to justice. Negotiations may also lead to a splintering of the terror group, thereby diminishing its threat and potential for violence.85

Very few terror campaigns achieve their goals, the third way in which a terror group ends. Cronin characterizes the few successful groups as “exceptions rather than the rule” and observes that terrorism is “a not very promising vocation.” Three preconditions for success appear to be (1) realistic, well-defined goals (2) that coincide with larger and concurrent historical, economic, and social shifts happening internationally, and (3) adopting a broader campaign with greater reliance on legitimate force that quickly supplants an initial reliance on terror tactics. No terror group has ever succeeded in grabbing power from a state while continuing to rely upon a terror strategy.86

Failure, Cronin’s fourth way in which terror groups end, is much more common than success. Implosion caused by mistakes, burnout, and collapse or marginalization from diminished popular support can each cause a terror group’s failure.87 Governments can contribute to implosion indirectly, e.g., by not overreacting to terrorist incidents and encouraging their citizens to avoid succumbing to fear-driven behaviors. Governments can directly erode popular support for a group by reducing perceived or actual injustices through reforms, increased spending, job creation, etc. Concurrently, a group’s actions may cause it to implode and or to erode popular support through disrupting vital public services, engaging in unresolved internal disputes over goals, strategy, or tactics, and championing unpopular causes:

Most terrorism ends because the group employing the tactic fails and eventually disintegrates. The short life-span and limited success of most groups that use terrorism demonstrates that violence deliberately targeted against civilians repels rather than attracts popular support. Indiscriminate killing creates a backlash and undermines political staying power. … Even when it is combined with more traditional methods of securing power, historical case studies indicate that the tactic most often works against the desired outcome and eventually has to be disavowed.88

The fifth reason that terror groups end, according to Cronin, is repression, that is, a government responding to terrorist attacks by attempting to crush the responsible group. Repression is an almost instinctual response by governments and by far the most commonly utilized counterterrorism strategy. Ironically, terrorism is most effective in the face of officials who allow public fears to shape their response, who look for short-term results, and who emphasize answering indiscriminate violence with even greater violence, frequently producing substantial collateral damage. Key factors that determine the usefulness of repression as a counterterrorism strategy include how well mobilized the group’s support is, the specific constituency they are trying to influence with their actions, and how despised the regime’s responses make it.89

Repression occasionally succeeds. For example, a repression counterterrorism strategy may have defeated Sikh terrorism in the Punjab, the police winning a campaign of attrition against more than one hundred small terror groups operating without coordinated strategies and tactics.90 More often, counterterrorism success depends upon long-term strategic thinking than upon short-term measures.91 This emphasis on short-term, expedient measures aimed to produce tangible results has characterized the US GWOT, moves that often entailed foregoing longer-term steps that would likely have produced less immediate but perhaps more significant counterterrorism results.92

Sixth and finally, some terror groups end because they reorient themselves from terrorism to another strategy. Some groups achieve sufficient momentum and resources to shift from terrorism to a full-blown insurgency, fielding non-uniformed guerillas, perhaps even uniformed troops. Hamas, in many respects, exemplifies this pattern. Other groups, experiencing diminishing resources and popularity, morph into criminal organizations in which profit or other motives traditionally associated with crime displace the group’s original political aims. Reoriented groups refocus rather than renounce their violent activities. Still other groups may become hybrids, combining terrorism with criminal activities.93 Incidentally, Cronin observes that most terror groups aspire to become insurgencies, which suggests that most terrorists find attacking innocent civilians morally troubling if not morally problematic.94 Insurgencies also had a far higher success rate in the twentieth century than did terror movements.95

Cronin’s analysis differs from the RAND study at several points, most obviously in the number of identified terror groups (457 vs. 648) and in specifying six rather than four ways in which terrorism ends. Those disparities point to underlying methodological and terminological differences between the studies, both conducted by highly reputable scholars following accepted social science research protocols and standards. Comparing the merits of the two studies is unnecessary for developing a comprehensive ethical counterterrorism model because, in spite of their differences, the two studies independently reach, and thus reinforce, three key conclusions.

First, both analyses conclude that terrorism does not constitute an inherently unsolvable problem. Terror groups, no matter how audacious or vicious, rarely prevail. Relatively low barriers to entry (apart from terrorism being grossly immoral) prevent a group from adopting a terror strategy or tactics. As the actions of people like Timothy McVeigh and his one helper showed, a small group, or even a single person, can plan and conduct terror attacks. Assault weapons, other weapons terrorists favor, and materials for making bombs are often readily available; bombs and other devices are frighteningly easy to construct. No government, including the most draconian, has sufficient resources to defend every potential terrorist target, something accurately described as a “Sisyphean task with no constructive prospects.“96 In addition to accessible means and innumerable targets, near universal access to the internet and electronic media theoretically provides terrorists with the ability to communicate with a global audience.

Yet all of that notwithstanding, the data confirms that the preponderance of terror groups have short lifespans and end in failure. While terrorism appears likely to remain a tragic aspect of twenty-first century life, individual terror groups—the real enemy—generally do not pose an existential threat, especially to democratic states (more on this in the next few chapters).

On the other hand, counterterrorism rhetoric, policies, and programs that treat all terrorism and terrorists as a single, one size fits all, problem create a conundrum that has no solution and are quite likely to produce a sentiment similar to how Charles the Bold, Duke of Burgundy, reportedly felt in his war against the French King, Louis the Eleventh. Fighting to unify the geographically divided duchy of Burgundy into an independent realm, Charles the Bold declared, “I am fighting the universal spider.“97 The metaphor of a universal spider seems particularly apt given that US counterterrorism focuses almost exclusively on al Qaeda, a networked organization resembling a web of evil. Unlike Charles the Bold, who eventually lost his war with the universal spider, effective counterterrorism rhetoric, policies and programs routinely defeat terror groups.

Second, the analyses by both Cronin and RAND, without advocating exclusive reliance on law enforcement, emphasize the primacy of law enforcement over military action for effective counterterrorism. A global survey of terrorism events and cases in 2008 prepared by the right-leaning Foundation for Defense of Democracies documents extensive law enforcement successes (and several failures) against a wide variety of domestic and international terrorists in more than a dozen countries.98 There is no reason to expect that law enforcement is less successful against terrorists in other years. Cronin’s assessment is that decapitation and repression tend to be ineffective, incorporating examples and tentative explanations about why that is true. The quantitative RAND analysis calculated that military action was responsible for ending only seven percent of terror groups, compared with the 40 percent that end through police action and 43 percent through political settlements.

As with any generalization, what holds true in general may not apply to any specific case. However, these two analyses of how terror groups have ended are the best available and therefore provide essential data points and interpretations for devising a comprehensive ethical counterterrorism model and predicting that model’s effectiveness. Reasonable expectations of effectiveness are the sine qua non for any proposed model to gain the prima facie credibility required to persuade government officials, military forces, international bodies, political leaders, non-governmental organizations, or members of the public to rely upon the model’s framework for shaping or assessing counterterrorism rhetoric and efforts.

Third and finally, both Cronin and the RAND study accentuate the key counterterrorism imperative of winning the battle for hearts and minds of a terror group’s enabling constituency, thereby weakening, perhaps even severing, that essential relationship. Terrorism, and consequently effective counterterrorism, is fundamentally a political endeavor. Militaries are blunt instruments of violent death and destruction. War’s very nature means that militaries tend to apply force in an intentionally overwhelming manner. In warfighting, tactical restraint more often leads to increased causalities, and perhaps to defeat, than to victory. Even the United States’ inventory of precision guided munitions (PGMs), weapons designed in part to minimize collateral damage, reflect the military’s reliance upon overwhelming force. The smallest US PGM warhead in 2013 had 100 pounds of explosives; its forty-foot blast radius can destroy a quarter of a typical city block.99 Some reports indicate that the CIA is now utilizing drone launched PGMs with a 35-pound warhead, which would further reduce collateral damage. Nevertheless, the US continues to lose the vital public relations battle against terror groups with respect to the collateral damage attributable to US drone strikes.100

Terrorists almost invariably initiate a terror strategy or tactics because they lack the resources (people, finances, weapons, etc.) to conduct any other type of campaign.101 They seek to hide among the populace, to obtain logistical assistance from them, and to recruit them, or at least to solicit their support. Accordingly, a regime that responds with overwhelming force, whether from its military forces or police units, can rarely avoid inflicting substantial collateral damage.

A counterterrorism strategy that consistently achieves military victories against terrorists may prove to be a losing strategy if those victories include too high a cost measured in terms of noncombatant collateral damage, growing civilian fear of the military, increasing distrust of the existing regime, and erosion of the government’s legitimacy and its perceived commitment to the rule of law. Michael Gross, a Haifa University professor of political science and a staunch proponent of efficacious counterterrorism, has observed, “Israel’s experience shows that counterterrorism and the rule of law go together.“102 Israeli prosecutor Devorah Chen similarly argues, “The legal process is the foundation of fighting terrorism.“103

Moreover, correctly designating individuals as terrorists or noncombatants in the heat of combat against a terror group can be very difficult and is predicated upon a false dichotomy. Unlike in conventional combat, when a force is fighting against terrorists not everyone is either a combatant or a noncombatant. Effective counterterrorism recognizes multiple categories of people comprising a spectrum of culpability that ranges from the completely innocent (a wholly uninvolved, unaware bystander) to the indisputably guilty terrorist (someone who freely commits violent acts against the innocent and government forces). What types and amount of assistance given to a terrorist, rendered with what degree of volition, makes a person—who may be an uninvolved witness, a non-participating sympathizer, a provider of food/shelter/medical assistance, or an active abettor—a legitimate target for counterterrorist forces? Constructing a simple matrix or framework with which to answer this question in every situation is impossible; Chapter 4A’s discussion of Apprehension considers this problem more fully.

This chapter’s first section defined terrorism as violence perpetrated against civilians by a non-state group seeking to achieve political goals. Those goals, when understood from the terror group’s perspective, invariably express a group’s commitment to improved justice for its intended constituency. Regardless of the goals’ merit, terrorism is always immoral because, among other reasons, it targets the innocent. Terrorism invariably involves three sets of stakeholders: the attacked, the terror group, and the terror group’s enabling constituency. The second section de-conflated non-state terrorism from other sources of great horror, such as random killings and warfighting. The third section then examined how terrorists strive to achieve their political goals through the instrumental goals of revenge, renown, and reaction. The chapter’s final section reviewed the systematic studies of how and why terrorism ends, highlighting conclusions pertinent to developing effective counterterrorism strategy and tactics, e.g., the importance of achieving political victory and prioritizing law enforcement over military action. Encouragingly, terrorism never represents a theoretically unsolvable problem; indeed, no terror group has ever prevailed against a democracy.

[]Chapter 2: The Solution: Just Counterterrorism

In the aftermath of 9/11, practitioners and scholars from various disciplines (law enforcement, military strategy, public policy, ethics, and others) considered whether counterterrorism now required a new model. Before 9/11, states almost universally considered counterterrorism to be a law enforcement responsibility. Post-9/11, some practitioners and scholars continued to advocate strict reliance upon law enforcement protocols, methods, and resources for all counterterrorism. However, the unparalleled scale of the 9/11 attacks coupled with clear evidence of states overtly aiding non-state international terror groups raised urgent questions about the continuing efficacy of law enforcement having primary responsibility for counterterrorism efforts.

Al Qaeda personnel in Afghanistan, for example, seemed beyond the reach of all law enforcement personnel. The rule of law (a concept developed more fully in Chapter 3) did not prevail in Afghanistan. In those areas in which the Afghan central government under the Taliban exercised control, the government treated al Qaeda personnel as guests whom the government was obliged to protect instead of aiding US attempts to capture or to kill them. Neither the United States nor any international entity could prevent al Qaeda operatives from freely entering and exiting Afghanistan along Afghanistan’s porous 1200 plus mile border with Pakistan. An exclusive US reliance on a law enforcement approach to counterterrorism thus meant facing a continuing threat of significant attacks by al Qaeda, which, safe in its remote mountain sanctuaries, could plan, train for, and launch new attacks with impunity.

The inherent limitations of law enforcement’s counterterrorism reach is not a problem unique to the struggle between the US and al Qaeda. Terrorists operate in a number of areas where the rule of law does not exist, e.g., the tribal areas of Pakistan and Sudan. Law enforcement methods and resources also offer no or limited recourse against terrorists actually sponsored by a state. Proven or alleged state sponsors of terrorism such as Iran, Libya, and Syria presently provide, or have previously provided, substantive assistance to terror groups that have conducted attacks in Israel, Europe, and elsewhere.

Furthermore, regarding counterterrorism as the exclusive responsibility of law enforcement does not constitute a comprehensive response to terrorism. Law enforcement focuses narrowly on justice for terrorists; a comprehensive counterterrorism paradigm will also address the root causes that enable terrorists to develop a supportive constituency and recommend actions that an attacked community can take to reduce the likelihood, severity, and potential consequences of future attacks. Additionally, limiting counterterrorism strategy to law enforcement excludes moves identified in the prior chapter that can contribute to ending a terror threat, such as negotiation and changing government policies.

Post-9/11, the most visible and potentially viable alternative to a law enforcement counterterrorism paradigm—a warfighting paradigm—has attracted the greatest attention and support from politicians, counterterrorism experts, and ethicists. This chapter’s first section argues that using a warfighting paradigm for counterterrorism is ineffectual and affords insufficient ethical guidance. The chapter’s second section delineates four design criteria that any counterterrorism model should satisfy and then briefly examines recently proposed alternative counterterrorism models showing why each is deficient. The chapter’s final section introduces a proposed new ethical paradigm for shaping and assessing counterterrorism, the Just Counterterrorism Model.

[]A. The Inadequacy of a Warfighting Counterterrorism Model

Israel has struggled unsuccessfully to end Palestinian terrorism since its 1947 establishment as a modern state. Like most states, Israel has never articulated, much less relied upon, a cohesive, comprehensive counterterrorism strategy. However, Israel, more than any democratic state except the US, has slowly shifted its counterterrorism efforts from law enforcement measures to warfighting. This shift has failed to quell the mosaic of sporadic but continuing Palestinian violence.

Israeli counterterrorism involves additional analytical complexities because of the multiple roles Palestinian groups play. Fatah, Hamas, and Hezbollah have utilized terror, guerilla, and, infrequently, conventional warfighting tactics. These groups increasingly claim political legitimacy, regularly providing social welfare services and occasionally other types of government programs to their constituencies in Gaza, Lebanon, and the West Bank.104

Consequently, the following analysis focuses on the United States, supplemented with examples from Israel and elsewhere, to demonstrate the inadequacy of a warfighting counterterrorism strategy. Incidentally, Israel pioneered use of many of the controversial counterterrorism measures that the US has adopted post-9/11.105

Post-9/11, American politicians felt the public was demanding a more rapid response than law enforcement authorities could possibly deliver. Thus, US President George W. Bush declared, less than a month after the 9/11 attacks, a Global War on Terror (GWOT).106 This was political theater, if not the beginning of an effective and ethical counterterrorism strategy.

A truly global war on terror would target all terror groups. According to the US State Department, at least 77 foreign groups with different ideologies, goals, motives, and geographic foci employed terrorism as a strategy or tactic in 2004, of which 37 had some form of Islamic identity.107 Theoretically, by declaring a literal war on terrorism, the United States committed itself to fighting all 77 of those terror groups. These groups included Sunni groups al Qaeda and Hamas, the Shia Hezbollah, the Tamil Tigers in Sri Lanka, the Shining Path in Peru, and the Kurdish Workers Party (PKK) in Turkey. A global war on terror also prima facie targets US domestic terror groups such as the KKK and Operation Rescue, all of which the State Department omitted from its list.

Alternatively, President Bush could have intended the phrase Global War on Terror as a figure of speech comparable to President Reagan having declared war on drugs and President Johnson having declared war on poverty. People correctly understood both of those wars metaphorically. However, the US public, its elected leaders, and other states all realized that President Bush’s intent was literal, not metaphorical. At his direction, the United States, the world’s only military superpower, launched a worldwide war against terrorism, or at least against selected, mostly Islamist, terrorist organizations.

Problematically, terrorism, as the previous chapter emphasized, is a tactic or a strategy, not an enemy upon whom one can declare war. Retired four star US Marine General Tony Zinni recognized the problem: “Think about it: We’ve declared war on a tactic—terrorism—not on an ideology, not on a nation-state.“108

GWOT rhetoric has gradually faded from public discourse, if for no other reason than because of its rhetorical shortcomings. The Obama administration prefers to speak of the “Long War,“109 continuing to describe the US as being at war with al Qaeda.110

The new metaphor, like its GWOT predecessor, points to the United States’ continuing reliance upon a warfighting counterterrorism paradigm.111 The Bush and Obama administrations both sought to justify military actions abroad legally by arguments contingent upon their claim that the United States is at war. Unsurprisingly, the US Department of Defense (DOD) and national intelligence agencies (the Central Intelligence Agency (CIA), National Security Agency, and others) retain chief responsibility for counterterrorism operations beyond US borders. This war has achieved some notable successes, but also incurred substantial costs measured in casualties and dollars.

Has the GWOT represented an effective counterterrorism strategy? In particular, have US military and intelligence agency actions proven to be effective counterterrorism measures? Is the US safer today than pre-9/11? When examined through the ethical lens of Just War Theory, how does the GWOT measure up? More broadly, does Just War Theory provide an adequate model for shaping comprehensive, effective, and ethical counterterrorism?

Just War Theory is the only widely accepted ethical model for assessing the justness of a war and its conduct. The theory, with its roots in ancient Greek philosophy, emerged out of early Christian ethics, especially the writings of Ambrose, Augustine, and Thomas Aquinas. Enlightenment scholars then refined the theory as it slowly entered the Western philosophical mainstream. Michael Walzer’s 1977 Just and Unjust Wars is perhaps the definitive philosophical summary of Just War Theory. In the twentieth century, Just War Theory’s influence contributed to developing international laws and conventions that banned certain weapons, sought to limit nuclear proliferation, mandated humane treatment of prisoners of war, and established safeguards for noncombatants.

After briefly outlining Just War Theory, this section assesses the GWOT that the US has waged against al Qaeda. Unlike many Just War analyses that consider the justice of both sides in the conflict, this analysis is necessarily one-sided. Terrorism, as argued in Chapter 1, is always immoral; therefore, terrorists never have justice on their side and always fight unjustly. Furthermore, terrorists by intentionally targeting noncombatants express their rejection of and contempt for Just War Theory norms.112

Just War Theory presumes an actual opponent in any specific war. The United States’ GWOT, in very many respects, was primarily against al Qaeda (and continues under the Obama administration to focus primarily on al Qaeda113), and secondarily against the Taliban, who ruled Afghanistan, providing al Qaeda sanctuary and support. Thus, for illustrative purposes, this consideration of the applicability of Just War Theory to counterterrorism focuses on the military campaign and covert actions that the United States conducted against al Qaeda from 9/11 through 2013.114 A Just War Theory analysis of the GWOT against other possible US opponents (the Earth Liberation Front, Operation Rescue, Hamas, etc.) would itemize a parallel set of difficulties. Parenthetically, the US led invasion, conquest, and occupation of Iraq, conducted under the GWOT’s rhetorical penumbra, was in fact a distinct war, fought for reasons unrelated to counterterrorism, and is thus excluded from this Just War Theory GWOT analysis.115

Briefly, Just War Theory has two or, preferably, three sets of components. The first set, jus ad bellum (justice before war), provides six criteria for assessing whether a war is morally justifiable. Just wars must satisfy all six. They are:

a. Just cause—traditionally, this meant the defense of a sate’s territory but recently is often expanded to include protecting people from egregious crimes against humanity such as genocide

b. Right intent—the war is fought to achieve progress toward peace and is always defensive, never offensive

c. Right authority—a state’s highest political authority must authorize the war, with some recent proposals advocating shifting the locus of right authority from states to international bodies

d. Last resort—war is the only viable option for progress toward peace, all other options have been exhausted or appear highly unlikely to succeed

e. Proportional—war will likely cause fewer causalities and less destruction than if the war does not occur

f. Reasonable chance of success—in the absence of a reasonable chance of success waging war is unjust.

The second set, jus in bello (justice during war), delineates two criteria for fighting a just war justly (an unjust war, even if fought adhering to these principles, remains unjust):

a. Noncombatant discrimination—fighting should avoid injuring or killing noncombatants and their property

b. Proportionality—military gains from a battle, other tactical action, or strategic move should outweigh associated costs measured in casualties and destruction.

Post-WWII, scholars have begun debating the merits of adding a third set of components, jus post bellum (justice after war), to Just War Theory to guide post-war peace building. Too many wars end by sowing, perhaps unintentionally, the seeds of the next war or by leaving basic conflicts unresolved.116 Even Michael Walzer, the author of the definitive philosophical statement of Just War Theory, supports expanding the theory to include jus post bellum.117

No set of jus post bellum criteria has gained widespread acceptance. One proposed just post bellum schema is:

a. Practice respect for persons—this includes returning warriors on both sides, displaced persons, and any conquered peoples

b. Establish justice—post-war initiatives should aim to move states toward greater commutative, legal, and distributive justice

c. Exercise ecological responsibility—properly dispose of expended munitions and other war materials, disarm to the degree consistent with maintaining the peace, and repair, as possible, damaged infrastructure and the environment

d. Engage multinational support and commitment—this reduces the likelihood of future bi-polar conflict emerging out of the present war and can provide helpful resources unavailable to the war’s participants

e. Maintain progress toward closure—war does not justify territorial or colonial expansion, requiring expeditious restoration of the defeated state’s sovereignty.118

A jus post bellum program’s actual shape, breadth, and extent depend upon several factors. These include whether the war ends with the victor occupying the vanquished, the ability of the vanquished country to resume self-governance without reverting to whatever injustice justified the war, and the potential of both victor and vanquished to progress toward justice.

[]1. Jus ad Bellum

a. Just cause—Just War Theory posits that war occurs exclusively between sovereign states, a presumption that grew out of efforts to prevent sub-state groups (e.g., feudal lords or marauding tribes) from warring. The 9/11 attack did not provide the United States with a state against whom the US had just cause to declare war because no state invaded the US nor was there egregious government violation of human rights.

Theoretically, only states—not individuals, business enterprises, communities, or other organizations—maintain military forces. From the end of feudalism until the late twentieth century, sovereign states increasingly tended to monopolize military force. The British Army’s regimental system, in which the state monopolizes military power and yet still links regiments to a particular geographic area, is partially a vestigial legacy of the lord of the manor’s obligation to provide his liege lord with a stipulated number of equipped warriors. The military establishments funded and operated by business enterprises such as the British East India Company and the Dutch East India Company, which supported colonial conquest and rule, long ago disappeared. Not until the twentieth century re-emergence of private military firms like Blackwater (subsequently renamed Xe) did private enterprise again organize or fund military forces on a significant scale.119

Al Qaeda (founded by Osama bin Laden) and several kindred organizations form a loose network of largely self-generating cells united primarily by a common vision of radical Sunni Islam.120 Bin Laden was a wealthy Saudi construction contractor’s seventeenth child, out of fifty-two. Born in 1957, his radicalism began when he learned the Wahhabi version of Salafism as a child in Saudi Arabia and continued as a college student, taught by Sayyid Qutb’s brother in Egypt. Observing the substantial dissonance between the House of Saud’s Wahhabi rhetoric and their Western lifestyle further radicalized bin Laden.121 In the 1980s, the US financed bin Laden’s nascent al Qaeda as part of the mujahidin fighting the Soviet Union in Afghanistan.122 During that period, he began to develop his vision of a universalized, radical Islam and to internationalize al Qaeda’s reach through a loose network structure. Successful bombings of several US African embassies enhanced al Qaeda’s reputation among Islamists, drew additional recruits and funds to the organization, and led to further strikes, culminating in the 9/11 attacks.123 Two of bin Laden’s important innovations were internationalizing terror124 and creating highly effective terrorist training camps in which to teach recruits terror tactics while indoctrinating them in his version of radical Sunni Islam. Nobody before bin Laden had “so clearly sketched out the strategies and tactics of asymmetric warfare, whereby the supposedly weaker party could turn the vast strength of his opponent into a weapon against that same opponent.“125 When funding from state sponsors of terrorism ceased, bin Laden began acting as a venture capitalist for terrorism.126

Dismissing al Qaeda’s threat to kill every American and American ally127 as rhetorical hyperbole cavalierly disregards the real threat that al Qaeda poses to all who refuse to accept its radicalized version of Islam. Al Qaeda has a proven record of backing its rhetoric with effective action, having killed thousands in well-planned and executed attacks on four continents over two decades. The largest, most visible, and most notorious of those attacks occurred in the United States on 9/11. Even after bin Laden’s death, future al Qaeda attacks in the West remain probable. Although al Qaeda is unlikely to attempt to conquer US territory, al Qaeda’s zealous commitment to its goals and past actions certainly constitute just cause for counterterrorism operations. However, because al Qaeda is not a sovereign state but a non-state group, those attacks fail to satisfy Just War Theory’s just cause criterion. Just cause is also lacking because Al Qaeda has neither invaded another state nor committed egregious injustices against its own people.

Efforts to broaden the definition of state to encompass non-state actors like al Qaeda are not persuasive. For example, Philip Bobbitt, a Columbia University professor of jurisprudence, argues that a terror group such as al Qaeda comprises a terrorist market state of consent with non-geographic valences. At the risk of oversimplifying Bobbitt’s extended and complex argument, he uses consent to denote people choosing an identity and market state to connote their holding a common valence of governance, which, in the case of al Qaeda, would be Sharia law interpreted by the group’s leader.128 This definition provides an insufficient basis for waging war. Without territory of its own, fighting a market state of terror will almost certainly transpire in geographic areas subject to another state’s sovereignty, potentially causing the war to ripple outwards in ever expanding ways. Defining a terror group as a state also has the unintended consequences of lending international legitimacy to the terror group’s existence, goals, and methods.

b. Right intent—A counterterrorism operation satisfies the right intent criterion when the operation’s purpose is progress toward peace. Right intent precludes using an attack like 9/11 as an excuse to achieve other foreign policy goals, whether economic or political. For example, the US invaded Afghanistan to terminate state sponsorship of al Qaeda terrorism and to implement regime change, thereby ending the state sanctioned oppression of women and other repugnant Taliban policies, as well as hoping to reduce Afghan heroin production. At best, the multiple motives behind the US invasion raise substantive questions about whether US intent was strictly to achieve progress toward peace. Just War Theory insists that other goals, even laudatory ones, never justify war.

c. Right authority—The US Constitution authorizes Congress to declare war and makes the President responsible, as military Commander in Chief, for defense against foreign attacks. President Bush’s GWOT declaration arguably satisfied the right authority criterion, as he exercised his responsibility to defend the US against attack; Congress by passing a resolution that authorized the use of military force against those responsible for 9/11 and repeatedly funding the GWOT has tacitly endorsed the President’s declaration. The Obama administration has relied upon Congress’ post-9/11 authorizations to pursue the targeted killing of terrorists, some of whom were toddlers on 9/11and others of whom have no demonstrable connection to al Qaeda or the 9/11 attacks.129

In the aftermath of WWII, some Just War theorists have come to regard Just War Theory’s uncompromising respect for state sovereignty as a weakness. States, more than ever before, not only have the potential to inflict harm on a larger scale than did their predecessors, but also are aware in real time of the atrocities that other states commit and sometimes have the ability to intervene to stop those atrocities. International pressure, including diplomatic moves and public outrage, increasingly push other states to stop, or even to preempt, states from committing atrocities against their own people. International outcry eventually caused the European Union and the North Atlantic Treaty organization (NATO) to intervene to stop the Serbs from their genocidal pogroms in Bosnia and Kosovo,130 an intervention pre-eminent Just War scholar Michael Walzer supported.131 Interventions in Africa have generally been tardy and less than fully successful. For example, genocide in Rwanda was well underway in the mid-1990s before international intervention finally stopped it. Reluctant, belated, and ineffectual international intervention, at this writing, has yet to end Arab genocide against Africans in the drought stricken Darfur region of Sudan.

In speaking to a Joint Session of the US Congress in 2000, South African President Nelson Mandela suggested that states have a legitimate interest in the well-being of other people:

In an age such as this, when the fissures of the great oceans shall, in the face of human genius, be reduced to the narrowness of a forest path, much revision will have to be done of ideas that have seemed as stable as the rocks, including such concepts as sovereignty and the national interest. …

If what we say is true, that manifestly, the world is one stage and the actions of all its inhabitants part of the same drama, does it not then follow that each of us . . . should begin to define the national interest to include the genuine happiness of others, however distant in time and space their domicile might be?132

Concurrently, globalization is propelling the world towards increased development of, and reliance upon, international bodies. Yet, the United Nations remains weak and largely ineffectual. The Korean War, fought half a century ago, is the only time that the UN has intervened militarily in a timely manner to stop international aggression, an action the Soviet Union’s boycott of key sessions enabled. Regional bodies—like the European Union, NATO, and the African Union—although they often lack real unity, political will, and military might have sometimes acted more effectively than has the UN.

Several scholars have proposed modifying or reinterpreting the just cause and right authority Just War Theory criteria to provide a moral framework for deciding when humanitarian intervention is justifiable.133 Humanitarian intervention usually connotes rendering aid or ending an atrocity in a foreign state; construed broadly, humanitarian intervention might also reasonably connote an intervention made for counterterrorism reasons. No proposal has garnered wide support. That lack of consensus, combined with Just War Theory’s other shortcomings as a moral paradigm for counterterrorism operations, corroborates the need to develop an alternative counterterrorism model. The Just Counterterrorism Model, presented in this chapter’s next section, addresses the problem of global, non-state actors and delineates criteria for determining when and how violating state sovereignty for counterterrorism reasons is ethically justifiable.

d. Proportional -- The GWOT represents a response to al Qaeda so widely perceived around the world as disproportional that the declaration of war actually disadvantaged the United States in its relations with other countries. The invasion and lengthy occupation of Afghanistan have cost tens of thousands of non-US lives, two thousand plus US lives, and more than a trillion US dollars, dwarfing the harms al Qaeda inflicted in the 9/11 attacks. In other words, the war represents a hugely disproportional response.

Furthermore, declaring war on terror has had the unintended consequence of dignifying terrorists and conferring international acceptance upon their behavior.134 Samantha Power, who became the US Ambassador to the UN in the second Obama administration, while still a professor of global leadership at Harvard’s Kennedy School of Government described that unfortunate turn of events:

Moreover, by branding the cause a war and calling the enemy terror, the administration has lumped like with unlike foes and elevated hostile elements from the ranks of the criminal (stigmatized in all societies) to the ranks of soldiers of war (a status that carries connotations of sacrifice and courage). Although anybody taking aim at the American superpower would have seemed an underdog, the White House’s approach enhanced the terrorists’ cachet, accentuating the image of self-sacrificing Davids taking up slingshots against a rich, flaccid, hypocritical Goliath. In rejecting the war-on-terror frame recently, Hilary Benn, the British secretary of state for international development, argued: ‘What these groups want is to force their individual and narrow values on others, without dialogue, without debate, through violence. And by letting them feel part of something bigger, we give them strength.’135

Ironically, by invading Afghanistan in pursuit of al Qaeda and seeking to end the Taliban regime’s support for al Qaeda, the US increased the stature of the terrorists “in a way that they could not possibly hope to do themselves.“136

e. Last resort—A relatively new but troubling fascination with militarism has captivated the United States. According to historian and retired US Army Colonel Andrew Bacevich, “To a degree without precedent in US history, Americans have come to define the nation’s strength and well-being in terms of military preparedness, military action and the fostering of (or nostalgia for) military ideals.“137 In the words of another student of military affairs, “As the cliché goes, if you have a hammer, every problem looks like a nail. The US military is so good—let us give it the opportunity to do what it does so well. Let’s define the problem in such a way that it can.“138 The US did exactly that when it defined the problem of terrorism in such a way as to justify responding with the most world’s most competent and powerful military. As the next two sections of this chapter argue, the US did have an option other than war with which to respond to the al Qaeda 9/11 attacks, an option described by the Just Counterterrorism Model, which has proven effective when employed by other states as a counterterrorism strategy.

f. Reasonable chance of success—Assessing whether a war has a reasonable chance of success is impossible without a specific, measurable definition of victory. Richardson poignantly observes:

If victory means making the United States invulnerable to terrorist attack, we are never, ever going to be victorious. Here’s why casting a conflict in terms of a war one cannot win is a big mistake. By dispatching any operative into any Starbucks, subway station, or shopping mall in the country and blowing it up, a terrorist group could demonstrate that the most powerful country in the history of the world has not been able to beat it. This is making it much too easy for the terrorists.139

According to the 2006 US National Military Strategy, GWOT goals include eliminating the al Qaeda network and its cells as well as stopping state sponsorship of al Qaeda terrorism by any necessary means.140 These overly broad, unrealistic goals do not satisfy this final jus ad bellum criterion. The US lacks the political will and resources to conquer and to implement regime change in every state that fails to sustain aggressive efforts to eradicate al Qaeda cells located within its borders. Even if the US had the will and resources, history demonstrates that waging war has seldom proven an effective counterterrorism strategy.141 “If the wars in Iraq and Afghanistan have proved one thing, it is that America cannot kill its way to victory.“142 Prominent US defense expert Anthony Cordesman has concluded, “every metric shows [the US] is not winning” the GWOT.143

The bottom line is that the United States’ GWOT satisfies only one of the jus ad bellum criteria, right authority, and perhaps a second, right intent. A just war must satisfy all six criteria. The GWOT, even narrowly conceptualized as a war against al Qaeda, falls short of the just cause, proportionality, last resort, and reasonable chance of success criteria, underscoring both that the GWOT is an unjust war and the unsuitability of Just War Theory as a counterterrorism ethical paradigm.

[]2. Jus in Bello

Just War theorists generally contend that a state cannot fight an unjust war justly. Counterterrorism, however, may be the sole exception to that position. A state that fails to respond to horrific acts of terror invites further attack. The necessity of taking action raises the question whether the two jus in bello criteria (proportional use of force and noncombatant discrimination) provide a viable and sufficient ethical framework for shaping counterterrorism.

Military theorist Robert Cassidy has identified six paradoxes of asymmetric warfare.144 By definition, the two sides of an asymmetric conflict are mismatched: one opponent is weak and the other strong. Each of the six paradoxes describes one dramatic way in which the weak and strong will differ in their approach to that war. Cassidy’s paradoxes, which contrast the weaker opponent’s way of war vs. that of the stronger, are:

1. Unlimited vs. limited goals

2. Using any means vs. reliance on limited means

3. Limited vs. relatively unlimited resources

4. Unlimited vs. limited commitment

5. Unlimited vs. limited tolerance of casualties

6. Unlimited vs. limited tactics.

Collectively, these six paradoxes explain how a much weaker but determined foe can defeat a seemingly unbeatable opponent through moral one-upmanship. The paradoxes apply not only to the various forms of warfighting but also to waging war against endogenous and exogenous non-state terrorism.

The six paradoxes, examined in the context of the United States’ GWOT against al Qaeda, highlight the glaring asymmetries and associated ethical disconnects created when a state defines its counterterrorism strategy in terms of warfighting:

1. Unlimited vs. limited goals: Al Qaeda’s unlimited strategic goals means that it may strike wherever and whenever success looks likely or reasonably possible, even if that involves engaging in strictly criminal endeavors such as the illegal drug trade, bank robbery, and kidnapping.145 Conversely, the United States has the limited, narrower goals of self-defense and destroying al Qaeda without enlarging the terror threat that it and other states face.

2. Using any means vs. reliance on limited means: Similarly, opponents can reasonably anticipate that al Qaeda will utilize any mode of attack available, from primitive beheadings to high tech weapons of mass destruction. Meanwhile, the US has much to lose from employing either primitive means (e.g., torturing detainees created a severe public relations backlash) or unleashing its most potent (i.e., nuclear) weapons, a move likely to precipitate tremendous global outrage and to accelerate the proliferation of nuclear weapons. However, the US can employ an array of non-military options (economic sanctions, international pressure, foreign aid, etc.) that are completely unavailable to al Qaeda.

3. Limited vs. relatively unlimited resources: At its apogee of power, al Qaeda perhaps mustered a few thousand fighters equipped with individual and some team-served weapons. They lacked the body armor, night vision gear, and armored vehicles of the US Army and Marine Corps, had no airpower or airlift capability, operated no spy satellites, and had no ability to project power at sea.

4. Unlimited vs. limited commitment: Al Qaeda’s members had a largely unconditional commitment to their cause, the creation of an Islamic caliphate governed by the Wahhabi interpretation of Islamic law (Sharia). In contrast, the US commitment to fighting al Qaeda was contingent upon defeating the threat that the group posed to the United States and its allies by prevailing without engaging in total war.

5. Unlimited vs. limited tolerance of casualties: Al Qaeda’s total commitment and high tolerance of casualties (e.g., an ample supply of willing suicide bombers ready for martyrdom) sharply contrasted with the United States’ limited political will and low tolerance for casualties in prosecuting the GWOT.

6. Unlimited vs. limited tactics: Conventional militaries, including the US military, seek victory by relying upon a strong offense that employs overwhelming force to destroy the enemy. Terrorists operate using ideas articulated by the third century BC Roman General Fabius Maximus and China’s Mao Tse Tung: avoid frontal engagements; engage in deception (e.g., blend into the civilian population by not wearing uniforms); ambush; delay confrontations whenever advantageous; and seek indirect means intended to break the enemy’s will to fight rather than to destroy the enemy’s forces. Lest anyone disparage these tactics too quickly, General George Washington utilized many of them to defeat a superior British Army in the American Revolution.146 Many of these tactics cohere well with the Bedouin way of waging war that relies upon raids as the offensive mainstay and decentralizes authority conferring it upon the warriors.147 Terrorists also use summary executions, intimidation, and other blatantly immoral tactics whenever they perceive an advantage in doing so.

More broadly, those six paradoxes of asymmetrical conflict identify the dynamics necessary to understand why military counterterrorism operations often cede the moral high ground to terrorists and thereby allow a far weaker force to prevail in the conflict:

Those who want to defeat terrorism, but are confused as to its dynamics and goals, run the risk of pouring gasoline rather than water on menacing fires. Such cautions matter so much because terrorism constitutes the form of warfare with the lowest and most easily crossed threshold; therefore, it is a malevolent genie that will not quickly go back into the bottle when it is so often summoned to serve such a great spectrum of causes. Within this spectrum, when terrorists who are weak in numbers and resources wish to expand their reach or escalate their struggle, they will engage in acts of terrorism calculated to provoke self-defeating retaliation by the strong. The astute terrorist recognizes that his victims’ outrage furnishes him with the leverage needed to throw his enemies off balance. This warning needs to be taken to heart by the military, but it also needs to be heard by policymakers and populations so eager for retaliation that they are tempted to be ruled by gut impulse rather than thoughtful calculations. In countering terrorist jujitsu, agility and intelligence matter far more than muscle.148

After more than a dozen years of prosecuting its GWOT, the US has failed to end the Islamist terrorist threat it faces or even to eliminate al Qaeda. Yet during those years, the US GWOT repeatedly violated the jus post bellum criteria of proportionality and noncombatant immunity. The preponderance of these violations is attributable to the asymmetrical paradoxes inherent in counterterrorism, not to moral lapses on the part of individuals or units. The relative handful of incidents, many highly publicized, in which an individual or unit allegedly, or has been proven to have, violated the jus in bello criteria exacerbate difficulties created by the more basic and pervasive systemic failures.

One major doctrinal source of moral failures in the GWOT is that US forces, like those of most militaries, usually seek to achieve and to exploit the tactical advantages of overwhelming force. Strategists widely agree that employing overwhelming force in war improves the odds of victory and minimizes friendly casualties, i.e., historical analyses of battles reveals that the side with overwhelming force most often prevails, accomplishing its mission while concurrently minimizing its own casualties.

In fighting to win, US armed forces shoot to kill. They often clear buildings one room at a time, first tossing in a grenade and then firing their weapons to sweep the room with bullets as they enter, intending to kill anyone who survived the grenade. They take these actions without anyone first peering into the room to see who might be there, because looking potentially exposes that individual to lethal enemy fire. Alternatively, enjoying dominant air superiority permits troops to call for an airstrike against a building into which they saw known or suspected terrorists run. Troops calling for an airstrike will rarely know if anyone else, let alone who, might also be in the building. Strikes that hit their target indiscriminately kill or injure occupants, both combatants and noncombatants alike; strikes that miss may obviously cause other damage. Even when on target, a strike commonly causes unavoidable damage to adjacent structures since the smallest bomb in the US inventory delivers 500 pounds of explosives.

These are just a couple of examples of widely used tactics that militaries have developed and tested in the course of thousands of battles. These tactics are appropriate and militarily warranted on battlefields in which combatants reasonably presume that everyone present is friend or foe, the former distinguishable and often spatially separated from the latter. These tactics also stress force protection, valuing the lives of a country’s combat team more highly than the lives of anyone else who happens to be present.

However, overwhelming force, when used in an asymmetrical war, will often constitute the disproportionate use of force, causing significantly more harm than realistic expectations of gain can justify. In conventional war, winning battles typically culminates in winning the war. In asymmetric conflicts, such as the US’s Vietnam War, the stronger side may win most of the battles and still lose the war. The unsuccessful French campaign against terrorist forces in post-WWII Algeria similarly illustrates that aggressive tactics used in counterterrorism, even when effective, “will not win the war”:

The French demonstrated that aggressive tactical counterinsurgency operations facilitated by accurate intelligence can effectively eliminate the military capability of the insurgents, yet will not win the war. … Finally, the Algerian conflict showed the clear and direct links between how counterinsurgency operations are executed tactically and the attainment of strategic objectives. The strategic level of war must dictate the manner in which tactical operations are conducted.149

Those assessments, which are consistent with the ethical norms of justice, respecting human dignity, and obeying the law are now beginning to find support in the US.150

A second cause of GWOT systemic moral difficulties compounds those stemming from the reliance on overwhelming force: Just War Theory presumes that all combatants are clearly identifiable as such; everyone else is a noncombatant. This presumption has enjoyed a longstanding prima facie credibility with respect to the battlespace of an open war, and somewhat less credibility in guerilla and covert engagements.

However, the presumption that everyone is either a combatant or noncombatant simply does not apply to asymmetric conflicts in which the weaker party utilizes a terror strategy or tactics. For example, is the person who witnesses a terrorist act, without participating, but who refuses to divulge, when officially questioned, what he or she saw a combatant or noncombatant? Does the witness’ status depend upon whether the terrorist is a member of the witness’ family? If the terrorists have killed individuals who previously provided counterterrorist forces with information and credibly threaten to do so again does that alter the witness’ status? Is the person who knowingly gives food, shelter, or medical care to a terrorist a combatant? Is the person who suspects that another individual either is a terrorist or aids terrorists a combatant or noncombatant? Is the person who commits criminal acts to obtain money, weapons, or other supplies for terrorists, but who refrains from committing terrorist acts, a combatant or noncombatant? Those questions highlight persons better identified as witnesses, supporters, and criminals than as combatants or noncombatants.

Asymmetric conflicts with terrorists introduce multiple roles for which Just War Theory makes no allowance. This places military personnel trying to comply with both the laws governing armed conflict and Just War Theory’s ethical principles in the unreasonable situation of having to classify people according to an oversimplified and inapplicable taxonomy. Moreover, asymmetric warfare frequently blurs the lines that demarcate various roles because people often play multiple roles.151 In the hypothetical situations sketched in the preceding paragraph, the witness may also be a collaborator or victim, and the supporter may either have been coerced into helping or be a genuine collaborator. US forces routinely face all of the above conundrums in the GWOT.152

In counterterrorism operations, when infants and various other noncombatants may be present, tragic, potentially avoidable, and often mission-defeating outcomes can result from the tactical use of overwhelming force and prioritizing force protection. These negative outcomes may include excessive noncombatant casualties (deaths and injuries) and possible political and propaganda ramifications stemming from those deaths as well as traumatizing the military personnel involved, perhaps triggering posttraumatic stress disorder (PTSD). For instance, Israeli Defense Force (IDF) units occupying Lebanon in 2006 inflicted excessive civilian casualties, learned that doing so was “tantamount to defeat,” and had a high number of personnel who experienced psychological and moral problems as a result.153 In prior asymmetric wars, US military personnel have often struggled to distinguish between combatants and noncombatants.154 Many times, the combatant status of fewer than half of the individuals present, such as a toddler or an individual seen committing overt, hostile actions, has been easy to identify. Language and cultural barriers greatly complicate the task of identifying friend from foe.155

When the strong—those conducting counterterrorism operations—fail to protect noncombatants, they not only fail ethically but may also diminish their effectiveness by unintentionally increasing support for the terrorists.156 Indeed, prominent Just War theorist Michael Walzer and political philosopher Avishai Margalit writing in the New York Times Review of Books argue that protecting noncombatants rather than force protection is the correct priority in counterterrorism operations.157

Because of the paradoxes inherent in asymmetric war, Just War Theory’s jus in bello criteria provide inappropriate or insufficient ethical guidance for shaping effective counterterrorism. Some warfighting doctrines, such as reliance on overwhelming force, too often result in using disproportionate force on counterterrorism missions; the very nature of asymmetrical conflicts, especially terror groups, invalidates Just War Theory’s presumption that everyone is either friend or foe. In sum, military forces engaged in counterterrorism operations that seek to comply with the laws of armed conflict and its own warfighting doctrine can prevail on the battlefield by relying on traditional tactics yet lose ground against the terrorists by causing unacceptable, even self-defeating, levels of noncombatant casualties.

[]3. Jus post Bellum

In large measure, government leaders and officials conducting the GWOT view it as an ongoing endeavor, some rebranding the GWOT as the “long war” to which no end is in sight. This wrongly implies that al Qaeda’s terrorism is an intractable, unsolvable problem. Nevertheless, even though the GWOT has not ended, briefly examining the GWOT using the jus post bellum criteria outlined above will further clarify why Just War Theory is an inadequate ethical model for counterterrorism and draw attention to ethical elements important for constructing a new counterterrorism model.

a. Respect for persons—The momentum for expanding Just War Theory to include a jus post bellum component originated amid the growing recognition that the end of one war frequently sowed the seeds of the next war, exemplified by the aftermath of WWI inexorably leading to WWII. One essential element of breaking the cycle of one war leading to the next is for states to recognize that building an enduring peace requires significant progress toward improved respect for all persons. In the case of the GWOT, this means improved respect for terrorists, the victims of injustice for whom the terrorists allegedly sought greater justice, and the attacked community. In other words, effective counterterrorism addresses all three groups of stakeholders. The GWOT, however, has focused on terrorists and paid scant attention to the latter two groups (Chapters 3 and 5 detail how more fully respecting these two groups contributes to effective counterterrorism).

Respecting terrorists as persons excludes dehumanizing or demonizing them, rejecting the apparently widely held, though seldom voiced, sentiment that the only good terrorist is a dead terrorist. Dehumanizing or demonizing an enemy, real or perceived, lowers inhibitions against killing158 and invites ethical abuses. A US Army chaplain in Afghanistan, for example, speaking to a soldier shocked by watching bodies burn from white phosphorous munitions made this point, simultaneously revealing the chaplain’s own deficient spirituality: “They are not real people. God wants you to kill them.“159 Unfortunately, that was not an isolated incident. The United States has frequently disrespected terrorists by dehumanizing and demonizing them.160 Most tragically, the US demonized Osama bin Laden, beginning in the aftermath of the 1998 bombings of the US embassies in Kenya and Tanzania. At that time, President Clinton’s administration blamed bin Laden “for every atrocity committed against the USA in the Muslim world in recent times.“161 Public denunciations unhelpfully, if unintentionally, transformed bin Laden into a hero of global stature for many radical Sunnis.162 In general, dehumanizing and demonizing terrorists has lent credence to terrorist rhetoric and further embittered the disaffected, transforming them into better candidates for recruitment by terror groups. This rhetorical excess renders successfully ending the GWOT—short of killing almost all terrorists—nearly impossible.

b. Establish justice—The second jus post bellum criterion, establishing justice, has three aspects: the distributive, commutative, and criminal. Each is especially relevant to one set of the actors involved in terrorism: distributive justice is relevant for enabling communities that spawn or sponsor terror; commutative justice is particularly pertinent for the attacked community; and criminal justice is obviously most relevant to terrorists.

Distributive justice speaks to sharing political and economic power equitably. In counterterrorism, the ethical component acquires decisive importance because ultimately successful counterterrorism requires winning the enabling constituency’s hearts and minds.163 Progress toward greater distributive justice is an essential element in that battle among the communities that spawn or aid terrorists. A terror group justifies using violence to achieve its ultimate political goals by pointing to the injustice its foes inflict on the group’s enabling constituency. The probability of terrorist activities can best be limited by promoting stable economic growth, adequate employment for an expanding labor force, human rights, democracy, and the rule of law in those countries that are the sources of the most serious threats to international security. Ignoring legitimate grievances yields the moral high ground to terrorists, as Cassidy’s analysis of asymmetric warfare recognized.164 Neither the GWOT’s narrow focus on destroying al Qaeda nor the hugely expensive, ineptly designed, and poorly implemented efforts at nation building in Afghanistan165 have achieved significant improvements in distributive justice.

Progress toward enhanced commutative justice—justice between people—in the GWOT has been faltering at best. For example, by dehumanizing and demonizing terrorists the GWOT has destroyed rather than built or strengthened bridges of mutual respect between Sunnis and Shiites, Muslims and non-Muslims, Arabs and non-Arabs, and the communities that spawn or sponsor terrorism and the communities that terrorists attack. Effective, ethical counterterrorism includes initiatives in the attacked community to stop dehumanizing and demonizing terrorists because those attitudes contribute to conditions and circumstances that favor the terrorists.

Nor have post-combat GWOT efforts addressed the obvious need to establish criminal justice, holding terrorists appropriately accountable for their actions. WWII provides a helpful case study in the importance of establishing criminal justice:

It was not until about halfway through the war that the Allied leaders began seriously considering a trial for the Nazi archcriminals in the wake of victory. Until that point, both Roosevelt and Churchill had leaned toward summary execution. But gradually, between 1942 and 1944, Roosevelt’s thinking on the subject changed completely, ultimately coming around to an adamant insistence on dealing with the vanquished enemies through due process of law. Within the Roosevelt administration, this decision reflected the final outcome of a long and fierce bureaucratic battle between the secretary of the treasury, Henry Morgenthau, who advocated harsh vengeance against the German people, and the secretary of war, Henry Stimson, who argued that such a vindictive policy would not only violate the values that underpinned American democracy, but would breed more enmity and violence among the Germans for decades to come.166

Terrorists, contrary to their self-understanding and much US rhetoric, are not warriors. Terrorists are criminals. Terrorists, like the Nazi archcriminals in WWII, attack innocent people. In the case of terrorists, their victims lack any direct connection to the injustices, real or alleged, that the terrorists want to rectify. Aggrandizing terrorists by treating them as anything but criminals has the unintended consequence of legitimizing and supporting the terrorists’ cause.167 Concomitantly, failing to treat terrorists as criminals unintentionally demeans legitimate warriors serving in a state’s armed forces.

c. Exercise ecological responsibility—For the GWOT, the principal element of ecological responsibility will be post-conflict disarmament. Yet expansive US sales of conventional arms under the GWOT umbrella demonstrate a lack of ecological responsibility because the sales result in already heavily armed states such as Iraq and Afghanistan acquiring even more arms per capita. Iraq’s deteriorating internal security situation—characterized by sectarian violence and resurgent terror groups, which has contributed to Syria’s instability and internal conflict as well as aggravating conditions in Iraq—underscores the futility of believing that arms sales can end terrorism. Most conspicuously, the Islamic State of Syria and the Levant (ISIL) relied heavily upon readily available weapons and munitions in Iraq and Syria to gain its initial military successes. More generally, the US also sells arms to some states that appear friendly but actually support terrorism.168 Moreover, the US has a sad record of arming purported friends to accomplish an immediate, short-term US foreign policy goal only to have those purported friends subsequently turn their weapons against the US. Two examples of this are arming bin Laden to fight the Soviets in Afghanistan and arming Saddam in his 1980s war with Iran. Arms sales to oppressive Arab regimes such as Saudi Arabia and Egypt help those regimes stay in power, fueling animosity toward the US and Islamist terrorist recruiting. In sum, the GWOT fails to satisfy the jus post bellum criterion of exercising ecological responsibility; instead, the analysis highlights the implausibility of finding a military solution to terrorism.

d. Engage multinational commitment and support—Diminished international support for the US GWOT, even among allies outraged by 9/11 and other terrorist attacks, expresses a de facto vote of no confidence by those states in the GWOT as an appropriate and effective political and military, if not ethical, approach to counterterrorism. Replacing atavistic, nationalist counterterrorism responses with genuine multinational cooperation can help to prevent national interest masquerading as right intent.

e. Maintain progress towards closure—The GWOT has achieved some notable instrumental progress, most visibly by killing Osama bin Laden and, to a lesser extent, assassinating other key al Qaeda leaders, disrupting al Qaeda’s capacity to plan and carry out attacks of the magnitude of those on 9/11. The killing of bin Laden was perhaps less of an accomplishment than might be thought. By the middle of the first decade of this century, he appears to have surrendered operational control of al Qaeda to others; his value to the group was as a symbol and in the ideological cohesion that he brought to the network’s disparate elements.169 Arguably, clandestine intelligence agencies rather than the military played the pivotal role in capturing or killing every major al Qaeda terrorist since 9/11, including Osama bin Laden whose location they provided to the military forces that carried out the mission.170

Even without bin Laden, al Qaeda remains a formidable terrorist organization whose tentacles, now operating with a high degree of autonomy, continue to threaten terror attacks in much of the world. Concurrently, newly emergent terrorist organizations, many deriving their ideology from the same radical Islamism that birthed al Qaeda and drawing their support from the same disaffected Muslim populations as does al Qaeda, underscore that the United States has not won its GWOT, in spite of consistently winning battles and armed confrontations. Between 2002 and 2013, the number of major terror incidents in the Middle East has increased fifteen fold, Salafist terror groups increased by two-thirds, and the number of Salafist terrorists increased more than doubled.171

Fear and antipathy toward terrorists easily blinds people—politicians, military leaders, and ordinary citizens—to the real scope, nature, and causes of the problems for which terrorism is the presenting symptom. Most see only the horrendous acts terrorists commit and miss, or ignore, the underlying morass of multiple, complex problems. Yet those underlying issues comprise the critical mass that propels terrorism: “Terrorism is caused by the lethal triple cocktail of personal disaffection, an enabling society, and a legitimizing ideology.“172 The immorality of terrorism does not negate or automatically defer the moral legitimacy of the injustice or other precipitating issues that motivate a terror group.

The GWOT, by emphasizing a military solution to terrorism, has oversimplified and simultaneously magnified the problem of terrorism, turning an admittedly difficult problem into an enduring and unsolvable conundrum. Former US Secretary of Defense Rumsfeld repeatedly emphasized, “There is no way to defend everywhere at every time against every technique. Therefore you simply have to go after them.“173 The US has tried to do exactly that.174 Yet using a warfighting paradigm to end terrorism consistently fails, as it has in Iraq and Afghanistan175 as well as in the Palestinian Israeli-conflict. Retired US Marine Corps General Tony Zinni has reached the same conclusion: “We measure success in this war tactically: in terrorists killed, finances disrupted, cells taken down. This is no way to fight terrorism … or to fight instability.“176

This analysis of the US Global War on Terror waged against al Qaeda has highlighted Just War Theory’s inapplicability and inadequacy as an ethical paradigm for counterterrorism. The jus ad bellum criteria are mostly inapplicable to non-state actors and are irrelevant in the case of endogenous terror groups. Using military force in ways that cohere with the jus in bello norms engenders systemic moral failures because warfighting and counterterrorism are fundamentally different endeavors. The jus post bellum framework underlines the inadequacy of counterterrorism that fails to address underlying issues of injustice.177

Additionally, Just War Theory’s chronological structure—justice before, during, and after war—does not lend itself to the challenges of counterterrorism. A chronological structure focuses on terrorists and largely ignores the other two groups of stakeholders terrorism involves, i.e., the people whom the terrorists threaten or attack and the enabling constituency upon whom a terror group depends. Indeed, by addressing only the symptoms—terrorists and their terror attacks—a military response frequently aggravates the situation.178 As a ploy of the weak, terrorists hope to attract resources (renown) and increase support for their cause among key stakeholders (revenge and reaction). If a terror group had the resources and popular support to achieve its aims with a more direct, non-terror strategy, it would do so. In responding to terrorists militarily, political and military leaders too often have used counterterrorism tactics that have backfired, strengthening a terror group by enabling it to achieve greater renown, revenge, or reaction.

[]B. The Need for a New Counterterrorism Model

Neither a law enforcement nor a warfighting strategy has proven consistently effective for counterterrorism against international terror groups.179 Political scientist Amalendu Misra succinctly summarizes the problem: “Modern terrorism presents a different problem from those that were in mind when the laws of war or peacetime were created.“180 Harvard Law School professors Gabriella Blum and Philip Heymann make the same point:

The difficulty is that international dangers such as terrorism, piracy, and drug cartels do not fit comfortably into either [the war or law enforcement] category. They do not seem to warrant the full applicability of the wartime regime, but, depending upon their scale, the advantage they take of foreign havens, and the threat they pose, they might also require going beyond the capacities of domestic law, tailored to address ordinary crimes at home.181

Yet no third model, situated between law enforcement and war, now exists for shaping or assessing counterterrorism strategy and tactics:

Peacetime laws apply to the quotidian life with a modicum of peril and assign the meeting of threats to law enforcement operations with the judiciary playing a central role. Although constrained to some degree by international law, each country chooses its domestic law enforcement regime. Wartime laws, which are largely international in origin, define a model in which danger is heightened—no longer an everyday sort of danger, but one that appears in the shape of war and that assigns the meeting of threats to military and intelligence agencies. Judicial involvement is minimal. These two sets of laws in combination constitute our existing legal paradigms for dealing with danger.182

The absence of a third paradigm allowed the Bush administration, post 9/11, to seize the initiative.183 Declaring a Global War on Terror highlighted the president’s powers as Commander in Chief and allowed the executive branch to obtain almost unlimited resources for counterterrorism, whether to take defensive measures at home or to prosecute wars abroad. By claiming that no binding rules applied to their operations in the legal gap between law enforcement and warfighting, the US could adopt policies such as declaring terrorists illegal combatants (that is, neither criminals or warfighters), torturing detainees (persons to whom no law, including treaties prohibiting torture, applied), targeted executions without legal authority, etc. Blum and Heymann conclude:

We do not doubt that the threat of modern international terrorism poses new challenges for governments of liberal democracies, challenges that our existing legal paradigms might not suffice to meet. But we believe that conducting a war on terrorism within a No-Law Zone was neither warranted nor useful. In fact, we believe it ultimately frustrated all three sets of US interests: security, liberty, and international leadership.184

Ending such abuses underscores the need for a new counterterrorism model, especially against exogenous terror groups that operate where the rule of law does not prevail.

Chapter 1 laid the foundation for a new counterterrorism paradigm by precisely defining the problem of terrorism, reviewing the characteristics of non-state terrorism, identifying terrorists’ instrumental goals, and examining how terrorism ends. Four threads running through that discussion represent important design criteria for any new paradigm used to shape and evaluate counterterrorism strategies and tactics. Those four threads are that the model should be efficacious, comprehensive, ethical, and flexible.

First, a counterterrorism model should be demonstrably effective or, if new and untried, appear likely to be effective. Few counterterrorism experts, key decision makers, public opinion leaders, or scholars will advocate implementing a counterterrorism model unless the model has a credible, prima facie claim to effectiveness. Utilizing the insights of studies on how terrorism ends to shape a model will bolster its initial credibility. For example, studies of how terrorism ends emphasize that treating terrorists as criminals is a key component of effective counterterrorism, suggesting that law enforcement methods and protocols will play a more substantial role in shaping the model than will warfighting methods and protocols.185 Those using the model to shape prospective or to assess actual counterterrorism strategies and tactics, can recommend revisions to incorporate lessons learned, furthering enhance the model’s credibility.

Second, the model should be comprehensive, shaping both strategy and tactics, as does Just War Theory for warfighting. A good strategy, without appropriate tactics by which to implement that strategy, achieves little. Good tactics, without a good strategy, are also ineffectual. Chapter 4 cites several examples of tactical wins against terrorists that resulted in strategic losses, e.g., drone attacks that killed the intended target but generated significant additional support for the terror group.

A comprehensive model also provides guidance for counterterrorism with respect to all three groups of stakeholders involved in any terror incident: the community that the terrorists threatened or attacked, the terrorists, and the terrorists’ enabling constituency. Ignoring two, or even one, of these stakeholder groups necessarily diminishes the model’s overall effectiveness. Yet current counterterrorism strategies usually ignore the terrorists’ enabling constituency as well as offer little guidance about what constitutes an effective response to the people whom the terrorists have threatened or attacked.

Third, an effective and comprehensive counterterrorism model will be explicitly ethical at both the strategic and tactical levels. Cassidy’s analysis of asymmetric conflict clarified why ethics are essential for strategic and tactical counterterrorism success. Lt. Colonel Lou DiMarco, US Army (Retired) and a faculty member of the US Army Command and General Staff College has written, “In counterterrorism … the moral component of the fight is strategically decisive.“186 Even political realists, frankly and openly focused on achieving results consonant with national interests, have belatedly recognized that “leaders now have to be mindful of ignoring or abusing what are increasingly seen as universal values.“187 Models narrowly centered on ethical decisions that counterterrorism officials face at a tactical level, such as the one proposed in a recent RAND study that focused on questions such as achieving operational cost effectiveness and maintaining integrity in the face of competing moral values,188 have limited utility because they ignore counterterrorism’s decisive strategic level ethical issues.

Explicitly incorporating ethics into a new counterterrorism model will proceed most easily by identifying and building upon widely accepted ethical concepts that shape existing international law such as respect for human rights, law enforcement, and the Just War tradition. This approach will also improve the proposed model’s chances of subsequent integration into international and national law, policy, and practices.

Emphasizing counterterrorism’s intrinsic ethical dimension means that a model must either condemn all terrorism as immoral (the position advocated in this work) or delineate criteria for deciding when terrorism is ethically justifiable. States, including democratic states, have sometimes attempted to employ non-state terrorism in pursuit of their own interests, occasionally internally but more often externally.189 Yet, as already discussed, no cogent argument has delineated satisfactory conditions or criteria for deciding when terrorism represents an ethical strategy or tactic. Because terrorism is always immoral, a sine qua non for any counterterrorism tactic or strategy to be ethical is that it must be effective; the more comprehensive a model is, the greater the degree of counterterrorism success implementing the model is likely to achieve. In other words, the design criteria of effectiveness, comprehensiveness, and being pervasively ethical align, reinforcing one another.

The close alignment of the effectiveness and ethical criteria might suggest building a new model utilizing a consequentialist or utilitarian ethic. Although any new model is quite likely to have heterogeneous ethical elements, a strictly consequentialist or utilitarian model would open the door to well-intentioned ethical abuses by not establishing any rigid limits on ethically acceptable tactics or strategy. This potential is especially worrisome because much counterterrorism is the responsibility of dedicated, zealous officials whose commitment to public security often outweighs their commitment to individual rights and democratic values. Hence, the design criterion of a model being explicitly ethical is not redundant but crucially complements the effectiveness criterion.

Fourth, a counterterrorism model should incorporate sufficient flexibility to respond effectively, comprehensively, and ethically to terrorism regardless of a terror group’s ideology, geography, modus operandi, etc. As discussed above, terrorism is a tactic or strategy that domestic and international groups alike adopt, citing diverse ideologies to justify their actions and conducting attacks with a wide array of methods.

Paul Pillar, a former deputy director of the CIA’s Counterterrorism Center, objects to the GWOT war metaphor because “it is a war that cannot be won” and “unlike most wars, it has neither a fixed set of enemies nor the prospect of coming to closure.” He prefers the analogy of “the effort by public health authorities to control communicable diseases.” Pillar advocates attacking terrorists “through painstaking professional work, cell by cell, case by case, working closely with foreign intelligence and police services. This might not be glamorous or exciting, but it was effective, essential, pragmatic.“190

Pillar’s metaphor better describes the problem of terrorism than the challenge of counterterrorism. However, the metaphor of combatting communicable diseases does illustrate the importance of the four design criteria. The metaphor views terrorism as a plural rather than unitary problem (flexibility—the fourth design criterion), with some terror groups perhaps having little in common with other groups except for their mutual adoption of a terror strategy or tactics. The communicable diseases metaphor also highlights terrorism’s potential to become contagious, spreading in unexpected ways, and that a group’s internal operations may be tightly centralized or loosely networked. Attacking terrorists’ cells is effective (the first criterion) but not comprehensive (the second criterion), ignoring both the attacked community and the community(ies) that enable the terrorists to operate. Finally, Pillar’s metaphor offers no ethical guidance for shaping counterterrorism strategy and tactics (the third criterion).

Numerous recent counterterrorism proposals and initiatives underscore growing dissatisfaction with a warfighting approach and the disappointing results it has achieved. Yet no proposal, to date, fully satisfies all four of the design criteria.

The United States and the European Union (EU) governments have both taken steps to revise their thinking about, if not practice of, counterterrorism. In the US, official progress toward a new model has faltered. The 9/11 Commission in 2004 recommended a three-fold strategy: (1) attack terrorists and their organizations; (2) prevent the continued growth of Islamist terrorism; (3) protect against and prepare for future terrorist attacks.191 The strategy recognizes the three groups of stakeholders that are part of terrorist activity. However, the US has not fully developed nor implemented that strategy, continuing to concentrate on attacking terrorists and their organizations. Additionally, the recommendations fail to satisfy both the fourth criterion (flexibility) because of their narrow focus on Islamist terror groups and the third criterion (an explicit ethical foundation).

The EU has articulated a comprehensive ethical counterterrorism model (Prevent—Protect—Pursue—Respond, sometimes known as the 3PR model) that has yet to achieve widespread implementation across the EU or recognition elsewhere.192 The 3PR model helpfully prioritizes prevention, the pillar that most fully addresses the communities that spawn and support terrorism. The second pillar—protect—recognizes the need for an attacked or threatened community to take defensive measures but is less comprehensive than the Just Counterterrorism Model proposal (outlined below). The other two pillars—pursue and respond—emphasize taking action against terrorists. EU member states have been slow to adopt the model, and the model’s ethical underpinnings are implicit rather than explicit (the third design criterion).

Other proposed counterterrorism recommendations catalogue potentially useful counterterrorism measures but lack an integrative framework to ensure comprehensiveness (the second criterion) and an explicit ethical underpinning (the third criterion). For example, Richardson identifies six elements of counterterrorism necessary to achieve defeat a terror group: (1) Have a defensible and achievable goal; (2) Live by your principles; (3) Know your enemy; (4) Separate the terrorists from their communities; (5) Engage others in countering terrorists with you; (6) Have patience and keep your; perspective.193 Another counterterrorism expert, Robert Mandel, argues for a different six elements: (1) Information control; (2) Military deterrence; (3) Political self-determination; (4) Economic reconstruction; (5) Social justice; (6) Diplomatic respect.194 Bruce Hoffman advocates yet another counterterrorism schema: (1) Separate the enemy from its enabling constituency; (2) Identify and neutralize the enemy; (3) Create a secure environment; (4) Neutralize enemy propaganda; and (5) Build good government that eliminates the causes of terrorism.195 In spite of having considerable overlap and offering valuable recommendations for effective counterterrorism measures (the first criterion), these proposals lack both a prima facie comprehensiveness (the second criterion) and an explicit ethical foundation (the third criterion).

More narrowly focused proposals lack the breadth and flexibility (the fourth design criterion) required to shape or assess counterterrorism against a broad range of exogenous and endogenous terror groups. For example, Cronin advocates a five-part strategy for ending al Qaeda:

1. Demystify al Qaeda and clarify exactly what the terror group is

2. Understand and exploit cleavages within al Qaeda, reducing its ability to act

3. Disaggregate al Qaeda’s constituent elements

4. Highlight to al Qaeda’s putative enabling constituency the group’s mistakes, especially al Qaeda’s killing of Muslims, the very group that it aims to protect

5. Encourage a popular backlash against al Qaeda.196

Cronin’s proposal offers practical suggestions that have had demonstrable success (the first criterion), but are neither comprehensive nor explicitly ethical (the second and third design criteria).

[]C. The Just Counterterrorism Model

Political leaders, government officials, scholars and the public currently lack a model that is effective, comprehensive, ethical, and flexible for devising and assessing counterterrorism strategy and tactics. Instead, counterterrorism as currently practiced generally consists of an opportunistically selected ad hoc mixture of law enforcement, warfighting, and other actions. These do not reliably produce counterterrorism success, comprehensively address terrorism’s several dimensions, or keep counterterrorism forces and programs on the moral high ground. The lack of a model handicaps counterterrorism scholars, leaving them without an accepted framework both for assessing past practices and for conducting the analyses and debates integral to devising and then recommending improved strategies and tactics.

The Just Counterterrorism Model, introduced in this section (for an overview, cf. Figure 1) and developed in the next three chapters, is envisioned to fill that critical gap in counterterrorism theory and practice. Importantly, the proposed Just Counterterrorism Model is intended to satisfy the four design criteria enumerated in the previous section, i.e., the model aims to identify effective, comprehensive, ethical, and flexible counterterrorism strategy and tactics.

The Model’s tripartite structure of Justice for the Attacked, Justice for Terrorists, and Justice for Others ensures that the Model is comprehensive. Justice for the Attacked addresses the people whom terrorists target or attack; Justice for Terrorists concentrates on bringing terrorists and their organizations to justice; Justice for Others focuses on the community or communities that spawned or support the terrorists. Together, the three sets of Just Counterterrorism Model components provide a comprehensive framework for shaping or assessing counterterrorism strategy.

Each of the Model’s three components—Justice for the Attacked, Justice for Terrorists, and Justice for Others—has a set of ethical criteria that provide specific yet flexible guidance to delineate a contextually appropriate comprehensive counterterrorism strategy more completely and then to shape tactics by which to implement that strategy. These criteria address the problem of non-state terrorism, incorporating lessons learned from studies of how terrorism ends, while avoiding limiting presumptions about geography, ethnicity, ideology, type or scope of the threat/attack, etc. Numerous examples in the following chapters and the case studies in Chapters 4 and 6 illustrate the past effectiveness of strategies and tactics consonant with the Just Counterterrorism Model and suggest the Model’s future effectiveness in devising or assessing counterterrorism strategy and tactics (the first design criterion).

The theme of justice, which is central to the rhetoric of terrorists and to the practice of counterterrorism, provides the ethical foundation for each of the Just Counterterrorism Model’s components, ensuring the model maintains a pervasive and consistent ethical orientation. No other ethical concept is so basic and ubiquitous for both terrorism and counterterrorism. On the one hand, terrorists universally seek to justify their violence against innocent people by claiming that a terror strategy or tactics is the only way to end the egregious injustice that their enabling constituency suffers. This injustice may be primarily commutative, criminal, distributive, or a combination of those. On the other hand, defeating terrorism requires both a justly ordered society and a just response.197 The community the terrorists threaten or attack (the innocents through whom the terrorists attempt to achieve their instrumental goals of renown, revenge, and reaction) can minimize terrorist gains, potentially reducing the size of a defeat by shaping their communal response with the virtues of justice, courage, temperance, and prudence. This diminishes the incentive for future terrorist attacks because terrorists are generally rational, goal-oriented people looking for gains, not setbacks. Principles of justice delineate the conditions that warrant government officials (police, military, or other) threatening or using lethal violence to apprehend terror suspects, adjudicate the accused, and punish the convicted.

Throughout the Just Counterterrorism Model, Rawls’ concept of justice as fairness defines the word justice. Rawls’ extensive writings on justice facilitate applying his concept of justice to counterterrorism, e.g., he emphasized basic liberties (important for Justice for the Attacked community), wrote about Just War Theory (integral to Justice for Terrorists), and embraced social and economic goods (vital for Justice for Others). Rawls believed that that his concept of justice was one that all reasonable members of society would embrace because its two basic principles are part of the human moral faculty:

Rawls believed that under the veil of ignorance, everyone would agree to two central principles, principles of justice that are part of our moral faculty: (1) all members of society have equal right or access to basic liberties, and (2) the distribution of social and economic goods should be set to benefit the least advantaged members of society; this second principle allows for unequal distribution, but only if those at the bottom profit. Rawls further argued that since these principles are part of our moral faculty, not only will they percolate up from under the veil of ignorance, but they are justifiable and should be adopted by all reasonable members of society.198

Indicative of the widespread acceptance and ethical utility of Rawls’ concept of justice as fairness, scholars have applied it to numerous problems, including abortion,199 climate change,200 affirmative action,201 and balancing individual and communal claims in liberal societies.202 Rawls’ ethics “captures what’s best in the soul of our body politic: the commitment to freedom, to openness, to generosity.“203 In sum, Rawls’ concept of justice as fairness has a broad appeal, is adaptable to diverse contexts, and is conducive to the type of multi-disciplinary thinking effective counterterrorism entails.

The Justice for the Attacked component rests on a broad interpretation of Rawls’ concept of justice as fairness for individuals. Working from that interpretation, the model describes a community’s ethical response to terrorism in terms of the four cardinal virtues (courage, prudence, justice, and temperance). This methodology adheres to Rawls’ thinking, because he regarded the virtues as the moral force that binds a community together. The unpredictability of terror threats and attacks—not knowing who will be a target of what type of attack or threat from whom—suggests that this approach is appropriate for an attacked or threatened community. Chapter 3 exegetes the cardinal virtues as they pertain to counterterrorism, showing the importance of each, and explaining why a community and its members practicing the cardinal virtues is the starting point for effective, ethical, and comprehensive counterterrorism.

The three sets of Justice for Terrorists criteria (apprehension, interdiction, and adjudication, presented in Chapter 4) seek to hold terrorists accountable for their actions within a framework shaped by Rawls’ concept of justice as fairness. Consistent with research on how terrorism ends, the Just Counterterrorism Model posits that law enforcement agencies, whether national or international, take the lead—when practical—in holding terrorists responsible for their actions. When not feasible, military forces and the intelligence community should take the lead. In both cases, holding terrorists accountable entails formal adjudication to determine guilt and to punish the guilty. Justice as fairness depends upon the rule of law characterized by respect for rights, impartiality, and due process. As already stressed, counterterrorism measures that erode or evade the rule of law frequently produce a new, perhaps more serious, set of problems.

In some important respects, the proposed Just Counterterrorism Model is a hybrid model that attempts to integrate advantageous aspects of both law enforcement and warfighting counterterrorism strategies, but is also more comprehensive than is either of those strategies. Hybrid models do not enjoy universal respect. Seumas Miller, for example, regards hybrid models under which terrorists are considered both criminals and military combatants as morally objectionable because the terrorists tend “to get the worst of both worlds.“204 Miller’s opinion hinges, in large measure, upon his conflating non-state terror with other forms of violence, e.g., his use of terrorism includes attacks on military personnel and attacks by military forces on civilians intended to evoke terror.

Miller’s assessment of hybrid models underscores the potential for ethical abuse inherent in a counterterrorism model constructed using a consequentialist or utilitarian ethic. In Miller’s view, counterterrorism officials and forces would opportunistically choose whether to consider a terrorist in a particular moment a criminal or combatant. Unlike the hybrid models to which Miller objects, the Just Counterterrorism Model integrates elements of law enforcement and warfighting into a single counterterrorism paradigm, consistently treating terrorists as criminals and never as warriors. Additionally, Rawls’ understanding of justice as fairness imposes limits on morally acceptable actions when the Model requires a making utilitarian ethical decision about a counterterrorism strategy or tactics. This is especially important in decisions about possible interdictions (cf. Chapter 4B).

Terrorists do not exist in a vacuum, but always depend upon a larger community or communities for recruitment of the group’s members and essential support. A direct result of the universal moral repugnance of attacking the innocent is that a community accepts, abets, and aids terrorists only when that community believes itself the victim of egregious injustice. The Just Counterterrorism Model’s Justice for Others components (improving equality, political fairness, and distributive fairness, discussed in Chapter 5), address the need to ameliorate that injustice, real or perceived. Improving equality speaks to improving commutative justice, i.e., justice between people; improving political fairness speaks to criminal justice and distributive justice with respect to non-economic goods; improving distributive fairness speaks to the economic aspect of distributive justice.

[]Chapter 3: Justice for the Attacked

Describing the individuals or communities that terrorists attack or threaten as victims or potential victims may be convenient and certainly reflects common usage, but that terminology has significant if unintended negative implications. The term victim subtly implies the passivity and helplessness of those attacked or threatened: they are unable to do anything effectual to protect themselves before an attack, to help themselves after an attack, or to prevent terrorists from achieving their instrumental goals. The language of victim has, to some substantial if unquantifiable degree, contributed to scholars and counterterrorism experts largely ignoring the central and obligatory role an attacked or threatened community plays in effective counterterrorism.

Comprehensive, effective, and ethical counterterrorism strategies necessarily engage, preemptively if possible, the broad community from among whom the terrorists selected (or seem likely to select) their targets for four reasons. First, no counterterrorism strategy can provide an ironclad guarantee against all future terrorist attacks. There are too many targets, too many opportunities to strike at those targets, and too many possible perpetrators to make such a guarantee credible or even reasonable.205 Consequently, any potentially threatened or attacked community beneficially adopts a proactive stance.

Second, defeating terrorists requires three sets of moves. Chapter 4, Justice for Terrorists, discusses one set of those moves, which dominate counterterrorism as currently practiced. These moves are indispensable but insufficient for effective counterterrorism. They focus on symptoms while overlooking both what caused a group to adopt a terror strategy or tactics and possible ways to minimize the group’s potential lethality and a community’s vulnerability. Chapter 5, Justice for Others, explores the second set of counterterrorism moves, focused on causes and sources of support, identifying ways to sever essential lifelines between a terror group and its enabling constituency. In many cases, expanding counterterrorism to include Justice for Others is the only way to end a terror threat permanently. Otherwise, defeating a terror group may inevitably lead to the emergence of one or more new terror groups. This chapter explores the third indispensable set of counterterrorism moves, steps that an attacked or threatened community can take to reduce the lethality of future attacks and to minimize any terrorist gains from terror threats or attacks. By taking these steps, an attacked or threatened community plays a pivotal, heretofore mostly underemphasized, role in defeating terrorists by denying terrorists progress their instrumental goals.

The US’s response to Al Qaeda’s 9/11 attacks—collectively the largest terror attack ever—illustrates the dynamic of an attacked community denying terrorists progress toward their instrumental goals in reverse. Modeled on the PLO attack on the Israeli team at the 1972 Munich Olympics,206 the 9/11 attacks killed approximately 3000 people, caused perhaps $30 billion (measured in 2010 dollars) of property damage and cleanup costs, and resulted in a three-year economic loss of $190 billion.207 Although the fatalities devastated the families and friends of casualties and inflicted varying degrees of financial hardship on those who suffered property losses, from the broader perspective of the US as a whole the casualties and losses were significant but far from inherently catastrophic.

Tragically, the response of the government, media, other opinion makers, and the public magnified the 9/11 attacks into a catastrophic event. The huge negative effect on the US stock markets of the 9/11 attacks reflects the attacks’ psychological impact rather than any substantive change in US economic conditions. Deaths attributable to 9/11 and the US response to those attacks now total in the hundreds of thousands. Costs associated with the attacks and the US responses have spiraled to unbelievable sums, currently exceeding $3 trillion. Specifically, if al Qaeda had not attacked, the US would not have invaded Afghanistan or Iraq. If al Qaeda had not attacked, the US would not have occupied those states, established the Transportation Security Administration, or taken hundreds of other expensive steps to avoid future attacks. The extensive and ineffectual responses to the 9/11 attacks granted al Qaeda the hugely disproportionate victory they sought, a victory of renown and reaction that aided their campaign to establish an Islamist global society.

Internationally, the US response transformed what Muslim states regarded as an al Qaeda fiasco into an al Qaeda victory. After 9/11, most Muslim states supported the US and denounced al Qaeda. Following the invasion of Afghanistan, just a month later in October 2001, and the invasion of Iraq two years later, global Muslim attitudes turned against the United States. Muslim states regarded the invasions as disproportionate and opportunistically exploiting the 9/11 attacks to advance American foreign policy goals, especially assuring an uninterrupted flow of Arabian oil into world markets.208

Third, traditional law enforcement doctrine and practice depends upon community involvement to report crime, testify against criminals, and support police: “It often falls to ordinary citizens—family friends, neighbors, and bystanders—to lend a hand in times of crisis.“209 This dependence also applies to counterterrorism. For example, a sidewalk T-shirt vendor’s identification of Faisal Shahzad’s SUV in Shazad’s failed May 2010 New York Times Square bombing attempt was critical in preventing the bombing. Counterterrorism authorities minimize this irreplaceable assistance when they:

a. Provide false assurances of safety to people

b. Myopically focus on militarily defeating terrorists regardless of the cost in dollars, lives, or abrogated rights

c. Fail to enlist the larger community in the counterterrorism effort.

Stephen Flynn, a national security fellow at the Council on Foreign Relations, has noted that, “Coping with terrorism requires localized, open, and inclusive engagement of civil society.“210

Fourth and finally, a state by interacting with its own people can generally take more immediate and effective action in response to a terror threat or attack than it can by narrowly focusing on bringing the perpetrators to justice. Identifying a terror group’s members, determining their location in real time, and then capturing or killing them is often a multi-year undertaking. The high profile but eventual success achieved against notorious terrorists Carlos the Jackal and Osama bin Laden typify this lengthy process. Ameliorating the perceived injustices and social dynamics that enabled the terror group to obtain recruits and other essential support can require even longer-term solutions. In the meanwhile, government and community leaders have multiple opportunities to shape public opinion, formulate effective counterterrorism moves, and implement defensive measures to reduce future vulnerability. Addressing Justice for the Attacked is thus the first priority chronologically, though far from being a panacea. Although this priority may not match public expectations, governments can repeatedly call public attention to government actions, alleviating some of the pressure for rapid, dramatic responses that tend to produce minimal results and that may even magnify terrorist gains, as happened in the United States post-9/11.

Together, these four reasons—no ironclad guarantees against attack, reducing terrorist gains from attacks and threats, law enforcement’s dependence on community involvement, and government being able to take effective action quickly—justify prioritizing the response of a community whose citizenry terrorists have threatened or attacked as the first component of effective, comprehensive, and ethical counterterrorism.

In particular, Justice for the Attacked connotes a community threatened or attacked by terrorists responding with courage, prudence, justice, and temperance. Known in both the Western philosophical and Christian traditions as the cardinal virtues, these four virtues have occupied a prominent place in ethics from Plato to the present. Plato believed the cardinal virtues to be vital for shaping a community.211 Subsequently, Thomas Aquinas, building on the work of Plato and several Christian precursors, definitively re-interpreted the cardinal virtues from a Christian perspective, solidifying their place within the Western canon.212 The popular media occasionally features an article on the cardinal virtues, indicating their continued relevance for the public as well as the scholarly and Christians.213 Contemporary military ethicist James Toner employs the cardinal virtues as his paradigm for military ethics.214

Ascribing virtue to a collective, a method to which some ethicists object, is nonetheless reasonable215 and consistent with Rawls’ thinking. Notably, twentieth century virtue ethicist Alasdair MacIntyre recognized the collective dimension of virtue, observing that a “lack of justice, lack of truthfulness, lack of courage, lack of relevant intellectual virtues—these corrupt traditions, just as they do those institutions and practices which derive their life from the traditions of which they are the temporary embodiments.“216 Although Rawls regarded himself as renewing and developing Kant’s ethics and not as a virtue ethicist, his ethics reflect his belief that “We shape our social institutions; afterwards our social institutions shape us.“217

In particular, framing an attacked or threatened community’s collective response to terrorism in terms of the cardinal virtues coheres with Rawls’ understanding of virtue, right, and justice:

For once the principles of right and justice are on hand [he defines both right and justice in terms of fairness218], they may be used to define the moral virtues just as in any other theory. The virtues are sentiments, that is, related families of dispositions and propensities regulated by a higher-order desire, in this case a desire to act from the corresponding moral principles. Although justice as fairness begins by taking the persons in the original position as individuals, or more accurately as continuing strands, that is no obstacle to explicating the higher-order moral sentiments that serve to bind a community of persons together.219

This chapter, Justice for the Attacked, describes how a community’s social institutions shaped by the four cardinal virtues contribute to effective, comprehensive, and ethical counterterrorism. Each section explicates one of the cardinal virtues—courage, prudence, justice, and temperance—in terms of Rawls’ concept of justice as fairness, pointing to practical ways a community can more fully embody each virtue to deny or minimize terrorist’ victories. Taken together, a community adopting the cardinal virtues is an essential component of a comprehensive counterterrorism that is ethical and effective, helping a community move from victimization toward autonomy and justice.

[]A. Courage

The Afro-American writer James Baldwin observed that “… a civilization is not destroyed by wicked people; it is not necessary that people be wicked, but only that they be spineless.” His observation certainly applies to a community or country targeted by a terror group. Terrorists achieve their instrumental goals of revenge, renown, and reaction—the means by which they hope to achieve their ultimate goals—when they fill the targeted community with the extreme fear terror denotes.220 Consequently, preventing as large a percentage of the community as practical from succumbing to terror is essential for a just community to reduce or end a terror threat.221

Conversely, responding with disproportionate if not unrealistic fear enlarges terrorists’ gains because, as Daniel Byman reminds us, “Terrorism’s power is psychological.“222 Even though Westerners live in the most secure, safest societies ever, fear dominates their cultures.223 Excessive fear directly harms an attacked community when it undermines people’s faith in the government, erodes public morale, and the community adopts counterterrorism measures that realistic threat assessments cannot justify, i.e., in which the costs of those actions (financial, limits imposed on individual freedoms, moral compromises, etc.) significantly exceed the expected potential benefits of enhanced security.

Fear is a culturally conditioned habit.224 Instead of trying to instill courage in their communities, politicians and other elites, cognizant of the public’s latent fear of terrorism, have unwittingly contributed to terrorists’ gains by indulging those fears, even reinforcing them. This has happened through threat exaggeration, demonizing terrorists, and unrealistic demands for defensive measures to reduce the community’s vulnerability to attack to zero:

Americans and Westerners are fed a constant diet of catastrophic scenarios and scare tactics. Like the Cold War era, mainstream politicians and analysts neither challenge the dominant terrorism narrative nor educate the Western public about al-Qaeda’s self-limiting challenge—more of a security irritant than a strategic threat. The result is that the Western public, particularly Americans, has internalized an exaggerated fear of terrorism, which has become more a state of mind than an actual reality; it shapes their view of the world and themselves.225

In particular, the fear of terrorism among the US population has reached “bogeyman” proportions according to psychiatrist and terrorism expert Marc Sageman.226 By one estimate, post- 9/11 increases in US homeland security spending would have to save 11,500 lives per year to be cost effective when compared to alternative ways of expending those dollars to save lives. 227 Blum and Heymann believe that outsize fears and political overreactions engendered by terrorism harm the US’s political culture, legal system, and ethics.228

A community that controls its fears can reverse those dynamics, actually reducing terrorists’ capacity to achieve victory by instilling fear. Courage consistently trumps terror when people face life bravely, honestly acknowledging their fear of potential or real threats, concurrently adopting wise defensive measures, and confidently persevering with their quotidian lives. In sum, courage is a sine qua non for effective counterterrorism.

So, how can a community become more courageous? This section answers that question, considering both ways to cultivate courage directly and indirectly by controlling fear. Strategically, these two tasks are analogous to coping with the highly emotional Cold War threat of nuclear holocaust.229

Aristotle identified courage as the first and most important virtue. Acting courageously requires choosing a course that, in Aristotelian terms, is the contextually appropriate mean on a spectrum of behaviors ranging from cowardice to rashness.230 For example, a bomb disposal expert who flees rather than attempting to disarm a bomb that, if it explodes, is likely to kill or injure hundreds acts cowardly. Alternatively, an unarmed paraplegic with no knowledge of bombs or terrorists who intentionally confronts a suicide bomber exhibits rashness rather than courage—unless the person has some exceptional reason for believing she/he can prevent the attack, e.g., is the bomber’s beloved parent who has previously persuaded the bomber not to detonate a suicide bomb.

Aristotle conceptualized courage, in its finest manifestation, narrowly in terms of citizen-soldiers’ physical bravery on the battlefield in the face of death.231 Yet, as these passages from his Nicomachean Ethics in his dated, gender specific language emphasize, Aristotle’s concept of courage is relevant for people facing a terrorist threat or attack:

Now the brave man is as dauntless as man may be. Therefore, while he will fear even the things that are not beyond human strength, he will face them as he ought and as the rule directs, for honour’s sake; for this is the end of virtue. … The man, then, who faces and who fears the right things and from the right motive, in the right way and at the right time, and who feels confidence under the corresponding conditions, is brave; for the brave man feels and acts according to the merits of the case in whatever way the rule directs.232

First comes the courage of the citizen-soldier; for this is most like true courage. Citizen-soldiers seem to face dangers because of the penalties imposed by the laws and the reproaches they would otherwise incur, and because of the honours they win by such action; and therefore those peoples seem to be bravest among whom cowards are held in dishonour and brave men in honour.233

Responding to a terror attack or threat, in some respects, can afford ordinary citizens opportunities to display military courage, i.e., courage as citizen-soldiers in the face of an existential personal threat linked to defending their society’s values and way of life. This dynamic may explain why Bush’s declaration of the GWOT resonated well among some US politicians and citizens, people who perhaps saw themselves courageously waging an epic struggle against terrorism.

Aristotle identified a second type of courage, although he regarded it as an inferior if not specious form of courage: the courage associated with experience of certain facts.234 Most terror attacks, regardless of where they occur, kill no one and cause less than $10 million in damages; only a handful of terrorist attacks have caused damages in excess of $1 billion.235 Knowledge of such facts—facts about terrorism that keep the realities of terrorism sharply in focus—can help people resist fear in the face of terrorism. A community responding to a terror threat in a measured, rational manner (the virtue of temperance) also requires courage to recognize that life is inherently vulnerable and that terrorism, although not a problem without a solution, rarely has an immediate solution.

Ignorance of, or turning a blind eye to, danger may appear to be courage but is not.236 The person who denies the possibility of an attack in the face of repeated threats may be a fool, rash, or both. The same holds for the person who counsels a community to remain unresponsive following a terrorist attack; seldom is there reason to presume that the frustrated terrorists will not plan subsequent, more devastating attacks to provoke the desired response. Indeed, “there is no greater affront to terrorists than to be ignored. They deliberately attempt spectacular attacks in an effort to gain attention. The risk of ignoring a terrorist action, of course, is the fear that it might incite the terrorists to carry out even more devastating attacks in order to get attention.“237

Alternatively, a person or group who overreacts by demanding that a community prevent all future attacks, regardless of the financial cost or limitations on human rights that the adopted defensive measures will impose, displays ignorant cowardice. No set of preventive measures can completely safeguard any community from terrorist attack. The great paradox of George Orwell’s 1984 is that people managed to engage in anti-social behavior in spite of mind-numbingly comprehensive preventive measures.238 Not overreacting is “by far the most cost-effective counterterrorism measure imaginable.“239

To summarize, true courage is a pattern of “character in action” that serves a morally just cause.240 Terrorist threats and attacks are therefore never courageous, but inherently the acts of the cowardly (e.g., those afraid to attack the forces of injustice directly) or the rash (e.g., those eager to do what they believe is God’s work at any cost). A community exhibits true courage of character in action when it counters terror threats or attacks by persevering in its way of life and practicing the cardinal virtues instead of responding in ways that give terrorists the reaction, renown, and revenge they desire. Importantly, this understanding of courage coheres well with both a contemporary reading of Aristotle241 and a more scientific, non-Aristotelian definition of courage that equates courage not with the absence of fear but acting in spite of one’s fears.242

Denying victory to terrorists by responding to terror threats or attacks with courage rather than fear is a communal endeavor. An individual, regardless of how personally courageous s/he is, can rarely if ever stop terror from spreading after a terror group initiates its campaign. Standing together, courageous individuals can prevent fear from becoming overwhelming, perhaps even paralyzing, for the community. Philosopher Alasdair MacIntyre has written that “courage is important, not simply as a quality of individuals, but as the quality necessary to sustain a household and a community.“243 Members of a community with a deficit of courage can gain courage from the example and aid of others; the community can similarly moderate the courage of those who have a surfeit.

Courage helps individuals to be trustworthy and reliable, two essential requirements for sustaining the social capital of strong friendships and communal bonds without which a community cannot survive, much less thrive. Communities generate social capital when their members actively participate in social organizations.244 During the Cold War, the US Civil Defense organization educated communities about the possibility of nuclear attack, encouraged people to sustain some sense of control through building bomb shelters and taking other defensive measures, and implicitly fostered courage and hope in the face of almost inconceivable destruction. Enlisting individuals, private entities, and government organizations in measured responses to the terrorist threat can achieve similar results.245

Families, schools, and other social groups rightly seek to inculcate courage in children.246 However, forming character is a long-term rather than short-term project. Thus, the community’s goal for its short-term response to a terror threat or attack is to capitalize on pre-existing courageous patterns of character in action, while continuing its long-term efforts to form courageous individuals.

Emotions, including moral emotions like courage, are contagious. An American soldier, early in the Vietnam War, participated in a firefight in rural Vietnam. Suddenly, six monks began walking down the berm that formed the rice paddies. The monks walked in a line, looking straight ahead. Their pace was calm, their stride deliberate, and their demeanor serene. The monks’ path took them directly into the line of fire. Both sides ceased firing. Even after the monks had moved out of sight, nobody resumed firing. The monks’ moral courage pacified the soldiers.247 Effective counterterrorism similarly entails communicating a contagious courage instead of panic or terror.

Accordingly, public opinion leaders—politicians, government officials, the news media, celebrities, clergy, teachers, bloggers, and others—have a moral responsibility in the aftermath of a terror threat or attack to help their community complement immediate emotional reactions of fear or terror with courage. As military historian Max Boot has observed, “Terrorists do better, moreover, if they fight a democratic nation with a free press whose coverage will help to magnify their attacks while restraining the official response.“248 Therefore, “… we must, like our most successful allies, learn to manage the fears that terrorism is designed to create. The real danger from terrorist attacks is hard to predict; the level of fear has long seemed detached from reality.“249

This conclusion parallels the findings of research into the goals of mass killers, which has shown that they seek an audience. The media can help to deprive mass killers (including terrorists) of an audience by never publishing the killer’s propaganda, hiding their names and faces, not reporting biographical information, and not speculating about psychological motive(s). Police can support that effort by withholding specific details, glossing over gore, and not releasing photos/video. Journalists and public officials can cooperatively create a new script around mass killings in which they talk about victims, minimize attention focused on grieving families, decrease the volume of coverage, and tell stories about killings averted and people helped.250

The Bush administration post 9/11 expected little courage from the public, an attitude its actions reflected.251 For example, Attorney General John Ashcroft, while on an official trip to Russia in 2002, interrupted daytime TV shows in the States to broadcast an announcement of Jose Padilla’s arrest from a Russian TV studio to American viewers. Ashcroft incorrectly reported that Padilla was on his way to detonate a dirty radiological bomb in the US. Treating the arrest as a major news story created an unwarranted sense of fear that the incorrect details compounded.252 A major unintended consequence of this low expectation of American courage was, as described in the Introduction, to magnify the disastrous outcome of the 9/11 attacks. The Obama administration and polarized domestic politics have persevered in the unhelpful expectation that the American public has little courage, making it the de facto new normal. In more extreme versions of low expectations and polarized politics, the opposing party even shares blame for an attack with the terror group:

In cabinet-level meetings to chart the administration’s counterterrorism strategy, [then Secretary of Defense Robert] Gates shared his concerns that the nation’s political leadership must redefine how it thinks about and talks about another attack. ‘We’ve created an environment in which politicians are just waiting to jump on each other if there’s a failure,’ said Gates, who has served eight presidents of both parties. ‘The idea of perfect security is completely contrary to the real world. And yet we’ve got an environment in which even a failed attempt becomes the subject of criticism, so that the government is willing to throw countless dollars at this problem in order not to look like they’re slacking off.’ This is an issue, he said, that requires elected officials of both parties to, in essence, watch each other’s backs. ‘It almost has to be a bipartisan initiative in both the executive and the legislative branches to say, in effect, “We will not be afraid,”’ Gates added. ‘We will do everything humanly possible. We will not distort our values. We will not let them claim victory by changing our way of life and the way we look at the world.’253

As is common in many democratic states, current US government policies can inadvertently send mixed messages because no central organization controls policy or information dissemination. Calls for a centrally controlled information policy254 seem misguided and inappropriate in free, democratic societies. Additionally, attempts at media censorship in the internet era tend to fare poorly and generate adverse reactions when community members inevitably discover what their political leaders tried to hide.

Instead, news management that emphasizes calmness, hope, information, involvement, and other constructive responses can cultivate courage and assist it to prevail in the face of fear and terror.255 Perceptive journalists can thwart terrorists’ attempts to manipulate the news media and other electronic communication media for their own ends.256 “The noted television journalist Ted Koppel famously remarked that ‘without television, terrorism becomes rather like the philosopher’s hypothetical tree falling in the forest: no one hears it fall and therefore it has no reason for being.“257

Government offices, the media, and large institutions often have personnel skilled in news management who may appreciate the prospect of directly and significantly contributing to their community’s counterterrorism efforts. Working together, these communication professionals can promote and reinforce communal courage through good news management in at least five ways:258

(1) Encouraging calm: Terror groups rarely have the resources to launch multiple, major attacks concurrently. Anticipatory fears, for example, of imminent post-9/11 attacks of a similar magnitude on the United States or other Western states by al Qaeda were unreasonable. Public opinion leaders modeling and encouraging calm, not panic or irrational fear, would have minimized al Qaeda’s gains from 9/11 and generated more constructive, effective counterterrorism policies and programs.

(2) Repeatedly explaining how the government will respond: Good public communications require repeating one’s message frequently and consistently. That dictum especially applies following terror threats or attacks that have caused heightened emotions likely to diminish recipients’ ability to receive the message clearly. The government repeatedly explaining its intended counterterrorism response assures the community that responsible authorities are taking appropriate actions, especially when the public may have little immediate visibility of many those steps, e.g., in intelligence collection and analysis. This communicates hope, reinforces the belief that terrorism cannot permanently tear the social fabric, and may remind the public of its ability to exercise some control over its destiny. All of these factors contribute to communal courage.259 President Obama, in his Presidential Memorandum on Transparency and Open Government, issued on his first day in office, perhaps recognized this potential when he wrote, “Openness will strengthen our democracy and promote efficiency and effectiveness in Government. Transparency promotes accountability and provides information about what their Government is doing.“260

(3) Involving the public in rational discourse on the problem: This step reinforces the gains achieved by promoting calm and keeping the public informed regarding government responses. Engagement promotes courage, often short-circuiting the feelings of helplessness associated with a deficit of courage (cowardice) or an excess of it (rashness): “An invested, educated populace is essential to protect against attack.“261 Courage empowers the community by enlisting people in a counterterrorism campaign and conveying some small sense of individual responsibility and control in lieu of the feelings of utter helplessness and vulnerability so often associated with terror. Broad community involvement, in addition to government action, is critical in countering a terrorist threat:

Building societal resilience requires a bottom-up, open, and participatory process—that is, the exact inverse of the way US policymakers have approached homeland security to date. A program of resilience mandates individuals, communities, and companies to take precautions within their respective areas of control. Success is measured by the continuity or rapid restoration of important systems, infrastructure, and societal values in the face of an attack or other danger.262

(4) Inculcating hope: Extending the three preceding points, public opinion leaders will incessantly underscore that counterterrorism is far from a hopeless cause:

… there is a substantial disconnect between the dominant terrorism narrative based on perception—which portrays al-Qaeda and others who subscribe to its ideology as a strategic, existential threat—and the reality of the threat, which is significantly smaller and primarily tactical. This divide between perception and reality foments unnecessary fear … the perception many Americans and Westerners have of al-Qaeda has taken hold of the public imagination and is not likely to change anytime soon. Evidence and reality no longer matter in a world built on perception and illusion. Every plot and incident is viewed as an affirmation of al-Qaeda’s invincibility and reach…263

Terror threats or attacks rarely pose an existential threat. As stressed in Chapter 1, most terror groups end in defeat and one has never prevailed against a democratic state. Thus, public opinion leaders in free, democratic states can profitably frame the contest with terrorists as a contest of ideas.264 Winston Churchill excelled at this, immeasurably stiffening the British response to the Nazi threat in the face of the UK’s defeat on the continent and apparently overwhelming odds. “‘The American public needs to change its mind-set, as well,’ Gates argued. ‘We appear as a people to be afraid all the time,’ he said. ‘Americans in the past have always been resilient. I think this is a change for us. And I wish we could get back to where we were. We are not a fearful people.’“265

Persons targeted or injured by terrorists can easily feel alone. Countering a person’s sense of isolation can be a key step in creating hope. Public opinion leaders who emphasize that most people—regardless of national, ethnic, racial, political, or religious identity—oppose killing innocent people thus foster hope and courage by countering the victims’ feelings of standing alone against terrorism.266

Public authorities, however, should exercise caution and judicious restraint in announcing counterterrorism successes designed to foster hope. Terrorists, unlike most criminals, have political goals that publicity helps them to attain.267 Self-congratulatory announcements about victories in the “war on terror” too often have unwittingly provided terrorists propaganda material. Instead, the “most effective way to remove the glory from terrorism is to reduce the terrorists to the status of common criminals. There is no glory in being taken to prison in handcuffs. … Arrested terrorists will fade into oblivion and no longer inspire young people to join the fight against the West.“268 No terror website features photos of terrorists in handcuffs. This type of press release or photo opportunity also contributes to an attacked community’s courage (the arrest is proof of a terrorist defeat), upholds justice, and demonstrates the merit of temperate, prudential counterterrorism. Authorities can also manage press announcements in a proactive way to accelerate the fragmentation and eventual demise of a terror group. For example, not announcing the freezing of financial assets or blocking of financial flows may cause a terror group’s leaders to believe that their finance managers have misappropriated funds, something that is a frequent problem amongst terror groups and can contribute to a terror group’s implosion.269

(5) Creating anger: Anger that inspires a passion for justice is constructive; anger rooted in fear that spurs spite or demonizes the attackers is destructive, acceding to terrorists’ desire to achieve reaction, renown, or revenge. Too often, public opinion leaders have reacted to terror threats or attacks by capitulating to their community’s fears in order to gain an electoral advantage, improve readership/viewership statistics, or for other self-serving purposes. By responding in any manner that promotes fear and anger that is not rooted in a passion for justice, public opinion leaders unintentionally but directly contribute to the terrorists achieving their desired response of reaction, renown, or revenge.

For example, after 9/11 US intelligence and security officials

were aware that bin Laden and his leadership group were probably planting disinformation to distract them. They assumed that the more they closed embassies and issued alerts, the more they encouraged this disinformation campaign. Yet they could see no alternative. They had to collect as much threat information as they could, they had to assess it, and they had to act defensively when the intelligence looked credible.270

An alternative, which these government officials chose not to accept, perhaps because they believed the potential political cost was too high, was to respond with policies and programs shaped by courage and the other cardinal virtues.

Philosopher Albert Borgmann laments the demise of courage as a prevalent American virtue and attributes its wane to the receding of the frontier.271 Terror threats offer people in the twenty-first century an opportunity to reclaim a measure of individual responsibility for personal and communal safety with an attendant requirement to be courageous.

Individuals and communities can develop courage.272 Cultivating a habitual communal response of courage in the face of terrorist threats and attacks also helps a community to develop resilience, i.e., an ability to return to normal more easily and quickly because the community has a larger stock of courage upon which to draw when needed:

So when the terrorists do get through, the nation must deal with it and return to normal that day, as has been the practice in Israel and Britain. Within hours after the transit system attacks in July 2005, the London Underground was packed with commuters. The United States must emulate and have in place a robust system of rapid response and a plan for immediate recovery. America must learn to offer a shrug to terror attack that denies the effect being sought. That should be front and center in every major speech by the nation’s leadership on national security, but it is politically risky, as any president’s opponents will charge that the government is offering an implicit acceptance of inevitable attack.273

Persevering with life inflicts at least a partial defeat upon terrorists.274 Israelis persevere in living ordinary lives in the face of the unrelenting terror threat that they face.275 This may appear a surprising accomplishment in view of over 50 percent of Israelis being pessimistic about Israel’s future existence.276 However, Israeli governments also routinely enlist the citizenry in counterterrorism efforts, encouraging people to resume ordinary life quickly, to minimize disruptions, and to aid official responders:

Israel involves its people in defenses, enlisting them to look for bombs, patrol the streets, and conquer their fear by joining the fight, even if these public measures have little actual benefit. Buses resume service within hours after a bombing, even along the same route. Israelis go back to business (often literally, in the case of attacks on shops) immediately after an attack, demonstrating that life goes on.277

This strategy has increased Israeli resilience in the face of ongoing terror threats, showing the value of fostering courage for counterterrorism.

[]B. Prudence

In contrast to Aristotle who judged courage as first among the virtues, Plato taught that prudence is the chief virtue. The Greek word phronesis, which is the root of the Latin prudence, “consists of the capacity, the aptitude, for discerning the right rule, the orthos logos, in difficult situations requiring action.“278 Prudence denotes the fullness of practical wisdom, encompassing the wisdom to recognize and classify a moral challenge, to discern the moral issues involved, and to develop an appropriate response to that challenge.279 In order to exercise prudential wisdom, a person must therefore know the categories of moral challenge, the range of possible moral issues related to each, what constitutes an appropriate response, and how to develop that response. Consequently, prudence requires cognitive skills and cannot exist in isolation but only in conjunction with the other virtues, especially courage, justice, and temperance.280

A brief consideration of two issues linked to prudence—whether prudence requires an epistemological foundation and whether only rulers can exercise prudence—completes the groundwork necessary to discuss prudence as an element of an attacked community’s counterterrorism efforts. The purpose of this discussion is to present an understanding of prudence consonant with Rawls’ exposition of justice and relevant to counterterrorism rather than to present a fully nuanced summary of philosophical debates.

Some philosophers argue that prudence “needs a basis to rest on. For Plato and Aristotle there were realms of order and permanence that could serve as that foundation.“281 However, in sharp contrast both to the worldviews expressed in Platonic and Aristotelian philosophies and to the worldviews of religious fundamentalists (who turn to their particular God as the source of wisdom), many postmodernists reject the idea of a permanent, objective foundation for wisdom.

Rawls avoids the need to establish an objective basis for prudence. Instead, he defines prudence (practical reason) in terms of what is contextually reasonable, decent, and rational, deriving those three principles from his concept of justice as fairness:

… at no point are we deducing the principles of right and justice, or decency, or the principles of rationality, from a conception of practical reason in the background. Rather, we are giving content to an idea of practical reason and three of its component parts, the ideas of reasonableness, decency, and rationality. The criteria for these three normative ideas are not deduced, but enumerated and characterized in each case. Practical reason as such is simply reasoning about what to do, or reasoning about what institutions and policies are reasonable, decent, or rational, and why. There is no list of necessary and sufficient conditions for each of these three ideas, and differences of opinion are to be expected. We do conjecture, however, that, if the content of reasonableness, decency, and rationality is laid out properly, the resulting principles and standards of right and justice will hang together and will be affirmed by us on due reflection.282

Rawls, in the preceding quotation, enumerated three characteristics of prudential communities: they function in ways that are reasonable, decent, and rational. Reasonable societies “… are characterized by their willingness to offer fair terms of social cooperation among equals and by their recognition of the burdens of judgment.“283 Rawls describes a decent society as one that

… is not aggressive and engages in war only in self-defense. It has a common good idea of justice that assigns human rights to all its members; its basic structure includes a decent consultation hierarchy that protects these and other rights and ensures that all groups in society are decently represented by elected bodies in the system of consultation. Finally, there must be a sincere and not unreasonable belief on the part of judges and officials who administer the legal system that the law is indeed guided by a common good idea of justice. Laws supported merely by force are grounds for rebellion and resistance. They are routine in a slave society, but cannot belong to a decent one.284

Rational societies are communities that determine their choices using quantitative counting principles, e.g., through voting or cost-benefit analyses.285

A corollary of those characteristics is Rawls’ claim that prudence is contextual: “Extending as it does to the very execution of voluntary action—no two instances of which are strictly identical—prudence can follow no fixed and settled rules of conduct. The matters about which it deliberates are open ended; each constitutes a unique situation in which there is more than one way to obtain the desired end.“286 People exercising prudential wisdom will frequently disagree over important, substantive issues, e.g., the preferred response to the threat of a particular group of terrorists or which defensive measures they wish to adopt personally or communally. As Michael Novak states, “Universal principles need not be univocal.“287

As discussed previously, effective counterterrorism is also always contextual, requiring a strategy and tactics pertinent to the unique exigencies of each terror group. Nobody can specify a single strategy and set of tactics suitable for all counterterrorism. Consequently, the Just Counterterrorism Model’s three components and associated criteria provide a paradigm for a community to use in debating the particulars of policy and programs by which to respond to a specific terror group instead of universally applicable recommendations.

Some philosophers have sought to limit the exercise of prudence to certain roles. Aristotle, for one, argues that only rulers can develop the virtue of prudence because they alone have the opportunity to exercise practical wisdom.288 He explains: “Virtue is of two sorts, virtue of thought and virtue of character. Virtue of thought arises and grows mostly from teaching, and hence needs experience and time. Virtue of character results from habit.“289 A person develops prudence, which is a virtue of thought, by being ethically virtuous and having occasion to exercise practical wisdom:

… while the rulers and ruled share ends, rulers alone exercise phronesis, a virtue concerned with means. Rulers deliberate about and supply the means that allow all citizens to achieve those ends. Rulers, for example, set the framework that regulates public discourse, and the rest of the citizens, in talking about themselves and each other in the right ways, act virtuously within that framework. Legislators decide which aspects of the education of children are a public function and which should occur primarily within the household, and virtuous citizens then see that their children are educated in accordance with such provisions. Phronesis is knowledge of means, and the ruler supplies the means so that the citizens can act virtuously.290

Aristotle’s argument presupposes (a) that only rulers have the office and latitude to make the types of significant decisions that allow for the exercise of prudential wisdom and (b) that neither teaching nor habituation is a sufficient means for developing prudence.291

In twenty-first century democracies where people have almost universal internet access and in which terrorists seek emotional responses from the citizenry as well as the government, Aristotle’s conclusion that only leaders can develop prudence is no longer compelling. Leaders certainly have wider scope for action than do private citizens. Yet, as contemporary Aristotelian philosopher Eugene Garver has written, “Aristotle’s distinction between the ruler and ruled does not apply to the modern administrative state” and “We acquire phronesis through acting virtuously with true opinion, much as the citizen-soldier can become truly courageous.“292

Expecting every adult to exercise prudence acknowledges that each person bears some degree of responsibility for the safety of neighbors, loved ones, and him/herself. This expectation is at least minimally compatible with Aristotle’s thought, who believed that every good citizen (although a much narrower category for Aristotle that excluded all women and many others) should be able to rule.293 Importantly, expecting every adult to exercise practical wisdom coheres well both with Rawls’ description of prudence in terms of reasonableness, decency, and rationality and with his emphasis on equality of persons.

Thus, prudential individuals exercise some degree of autonomy and responsibility in choosing whether to respond courageously or fearfully to terrorist attacks and threats. These citizens must also decide which, if any, personal defensive measures they will adopt. Options for such measures range from the relatively cost free and mundane (e.g., proactively increasing situational awareness) to the potentially expensive and lifestyle inhibiting (e.g., refusing to ever ride on public transit).

Elected leaders, public officials, the media, and other key decision makers, recognizing the need for all community members to exercise prudential wisdom, should promote open, transparent government and solicit public assistance in reducing the terror threat, i.e., information about the types of moral challenge, the range of issues involved, and appropriate responses. Both steps facilitate people developing prudence.294

Conversely, government secrecy can frequently exacerbate public fears more than being open about the threat would.295 Secrecy also deprives citizens of opportunities to develop prudence. Having courage in the face of unknown or perhaps imagined dangers is more emotionally difficult than is responding wisely and courageously to reasonable, dispassionate analyses of threats. Indeed, a well-informed citizenry is itself a valuable defense against possible terrorist attacks. In spite of the US government not keeping the public abreast of many of the details of terror threats and counterterrorism measures and perhaps because of much hyperbole in describing those threats, post-9/11:

Americans in general have also been much more alert about any suspicious behavior since 9/11. People are far more likely to call law enforcement agencies with their suspicions. This creates a hostile habitat for potential terrorists in general. Law enforcement agencies have also been extremely aggressive and efficient in investigating any potential threat in the country. This has made it a difficult environment in which to operate for potential terrorists. There have been few homegrown terrorist networks in America to mobilize angry young Muslims who might have been tempted to join the fight.296

Engaging ordinary citizens in reporting signs of terrorist activities or potential threats proved an integral element of France effectively ending the threat of Algerian terrorist activities in France297 and for Israel in countering multiple terror threats.298

Because prudence and courage complement and reinforce one another, unwise or immoral defensive actions taken by, or on behalf of, fearful people can easily result in fearful people becoming the unwitting, although unwilling, allies of terrorists. Immoral, counterproductive defensive measures include dragnet interrogations, mass detention, repression, and internment. Dragnet interrogations connotes law enforcement or military personnel questioning hundreds, perhaps thousands, of people not actually suspected of possessing information or having committed criminal acts. Authorities select who to question using profiling, questioning a person solely because s/he belongs to a particular social grouping. In the post-9/11US, the FBI conducted dragnet interrogations of Arabs and Muslims that produced very little useful information.299 Mass detention targets a considerable proportion of a social grouping, such as the several hundred Muslims in the US detained for months in the year following enactment of the post-9/11 USA Patriot Act. Detainees were not allowed to contact lawyers or families nor did the government disclose detainees’ names.300 Repression aims to restrict one or more civil liberties of all members of a social grouping, e.g., male Saudis living in the US. An internment consists of apprehending, relocating, and forcibly confining an entire social grouping. Dragnet interrogations, mass detention, repression, and internment all erode democracy.301 All four policies also represent the very type of reaction that terrorists hope to achieve, reactions that people widely perceive as unjust, excessive, and that fail to address the real problem. For example, internment often concentrates terrorists and their sympathizers creating de facto terror universities in which prospective recruits receive ideological indoctrination and terrorists improve one another’s skills.302

In general, post 9/11 US counterterrorism measures reflect a deficit of prudential wisdom as contextually defined by the prudential norms of reasonable, decent, and rational. Assessing some of those measures using Rawls’ three norms of reasonable, decent, and rational will illustrate the value of Rawls’ definition of prudence, identify some of the types of moral decisions counterterrorism involves, and underscore the importance of a systematic approach to selecting steps to deter or prevent terrorism.

Many current US counterterrorism measures lack reasonableness. Illustratively, former Vice President Dick Cheney advocated a precautionary one percent rule: if even a one percent chance of someone or group harming the United States exists, then the US should take preventive action. Yale Law School professor and ethicist Stephen Carter convincingly rejects the one percent precautionary rule because the rule inevitably leads to bad choices (e.g., the US invasion of Iraq) and is “morally indefensible” since it would require nearly constant offensive action.303 Insisting that government unilaterally reduce the risk of terrorists’ threats to zero, or near zero, can also have the unintended results of unreasonably increasing government authority and inciting a dangerous political and bureaucratic “lust for power.“304

Nevertheless, with many US politicians fearful of having to accept blame for another terrorist attack, a vast US homeland security industry has burgeoned: “In 1999, there were nine companies with federal contracts in homeland security. By 2003, there were 3,512. In 2006, there were 33,890. … As one report on the homeland security industry put it, ‘Thank you, Osama bin Laden!’“305 Homeland security expenditures in the decade following 9/11 excluding the cost of the Iraq and Afghanistan wars exceeded $1 trillion.306 Experts assessing US homeland security consistently comment on the absence of major, post-9/11 attacks and then emphatically describe what they regard as wasteful, excessive spending on poorly designed and implemented programs that they believe contribute little to national defense.307

Meanwhile, in the decade following 9/11, terrorists watched and learned from the United States’ futile, costly attempt to become invulnerable to future terrorist attacks:

AQAP [al Qaeda in the Arabian Peninsula] unveiled what it called its ‘strategy of a thousand cuts,’ which will ‘bleed the enemy to death’; the goal, said the group’s head of foreign operations, was to foment fear among Westerners, forcing them to invest huge amounts in new security procedures. Spending a few thousand to make the West spend billions was ‘such a good bargain.‘308

Strikingly, AQAP’s “strategy of a thousand cuts” aims to defeat the West by depleting its financial resources through fear-driven demands for new security procedures.

Unlike criminal investigations and prosecutions that occur after a crime has occurred, counterterrorism officials implement defensive measures, including many intelligence gathering activities, to prevent future terror attacks. Efforts to prevent future attacks raise questions of whether different legal standards should exist for determining methods permitted in gathering evidence for gathering intelligence intended to prevent attacks than in criminal prosecutions and about allowable, especially electronic, methods.

Former Assistant US District Attorney Andrew McCarthy argues in favor of a distinction between criminal investigations and defensive measures intended to prevent terror attacks:

Probable cause judicial warrants are required in criminal investigations where the police have a veritable monopoly on the use of force, there is no strategic threat to the nation, and investigators are seeking evidence of a completed or ongoing crime from Americans presumed innocent. They are a poor fit when our country is threatened by rogue nations and foreign terror networks, the government is seeking not evidence but intelligence, and the object is not to prove past crimes but to prevent future acts of aggression and terrorism. When the government has ‘probable cause,’ it already knows someone is potentially dangerous; the task in confronting secretive, transnational terror networks that embed operatives to roam among us is to figure out who may be dangerous.309

Rawls contends that prudence necessitates reasonable judgments, i.e., “fair terms of social cooperation among equals and by their recognition of the burdens of judgment.“310 Setting different standards for criminal prosecutions and intelligence gathering to prevent terrorism violates that standard by opening the door to fishing expeditions, the police harassing people or groups they dislike, widespread divisive stereotyping, and other abuses. Terrorist acts, even those an internationally networked organization commits with the aid of state sponsors, are criminal activities. A just and free society that ceases to respect individual rights and erodes the rule of law in pursuit of security becomes less just and less free.

Attempting to minimize the risk of all terrorist attacks by chasing an illusory invulnerability is unreasonable because it is both ineffective and cedes strategic advantage to terrorists by pandering to public fears instead of encouraging hope. Excessive, morally unjustifiable counterterrorism measures have arguably resulted in a greater threat to the lives, physical well-being, and security of citizens in several countries by unjustly increasing the risk of false imprisonment, torture, and other abuses.311 Chasing the chimera of invulnerability to terror is also financially immoral:

Risk reduction measures that produce little or no net benefit to society or produce it at a very high cost cannot be justified on rational life-safety and economic ground—they are not only irresponsible but also, essentially, immoral. When we spend resources on regulations that save lives at a high cost, we forgo the opportunity to spend those same resources on regulations and processes that can save more lives at the same cost or even at a lower one. Homeland security expenditures invested in a wide range of more cost-effective risk reduction programs like flood protection, vaccination and screening, vehicle and road safety, health care, and occupational health and safety would probably result in far more significant benefits to society.312

Many current US counterterrorism measures lack decency, the second of Rawls’ three norms of prudence. In part, the problem results from the lack of public discourse about the tradeoffs between enhanced security and values such as freedom and privacy; in part the problem results from technology changing at a faster pace than that at which the law changes.313 Recent technological advances have enabled the warrantless monitoring of phone conversations, e-mail, and other forms of electronic communication, and court ordered collection of telephone metadata (e.g., on all Verizon customers314) that certainly raise red flags about the government systematically invading the privacy of millions of innocent people. Cases currently in the federal courts allege these practices violate individual rights guaranteed by the US Constitution. Counterterrorism officials have repeatedly asserted that metadata analysis has prevented terrorist attacks without providing corroborating details, casting substantial doubt on those claims.

The US government also issued nearly 200,000 National Security Letters (NSLs) between 2003 and 2006.315 An NSL is a form of administrative subpoena, not subject to judicial review, for obtaining records from third parties such as hotels, banks, and phone companies. A Congressionally directed report compiled the Attorney General’s Inspector General on NSLs that the Federal Bureau of Investigation (FBI) issued to obtain electronic data on US citizens from 2001-2007 concluded that the FBI had poorly tracked and therefore inaccurately described its reliance on the NSLs. Furthermore, once the FBI obtained information, the data remained available in its databases, usable by other agents for various purposes. The report, contrary to unsupported assertions by Vice President Cheney, found no evidence that this data mining contributed to disrupting terror plots or to the arrest or conviction of any terrorist.316

Prudential wisdom guides a community in deciding what level of vulnerability it is willing to accept in order to maintain what measure of privacy and which freedoms. Alternatively, expressed in the opposite order, prudential wisdom helps a community determine the level of security it seeks at what cost in personal privacy, human dignity, and freedom, a tradeoff Rawls recognized as capable of justifying imposing limits on liberty.317 Life in George Orwell’s fictional big brother society, depicted in his novel, 1984, may offer the promise, or at least the illusion, of security, but does so at too great a price for most people. US Supreme Court Justice Ruth Bader Ginsburg has said, “On important issues, like the balance between liberty and security, if the public doesn’t care, then the security side is going to overweight the other.“318

At a minimum, governments should afford individuals—absent court-approved specific exceptions essential for effective law enforcement and counterterrorism—the opportunity to learn what information the government holds on them, to know how that information was collected, to challenge excessive collection, and to correct information that is factually incorrect. Excessive secrecy can undermine operational effectiveness by inhibiting information sharing among government agencies and activities, mask government incompetence, and hide government corruption.319 Excessive secrecy and the lack of judicial oversight also violate Rawls’ norm of decency as an essential element of a community’s exercise of prudential wisdom.

For example, the US Transportation Security Administration’s (TSA) repeated, highly publicized failures to detect contraband when screening airline passengers and luggage suggest the possibility that this multi-billion dollar system provides a comforting illusion of security more than it does actual security.320 In 2012, former TSA Administrator Kip Hawley highlighted both the importance of involving the public and of adopting screening measures that actually reduce the threat of attack:

More than a decade after 9/11, it is a national embarrassment that our airport security system remains so hopelessly bureaucratic and disconnected from the people whom it is meant to protect. Preventing terrorist attacks on air travel demands flexibility and the constant reassessment of threats. It also demands strong public support, which the current system has plainly failed to achieve.

The crux of the problem, as I learned in my years at the helm, is our wrongheaded approach to risk. In attempting to eliminate all risk from flying, we have made air travel an unending nightmare for US passengers and visitors from overseas, while at the same time creating a security system that is brittle where it needs to be supple.321

Hawley obviously recognizes that the US can reduce but not eliminate the terrorist threat, that effective counterterrorism demands contextually appropriate prudential wisdom respecting passengers’ dignity and freedoms (Rawls’ prudential norm of decency), and that most passengers are allies, not foes, in defeating terrorists.

Many US post-9/11 counterterrorism measures lack rationality, the third of Rawls’ three norms of prudence. The baggage screening implemented by the New York City Police Department for subway travelers following the Madrid bombings in 2004 and attempted London tube bombings in 2005 graphically illustrates the shortcomings of many counterterrorism defensive measures. Police searched thousands, maybe tens of thousands, of purses, briefcases, backpacks, and other items subway passengers were carrying. However, the searches were voluntary. People who declined the search could still travel on the subway with the items they were carrying. Most people complied, but the voluntary nature of the search suggests its potential ineffectiveness. That New York had no subway bombings during this period is more likely due to the absence of a real threat than to this haphazard, permissive screening.322 The policy was irrational, wasting limited police time on an obviously ineffectual tactic because a terrorist bomber could simply refuse to allow the search, proceed to board the subway, and then detonate the bomb as planned.

Prudential living requires implementing morally acceptable defensive measures. Prudential communities do this reasonably and rationally (two of Rawls’ components of prudence) by adopting contextually appropriate counterterrorism measures that appear likely to be effective and are congruent with the community’s values (i.e., Rawls’ principle of decency). A community that delegates choices about its defensive measures to a single official unwisely entrusts its security to that official’s knowledge, judgment, and integrity. Unfortunately, quantifying a defensive measure’s probable future effectiveness is usually impossible. Details about the timing, nature, location, and scope of future threats are generally unknown. Additionally, defensive measures may achieve some visible successes (e.g., preventing an armed shoe bomber from boarding a plane), but nobody can ascertain the number of potential attacks terrorists unilaterally cancelled during the planning phase because they supposed the defensive measures were impenetrable at a reasonable cost. Assessing whether a defensive measure is congruent with a community’s values (e.g., a limitation imposed on personal freedom, rights, and privacy) also involves subjective judgments. Consequently, prudential communities are most likely to adopt reasonable, decent, and rational defensive measures if they make and subsequently review those decisions legislatively (this can be costly and time consuming) or in conjunction with mandatory judicial oversight of responsible offices and officials.

Political scientist John Mueller and engineer Mark G. Stewart in their groundbreaking work Terror, Security, and Money: Balancing the Risks, Benefits, and Costs of Homeland Security outline a constructive method for prudentially choosing defensive measures. Their method begins with assessing the risks (the threats that exist), then deciding how much risk is acceptable, and finally evaluating whether the proposed defensive measure(s) are cost-effective.323 Governments and businesses routinely rely on this methodology to decide how to manage risk and to determine acceptable levels of vulnerability in fields as varied as nuclear power, aviation safety, manufacturing, and environmental protection. The final step in Mueller and Stewart’s process—evaluating a measure’s cost-effectiveness—employs feedback to provide continuing opportunities to make improvements where warranted and to discard measures that prove less effective than projected. Post hoc evaluation appropriately includes assessing whether the measure compromised a community’s values excessively or unnecessarily. Evaluating cost-effectiveness also coheres with Rawls’ preference for defining rational in quantifiable ways. In comparison to the current ad hoc selection of defensive counterterrorism measures, measures implemented using Mueller and Stewart’s method are more likely to cohere with Rawls’ prudential norms of contextually appropriate reasonableness, decency, and rationality.

Mueller and Stewart calculate that the global odds of terrorists killing a given individual in a year exceed one in 14,000,000. Apart from war zones, the global risk of dying in a natural disaster is at least twice the risk of being killed by a terrorist; a person is a thousand times more likely to die accidently than to be killed by a terrorist. Mueller and Stewart also report that Muslim extremists have been responsible for only one fiftieth of one percent of US homicides since 9/11. They conclude that the threat from terrorists falls far short of the threshold for requiring business or government to reduce other types of risk:

Established regulatory practices in several developed countries suggest, then, that risks are deemed unacceptable if the annual fatality risk is higher than 1 in 10,000 or perhaps higher than 1 in 100,000. Risks are deemed acceptable if the annual fatality risk is lower than 1 in 700,000 or perhaps 1 in 1 million or one in 2 million. Between these two ranges is an area that might be considered tolerable risk.324

In other words, “applying conventional standards, terrorism presents a threat to human life outside of war zones that is acceptable, and efforts, particularly expensive ones, to further reduce its likelihood or consequences are scarcely justified.“325

Illustratively, Mueller and Stewart apply their terrorism risk assessment and counterterrorism cost-benefit analysis to aviation security, a procedure that the EU also advocates.326 Mueller and Stewart judge that hardening airplane cockpit doors to prevent unauthorized intrusion is cost effective (about $50,000 per door); air marshals (annual cost of $1.17 billion with no terror related arrests) and TSA full-body scanners (annual cost $1.2 billion) are not. Most importantly, Mueller and Stewart recognize that a new paradigm exists. Passengers and aircrew will no longer remain passive during an airline hijacking attempt, e.g., subduing a putative shoe bomber in 2001 and underwear bomber in 2009.327 The most poignant indicator that officials have lacked prudence implementing aviation security measures is that airport delays and added airline ticket costs from increased security measures may cause as many as 500 additional road fatalities per year among people who now choose to travel by the riskier option of driving instead of flying.

Layering defensive measures can substantially reduce risk. Layering can achieve significant results even when relying on measures that, if taken individually, would be only marginally effective. For example, the US has not imposed significant restrictions on international travel by its citizens or by people wanting to visit the US. Instead, the US has sought to keep terrorists out of the country by implementing a layered set of visible defensive measures that prevent a small number of high-risk individuals from flying aboard US carriers or to the US, enhanced screening of people desiring entry (including biometrics), and improved passport procedures.328 These measures have made it difficult, but not impossible, for a terrorist to enter the US, reflecting an effective counterterrorism tactic that is reasonable (a putative attacker could not easily gain entry), decent (the policies are consistent with communal values), and rational (the potential benefit of keeping terrorists out exceeds the tactics’ various costs).

Exercising prudential counterterrorism can defeat a terror strategy by rationally accepting some risks, implementing reasonable measures of demonstrable efficacy to reduce other risks, and persistently adhering to the community’s values (decency). In other words, counterterrorism, as Mueller and Stewart advocate, should utilize the same type of risk assessment and management tools that organizations apply to other hazards, an approach that coheres with Rawls’ definition of prudence as contextually determined reasonable, decent, and rational actions.

[]C. Justice

Rawls identified justice as “the first virtue of social institutions, as truth is of systems of thought.“329 The popularity of detective stories characterized by plots in which the sleuth eventually but inevitably brings the murderer to justice echoes Rawls’ opinion that justice is central to a civilized community and its institutions. Communities attacked or threatened by terrorists cultivate the virtue of justice as an essential element of effective, ethical counterterrorism.

Compared to the virtues of courage and prudence, justice is frustratingly elusive to define. Intuitively, people tend to think they know what is just. Yet if asked to define justice, few people can respond with a cogent definition. Instead, they usually struggle, frequently settling upon a phrase that includes fairness. When pressed, many people cannot articulate an understanding of either justice or fairness that they find personally satisfying. The frequent employment of fairness in these ad hoc definitional attempts is unsurprising since psychological research indicates that people seem to have a universal sense of distributive fairness.330 The following taxonomy of definitions of fairness, compiled by George Lakoff, a University of California Berkeley professor of Cognitive Science and Linguistics, shows some of the multiple, partially overlapping, meanings of justice and fairness.331

Prominent virtue ethicists have similarly struggled to define justice. Aristotle maintained, “Justice is complete virtue toward another person” and is the only virtue of which it is impossible to have an excess.332 Yet Aristotle’s writings do not include a succinct, clear definition of justice. Aquinas tried to finesse defining justice. For when he inquires in Question 58, Article 1, of the Summa Theologiae II-II, “what is justice?” and ponders how “justice is fittingly defined,” he answers in circular fashion that justice is “rendering to each his right… A man is said to be just because he respects the rights [ius] of others.“333 Contemporary virtue ethicist Alasdair MacIntyre submits that justice lies between doing injustice and suffering injustice,334 shifting the definitional burden from justice to injustice without adding significant definitional clarity or insight.

However, Aquinas, extending Aristotle’s thinking, does suggest a constructive approach:

Justice as equality has entered deep into the thought and art of the West: justice is a blindfolded woman holding a balanced pair of scales. Aquinas says in one place that ‘justice by its name implies equality’ (Summa Theologiae II-II, q. 58, art. 2, resp.). Later he makes the same point a bit more elaborately: ‘even as the object of justice is something equal in external things, so too the object of injustice is something unequal’ (q. 59, art. 2, resp.). Aquinas’s formula comes, of course, from Aristotle’s famous discussion of justice in the Nicomachean Ethics: ‘The just is equal, as all men suppose it to be, even apart from argument’ (1131a 13).335

In other words, some principle of fairness or equality undergirds and informs the virtue of justice, the latter connoting a predisposition or habit to act justly.

Once again, Rawls’ concept of justice as fairness provides vital assistance for defining the cardinal virtues. His concept of justice as fairness rests on two principles:

1. Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all; and

2. Social and economic inequalities are to satisfy two conditions: first, they are to be attached to offices and positions open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the least-advantaged members of society.336

The first principle, which he labels the principle of greatest equal liberty, requires that a person think and act as if in the original position (at the beginning) and with a veil of ignorance (not knowing which role s/he will eventually fill or what personality, skills, or abilities s/he will have). Admittedly, these requirements are also a weakness of Rawls’ argument. Nobody, not even a person engaging in a hypothetical thought experiment, has sufficient objectivity to think effectively and unbiasedly as if in the original position and with a veil of ignorance.337 However, Rawls recognizes that democratic states have preempted, in some substantial measure, the need to start always from the beginning. The rule of law in these states generally seeks to establish the basic rights and liberties for all:

political liberty (right to vote and to hold public office) and freedom of speech and assembly; liberty of conscience and freedom of thought; freedom of the person, which includes freedom from psychological oppression and physical assault and dismemberment (integrity of the person); the right to hold personal property and freedom from arbitrary arrest and seizure as defined by the concept of the rule of law. These liberties are to be equal by the first principle.338

Only when the rule of law significantly fails to uphold greatest equal liberty for all does a person need to think and act as if in the original position with vision obscured by the veil of ignorance. Just counterterrorism depends upon communal rather than individual virtue, which warrants substituting an imperfect communal embodiment of justice for individual judgments. As virtue ethicist Eugene Garver has written, “Justice is the triumph of civic over personal identity, especially in large societies.“339

Rawls applies his second principle, the difference principle, to five categories of primary goods (what free and equal persons need as citizens): basic rights and liberties; freedom of movement and free choice of occupation; powers and prerogatives of offices and positions of authority and responsibility; income and wealth; social bases of self-respect.340 The differences in the wealth, status, rewards, etc. that people enjoy should be in proportion to individual effort expended and innate and developed abilities, skills, and knowledge among persons who have experienced approximately equal opportunity.

Some philosophers critique Rawls, arguing that he derived his concept of justice as fairness from natural rights rather than the concept being foundational for justifying those liberties.341 This criticism, regardless of its merit, is irrelevant to the present project of developing a comprehensive, effective, and ethical counterterrorism paradigm. Both rights and justice are essential. Justice, importantly, is the communal virtue that impels and shapes a community’s ethical response to terrorism. Regardless of whether justice is foundational or derivative, justice mandates a respect for rights and liberties.342

Another criticism of Rawls is that he sets an impossibly high standard for justice. No state’s rule of law will ever perfectly cohere with his two principles of justice. For example, distributions of income, wealth, respect, and power appear universally skewed toward injustice. However, the concern here is primarily for justice with respect to counterterrorism. States can, and sometimes do, robustly—though still imperfectly—meet the normative standards of justice as it pertains to a just community prudentially engaged in just counterterrorism. Such states, for example, typically express roughly equal concern for the security against terrorist attack of all of its citizens, regardless of their differences in race, religion, gender, and, to a lesser though still substantial degree, in wealth and social position.

In response to a terror attack or threat, a community that conceptualizes its understanding of the virtue of justice in terms of Rawls’ idea of justice as fairness will manifest that virtue through its counterterrorism efforts in four principal ways.

First, the community will persist in its efforts to be just. As the critique of Rawls’ conception of justice recognized, a community can imperfectly or incompletely achieve justice and survive. Cultural concerns such as patriotism inevitably color a community’s decisions. No community’s laws and customs accord with perfect fairness, however defined. Nevertheless, counterterrorism that aims to be ethical, that achieves major strides in that direction, but that falls short of ethical perfection can still be effective. Communities, in other words, do not face a dichotomous choice: either cohere in every respect to a set of ethical ideals or adopt a counterterrorism paradigm rooted in political realism, i.e., adopt counterterrorism strategies and tactics based only upon their perceived advantages and expediency, ignoring all ethical considerations. Instead, a spectrum of counterterrorism options exists, ethical in varying degrees. Defining justice in Rawlsian terms produces a practical rather than utopian ethic. This practical ethic provides heuristics useful for shaping both counterterrorism strategy (policy) and tactics (programs); the ethic also encourages the community to become more just over time.

Aristotle recognized that a state’s survival is contingent upon its citizens sharing a common understanding of justice.343 Over time, levels of a state’s shared understanding of justice can vary substantially. For example, the US is certainly less concerned with justice as distributive fairness in the early twenty-first century than when Rawls wrote during the last quarter of the twentieth century,344 a shift congruent with the decline in social capital that Putnam in Bowling Alone so thoroughly documented. The fluid nature of a state’s shared understanding of justice warns against the attractions of apparently expedient if unjust counterterrorism measures, for over time unjust measures may well corrode, perhaps even destroy, a state’s essential cohesion.

The second way in which conceptualizing justice as fairness shapes an effective, ethical counterterrorism model is calling an attacked or threatened community to respond to terror groups and terrorism by embodying the political virtue of justice in its rule of law. Rule of law connotes the laws, regulations, institutions, etc., that structure a community and, in this context, a community’s internal and external responses to terror groups and terrorism. At a minimum, the rule of law requires a government monopoly (or near monopoly) on the coercive use of force, a written law code, honest and fair courts, lawyers, good transparency, and an effective, trustworthy constabulary. Criminal justice requires that a community respect rights and uphold the rule of law with impartiality and due process, all essential elements of Justice for Terrorists (cf. Chapter 4).

A community that allows fear or security concerns to trump the rule of law quickly becomes self-defeating. President Eisenhower identified this dynamic when he spoke out in 1954 against McCarthyism: “In opposing Communism, we are defeating ourselves if we use methods that do not conform to the American sense of justice.“345 Counterterrorism that pushes justice aside in the name of national security rather than any harm, per se, that terrorists can do directly constitutes the real threat to national security:

Only Americans have the power to destroy American civilization. America is a nation defined as much by its national mentality as by its borders. In this regard, decisions made by the American public and its elected leaders will advance or hinder the country. For all its technical prowess and good intentions, America can be its own worst enemy, as the largest threats to US security stem from overreaction to terrorist provocations. Terrorism—even WMD [weapons of mass destruction] enabled terrorism—will not cause the systemic destruction of American society. Extremists can blow up buildings, crash civilian airplanes, and kill scores of people, but they will not cause the downfall of a country of some 310 million citizens. It is, instead, the reactions to violent provocations that will undermine the American system of government, social structures, and way of life.346

Illustrative of counterterrorism pushing justice aside, the 2011 and 2012 National Defense Authorization Acts signed into law by President Obama authorize the indefinite detention of US citizens without charges in cases involving terrorism, abrogating Constitutional guarantees of habeas corpus, speedy trials, and due process.347 These laws may reduce the threat of harm by terrorists (an unproven assertion), but these laws certainly diminish the rights and freedoms US citizens have historically enjoyed.

Justice not only requires that a state uphold the rule of law internally, but also that the rule of law—or, in its absence, a sense of justice—shape counterterrorism actions the state takes beyond its own borders. Failing to act with justice inflames the passions of the communities that spawn and support terror groups. For example, acting in accord with perceived national interest, the United States has often sought to protect the short-term flow of oil rather than to promote justice through the rule of law for people oppressed by Muslim autocrats:

For the last sixty years, US foreign policy has, for the most part, sacrificed the rule of law and human rights at the altar of stability and security, narrowly defined. The fear of disruption of the oil flow and increased financial costs has blinded American officials and caused them to support local autocrats as guardians of the status quo. With very few exceptions, the United States has not taken the risk of supporting progressive and democratic voices and has backed oppressive Muslim rulers who frequently violate the human rights of their citizens.348

These policies have had the cumulative effect of undermining the credibility of American moral leadership, made US global dominance less tolerable in many parts of the world, and increased the incentive for other states to flout international laws and rules.349 Consequently, these policies constitute a bad bargain: the US has exchanged short-term economic gains for long-term security losses.

That bargain is unnecessary. Adhering to the rule of law actually promotes security and effective counterterrorism, according to legal scholars Blum and Heymann:

It is for the most part a fallacy—although an oft-repeated one—that adherence to the rule of law and individual rights necessarily comes at the expense of security needs. A commitment to certain liberal-democratic traditions is part of our security. Moreover, experience time and again has shown that the most aggressive and hotly contested means (such as torture, detention without protections, or overwhelming firepower), some of which required a departure from preexisting legal understandings, may backfire and actually undermine our security.350

Thomas Marks, in his analysis of the Sri Lanka’s counterterrorism efforts against the Tamil Tigers, similarly argues that upholding the rule of law is the first and most basic step in effective counterterrorism.351

In rare national emergencies, a community may believe that it has to compromise its rule of law in order to survive.352 US Presidents Abraham Lincoln, Franklin Roosevelt, and George W. Bush each believed that the US faced such an emergency. During the US Civil War, Lincoln could have legally imposed military law instead of unconstitutionally suspending habeas corpus, which is an action that Article I, Section 9.2 of the Constitution reserves for Congress in times of emergency.353 Irrational fears and racism, with no basis in fact, hugely distorted the negligible national security threat posed by Japanese-Americans during World War II.354 The internment of loyal citizens, which Roosevelt directed by Executive Order, violated their rights without significantly improving national security. President George W. Bush’s Executive Order 13224 of September 23, 2001, imposed an economic quarantine on a long list of US based charities without any judicial oversight. Bush’s justification for dispensing with due process hinged upon his contention that the United States was at war with a foreign entity, an unfortunate upshot of defining counterterrorism in terms of waging war. In the absence of a fair process, separating false from true accusations is impossible, creating a real potential for unjust detention of US citizens and the unjust seizure of their property. Indeed, many of the organizations initially identified as financing terrorist activities were later shown to have no connection to terror groups.

In order to act contrary to the rule of law, a community should face a threat that is both immediate and existential. Stipulating the necessity of an immediate existential threat parallels the conditions that Walzer delineated for supreme emergencies, those times when a state may justifiably ignore the rules of war.355 Because a legislative body can rarely act with the requisite speed in a real emergency, democratic states, like other forms of government, can deal with unforeseen emergencies in one of two ways. A state can explicitly authorize certain personnel to take necessary but unauthorized defensive measures without prior authorization (the Israeli model). Alternatively, as Thomas Jefferson proposed, the state’s chief executive can authorize necessary actions, being politically accountable to voters through the electoral process and to the legislative body through the impeachment process.356

Terrorism emergencies that justify suspending the rule of law are few in number and likely to be of limited scope. Terror attacks, even on the scale of 9/11 or the highly hypothetical detonation of a nuclear weapon, do not constitute an existential threat for the attacked community. Detonation of a nuclear weapon would obviously necessitate immediate, localized steps to deal with loss of life, damage, radiation, etc. But, except perhaps for a state the physical size of Liechtenstein or Monaco, one nuclear explosion cannot destroy a state.357 Furthermore, non-state terrorists, unlike nuclear-armed states, will not have a WMD arsenal with which to launch multiple attacks. Responses that broadly suspend or circumvent the rule of law would unwisely magnify whatever results the attackers initially achieved. Such inadvisable responses are tantamount to declaring that the attack and its perpetrators have successfully threatened the state’s survival. Effective counterterrorism combines temperance with competent police work (Justice for Terrorists) that adheres to high ethical standards in observing the rule of law.358 A terror group that obtains a nuclear weapon also may choose not to detonate it: repeated threats to explode it might achieve multiple results of greater magnitude than would instrumental gains from a one-time detonation.

The United States has occasionally failed to act with justice towards its citizens at times when there was not an alleged existential threat from terrorism. An early example of this occurred in 1996, when President Clinton, in the absence of any legal proceeding, branded an American citizen, Muhammad Salah, “a specially designated terrorist,” believing that Salah was a Hamas supporter. The declaration made it a crime for any US citizen to engage in any economic transaction with Salah, from selling him a sandwich to employing him. The Obama administration has similarly prioritized national security over liberty, continuing warrantless electronic surveillance of Americans begun by the Bush administration, supporting renewal of the USA Patriot Act without major changes, and initiating major expansions of no-fly lists and airport passenger screenings.359 Susan Herman, a respected civil liberties lawyer, warns, “… secrecy, lack of due process, and lack of accountability are a deadly combination, breeding inaccuracy as well as abuse.“360

International terrorism has one unique aspect. Non-state terror groups, such as al Qaeda, sometimes operate from a state in which the rule of law does not prevail or the government refuses to honor its international obligations, e.g., allowing its residents to conduct attacks on foreign states or not extraditing to another state persons accused of committing major crimes there. Permitting terror groups to operate unimpeded and indefinitely from such states tacitly declares those states to be terrorist safe havens. States, like the post-9/11 United States, that face this problem should seek to rely upon the rule of law, domestically and internationally, as much as possible. However, when terrorists who have attacked or threatened a state operate from a place in which the rule of law does not prevail, and in the absence of effectual international institutions and alliances, then a state, if it can with reasonable expectations of success and costs, should respond. Norms that shape this response comprise the Interdiction criterion of Justice for Terrorists, discussed in the following chapter. Allowing terrorists to operate indefinitely and with impunity is neither prudent nor just. The US has sought to justify its program of targeted killings by drones (discussed below in the context of interdictions) on this basis.

The third way in which conceptualizing justice as fairness shapes effective, ethical counterterrorism is when an attacked or threatened community acts justly by promoting justice within, among, and for the communities that spawn terror groups, support them, and provide them with recruits. This aspect of counterterrorism, the Just Counterterrorism Model’s Justice for Others component, attacks the roots of the problems and is essential for developing a comprehensive counterterrorism strategy. This wider concern coheres well with Rawls’ concept of justice. He identified three levels to which justice as fairness applies: the local (institutions and associations), the domestic (a state), and the global (international law).361 Additionally, supporting justice for other states, rather than narrowly focusing on national security by seeking to make others afraid to attack, reinforces a community’s own practice of the virtues:

The reason a [state] that seeks to be just must abhor being hated and feared is not very different. To hate and fear are evil and damaging to our inner life, but being hated and feared are still more destructive of our higher impulses and potentialities. Nothing corrupts our soul more surely and more subtly than the consciousness of others who fear and hate us. Such is our human nature that we cannot possess power that others dread without becoming like the image of their fear and hate. To possess dread power does not corrupt us overnight; our features may remain benign for years. But inevitably the awareness that others tremble or grow enraged at sight of us poisons the mind and makes us, individuals or nations, in the end into aggressive pariahs, distrustful, capricious, and empty.362

Fourth, justice as fairness means compensating those injured by terrorist activities. Insurance companies, if they are among the few that offer insurance against terror attacks, generally charge rates that few people, organizations, or businesses can afford. Thus, most individuals and businesses in the absence of compensation must bear unaided the full cost of damages from an immoral terrorist attack that they have little reason to anticipate. Assurance of compensation in case of losses from terrorism will help in constraining political pressures for a state to adopt non-prudential defensive measures, such as adhering to Cheney’s one percent rule. Furthermore, compensating those injured or who have suffered loss is less expensive for the state than is the cost of attempting to protect against every possible terror attack. Compensation can reduce political pressures from the injured and their sympathizers for the state to take dramatic, immediate action against the alleged perpetrators, i.e., compensation can increase the likelihood of a temperate response. Public pressure for dramatic, immediate responses to terror attacks have repeatedly led to Israeli counterterrorism missteps as well as contributed to the ill-advised US decisions to invade and occupy Afghanistan and Iraq.

To summarize, justice as fairness informs the attacked community’s communal virtue of justice in four significant ways:

1. An attacked community must persevere in seeking to be just but need not achieve perfect justice in order to survive

2. An attacked community’s response to terrorists should be shaped by justice

3. An attacked community seeking to reduce future threats will promote justice for the terror group’s intended constituency

4. A just community, when attacked by terrorists, compensates those the attack harms.

The virtue of justice is so pervasive and definitive for effective, ethical counterterrorism—for the attacked community, the terrorists and their organization, and the community that spawned the terrorists—that the proposed counterterrorism model is appropriately labeled the Just Counterterrorism Model.

[]D. Temperance

Aristotle defined temperance as the mean between insensibility (a deficiency of pleasure) and self-indulgence (an excess of pleasure). He considered the virtue of temperance pertinent only to bodily pleasures associated with sensation and touch.363 Aquinas broadened Aristotle’s definition, identifying humility as an aspect of temperance. Excessive humility or self-abnegation denigrates one’s own worth and dignity; excessive self-indulgence denigrates the worth and dignity of others.364 Military ethicist James Toner, in his proposal for a military ethic defined by the cardinal virtues, interprets temperance as the virtuous mean for all forms of pleasure, physical or otherwise.365

Toner’s interpretation is helpful for considering temperance as a political rather than individual virtue. A society can be excessively hedonistic. The Egyptian Islamist Sayyid Qutb, whose writings influentially shaped Osama bin Laden’s ideas, declared the United States excessively self-indulgent after visiting America in the late 1940s.366 Qutb believed the US obsessed with sex, intoxicated with alcohol, and overly materialistic. Alternatively, a society can have a deficiency of pleasure, a charge sometimes leveled against ancient Sparta that still echoes in the adjectival simile Spartan-like. Those two examples, even if debatable or false in their particulars, illustrate the possibility of characterizing an entire community with respect to the virtue of temperance. Indeed, contemporary Aristotelian philosopher Eugene Garver contends that temperance becomes a virtue only through a political interpretation because “refraining from self-indulgence differentiates citizens from children and slaves.“367

This expanded concept of the virtue of temperance has four important corollaries for comprehensive effective, ethical counterterrorism. First, temperance can help prevent inherent, if understandable, parochial and patriotic prejudices from coloring perceptions of what is fair and just by a community and its leaders. This corrective influence is essential because justice as fairness applies to intra-national (domestic contexts involving multiple parties and valences) and to international issues (which also involve multiple parties and valences). Even following major counterterrorism successes, a community’s informal scorekeeping against a terror group or its sponsors tends to downplay the worth of those successes because “narcissism can make us think we’re just even when we’re not.“368

Furthermore, a community—including ones such as the United Kingdom and the United States with a strong commitment to intra-communal justice and a historical trajectory, though perhaps of uneven and interrupted progress, toward greater justice—may concurrently promote its perceived communal interests in ways that unfairly disadvantage or exploit others. Thus, a community’s intemperate response to an exogenous terror group may ironically entail counterterrorism actions that unintentionally benefit the terror group by strengthening its bonds with the constituency upon whom the group depends for support or by weakening the group’s political opponents.

For example, Japan and most developed Western states depend upon procuring a reliable supply of Middle Eastern oil at a predictable, if not reasonably affordable price to sustain their affluence and lifestyles.369 Saudi Arabia is the key to stability in global oil markets, claiming to possess 25 percent of the world’s proven petroleum reserves and the world’s largest production capacity.370 Meanwhile, many radical Sunni Islamists, including those supportive of or affiliated with al Qaeda, regard the Saudi royal family as apostate Muslims who hypocritically have adopted corrupt, secular Western lifestyles and values. Other Saudi dissidents are angry with the House of Saud because of the injustices that women, Saudi Shiites, and other minorities in Saudi Arabia experience. Saudis opposed to the House of Saud almost unanimously object to foreign support intended, for self-serving reasons, to keep the House of Saud in power. These three factors combine to create a context conducive to al Qaeda and other Islamist groups converting idealistic young Saudis to Islamist views, perhaps subsequently recruiting them as terrorists or enlisting their assistance in other ways. Counterterrorism efforts focused exclusively on al Qaeda’s current members and operations do little or nothing to disrupt this lethal underlying dynamic.371 Alternatively, counterterrorism and foreign policies informed by the virtue of temperance might plausibly support a potentially disruptive Saudi Arabian transition from absolute monarchy toward a more democratic, just government, in spite of the risk of painful, short-term dislocations in global oil markets. That transition might pay long-term dividends of increased global economic stability and a diminished appeal of terror groups such as al Qaeda, substantially reducing terrorists’ regenerative capacity.

Second, temperance can beneficially modulate a community’s collective, often contagious, flight or fight in response to a terror attack or threat. (Fear, like courage, is contagious372) At one extreme, terror threats or attacks can trigger flight. Large numbers of refugees fleeing threats can destabilize their community of origin; masses of displaced persons impose heavy, sometimes unmanageable, burdens on their new hosts. Within a state, a flight response to terrorism may manifest itself in xenophobic demands and increased bigotry. This has occurred in the US post-9/11, ironically benefitting al Qaeda and harming the West:

The cultural reverberations of the terrorism narrative, such as the spreading of Islamophobia and intolerance and the undermining of liberal values and constitutional rights, are widely felt in United States and Western societies. The irrational fear of terrorism, coupled with a concerted ideological campaign by the far-right to equate Islamic ideals and precepts with Islamist militancy, has caused a public backlash against Islam and Muslims in the United States and Europe. Opinion polls—alarmingly—show that ever increasingly numbers of Westerners equate Islam and Muslims with violence and extremism. By overblowing the al-Qaeda threat and overlooking distinctions and differences among various religious groups, the terrorism narrative sows the seeds of cultural mistrust and suspicion and has supplied bin Laden and his successors with powerful ammunition to deploy in their ideological battle against Western societies. Time and again, they have used examples of Islamophobia to incite Muslims to carry out attacks against the West.373

Indeed, Osama bin Laden believed that he had scored a victory against the US by causing an excessive flight response. In a 2004 videotaped message he averred: “All we have to do is send two mujahedin … [and] raise a piece of cloth on which is ‘al Qaeda’ in order to make the generals race there, to cause America to suffer human, economic and political losses.“374 The discussion of prudence highlighted the high financial costs and the infringement of rights and privacy associated with this type of intemperate response.

At the other extreme, the fight response may lead an attacked or threatened community to adopt ever more expensive and intrusive defensive, or even offensive, measures to prevent a future attack. These measures can significantly degrade the community’s quality of life. Several factors combine to explain this predilection for quick, decisive action:

First, overt military retaliation is a kind of strategic catharsis. Sending air strikes or military invasions seems fitting. Second, military retaliation responds to domestic pressure, the need to ‘do something.’ … Third, obliterating the perpetrators can be seen as appropriate ‘justice,’ especially when attacks originate from outside a state’s territory (as is increasingly likely to be the case).375

Intemperate reliance on an immediate and decisive military response to terrorists also tempts governments because of a key premise universally used to justify national defense expenditures: adequate defense funding will ensure a military capable of achieving its most important mission, protecting the state against, if not defeating, the state’s enemies. That temptation, and the allure of a predominantly military counterterrorism strategy, is especially great for the world’s lone superpower. Hyperbole illuminates the paradoxical and frustrating impotence of conventional military might in an asymmetrical fight against a group employing terrorism, the preferred strategy/tactic of the weak: “There is little doubt that the US has the necessary military might to bomb [Lebanon, Iran, and Iraq] to oblivion. The problem, however, is that this will not do away with terrorism but more than likely only strengthen the basis for its growth globally.“376

An excessively aggressive fight response to terror often results in unhelpful, even counterproductive, actions by both individuals and governments. For example, Israeli Defense Force (IDF) personnel acting without command authority have killed Palestinian police in retaliation for terrorists killing IDF members even though the targeted police had no connection to the terrorists and had actually been cooperating with the Israeli forces.377 On a much larger scale, President Bush’s belief, in the immediate aftermath of 9/11, that his country expected decisive action led to the GWOT and the invasions of Afghanistan and Iraq.378 This intemperate response has proven unwise and self-defeating:

The pursuit of a military strategy was initially popular in the United Sates, but it is completely counterproductive and self-defeating because it undermines the ultimate goal of protecting the US homeland. This is emphatically the case with the invasion and occupation of Iraq, which has radicalized a new wave of young jihadists who have been led to believe that America is establishing a base in the Middle East in order to exploit oil resources and dominate the region.379

Fawaz Gerges, an insightful American scholar of Islam who teaches at the London School of Economics, describes the consequences of overreaction still more poignantly, considering the US War on Terror as providing “the oxygen that sustains al Qaeda:”

US officials now know that their over-reliance on militarism and excessive use of force radicalizes Muslim populations and instigates calls for resistance and vengeance at home and abroad. Since September 11, America’s wars have created many more anti-American jihadis than al-Qaeda has ever fielded. For example, the US-led invasion and occupation of Iraq militarized Muslim opinion, shaped a new generation of jihadis, and generated hundreds of additional terrorist attacks and tens of thousands of civilian casualties, according to the US government’s National Intelligence Estimate on “Trends in Global Terrorism: Implications for the United States.” Numerous independent studies have confirmed this trend.380

Clearly, communities benefit from not overreacting to potential and actual threats;381 either an excessive flight or fight response can help terrorists to achieve their instrumental goals of renown, revenge, and reaction. Moreover, “avoiding overreaction, which requires no expenditure whatever, is by far the most cost-effective counterterrorism measure imaginable.“382

Third, temperance promotes realistically appraising the threat of both terrorist strikes against specific targets and of terrorists using weapons of mass destruction. The United States, for example, has 600,000 highway bridges, each a potential target for a terrorist attack. Protecting all 600,000 bridges is cost-prohibitive. Protecting all 600,000 is also unnecessary. Worldwide, between 1998 and 2007, terrorists attacked only two bridges. Both attacks occurred in the United Kingdom and resulted in minor damage and no injuries. While a handful of iconic bridges such as the Golden Gate in San Francisco may warrant some low cost steps to deter or protect from a terror attack, steps to protect other highway bridges represent a waste of resources. Similarly, attempting to protect all public buildings (except a handful of highly symbolic ones, such as the White House and Capitol in the US), houses of worship, sports venues, shopping malls, and other places in which people congregate is impossible and an intemperate expenditure of resources.383

Exaggerated, intemperate fears frequently distort the threat posed by weapons of mass destruction; this distortion has occurred for years in discussions of nuclear weapons. In 2010, President Obama declared, “The greatest threat to US and global security is no longer a nuclear exchange between nations, but nuclear terrorism by violent extremists and nuclear proliferation to an increasing number of states.“384 Yet, scholars studying the issue consistently conclude that subnational groups almost certainly lack the expertise, materials, and resources (most importantly, enriched uranium and massive amounts of electricity) to develop a nuclear weapon.385 Lengthy and costly Pakistani, North Korean, and Iranian programs to develop nuclear weapons, clandestine endeavors not even those authoritarian states could keep secret, confirm the high unlikelihood of a sub-state group successfully building a nuclear weapon. The most probable scenario by which terrorists could obtain a nuclear weapon is in “the singular and extremely unlikely case” that they obtain the weapon from another country through purchase or theft.386 Dirty bombs—a conventional explosive device that spreads radioactive material—represents more of a perceptual than actual threat. The most easily obtainable radioactive materials emit low levels of radiation, e.g., the materials used in medical and dental offices. Authorities would probably measure the contaminated area in square yards rather than square miles. Persons in the area could leave the area without incurring a lethal dosage of radiation, quite likely less of a dosage than some employees receive from their work at a nuclear power generating station.387 Terrorists would also confront seemingly insurmountable problems in developing either a biological or chemical weapon as well as the means for disseminating lethal quantities of that weapon to a substantial population.

Neither dirty bombs, chemical, nor biological weapons—the most probable WMD terrorists could obtain, though that is unlikely—represent a major threat from terrorists.388 Aum Shinrikyo, in their 1995 terrorist attack on five Tokyo subway locations, released the chemical weapon sarin, a deadly nerve agent. The attack caused more panic that actual harm; although the attack injured several thousand, only twelve people died.

The real danger from nuclear, chemical, and biological weapons comes from states and not sub-state terror groups. A genuine WMD existential threat would require dozens if not hundreds of weapons. However, the United States intemperately continues to waste billions of dollars on deterring a possible WMD attack for which little or no evidence exists and preparing to deal with its consequences.389

Fourth, the virtue of temperance encourages a community to adopt counterterrorism strategies and tactics shaped by best practices, avoiding both the hubris of believing the community can solve, immediately and unilaterally, all problems and the despair of believing terrorism is a fatal disease for which no cure exists. Communities adopting this approach set defensible and achievable goals,390 implement revised policies after humbly acknowledging mistakes, and persevere. A 1983 suicide truck bomber killed 241 US military personnel, mostly Marines, at a barracks adjacent to Beirut International Airport. The US personnel were in Lebanon as part of an international peacekeeping force. Following the attack, President Reagan promptly withdrew US forces from Lebanon, stating that the US could not afford another such loss.391 Osama bin Laden and other terrorists often point to the US withdrawal as an example of a US defeat and of US cowardice. If the US peacekeeping force in Lebanon had an important, achievable mission, then they lacked an adequate defense and the US lacked resolve. Otherwise, sending the peacekeeping force to Lebanon was a mistake, a policy without a defensible, realistic goal; in that case, President Reagan should have blunted bin Laden’s criticism by openly acknowledging the mistake and accepting responsibility for it.

Of the UN’s 191 member countries, approximately 32 currently experience violent internal conflict, not including the United States, which experiences sporadic attacks from domestic terror groups. Those thirty-two states are laboratories in which to observe the effectiveness of potential counterterrorism strategies and tactics. Integrating observed best practices into applications of the proposed counterterrorism model would improve its effectiveness and perhaps further elucidate the underlying ethical principles.

Temperance, in sum, helps a community regard others less prejudicially, exercise restraint in the face of calls for decisive though often poorly conceived action, conduct and utilize realistic threat appraisals, and learn from its own and others’ counterterrorism mistakes and successes.

The cardinal virtues of courage, prudence and justice, and temperance beneficially shape a community attacked or threated by terrorists into a just community. Collectively, the cardinal virtues endow a just community with the impetus, direction, and character for devising and implementing a just counterterrorism strategy and tactics with which to seek justice for the responsible terror group (examined in Chapter 4) and building peace through improving social justice for the society that spawned and supports the group (explored in Chapter 5).

[]Chapter 4: Justice for Terrorists

The Just Counterterrorism Model’s second component, Justice for Terrorists, broadly connotes criminal justice, that is, the enforcement of domestic and international legal prohibitions against and penalties for committing terror crimes that include planning, training, financing, and executing acts of violence against innocent parties for purposes of political advantage. Unlike narrow conceptions of criminal justice, Justice for Terrorists integrates counterterrorism moves by the criminal justice system, the armed forces, and national intelligence agencies. Justice for Terrorists also incorporates lessons learned from Chapter 1’s review of studies on how terror groups end and satisfies the four design criteria for counterterrorism models delineated in Chapter 2.

Prior to 9/11, counterterrorism almost universally emphasized bringing alleged terrorists to justice by arresting or, if arresting was impractical, killing them. States generally delegated this responsibility to law enforcement authorities. A law enforcement approach has achieved some noteworthy successes. For example, following the Islamic Group’s 1993 World Trade Center bombing, the terror attack that illustrated the definition of terrorism in Chapter 1, a successful FBI investigation culminated in the apprehension and conviction of the perpetrators.392

However, the emergence of international terror groups created new problems. An international terror group may operate from an area in which the rule of law does not prevail, effectively placing the group beyond the reach of domestic law enforcement authorities. The few existing international law enforcement agencies provide negligible assistance in extending the reach of domestic law enforcement authorities to such areas. These agencies promote cooperation among member countries rather than conduct independent investigations; even if they did conduct independent investigations, the agencies’ reach would not extend to places in which the rule of law does not prevail.393

The most obvious alternative to a law enforcement centric counterterrorism paradigm is military centric counterterrorism. Chapter 2 argued that relying upon a warfighting strategy often produces counterterrorism moves that are simultaneously unethical and ineffectual.

In the case of endogenous terror groups, a problem that most sovereign states occasionally face, assigning the military primary counterterrorism responsibilities will necessitate amending or revoking any laws that either prohibit its armed forces from engaging in domestic law enforcement activities or limit their role to narrowly defined circumstances and tasks. For example, the 1878 post Civil War Reconstruction era Posse Comitatus Act imposes such restrictions in the United States, permitting exceptions only when expressly authorized by the Constitution or Congress.394 The National Security Act of 1947 establishing the CIA barred it from conducting intelligence operations in the US. However, counterterrorism concerns can tempt authorities to bypass restrictive laws, e.g., President Clinton circumvented the Posse Comitatus Act when he issued a secret presidential memo that authorized US military counterterrorism operations within the US to confront threats involving WMD.395

Additionally, a counterterrorism paradigm or strategy that assigns the military primary responsibility for responding to all terror attacks, threats, and groups can raise major domestic concerns. In general, one reason that states enact laws prohibiting domestic military missions is to reduce the likelihood, if not to prevent, the military exerting an inappropriate influence over the civilian government. Also, as discussed in this chapter’s first section, responding to domestic terror incidents with military force (or law enforcement authorities utilizing military equipment and tactics) frequently has major adverse repercussions.

Dividing counterterrorism responsibilities by assigning domestic law enforcement authorities responsibility for endogenous counterterrorism and the military responsibility for exogenous counterterrorism is at best problematic. This division can easily diminish a state’s overall counterterrorism effectiveness. Divided responsibilities tend to fragment efforts, create jurisdictional disputes after a domestic attack by an exogenous group, and exacerbate any pre-existing lack of cooperation between agencies and departments and between levels of government. Subordinating law enforcement’s counterterrorism efforts to military oversight can theoretically resolve those difficulties, but sacrifices clear civilian control of domestic law enforcement. Assigning the military chief responsibility for all counterterrorism may also result in the military exerting influence, citing the need to reduce vulnerability to terror threats or to strengthen counterterrorism defenses, upon an ever-expanding number of domestic issues.

To avoid these problems, the Just Counterterrorism Model’s Justice for Terrorists component, as recommended by many counterterrorism experts, depends upon law enforcement efforts for its backbone, supplemented by military and intelligence agency actions when necessary and then only under well-defined conditions.396 Three criteria comprise Justice for Terrorists: Apprehension, Interdiction, and Adjudication. Rawls’ concept of justice as fairness informs all three.

Apprehension denotes domestic or international law enforcement authorities enforcing laws, within their authorized geographic sphere of operations, against all illegal facets of terrorists’ activities. Enforcement consists of consists of legally investigating reported terror related crimes, identifying suspected terrorists, attempting to arrest them for subsequent adjudication, and collecting evidence required for prosecution or preventing additional terror-related crimes. Apprehension pertains only to states, or regions of states, in which the rule of law generally prevails. This chapter’s first section discusses Apprehension and its two constituent elements of (1) respecting rights and (2) upholding the rule of law.

Interdiction, discussed in this chapter’s second section, encompasses efforts intended to apprehend for adjudication terrorists in places where the rule of law does not exist or exists so incompletely that international cooperation in apprehending terrorists is infeasible or impossible. Interdiction’s seven constituent elements, adapted from Just War Theory, chart an ethical course between, on the one hand, preventing terrorists from operating freely in states that sponsor terrorism or in which the rule of law does not exist and, on the other hand, respecting state sovereignty and international treaty obligations. Disregarding the latter can easily set forces in motion that will lead to the outbreak of war; disregarding the former wrongly gives terrorists safe havens from which to operate. Indefinite detention and targeting killing of alleged terrorists exemplify that tension and receive special attention, serving as brief case studies to illustrate Interdiction’s merits.

This chapter’s final section considers Adjudication, which connotes both legal proceedings to determine the guilt or innocence of accused terrorists following their apprehension or interdiction and, if convicted, their just punishment. Impartiality and procedural fairness are the two constituent elements of Adjudication.

Terrorists sometimes commit non-terror crimes including extortion, robbery, drug smuggling, and attacks on military personnel or installations.397 A government can advantageously combine all of its law enforcement efforts against a terror group into a single effort.398 Because Justice for Terrorists’ focus is on counterterrorism, the analysis largely ignores wider law enforcement issues. However, this focus is less problematic than it might appear. Many nominally non-terror crimes, such as robberies committed to fund terror incidents, properly fall within the scope of counterterrorism. Moreover, law enforcement efforts directed against a terror group’s criminal activities unrelated to terror typically reinforce rather than hinder law enforcement efforts against a group’s terrorist activities. Police anti-crime efforts, for example, have repeatedly led to counterterrorism successes against Hezbollah.399

[]A. Apprehension

Justice, according to Rawls, requires individuals and groups to comply with and to support the just rule of law.400 Just laws establish the legal foundation for rights and equality that are intrinsic to justice as fairness. Absent a voluntary compliance with and support for the rule of law, states appropriately coerce compliance.401 The institutions—police and other law enforcement agencies, courts, prisons, probation services—that enforce those laws comprise a state’s criminal justice system. Terrorism, as argued above, is always immoral and therefore should be illegal because it violates the just rule of law. Unsurprisingly, existing laws in most states, including the US, already make planning, training, financing, and executing terrorist activities a crime.402

Apprehension’s two constituent elements, respect rights and uphold the rule of law, focus on ethical aspects of law enforcement coercing compliance with the rule of law as they identify, locate, and arrest terrorism suspects. Both constituent elements have their roots in and derive their meaning from Rawls’ concept of justice as fairness.

[]1. Respect Rights

Seumas Miller, an authority on police ethics, identifies rights important in law enforcement’s counterterrorism efforts that echo Rawls’ concept of basic rights.403 The rights Miller lists include freedom of speech and thought, freedom of action, the right not to self-incriminate, the right to privacy, the right not to be tortured, and the right to life. Respecting these basic rights demonstrably increases counterterrorism effectiveness, especially when the state protects individuals from extrajudicial murder, torture, and political imprisonment. That is, safeguarding human rights creates a win-win situation in which only terrorists lose.404

Policing that respects rights embodies five practices essential for effective, ethical counterterrorism. First, effective policing requires a constant readiness to respond. Crime is inevitable, but authorities rarely know particulars—location, timing, offense, and perpetrators—in advance. Thus, police routinely strive to develop local contacts (sources of intelligence), knowledge of the terrain, social dynamics, and other information to enable a fast, timely, and appropriate response when a crime occurs. Responding to a terror attack or threat is usually analogous to responding to other crimes, e.g., the initial response to a bomb threat or explosion is the same regardless of whether the perpetrator is a terror group or mass murderer.405 On the rare occasion when a terror attack exceeds local law enforcement’s capacity to respond, other law enforcement agencies or the military can usefully supplement law enforcement in ways analogous to how those entities supplement local law enforcement in responding to major natural disasters.

Second, in effective policing, authorities expertly interact with witnesses, potential suspects, alleged abettors, casual bystanders, and others at crime scenes and elsewhere while respecting rights. The police accurately identify a person’s role by carefully observing behavior, formal and informal interviews, and information collected through additional means that may include electronic data gathering, forensic analysis, etc. These procedures apply to equally to all crimes, including terror crimes. The Royal Canadian Mounted Police have published a useful analysis of the multiplicity of roles that persons may play in terror investigations and groups.406

Third, the most effective police treat everyone with respect and fairness.407 Uniforms and marked vehicles helpfully identify police personnel and communicate an awareness of their presence to the community. Conversely, personnel wearing battle dress, carrying military weaponry, and riding in armored vehicles—whether part of a special police unit or military unit—unavoidably project intimidating power to most civilians.408 Intimidation is incompatible with respect and fairness. Israel employing the IDF to perform police duties during occupations of Lebanon, the West Bank, and Gaza exemplifies this mismatch: “inevitably occupation duties led to abuses. ‘Every soldier manning a roadblock is a little god,’ commented one IDF member.“409

In general, effective counterterrorism is more akin to routine police foot patrols or solving a homicide than to warfighting.410 Hence, successful counterterrorism, like good policing, depends upon citizen cooperation, which in turn is contingent upon the way the police treat people.411 Speaking the language, knowing the culture, and being in the community are vital aspects of law enforcement that make police more effective at counterterrorism than military personnel.412 According to counterterrorism expert and psychiatrist Marc Sageman, “If local law enforcement officers are seen as part of the community, they are not viewed as enemies, but as trusted intermediaries between the community and its police department.“413

Fourth, effective policing aims to contain and then to quiet any disturbance: In other words, effective policing coheres well with a just society’s temperate efforts to promote courage internally, adopt prudent defensive measures, and bring terrorists to justice. Conversely, inflamed wartime sentiments can too easily justify ignoring or abrogating individual rights while pursuing well-intentioned but misguided efforts to defend the common good.414

Fifth, police training emphasizes using minimum force to apprehend suspects for subsequent adjudication by the courts. Only an imminent, potentially life endangering threat to law enforcement officers or bystanders justifies the police using lethal force.415 Apprehension, using minimum force and only as a last resort, protects individual rights to liberty, security, impartial adjudication, and due process. Furthermore, arresting and trying a terror group’s leader is usually more effective counterterrorism than is killing the group’s leader.416 Studies of effective counterterrorism consistently emphasize the importance of using force in limited, discriminating ways.417 Using minimum force also protects the rights of individuals not directly involved by minimizing collateral damage to people and property.

In situations that require extra firepower, many modern police forces now have special teams, sometimes called Special Weapons and Tactics (SWAT) teams, trained and equipped to deal with heavily armed criminals, bombs, and other unusual dangers. If not already prepared to respond to terror attacks, SWAT teams should add them to the list of contingencies to which they train to respond.

Police militarization and reliance on SWAT teams has increased dramatically since 9/11. In the United States, for example, local law enforcement received $1 billion in aid from the Department of Homeland Security and another $449 million from DOD in 2013.418 SWAT teams, belonging to thousands of US police departments, conducted approximately 50,000 raids in 2005, the last year for which data is available. Increased availability trend has fostered police reliance on excessive force: “Unfortunately, the activities of aggressive, heavily armed SWAT units often result in needless bloodshed: Innocent bystanders have lost their lives and so, too, have police officers who were thought to be assailants and were fired on.“419 Among the best known pre-9/11 examples of US police employing excessive force are the 1985 assault on the MOVE collective in Philadelphia,420 the 1992 assault on the Weaver family at Ruby Ridge, ID, and the 1993 assault on the Branch Davidian compound in Waco, TX. Police departments will improve their respect for rights and counterterrorism effectiveness if they selectively deploy SWAT teams, establish narrower rules of engagement for SWAT teams, enforce better oversight, and resist temptations to employ a SWAT team simply because it is available.

The 1996 response of federal US Marshalls to the Montana Freemen, a white Christian supremacist group, exemplifies the prudential use of minimum force. Instead of assaulting the Montana Freemen’s compound, the Marshalls laid siege and waited eighty-one days until the Freemen surrendered. No urgent requirement to end the siege existed; waiting saved lives on both sides, created no government financial liability, generated no adverse publicity for the Marshalls, and widely increased confidence and trust in the US justice system.421 Law enforcement authorities responding to terror incidents succeed by adopting tactics that are proportional and respect the lives of non-suspects.

In sum, law enforcement agencies and personnel routinely stand ready to respond to unpredictable events, have experience interacting with people in complex situations, accomplish their mission through trustful and respectful relationships with citizens, aim to quell and then to contain a disturbance, and typically employ minimum force. Collectively, these five practices highlight typical differences between military and police operations that contribute to law enforcement counterterrorism effectiveness while respecting human rights, even if imperfectly.

Once apprehended, authorities routinely interrogate suspects before adjudication. Law enforcement agencies, unlike most military units and some intelligence agencies, have substantial experience and competence in interrogating suspects while respecting the suspect’s rights and still producing information useful for adjudication and other investigations. Two premises undergird that assessment, both more strongly supported by the available evidence than is popularly imagined.

First, torture is ineffective. Intelligence agencies and other government entities that have used torture to interrogate terrorists are extremely loathe to open their files for external examination. However, the available evidence suggests that counterterrorism interrogations increase in effectiveness when they respect rights and do not use torture.422 Hypothetical ticking bomb scenarios in which authorities avert mass deaths through information obtained using torture beg a key question: if time were so critical, why should the committed terrorist tell the truth? Why not lie, giving false information to halt the torture while concurrently preventing authorities from locating the bomb in a timely manner? A dedicated terrorist, willing to commit mass murder, may also prefer enduring torture to betraying the bomb’s location. In any event, ticking bomb scenarios are extremely rare.

Second, options exist for effective interrogation that respect a suspect’s rights and permit subsequent adjudication while not utilitizng torture. Gross summarizes acceptable and unacceptable interrogation techniques, according to international and US protocols:

Acceptable techniques that govern questioning by law enforcement and military officials appear in army and police interrogation manuals. These are built around establishing rapport, gaining confidence, and working to identify a detainee’s ‘primary emotions, values, traditions, and characteristics and use them to gain the source’s willing cooperation.’ However, investigators can also employ deception (leading a suspect to believe his interrogator is someone other than a US official); psychological pressure (manipulating fear of incarceration or fear of never seeing one’s family again); procedures that undermine a suspect’s perception of his ‘loyalty, technical competence, leadership abilities or soldierly qualities’ (without becoming degrading or humiliating); good cop/bad cop routines; and, in some cases, physical isolation.’ Unacceptable techniques include those intuitively brutal to the extreme: severe beatings, maiming and mutilation, rape and sexual abuse. These techniques exceed the bounds of defensible torture and cause a degree of intense suffering that US government legal advisors have compared to the pain ‘accompanying serious physical injury’ or that which ‘shocks the conscience.‘423

Gross then identifies a set of interrogation techniques that he believes fall on a spectrum between the acceptable and prohibited. These torture lite or enhanced interrogation techniques include “hooding or blindfolding, exposure to loud music and temperature extremes, slapping, starvation, wall standing and other stress positions and, in some cases, water boarding.” Interrogators, he argues, should have an option to employ these techniques in situations where failing to do so might result in egregious harm to others, e.g., in a ticking bomb scenario.424 One fatal flaw in Gross’ line of reasoning is that in a ticking bomb scenario, the terrorist has every motivation to lie and no reason to provide useful information. A second fatal flaw in Gross’ argument is that dedicated public servants, zealous in their efforts to protect their fellow citizens, need an external check to keep them from overstepping legitimate bounds. An absolute prohibition against torture lite and enhanced interrogation techniques establishes a definitive line dividing the allowable from the prohibited. This protects interrogators, terror suspects, and the community as a whole from well-intentioned but abusive use of power. In the absence of clear regulation, interrogators operate in a twilight zone in which terrible things occur.425 Finally, international law actually classifies many of the techniques that Gross identifies as torture lite, such as waterboarding and slapping, as forms of torture.

Torture is morally objectionable because of its corrosive effects on the torturer426 and the society on whose behalf the torture is performed; torture is also immoral because it inflicts pain on a helpless person.427 Torture is legally objectionable because it violates the international Convention Against Torture and it presumes the suspect’s guilt rather than innocence.428 The American Psychological Association (APA) in 2007 ruled that its members should no longer participate in interrogations involving torture because such interrogations are “immoral, psychologically damaging and counterproductive in eliciting useful information.“429 The APA specifically proscribed mock executions, simulated drowning, sexual and religious humiliation, stress positions, and sleep deprivation.

A terror suspect is most likely to have information that, when obtained through interrogation, will enable authorities to connect bits of data from other sources, thereby forming a larger, more accurate picture of the terror threat.430 Amassing large databases of terrorist related information that interrogators can access often provides interrogators a significant advantage in questioning terror suspects, a method that has proven far more effective than torture.431

Strategically, immoral and abusive tactics like torture432 provoke adverse international reactions, more than offsetting any short-term tactical advantage obtained.433 Tactically, President Obama, based on the intelligence that he sees as Commander-in-Chief, concluded that alternative interrogation techniques yield more useful information than torture does.434 The results of the most comprehensive analysis of the use of torture in the GWOT, conducted by the US Senate Intelligence Committee and released in 2014, reached a similar conclusion.435 Additionally, the US successfully interrogated WWII German and Japanese Prisoners of War (POWs) without resorting to torture.436

Unjust counterterrorism measures that violate rights afford terrorists an excellent opportunity to depict their opponents as unjust hypocrites, which al Qaeda has done repeatedly to their benefit in the GWOT.437 Such claims frustrate counterterrorism efforts to sever terrorists’ from their enabling constituency, as discussed Chapter 5.

[]2. Uphold the Rule of Law

A state upholds the rule of law through its criminal justice system in which law enforcement authorities seek to identify and then to apprehend suspects for adjudication. The justice, peace, predictability, and security that civilization requires cannot exist without the rule of law. In states where the rule of law largely prevails, the criminal justice system specifies legal requirements and procedures for police investigations, arrests, and detention of suspects. Police engaged in counterterrorism function primarily on the basis of protocols derived from the rule of law and professional standards of crime control.438 A government that acts illegally, even for the best of reasons, undermines the rule of law. In other words, counterterrorism measures that abrogate the law are self-defeating, substituting the lawlessness of illegal police actions for the lawlessness of terrorist attacks. This comparison is not to imply that illegal police actions are morally equivalent to terrorist attacks but to underscore that a civilized community’s stability and viability depend upon it consistently maintaining the rule of law.

Counterterrorism differs from general policing in two ways: (1) counterterrorism against international terror groups raises issues of national jurisdiction and cooperation; (2) counterterrorism generally entails greater reliance upon intelligence collection and analysis than does general policing, perhaps including conducting pro-active intelligence operations. Both differences raise ethical questions pertinent to upholding the rule of law.

First, the rule of law sufficiently prevails in most countries to make apprehension of terror suspects by relying upon law enforcement cooperation across national borders viable, reasonable, and preferable. For counterterrorism, assessments of whether the rule of law prevails pose narrow rather than wide-angle questions. That is, the issue is not whether the rule of law exists broadly in a state, whether the state cooperates with other states’ law enforcement efforts to end non-terror criminal activities, or to what degree the rule of law might provide justice for that state’s citizens, but whether government authorities responsible for upholding the rule of law will:

● Cooperate in investigating and apprehending suspected terrorists thought to be in that country and then permit extradition by other states for trial

● Refuse to sponsor terror groups and terror attacks against other countries.

Those criteria have substantial gray areas that require government authorities to exercise prudential judgment. For example, in Iran, the rule of law, from a particular Shiite Muslim perspective, exists. Whether one thinks the Iranian interpretation of Sharia valid, acceptable, or preferable is irrelevant. Nor is the question of how Iran deals with any domestic terrorists germane with respect to terrorism in other states. Instead, only the two criteria enumerated above are relevant in assessing whether the rule of law prevails with respect to counterterrorism. On the one hand, convincing evidence indicates that Iran sponsors alleged terror groups, e.g., funding Hezbollah operations in Lebanon and against Israel.439 On the other hand, Iran has occasionally requested the extradition of terror suspects from other states.440 However, Iran’s willingness to cooperate in apprehending and extraditing a terror suspect wanted by Israel, the UK, or the US appears doubtful. When apprehension is impossible because the rule of law prevails insufficiently, states may opt to conduct an Interdiction, discussed in the next section.

International cooperation in counterterrorism should uphold, not violate, the rule of law. The first Predator drone strike outside of Afghanistan was on a vehicle “carrying Abu Ali al-Harithi, a suspected operational planner of the attack on the USS Cole, and five other suspected terrorists.” (NB: The attack on the Cole, a military vessel, was not a terror incident.) DNA tests confirmed the attack had killed the correct person in the “first acknowledged targeted killing by the United States government, outside of a battlefield, since political assassinations were prohibited by President Gerald Ford in 1976.” The US conducted the operation with the Yemeni government’s full knowledge and approval after failed efforts by Yemeni forces to capture al-Harithi.441 The available information suggests that this strike exemplifies upholding the rule of law and international cooperation in counterterrorism. Sufficient evidence justified targeting the particular individuals after efforts to apprehend them for adjudication had failed; the successful operation avoided causing collateral damage.

Sustainable international cooperation requires respecting the spirit as well as the letter of the law. For example, repeated drone strikes in Yemen, usually conducted with the Yemeni government’s consent, have generated much popular anger toward the US for violating Yemeni sovereignty and created a psychologically chilling ethos. Yemenis are afraid of the US mistaking an innocent social gathering for a terrorist meeting, they fear becoming collateral damage, and conservative tribesmen worry that drones photograph their wives and daughters.442

Second, far more than in general policing, effectively upholding the rule of law against terrorists and terror groups depends upon good intelligence.443 Pro-active intelligence operations aim to collect the information required for authorities to connect the dots between disparate individuals and facts, both to prosecute terror suspects for past crimes and to prevent future attacks. Local knowledge and contacts were key factors in law enforcement ending Sikh terrorism in the Punjab.444 Diligent, unrelenting intelligence efforts resulted in the arrest and successful prosecution of the best-known terrorist prior to Osama bin Laden, Carlos the Jackal,445 and preventing post-9/11 terrorist attacks.446

Law enforcement counterterrorism efforts require discovering terrorists’ identity, motives, modus operandi, and a wealth of other relevant information. This involves collecting, collating, and analyzing vast amounts of information, sometimes known as intelligence.447 Training and equipping police for intelligence operations can improve their counterterrorism effectiveness.448 Police engaged in counterterrorism against an international terror group will inevitably have an increased need for skilled linguists and interrogators (people trained to obtain information a person does not want to provide.449

Successful interrogations, as argued in the foregoing section, are a function of sound policy and training rather than torturing suspects. For example, some prosecutors believe that offering shorter sentences in exchange for a suspect’s cooperation has yielded useful intelligence.450 Another useful counterterrorism interrogation technique that police have employed is to have one team interrogate a suspect, without advising the suspect of his/her legal rights, and then have a second team, after appraising the suspect of his/her rights, conduct a second, separate interrogation. Agencies using this procedure construct a firewall to contain information the first team obtained, preventing that information from leaking to the second interrogation team, prosecutors, or in any other way contaminating the prosecution. Suspects may divulge key leads that they would withhold after being informed of their legal rights for fear of self-incrimination or on the advice of counsel. These leads may prove important for preventing future attacks, identifying additional suspects, etc. Both interrogations should fully comply with the law, e.g., eschewing torture and not using information improperly obtained for prosecutions. US judges have refused to allow evidence obtained by a second team if the first team engaged in torture or other illegal practices.451 In the past, this approach has generated actionable intelligence useful in other investigations without violating a suspect’s rights.452

In effective counterterrorism, prevention is arguably at least as important as is prosecution. Terror cell disruption has proven the most effective way to prevent a terror incident from occurring.453 Furthermore, former US National Security Adviser Zbigniew Brzezinski thinks that intelligence operations provide the best defense against terrorism:

But for the real upgrading of homeland defense—rather than the mere shuffling of bureaucratic boxes—the top priority must be the acquisition of effective intelligence. Ultimately it is impossible to make every national facility and every football game and shopping mall safe against terrorist attack. At some point, efforts to make them so will bog down under the weight of burdensome controls and excessive costs.454

What criteria should determine which goal—prosecution or prevention—of an intelligence operation takes priority? These are ultimately prudential decisions in which a state’s political leaders and officials must weigh the potential benefits of allowing the intelligence operation to continue uninterrupted against the benefits of acting to disrupt, and perhaps to prevent, criminal activity through apprehension for subsequent adjudication. For example, during WWII British intelligence identified a German saboteur in London. The police wanted to intervene, to arrest the saboteur to prevent him blowing up a power plant. MI5, the UK’s domestic security agency, wanted to allow the saboteur to blow up the plant, and then use him to feed false information to the Germans. The UK’s political leaders chose the latter.455

Law enforcement agencies and, where legal, the military or national intelligence agencies may conduct secret, domestic intelligence operations against terror groups. In practice, even carefully, targeted legally conducted intelligence operations raise ethical concerns. Foremost, law enforcement agencies in their collection, analysis, and sharing of intelligence face strong internal and external pressures to bend, or to violate, the rule of law. Law enforcement personnel generally have a strong, commendable commitment to protecting the public’s safety, even at the risk of their personal safety. Likewise, most citizens want immunity against terrorist attacks. Yet, as previously noted, no community can make itself invulnerable to terrorists. Living with the rule of law means that policy decisions about acceptable tradeoffs between privacy and security are the community’s responsibility, delegated to the government or judiciary. Law enforcement authorities must resist both their personal and the public’s desire to increase public safety at the cost of contravening the rule of law.

Six principles should therefore shape any domestic intelligence operation to ensure it upholds the rule of law in a manner consistent with justice as fairness:

1. There must be sufficient sustainable cause (i.e., reasonable cause to suspect commission of past crimes or a high probability of committing significant terror-related crimes in the future)

2. There must be integrity of motive (i.e., the officials authorizing and conducting the intelligence operation act out of concern for public safety and do not have ulterior motives such as pursuing a personal vendetta)

3. The methods to be used must be proportionate (i.e., the cost in resources and diminished rights is substantially less than any potential future harm that the operation intends to avert)

4. There must be right authority, including upholding of the universal ban on torture (i.e., the operation respects rights and upholds the law)

5. There must be reasonable prospect of success (i.e., the operation is not a fishing expedition)

6. Recourse to secret intelligence must be a last resort if there are open sources that can be used.456

Several of those principles require additional elaboration.

Collecting more information does not always enhance a community’s security but inherently diminishes individual privacy and perhaps endangers other rights. Agencies may collect irrelevant or inaccurate information, or such vast quantities of data that the timely collation, analysis, and dissemination of actionable items are prohibitively costly, if feasible. Law enforcement agencies can contribute to public discourse on intelligence operations by specifying what information will most likely reduce the terror threat substantially, the least intrusive methods for accurately gathering that information, and promoting interagency cooperation. In other words, approval of an intelligence operation requires sufficient sustainable just cause, right authority, and a reasonable prospect of success (principles 1, 4, and 5).

Some intelligence gathering appears minimally invasive of personal privacy while potentially offering invaluable aid in apprehending suspected terrorists. For example, automated video surveillance systems gather vast reams of data that a human rarely sees. Because video surveillance generates so much data, it is typically stored only temporarily and accessed only after the commission of a crime. In the event of a terror attack, video surveillance data may provide information essential for apprehending suspects, e.g., as happened following the 2005 London Tube bombings (known as the 7/7 attacks). Video surveillance systems that utilize cameras located in plain sight arguable represent an open source instead of secret intelligence.

Stationary video cameras seem far less intrusive than the electronic intercept, recording, and computerized analysis of all phone calls using algorithms that search for key words to select calls for subsequent human analysis. A distressingly wide range of conversations may trigger an alert. After listening to a flagged call, an analyst, unable to characterize the conversation and its participants, may direct closer monitoring of those persons and phone numbers. This type of monitoring, funded if not explicitly authorized in the US by Congress, occurs without a court order, without reasonable suspicion (words/phrases have multiple uses and meanings, not all of which are cause for concern), and perhaps without an actual crime being investigated. Data surveillance programs have a large potential to infringe upon, or even to minimize, the space in which individuals can think and live without government monitoring, curtailing individual liberty without necessarily improving security.457 Routinely processing of a video surveillance feed through facial recognition software transforms video surveillance into inappropriately intrusive surveillance similar to the electronic monitoring of telephonic communication.

Some privacy experts disagree with this assessment of video surveillance. Some counterterrorism experts disagree with this assessment of the intrusiveness and value of electronic communication monitoring. These disagreements demonstrate the importance of communities prudentially, judiciously, and intentionally choosing how to balance the vulnerability intrinsic to living in a society that respects individual privacy and freedom with security measures that reduce the risk of terror attacks. The continuing evolution of surveillance technology, computers, and terrorist strategy/tactics necessitates an informed ongoing public debate in which all interested parties actively participate (principles 3-6).

A state cannot sensibly trust its law enforcement officers to police themselves (principles 1-2 and 4-5). Citizens reasonably expect those officers to perform their duty to protect the citizenry zealously from people who intend harm, appropriately skewing police attitudes and behaviors toward public safety and away from the protection of individual rights. As Supreme Court Justice Louis Brandeis has explained, the judicial enforcement of Fourth Amendment rights against unreasonable search and seizure is vital: “The greatest dangers to liberty lurk in insidious encroachment by men [sic] of zeal, well-meaning but without understanding.“458

Furthermore, law enforcement agencies since 9/11 and 7/7 experience far greater negative consequences when they fail to take every possible action to prevent a terrorist attack than when they aggressively bend rules designed to protect individual rights and freedoms. Consequently, communities that abdicate (or delegate to counterterrorism officials) choices about tradeoffs between improved security, on the one hand, and protecting rights and freedoms, on the other hand, will generally experience diminished rights and freedoms, perhaps without a proportionate increase in security. Hurried, post-9/11 passage of the USA Patriot Act resulted in an ill-considered trampling of individual rights and massive collection of data on US citizens by the government without proportionate improvements in national security.459 Judicial adjudication of apprehended terrorist suspects promotes the rule of law when courts hold law enforcement personnel appropriately accountable for illegal intelligence operations.

Once law enforcement agencies have collected data, more questions—practical and ethical—arise. One reason the 9/11 attacks succeeded is that various agencies failed to share the piece(s) of the plot they had collected with one another. No one agency had enough pieces to see in advance the outlines or audacity of the attacks. Additionally, some information sharing has been so vague (e.g., removing the identity of covert sources to prevent leaks) or speculative as to be useless.460

However, improved intelligence operations often diminish personal privacy or infringe other individual rights. For example, a proposed US national intelligence system would link federal, state, and local law enforcement agencies, enabling a wide variety of searches based on minimal clues, e.g., processing an alias with networking software might point investigators in helpful directions.461 The proposed system has obvious advantages for counterterrorism such as allowing law enforcement agencies to link disparate bits of data to develop actionable information, but requires safeguards to prevent it from becoming a nascent big brother. Recommended safeguards include:

● Mandated efforts to ensure information accuracy

● Prompt purging of information on people acquitted or who cease to be suspects

● Allowing individuals to review data the system has on them

● Permitting individuals to rebut or to supplement data that an individual believes inaccurate or incomplete.

Theoretically, system designers should be able to implement safeguards that achieve significant security gains while respecting both human rights and the need for police investigations to proceed confidentially. Prudential opinion leaders will encourage public discourse about tradeoffs between increased security and protecting individual privacy/freedom before another major terrorist attack, thereby strengthening defenses and avoiding rash, imprudent choices. Courageous citizens value their civil rights, aware that no set of defensive measures will make them or their state invulnerable to terrorist attack. Choices about these tradeoffs have large cultural and situational components that make generic prescriptions unhelpful if not impossible.

Counterterrorism intelligence operations conducted by law enforcement agencies also pose practical and ethical questions about efforts to infiltrate and disrupt potential terror groups (principle 6). The US and EU states have experienced scant success in penetrating al-Qaeda. Penetrating a terror organization works best when the agent shares the terrorists’ language and culture, but even then can require decades to succeed.462 One problem is that many intelligence agencies initially lacked adequate numbers of staff fluent in Arabic. A second problem is that some agencies, like the CIA, initially chose to gather data by electronic surveillance rather than by using human agents. A third problem is that penetrating an organization built on personal relationships is difficult.463 Finally, legal prohibitions and moral proscriptions prevent intelligence agents who successfully penetrate an organization like al-Qaeda from fulfilling many commonplace tasks within those organizations, e.g., killing the innocent or recruiting a suicide bomber. Refusing to perform any of those tasks is tantamount to a death sentence for the undercover agent.464 Promising potential double agents financial rewards, a method that proved effective in obtaining intelligence from within the Kremlin during the Cold War, has proven futile among al-Qaeda’s cadre of ideologically motivated Islamists.465 Some Arab states, such as Saudi Arabia and Pakistan, have penetrated Islamist terror groups and shared the information they obtained with US and other states in a timely manner. In 2010, for example, that cooperation enabled authorities to intercept several bombs disguised as toner cartridges for printers being shipped as air cargo from Yemen to the West.466

Government officials wanting to penetrate or disrupt a potential domestic terror group before the group has committed any crimes should have to obtain a judicial warrant authorizing the operation after satisfying a judge that the targeted group poses an actual threat to public safety (principles 1, 3-6). Blanket approval of the preventive penetration of domestic terror groups creates a chilling effect, inhibiting individual rights to lawful assembly, and free speech. Policing terrorist intentions rather than actions also sharply breaks with how the police enforce all other laws without providing any reasonable assurance that these operations will commensurately reduce terrorist activities.467

[]B. Interdiction

International terror groups that operate from places in which the rule of law does not prevail pose a unique problem for nation states committed to respecting international law. The inviolability, or near inviolability, of state sovereignty is a bedrock presumption of international law and ethics.468 The Peace of Westphalia in 1648 consisted of several treaties that ended two different European wars. The Westphalian settlement formalized the principles of state sovereignty and the non-interference of states in one another’s internal affairs.

The United Nations’ Charter recognizes non-interference as a legal norm:

All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations. … Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State or shall require the members submit such matters to settlement.469

Currently, only the UN’s Security Council can authorize member states to violate another state’s sovereignty.470

Ethical injunctions against state’s intervening in the internal affairs of another state undergird international law. Rawls, for example, incorporated the principle of non-interference into his description of how an ethic of justice should shape international relations.471 Additionally, every state’s citizens have a moral right to self-determination.

No mechanism for ensuring that states abide by international law and norms against interference in another state exist. Restraint is voluntary. However, enshrining respect for national sovereignty in international law and institutions has contributed to restraint, thereby reducing the number of wars and other problems between states. External pressures can also encourage restraint. States often prudentially avoid border violations, recognizing that violations can lead to war, aggravate international tensions, or destabilize an economy. Additionally, trying to exercise hegemonic influence in another state’s internal affairs generally creates more resentment than goodwill.472

Growing numbers of terror groups now operate internationally. Several of the factors that led Thomas Friedman to coin his memorable metaphor, a flat world, have abetted the internationalization of terror and attendant complicating of counterterrorism. These include the relative ease of international travel, near universal access to electronic communication and the internet, and increasing human migration.473 Exogenous terror groups routinely exploit these features of modern life, regularly crossing state borders to recruit and train personnel, raise funds, obtain equipment, plan, and conduct missions.474 Operating internationally can allow a terror group to locate some of its operations and assets beyond the reach of domestic law enforcement authorities. State sponsorship may confer extra credibility on an exogenous terror group’s threats as well as directly aiding the group with funding, supplies, and other assistance.

Al Qaeda is the highest profile international terror group. A loosely networked organization with semi-independent branches that operate in Europe, North Africa, Iraq, Afghanistan, Yemen, and elsewhere, al Qaeda has conducted terrorist attacks on at least four continents (Asia, Africa, North America, and Europe). Support for a single al Qaeda operation often crosses state borders, obtaining the requisite finances, logistics, personnel, and planning from people or cells located in several states. Al Qaeda fighters in Afghanistan, when pursued by US military personnel, frequently sought sanctuary across the Pakistan border,475 a situation that eventually frustrated President Bush to the point where he authorized cross-border incursions.476 Although describing al Qaeda as a global threat, even at the apex of its power, unhelpfully and incorrectly exaggerated the group’s reach and size, al Qaeda remains a large, multinational terror organization.477

The Shiite terror group Hezbollah is another international terror group. They commit terrorist and other criminal activities in Israel, Europe, Africa and the Americas, play a significant quasi-governmental role in parts of Lebanon, send fighters to aid sympathetic foreign entities (e.g., in 2013-2014 to help President Assad retain control of Syria), and receive substantial financing, equipment, and training from Iran.478

International terror groups operate in states in which the rule of law exists as well as in countries, and regions of states, in which the rule of law does not exist. With respect to counterterrorism, sovereignty connotes a state’s responsibility for policing and protecting its own territory. Thus, where the rule of law prevails, Justice for Terrorists begins with Apprehension and relies upon international cooperation. States that use multinational (instead of unilateral) counterterrorism measures against an exogenous terror group operating in a state where the rule of law prevails may not always achieve all of their counterterrorism goals. Nevertheless, multinational counterterrorism that respects state sovereignty best addresses an international terror group’s several tentacles while not inadvertently creating more conflict.479 Multinational efforts also have the advantage of defusing harsh criticisms that the state conducting the interdiction has acted out of paternalism and self-interest:

The nascent institutionalization of the rule of law is jeopardized when one state takes it upon itself to be rule maker, rule breaker, judge, jury, and occasionally executioner. We are all better off in a stable world of rules that all expect others to abide by.480

However, apprehension by law enforcement authorities of suspected terrorists is impossible in areas and states in which some reasonable approximation of the rule of law does not prevail internally or externally. There are three types of problematic states:

1. States in which no semblance of the just rule of law exists internally for residents or externally for assisting other states to apprehend and then to extradite criminal suspects, including those wanted for terrorism, e.g., parts of the Middle East,481 Sudan, and North Korea. Ironically, terror groups, having discovered that the cost of protecting their operations frequently exceeds potential benefits, rarely establish bases in dysfunctional states like Sudan in which the rule of law does not exist and that are security vacuums.482

2. Areas of states in which the rule of law does not exist even though other areas of the state generally uphold the rule of law, e.g., much of Afghanistan in 2013, Pakistan’s Federally Administered Northwest Tribal Areas483 and much of Yemen.484

3. States in which the rule of law prevails internally, but may not include international cooperation in apprehending terrorists or extraditing those apprehended for adjudication abroad, e.g., Iran.

States concerned about the problem of international terrorism, particularly states whose citizens have suffered from attacks by international terror groups based in part or entirely in an area or state(s) in which the rule of law does not prevail, will sometimes have no potentially effective counterterrorism options. At one extreme, the state whose citizens a terror group has attacked may choose—consonant with the virtues of temperance, prudence, and justice—to take no or very limited action, waiting for a more opportune moment. Several states, in the aftermath of terror attacks by Libyan terrorists or terrorists who had allegedly received Libyan assistance, chose not to attack Muammar Gadaffi’s Libya, instead negotiating and adopting indirect measures that time proved to be more temperate, just, and effective.

At the other extreme, the state whose citizens a terror group has attacked may choose, in an attempt to impose the rule of law and curtail terror group operations, to invade, conquer, and impose regime change on the state that sponsored or abetted the attacker. The United States justified its 2001 invasion and occupation of Afghanistan on this basis, in a very costly and perhaps less effective response than if the US had done nothing. The US did not manage to kill Osama bin Laden until almost a decade after its conquest of Afghanistan, in 2011, a deed it accomplished in Pakistan, not Afghanistan. The Just War Theory paradigm provides a framework for assessing the justness of actual and potential wars of conquest.

A wide range of options, many situationally determined, exist between doing nothing and conquest. Some options will be kinetic, i.e., involving direct, potentially violent actions. Kinetic options may include discrete military operations (e.g., air strikes and limited Special Forces missions) and covert intelligence agency missions. Other options will be non-kinetic, i.e., not involve potentially violent military operations or covert actions by intelligence agency assets. Possible non-kinetic response may include the imposition of diplomatic or economic sanctions, diplomatic negotiation, information operations (e.g., taking down terrorist internet sites or conducting anti-terrorist publicity campaigns), and seeking redress through an international organization such as the International Criminal Court or the UN Security Council. The distinction between kinetic and non-kinetic easily blurs, e.g., an intelligence collecting or reconnaissance mission goes unexpectedly wrong and results in combat. Non-kinetic responses raise additional ethical questions about collective punishment and what constitutes an act of war. For example, economic sanctions can require a blockade (often considered an act of war) and fall more heavily upon innocent citizens than upon the military personnel or non-democratic political leaders actually linked to the state’s sponsorship of international terror (collective punishment). In counterterrorism, collective punishment is of dubious efficacy and offers the terror group and its state sponsor an opportunity to exploit the unjust action for propaganda purposes.

The Just Counterterrorism Model enumerates clear conditions for determining when and how states that have suffered a terror attack justifiably violate another state’s sovereignty in a kinetic response that targets the person(s) suspected of perpetrating or aiding the attack. Such cross-border counterterrorism operations are labelled interdictions. Justice for Terrorists’ Interdiction criterion stipulates seven constituent elements that an ethical interdiction must satisfy. These seven elements are derived from Just War Theory and shaped by the Just Counterterrorism Model’s fundamental concern with justice as fairness. An ethically justifiable interdiction must always satisfy all seven.

Although not addressed in detail, the Interdiction framework provides a useful paradigm for assessing whether proposed a state’s non-kinetic responses to a terror attack from a terror group operating in an area in which the rule of law does not prevail or the host state sponsors the group. De facto kinetic actions that resemble interdictions are more numerous and more potentially disruptive of international order than non-kinetic actions; hence the focus on kinetic counterterrorism responses.

Counterterrorism actions resembling interdictions are widespread. Denying international terrorists safe havens is an explicit goal of US counterterrorism strategy485 and an element of effective counterterrorism issue recognized by the United Nations.486 By 2012, US military special operations units had conducted intelligence gathering and counterterrorism missions in at least seventy-five countries, including more than a dozen operations against al Qaeda.487 The Israeli Defense Forces’ Operation Cast Lead incursion into Gaza against Hamas between December 27, 2008 and January 18, 2009, is another example of a cross-border kinetic counterterrorism operation.488 Israel also allegedly killed Hamas operative Mahmud al-Mabbhouh in Dubai without Dubai’s authorization.489

Yet no ethical model now exists for determining what types, if any, of violations of state sovereignty are ethically justifiable elements of counterterrorism strategy or tactics. In the absence of a widely accepted model, arguments about the ethics of targeted killing, for example, founder.490

Conducting interdictions without establishing clear, consistent, ethical, and legal criteria sets a dangerous precedent, inviting other states to engage in their own programs of extraterritorial counterterrorism and military operations. Most alarmingly, the spread of drone technology—by 2011, 76 countries had drones in their military arsenals and China produces several inexpensive models of surveillance drones for export—increases the likelihood of other states emulating, for their own reasons, the US practice of targeted killings.491 Michael Boyle, a former Obama counterterrorism advisor, has publicly worried that the US drone program is “encouraging a new arms race for drones that will empower current and future rivals and lay the foundations for an international system that is increasingly violent.“492 Israel, at least since its Second Lebanon War in 2006, has employed drones for targeted killing of terrorists and guerillas.493

Although nominally illegal under international law, cross-border incursions represent potentially legitimate actions by states acting responsibly to protect themselves and their citizens in the absence of the rule of law.494 For example, the United Nations’ Charter proscription against violating state sovereignty is not necessarily absolute. The Charter mandates that the UN shall promote “universal respect for, and observance of, human rights.“495 Terrorist attacks against innocent people violate the UN recognized basic human right to security of one’s person and life.496

Other international bodies have also taken preliminary, tentative steps toward recognizing a right of states to intervene in another state’s territory. In 1949, the United Kingdom sent Royal Navy minesweepers into Albanian territorial waters following several of its ships incurring mine damage. In the “Corfu Channel” case, the International Court of Justice rebuked Albania for not warning shipping that its waters were mined, while also finding that the UK’s forceful intervention had no basis in international law.497 Most importantly for justifying the British intervention, the UN Charter recognizes that states have an “inherent right to self-defense.“498

Some ethicists, politicians, and other leaders argue that in the case of egregious human rights violations, states have a right to intervene in another state’s affairs, even without UN authorization.499 Professor of Political Science at Tel-Aviv University, Tamar Meisels, analyzing Israel’s struggle against terrorists, advocates targeted killing as a form of interdiction when capture is impossible because the rule of law does not exist.500 Terrorism scholar Avery Plaw similarly contends that targeting killing does not violate international law in general and the treaty against assassination in particular.501 Jurists Gabriella Blum and Philip Heymann, after studying the problem of terror groups operating in places in which the rule of law does not exist, have proposed a solution analogous to, but less developed, than my proposal for interdiction:

It seems that a persuasive argument can also be made that under some conditions, targeted killings of suspected terrorists can be justified on the basis of a law enforcement paradigm. When conducted in the territory of another country, targeted killing must be based on a self-defense exception to the international law prohibition on the use of force, and in consideration of another country’s sovereignty, should only be executed if that other country either consents to the operations or else is unable or unwilling to interdict the terrorist.502

Cyber-attacks launched from one state against computers in a different state pose a problem analogous to that of international terrorism with respect to state sovereignty. An enemy state, criminals, or a terror group may conduct the cyber-attack from an area or state in which the rule of law does not exist, at least in a way that would permit the lawful apprehension of suspects. Yet the state attacked, or whose citizens suffered attack, has a right to, even a duty of, self-defense. Writing about this problem, military ethicist Edward Barrett proposes a solution similar to interdiction:

Nation-state obligations transcend borders. Societies are obligated to not only protect their citizens’ rights, but also to protect other states’ citizens from threats emanating from their jurisdictions. States unwilling to meet this latter obligation, or who are unable to and refuse necessary assistance, lose their right of non-intervention, and threatened states have a corresponding obligation to intervene in order to locate and/or retaliate against attackers. In these situations, the principles of forfeiture and necessity still govern actions toward all rights offenders. If the offense warrants lethal force, and if capture by the host state or US forces is impossible, lethal force may be used. However, extraordinary care must accompany the identification of these targets, and appropriately transparent institutional structures must be created to ensure such care. Of course, retaliation against states themselves is warranted if attribution efforts prove collusion with these states.503

Decisions to violate international law by transgressing another state’s sovereignty are fraught with potential harms. In the present absence of any generally effective vehicle for enforcing compliance with international law, the weight of international law depends upon it functioning as a moral force.504 Indeed, one of the charges leveled against international terror groups is that they do not “play by the rules,” a charge drained of its moral force when states respond to terror attacks with a blatant disregard for international law. Interdictions can also weaken international cooperation, contribute to levels of violence spiraling upward, and make it harder to distinguish permissible actions in peace from those permissible in war.505

Interdictions shaped by clear, consistent, ethical, and legal criteria are at best an interim measure until international law adapts to the new realities of international terror groups. The community of states will benefit from international law and institutions establishing legal methods for ending cross-border attacks and apprehending suspected terrorists, cyber criminals, and others who seek to commit crimes from the purported safety of an area or state in which the rule of law does not prevail. In the meantime, the seven Interdiction constituent elements of the Just Counterterrorism Model’s Justice for Terrorists component provide an ethical framework for assessing when and how a state, whose citizens terrorists have attacked, may justifiably violate another state’s sovereignty in an attempt to apprehend suspected terrorists.

Just War Theory, in its historic formulation, provides an inadequate ethical paradigm for counterterrorism interdictions.506 One necessary adaptation is to regard the tripartite framework of justice before, during, and after war as comprising a single set of criteria for ethically assessing interdictions because interdictions, by definition, consist of very short, discrete missions. Some Just War Theory criteria require significant redefinition, e.g., just cause (see below). Other criteria are eliminated as only minimally relevant, e.g., the jus post bellum criterion of establish justice connotes adjudication, which the next part of the Just Counterterrorism Model addresses. Finally, other criteria are consolidated to avoid redundancy, e.g., jus ad bello proportionality and jus in bello proportionality are redundant because interdictions consist of a single operation.

Some military operations may resemble interdictions but are improperly classified as interdictions. A state may engage in discrete military operations of limited scope and duration to end genocide elsewhere in a military mission distinct from counterterrorism, to provide humanitarian aid in the wake of a natural disaster, to coerce compliance with treaty obligations, or to protect its citizens who are abroad from insurgents or non-terror related crime. The term interdiction used in the context of the Just Counterterrorism Model exclusively connotes actions taken against suspected terrorists in places where the rule of law does not prevail.

[]1. Just Cause

Just cause for an interdiction conveys a substantially different meaning than the Just War Theory norm of defense against territorial invasion and ending egregious crimes against humanity. A state’s duty to protect its citizens within its borders is at least as great as its responsibility to protect its territorial integrity. One aspect of a state protecting its citizens is to bring terrorists who have attacked or imminently threatens a state’s citizens and who are part of an exogenous terror group to justice. Broadly sketched, interdictions, when properly conducted by a state with just cause, are ethical because: (1) terrorism is always immoral; (2) states have a duty to protect their citizens; and (3) upholding the global rule of law is an integral element of sovereignty.

In particular, just cause for an interdiction against terrorists requires:

1. Terrorists must have actually attacked, or initiated preparations for an imminent attack upon, citizens in the state desiring to conduct the interdiction. Bellicose rhetoric, voiced and then not acted upon, occurs too frequently in the context of international affairs to warrant preventive interdictions based upon terrorist threats in the absence of demonstrable and imminent intent to harm. The burden of establishing genuine intent before commission of a crime is a legal and practical challenge for which no good solution exists.507 Erring on the side of prevention will result in a proliferation of interdictions, a policy that quickly becomes self-defeating; erring on the side of inaction invites attack. States prudentially chart a middle course between those extremes.

2. The state wishing to conduct the interdiction must have legally valid probable cause for apprehending the suspect(s), who must be an actual terrorist(s), not simply a terrorist supporter.508

3. Absence of the rule of law precludes relying on law enforcement authorities for apprehension and extradition. Absence of the rule of law in this context specifically connotes a geographic area where the terrorist(s) or terror group can operate without interference from the host government.509

4. No other option for forcing the state harboring the suspect(s) to cooperate in apprehension and extradition of the suspect(s) appears viable or timely. Other options, including diplomatic negotiation and cultural sanctions, are rarely promising. States in which the rule of law does not exist commonly remain intransigent in the face of international pressure and sanctions.

5. Regardless of a suspect’s citizenship, apprehension by law enforcement must be infeasible. Extending special protections to citizens of some but not all countries (e.g., citizens of the state conducting the interdiction) would violate the Just Counterterrorism Model’s basic moral premise of justice as fairness. Exemptions could also have the unintended practical consequence of making exempted individuals untouchable, since apprehension is impossible.

The just cause criterion narrowly circumscribes ethically permissible interdictions. Violating another state’s sovereignty is not an action states should take lightly, as it risks worsening relations, perhaps destabilizing if not initiating a war between the two states.

Interdictions primarily target human terror suspects. Forces conducting an interdiction will commonly find, and reasonably seize or destroy, significant secondary targets including weapons, munitions caches, bomb assembly facilities, training bases, and other logistic capacities and equipment. Terror organizations, like other rational actors, rarely position its high value, non-personnel targets in places completely apart from operatives, terror group staff or leaders, trainees, etc. Because most of the tools of terror (weapons, bomb making supplies, and so forth) are readily acquired or replaced, ending a terror group requires interdicting personnel rather than temporarily degrading a terror group’s capabilities by destroying its supplies, logistical facilities, or operating bases.

Prior to an interdiction, non-kinetic counterterrorism responses must have been exhausted, evaluated as unpromising, or rejected as unethical. As noted already, non-kinetic options rarely succeed in persuading or coercing a state to surrender terror suspects or end its state sponsoring of terrorism. Some non-kinetic actions are yet more problematic. For example, economic sanctions are usually a form of immoral collective punishment (i.e., fail to protect noncombatants because the guilty and non-guilty alike suffer economic hardship), may involve actions that are legally acts of war (e.g., a blockade and may therefore lack right authority), and are often ineffective (no reasonable chance of success).

[]2. Right Intent

Right intent for a state conducting a counterterrorism interdiction consists of the state aiming solely to apprehend specific suspected terrorist(s) in the absence of the rule of law for subsequent adjudication. Right intent for an interdiction excludes designing the interdiction as a campaign to eliminate an international terror group, end sponsorship of terrorism by a particular state through regime change, or rectify other problems.

Although terrorism is not an intractable, unsolvable problem this does not mean that states invariably have an effective, ethical response following every terrorist attack. In some instances, counterterrorism requires waiting until a realistic opportunity for effective action becomes apparent. That is, right intent requires a state practice the virtues of temperance and prudence to know when and how an interdiction may be feasible. For example, the principal Pakistani intelligence service, with or without official government knowledge or approval, sponsored Lashkar-e-Taiba, the terror group responsible for the 2008 Mumbai, India, hotel attack that killed more than 150 people. Options for India or its allies, including the US, to conduct a prompt interdiction to capture or kill Lashkar-e-Taiba leaders or to degrade the group’s ability to launch future terror attacks were limited, especially because Pakistan is a nuclear power.510

Right intent also precludes establishing permanent or semi-permanent facilities or operations in the state in which an interdiction occurs. An interdiction may fail. Repeated interdictions may be necessary to achieve success. The US, for example, conducted dozen of missions to capture or kill Osama bin Laden before finally succeeding in 2011. Multiple operations do not justify territorial conquest or unilaterally establishing military bases, intelligence agency outposts, or other facilities. Bilateral agreements on facilities and other issues, into which both states freely enter, represent cooperative progress toward the rule of law and therefore are extraneous to the interdiction framework.

A state conducting an interdiction should, in so far as reasonably feasible, uphold the rule of law during that interdiction by closely adhering to its own legal norms, respecting the citizens and laws of the country in which the interdiction occurs as fully as possible, and complying with all relevant international legal obligations. Ethically conducted interdictions are not an attempt to circumvent law but, in a very limited and well-defined way, to extend the rule of law by bringing justice to terrorists. Thus, for example, an interdicted terrorist should never be considered an unlawful enemy combatant subject to no law and liable to indefinite detention without trial or other rights. Instead, interdicted suspects require adjudication (cf. the final section of this chapter).

[]3. Right Authority

Right authority for an interdiction involves at least one and as many as three sources of authority and, as an examination of targeted killing by drones emphasizes, should include an automatic review process.

First, right authority always connotes a state conducting an interdiction complying with its own laws and legal processes that establish when, how, and under whose authority the state’s military or intelligence agency resources may be used. A state tasking its intelligence agencies with an interdiction may gain an advantage in that, unlike military operations, relatively few international laws or conventions govern human or electronic intelligence missions. Tasking the military with these missions, as recent US administrations have done, may jeopardize the status of military personnel as combatants:

Using US Special Ops Forces for covert actions could mean they lose their Geneva Convention status, be accused of spying and ultimately be labeled “unlawful combatants.” Critics worried that this would place US armed service members at risk should they be captured, with their captors enabled to ignore the Geneva Conventions’ prohibitions on torture and inhumane treatment, citing the US precedent.511

Covert operations conducted by one state’s military or intelligence agencies will generally violate domestic laws of the foreign state in which the interdiction occurs. That state may interpret the operation as an act of war, an interpretation perhaps more likely when military personnel conduct the operation. In other words, a state exercising right authority by adhering to its own law and legal processes will still face uncertainties because of the legal gray areas entailed in violating another state’s sovereignty.

By definition, a joint operation conducted under the legal authority of the state in which the mission occurs is not an interdiction but apprehension through international cooperation. The United States and the Philippines, for example, conducted a 2002 joint operation against a cell of the Abu Sayyaf terror group. Abu Sayyaf, an al Qaeda affiliate, had kidnapped a group of hostages that included an American. The successful operation models the potential for cooperation in apprehension efforts elsewhere:

According to one of the US commanders involved in the mission, a US special operator came up with an ingenious scheme that relied on Philippine human intelligence sources and American technology to discover the Abu Sayyaf hideout where the hostages were being held. A man suspected of acting as a courier for the militants was followed through a market in the city of Zamboanga and persuaded to add a hot chicken to a shipment that the US and Philippine forces believed the courier planned to immediately deliver to the hideout. Thermal sensors aboard an unarmed US drone flying overhead tracked the shipment’s heat signature as the courier headed north to a dock and loaded the shipment onto a boat. Surveillance conducted from the drone followed the boat’s movements until it unloaded at a location that the US operators correctly surmised was the hideout. In a subsequent operation, Philippine troops rescued the hostages, although two were killed.

One of the kidnappers, the Abu Sayyaf leader known as Abu Sabaya, managed to escape in a boat. The Philippine units, backed up by two boats full of US Navy SEALs and guided by the drone, pursued Abu Sabaya and killed him in an attack on his boat.512

Had the US acted unilaterally to free the hostages or to kill Abu Sabaya, the operation might have sparked anti-American protests among Filipinos. By respecting Philippine sovereignty and refraining from a direct combat role, the US concurrently achieved a tactical victory and strategic counterterrorism progress.

Second, states desiring to conduct an interdiction therefore should seek, when possible, to do so under the auspices of international authority and in compliance with international law. This presumes that interdictions are in fact currently legal under international law, a point that legal scholars debate.513 In actuality, few, if any, opportunities for obtaining international authorization now exist. In time, international institutions such as the International Court of Criminal Justice may issue arrest warrants in terrorism cases or provide a public forum for demonstrating just cause more credibly than is possible in a domestic court.

International authority can provide a useful restraint against abusing interdictions both by states in which the rule of law prevails very imperfectly and by superpowers. For the former, government authorities accustomed to exercising great latitude in interpreting due process, probable cause, and other aspects of criminal justice may presume that they have similar latitude in authorizing their armed forces or intelligence agencies to conduct interdictions abroad. Strong neighbors likely to retaliate following an interdiction and international pressure to conduct interdictions only as a last resort when and where the rule of law does not exist may discourage, perhaps even prevent, this type of abuse. Global superpowers in which the rule of law prevails can easily become accustomed to exercising their might and may presume that their national interests outweigh or align more closely with global interests and international law than is actually the case. On occasion, both the former Soviet Union and the US, to the detriment of other states, unilaterally exercised military power to achieve national goals. The Just Counterterrorism Model, as is true of any international convention, becomes an effectual brake on abuses by superpowers and other states only to the extent that the community of states broadly endorses and adheres to its proposed norms.

Working multilaterally can also help a state conducting an interdiction to maintain international legitimacy and credibility.514 Emphasizing the global rule of law and multinational responses to terror crimes may beneficially encourage more states to join the fight against terrorism of all flavors, potentially outweighing any disadvantages of multinational solutions.515 Effective multilateral cooperation in non-kinetic actions may occasionally achieve sufficient counterterrorism success in ending (or reducing) a state’s sponsorship of terrorism or in extraditing terror suspect(s) that a proposed interdiction becomes unnecessary.

Third, right authority may include obtaining the consent of the government of a state targeted for interdiction in which the rule of law applies in some places but not in the targeted area, e.g., in Pakistan which generally upholds the rule of law but is unable to do so in its Federally Administered Northwest Tribal Areas.516 US violations of Pakistani sovereignty have proven problematic for Pakistan, widely opposed by its population even when nominally approved by the military or the government, and seen as legitimizing the Pashtun rejection of the Pakistani government’s authority in the Tribal Areas.517 Some evidence shows that US drone attacks in Pakistan have fueled subsequent terror attacks in Pakistan.518 In the past, Pakistan has sometimes voluntarily approved US drone strikes, sometimes the US has pressured Pakistan to approve strikes, and other times the US has conducted unauthorized strikes.519 At least one regional expert, Daniel Markey, has proposed that the US obtain Pakistani approval for all drone strikes conducted there.520 Treating Pakistan as a peer and valued ally would communicate respect and contribute significantly to improved relationships;521 this step would also reinforce support among the significant portion of Pakistan’s population that endorses the drone strikes.522

Regardless of whether right authority connotes unilateral or multilateral decision making, right authority should include an independent, mandatory review of the proposed interdiction’s approval by the state or international body that wants to conduct the interdiction. Justice for Terrorists connotes justice as fairness, holding actual terrorists accountable for their actions while exonerating persons wrongly suspected of terrorist activities. This presumes that the official or body approving interdictions, especially when capture is not feasible, authorizes only legally justifiable operations.523 In Lord Acton’s memorable adage, “Absolute power corrupts absolutely.” According to Lawrence Wilkerson, who served as Secretary of State Colin Powell’s Chief of Staff, “When you allow no oversight of [authorizing officials], and you allow them to repeat operations, over and over and over again, with no oversight, then you allow them to instinctually gain the knowledge that almost anything goes. Then, almost anything is going to go.“524 Referencing Plato’s myth of Gyges’ ring that renders the wearer invisible and thus prompts him to transgress the law, President of the American Civil Liberties Union Susan Herman has remarked that

It is unrealistic to believe that people who have undertaken a noble mission—to safeguard the American people—will police their means of pursuing that mission effectively if they also believe that they will not be accountable for their actions. That is why the Constitution establishes an elaborate system of checks and balances to provide accountability.525

The US use of drones (drone is the commonly used term for a remotely piloted vehicle) for targeted killing exemplifies the need for an approval review process for all interdictions. Drones are attractive because they offer advantages operationally (ability to stay on target longer than piloted aircraft), politically (do not put personnel in harm’s way and therefore trigger little legislative oversight or interest), and diplomatically (the state in which the strike occurs can deny giving permission regardless of the denial’s truth).526 Although this analysis focuses on strikes using weaponized drones, most US military drones are unarmed and employed for reconnaissance, intelligence collection, and other support missions.527

The authority to approve US drone strikes rests with the President, who is both Commander-in-Chief of the military and legally responsible for authorizing any covert missions US intelligence agencies conduct. The President may exercise that authority personally or delegate it to senior government and military officials. Pertinent statutes include the international Laws of Armed Conflict and the US 2001 Authorization for Use of Military Force Act. A US Department of Justice White Paper argues that the President has the authority to order the killing of US citizens who are senior operational leaders of al Qaeda and affiliated organizations, and foreigners, who pose an imminent threat, when capture is infeasible, and the killing will comply with the Laws of Armed Conflict.528

Anwar al-Awlaki was an American born radical Muslim cleric, allegedly active in recruiting Islamist terrorists and planning terrorist attacks, killed in a US drone strike.529 His sermons had gone viral on Islamist websites, but no published evidence proved that he himself had done anything that was not protected speech under the US Constitution’s First Amendment or that was patently illegal. US intelligence agencies, however, badly wanted him silenced. They first arranged for Awlaki to spend 18 months in a Yemeni prison and then killed him in a drone strike for which the Obama administration served as prosecutor, judge, jury, and executioner.530 While serving as CIA Director, Leon Panetta said about the targeted killing of al-Awlaki, “This individual was clearly a terrorist and yes, he was a citizen, but if you’re a terrorist, you’re a terrorist.“531 One of the few voices raised in protest against al-Awlaki’s killing was that of Dennis Kucinich, a Democratic Congressman from Ohio, who said,

The Administration has a crossed a dangerous divide and set a dangerous precedent for how the United States handles terrorism cases. This dangerous legal precedent allows the government to target US citizens abroad for being suspected of involvement in terrorism, in subversion of their most basic constitutional rights and due process of law. Their right to a trial is summarily and anonymously stripped from them.532

Who is correct, Panetta or Kucinich? Was killing al-Awlaki justifiable? Has the US wrongly targeted other individuals? No review process exists to make that determination. And although no evidence suggests that it has occurred, no review process now exists to prevent the President, or officials at the CIA, National Security Council, and Department of Defense to whom the President has delegated authority to approve individuals for targeted killing, from ordering drone strikes against personal enemies abroad.533

Perhaps the most ethically troublesome US targeted killing tactic is the signature strike, in which US decision makers, use drone video surveillance to identify individuals engaging in a pattern of suspicious behavior and then target those individuals for death:

The CIA had approval from the White House to carry out missile strikes in Pakistan even when CIA targeters weren’t certain about exactly who it was they were killing. Under the rules of so-called signature strikes, decisions about whether to fire missiles from drones could be made based on patterns of activity deemed suspicious. The bar for lethal action had again been lowered.534

Signature strikes are sometimes preemptive, targeting individuals who have engaged in suspicious behavior patterns but against whom the US possesses no evidence of terrorist activity; the target’s potential for violence against the United States allegedly justifies the strike.535 The US may or may not know the target’s name. A signature strike in Yemen killed the American born, sixteen year old son of Anwar al-Awlaki and several others in what US officials subsequently admitted, off the record, was a mistake.536

The preemptive execution via a signature strike is alien to Rawls’ concept of justice as fairness, violating both human rights and the rule of law. Without knowing a suspect’s name, and absent evidence of terrorist activity, which would be available if the target represented a clear and present danger, signature strikes are unethical. Moreover, officials who authorize signature strikes, as is true for all US drone attacks, have no accountability either before or after the attack. The US has refused to publish or submit for any public or judicial review its criteria for conducting signature strikes, creating a worrisome ethical and legal void537 that may undermine the US democratic process.538

Requiring an automatic independent judicial review before executing an approved interdiction imposes a reasonable, affordable, and manageable check on approval authority.539 States and international bodies could each design a review process tailored to their particular political structure with the power to sanction, modify, or reverse the initial approval. The law establishing the review process should explicitly bar the review authority from initiating an interdiction, ensuring that the review remains a safeguard against abuses. Unlike most appellate processes, review proceedings would be secret: notifying an intended target(s) of a possible strike is tantamount to ensuring that most interdictions fail. Thus, the review should also be automatic because the interdiction’s target(s), unaware of the proposed interdiction, would have no ex ante (and often no ex post!) right of appeal.

Judicial processes are generally fairest when a neutral third party adjudicates adversarial arguments advanced by both parties.540 Since the suspect(s) will always be absent, the review process must provide an advocate for the intended target. The advocate should work to ensure that approval is based upon reasonable standards of evidence, complies with all relevant laws, no realistic options to the proposed interdiction exist, odds strongly favor success, killing is authorized only if capture is not feasible, and potential benefits heavily outweigh all potential costs. The review authority and staff should also be independent of the initial approval authority, neither solely appointed by nor accountable to the latter.

The cost of implementing an independent, automatic review process for all proposed interdictions is minimal compared to an interdiction’s cost. For example, the least expensive US cruise missile costs in excess of $600,000, a Predator drone upwards of $4 million, and operations that call for inserting troops overseas cost far more.

Conducting a review process in a timely, classified manner is feasible, as evidenced by sovereign states that currently require a judicial warrant before using a wiretap or other secret, time-sensitive surveillance method that will violate the suspect’s civil rights. A two-stage review process can facilitate timely decisions. The first stage could review the initial approval for conducting an interdiction against a particular target(s) and approve the plan in principle. The second stage would then review only the details of the finalized plan to ensure compliance with the initial review and to consider any new information, perhaps conducting the review electronically to expedite the process and to permit the operation’s timely implementation.

Right authority connotes complying with domestic law, seeking multinational authorization and cooperation when possible, and seeking the approval of a state in which the rule of law partially applies when an interdiction is planned for an area of that state where the rule of law does not exist. An examination of the US use of drones for targeted killings illustrated the importance of the last element of right authority, i.e., submitting every planned interdiction to a mandatory review process to protect the rights of those targeted and to minimize approving authorities being able to abuse their power.

[]4. Reasonable Chance of Success

Law enforcement authorities sometimes kill a suspect in the process of attempting to arrest that person. However, their goal is always apprehension, not execution. Interdictions are different. If deemed reasonably feasible, an interdiction aims to succeed by capturing the targeted suspect(s) for subsequent adjudication. If captures proves impossible, or the approving authority and review process deem capture not reasonably feasible, an interdiction succeeds if it kills the suspect(s). This critical difference between Apprehension and Interdiction—having the latitude for extrajudicial execution when capture is impossible—makes it imperative that proposed interdictions satisfy Justice for Terrorists’ constituent elements of just cause, right intent, and right authority. No right is more basic than the right to life; an extrajudicial execution violates that right irreversibly.

Successful interdictions, like successful apprehensions by law enforcement, depend upon collecting, collating, and analyzing accurate, timely intelligence to ascertain the probable location of the targeted suspect(s) with a high degree of probability.541 This information is often highly perishable. Targeted individuals may frequently shift locations, change clothes, switch vehicles, and take other steps to become hard to locate. Obtaining accurate, timely, actionable intelligence may be more difficult than conducting the actual interdiction. Approximately fifty percent of US Special Operations missions in Iraq failed because of intelligence failures.542

Approving, reviewing, and executing interdiction missions thus requires speed, flexibility, and great patience. Acting precipitately can lead to failure, injustices, and other harms. Compared to apprehension by law enforcement, interdictions generally have a lower probability of success because of their more complicated operational plans, more extensive logistics, and foreign intelligence requirements. Interdicting the wrong target, killing or injuring disproportional numbers of non-terrorists, and unwarranted violations of another state’s sovereignty all undercut international support for future operations and violate the important ethical norms of respect for state sovereignty, respect for persons, and justice.543 In a worst-case scenario, a poorly designed or bungled interdiction may ignite a war. The abortive hostage rescue attempt launched after Iranian students took possession of the US embassy in Teheran illustrates the needless loss of life associated with an interdiction that, at least in retrospect, lacked a reasonable chance of success. Among other problems, planners incorrectly estimated the size and structure of the force that the mission required.

Interdictions—whether a raid conducted by Special Operations military forces, an intelligence agency’s drone strike, or a cruise missile attack—are rarely strategically decisive in the fight against terrorists, yet often incur significant political and diplomatic costs. For example, in the wake of the operation that killed bin Laden, Pakistan terminated several joint US-Pakistani counterterrorism initiatives that appeared promising:

In the aftermath of Operation Neptune Spear, the raid that killed bin Laden, the Pakistani public's anger at the raid, along with the embarrassment of Pakistani officials over the violation of the country's sovereignty, plunged the already tense U.S.-Pakistani relationship into crisis -- with a specific cost to U.S. special operations forces. Among several retaliatory actions, Pakistan aborted a carefully cultivated, multifaceted American presence in the province of Khyber Pakhtunkhwa and the Federally Administered Tribal Areas, both of which are dominated by Pashtuns and where U.S. special operations forces were distributing wheat seeds to civilians while also training, advising, and equipping the paramilitary Pakistani Frontier Corps and Pakistani special forces. Pakistan also terminated a U.S. special operations advisory mission with the Pakistani navy along the strategically important Makran coast in the restive province of Baluchistan, which borders Iran. 544

The Pakistani government has repeatedly condemned violations of its sovereignty by the US, especially the US use of drones.545

A tactically successful interdiction may in fact constitute a counterterrorism strategic failure. Assassinations, as the discussion of decapitation as a means of ending terrorism recognized, are of dubious efficacy. For example, Israel’s targeted assassinations of Hamas leaders in response to Hamas’ terrorist attacks have had little long-term impact, put Israeli Defense Force personnel at risk, and strengthened bonds between Hamas and its constituents by inflicting casualties on non-terrorists. The assassinations have caused Hamas to pause temporarily to regroup while selecting new leaders. Hamas has then resumed its terror operations as before the attack.546 In short, the assassinations, although tactically successful, killing the targeted terrorists, have worked against Israeli efforts to end terrorism.

Another potential danger is that the terrorist’s constituents will view the assassination as martyring the terrorist. President Clinton’s authorization to hunt down and kill, if necessary, Osama bin Laden after al Qaeda’s attacks on US embassies in Africa ran that risk.547 Between 1998 and 1999, the US reportedly had “at least ten opportunities to capture or kill Osama Bin Laden, [but] the Clinton administration repeatedly decided not to act.“548 Although he did not become a martyr, Bin Laden’s death has not eviscerated al Qaeda, but as Marc Sageman presciently predicted:

As the NSCT [National Strategy for Counterterrorism] states, ‘the loss of a leader can degrade a group’s cohesiveness and in some cases may trigger its collapse.’ This may be true in some cases, but in this instance, it is wishful thinking. The loss of Osama bin Laden or Ayman al Zawahiri will not have this predicted effect. The leaderless jihad will survive, for it is not especially cohesive and lacks central operational command and control. It is important to bring the principal leaders to justice for past atrocities, but their loss in terms of the future of the movement will be easily overcome.549

Thus, interdictions are a last resort, conducted only when multiple competent experts assess that an operation has a reasonable chance of achieving its immediate aim and will contribute to accomplishing a state’s overall counterterrorism strategy. Israeli killing of Hamas’ leaders illustrates the importance of evaluating both the potential for the success of the proposed mission and longer term, counterterrorism goals. US drone strikes have killed several thousand people in Pakistan, hundreds in Yemen, and an unknown number elsewhere.550 Although this killing of alleged terrorists and other foes occurs with increasing accuracy and a diminishing amount of collateral damage, the net contribution of these tactical successes to the US counterterrorism is far from clear.551

[]5. Proportional

An interdiction’s planners, approving official(s), the reviewing authority, and implementers should all aim for an interdiction to achieve significantly more good than harm, i.e., estimates of probable benefits should outweigh estimates of probable harms in an interdiction’s planning and execution. The primary intended benefits will consist of (1) the increased safety of people and property in the interdicting state and other states that result from preventing future attacks by the suspect(s), (2) public perceptions of their increased safety, which contributes to psychological well-being, and (3) increased justice for terrorists. Secondary benefits may include increased public safety from the interdiction degrading or destroying a terror group’s equipment, resources, or physical infrastructure. Probable costs include (1) the human, fiscal, and material costs of the interdiction to the state(s) conducting the operation, (2) collateral damage to people or property, (3) costs associated with violating the sovereignty of the state in which the interdiction occurs, and (4) any potential benefits that the terror group may wring from even a successful interdiction. Quantifying benefits and costs, when practical, can improve analytical accuracy by reducing subjective bias. Potential benefits and costs not directly linked to justice for the attacked community, terrorists, or the community that supports the terrorists are irrelevant for these calculations, e.g., improving a politician’s image for taking decisive action against terrorists. Both benefits and costs should include estimated tactical and strategic gains and losses.

Justice for terrorists is not a priceless goal worthy of achieving at any cost. Most states will carefully weigh their own projected benefits and costs. However, justice as fairness requires that justice for terrorists not impose excessive costs on others. The cost-benefit estimate of proportionality provides a moral restraint against single-minded pursuit of justice for terrorists that ignores collateral damage and harms. For example, although US drone attacks against al Qaeda and Taliban targets in Pakistan’s tribal areas

have killed militants, they have also killed hundreds of civilians, including children. Predator strikes in the tribal areas have inflamed Pakistani and Afghani nationalism and anti-American sentiments. In particular, the drone attacks have radicalized a critical segment of the Pakistani middle class, from whose ranks emerge new recruits.552

The animus toward the United States from its drone strikes extends broadly across Muslim states and encompasses numbers of Muslims in Europe and the US. Some terrorists have pointed to the drone strikes as a central factor in their radicalization.553 US drone strikes have also figured prominently in al Qaeda propaganda materials designed to mobilize recruits and solicit donations.554 Partially in response to these problems, the CIA has improved the accuracy of its drone strikes in Pakistan over time, significantly reducing casualties.555

Executing a military or covert intelligence operation rarely proceeds strictly according to plan. Unforeseen challenges, problems, and opportunities are the norm. Adhering to the proportionality criterion may demand aborting rather than completing an operation. Operators executing an interdiction therefore need skills in analyzing potential costs and benefits, or must depend upon remote command authority to weigh those, if the execution significantly deviates from the plan.

Cost-benefit analyses of potential interdictions should allow for robust margins of error, ensuring that in spite of unexpected adverse occurrences that the interdiction can succeed in achieving both its mission (the tactical goal) and a net increase in justice (the strategic goal). An interdiction's target must thus pose a significant threat; interdicting low- and mid-level personnel will generally produce disproportional negative results. 556

Rarely, if ever, will a successful interdiction completely defeat a terror group. Decapitation seldom ends a terror group nor are all of a terror group’s members likely to be in one location. Nor can a simple body count of suspected terrorists killed measure an interdiction’s success. Efforts to extirpate international terror groups frequently have the unintended consequence of attracting new recruits and supporters for the group. An interdiction may properly kill suspects unable to be captured, but that is an instrumental goal toward the ultimate strategic goal of justice for the attacked community, for terrorists, and for the community that supports the terrorists. Israel, in fighting Hezbollah in Lebanon in 2006, was clearly ahead in the body count but lost the propaganda battle. In counterterrorism, “perception matters more than military results.“557

Successful interdictions are generally incremental tactical steps toward defeating a terror group. Consequently, discreet and limited use of lethal force is more appropriate than the use of overwhelming force characteristic of traditional military operations.558 Reliance on limited force does not jeopardize the state’s security. Terror groups choose a terror strategy or tactics because of their weakness and thus, by definition, do not pose an existential threat to the interdicting state. Nor is the future of the state conducting an interdiction contingent upon its successful completion. Indeed, employing overwhelming force against an interdiction’s target(s) is more likely to trigger severe international repercussions, increase opprobrium toward the interdicting state especially within the interdicted state, and complicate future interdictions. Israel, in its 2007 air war achieved a tactical victory against Hezbollah’s cross-border attacks but experienced a strategic defeat in its campaign against terrorism.559

Although the proportionality criterion echoes the apprehension requirement for minimum force that is integral to police tactics, determining minimum force for interdiction missions is significantly more complex, involving balancing force projection, mission accomplishment, force protection, and avoiding collateral damage to people and property.560 As with an apprehension, using minimum firepower generally produces the best results in counterterrorism operations,561 a lesson the British repeatedly learned.562 However, using insufficient force can also cause an interdiction to fail, as happened in the attempt to rescue the US embassy staff in Tehran. A ready reserve, not deployed until needed, will in some circumstances intimidate foes, halt armed resistance more quickly, and achieve greater success. Actual employment of overwhelming firepower is morally problematic in anything short of total war.563

[]6. Noncombatant Discrimination

Just counterterrorism targets suspected terrorists. However, as in Apprehensions conducted by law enforcement authorities, an Interdiction of terror suspects may unintentionally kill or injure non-suspects. The term collateral damage used in reference to an Interdiction connotes harm both to non-suspects and to their property because harm to either can produce blowback, i.e., adverse repercussions. Justice as fairness dictates three considerations that apply to the possibility of collateral damage in interdictions.

First, those planning, approving, and executing an interdiction must intend no harm to non-suspects or their property. An interdiction’s intended targets appropriately consist only of suspected terrorists and their assets. Any collateral damage should be incidental and unavoidable.564 Targeting an entire apartment building for destruction because suspected terrorists live in one unit, as Israel has repeatedly done,565 is unethical even when Israel notifies occupants in advance of the strike because it intentionally makes multiple persons and families, many of whom are presumably innocent, homeless. Former CIA Director Richard Helms has described this type of counterterrorism measure as “fighting terrorism with terrorism,“566 a poignant assessment more precisely rephrased as fighting non-state terrorism with state engendered fear.

Second, in addition to relying upon minimum force, a state must make every effort to minimize collateral damage. In particular, noncombatant discrimination takes priority, though in relative rather than absolute terms, over force protection of personnel involved in an interdiction.567 Likewise, an interdiction’s reasonably expected gain, in addition to overall proportionality, must heavily outweigh anticipated collateral damage. Ideally, an interdiction will not cause any collateral damage to innocent persons or their property. Realistically, few interdictions will meet that standard. Collateral damage from drone strikes against al Qaeda has fueled radicalization among Islamists, ensuring a steady stream of new recruits to replace terrorists killed in the strikes.568 Similarly, careless or wanton killing of Vietnamese civilians contributed to the American defeat there, further alienating an already disaffected population.569

No numeric rule of thumb exists, or is possible, to determine the acceptable ratio of mission success to noncombatant harm. The discussion of proportionality underscored both the difficulty in predicting outcomes and the potential for miscalculating an interdiction’s effects ex ante facto. Furthermore, counterterrorism authorities, civilian and military defense experts, intelligence analysts, and political leaders all tend to have an understandable bias in favor of protecting public safety, an associated proclivity to over-estimate the amount of harm that a terror group may cause, and often an optimism about operational capabilities, projecting little collateral damage. Insisting that potential gains heavily outweigh anticipated collateral damages is partially to compensate for those biases. States tend to regard the lives of their citizens as more valuable than the lives of foreign citizens. Requiring that gains heavily outweigh anticipated collateral damage also helps to correct for this distortion. Finally, interdictions may create future fallout, a form of associated damage not immediately apparent, difficult to predict, but that often develops. Illustratively, US drone strikes in Pakistan have enhanced cooperation among terror groups and increased terror attacks against the local population.570

Michael Gross argues for the opposite view: targeted killing may be morally acceptable even if the ratio of terrorists killed to innocent civilians killed is less than one to one.571 He maintains that calculations should include the lives of the people that the terrorists would have killed, had the terrorists survived. He also assigns the terrorists who sought to hide among civilians partial responsibility for noncombatants that a strike kills. An Israeli study concluded that a ratio of 3.14 civilian deaths per terrorist was acceptable. Research by Israel’s internal security agency, Shin Bet, showed that a suicide bomber, on average, killed 16-20 people.572 Nevertheless, these arguments are unpersuasive; broader empirical evidence supports the conclusion that Israeli targeted killings result in more, not fewer, terror bombings by Palestinians.573 Former US National Security Counterterrorism Coordinator Richard Clarke agrees: “I don’t think the Israeli experience of having a broad hit list has been terribly successful. It certainly hasn’t stopped terrorism or stopped the organizations where they have assassinated people.“574 The real value in Israel’s targeted killings of terrorists appears to be the “visceral sense of potency” that the Israelis derive from the killings.575

In sum, insisting that a proposed interdiction have a substantial expected gain compared to any anticipated collateral damage provides a necessary margin of error consonant with justice for the attacked community, for the terrorists, and for the people among whom the interdiction occurs. The first and second considerations comprise the ethical doctrine of double effect: a necessary act, intended to be good, causes harm that is unavoidable, unintended, and outweighed by the good achieved.576 Anytime collateral damage can be reasonably expected, whether in apprehension or interdiction missions, the doctrine of double effect applies, i.e., the collateral damage must not be intended and must be outweighed by the good achieved.

The doctrine of double effect poses a high threshold for many types of non-kinetic interdictions to cross. Obviously, some non-kinetic measures, such as diplomatic talks or cancelling cultural exchange programs, would usually cause no or very minimal collateral damage. Other non-kinetic measures, such as trade embargoes or blockades, can cause varying degrees of extensive collateral damage. Ironically, measures that target an entire populace appear likely to be most effective in a democracy (usually a state in which the rule of law prevails and therefore not subject to interdictions) and least effective against a dictatorship or oligarchy (usually a state in which the rule of law does not prevail and therefore subject to interdictions). A state considering non-kinetic actions to interdict terror suspects has the same obligation to assess its possible actions ethically as does a state considering a kinetic interdiction.

Third, working cooperatively, if possible, with any state whose sovereignty an interdiction compromised or with international bodies, the state that conducted the interdiction should establish and publicize avenues for the redress of any wrongs the interdiction caused. This redress includes financially compensating citizens not targeted but whose property the interdiction destroyed, innocents killed, lost work time, etc.577 The US Army calls these payments “an expression of sympathy toward a victim or his or her family;” the payments to drone attack victims, from the scant public data, appear to average a few thousand dollars.578 These steps, which adhere to Rawls’ principles of justice as fairness, avoid an interdiction wrongly burdening—de facto punishing—the innocent. States should conduct an interdiction, in so far as possible, in a manner that respects the dignity and worth of the people whose sovereignty an interdiction violates.

The importance of adhering to these three considerations is readily apparent in the significant foreign and domestic backlash that US attacks abroad, especially by drones, against suspected terrorists have generated.579 Homegrown terrorists, like Najibullah Zazi who pled guilty to several New York City bombings, Major Nidal Malik Hasan who went on a shooting rampage at Fort Hood, and others have radicalized themselves in the wake of a perceived campaign against Islam. Faisal Shahzad, who attempted the Times Square bombing, explained to the federal judge at his trial why he targeted civilians:

Well, the drone hits in Afghanistan and Iraq, they don’t see children, they don’t see anybody. They kill women, children, they kill everybody. It’s a war, and in war, they kill people. They’re killing all Muslims.580

[]7. Rapid Closure

Regardless of its success, an interdiction should end upon completion of the assigned mission. This includes withdrawal of any military or intelligence agency personnel inserted into another country as part of the interdiction. If the interdiction was unsuccessful, new intelligence may lead to another interdiction against the same target. This pattern, conducted in accordance with other Just Counterterrorism Model principles, adheres to Rawls’ understanding of the concepts of respect for persons, state sovereignty, and justice. If the US had utilized this model in pursuing bin Laden instead of invading and occupying Afghanistan and Iraq, the US would likely have enjoyed continued widespread support throughout the world, including among Muslims.

Rapid closure of an interdiction means that the jus post bellum criteria of respect for persons, establishing justice, and exercising ecological responsibility apply narrowly, if at all. Generally, no forces will demobilize following an interdiction. The Interdiction criteria of right intent, right authority, proportionality, and discrimination incorporate the elements of respect for all others (suspects, abettors, witnesses, bystanders, etc.). An interdiction’s purpose is to establish justice, but only in the limited sense of justice for terrorists that also promotes justice for the community whose citizens the terrorists attacked and for the community that supports the terrorists. Conducting an interdiction in a manner that fails to exercise ecological responsibility (e.g., by using chemical weapons, mines, or bomblets or by not seizing or destroying captured weapons) fails to satisfy the Interdiction criteria of right intent, noncombatant discrimination, and proportionality.

Rapid closure applies to non-kinetic as well as kinetic interdictions. A state that imposes non-kinetic interdictions will obviously not disclose the intended duration of a measure. However, if a non-kinetic interdiction continues for too long (e.g., multi-year economic sanctions), then the targeted state and its population adjust to a new normal. Because of Israel’s imposition of trade embargoes on Gaza, a large and expanding trade flourishes through more than a thousand tunnels beneath Gaza’s border with Egypt, employing tens of thousands of Palestinians and contributing to the emergence of a Palestinian middle class.581

Several countries already conduct military and non-military covert operations in other states, often without requesting or receiving permission from those states. These countries recognize the inadequacy of existing international law to deal with problems such as global terrorism and genocide.582 Current practices afford little public scrutiny or accountability,583 unless a mission attracts unwanted publicity, such as occurred in the aftermath of the failed US attempt to rescue hostages in its Iranian embassy. Justice for Terrorists encourages states to acknowledge their interdictions, at least after the fact, and to allow public scrutiny, even on a limited basis. Increased scrutiny, although perhaps unlikely, may become a catalyst for the UN or other multinational bodies to propose international law provisions stipulating when and how interdictions and humanitarian interventions are legal,584 as well as potentially discouraging interdictions that do not satisfy Justice for Terrorists’ seven Interdiction criteria.

[]8. Case Studies

The case study in Chapter 6 that illustrates the Just Counterterrorism Model’s potential usefulness in shaping and assessing effective, comprehensive, ethical counterterrorism involves domestic rather than international terrorism, and so does not include an interdiction. The US, which probably conducts the most interdictions, relied first on extraordinary renditions and now on targeted killings (totaling over 1700 using drones as of this writing585). Evaluating those practices provides two mini case studies that demonstrate the potential effectiveness of the Interdiction component of Justice for Terrorists.

Rendition—the practice of illegally capturing a suspect in another country to bring the person to the US for trial on terror related charges—began under President Clinton. That type of rendition, which usually adhered to all seven Interdiction criteria, exemplifies ethical and effective counterterrorism consonant with Justice for Terrorists. In particular, these renditions occurred only if the US possessed firm evidence of a terror suspect’s guilt, intended to capture the suspect, had Presidential approval, were assessed to have a reasonable chance of success without harming the innocent, and ended with US law enforcement taking custody of the suspect upon the suspect’s arrival in the US. The absence of protracted, extensive public outcry in the states where most of these renditions occurred suggests that the renditions satisfied the proportionality criterion. The most flagrant violations of the Interdiction criteria among this type of rendition were that some occurred in countries where the rule of law prevails, the US wishing to avoid both the possibility of the suspect discovering their plans and dealing with potentially lengthy extradition proceedings.

Extraordinary rendition began during President George W. Bush’s first term as President. Extraordinary rendition connotes kidnapping individuals abroad and then declaring them unlawful enemy combatants liable to indefinite detention in a US prison at Guantánamo Bay or in Afghanistan, or transferring them to foreign torturers and jailers with no legal rights.586 Having already argued that torture is incompatible with justice, this assessment of extraordinary rendition focuses on the practice of indefinite detention at Guantánamo. The ethical analysis applies equally to persons the US holds elsewhere (e.g., in Afghanistan), but the US has adamantly refused to divulge information about the identities, numbers, locations, or reasons it indefinitely detains those prisoners.587

Presume the US has just cause to believe that a suspect is a terrorist, though this presumption lacks prima facie credibility in view of the dozens of individuals held at Guantánamo and then released because the US lacked evidence of their guilt. In any case, extraordinary rendition and indefinite detention as an unlawful enemy combatant without rights and to whom no law applies clearly violates the Interdiction right intent criterion. That is, the US affected the capture with no intention of ever adjudicating the individual. Extraordinary rendition also fails to meet the right authority criterion. Both US law and international law, based on conventions developed between the two World Wars, classify persons the US terms unlawful enemy combatants as criminals.588

Nor is extraordinary rendition demonstrably successful.589 Interdiction’s fourth and fifth criteria, taken together, stipulate that the measure of an Interdiction’s success is not merely effectively completing a particular operation (tactical success) but to degrade the terror group and to bring terrorists to justice (strategic success). Former CIA Director and DOD Secretary Robert Gates has acknowledged that any valuable information that a detainee may possess diminishes in worth over time and indefinite detention of Islamist terrorists puts US military personnel at greater risks around the world.590 Extraordinary rendition of a person later discovered not to be a terrorist engenders animosity toward the US with no offsetting gain and can confront the US with a newly radicalized individual if the person is subsequently released.

The costs—financial and otherwise—of operating the Guantánamo prison underscore the failure of extraordinary rendition to achieve proportional success: $800,000 annually per detainee vs. $25,000 annually per federal prison inmate.591 Former US Secretary of State Colin Powell advocated shutting the Guantánamo prison because it embarrassed the US abroad: “Essentially, we have shaken the belief that the world had in America’s justice system by keeping a place like Guantánamo open and creating things like a military commission.“592 Indefinite detention—perhaps without permitting a detainee to contact family, consult with legal counsel, know the charges of which s/he stands accused or be released, and maybe undergo incessant interrogation—violates a basic premise of Rawls’ concept of justice as fairness. By imposing a draconian and de facto punishment without the impartial administration of normal due process, indefinite detention also abrogates the rule of law.593

Finally, the extraordinary renditions that filled Guantánamo lack rapid closure. Sometime late in the first decade of the twenty-first century, practical issues and public concern, both domestic and foreign, about the injustice of extraordinary rendition and indefinite detention ended the inflow of detainees to Guantánamo. Congress, bowing to political pressure not to bring Guantánamo detainees to the US for adjudication, adamantly opposed closing the Guantánamo prison. Nevertheless, the US has managed to reduce the number of detainees there. As of December 2011, only 171 remained. The Guantánamo inmates represent a legacy of injustice that the United States needs to end.

Growing recognition of extraordinary rendition’s ethical and practical problems coupled with a perceived lack of acceptable alternatives for dealing with terror suspects contributed to the US developing its program of targeted killing.594 Targeted killing, by its very nature, obviously satisfies Interdiction’s seventh criterion, rapid closure. This review therefore focuses on the other six criteria.

Legal scholar Gary Solis defines targeted killings “as ‘the intentional killing of a specific civilian or unlawful combatant who cannot reasonably be apprehended, who is taking a direct part in hostilities, the targeting done at the direction of the state, in the context of an international or noninternational armed conflict.’“595 His definition coheres with Interdiction’s just cause and right intent criteria, which stipulate that an interdiction’s target must be a terrorist suspect who poses a continuing threat, who is in a locale where the rule of law does not prevail, and where the situation makes capture impractical. Solis’ definition also coheres with the Interdiction right authority criterion, i.e., a state properly authorizes the killing.

US targeted killing has violated the just cause norm by including, for example, both signature strikes and the killing of individuals whom the US prefers not to capture. Targeting individuals based upon demographic profiles and behaviors often, but not invariably, associated with terrorism does not constitute evidence that the individual is a clear and present danger to the US. Targeted killing also avoids the need to detain and adjudicate captives.596 The publicly available reports that describe Osama bin Laden’s death suggest that the US could probably have captured rather than killed him. In other words, the US practice of targeted killing sometimes lacks just cause and right intent and is plausibly a form of extrajudicial execution597 incompatible with Rawls’ concept of justice as fairness.

With respect to Interdiction’s right authority criterion, the US maintains that international law and the US 2001 Authorization for Use of Military Force Act give the President, or presidentially designated senior official, authority to approve targeted killings.598 The 2001 law’s scope was limited to al Qaeda and the perpetrators of the 9/11 attacks. Yet the Obama administration has expansively continued George W. Bush administration policies that permit extrajudicial targeted killings of alleged terrorists.599 Former CIA director Michael Hayden has declared, “This program rests on the personal legitimacy of the president, and that’s not sustainable. … Democracies do not make war on the basis of legal memos locked in a D.O.J. [Department of Justice] safe.“600 Furthermore, no review process prevents abuse of the authority to order executions. A review process should ensure authorities only approve one-time operations that have (1) just cause (convincing, reasonable evidence of a target’s guilt and the impracticality of seeking international assistance), (2) right intent (capture is not feasible), (3) authorized approval, (4) a reasonable chance of success, and reasonable expectations (5) of at least proportional gains and (6) inflicting minimal collateral damage.601

Targeted killing is not new. The technology used has shifted from manned aircraft strikes to precision guided munitions (PGM) delivered by cruise missiles (or manned aircraft), and, more recently, to drone delivered PGMs. These technological changes have improved the success rate as measured both by killing the individual(s) targeted and by improved noncombatant discrimination. Reducing collateral damage of all types helps to avoid counterproductive outcomes. For example, US cruise missile strikes conducted in retaliation for al Qaeda’s role in the bombing of US embassies in Africa caused so much collateral damage that the strikes raised rather than reduced the terror threat.602

Targeted killings are also conducted by personnel on the ground (such as the special operations mission that killed Osama bin Laden), but these happen infrequently. Such operations are costly, labor intensive, put US personnel at risk, have no guarantee that they will be successful, and, if successful in capturing instead of killing the target (s), create difficult questions about detention and adjudication.603

Drone strikes enable a state to act in geographic areas where inserting military or intelligence agency personnel would evoke strong protests. Sometimes the US can conduct a drone strike with the other government’s approval, although that government would never consent to the US inserting personnel.604 The effectiveness of a drone strike (or a cruise missile) is contingent upon accurate intelligence, no technical failures, and the absence of any unexpected non-terrorists. A drone’s ability to linger for as long as 14 hours, often undetected, in an area inaccessible to human operatives represents one of the main advantages of drone technology for counterterrorism.605

Drone strikes have not proven much more effective than cruise missile strikes, in part because the warheads carried by drone-launched missiles, though smaller than cruise missile warheads, still pack sufficient punch to destroy a mud brick house rather than to kill only a single individual, i.e., the warheads resemble bombs more than bullets or blunt instruments more than scalpels. An analysis of US drone strikes concluded: “Of the 60 Predator strikes there [Pakistan] between 14 January 2006 and 8 April 2009, only 10 hit their actual targets, a hit rate of 17 percent, and they killed 687 civilians.“606 By mid-2013, US drone strikes in Pakistan may have killed 3,164 persons and injured another 1,226.607 About a third of those killed are not terrorists.608 Accurate information is difficult to obtain in Pakistan’s Tribal Areas and disagreement about who is and is not a terrorist produces different counts.609 Nevertheless, the data clearly points toward drone strikes in Pakistan having killed relatively few terrorist leaders and a greater number of mid- and low-level terrorists. The strikes have caused terrorists to adopt countermeasures, but not deterred or permanently impaired terror group's ability to operate. 610

Retired Admiral Dennis Blair, former US Director of National Intelligence, has said of targeted killing by drone strike, “It is the politically advantageous thing to do—low cost, no US casualties, gives the appearance of toughness,” he said. “It plays well domestically, and it is unpopular only in other countries. Any damage it does to the national interest only shows up over the long term.“611 Another “senior US official admitted that although killing individual terrorists would only be the equivalent of ‘clipping toenails,’ since the dead could be quickly replaced, it was worth doing since ‘we should use all the weapons at our disposal.’“612 Those scathing assessments describe what another critic characterizes as the “huge and very powerful multi-billion dollar ‘military-industrial-media-entertainment’” that supports targeted killing but distracts from choosing and implementing an effective counterterrorism strategy.613 In short, targeted killing can disadvantageously reinforce the resolve of terrorists and of their supportive constituency, invite retaliation, and aid a terror group in recruiting new terrorists.614

Not all evidence about the effectiveness of targeted killings is negative. Targeted killings of one or more of a group’s leaders, or even a number of low-level operatives, may temporarily disrupt a terror group’s activities.615 This occurred with Abu Sayyaf after the Philippine Army killed key leaders616 and with US strikes against al Qaeda.617 Drone strikes have reduced the level of violence in some of Pakistan’s tribal areas.618

Some effects of targeted killings are unknown, requiring quantitative research of complex questions, under dangerous conditions, to provide clarity. For example, targeted killing of a terror group’s leaders may discourage potential new recruits from joining, unwilling to sacrifice their lives in what may appear to be a lost cause.619 Alternatively, other experts hold that targeted killings encourage recruitment by fueling community anger and resentment.620 Obviously, conducting a random survey of potential and actual terror group recruits following the targeted killing of the group’s leaders would require researchers to obtain access to the group and its enabling constituency. Obtaining access would probably require researchers to promise not to divulge information about the terror group or its members to counterterrorism authorities. Deciding whether to honor that promise might raise legal issues; deciding whether to honor the promise would certainly raise ethical questions, e.g., does an obligation to keep a promise outweigh the obligation to prevent harm to innocents? These conundrums appear largely hypothetical; few if any terror groups seem likely to welcome social scientists to conduct research on the group. Consequently, many assessments of topics related to terrorism depend upon subjective expert opinion. Expert assessments are just that: knowledgeable opinions predicated upon careful evaluation of currently available information.

The US campaign of targeted killing, based on results to date, seems unlikely to end the terror threat al Qaeda and other international groups pose for the US. First, targeted killing has a poor record of success. Most notably, the Israeli campaign of targeted killing has failed to end Israel’s Palestinian terrorist problem621 and harmed more non-terrorists than terrorists.622 Military ethicist Peter Singer has compared US drone strikes in Pakistan to Israel’s record of killing Hamas leaders: “We are now creating a very similar problem to what the Israelis face in Gaza. They’ve gotten very good at killing Hamas leaders. They have in no way shape or form succeeded in preventing a 12-year-old in joining Hamas.“623 Second, targeted killing, which is a form of decapitation, eliminates the possibility of interrogating a captured suspect and does less to end a terror threat than adjudication. Counterterrorism expert Daniel Byman believes that targeted killings are “useful when arrests are not possible or would be too dangerous for military and security personnel to attempt, not as an ideal answer to fighting terrorism.“624

In sum, US targeted killing sometimes occurs with just cause (the target is an individual credibly believed to be a terrorist), perhaps less frequently with right intent (capture is impossible), but lacks right authority because approvals, whatever their legal basis, do not include automatic independent review to safeguard against abuse. Viewed as a whole instead of as a series of discrete missions, the US program of targeted killing currently lacks a reasonable chance of success because the US cannot kill every actual or potential terrorist. Proportionality has improved as has noncombatant discrimination, but tightening the rules of engagement to target only high value targets, allow less collateral damage, and require positive identification of potential casualties (e.g., by eliminating signature strikes) would produce additional improvements. Overall, the US targeted killing program, like the extraordinary renditions it has largely replaced, fails to satisfy Justice for Terrorist’s Interdiction criteria. Fuller compliance would likely result in the program becoming both more effective and ethical.625 Global proliferation of armed drones and their potential as a relatively low-cost, if ethically dubious means of striking at one’s enemies, makes establishing transparency and international norms for interdictions, like the seven proposed in this section, an urgent undertaking.626

[]C. Adjudication

Justice for Terrorists’ first two criteria—Apprehension and Interdiction—both presume, whenever possible, the third criterion, Adjudication. Adjudication consists of conducting a trial to determine an apprehended or captured suspect’s innocence or guilt, followed by the legal imposition and carrying out of an appropriate sentence for convicted suspects. Justice is mostly likely to result when adjudication occurs in an adversarial legal proceeding in which the government, represented by a qualified prosecutorial team, confronts the defendant, who has the option of being represented by a qualified attorney. A theoretically neutral, legally knowledgeable judge supervises the proceedings and is responsible for ensuring impartiality and due process.627 The Just Counterterrorism Model’s Adjudication criterion’s two constituent elements of impartiality and procedural fairness are grounded in Rawls’ concept of justice as fairness and establish the ethical parameters for adjudication.

Avoiding adjudication because it appears risky is unethical and less effective for counterterrorism than is proceeding with adjudication. Acting contrary to that claim, US politicians have preferred unjust counterterrorism tactics such as the current programs of targeted killings, indefinite detention, and opaque military tribunals because those tactics avoid bringing suspected terrorists captured abroad to the US to prosecute them in federal court. Official recommendations to conduct federal trials for terrorists captured abroad consistently evoke vociferous, angry protests from a fearful public. Protesters worry that a terror group will retaliate, especially if any trials result in convictions, by conducting terror attacks on US soil. The protesters thus demand that US leaders block all such trials.

Ironically, capitulating to public fear has arguably increased rather than reduced the risk of terrorist attack. Public trials, conducted with fairness and maximum transparency, demonstrate to the world that the US seeks justice with fairness for all and has nothing to hide. Opaque military tribunals of uncertain fairness, indefinite detention, and targeted killing communicate the opposite message. By publicly demonstrating its commitment to justice, the US might dissuade some undecided individuals from joining a terror group or supporting it. (The US, regardless of its counterterrorism methods, will alter the convictions of few if any foreign terrorists persuaded of the righteousness of their terror campaign.) Successfully adjudicating terror suspects in spite of the risks can also mitigate the potential effects of a future terrorist attack by fostering community resilience, trust, and courage.

Criminals, no matter how heinous their crimes, remain persons entitled to their legal rights. Impartial and procedurally fair adjudication is intrinsic to justice as fairness and essential for comprehensive, ethical, and effective counterterrorism. States can achieve a reasonable approximation of this standard. In a daring raid in the Gulf of Aden, Navy SEALs boarded a fishing trawler and apprehended Ahmed Abdulkadir Warsame, a Somali citizen believed to be a link between al Qaeda in the Arabian Peninsula and the Somali terror group, al Shabab. After conducting a humane, two-month plus interrogation aboard a Navy ship, the military turned Warsame over to the FBI. They read Warsame his Miranda rights, which he waived, and then transported him to the US for further interrogation and prosecution. Warsame subsequently pled guilty to terrorism charges after providing a wealth of information about al Qaeda and its operations.628 His case was not an isolated incident. US courts, by 2010, had tried and convicted more than two hundred terrorists without a significant incident.629 By October 2011, “the Federal Bureau of Prisons reported that it was holding 362 people convicted in terrorism-related cases, 269 with what the Bureau calls a connection to international terrorism—up from just 50 in 2000. An additional 93 inmates have a connection to domestic terrorism.“630 “Individuals who have been successfully tried in American courts include KSM’s [Khalid Sheik Mohammed’s] nephew Ramzi Yousef (convicted 1997), the twentieth hijacker Zacarias Moussaoui (convicted 2006), Najibullah Zazi (convicted 2010), and a host of lesser-known terrorists and terrorist wannabes.“631

[]1. Impartiality

Impartiality connotes consistently and equitably applying the rule of law, which Rawls calls justice as regularity.632 Impartiality has four aspects with respect to Justice for Terrorists, each discussed below: (1) fair process; (2) standardized rules and procedures; (3) an independent judiciary; and (4) law enforcement accountability.

First, impartiality requires, as far as possible, utilizing a judicially fair process.633 A fair process consistently treats all persons equally. The best assurance of judicial fairness is for the process to be public and transparent, i.e., to allow scrutiny of the proceedings by the press, interested parties, and disinterred parties. Another important method of assuring judicial fairness is to include opportunities for appeal in all stages of the adjudication process. Adjudication invariably entails repeated exercise of subjective judgment; no process that depends upon human judgment will always function flawlessly or fairly. Finally, judicial fairness entails trying to prevent public opinion or outcry from influencing a trial’s outcome.634

Cronin’s study of how terrorism ends led her to conclude that fair adjudication is critical for effective counterterrorism:

All else being equal, it is much better to arrest and jail a terrorist leader so that his fate will be demonstrated to the public. There is nothing glamorous about languishing in jail. When terrorism is primarily treated as a criminal offense, either by the state or the international system, the existing legal mechanisms for responding to it are reinforced. If there is a fair trial, terrorist violence carried out in the name of a political cause is labeled strictly according to the illegality and immorality of the act. The cause for which the attacks were carried out may or may not have legitimacy, but the violent acts performed in its name definitely do not, as the use of legal mechanisms clearly demonstrates.635

Second, impartiality requires a state or international court to use a standard set of laws, rules, and procedures when it tries, sentences, and punishes terrorists.636 Trials of terrorists, whether domestic or foreign, should impartially provide the accused the same rights, due process, and—if convicted—consequences as provided to that state’s citizens accused of other crimes. Double standards, with the exception noted in the discussion of due process in the next sub-section, fail to satisfy the norm of impartiality. Israel’s adjudication of terror suspects lacks impartiality: civilian courts adjudicate suspects the police arrest within Israel’s borders; in Gaza and on the West Bank, terrorists are subject to the rules of war and military justice, regardless of where the trial occurs.637

Proposals for a special court with the option of conducting secret proceedings638 move away from impartiality, e.g., a terrorist accused of murder or kidnapping would no longer be tried in the same court, with the same rights and due process, as other criminals accused of those crimes. While terrorism cases may pose special challenges (discussed below as part of procedural fairness), those challenges do not present insurmountable obstacles justifying a unique set of laws, rules, procedures, or special courts.

US Presidents Abraham Lincoln, Franklin Roosevelt, and George W. Bush all wrongly ordered enemy combatants to be tried by military commissions, denying those defendants the due process and fairness safeguards of trials conducted in US federal and military courts martial.639 Unlike those precedents, the World War II decision to try vanquished enemy leaders as war criminals upheld the norm of justice as fairness. Churchill and Roosevelt were determined that the trials be real, not a rigged travesty of show trials similar to trials the Nazis and Soviets conducted. This risked both acquittals and the accused using the trial as a platform for grandstanding, lies, or Nazi propaganda. Weighing these concerns, Churchill and Roosevelt “concluded that anything less than a fair trial would amount to a betrayal of the very liberal ideals for which they had fought the war in their moment of military triumph; they would not dispense ‘victor’s justice,’ but would inaugurate the transition into peacetime by returning to the rule of law.“640

The US has argued that prosecuting accused terrorists in either federal courts or the International Criminal Court of Justice would aid terrorists because the proceedings would reveal critical intelligence, sources, and collection methods. Those valid concerns about preserving the confidentiality of intelligence methods and sources are not convincing reasons to avoid public prosecution. During the height of the Cold War and at other times, the US has conducted public criminal trials of accused spies while protecting classified material as well as intelligence sources and methods deemed vital to national security.641 Some of these trials, involving nuclear secrets, had the potential to harm the US and its interests more than terrorist prosecutions do. Ways to adapt standardized rules and procedures to preserve confidential intelligence methods and sources without fatally compromising justice as fairness is discussed below, as part of procedural fairness.

Third, impartiality requires an independent judiciary with independent judges.642 Although that norm is unrealizable, as Rawls recognizes when he characterizes actual institutional justice as an imperfect process, the standard of an independent judiciary and judges provides a useful guideline for assessing adjudication options. For example, US federal judges, with lifetime tenure, theoretically function without regard to political and social pressures. The US armed forces have some excellent military judges who attempt to achieve true impartiality and to impose the law with fairness. However, in any institution, especially a total institution like the military, but even in the federal judiciary, judges can experience tremendous tacit if not overt pressure to produce the results that higher authority, politicians, or the public desire.

Fourth and finally, impartiality connotes the accountability of law enforcement, military, intelligence agency, judicial, and penal personnel. The rule of law applies to all; nobody’s actions are exempt from review, correction, and, when warranted, becoming the basis for criminal prosecution. This element of impartiality connects the Just Counterterrorism Model’s second component, Justice for Terrorists, to the Model’s first component, Justice for the Attacked, which calls for the attacked to practice the cardinal virtue of justice. For example, allegations that US federal prison guards have violated the rights of inmates convicted of terror related crimes have appropriately prompted media investigations and remedial action by the federal Bureau of Prisons.643

[]2. Procedural Fairness

According to Rawls, Adjudication’s second constituent element of procedural fairness connotes the orderly and consistent administration of justice:

Finally, there are those precepts defining the notion of natural justice. These are guidelines intended to preserve the integrity of the judicial process. If laws are directives addressed to rational persons for their guidance, courts must be concerned to apply and to enforce these rules in an appropriate way. A conscientious effort must be made to determine whether an infraction has taken place and to impose the correct penalty. Thus a legal system must make provisions for conducting orderly trials and hearings; it must contain rules of evidence that guarantee rational procedures of inquiry. While there are variations in these procedures, the rule of law requires some form of due process: that is, a process reasonably designed to ascertain the truth, in ways consistent with the other ends of the legal system, as to whether a violation has taken place and under what circumstances.644

Procedural fairness for adjudicating terror suspects consists of three key aspects: due process, public acceptance of the adjudication process and its decisions, and punishing those convicted.

First and foremost, procedural fairness consists of ensuring that adjudication in both its trial and punishment phases complies with the rule of law, granting defendants their rights, and complying with due process to protect those rights by upholding the rule of law.645 At a minimum, a defendant’s rights include the right to an attorney, to avoid self-incrimination, to an expeditious trial, to habeas corpus (knowing the charges or, in the absence of criminal charges, being released), to confront witnesses, to know the evidence against him/her, and to protection against unreasonable search and seizure.

The important caveat to the due process aspect of procedural fairness is that states reasonably, but only as minimally as necessary, adapt their standard processes to the exigencies of trying and punishing terrorists. For example, divulging in open court information about how authorities collected evidence may prompt other terrorists to modify their actions. Following court testimony in the 1990s about the police obtaining fingerprints of suspects from the underside of toilet seats and refrigerators, members of the Red Army Faction (a terror group then active in Germany) began applying a special ointment to their fingers that, when it dried, prevented their leaving fingerprints.646

Specifically, states may need to tailor their rule of law and due process in terrorism cases to

● Protect sensitive intelligence sources and methods.647 For example, judges can exercise oversight to ensure fairness without making details of sources and methods public; alternatively, the law may authorize limited use of closed sessions.648 Temporarily shielding knowledge of wiretaps and informant names from the public may be important for ongoing counterterrorism investigations to allow investigators to utilize these sources multiple times.649

● Protect any witness who has a reasonable fear that the terror group against whom s/he will testify or provide evidence will attempt to kill or harm either her/him or close family. Hezbollah, for example, has effectively used the threat of retribution to silence witnesses.650

● Never give alleged terrorists a media platform that they can use to either publicize their group’s cause or preen for martyrdom.651 Banning live coverage of court proceedings, as happens in many other criminal cases, effectively prevents most grandstanding by limiting media audiences to the brief synopsis that uncensored journalists report.

● Protect judges and juries who fear retaliation from accomplices of the accused if the court should return a guilty verdict.652 Courage, not fear, defeats terrorism. Upholding the rule of law and fulfilling the responsibilities of citizenship mean that threats to judges and jurors are unavoidable risks. Not publishing the identity of jurors, offering personal and family protection to jurors and judges, and other straightforward steps can all mitigate this risk.

The need for these or other adaptations should never dissuade a state from proceeding with adjudication. The best adaptations consistently maintain as high a standard of impartial justice as fairness and the greatest degree of transparency practical. The right to appeal, a key aspect of impartiality, safeguards against abuses of both normal and specially adapted procedures.

Fair trials, held in civilian jurisdictions, provide “low-key demonstrations of the poverty of [terrorists’] ideas and the vicious nature of their acts, with prominent testimony from victims and their families presented at the penalty phase of their trials.“653 Broad abrogation of due process and rights in terror related trials to allow hearsay, anonymous witnesses, self-incriminating statements made without benefit of counsel, or ensuring adequate legal representation654 negate the possibility of justice for terrorists. In retrospect, the wartime decisions of Lincoln and Franklin Roosevelt to try enemy combatants in military tribunals without benefit of due process and fairness safeguards655 were both unnecessary and unethical. Roosevelt, for example, directed military tribunals for the eight German saboteurs captured on the East Coast after coming ashore from a U-Boat. Roosevelt wanted quick trials and assured death sentences, which he got.

Second, procedural fairness requires the public generally to accept adjudication and its results. Any fair adjudication process may result in an acquittal. Acquittal may signify that the accused is innocent or that the prosecution failed to present sufficient evidence to warrant conviction. Acquittal may also result from authorities egregiously violating due process (for example, collecting critical evidence illegally) or the accused’s rights in other ways. Stipulating that the government obey the law and adhere to due process imposes a vital restraint on zealous authorities who, understandably eager to stop terrorism, may feel tempted to ignore the balance that a just community has prudentially sought to establish between security and the vulnerability inherent in a free society. For example, the British criminal justice system successfully investigated the 1988 mid-flight bombing of Pan Am Flight 103 over Lockerbie, Scotland; apprehended the two accused terrorists with the aid of international pressure; tried them, acquitting one suspect but convicting and punishing the other. The acquittal sparked considerable public outcry, but not enough to cause the government to reverse the acquittal or otherwise alter course.

Third, procedural fairness connotes the justice of punishing convicted terrorists. Rawlsian justice as fairness supports punishing those who harm others, their liberties, or their property:

It is true that in a reasonably well-ordered society those who are punished for violating just laws have normally done something wrong. This is because the purpose of the criminal law is to uphold basic natural duties, those which forbid us to injure other persons in their life and limb, or to deprive them of their liberty and property, and punishments are to serve this end.656

Punishment connotes both the imposition of a penalty on the guilty (e.g., time in prison, probation, restitution, etc.) and protecting the community from future injury by penalties that deter other prospective criminals and measures that reduce recidivism (e.g., by incarcerating an offender so s/he cannot commit another offense, supervised probation to deter commission of new crimes, rehabilitation, etc.). Both ideas are present in Rawls’ thinking about punishment, which he recognizes as an essential element of justice.657

Terrorist crimes may justify harsh punishments. Terrorism, by definition, targets the innocent, reducing them to a means by which terrorists hope to achieve instrumental goals of revenge, renown, or reaction. The little data that exists on the effect of punishing terrorists in the US suggests that harsh sentences that end by attempting to reintegrate the person into the community have effectively minimized recidivism among the 300 plus individuals the US has convicted of terrorism related crimes in federal courts:

By contrast with the record at Guantánamo, where the Defense Department says that about 25 percent of those released are known or suspected of subsequently joining militant groups, it appears extraordinarily rare for the federal prison inmates with past terrorist ties to plot violence after their release. The government keeps a close eye on them: prison intelligence officers report regularly to the Justice Department on visitors, letters and phone calls of inmates linked to terrorism. Before the prisoners are freed, FBI agents typically interview them, and probation officers track them for years.658

Harsh sentences may also deter future terror attacks and threats. Young terrorists do not fancy the prospect of life in prison.659 Federal prosecutors insist that a zero-tolerance for any behavior touching on terrorism and the imposition of harsh sentences figure large in explanations of why the US has not experienced a repeat of the 9/11 attacks.660

Alternatively, a fair but more lenient punishment (i.e., something other than death or life in prison) may make voluntarily leaving a terror group more attractive to terrorists who want a new lifestyle or who feel law enforcement’s pressure choking the life out of the terror group. This approach produced positive results in Northern Ireland.661

[]Chapter 5: Justice for Others

Unless a counterterrorism strategy addresses the concerns of terrorism’s third set of stakeholders, the terror group’s enabling constituency, counterterrorism is a Sisyphean endeavor:

Terrorism, in all its bloody cynicism, is a political problem; therefore, military strategies, international police cooperation, and heightened preparedness must be supplemented with diplomatic and economic strategies based on political visions for solving the political problems on which terrorism subsists.662

Persistent and egregious injustice in conjunction with disempowerment and perceived hopelessness allow a terror group to gain traction with its intended enabling constituency, causing persons to tolerate, align with, abet, or perhaps join the terror group.663

Justice for Others’ three criteria of Improve Equality, Improve Political Fairness, and Improve Distributive Fairness form a framework for determining steps that a community attacked or threatened by a terror group can take to weaken, perhaps even sever, the vital linkages between the terror group and its enabling constituency or constituencies. A community that promotes the practice of the cardinal virtues and implements prudential defensive measures (Justice for the Attacked) while concurrently apprehending or interdicting, and then adjudicating, all known terror suspects (Justice for Terrorists) can reduce an immediate terror threat. However, those steps don’t alter the underlying factors that allowed a terror group to develop an enabling constituency. Lieutenant General Sir Harold Briggs was instrumental in achieving the British counterinsurgency victory in Malaya. Although speaking about counterinsurgency, his words memorably also describe the goal of Justice for Others: “You can’t deal with a plague of mosquitoes by swatting each individual insect. You find and disinfect their breeding grounds. Then the mosquitoes are finished.“664 Justice for Others identifies terrorism’s breeding ground and prescribes how states can disinfect it.

Historically, counterterrorism has placed little emphasis on “disinfecting their breeding grounds.” Respected journalists Eric Schmitt and Thom Shanker have observed, “Cruise missiles are easy; preventing radicalization is hard.“665 This narrow approach is typically counterproductive. Governments that fail to improve justice for a terror group’s constituency generally exacerbate the terror threat and other problems.666 The terminology employed by counterterrorism scholars subtly reflects this pervasive bias in favor of aggressive counterterrorism responses, characterizing one or more of the Just Counterterrorism Model Justice for Others’ criteria as soft approaches to counterterrorism in contrast to the hard approaches that utilize force to target terrorists directly. In fact, the approaches are complementary, both essential facets of a comprehensive and effective counterterrorism strategy.

Justice for Others describes neither a set of short-term fixes nor a panacea, but tackles terrorism’s more entrenched dimensions. Improving equality, political fairness, and distributive fairness represent a constructive alternative to inherently ineffectual efforts by law enforcement, militaries, and intelligence agencies to eradicate terrorism’s visible manifestations while ignoring its roots in social injustice. Justice for Others attacks those roots. Justice for Others will likely have little effect on committed terrorists. Instead, it has the potential to “deter the support network—recruiters, financial supporters, local security providers, and states who provide sanctuary”—on whom a terror group depends, thus degrading the group’s ability to commit terror acts.667 Although the counterterrorism results of Justice for Others may be difficult to quantify, analyses of effective counterterrorism in democratic states consistently point to the importance of such measures in ending terrorism.668

Rawls’ concept of justice as fairness explicitly undergirds the three Justice for Others criteria: improve equality, improve political fairness, and improve distributive fairness. A groundbreaking study of just peacemaking substantiates the indispensability of these three elements. Promoting human rights (equality), democracy (political fairness), and just, sustainable economic development (distributive fairness) are the key practices that move states away from injustice and toward justice.669

Rawls identified three levels of justice: the local (principles applying directly to institutions and associations); the domestic (principles applying to society’s basic structure); and the global (principles applying to international law). In cases of domestic terrorism, Justice for Others focuses on the first two levels of justice, aiming to improve local and domestic justice. In cases of international terrorism, Justice for Others aims to improve justice at all three levels: local and domestic justice in the state(s) in which injustice spawned the moral outrage that led to terrorism; global justice among the states that act to improve justice elsewhere and by strengthening international institutions and cooperation in pursuit of that goal.

Each of this chapter’s three sections examines one of Justice for Others’ criteria. The following material lays the groundwork for those discussions by defining the others in Justice for Others, identifying four factors that shape a terror group’s relationship with its enabling constituency, exploring the link between terrorist recruiting and Justice for Others, and analyzing why Justice for Others is vital in responding to both domestic and international terror groups.

The others in the phrase Justice for Others is intentionally vague, connoting a terror group’s enabling constituency or constituencies, domestic or international. (This vagueness ensures that the Just Counterterrorism Model satisfies the design criterion of flexibility.) Some terror groups, most often endogenous ones, have a single, domestic constituency whose cause the terror group claims to represent and upon whose tacit approval, passive support, or active assistance they depend. For example, the Tamil Tigers protested the unjust treatment and political subjugation of minority Tamils (the 10-15 percent of the population who emigrated from southern India) by Sri Lanka’s native Sinhalese majority (75 percent of the population). The Tamils were the Tigers’ only real constituency. Other terror groups, including most exogenous terror groups, claim multiple constituencies. Hamas declares that it fights for Palestinians but seeks to draw support from many Sunni Muslim communities. The Cypriot terror group EOKA (Ethiniki Organosis Kyprion Agoniston—National Organization of Cypriot Fighters) relied on multiple constituencies during its 1950s fight over Cyprus’ future. These multiple constituencies included the Greek government, individual Greek citizens, and Greeks living on Cyprus.670 In this chapter, the word constituency denotes all of a terror group’s enabling constituencies, whether one or multiple.

Four important dynamics characterize any terror group’s relationship with its enabling constituency. First, every terror group—whether domestic or international—aims to increase the size of its constituency. By enlarging its constituency, a terror group hopes to expand its membership as well as the scale and frequency of its attacks. That is, the group intends its attacks, or the threat of attack, to achieve its instrumental goals of revenge, renown, and reaction, thereby generating momentum and progress toward the group’s ultimate political objectives.

Enabling constituencies provide both indirect and direct support to a terror group. Forms of indirect support include endorsing the terror group’s cause privately or publicly, reluctantly cooperating in government counterterrorism efforts, passively resisting the current regime, and making charitable donations that, unbeknownst to the donor, are diverted to the terror group. Forms of direct support include assisting a terror group with housing, funds, logistics, training, communications, information, and helping its members to avoid arrest. Although some researchers express skepticism about the need for counterterrorism to rectify the injustice an enabling constituency faces, these researchers recognize that an enabling constituency is a prerequisite for a terror group to function well.671 Lacking an effective constituency, a terror group will end quickly.672

A brief examination of lone-wolf terrorism illustrates why a terror group’s success depends upon developing an enabling constituency. Ted Kaczynski and Eric Rudolph both achieved considerable infamy in the US from their lone-wolf terror attacks. Kaczynski, commonly known as the Unabomber, killed only three people and wounded just 23 others during the 18 years between his first attack and eventual apprehension. Rudolph, a Christian terrorist who bombed abortion clinics at what he believed was God’s behest, killed two people and injured another 111 over the course of three years. In short, neither Kaczynski nor Rudolph achieved significant success. Although operating alone may help a person to elude capture for years because nobody can accidentally reveal or compromise the terrorist’s identity, no single individual can inflict great harm or damage, much less pose an existential threat to a state.673 Any individual would encounter almost insurmountable obstacles in singlehandedly trying to obtain all of the training, resources, targeting information, etc., needed to execute a major attack. Planning, funding, and executing the 9/11 attacks, for example, involved more than two dozen people.

Incidentally, there are no prophylactic measures a community can adopt to immunize itself against attacks by lone terrorists. Inevitably, a few individuals with misguided religious motives, misdirected moral outrage over real or perceived injustices, or mental illness will become lone terrorists. Positive steps that a community can take to reduce the likelihood of individual terrorists include adequately funding mental health programs and developing the cardinal virtues, as advocated in Chapter 3. When a lone wolf terrorist does threaten or attack, a community can most effectively respond with methods shaped by the Just Counterterrorism Model’s Justice for Terrorists framework.

The potential threat posed by a small, self-sufficient terror group is self-limiting for the same reasons that an individual terrorist poses a limited threat, i.e., lack of personnel, resources, and support restrict the group to conducting infrequent, minor attacks.674 Perhaps the deadliest terror attack by a small group was the 1995 attack that Timothy McVeigh and Terry Nichols conducted on the Alfred P. Murrah federal building in Oklahoma City. That attack killed 168 people and injured over 600. McVeigh’s vain hope that this bombing would be the catalyst for a popular revolt against what he regarded as a tyrannical federal government reflects his desire for his nascent movement to mushroom in size. McVeigh’s attack disrupted many lives, especially those of casualties and their families. His attack, however, was far from cataclysmic, illustrative of a small group’s inability to conduct truly major attacks.

Only a large group of committed individuals can pose a significant domestic or international terrorist threat.675 However, a terror group’s numerical growth inexorably increases the group’s vulnerability to detection and disruption because growth expands the group’s internal managerial and organizational requirements for communications, finances, internal controls, etc. Those activities are inherently susceptible to detection and disruption. Advances in electronic intelligence collection and forensic science compound that vulnerability. For example, technology enables skilled personnel to read files erased from a computer hard drive. Communicating by email or phone risks interception. Minute traces of physical evidence can yield useful information. In other words, a terror group’s every act represents a potential misstep from which law enforcement can obtain the information needed to identify and apprehend members. Consequently, a group’s efforts to maintain control and to improve efficiency proportionally increase their risk of compromising security and secrecy. Alternatively, lack of oversight can quickly backfire if terrorists hit the wrong targets or generate too little or too much violence, all of which can undermine progress toward the terror group’s political goals. The Real IRA, unable to control some of its members, inadvertently alienated its key constituency when rogue members, acting unilaterally, conducted the 1998 Omagh bombing that killed 9 children and 20 adults, a toll widely regarded as excessive.676

Second, every terror group identifies specific injustices perpetrated by the current government as key elements of its justification for adopting a terror strategy or tactics.677 The vast preponderance of people, regardless of their values or belief system, find the killing and injuring of innocents morally troubling. Terrorists consequently recognize that the end they seek must justify the means they have adopted. People broadly satisfied with the status quo rarely advocate dramatic, large-scale political or economic changes. Instead, terrorists seek out the discontented who experience or perceive the status quo as grossly unjust, politically or economically. Illustratively, anti-abortion terrorists decry what they believe is murder; Palestinian terrorists demand, among other things, an independent homeland; Al Qaeda denounces corrupt, allegedly Muslim regimes and states they claim are anti-Muslim. Terrorism scholar Michael Gross notes that terrorists’ demands for justice have created a tension in UN General Assembly statements about terrorism, “condemning it on the one hand, but understanding that eliminating terrorism depends on removing its root causes: colonialism, racism, alien domination, occupation, and massive and flagrant violations of human rights and fundamental freedoms.“678

Third, a terror group flourishes only if the cause(s) it espouses resonates with its putative constituency.679 Thankfully, not every terror group succeeds in this critical endeavor. Extreme or narrowly focused terrorist agendas rarely attract broad support because the moral offensiveness of the group’s terrorist acts tends to match or exceed the outrage potential constituents feel over the injustice that the terror group seeks to end. Anti-abortion terrorists in the US exemplify this problem. A sizable minority of the US population opposes abortion, many of whom morally classify abortion as murder. Yet, this prospective enabling constituency largely finds the idea of murdering doctors who perform abortions and bombing abortion clinics morally abhorrent. Consequently, the extreme agenda of anti-abortion terror groups has failed to attract much support even from among people sympathetic to outlawing abortion. Anti-abortion terrorism, usually perpetrated by lone individuals, is a continuing problem but exposes terrorism’s relative impotence in the absence of widespread popular support: “Historically, organizations that alienated their base of support were eventually abandoned, even when they continued to operate. The post–World War II history of ultra-leftist terrorism in Europe provides a case in point.“680 Conversely, insurgencies waged with guerilla tactics often develop out of terror groups that have succeeded in developing a large constituency.681

Justice for Others provides a framework for weakening, perhaps severing, ties between terrorists and their intended constituency. That task may be less daunting task than it initially appears. Cronin, in her study of how terror groups end, recognized that

the strategic ‘outcome goals’ that first spark a terrorist campaign, such as popular suffrage, self-determination, minority rights, a new system of government and so forth, are sidelined as a campaign unfolds by tactical ‘process goals’, such as revenge, retaliation, protecting sunk costs, consolidating a group and the need to show strength.682

When a terror group sidelines its strategic goals, a possible opening emerges for the group’s constituency to recognize the state or other parties as the primary advocates, or even implementers, of the improved justice that the terror group’s goals represent. To the extent that the government’s counterterrorism strategy takes advantage of this opening, the government succeeds in weakening or severing linkages between a terror group and its desired enabling constituency.

Additionally, Cronin contends that counterterrorism may best succeed by “amplifying the natural tendency of violent groups to lose [people’s hearts and minds].“683 As she notes, separating a group from its enabling constituency instead of winning that constituency’s hearts and minds is a subtle distinction that may have important policy implications. Since supporting the government against terror crimes is generally a citizenry’s default position, the latter, usually more difficult goal of winning the people’s affection may be unnecessary. Achieving the former goal of alienating a terror group from its constituency is possible by defeating a terror group’s attempts to provoke unjust or disproportionate government responses, polarize pre-existing social groups, and de-legitimize the existing government.684 Those aims cohere with Justice for Others’ criteria of improved equality, improved political fairness, and improved distributive fairness. A counterterrorism strategy that incorporates Justice for Others concurrently aims to mitigate the injustices that enabled a terror group to exist while promoting factors likely to contribute to the terror group’s implosion.

Fourth, a terror group, to accomplish its political aims, must, at some point, shift away from a terror strategy and tactics. No group has ever achieved its goals by relying exclusively on terrorism. Furthermore, because the weak and not the strong opt for terrorism, no terror group is ever likely to attain its political goals relying upon a terror strategy or tactics. Instead, to achieve its ultimate political agenda, a terror group must supplant its reliance on terror with an alternative, non-terror strategy or tactics (often a form of insurgency or negotiation). When a terror group shifts to a non-terror strategy or tactics, the move generally indicates that the group believes that it has gained adequate strength in its numbers, resources, and enabling constituency to be able to achieve its political aims in other ways. Alternatively, at some point, if a group’s terror strategy or tactics have failed to give the group enough strength to enable it to move beyond terrorism, the group will eventually die in one of the ways enumerated in Chapter 1.

For example, Palestinians widely believe that the UN, influenced by Christian guilt and responsibility for the Holocaust, unjustly appropriated Arab land to establish the state of Israel. Arab states have refused to welcome the Palestinians as immigrants, insisting that Palestinian refugees live in temporary camps. Palestinians in those camps have high unemployment, poor living conditions, and see little hope for a better future. Consequently, in spite of most Palestinians morally objecting to terrorism, they support Palestinian terror groups and their demands for an independent Palestinian state. In other words, Palestinians broadly feel unjustly treated, disempowered, and hopeless; they see terrorism as their only hope for obtaining justice and a better future.

During the long Palestinian campaign for their own state, the largest and most effective terror groups have garnered sufficiently substantial constituencies to enable these groups to begin supplanting their reliance on terror with other strategies and tactics. The Palestinian Liberation Organization under Yasser Arafat’s leadership morphed from a terror group into a proto-state negotiating peace terms with Israel. Both Hamas and Hezbollah have substantial constituencies in the Palestinian diaspora.685 Hamas also draws support from non-Palestinian Sunni Muslims while Hezbollah draws support from Shiite Muslims, especially its state sponsor, Iran. Hamas in Gaza and Hezbollah in southern Lebanon have started to emphasize political participation and the provision of social services while deemphasizing their continuing terrorist activities. Assuming political and social responsibilities seems to expedite a terror group’s shift away from terror.686 Encouraging these moves, moves Max Weber described as the “logic of responsibility,” may represent Israel’s most effective counterterrorism move.687

Palestinian terror groups have begun slowly transforming themselves into new identities reliant upon non-terror strategies and tactics, moves impossible apart from the increasing size and potency of the bonds between these groups and their constituencies. Although these transitions are incomplete, the ongoing transitions reflect the Palestinian groups’ strength growing persistently if unevenly, an inconsistency that explains some groups’ continuing reliance on terror tactics.

These transitions also highlight the overall ineffectiveness of Israeli counterterrorism. Israel has failed to end Palestinian terrorism in large measure because Israel lacks a just, comprehensive strategy that addresses the perceived unjust treatment, disempowerment, and hopelessness of Palestinians. Many Palestinians view commonly utilized Israeli counterterrorism measures as unjust collective punishments that wrongly punish the many for the misdeeds of a few. These measures include Israel destroying an entire apartment building if a suspected terrorist lives in one unit, closing border crossings severely disrupting the lives of ordinary Palestinians, establishing checkpoints that badly hurt the Palestinian economy, and blockading vital imports into Palestinian territories. In general, these measures are counterproductive because they strengthen rather than diminish the enabling constituency’s support for Palestinian terrorists. For every alleged terrorist that Israel imprisons or kills, several new recruits usually join a terror group.688 Other Israeli counterterrorism measures, such as targeted killing, have also proved ineffective.

Moreover, Israel has conflated the multiple problems of terrorism, insurgency, and regional politics. Israeli opposition to an independent Palestinian state that enjoys full sovereignty fuels the Palestinian feelings of unjust treatment, disempowerment, and hopelessness that result in unending if sporadic terror attacks. Any measures that Israel can take to create a viable Palestinian state with responsible institutions will subtly push Palestinian terror groups to abandon terrorism in favor of other strategies and tactics. The more that Palestinians have to lose by dramatically altering the status quo, the less likely they are to support a terror strategy or tactics. Ironically, Israel will probably make itself more rather than less secure by working to impose the “logic of responsibility” on Palestinian groups such as the PLO, Hamas, and Hezbollah while ignoring their rhetorical commitments to destroy Israel.

Justice for Others overlaps but is not coterminous with the goal of reducing terrorist recruiting. Ending all recruitment of new terrorists is impossible. New lone wolf terrorists, as noted, emerge in ways that to date are unpredictable and unpreventable. Also, some exogenous terror groups (e.g., al Qaeda and the Islamic State of Syria and Levant) attract recruits from a population other than the group’s enabling constituency. Nevertheless, incorporating Justice for Others as a key component of a comprehensive counterterrorism strategy can diminish a terror group’s ability to recruit.

Former CIA staffer, forensic psychiatrist, and counterterrorism expert Dr. Marc Sageman has researched the radicalization process by which young Muslims adopt an Islamist ideology and may subsequently join a terror group. His data shows that Islamist terror groups often recruit their members from a different community than the enabling constituency for whom they seek greater justice. Based on his in-depth study of 172 Islamist terrorists, he estimates that 90 percent of grow up in stable, economically comfortable families. He describes the typical Islamist terrorist as a 26-year-old married university graduate who speaks multiple languages and is a parent, i.e., someone who is geographically and upwardly mobile.689

Sageman outlined a four-step process by which one becomes an Islamist terrorist, which subsequent research690 has largely confirmed:

1. Moral outrage over some incident of Muslim suffering, usually in the Middle East

2. Setting that moral outrage within the broader context of a “morality play” in which Islam and the West are thought to be at war

3. A personal experience of discrimination, injustice, or joblessness that fuses the local and global

4. The individual joins a terrorist cell that nurtures the Islamist worldview and prepares the initiate for martyrdom.691

Preventing terrorist recruiters from leading potential recruits through steps two to four represents one way to interrupt that process, an effort unlikely to succeed because it requires eliminating all actual and potential recruiters. Another option, one with a higher probability of success, is to address the initial trigger, that is, incidents that ignite Muslim outrage. Effective counterterrorism does not have to prevent all incidents that have the potential to trigger Islamic outrage, only to establish a consistent record of timely and equitable redress, i.e., an approximation of justice. This deprives the terrorist recruited of the just cause and identity as a defender of justice that currently attract recruits to radical Islam.692 Counterterrorism conducted in a transparently just manner, consistently practicing Justice for Others, will both reduce the injustice that causes moral outrage and make claims of a war against Islam less credible.

Sageman’s analysis describes the typical Islamist terrorist. Not every terrorist is an Islamist nor does every individual Islamist terrorist fit Sageman’s scheme perfectly. For example, Andrea Elliott, a New York Times’ reporter, has chronicled how American citizen Omar Hammami became Abu Mansoor Al-Amriki, an Islamist terrorist affiliated with the Shabab in Somalia. Hammami’s Syrian father and American mother met and married after the father immigrated to the US. He retained his Muslim faith and she her Christian faith. Although the parents appear to have had a good marriage, their two children, Omar and his older sister, found navigating two different faiths and divergent worldviews difficult. Intelligent, popular in school, yet never really having found himself or where he belonged, and always seeking adventure, Omar gravitated to Salafism while studying at the University of South Alabama. Personal factors seem at least as decisive in his turning to radical Islam as outrage over injustice suffered by Muslims.693 In such cases, steps an attacked or threatened community has taken to encourage the practice of the cardinal virtues (e.g., greater justice and courage) will complement steps taken as part of Justice for Others (e.g., improved equality—cf. the first section of this chapter).

More broadly, numerous possible root causes and precipitating conditions can lead an individual to choose terrorism over non-violent alternatives as his/her way of striving to end injustice.694 Anticipating and then addressing every possible cause and condition that can lead a person to become a terrorist is impossible. However, regardless of an individual’s path into terrorism, all terror groups require an enabling constituency to flourish. Justice for Others provides an ethical framework for counterterrorism measures designed to erode that support, thereby undercutting a terror group’s ability to flourish.

Justice for Others is important in both domestic and international counterterrorism. The following sections define the three Justice for Others criteria in ways equally applicable to domestic or international terrorism, but focus on how states can achieve progress toward improved fairness in the context of international terrorism. Compared to domestic terrorism, international terrorism tends to pose more conceptually complex challenges involving issues of state sovereignty, multiple cultures, potential lack of influence, etc.

In general, Rawls opposes one state interfering in another state’s internal affairs. He admits an exception in the case of serious injustice, contending that when people live under “unfavorable conditions that prevent their having a just or decent political and social regime” other states have a duty to act.695 The serious injustices a terror group uses to justify targeting innocents, and which have enabled the group to gain a significant enabling constituency, will often warrant one state interfering in the affairs of another sovereign state in ways congruent with the Justice for Others criteria.

A sovereign state’s government or people may easily perceive another state’s counterterrorism actions as undesired paternalism (we know best for you) or unwanted and unjustifiable interference (you need to change this particular way because that will be best for us). Both types of actions tend to be counterproductive and are always immoral, diminishing the humanity of the intended recipient. Justice for Others therefore requires cultural sensitivity, supporting others’ right to self-determination, and promoting relationships of genuine mutual benefit. Powerful states, particularly ones like the United States with a history of global interventions, may find implementing these essential counterterrorism measures tricky in view of widespread international suspicion regarding US motives and actions. In spite of these and other difficulties, multinational cooperation and involvement in improving justice has had demonstrable efficacy as a counterterrorism measure.696

In cases of domestic terrorism, achieving Justice for Others can appear deceptively simple because a state can directly ameliorate injustice that its political system causes or permits. However, if the state actually had the political will to address the injustice terrorists use to justify their actions, then the state would presumably have already done so. No research explicitly tests the Justice for Others criteria in cases of domestic terrorism. However, Erroll Southers’ proposed Mosaic of Engagement Model,697 which focuses on domestic terrorism and which largely coheres with the Just Counterterrorism Model’s Justice for Others’ three criteria, adds credibility to the claim that the Just Counterterrorism Model represents an effective, flexible, and comprehensive framework for ethical domestic counterterrorism. Since terror campaigns that gain sufficient traction morph into a counterinsurgency, effective counterinsurgency unsurprisingly pursues many of the same goals and employs many of the same methods.698 Examples drawn from counterinsurgency successes add additional support to claims that the Just Counterterrorism Model describes an effective domestic counterterrorism strategy and tactics.

State sponsorship of terrorism is unethical because terrorism is always immoral. Yet states do sponsor terror groups, posing unique, sometimes currently unsolvable problems. Iran, for example, has the resources and latitude to support Hezbollah financially and in other ways.699 No viable options exist for other states to pressure or coerce Iran to terminate its aid to Hezbollah. Diplomatic overtures, economic sanctions, and other non-violent steps have failed to persuade Iran to end its development of nuclear weapons; expecting these and similar steps to convince Iran to end its state sponsorship of terrorism is unrealistic. The extreme step of waging war against Iran would inflict far greater costs than benefits on all parties, as evidenced by the few benefits and high costs the US experienced in its conquests and extended occupations of Afghanistan and Iraq. In short, Iran’s continued backing of Hezbollah in the face of years of unrelenting pressure from the US, Israel, other states, and the United Nations to end that sponsorship underscores the futility of available options.700 Temperance is an essential virtue for a community attacked or threatened by terrorists, particularly state sponsored terrorists.

Perhaps in time international law, institutions, and cooperation will develop to a point where there are viable options for dealing with state sponsored terrorism. In the interim, Justice for Others offers states practical guidelines for shaping foreign policy toward the state sponsors of terrorism. Steps congruent with this Just Counterterrorism Model component promote justice for the people of states that sponsor terrorism, thereby slowly eroding any cogent rationale the state may have for its actions and, potentially, diminishing the state’s willingness to sponsor terrorism.

Conversely, actions incongruous with Justice for Others generally, even if unintentionally, will reinforce another sovereign state’s commitment to supporting terrorism by inflicting additional injustice on that state’s people or rulers. Policies or programs likely to increase injustice and therefore to backfire are those that a state perceives disrespects them as a people, challenges their right of self-determination, or imposes economic sanctions detrimental to their quality of life. These negative outcomes have resulted from many of the non-violent measures that the US has implemented to convince Iran to alter policies that the US deems objectionable. State sponsorship of terrorism may not have an immediate solution but states can use actions action by Justice for Others to take incremental steps to diminish the problem.

[]A. Improve Equality

Rawls’ situates his principle of equal basic rights and liberties, the first foundational principle of justice as fairness, within a sovereign state. All of a state’s citizens, according to Rawls, should enjoy equal rights and liberties; honoring these is one of the eight traditional principles of justice among free and democratic peoples.701 The term equality in the context of the Just Counterterrorism Model denotes equal intra-state basic rights and liberties; equality in this context does not connote socio-economic equality (cf. this chapter’s third section).

Rawls acknowledges that no state attains perfect equality.702 However, social injustice in some states, or among some peoples, is so egregious that, when coupled with feelings of hopelessness and disempowerment to effect change, it may trigger sufficient moral outrage to lead a person or group to engage in terrorism. The terrorist may or may not suffer the egregious injustice personally, e.g., a European may become a terrorist on behalf of perceived or real injustice against Palestinians. This level of egregiously unjust inequality requires both that a portion of the population (this can be either a minority or the majority) hold an attitude of disrespect toward a particular group and a pervasive pattern of institutional and structural discrimination exist against that group. Examples of egregious unjust inequality include the treatment of Palestinians by both Israel and the Arab states that host the Palestinian diaspora, of Shiites by Sunnis in Saudi Arabia, and of Coptic Christians by Egypt under the early twenty-first century Morsi government.

Egregious inequality never justifies terrorism, but helps to explain why some people support, abet, or commit terrorist acts. Thus, states that experience domestic terrorism or in which egregious injustice spawns international terrorism may be able to reduce the frequency or severity of terrorist incidents through improved equality with respect to basic rights and liberties. Similarly, states subject to an international terror group’s threats or attacks may be able to reduce the probability and magnitude of future attacks by supporting progress toward improved equality among the state’s own citizens and among the terror group’s constituency in other states.

Rawls specifies ways in which people can fulfill their duty to show one another the mutual respect commensurate with equality:

Mutual respect is shown in several ways: in our willingness to see the situation of others from their point of view, from the perspective of their conception of their good; and in our being prepared to give reasons for our actions whenever the interests of others are materially affected.703

Mutual respect connotes honoring cultural differences by seeking to understand and to respect the other’s conception of the good, not presuming, much less insisting, that one’s own culture represents a universal ideal. Mutual respect permits states and peoples to build relationships of shared confidence and trust.704 Mutual respect cannot level every barrier that separates and alienates people. Nevertheless, improved mutual respect leads to improved equality and thus diminishes the terror threat by (1) reducing an enabling constituency’s willingness to tolerate, support, or abet the terror group and (2) impeding the radicalization and recruitment of new terrorists.

Esteemed journalist and professor of international relations David Unger has recognized the potential of demonstrating mutual respect to mitigate a terror threat: “And we need to stop strengthening the hands of weaker foes by acting like what they say we are, modern-day successors of the colonial empires so recently evicted from the greater Middle East and South Central Asia.“705 Sageman echoes Unger’s analysis, advocating US respect for Muslims domestically and internationally:

In order to actively engage the Muslim community to fight violence, the rest of the population must not provide potential terrorists with any support for their claim that there is strong discrimination against Muslims, part of a War against Islam. Any slander or discrimination against Muslims should be vigorously exposed and presented not only by government officials, but also representatives of society and nongovernmental watchdog groups, such as the Anti-Defamation League, the American Civil Liberties Union, or the American Arab Anti-Discrimination Committee.706

States can promote improved equality for people in other states, as part of a comprehensive counterterrorism strategy, by working to improve mutual respect in six ways. First, a state can consistently advocate and support human rights. Illustratively, this will require ending support for repressive, authoritarian regimes whose policies the US perceives, at least in the short-run, to be advantageous to US national interests. The US supported the Shah of Iran at the price of alienating the Iranian people, Saddam Hussein at the price of enabling his reign of terror to continue longer than it might otherwise have lasted, and the House of Saud at the price of angering many ardently devout Muslims. In all three cases, US interest in maintaining an uninterrupted flow of oil at a relatively stable price trumped concern for human rights.707 The Iranian revolution and then the 2003 US invasion and conquest of Iraq disrupted that flow and sent oil prices skyrocketing, thereby exposing the danger of myopically focusing on short-term parochial goals.

Second, states can more equitably balance the pursuit of their interests with improving equality and mutual respect in other states. Globalization is beginning to bring about a convergence of what states once regarded as conflicting interests, e.g., during the colonial era when a state saw its colonies primarily as instrumental goods. The problem of international terrorism reflects this convergence, albeit in a destructive way: a terror group intends its attacks in one state to influence government policy in another state, creating a prima facie alignment of both states’ interests against the terror group. More equitably balancing the pursuit of state interests with equal respect for all people may actually better serve a state’s interests than do current policies focused on short-term benefits. For example, Saudi Arabia, currently the world’s largest petroleum exporter, appears increasingly ripe for revolution. Revising US foreign policy to increase concern for human rights in Saudi Arabia, untangle oil industry interests from US policy aims, and end official US support for the House of Saud that deters Saudi demands for internal reforms might constitute important steps toward political stability in the Middle East and longer-term economic stability in the oil markets. Implementing this type of ethically sound policy shift seems politically improbable because government officials everywhere tend to be risk-averse, key US allies value stable oil markets, and most US politicians focus on a time horizon determined by the date of their next election.

Third, and perhaps more realistic in terms of its adoption, a state can promote improved equality among an international terror group’s constituency that resides in other states by repeatedly publicizing, through as many media channels as possible, accurate reports of how the terror group’s attacks and the state’s counterterrorism and other actions actually effect people. Illustratively, the US can promote improved equality among al Qaeda’s Muslim constituencies by repeatedly disseminating the facts about US and al Qaeda actions.708 Implementing this policy will require greater US transparency with respect to Justice for Terrorists. Among the practical steps that the US can take without impairing its counterterrorism effectiveness are ending indefinite detention, stopping extraordinary rendition, complying with the international Convention Against Tortures ban on torture,709 and accepting full moral and fiscal responsibility for the collateral damage interdictions cause. Indeed, as argued in the previous chapter, those moves will probably improve US counterterrorism effectiveness against al Qaeda. Credibility earned by taking those steps combined with enhanced transparency will likely increase moderate Muslims’ receptivity to central, unpleasant facts about al Qaeda’s terrorism, e.g., 85 percent of al Qaeda’s victims in Iraq and Afghanistan are Muslims (most of whom, but far from all, are Shiites), not Westerners.710

Publicizing the truth about the injustices a terror group commits against its constituency directly reduces the trust and respect necessary for prospective or current constituents to consider a terror group credible.711 This approach also avoids the common counterterrorism mistake of demonizing terrorists, which implicitly conveys disrespect for not only a terror group but also its enabling constituency. For example, Muslims are wearying of al Qaeda’s reliance upon a terror strategy and tactics perceived to contravene Islamic teaching.712 Yet, the West unhelpfully has tended to demonize Islamist terrorism. Instead, the West might more constructively communicate respect for Islam and Muslims by portraying al Qaeda in a factually accurate manner:

In attacks where al Qaeda claimed responsibility, the proportion of Muslims killed is at least a third—and this in operations that were specifically designed to be a symbolic protest against Muslim oppression. In short, there is a growing commonality in the attitudes of Muslim and Western publics; yet the West focuses on itself and does little to nurture cooperation. There is a growing sense of outrage about killing innocent civilians—on vacation, on their way to work and school, many of whom are deeply religious and many of whom also happen to be Muslim. If the West fails to grasp this concept, to work with local cultures and local people to build upon common goals and increase their alienation from this movement, then it will have missed a long-established and promising technique for ending al Qaeda.713

Concomitantly, the US by collaborating with Muslim leaders to refute al Qaeda’s false rhetoric can model mutual respect and subtly promote improved equality.714

Fourth, to counter a terror group that espouses a religious ideology a state can support efforts by that religion’s leaders to expose the ways in which the terrorists’ justification for their terrorism distorts the religion’s actual teachings of mutual respect among people (a theme common to all of the world’s major religions). Thus, the US, as part of its counterterrorism efforts against al Qaeda, might support Muslim efforts to communicate the truth about various Islamist twisted versions of Islam. American academic Fawaz Gerges, himself a Muslim, paints a promising picture:

Only Muslims, with the support of the international community, can undermine al-Qaeda’s transnational ideology and disfranchise bin Laden and his cohorts. Since September 11, prominent Muslim clerics and opinion-makers have condemned al-Qaeda’s violent tactics and twisted interpretation of religious texts and doctrines, particularly the institution of jihad.715

Philip Mudd, a former senior CIA and FBI counterterrorism official holds a similar view. He believes that recent developments in Saudi Arabia support the merit of this approach. The Saudis have ordered their clerics to denounce violence and suicide bombings. They have also established government-financed, religion-based, deradicalization centers for militants. The centers provide education, job training, and counseling intended, in conjunction with a family commitment to the militant’s deradicalization, to keep him from returning to violence. The centers, to date, have reported mixed success.716

A fifth step that a state can take to improve equality with respect to another state’s citizens is to prioritize messages and actions that promote those citizens’ values and aspirations instead of myopically focusing on counterterrorism conceived as Justice for Terrorists. Deputy US National Security Advisor Ben Rhodes has studied public-opinion polling, intelligence reports, and independent experts to determine issues that people in the Muslim world cared about. The results surprised him:

‘Terrorism usually wasn’t on the list,’ Rhodes said. ‘Basically we were crafting messages in many cases based on what we cared about but not on what the audience cared about. Anyone who has run a political campaign or an ad campaign knows that if you want to communicate a message, you need to know your audience.’ What the people did care about in those Muslim countries was science, technology, education, and entrepreneurship. ‘The things they still admired about America and the areas they still wanted to partner with America were in areas that we weren’t doing that much in,’ Rhodes said.717

Sixth and finally, aiming for long-term change, a state’s counterterrorism program can encourage, support, and fund education for the children of a terror group’s enabling constituency. Parents universally desire to educate their children. In some areas, such as Pakistan’s tribal areas and refugee camps housing Palestinians and others, there are no schools or the only schools are Islamist madrasas that teach a radicalized distortion of Islam. Equipping children with the literacy and skills to thrive in the twenty-first century, exposing them to a broad range of views and values, building schools, and training and paying teachers all implicitly communicate a message of respect for a people and their children. Investing in education has a unique potential for preventing terrorists from gaining traction among the next generation.718

[]B. Improve Political Fairness

Rawls’ second basic principle in his definition of justice as fairness deals with the distribution of social and economic goods:

Social and economic inequalities are to satisfy two conditions: first, they are to be attached to offices and positions open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the least-advantaged members of society (the difference principle).719

This section considers steps that states can take to improve the distribution of social goods by working to modify (or aid in creating) political institutions that belong to a terror group’s intended constituency. The next section deals with improving economic fairness. Both analyses presume that progress toward improved political and economic fairness is generally incremental. Incremental improvements in political and economic fairness noticed by the effected people tend to diminish, and may eventually sever, the linkages between a terror group and its desired constituency.

The fullest expression of Rawls’ concept of political fairness connotes democratic self-governance by a free people. A state progresses toward improved political fairness as it moves toward becoming a free people who enjoy democratic self-governance.720

Obviously, being a reasonably free democracy does not make a state immune to either international or domestic terrorism. For example, the United Kingdom and Canada have domestic environmental terrorists; the United States has domestic environmental, anti-abortion, and political terrorists; and international terrorists have attacked all three countries. As argued in this chapter’s introduction, lone wolf terrorists and small terror groups are inevitable even in the most just and freest of democracies. These individuals engage in terrorism because of their misdirected idealism, mental illness, etc., yet never gain the support to pose an existential threat.

However, no large terror group has gained traction in a democracy among a free and self-governing people, something unlikely to happen since a terror group can only gain traction by siphoning power away from the state.721 Consequently, a state whose counterterrorism strategy promotes progress toward improved political fairness through free democratic governance at home and abroad effectively reduces any terror threat it may face domestically or internationally.

Conversely, a government lacking a widespread perception of legitimacy among its citizenry may find defeating terrorism impossible. In the absence of direct evidence, evidence from counterinsurgency dynamics is suggestive because a successful terror group with a broad agenda typically morphs into a counterinsurgency. Counterinsurgency expert David Kilcullen argues that a lack of legitimacy handicaps a government engaged in counterinsurgency. Such a government will not have the will or capacity to fight on its own and is probably resistant to reform because insurgencies thrive on real injustices.722 Kilcullen’s position represents official US counterinsurgency (COIN) doctrine:

It is folly to become engaged with counterinsurgency in a foreign country unless there is a reasonable likelihood that the affected government will introduce necessary reforms and will demonstrate adequate willpower and capacity to defeat insurgents (or at least be willing to accept advice as well as assistance). Before deciding to provide overseas COIN assistance, US officials must determine how likely it is that the local government will cooperate and how willing it is to undertake necessary reforms.723

Similar factors—a state having the will and capacity both to enforce the rule of law and to rectify severe structural injustice—are prerequisites for effective counterterrorism.

President George W. Bush and his administration rightly recognized that progress toward democratic self-governance among state sponsors of terrorism and terrorists’ constituencies was essential for ending international terrorism. However, the Bush team was naïve to think that people in any country would immediately seize the opportunity to become free and then transition seamlessly to democratic self-governance. State identity, for example, currently takes a distant backseat to tribal, ethnic, and religious identity for most Afghans; most Afghans would also prefer a state shaped by a moderate form of Islamic law to a liberal democracy. Foreign efforts to create democracy in Afghanistan have failed. Afghanistan remains a highly balkanized agglomeration of tribal and ethnic areas in which the central government exercises little authority beyond the capital.724

Consequently, Justice for Others connotes improving rather than achieving political fairness. Progress toward becoming a free, democratically self-governing people is usually slow, full of missteps, and builds on democracy’s indispensable prerequisites (widespread literacy, identity as a citizen of the state, developing trustworthy political institutions, etc.).725 A state’s citizens must do much of this work themselves.

Other states can work in five ways to improve political fairness in a state from which a large terror group operates or in which a terror groups has gained a constituency by justifying its terrorism as the only way to end the injustices its constituency suffers:

1. Support replacing repressive policies with the rule of law

2. Support ending corruption and establishing honest, fair government

3. Arrange, facilitate, and/or participate in negotiations between the government and terror group

4. Support indigenous public awareness campaigns to separate a terror group from its constituency

5. Promote self-determination.

First and most basic, other states can aid both in ending repressive policies and improving the rule of law through appropriate diplomatic encouragement, funding and other assistance for police recruitment, training, and operations, and refusing to provide military or other aid used to support repressive policies. These steps contribute to improving political fairness among victims of prior injustices and those who do not reside in an area governed by the rule of law. Following the Alipore Bomb Conspiracy in 1908, Britain’s top Indian official in London wrote to the British viceroy and governor general of India, “We must keep order but excess of severity is not the path to order. On the contrary, it is the path to the bomb.“726 The ninth century Muslim scholar, Ibn Qutayba, pithily expressed the same insight that still holds: “There can be no government without an army. No army without money. No money without prosperity. And no prosperity without justice and good administration.“727

Governments must provide internal security and the rule of law or people will take policing into their own hands.728 Failing to ensure the rule of law permits terrorists great latitude in which to operate, demonstrates the government’s impotence to the populace, and tacitly invites the terror group to fill government’s most important role by imposing its own rule of law.729 In Somalia, when the Islamic Courts Union seized power, they implemented a radical agenda that Somalis widely viewed as improvements:

The Courts began dismantling the insane maze of roadblocks that separated one warlord’s kingdom from another’s, leading to a significant drop in food prices. They reopened the ports and the airport, facilitating a dramatic increase in the amount of humanitarian aid that was able to reach Mogadishu. Robbery and other crime dropped substantially, and many residents told journalists that they felt safer than they had at any point in sixteen years.730

More broadly, governments that respect human rights diminish terrorist activity, reported authors of a study of terrorism in 195 countries across three decades and three terrorism databases. Their research demonstrated a robust, positive correlation between protecting human rights and counterterrorism.731

Relying on the military to maintain the rule of law is a poor substitute for effective local police. Military operations tend to be more destructive, less discriminating in distinguishing between suspects, witnesses, and others, and more out of touch with local situations because of the military’s hierarchical, sovereign state chain of command (cf. Chapter 4). Effective police, through their personal and more frequent contacts with the populace can provide information crucial for reducing violence and show skeptics why the government merits their support.732 States working to improve political fairness in another state by helping the latter state’s law enforcement agencies better uphold the rule of law must exercise prudential judgment, providing assistance in ways that do not contribute to that state utilizing its police as an instrument of political repression.

Another proven means of upgrading internal security and the rule of law is for a government to enact repentance legislation. This legislation builds upon counterterrorism progress achieved in other ways, e.g., improved law enforcement, better government, constructive negotiations, etc. Repentance legislation creates a path for disillusioned terrorists to repent of their crimes, renounce their involvement with the terror group, serve a reduced or perhaps commuted sentence for crimes committed, and re-enter the social and economic mainstream of a community’s life.733 Repentance legislation can both accelerate a terror group’s demise and reinforce public perceptions of government legitimacy, justice, and stability.

Second, other states can work to improve political fairness abroad through their efforts to end corruption and promote good government, i.e., increased respect for human rights and democratic processes as well as the delivery of important social services. Illustratively, Gerges describes the connection between terrorism, corruption, and repressive non-democratic Muslim governments and the need to improve political fairness:

Tyranny, dismal social conditions, authoritarian political systems, and the absence of hope provide the fuel that powers radical, absolutist ideologies in the Muslim world; they are the mother of all ailments that afflict the region, including al-Qaeda, a parasite that feeds on political and social turmoil and repression. It is not enough to simply focus on the violent ideology of al-Qaeda without devoting sufficient attention to the social conditions that give rise to such ideologies. The greatest challenge facing the Arabic-Islamic arena in the years to come is to find a way for a smooth transition from political authoritarianism and one-party, family-based rule, to an open democratic polity where all citizens—men and women—are equal before the law. Democratization, in other words, is now a moral imperative. In this sense, if the Arab revolutions manage to fill the gap of legitimate political authority, they will annihilate al-Qaeda and like-minded local branches.734

John Esposito, a leading scholar of contemporary Islam, similarly contends, “We can best counter our concerns about mainstream Islamists coming to power by supporting a strong civil society rather than by strengthening regimes that crush all opposition.“735

In Muslim states that fail to heed protests against injustice, protesters have historically voiced their dissent in Islamic terms: “Expressed as ‘Islam requires’ rather than ‘We demand,’ troublesome ideas are difficult to suppress.“736 Popular dissent, like that aired in the 2012 Arab Spring, is rightly heard as protests against injustice conveyed in the medium of Islamic rhetoric rather than as fervent demands for the imposition of Islamic law. These protests offer the US and other Western states an opportunity to “rebuild broken bridges of trust with embattled societies in the region and support their quest for freedom and self-determination. The changes in North Africa and the Middle East represent a moment of great potential because the protesters are focused on jobs and human rights and appear to have little or no anti-Western or Islamist flavor.” People in these countries are expressing “aspirations for open and representative government, for promoting the rule of law and human rights, and for making structural investments in institution-building, including the economy.“737

More expansively, former US National Security Advisor Zbigniew Brzezinski avers:

… coping with terrorism requires a deliberate campaign not only to eliminate terrorists as such but to identify them and then to address (in whatever fashion may be appropriate) the political impulses that underlie their actions. To assert that is neither to excuse terrorism nor to urge its propitiation. Almost all terrorist activity originates from a political conflict and has been spawned as well as sustained by it.738

States may find diplomatic pressure or sanctions, economic aid or sanctions, extending or withdrawing preferential trade status, cooperative efforts to improve governance, etc., useful in pursuing this goal. States may also wish to partner with another state, helping the latter to deliver important government and social services (medical, educational, agricultural, etc.) to people that the terrorists claim as part of their constituency. To the extent that such programs diminish moral outrage over social injustice, the programs erode support for terrorism.739 Joint US-Philippine reliance on this broader, cooperative approach to counterterrorism has proven effective in the Philippines against the indigenous Islamist terror group Abu Sayyaf:

But in the Philippines, Coultrup’s work has been only 20 percent combat related. That portion of the military mission is designed to ‘help the armed forces of the Philippines neutralize high-value targets—individuals who will never change their minds,’ he said. Eighty percent of the effort, though, has been ‘civil-military operations to change the conditions that allow those high-value targets to have a safe haven,’ Coultrup added. ‘We do that through helping give a better life to the citizens: good governance, better health care, a higher standard of living. That’s our network. If ours is stronger, and is there first—that’s how we prevent the bad guys from getting a grip on the local population.‘740

Third, states can work to improve political fairness by pushing the government that a terror group claims is unjust to negotiate with the terror group or its enabling constituency. Some terror groups seem highly unlikely to enter into negotiations, but negotiations with their desired constituency can erode support and undercut the terror group’s existing traction. For example, Ayman Zawahiri in his book, Knights Under the Prophet’s Banner, calls al Qaeda’s fight with the West a “battle of ideologies, a struggle for survival, and a war with no truce.” Given that rhetoric, direct negotiations with al Qaeda may seem unlikely, but negotiations with governments and other organizations to improve justice for al Qaeda’s intended constituency can weaken the terror group’s ties and future appeal to that constituency. Additionally, opening negotiations with a terror group’s local branch can also become a means for fragmenting networked terror groups such as al Qaeda.741 Fragmentation diminishes a terror group’s threat and can eventually lead to the group’s demise.

Conducted properly, negotiation conveys respect for the group’s valid claims of injustice without endorsing, legitimizing, or capitulating to the terror group or its false allegations.742 Negotiations focused on justice issues add pressure for an unjust government to adopt reforms that will rectify or ameliorate the injustice.743 Governments, even those like the United States with its avowed policy of refusing to talk with terrorists, inevitably negotiate with terror groups that have gained a sizable constituency.744This includes the US talking with al Qaeda branches.745 Engagement through negotiation, not rigidity, maximizes the likelihood of moving toward a peaceful solution.746

States ultimately end terrorism by establishing justice through negotiation and other political responses instead of unsuccessful attempts to suppress violent opposition movements.747 Only after separating a terror group from its constituency, can primary reliance on force deal efficaciously with the residual terrorist organizations and their members.748

Negotiations seldom progress rapidly or steadily toward rapprochement. The governments of the United States and Israel publicly rebuked former US President Jimmy Carter for meeting with Hamas in 2008, clearly indicating that both governments failed to understand the importance of negotiation. Carter’s session with Hamas leaders seemed to generate positive results, e.g., Hamas leaders expressed a willingness to participate in a Palestinian state with Israel as a peaceful neighbor.749 However, hopeful post-negotiation comments frequently mask the true state of affairs. Thus, correctly understanding Hamas’ conciliatory remarks following their conversations with Carter requires putting those remarks in the context of Hamas, three weeks prior to meeting with Carter, insulting Jews and stereotyping them as a people unworthy of trust.750

On the other hand, refusing to negotiate postpones the cessation of terrorist activities and peace. Spain’s overtures to the Basque terrorist group ETA (Basque Homeland and Freedom) has at times and points reduced friction between ETA terrorists and the government by addressing legitimate Basque grievances through negotiation, policy changes, and legislation. Similarly, negotiations between Hezbollah and Israel led to Israel’s withdrawal from Lebanon in 2000.751

Third party states arranging, moderating, or even participating in negotiations can be instrumental in achieving progress between the terror group and the government whose injustice they identify as their cause. Third party states, whose population the terror group targets, have a stake in ending the injustice in order to end attacks on its citizenry.752 However, only the state responsible for the injustice will generally be able to end that injustice, breaking the link between terrorists and their constituency. In other words, internal forces and groups rather than externalities usually drive effective change; this dependence on internal forces and groups for substantive change is apparent in Iraq, Afghanistan, and elsewhere.753

States wisely exclude some topics from their agendas for negotiations with terrorists. Talks focused exclusively on terrorists’ crimes are always non-productive.754 Negotiating to obtain the release of hostages, like paying a ransom for the return of a kidnapping victim, is counterproductive because it rewards a terror group for criminal activity. Similarly, stipulating inflexible preconditions for negotiation is non-productive:

A wise foreign policy errs on the side of negotiation and removes as many impediments to diplomacy as possible. Carelessly conceived preconditions remain among the greatest barriers to achieving negotiated peace. Curtailing their use, if not discarding them altogether, would herald a new era in foreign policy—one both more ambitious and, ultimately, more successful.755

Instead, constructive negotiations focus on addressing the grievances that enabled the terror group to develop a sizable constituency. Such talks recognize the existence of injustice and imply openness, on both sides, to dealing with it. Negotiation thus subtly pushes a terrorist organization into accepting some measure of responsibility for the well-being of the country’s population. For example, the more Hezbollah embedded itself in Lebanon’s social fabric through its participation in politics and extensive welfare system, the more pragmatic Hezbollah became in its goals.756 This routinization results when an organization enmeshes itself in a broader social fabric.757

Fourth, a state attacked by international terrorists can work to improve political fairness in the state that spawned the terror group by encouraging and supporting public awareness campaigns intended to drive a wedge between the terror group and their constituency.758 These moves are sometimes referred to as information operations and include “strategies and tools to counter, influence, or disrupt the message and operation of terrorist groups.“759 Information operations designed to improve political fairness synergistically complement methods for improving equality discussed in the previous section.

A state may conduct information campaigns directly or indirectly. The US military, for example, has gone online to rebut terrorists, taking both a defensive and offensive posture by rebutting stories, putting out positive information, conducting disinformation campaigns, and taking down sites.760 Indirect efforts, encouraging indigenous efforts to alienate terrorists from their constituency, are generally more effective. Public information campaigns beneficially chronicle improved political fairness, highlight the injustices that terrorism causes, and spotlight the illegitimacy of the terror group and its actions. Illustratively, such an information campaign as part of counterterrorism against al Qaeda would seek to communicate to the growing Muslim majority whose values are converging with the West that al Qaeda has not only killed many Muslims but also offers no positive vision for the future and is lying when it claims that the West is waging war against Islam.761

The side—terrorists or counterterrorism forces—that kills the most civilians often loses in a fight against terrorism.762 Many Muslims, for example, who tired of al Qaeda violence killing even more innocent civilians than did the counterterrorism strikes against al Qaeda, had grown disenchanted with Osama bin Laden and al Qaeda well before he died:

By the time of bin Laden’s death, opinion polls already showed that he had been discredited among Muslims around the world. His support levels plummeted in Palestinian territory, Indonesia, Pakistan, Turkey, Lebanon, Egypt, and Jordan. The figures spoke for themselves. Al Qa’ida suffered as well, with support severely declining across the Muslim world, especially in the midst of the Arab Spring. Only 2 percent of Muslims in Lebanon and 5 percent in Turkey expressed favorable views of al Qa’ida in 2011. In Jordan, 15 percent had a positive opinion of al Qa’ida, while 22 percent in Indonesia and 21 percent in Egypt shared this few. The trend was unmistakable.763

Unlike drone strikes that are seldom fatal for a terror group, losing public support is almost inevitably fatal: “Once the social foundation cracks beneath them, these movements slowly but steadily tumble into oblivion.“764 Effective counterterrorism requires not only avoiding excessive collateral damage but also repeatedly emphasizing the injustice and deaths for which the terror group is responsible.

Fifth, states can work to improve political fairness among a terror group’s constituency by promoting the constituency’s self-determination and by refraining from direct involvement in local and regional conflicts in which neither major state interests nor egregious crimes against humanity are at stake. The one exception to that generalization is that states can constructively match the resources that state sponsors of terrorism give to a constituency.765 A state that through its foreign and military policies encourages a terror group’s constituency’s self-determination coheres with a key measure of political fairness enshrined in the UN’s Charter.766

Broadened participation in the political process, especially by moderates, is a central element of promoting self-determination as part of an effective counterterrorism strategy. People, who have chosen to opt out of the political process, perhaps because they believe the process corrupt or fear retaliation for participating, unintentionally add credibility to a terror group’s allegations about a lack of self-determination and political injustice. Political engagement expresses a tacit vote of confidence in the government’s legitimacy, the real possibility of positive changes, and a rejection of terrorism as the only possible path to greater justice.767

The five approaches to improving political fairness discussed here—strengthening the rule of law, promoting fair and honest government, encouraging negotiations between the government and terror group, supporting indigenous public awareness and information campaigns, and fostering self-determination—are mutually reinforcing, best undertaken concurrently, and iteratively. Progress using any one approach enables further progress in the same way as well as enhancing the potential for progress from the other four approaches.

All five approaches contribute to a state’s citizens perceiving the existing government as legitimate, which is an essential condition of political fairness. Legitimate governments ensure a reasonable level of security, uphold an approximation of the rule of law, and enforce an acceptable level of equality, political fairness, and distributive fairness. In counterinsurgency, analyses by US Army officers have concluded that the population’s perception of government legitimacy is the most significant factor in determining success.768 Similarly, terrorism expert Bruce Hoffman in his proposed counterterrorism strategy for the Obama administration explicitly identified improved government as essential for ending terrorism based in Pakistan.769

[]C. Improve Distributive Fairness

Distributive fairness is integral to Rawls’ concept of justice as fairness. Equal opportunity economic systems and institutions, as well as equal access to any entitlement programs those institutions include, characterize distributive fairness.770 That is, distributive fairness connotes fairness of opportunity and not allocative fairness or equal wealth achieved by periodically redistributing wealth or other resources.771 Rawls’ difference principle presumes that people have varying levels of productivity, skill, and jobs. The difference principle embodies reciprocity, stipulating, “the existing inequalities are to benefit others as well as ourselves.“772 In other words, inequality in compensation and wealth may appropriately result from disparities in skills, education, talent, level of responsibility, commitment to and interest in work, etc. Conversely, inequality in compensation and wealth inappropriately result from treating people unequally because of race, gender, religion, etc. Indeed, the difference principle aims to promote greater justice as fairness by corrective action that skews opportunities in favor of the disadvantaged.

Large domestic economic inequality may point toward the existence of troubling injustice for three reasons, according to Rawls.773 First, the inequality may be so great that the poor experience undue suffering and hardship. In this situation, their basic human needs (water, food, shelter, etc.) go unmet. Second, great economic inequality may lead to the affluent (and perhaps the poor) treating the poor as inferior or second-rate. Third, significant economic inequality may cause political unfairness because the affluent exercise disproportionate political influence, benefitting themselves and not the poor.

Distributive injustice has spawned terrorism and enabled terror groups to develop a constituency for all three of those reasons, as the following examples illustrate. First, in Somalia, central government indifference, incompetence, and lack of reach in the decades following the 1991 collapse of General Siyad Barre’s government combined with drought and pre-existing social problems to impoverish much of the population. Islamist terrorists and insurgents initiated an ongoing, brutal war fueled by extreme poverty and the absence of the rule of law. Somalia has also been, in moments of relative quiet, a safe haven for exogenous terror groups including Osama bin Laden’s al Qaeda.774 Second, Palestinians perceive that the Israelis treat Palestinians as inferior, a perception that has contributed to radicalizing Palestinian Muslims and enflamed support for the Islamist terror groups that oppose Israel. One perceptive Israeli scholar, Benjamin Beit-Hallahmi, calls the Israeli attitude toward Palestinians colonialism, meaning an ugly paternalism.775 The vast economic inequalities between Israeli prosperity and Palestinian poverty in the refugee camps where people despair of a better future for themselves or their families exacerbate tensions, creating conditions conducive to terrorism.776 Third, economic unfairness that leads to political unfairness has contributed to international and domestic terrorism in Saudi Arabia and Arabic Muslim states where Sunni Islamists believe the ruling family or government both corrupt and apostate777 and in domestic terrorism in the US by white supremacist groups.778

Improved distributive fairness has proved essential in defeating insurgencies, e.g., in post-WWII Greece, post-WWII Philippines, and El Salvador in the 1980s.779 More recently, US Army generals like Peter Chiarelli, while serving in Iraq, recognized that a lack of distributive fairness fueled the insurgency and used their influence to shift reconstruction programs toward improving basic sewer, water, electric, and trash collection services.780

Correspondingly, improved distributive fairness is essential for defeating terror groups by eliminating the alienation, powerlessness, and humiliation terror groups use to gain sufficient strength to become an insurgency.781 Prominent economist and anti-poverty crusader Jonathan Sachs cogently contends:

To fight terrorism, we will need to fight poverty and deprivation as well. A purely military approach to terrorism is doomed to fail. Just as a doctor fights disease by prescribing not only medication, but also by bolstering a person’s immune system through adequate nutrition and by encouraging a healthy lifestyle for his patient, so, too, we need to address the underlying weaknesses of the societies in which terrorism lurks—extreme poverty; mass unmet needs for jobs, incomes, and dignity; and the political and economic instability that results from degrading human conditions. If societies like Somalia, Afghanistan, and western Pakistan were healthier, terrorists could not operate so readily in their midst.782

Terrorism expert Bruce Hoffman similarly argues for promoting economic development as a primary component of an effective counterterrorism strategy.783

Muslim scholar Fawaz Gerges believes that the 2010 Arab Spring underscores the imperative of not only improving political fairness but also improving distributive fairness in order to destroy permanently the appeal of both radical Islam and the terrorism associated with it to young Arabs:

In the long term, radical ideologies will find shelter in Muslim countries as long as there is a vacuum of legitimate political authority, an increasing gap between those who govern and their citizens. The Arab arena, in particular, has suffered from excessive political repression and dismal social and economic conditions—unemployment among the educated youth is in the double-digits and abject poverty afflicts non-oil-producing Arab states (approximately 40 percent of Arabs live in poverty). That dark climate, coupled with closed political space, makes the Arab area vulnerable to extremist ideologies. For example, between 33 and 50 percent of approximately 120 million young Arabs roughly between the ages of 12 and 25 say they would like to emigrate permanently to another country, according to a 2010 Gallup survey. The Dubai-based poll shows that this desire by the youth to leave is not only about finding better or higher-paying jobs, but also relates to opinions on economic conditions and political governance. It is no wonder that since December 2010 social revolutions have shaken the very foundation of the failed autocratic political and economic order in the Arab world.784

A Palestinian aid worker’s sentiments underscore Gerges’ opinion: “People in Gaza are more concerned with Karni [the crossing point to Israel] than al-Quds [Jerusalem], with access to medical care than the Dome of the Rock [that is, with who owns Jerusalem].“785

Eliminating or substantially reducing funding for a terror group is a vital aspect of improving distributive fairness. It is also a highly effective counterterrorism measure. For example, former US National Security Advisor Zbigniew Brzezinski has concluded that terminating the access of Middle Eastern terrorists to funding is a critical element in expediting the demise of those groups.786

Counterterrorism can beneficially tackle terrorist funding from both the donor and recipient sides. On the donor side, improved distributive fairness, along with improved political fairness and improved equality, will inevitably erode a constituency’s support for any terror group that tries to justify their actions based on injustices that the constituency suffers. Diminished support quickly translates into diminished funding. Two additional counterterrorism moves that can reduce a constituency’s desire to support a terror group are (1) public exposure of links between charities and the terror group while concurrently publicizing injustices committed by the terror group and (2) lobbying states that sponsor terrorism directly or indirectly through financial contributions to end that assistance. In both Saudi Arabia and Pakistan, and perhaps elsewhere, government toleration if not open support for terrorist fundraising has backfired, contributing to radicalizing the local population and a greater likelihood of future government instability.787 At times, the United States has accepted or ignored such policies in exchange for favorable oil export policies, military basing, or other short-term agendas.788 The most effective donor side approaches in cases of international terrorism will often be multilateral, soliciting the cooperation, as appropriate, of religious, political, and other public opinion leaders to stop the flow of funds to the terror group.789

Much terrorist funding comes via internet solicitations.790 Donors implicitly identify themselves as potential recruits. Careful monitoring of these sites yields invaluable data points (e.g., cell phone numbers) useful in counterterrorism for constructing a picture of networked terror activities. Disrupting or taking down terrorist’s internet sites can severely degrade a terror group’s finances.791 States can become more aggressive, updating laws to ban using the internet to fund terrorist activities in ways that respect free speech. International cooperation, given the internet’s global reach, will further improve the ability to disrupt terrorist financing via the internet.792 Unlike some other counterterrorism actions, cutting a terror group’s access to funds does not adversely affect the terrorists’ constituency.793

On the recipient side, effective counterterrorism will seek to undercut the ability of terrorists to operate by reducing or eliminating their access to funds: “It doesn’t take a lot of money to be a terrorist. But it takes a lot of money to be a terrorist organization.“794 Key counterterrorism steps on the recipient side include reforming banks, other financial institutions, and charities both to make it more difficult to send money to a terror group and for a terror group to manage its funds.795

Informal channels may exist through which funds can flow without state scrutiny from donors to recipients. For example, nobody has yet devised a reasonable method of ending terrorists’ reliance on the largely unregulated hawalas, a traditional means of transferring money among Muslims.796 Informal channels are usually possible, pointing to the advisability of effective counterterrorism addressing a terror group’s financing from both the donor and recipient sides.

When counterterrorism disrupts flows from donors to recipients, a terror group necessarily relies more heavily, perhaps totally, on criminal activities such as kidnapping, bank robbery, and selling illegal drugs to fund their operations. A terror group depending upon criminal activities to fund its operations has lost vital ties to its constituency, will usually find that constituency becoming increasingly unsupportive as awareness of those crimes develops, may shift its focus from ideology to profit, and typically is more vulnerable to a counterterrorism strategy employing traditional law enforcement methods. (An exception to this generalization is if the terror group routinely employs kidnapping of innocent people as a means of terror, similar to suicide bombings. Hamas has utilized this tactic against Israel, for example.)797 Furthermore, as funds become less available, the terror group loses its ability to pay the families of suicide bombers, to purchase expensive weapons, and to fund its other operations. Criminal activities may also lead to internal acrimony within the terror group and individual terrorists seeking personal profit at the expense of professed political goals.798

Justice for Others is at best a slow process. Improving equality, political fairness, and distributive fairness are complex objectives without specific, universally applicable roadmaps. Positive steps may take years to show measurable results. Historical data reflects a lag in many cases between weakening or severing a terror group’s ties to its constituency and dampening, perhaps even ending, the group’s use of terror strategy or tactics.799 Nevertheless, Justice for Others, by seeking to ameliorate the injustice that enables a terror group to gain traction with its constituency, is the Just Counterterrorism Model’s essential third component. Justice for Others complements Justice for the Attacked and Justice for Terrorists to describe an effective, comprehensive counterterrorism strategy and tactics.800 Ultimately, counterterrorism is a battle for people’s loyalty, not of ideas or weapons.801 Governments, and their counterterrorism forces and allies, must persuade citizens that life without terrorism is better—more equal, politically fairer, and more economically just—than the alternative promised by terrorists.

Most counterinsurgency authorities maintain that effective counterinsurgency operations are 20 percent military and 80 percent political.802 Some comparable ratio holds for effective counterterrorism. Counterterrorism focused narrowly on justice for terrorists, or primarily on justice for terrorists and secondarily on justice for the attacked, but that excludes justice for others, the communities that spawn and sponsor terrorism, is analogous to Sisyphus’ efforts to push the rock up the mountain. Regardless of how successful Sisyphus’ immediate effort appeared, he never managed to push the rock all the way to the peak. Terrorism will not end until societies address its root causes, which is why Justice for Others is an indispensable element of the Just Counterterrorism model.

[]Chapter 6: Case Study: Northern Ireland

Counterterrorism in Northern Ireland offers a useful case study for assessing the effectiveness of the Just Counterterrorism Model for four reasons. First, the conflict there embodies many of the social dynamics common to much contemporary terrorism. As in many places, some incidents satisfy the definition of terrorism while other incidents are more accurately classified as guerilla attacks, e.g., about 50% of attacks conducted by the Irish Republican Army (IRA) were true terror attacks. 803 Furthermore, preeminent historian of terrorism Randall Law situates the modern origins of ethno-nationalist terrorism in Ireland.804 Second, the conflict’s long duration involves successive challenges and a variety of counterterrorism responses that offer opportunity for analysis, assessment, and comparison. Third, although the conflict continues to simmer, terrorist violence has greatly subsided, if not ended, from which one can reasonably infer that the terrorists prevailed, counterterrorism succeeded, or the parties reached an enduring settlement. Fourth, although case studies cannot prove that a counterterrorism paradigm is effective, historical analysis is the best and most relevant evidence available. Terrorists similarly study other terrorists to learn what tactics work:

The terrorists deliberately study what has happened in the past. The Fenians looked at the Russian nihilists, and the original IRA were fascinated by the Boers. Menachem Begin studied both the campaigns of the IRA in 1919-21 and the Russian anarchists. His own memoir was in turn found in an al-Qaida training camp in Afghanistan.805

Counterterrorism authorities can profitably emulate that example. In sum, Northern Ireland demonstrates a central theme of this book: terrorism is not an intractable problem without a solution.

Admittedly, no single case study can fully address all aspects of either terrorism or counterterrorism. Northern Ireland’s terrorists, unlike some others, have not harbored expansive territorial aspirations. They also did not pose a global threat, although, as the case study recognizes, the conflict did directly involve several states. No single case study can irrefutably demonstrate that the Just Counterterrorism Model will assure the success of all counterterrorism efforts. However, ending terrorism in Northern Ireland required a multi-pronged approach806 that suggests the Just Counterterrorism Model’s framework has been effective in one specific context and is potentially effective elsewhere. At a minimum, this case study verifies that the Just Counterterrorism Model is sufficiently promising to warrant further discussion, perhaps even its tentative adoption and refinement by ethicists, counterterrorism theorists, and counterterrorism practitioners.

Following a brief historical overview of the causes of the political conflict in Ireland generally and in Northern Ireland in particular, this chapter focuses on the violent twentieth century struggle between terrorists and the British in Northern Ireland. The three sections analyze that conflict using the Just Counterterrorism Model’s tripartite framework of Justice for the Attacked, Justice for Terrorists, and Justice for Others.

Superficially, and misleadingly, the conflict in Northern Ireland appears to be about religion. In fact, the problems are political, with religion and culture used to incite supporters on both sides.807 The problems began in the twelfth century when England, after the Pope granted the English monarch sovereignty over Ireland, invaded and annexed Ireland. Subsequently, in the sixteenth and seventeenth centuries, mostly immigrant Protestant English and Scottish proprietors created a plantation system that severely disadvantaged the indigenous Irish both economically and politically. By the beginning of the eighteenth century, Roman Catholics owned only 14 percent of Ireland’s arable land. Furthermore, “legislation, known simply as the ‘Penal Laws,’ was enacted, which made the right of first-born sons of Catholics to inherit land contingent on their conversion to Protestantism, further dispossessing remaining Catholic land owners.“808 English and Scottish transplants intensified those grievances by coercive measures in a heavy-handed, seventeenth century attempt to supplant Irish Catholicism with Protestantism.809 Eventually, only persons who owned or rented property on which they paid the British equivalent of property taxes could vote, systematically disenfranchising most Catholics and resulting in many unopposed electoral contests.810 These longstanding economic and political injustices, cloaked in religious ideology, birthed the continuing dissent.

Ireland erupted in violence in the second half of the nineteenth century, then exploded in the first half of the twentieth century. The Industrial Revolution strengthened already fierce competition between working class Protestants and Roman Catholics in all of Ireland as well as strengthening segregated residential patterns. This continued in the twentieth century; Catholic unemployment from 1920 to 1969 was generally twice that of the Protestants, with Protestants holding the better jobs in most industries.811 Irish plots to kill Queen Victoria and British officials were more talk than action until the 1882 assassination of Thomas Burke (the third ranking British official in Ireland) and the man with whom he was walking in Phoenix Park (the newly arrived number two official and a nephew of the British prime minister). Irish rebels escalated their violence during the 1916 Easter Uprising. The British, then fighting WWI, viewed the surge as wartime treason and responded with “a wave of repressions that in hindsight almost seemed calculated to radicalize the uncommitted.“812 Harsh British measures to suppress the increased violence led to the 1919 formation of the IRA.813

Even with limited Roman Catholic voter registration, the first post-WWI election resulted in almost half of the Irish members of the British Parliament favoring home rule and precipitated the 1919-1920 Irish War of Independence. The best-known Irish leader in this period, Michael Collins, helped to organize and then led the IRA in its revolt against the British. The IRA was an army in name only, never able to muster more than fifteen thousand members. Collins therefore adopted a comprehensive terrorism strategy designed to make regular government impossible or so costly that the British would decline to pay the price. His terror strategy also sought to blind the British by depriving them of their “eyes and ears.” That is, Collins hoped that the IRA terror campaign would achieve the instrumental goals of reaction and renown by causing the British to lash out indiscriminately at the general population for sheltering the IRA, converting the neutral portions of the populace to an anti-British stance. This tactic created an escalating spiral of violence between terrorists and the British Constabulary, the latter known as the Black and Tans because of their hastily assembled, mismatched uniforms.814

The British Parliament, ultimately convinced of the hopelessness of retaining the entirety of Ireland within the United Kingdom, passed the Government of Ireland Act of 1920 granting autonomy to all but the six northern Irish counties, anchored by the city of Belfast. The Republic of Ireland now consists of the southern four-fifths of the island of Ireland. The northern fifth has remained part of the United Kingdom and the locus of the continuing conflict.

Both Northern Irish who want to remain part of Great Britain (Unionists or Loyalists, mostly Protestants by religion) and those who want to secede (Separatists, mostly Roman Catholic by religion) have at times employed terrorist tactics.815 The highest profile Separatist paramilitary groups that have utilized terror tactics or strategies are the IRA and its offshoot, the Provisional IRA (PIRA), formed in 1970 when the IRA by entering into peace talks with the British disillusioned some of the more radical IRA members. Unionist paramilitary groups that have engaged in terrorism include the Ulster Defense Association, Ulster Volunteer Force, and South Londonderry Volunteers.816

From 1969 onwards, terrorism became a principal strategy for both sides. The Terrorism Knowledge Database (maintained by the Memorial Institute for the Prevention of Terrorism, a non-profit funded by the US Department of Homeland Security) lists 13 terror groups that have operated in Northern Ireland since 1969:

Five republican groups have committed 153 acts of terrorism, and six loyalist groups have committed 89 acts of terrorism (one other loyalist group has committed no reported acts, and one terrorist group is not related to the Troubles). … Terrorist acts have abated, though not disappeared, since a peace process began with the Good Friday Accords in 1998. … One major obstacle was the IRA’s unwillingness to disarm its militias, but a very promising moment came on July 28, 2005, when the Provisional IRA announced it was disarming immediately and asked all related IRA groups to submit to verifiable disarmament.817

Those numbers, which count only violence perpetrated by non-state groups, hide part of the overall problem because they portray the Separatists as disproportionately responsible for the violence in Northern Ireland. The Unionists frequently relied upon British police and military forces to do their fighting and to ensure that Northern Ireland remained a part of Great Britain. Hence, most of the non-state terrorism originated with Separatist groups, primarily the IRA and its offshoots. As elsewhere, terrorism in Northern Ireland was the strategy or tactic that the weak adopted when they perceived no other viable option.

Consequently, this case study concentrates on the British struggle against Northern Ireland’s Separatist terror groups. The problem of government forces in their official or unofficial capacities committing crimes against separatists—often acts indistinguishable from those committed by terrorists against civilians—underscores the importance of differentiating non-state terrorism from other problems. The distinction is not moral but practical. Government officials committing crimes is doubly wrong: the violence, like that perpetrated by terrorists, is immoral; illegal violence perpetrated by government officials also corrodes the rule of law and government legitimacy. Stopping government crimes or abuses against civilians may entail reforming or reconstituting a law enforcement agency (this happened when the Police Force of Northern Ireland replaced the Royal Ulster Constabulary (RUC) in 1998) or the replacement of responsible officials (this has also occurred in Northern Ireland). Neither remedy is possible in counterterrorism against a non-state terror group.

[]A. Justice for the Attacked

Until 2000, British law defined terrorism strictly in terms of Northern Ireland.818 That narrow focus may have caused British politicians and counterterrorism officials to ignore other terrorist threats or to limit their responses to other attacks, e.g., the 1988 Lockerbie bombing by Libyan terrorists. On the other hand, narrowly circumscribing the problem of terrorism helped the British to develop effective counterterrorism responses in Northern Ireland because it kept authorities’ attention focused on a single context.

For the most part, people in Northern Ireland, Unionists and Separatists alike, went on with their lives in spite of decades of terrorist activity. Separatists’ terror attacks in both England and Northern Ireland ultimately proved futile in accomplishing their political goals. As described in the following analysis, the response to Irish terrorism by the British, in Northern Ireland and elsewhere in Great Britain, embodied a substantial measure of each of the four cardinal virtues: courage, prudence, justice, and temperance.

[]1. Courage

During the period of 1969-1998, terrorist violence related to the Northern Ireland Troubles wracked Great Britain. Out of Northern Ireland’s 1.5 million people, 3,281 died in the conflict and tens of thousands were injured.819 Those grim statistics understate the real scale of the violence. In Northern Ireland, “the Irish Republican Army targeted stores and pubs as well as British army patrols and barracks.“820 Attacks against the military and police, which constituted about 50% of IRA violence, 821 are by definition not terrorism. Additionally, few IRA attacks caused extensive harm. Only five of the 219 terrorist attacks related to the Northern Ireland Troubles in Great Britain during this period caused more than ten deaths. The worst attack was the 1998 Omagh bombing in Northern Ireland that killed 29; the next worst was possibly the 1993 IRA truck bomb that exploded in London’s financial district, killing one person, injuring 40 others, damaging about 72 buildings, and costing an estimated £1 billion. A 1992 London bombing had previously killed three and inflicted damages in excess of £1 billion. Most of the attacks, 202 of them, caused less than one £1 million in damages. Even at the height of the Troubles, the risk of dying in a terrorist incident in the United Kingdom was less than one in a million.822 In other words, the violence easily felt more pervasive and threatening than a careful analysis of the data might merit.

In spite of seemingly unending violence and some unfortunate rhetorical excesses on all sides, bravery clearly trumped fear. The British in Northern Ireland and elsewhere refused to cower, persisting in their counterterrorism campaign; the Northern Irish neither fled Northern Ireland en masse nor attempted to make Northern Ireland into an apartheid society segregated by religion. British culture, characterized by an emotional reticence and a stereotypical encouragement for people to keep “a stiff upper lip” during adversity, helped people to establish and maintain a healthy resilience in the face of the terror threat. A great many Britons believed that “living life as normal represents a gesture of defiance against terrorists and may contribute to their ultimate defeat.“823

Additionally, the British government during the Northern Ireland Troubles recognized and sought to capitalize on the important role that the public interpretation of events plays for terrorists and counterterrorism alike. Terror attacks aim to create fear more than to inflict actual harm, a goal accomplished by rumors, gossip, and media reports. Conversely, effective counterterrorism seeks to damage terrorists’ credibility and reputations with their constituencies while bolstering the attacked community’s resilience. Post-9/11, the British sought to teach those lessons to US counterterrorism officials.824

[]2. Prudence

Prudential living by an attacked community entails assessing potential risks, adopting appropriate defensive measures to reduce some risks, and deciding to accept other risks because the odds of being harmed are too low to justify preventive measures, too costly to reduce, or impossible to defend against. For example, between 1998 and 2007 there were only two attacks on bridges in UK. The IRA conducted both attacks, causing only minor damage and no fatalities. During that same period, terrorists did not attack any bridges in continental Europe or North America, suggesting that defending bridges against potential terrorist attack is imprudent.825

Prudential judgment frequently shaped the British response. Illustratively, the UK armed forces intentionally lowered their public profile. The UK government required that all military personnel in Great Britain commute to work in civilian attire and wear military uniforms only when aboard a military installation. Security officials cautioned military personnel against divulging their branch of service, rank, or other personal details to strangers and warned personnel about the potential dangers of discussing military matters in public. Sentries, armed with semi-automatic weapons, guarded all military facilities. These sentries routinely screened every vehicle for hidden bombs before permitting the vehicle to enter the base. Many military installations had tall double fences topped with razor wire to make penetration more difficult. The guard force monitored high security areas with multiple video cameras and working dogs. The British had implemented these practices (and others) as prudential measures, the result of lessons learned in Northern Ireland and elsewhere. Most of these measures were low cost, easily implemented, and only marginally interfered with normal, daily life. Most civilian counterterrorism measures reflected a similar commonsense, pragmatic approach to risk assessment and risk management.

As discussed more fully in this chapter’s section on Justice for Terrorists, British counterterrorism began in Northern Ireland by relying on a policing strategy, shifted to a militarized counterinsurgency strategy, and then reverted to a law enforcement strategy that eventually proved successful.826 Prudential concerns drove these shifts in strategy. The late 1960s spike in terror-related violence appeared overwhelming to police officials and prompted the UK to transfer primary responsibility for counterterrorism to the military. In the early 1970s, after violence had further escalated in response to the militarized strategy, Britain counterterrorism officials and politicians wisely reversed course and returned to a law enforcement strategy.

[]3. Justice

Great Britain is a liberal democracy, broadly if incompletely cohering to the principles of greatest equal liberty and difference on which Rawls’ concept of justice as fairness rests. However, no community is, nor need be, perfect to prevail against a terror campaign. A community attacked by a terror group that responds with a counterterrorism strategy shaped by the Just Counterterrorism Model can imperfectly embody the cardinal virtue of justice and still prevail against the terror group if the community retains its values and perseveres in approximating the rule of law.

Great Britain rediscovered the importance of justice for counterterrorism in the 1970s when it exchanged its policing strategy for a military strategy. Prior to the late 1960s, Catholics in Northern Ireland generally held the British military in high regard because the military, unlike the police, typically treated all persons—regardless of religion—with respect, equal protection, and equal civil rights. That changed when Britain militarized its response to Irish terrorism:

A combination of excessive military force and eventual Irish Republican Army (IRA) competency managed to turn around a situation of the British Army being viewed as saviours of the Catholic community in August 1969, to being reviled as the agents of repression, murder and violence. The introduction of internment in August 1971 crystallised, perhaps more than any other event, the mode by which a draconian detention policy and brutal interrogation methods marked the ebbing of British strategic and moral control over the conflict as tales of torture percolated out from internment centres.827

Fatefully, 65 percent of individuals killed by the security forces in Northern Ireland between 1969 and 1974 were unarmed civilians.828 Killing so many non-terrorists was incongruent with British values and suggested to the public that the security forces were incompetent or indifferent. These deaths especially inflamed many Roman Catholics in Northern Ireland.

Former UK counterterrorism official Tom Parker, testifying in 2007 before a US Senate Appropriations Subcommittee, assessed the consequences of the UK militarizing counterterrorism in Northern Ireland similarly:

The legacy of this policy was a major escalation in the level of violence across the Province and the extension of the nationalist terror campaign to the British Mainland. As Sinn Fe´in leader Gerry Adams noted in his memoir, Before the Dawn: ‘The attitude and presence of British troops was also a reminder that we were Irish, and there was an instant resurgence of national consciousness and an almost immediate politicization of the local populace.’829

The militarization of counterterrorism in Northern Ireland, like the militarization of counterterrorism in general, entailed a widespread reliance on excessive force, ethical compromises, and alienation of critical constituencies.

After the UK’s militarization strategy resulted in a dramatic increase in terrorist violence, Britain reverted to a counterterrorism strategy that once again relied primarily upon law enforcement authorities:

The failure to maintain peace and security [prior to 1975] led to a new policy known as ‘normalization,’ ‘criminalization,’ or Ulsterization. The emphasis was placed on police primacy in dealing with insurgents. Captured terrorists were to be tried and given the same status in prison as ordinary criminals. The job of the armed forces was to support the police. … This approach lasted until the Good Friday Agreement, in April 1997, which largely ended the violence.830

This criminalization (or law enforcement) counterterrorism strategy adhered to British values that are consonant with Rawls’ concept of justice as fairness: the strategy equally respected the civil rights and liberties of all parties. This change, however, was most visible in the interaction of authorities with socially disadvantaged Roman Catholics, who comprised the Separatists’ major enabling constituency. The decreased levels of violence permitted the government to restore important social services. Criminalization also advantageously delegitimized terrorism and terror groups.831

[]4. Temperance

John Lynn, an eminent historian of military science, strategy, and terrorism, has reported this account, by former Provisional IRA member Sean O’Hara, of the terrorists’ callous strategy of provocation:

Things have always been manipulated, always. In 1971, … for six weeks or possibly two months every single night we were out agitating, we were out throwing petrol bombs, nail bombs, we were stirring, we were really putting the Army under pressure … But we knew the situation was going to happen, right? If we provoked them enough, if we attacked them enough, at some point it wasn’t just us they were going to be shooting at, it was the people … There was a difference between somebody getting shot in a gun battle and some innocent people getting shot in the streets. And we knew the situation had to come [in order] to escalate the war. That they had to shoot civilians and we knew that. And we agitated and agitated until we got to that situation.

We had to move the violence to a new level, right? And the only way that we could do that was causing thems [sic] to commit the outrageous, to shoot innocent civilians. But this was inevitable because if you are going out and there’s riots going on and some people are throwing stones and they’re throwing bombs, at the end of the day they are going to retaliate. As soon as they shoot somebody, you cry, ‘Foul, they are shooting innocent people.’ Which, in a sense they were, but the situation was engineered.832

The violence that O’Hara described—including the Provisional IRA firing more than 2000 rounds at the British Army, killing seven soldiers—became the catalyst for the British militarization of their response to the Northern Ireland Troubles.833

The specific turning point in the conflict was Bloody Sunday, January 30, 1972. British troops opened fire on unarmed civil rights demonstrators in Derry, killing 13 of them and wounding another 13. One Provisional IRA leader testified,

Bloody Sunday was a turning point. Whatever lingering chance had existed for change through constitutional means vanished. Recruitment to the IRA rocketed as a result. Events that day probably led more young nationalists to join the Provisionals than any other single action by the British.834

An incensed partisan expostulated:

It was only on Bloody Sunday that I thought … we got to meet violence with violence here, even if I am going to be killed on the streets. Bloody Sunday is a … defining moment for the IRA because like after Bloody Sunday they had complete legitimacy, before Bloody Sunday they didn’t have any at all.835

Intentional provocation that is incessant, deadly, and unpredictable understandably tests even the most highly disciplined military or police force. The British yielded to the temptation to respond to terrorist violence with even greater violence. For example, during the next several years the British forces summarily shot two suspected terrorists for every police officer that terrorists killed.836 The Provisional IRA capitalized on that excessive and morally unjustifiable, even if emotionally understandable, violence to recruit new members and to broaden their constituency in the larger community, vital steps for any terror strategy to succeed. The British Army’s intemperate response was self-defeating, triggered increased violence, and diminished essential community cooperation, underscoring the importance of ethics for effective counterterrorism.

Although violence by the PIRA against the British Army is not terrorism because the attacks were not against civilians, the PIRA was a terror group that successfully used attacks by the British Army to achieve the group’s goals of revenge, renown, and reaction. Provoking outrage and intemperate counterterrorism measures falls short of the Just Counterterrorism Model’s ethical norms, compromises a liberal society’s values, and cedes victory to the terrorists. Only courageous, prudent, and just counterterrorism measures are both ethical and effective.

[]B. Justice for Terrorists

Although the overall British response, and that of the Northern Irish in particular, to terrorism embodied behaviors and themes congruent with the four cardinal virtues of Justice for the Attacked and with the three criteria of Justice for Others (cf. the next section), British counterterrorism emphasized Justice for Terrorists. Historically, this misguided strategic pattern of concentrating on Justice for Terrorists has shaped most counterterrorism, inherently limiting its effectiveness. Only a truly comprehensive approach maximizes counterterrorism results. A comprehensive strategy (1) encourages an ethical, efficacious response among the attacked community (Justice for the Attacked) and (2) seeks to sever terrorists from the actual or potential constituency the terrorists require to survive, let alone win (Justice for Others), all the while (3) trying to apprehend or interdict suspected terrorists, then adjudicating them as the criminals they are (Justice for Terrorists). The British experience in Northern Ireland suggests that counterterrorism can succeed when all three components of a comprehensive approach are present, even if they receive uneven attention with some of the components benefiting from serendipitous rather than intentional initiatives or emphases.

This section reviews British counterterrorism measures from 1974 forward using the Just Counterterrorism Model’ Justice for Terrorists paradigm. During this period, the British consistently, though perhaps not in every particular, treated terrorism as a law enforcement problem:

A change of government in 1974 ushered in a new approach in Northern Ireland, one that aimed to delegitimize PIRA [Provisional Irish Republican Army] violence by treating terrorism as just another criminal activity to be dealt with at a local level. In Northern Ireland this policy ultimately created a climate in which both cross-border co-operation could flourish and a meaningful peace process could gain ground amongst the warring parties. Since 1974 successive British governments from the two major parties have pursued a policy of treating terrorism—both foreign and domestic—as a law enforcement problem. … Criminalizing terrorism adds greatly to the appearance of legitimacy. It also creates a framework which significantly mitigates the sort of abuses that can discredit a government internationally…837

The criminalization of terrorism in Northern Ireland followed a pattern that the British had found successful in dealing with similar nineteenth and twentieth century problems elsewhere in their Empire; when “the British deviated from their minimal-force strategy, it usually came back to haunt them….“838

An important corollary of reverting to treating terrorism as a law enforcement issue was that the British criminal justice system began to rectify some of its previous mistakes, e.g., the wrongful convictions of individuals accused of participating in a 1974 series of pub bombings. An independent investigation also reviewed allegations of a police “shoot to kill” policy for terror suspects in Northern Ireland. Investigators never proved the policy’s existence, but did obtain more than 100 convictions of government personnel accused of abusing the criminal justice system. Concurrently, the court system outlawed evidence obtained through torture. The British Parliament also reduced to 30 days the amount of time that the police could hold a suspect without filing charges.839 All of these steps reflect the attacked community practicing the virtue of justice. These steps also reflect holding the criminal justice system accountable for their actions, an essential aspect of Adjudication’s constituent element of procedural fairness.

[]1. Apprehension

From 1974 onward, the police and not the military became Northern Ireland’s primary anti-terrorism force.840 The police brought to this mission a dependence upon minimum force, a culture that emphasized cooperating with the civilian population, and a decentralized command and control structure that relied upon the officer(s) at the scene to make critical, timely, and correct decisions.841 Cumulatively, these changes resulted in the UK achieving significant counterterrorism progress, success directly attributable to their implementing policing policies that adhered to Rawls’ concept of justice as fairness.

In particular, effective policing to apprehend and deter terrorists in Northern Ireland required both upholding the rule of law and respecting the rights of suspected terrorists, witnesses, and the broader population. The more effective the police became, the more their efforts induced terrorists to desert terrorist organizations or to emigrate.842 These results contrast sharply with the increased resentment among the general population and an associated increase in terrorist recruiting that resulted from the repressive measures previously used by the British military.843

a. Respect rights—Five protocols enumerated in Chapter 4 are integral to good policing and germane for effective, ethical counterterrorism that respects rights:

1. Maintaining constant vigilance

2. Knowing the local community and its residents

3. Developing a reciprocal, cooperative relationship with the community

4. Containing, then quelling, disturbances and crime

5. Utilizing the minimum force necessary.

Law enforcement and security services in Northern Ireland utilized all five protocols in their counterterrorism measures after Great Britain returned to a criminalization strategy.

The police maintained a constant vigilance and cultivated their knowledge of the local community and people through extensive surveillance and intelligence gathering. Vital techniques included compiling computerized databases, relying on local observation posts, and conducting extensive neighborhood patrols through which patrol officers became acquainted with local residents.844 The British also established an extensive web of informants.845 Peter Sheridan, who in 2008 was Northern Ireland’s Chief Constable, has speculated that if Britain had adopted these methods sooner, terrorism would have ended sooner.846 These methods, in conjunction with the UK government’s unrelenting insistence that the police adhere to the rule of law and protect the rights of all, greatly enhanced police effectiveness and contributed to a growing cooperative relationship with all factions to end terrorism.847

Demographics helped counterterrorism authorities implement these protocols more easily than occurs in some other counterterrorism contexts. First, almost everyone involved spoke a common language (English). Less than 5 percent of the Irish are literate in Gaelic; Gaelic is a second language for almost all Gaelic speakers.848 Second, England, Scotland, and Northern Ireland largely share a common culture. Third, over half of Northern Ireland’s population desires to remain part of the United Kingdom, including a significant number of the Roman Catholics, giving British authorities a large number of potential allies.849

The shift in counterterrorism from futile preventive measures, such as internments and intrusive checkpoints, to a strategy that called for responding to incidents with the minimum force required and delegitimizing terrorists by treating them as criminals proved effective in stopping an expanding, seemingly irreversible spiral of violence. Good policing quickly achieved results that militarization had been unable to achieve.

b. Uphold the rule of law—In the 1960s and early 1970s, the RUC, which was Northern Ireland’s main police force at the time, was largely comprised of partisans who supported the Unionists against the Separatists. The RUC not only failed to protect the Separatist community from house burnings and expulsions by Unionists but also often employed excessive violence against Separatist suspects.850 When British frustration over the RUC’s inability to cope with terrorist violence reached an intolerable level, the United Kingdom’s government first militarized their counterterrorism effort and then, when that proved ineffective, sought out of desperation to match the Separatists violent act for violent act.851 For example, when the RUC or British military forces located a hidden cache of PIRA weapons, the RUC and military would stake out the cache, waiting to ambush and summarily execute the PIRA members who tried to collect the weapons.852 Coercive interrogations of suspected terrorists and terrorist sympathizers produced little useful information, further hardened resistance, and helped to mobilize opposition among the Northern Irish.853 Mass internments also backfired. The practice generated huge public outrage, alienated neutral persons, and radicalized those already opposed to UK rule. The camps themselves became de facto terrorist training schools.854

Subsequently, when Britain reverted to a counterterrorism strategy that depended primarily upon law enforcement authorities and methods, again criminalizing its response to terror and reforming the RUC to emphasize the impartial administration of the rule law, Northern Ireland’s population resumed cooperating with law enforcement authorities to end terrorism. These positive changes accelerated after the signing of the 1998 Good Friday Agreement.855

Citizen cooperation even extended to the enforcement in the UK of laws that former law professor and US Appellate Court Judge Richard Posner deemed of dubious constitutionality in the United States, e.g., bans on public statements that “glorified” terrorism and detention of a suspect for up to 28 days (with judicial approval) for questioning without charges being filed.856 People had wearied of terrorist violence and greatly appreciated the relative tranquility that good policing, with its adherence to the rule of law, had brought. British acceptance of these UK laws indicates that ethical and effective counterterrorism, like Rawls’ contextualized concept of justice upon which it is based, generally includes situationally defined specifics.

[]2. Interdiction

Great Britain’s efforts to end terrorism in Northern Ireland did not involve any interdictions. Separatist terror groups sought and received assistance from persons and groups in the Republic of Ireland and the United States. The rule of law prevails in both of those countries, making interdictions inappropriate. The third section of this chapter, Justice for Others, discusses steps that Great Britain took to end foreign support of Separatist terror groups. Great Britain chose not to conduct cross-border operations in Ireland or unilateral missions against US supporters of Irish terrorism. That decision avoided unproductively, unnecessarily, and unethically extending, and perhaps escalating, violence attributable to Northern Ireland terrorism and counterterrorism.

Separatist terror groups did have dealings with other states, e.g., purchasing weapons from Libya. Those dealings do not satisfy Interdiction’s seven constituent elements. Most importantly, just cause did not exist because there is no evidence that Separatist terrorists located facilities in Libya, or any other place in which the rule of law does not prevail, for planning terror attacks, training operatives, or evading apprehension.

Although the UK’s armed forces did not conduct any interdictions as part of a Northern Ireland counterterrorism strategy, they have supported the UK’s police forces in Northern Ireland counterterrorism efforts since 1976, consistent with the criminalization of terrorism and British law.857 This role, in the framework of the Just Counterterrorism Model, appropriately supplements law enforcement’s apprehension efforts; the discussion in the preceding section encompassed the activities of both the police and armed forces without distinguishing between those forces. During most of the Troubles, 19,000 military personnel complemented the efforts of 13,500 Constabulary personnel.858

Because British counterterrorism in Northern Ireland did not include interdictions, the discussion of Interdictions in Chapter 4’s concluded with an extended assessment of the US use of indefinite detention and targeted killing, two common types of interdiction.

[]3. Adjudication

Adjudication—conducting legal trials for suspects and punishing the convicted—is the third and final part of Justice for Terrorists. Adjudication’s constituent elements of impartiality and procedural fairness were integral to Britain’s counterterrorism success in Northern Ireland. The former, impartiality, represents an ideal aspiration applicable in all contexts. The latter, procedural fairness, necessarily varies in specifics from one context to another. For example, although Great Britain and the United States are both liberal democracies generally committed to upholding individual liberties and rights, each country’s laws differ about specific procedural requirements in criminal cases. In the US, people have a Constitutional right to a jury trial; in Great Britain, the law allows a single judge, without a jury, to conduct criminal trials in well-defined circumstances, including some terrorist cases. The British permit this exception to their normal insistence on the right to jury trial because they recognize that the exigencies of terrorism may put a jury at risk and thereby may reduce the likelihood of the jury returning a fair and honest verdict. However, trial by a single judge evoked protests and proved unhelpful following convictions that relied upon uncorroborated testimony from a single witness and confessions obtained without right to legal counsel. Communities support necessary deviations from standard practice as long as the changes preserve fairness, basic rights, and are justified by real problems.859 France, incidentally, also conducts terrorist trials without a jury while otherwise adhering to its normal legal procedures.860 The legal systems in Great Britain and the United States have different, though effective, mechanisms for balancing the need to protect intelligence gathering methods and sources against a suspect’s right to know the evidence against him/her and to confront witnesses.861 These varying approaches to procedural fairness illustrate the latitude that exists within the Just Counterterrorism Model’s Justice for Terrorists’ Adjudication criterion for adapting to cultural differences while satisfying the norm of procedural fairness.

a. Impartiality—The best evidence that UK law enforcement authorities post-1974 impartially respected the rights of persons in counterterrorism adjudications is that the proceedings had sufficient public credibility to win widespread acceptance for procedural adaptations such as trial with judge but no jury and relaxed standards of evidence needed to protect court security and intelligence gathering methods.862 This acceptance contrasts sharply with the considerable public outrage sparked by modifications of normal judicial procedures during the period of militarized counterterrorism in Northern Ireland. People objected to coerced confessions and other rights violations, perceiving those methods as indicative of a biased rather than impartial judicial system.863 This lack of impartiality “contributed to polarizing and radicalizing both sides in the conflict.“864

b. Procedural fairness—Because of procedural fairness, the British were able to adjudicate terrorism cases, convicting the guilty and acquitting the innocent, in a manner that satisfied demands for justice from both the attacked community and those whom the terrorists hoped would become their sympathizers, supporters, and sponsors. This positive outcome contrasts sharply with the increased violence in Northern Ireland attributable to a lack of perceived procedural fairness in adjudicating terror suspects during the period that counterterrorism was militarized.

Procedural fairness is a non-negotiable essential principle. That does not mean that procedural fairness, even within a particular community, will always look the same. The IRA used to send operatives to every terrorist trial. The operatives were to report to the IRA about intelligence sources and methods that the prosecution had used. The operatives, by virtue of their presence, apart from any overt message or action, were also a visible warning to witnesses that testifying against the accused and to jury members that voting for a conviction put them and their families at risk of bodily harm. The creation of Public Interest Immunity certificates, issued by judges, authorizing law enforcement to conceal intelligence sources and methods was essential for ending this intimidation.865

Rawls recognized that justice as fairness means that punishment connotes both a penalty for the guilty and deterrence against future crimes committed by the convicted as well as other prospective terrorists. This occurred in Northern Ireland, especially as the levels of terrorism began to diminish:

Defeated violent nationalist organizations may become mafias, but they do not originate as such, nor will they have extensive legitimacy if they become such. One priority of the Irish peace process is to ensure the rehabilitation of former republic paramilitaries—and, to date, rates of recidivism, political or criminal, among ex-IRA prisoners have been strikingly low and further evidence against the criminal motivation thesis.866

[]C. Justice for Others

A counterterrorism strategy and tactics shaped exclusively by Justice for the Attacked and Justice for Terrorists would never have brought peace to Northern Ireland. According to the former head of MI5 (the UK’s Security Service, responsible for domestic counter-intelligence), Eliza Manningham-Buller:

The divisions in Northern Ireland society, manifested in terrorism, could not be solved militarily. Nor could intelligence and police work, however successful in preventing attacks and informing government, resolve those divisions, although that work could buy time for a political process.867

The sporadic emergence of new terror groups (e.g., the PIRA and Real IRA are both offshoots of the IRA) occurred partially as a function of the IRA engaging in negotiations or failing to engage in a sufficiently high level of violence to satisfy its more radical members and constituents. The formation of such groups and underscores the importance of “draining the swamp” by seeking Justice for Others, the Just Counterterrorism Model’s third component.

In Northern Ireland, Unionist terror groups primarily sought to develop their constituency from among Northern Ireland Protestants and secondarily among other Britons committed to retaining the six counties of Northern Ireland as part of the UK. Separatist terror groups sought to develop their constituency from among Northern Ireland’s Roman Catholics and a more extended constituency among citizens of the Republic of Ireland committed to Irish unification and US citizens sympathetic to that cause. This section examines how ending terrorist violence in Northern Ireland required engaging all of these parties in improving justice there.

[]1. Improve Equality

Economic and political discrimination against Roman Catholics in Northern Ireland were instrumental in terrorism being able to flourish there. However, the government’s violation of the right of Roman Catholics to be as secure as Protestants, an important aspect of treating all citizens equally, played an even greater role in fueling Separatist terrorism. Separatists, who declared that terror was their only viable option for protest and ending injustice, derived decisive credibility from brutal British repression of anti-Unionist movements, comprised mainly of Roman Catholics.868

The UK repealed the last Irish Penal Law in 1920, nominally establishing equality of basic rights and liberties, regardless of religion, for all Northern Ireland residents. This legislative action is congruent with Rawls’ first foundational principle of justice as fairness and reflects the United Kingdom’s overall trajectory toward becoming a liberal democracy in the Rawlsian meaning of that phrase.869 From 1920 forward, Roman Catholics in Northern Ireland progressed toward greater social and economic equality.870

However, the fullness of social change often lags formal legal change. Presuming that religious discrimination in Northern Ireland abruptly ended in 1920 is at best naïve and at worst ignores (or dissembles about) the draconian curtailment of human rights that ensued from the militarization of counterterrorism. During that period, British authorities interned hundreds of Northern Irish Roman Catholics on weak evidence of involvement in the IRA or another terror group. In many cases, an internee was guilty strictly because of association or religion. This discrimination by government policies and officials tacitly encouraged and endorsed the widespread pernicious religious discrimination by private individuals, businesses, and other organizations.

Nevertheless, Great Britain’s cultural trajectory as a liberal democracy with generally improving equality and respect for the civil rights of all persons set the basic direction for cultural change in Northern Ireland. The UK’s ratification of the European Convention on Human Rights in 1959 and subsequent recognition of the jurisdiction of the European Court of Human Rights in the last quarter of the twentieth century made that trajectory both clearer and more unalterable, e.g., requiring legal authorization to wiretap a suspect.

Changes to laws and political processes in Northern Ireland have rectified many concrete Catholic grievances.871 Yet, the relatively low rate of marriages in Northern Ireland between Protestants and Roman Catholics—about 10 percent of the marriages there, roughly a third of the contemporary US intermarriage rate872—suggests that some cultural barriers to achieving full equality remain. Demographic trends point toward the probable emergence of a Roman Catholic majority in Northern Ireland within three decades, but by then religious identity may have ceased to be a salient issue because of eroding religious commitments, changes in European politics, and improved equality, political fairness, and distributive justice.873

[]2. Improve Political Fairness

As explained in the previous chapter, states can work in five ways to improve political fairness as part of an effective, ethical counterterrorism strategy:

1. Support replacing repressive policies with the rule of law

2. Support ending corruption and establishing honest, fair government

3. Arrange, facilitate, and/or participate in negotiations between the government and terror group

4. Support indigenous public awareness campaigns to separate a terror group from its constituency

5. Promote self-determination.

Great Britain utilized four of those five ways to improve political fairness in Northern Ireland. The one exception, supporting an indigenous public awareness campaign to separate a terror group from its constituency (#4 above), is generally inapplicable in a liberal democracy with a free press conducting counterterrorism operations against a terror group whose constituency is itself part of that liberal democracy. However, the free press did contribute to separating terror groups from their constituencies, e.g., by publicizing the Real IRA’s responsibility for the Omagh bombing that killed nine children the press greatly diminished public support for the Real IRA.874 This attack was an example of counterproductive violence, a problem that effective terror groups have to avoid. Some counterproductive violence represents a miscalculation by a group’s leadership. Other counterproductive violence occurs when leaders are unable to control the aggression of terror group members. Imposing control entails organizational costs and increases the terror group’s vulnerability to good police work.875

First, Britain replaced repressive policies with the rule of law. As noted in the preceding section, the UK repealed laws, such as the Penal Laws, that legislatively established inequality. Judicial action further strengthened the observance of the rule of law and equal treatment of all persons.

Second, although the Northern Ireland government was not pervasively corrupt, government officials and policies had often been biased against Roman Catholics. Legal changes, judicial decisions, and political pressures coalesced to end most formal discrimination. Repeated negotiations between the government and terror groups (or their political affiliates) helped to develop mutual trust, commitment, patience, flexibility, and good negotiation skills.876 Reforming the Police Service of Northern Ireland (the renamed Royal Ulster Constabulary) and a sustained effort to recruit more Roman Catholics into that reformed force, enabled local security forces to play a more neutral role in society, alleviate Roman Catholic security concerns to some degree, and allow Separatist groups to disarm without feeling that they are abandoning their constituents.877

Third, the British government, recognizing that a solution to the Northern Ireland Troubles involved other countries, opened negotiations with the Republic of Ireland and accepted mediation from the United States while successfully pressuring the US to end the financial and other support that its citizens were giving to Irish terror groups.878 Irish terrorists had been using the United States “to acquire arms, raise money, and find a safe haven.“879 Britain also welcomed other, external peace overtures, e.g., those of Pope John Paul II and US President Bill Clinton. Progress toward equal respect and rights for all regardless of religion coupled with a growing weariness of terrorist violence in both Ireland and the United Kingdom made all of these negotiations possible.880 Groups like the Ulster Defense Association that could not prevent their members from conducting rogue killings lost credibility both in the negotiations and with the group’s enabling constituency.881 Enlisting the support of the Republic of Ireland, demonstrated publicly in their signing the 1998 Good Friday Belfast Agreement,882 deprived Separatist terror groups of cross-border safe havens and greatly complicated their difficulty in obtaining weapons and other supplies. This, in turn, amplified the IRA’s organizational challenges, motivating their continuing support for the Agreement.883

Unlike previous attempts to reach a negotiated settlement that collapsed because the talks did not include armed groups,884 the 1998 talks made room at the table for those groups. British perseverance in the face of violent efforts by the Provisional IRA to derail talks (e.g., a bombing in Manchester and refusing, for a long time, to disarm) was critical in ending the Troubles.885 The negotiations proceeded in “fits and starts,” a pattern that is typical for negotiating accords to settle state disputes with terror groups.886

Lastly, Great Britain promoted Irish self-determination.887 The Belfast Agreement accomplished that goal by giving the Republic of Ireland a voice in Northern Ireland’s future (self-determination for all Irish) while concurrently recognizing that a majority of Northern Ireland’s population in 1998 desired to remain part of the United Kingdom.888 Importantly, 53 percent of Northern Irish at that time were Protestant and only 44 percent Roman Catholic, making voluntary secession from the United Kingdom a difficult goal for the Separatists to achieve through any outcome decided by self-determination.889 The Agreement also established a political power sharing arrangement between Unionists and Separatists that, after some initial struggles, has endured.

Since the 1998 implementation of effective power sharing between Unionists and Separatists in Northern Ireland, disaffected splinter factions have sporadically perpetrated violent acts.890 Those acts, disavowed by the majority of Unionists and Separatists alike, have failed to derail the power sharing or other aspects of the Good Friday Agreement. The Agreement has proven viable, in part, because the process cultivated the basic skills required for democracy to flourish, the agreement constructively addressed the causes of resentment, and parties dealt with their conflicting ideologies by seeking to identify common ground and political objectives.891

[]3. Improve Distributive Fairness

One aspect of improving distributive fairness consists of improving equality of economic opportunities. Although great economic disparities existed between Protestants and Roman Catholics in Northern Ireland in 1920 when Britain granted independence to the Republic of Ireland, those disparities have since diminished.892 Today, the average Northern Irish Roman Catholic is wealthier than is the average citizen of the Republic of Ireland. However, a persistent relative inequality between Roman Catholics and Protestants in Northern Ireland has angered Separatists and generated civil rights protests.893 Continued progress toward improved economic fairness is eroding this issue’s potency for fueling Roman Catholic anger toward Protestants, for inciting terrorism, and as an effective propaganda ploy for recruiting new terror group members.

Improving distributive fairness also consists of disrupting, diminishing, or ideally stopping the flow of funds from external sources to terror groups. Historically, Separatist terror groups sought funding from abroad. Between 1970 and 1991, the Irish Northern Aid Committee (NORAID) in the US sent an estimated $3.6 million to the IRA, a small but significant portion of the IRA’s $10 million estimated annual budget.894 The United Kingdom negotiated with the Clinton Administration to obtain changes in the US government policies that regulated the transfer of funds overseas, terminating most if not all of the funds that had flowed from US donors to the IRA and other Irish terror groups.

When other sources of funds became inadequate, both Separatist and Unionist terror groups have sought to perpetuate their organizations “through organized crime and vigilantism—tactics which depend upon maintaining a certain level of militarization.” Improved policing, a result of improved equality, improved political fairness and increased compliance with the Justice for Terrorists’ criteria of Apprehension and Adjudication, slashed and then stymied this source of funds. Northern Ireland’s law enforcement authorities apprehend terrorists who commit crimes, adjudicate them justly, and imbue the wider community with an increased confidence in police fairness and adherence to the rule of law. These policies have produced results. Having lost traction with most of its enabling constituency, in 2005 one of the most intransigent and hardline terror groups, the Provisional IRA, “announced an end to its armed campaign and asserted that it had decommissioned most of its weaponry.“895

Former US National Security Advisor Zbigniew Brzezinski believes that to defeat terrorism, “the terrorists must be extirpated, but simultaneously a political process must be promoted that confronts the conditions that lead to the terrorists’ emergence. This is precisely what the British have been doing in Ulster….“896 Cronin concurs:

Thus, while it could not be said that peace had come fully to Northern Ireland—and weapons decommissioning, policing, and prisoner releases remained sources of tension—there was a sense that the political process had replaced terrorist attacks as the focal point of popular attention and as the primary vehicle of change.897

As this case study of counterterrorism in Northern Ireland demonstrates, terrorism is not inherently an intractable, unsolvable problem. The Just Counterterrorism Model provides an ethically sound, comprehensive, flexible framework for devising and implementing efficacious counterterrorism strategy and tactics.

[]Conclusion

[]A. Just Counterterrorism Summarized

This book proposes a new model, the Just Counterterrorism Model, for shaping and assessing ethical, effective, and comprehensive counterterrorism strategy and tactics. Prior to considering the rationale for proposing a new model, the term terrorism required clarification. Politicians, government officials, military leaders, scholars, and the public all use the word terrorism to connote a variety of related and unrelated phenomena. Collectively, those phenomena are too diverse to address with any one approach, paradigm, or strategy. Thus, Just Counterterrorism began by de-conflating the problem of non-state terrorism from other problems, specifically defining terrorism as a non-state group attacking or threating innocent civilians for political purposes. This definition circumscribes the unique problem that consists of all endogenous or exogenous non-state groups who, regardless of their ideology, employ a terror strategy or tactics. These groups engage in terrorism because they believe that (1) violent opposition is the only or best means of alleviating the grave injustice that their constituency suffers and (2) their group lacks the strength or resources to wage either a successful guerilla or conventional war. Terrorism, because it targets innocent persons, stripping them of their personhood and reducing them to a means by which the terror group hopes to manipulate a government to accede to its political goals, is always immoral.

Working from that definition of terrorism, Just Counterterrorism then reviewed the most important surveys of how terror groups end. This review demonstrated that non-state terrorism is not an intractable, unsolvable problem. No terror group has ever prevailed against a liberal democracy nor has any terror group achieved its aims without abandoning its terror strategy. The surveys showed that most terror groups end because of an effective counterterrorism strategy that integrates direct action against the terror group, defensive measures to protect the attacked community from new attacks, and improved justice for the terror group’s constituency.

States historically regarded counterterrorism as a law enforcement responsibility. In the wake of the unprecedented scale of al Qaeda’s attacks on 9/11, crucial limitations of a law enforcement counterterrorism strategy became obvious. Most importantly, a law enforcement strategy is ineffective against state sponsored terrorism as well as terrorists who operate from an area in which the rule of law does not exist.

Consequently, the US followed Israel’s lead and militarized counterterrorism. The Global War on Terror, which the US declared less than a month after 9/11, has proven disappointing at best and ineffectual at worst in ending non-state terror groups. An analysis of the GWOT using Just War Theory, the only widely accepted ethical paradigm for assessing justice before, during, and after a war, explained both why warfighting constitutes an inadequate counterterrorism strategy and why Just War Theory, in its current form, offers little relevant ethical guidance for devising comprehensive, effective, and ethical counterterrorism. The analysis also highlighted ways in which the asymmetrical nature of conflict between a terror group and a state gives each side different vulnerabilities and advantages. In short, the most basic obstacle to militarizing counterterrorism, according to terrorism scholar Audrey Kurth Cronin, is that “terrorism is not war.“898

Four design criteria that any new counterterrorism model should satisfy emerged from the discussion of non-state terrorism as a sui generis problem, the survey of how terror groups end, the examination of why a warfighting strategy is inadequate for counterterrorism, and the dynamics of asymmetric conflict. Those criteria were that any new model should be effective, comprehensive, ethical, and flexible:

● Terrorism is always wrong. Hence, results in counterterrorism matter. A model incapable of ending, or at least substantially reducing, a terror threat rightly lacks the prima facie credibility necessary to argue that political leaders, government counterterrorism officials, scholars, and the public adopt the model. Critically, since conflicts between a state and a far weaker non-state terror group are always asymmetrical, the dynamics of asymmetrical conflict offer useful insights for shaping effective counterterrorism strategy and tactics. The two major counterterrorism paradigms are currently law enforcement and warfighting. Neither paradigm has proven effective in shaping comprehensive, ethical counterterrorism. Any new counterterrorism model will likely be a hybrid that consistently treats terrorists as criminals, prioritizing law enforcement methods and personnel that armed forces and intelligence agencies supplement in well-delineated situations and ways.

● Every terror threat or attack involves three distinct sets of stakeholders: the attacked or threatened community, the terrorists responsible for the attack or threat, and the enabling constituency upon whom the terrorists depend for essential support. Without an enabling community, a terror group cannot pose an existential threat to a state. In contrast to Just War Theory’s chronological structure, a comprehensive counterterrorism model could derive its structure by focusing each of its components on one of those sets of stakeholders.

● Ethical action is essential for effective counterterrorism. A state by responding unjustly to a terror threat or attack inadvertently helps the terror group to achieve one or more of its instrumental goals (revenge, renown, and reaction), thereby ceding a greater victory to the terrorists than they would otherwise have gained. Defeating terrorism invariably requires that those engaged in counterterrorism occupy the moral high ground, not sacrifice their values in bringing terrorists to justice, and end (or at least substantially ameliorate) the injustice that enables the terror group to flourish. In other words, an attacked or threatened community, the terror group responsible for the threat or attack, and the terror group’s enabling constituency all seek justice, although they may define that term in very different ways.

● Finally, a counterterrorism model should have sufficient flexibility to apply to endogenous and exogenous terror groups regardless of a group’s geographic locale, ideology, or other characteristics.

Using those four design criteria, Just Counterterrorism reviewed several recently proposed counterterrorism models. None of those models fully satisfied the four design criteria and none has gained wide acceptance.

The Just Counterterrorism Model (summarized in Figure 1) is a proposed model that satisfies the four design criteria. Extensive examples supplemented by case studies of the US’s use of extraordinary rendition and targeted killing and the British experience in Northern Ireland suggest the Just Counterterrorism Model’s probable efficacy for shaping effective counterterrorism strategy and tactics. Each of the model’s three components—Justice for the Attacked, Justice for Terrorists, and Justice for Others—addresses one of the three groups of stakeholders involved in any terror threat or action. Collectively, the Just Counterterrorism Model provides a comprehensive paradigm for shaping and assessing counterterrorism. John Rawls’ concept of justice as fairness connects and informs the Just Counterterrorism Model’s three components, ensuring that the model stands on a solid ethical foundation and is pervasively ethical. Case studies and numerous examples highlight the Just Counterterrorism Model’s flexibility to address diverse terror threats.

Justice for the Attacked (Chapter 3) maintains that justice is the sum of a community’s virtue. The chapter unpacks a community’s practice of justice in terms of the four cardinal virtues (courage, prudence, justice, and temperance). A courageous response on the part of those threatened or attacked by a terror group minimizes a terror group’s ability to gain political traction by committing acts of terror. Community members can exercise courage by resiliently persisting in their everyday activities; leaders profitably promote courage through public discourse, the schools, and building social capital. Prudence shapes a community’s selection and deployment of defensive measures when the community utilizes risk assessment and reduction initiatives similar to the ways in which the community deals with other hazards. The cardinal virtue of justice connotes a community adhering steadfastly to the rule of law, accepting that respecting individual rights and privacy inherently entail a degree of vulnerability. It also connotes a community’s commitment to Justice for Terrorists and Justice for Others. Finally, temperance connotes a community patiently and persistently adopting efficacious and ethical counterterrorism moves instead of preferring immediate, perhaps emotionally satisfying even though probably ineffective, retaliation against its attackers.

Justice for Terrorists (Chapter 4) has three criteria: apprehension, interdiction, and adjudication. Consistently treating terrorists as the immoral criminals that they are helps to deglamorize and delegitimize terrorism. Apprehension, which connotes tactics that rely upon law enforcement personnel, methods, and protocols, is thus preferable to warfighting tactics in seeking to bring terror suspects to justice. Justice as fairness, in the context of apprehension, requires that the police and other authorities respect rights and uphold the rule of law in their efforts to identify, arrest, and interrogate suspects wanted in conjunction with terror crimes.

Some domestic terror groups and many international terror groups seek to exploit the advantages of operating in areas in which the rule of law does not prevail. The lack of viable international criminal justice institutions able to uphold the rule of law in areas in which state authorities cannot, or choose to not, enforce the rule of law necessitates a provision for interdictions. In an interdiction, a state uses military forces, intelligence agencies, or other assets to attempt to capture or to kill, when capture is impossible, a terror suspect(s) whom the state has sufficient evidence to indict under its rule of law. Seven constituent elements, derived from Just War Theory and shaped by Rawls’ concept of justice as fairness, establish the ethical conditions that limit these violations of state sovereignty, adaptations necessary until the rule of law becomes global. The seven constituent elements are:

1. Just cause (the rule of law does not prevail and the state conducting the interdiction has sufficient evidence to warrant arrest of the suspect(s))

2. Right intent (interdicting a terrorist(s); no ulterior foreign policy goals)

3. Right authority (multinational is preferable to national; either includes automatic, independent review to avoid abuses)

4. Reasonable chance of success (the aim is to capture suspect(s) and to kill only if capture is infeasible)

5. Proportional (future harms averted exceed all costs associated with the interdiction)

6. Noncombatant discrimination (avoid harming the innocent)

7. Rapid closure (withdraw all personnel at the end of a mission, regardless of the mission’s success).

Interdictions will not end all state sponsored terrorism. Interdiction’s seven constituent elements do articulate an ethical framework for shaping and assessing capture missions, targeted killings, and the other operations that states already conduct against terrorists in places where the rule of law does not prevail and for which no ethical paradigm exists.

Terror suspects apprehended by law enforcement or captured in an interdiction receive justice when the judicial authorities with jurisdictional cognizance adjudicate a suspect’s case impartially and with procedural fairness. Rawls’ concept of justice as fairness shapes both of those constituent elements. Together, they connote trying the accused, acquitting the innocent, and punishing the guilty fairly and in accordance with existing law. The caveat to those norms is that states may need to modify normal due process to better balance a suspect’s rights with society’s right to insist upon paying only a reasonable price in obtaining justice for terrorists. Punishment, imposed by the legal system according to the rule of law, will have both retributive and deterrent aspects.

Justice for Others (Chapter 5) explains that ending a terror group without ameliorating the injustice that was the catalyst for the group’s terror campaign simply sets the stage for another terror group with a similar agenda to emerge.899 Terror groups invariably claim to fight for one or more constituencies, declaring that their campaign is the only way to rectify the persistent and egregious injustice that the constituency suffers. A state engages in Justice for Others when that state works to improve equality, political fairness, and distributive fairness. No constituency or enabling community will give a terrorist organization the support that the group requires to survive and to grow except in the absence of substantive injustice with no hope for improvement. Improving an enabling community’s level of justice socially, politically, and economically erodes that support, potentially severing a terror group from its constituency. In the context of international terrorism, coordinated multilateralism may reduce the likelihood of destructive bilateral conflicts, increase the resources available for improving justice, and generate additional pressure and incentives for an unjust regime to change.

[]B. Developing a Just Counterterrorism Tradition

The proposed Just Counterterrorism Model is avowedly a work in progress, representing initial steps toward creating a counterterrorism ethical tradition analogous to warfighting’s Just War tradition. Multiple tasks remain that will benefit from the research and experience of counterterrorism practitioners and scholars from varied disciplines and states:

● Applying the Just Counterterrorism Model’s components to develop actual counterterrorism strategies and tactics against particular terror groups

● Assessing the ethics and effectiveness of completed counterterrorism efforts, of both historical and more recent vintage, using the Just Counterterrorism Model

● Refining the Just Counterterrorism Model’s specific formulations to incorporate lessons learned and new insights

● Elevating the Just Counterterrorism Model (or its successor) through extensive public and scholarly discourse and study to a normative position within ethical, military, and legal traditions so that the Model begins to shape counterterrorism strategy and tactics.

The need for a new counterterrorism model is urgent. The terror threat remains high in many places. States, facing a terror threat or in the wake of a terror attack, often approach counterterrorism on an ad hoc basis, choosing tactics more for their political expediency than as part of a unified counterterrorism strategy. For example, as early as 2003, the United States recognized that effective counterterrorism required more than a military solution.900 Yet the US has still not implemented a comprehensive, effective, and ethical counterterrorism strategy. Instead, it has persevered in an ad hoc approach that heavily emphasizes costly, unjustifiable defensive measures and military solutions (originally the GWOT and then its rechristened successor, the long war).901

The prospect of new terror threats adds urgency to those tasks. As this volume nears completion, the Islamic State of Syria and the Levant (ISIL—previously known as ISIS, the Islamic State of Syria and Iraq) has grabbed center stage in world affairs. ISIL has its roots in al Qaeda, but split because of ideological differences and its desire to form a caliphate, an Islamic state ruled by a successor to the prophet Mohammed. Politicians denounce ISIL as a terrorist organization, responding to the international furor that some of ISIL’s actions have triggered, e.g., beheading journalists, raising funds through ransoms received for kidnapped persons, and the attempted genocide of minority religious groups within ISIL’s area of control. Although terrorist terminology may markedly aid in mobilizing public support for military action against ISIL, ISIL is actually a multi-state insurgency rather than a non-state terror group. ISIL’s actions that generated the international outrage reflect policies consistent with ISIL’s commitment to impose an extreme Salafist interpretation of Sharia on the territory and people the group controls rather than an attempt to achieve the group’s political aims through attacks on innocent people. In other words, international response to ISIL unhelpfully perpetuates the practice of conflating disparate phenomena under the label of terrorism.

Nevertheless, ISIL may represent a newly emergent type of terror threat. Experts estimate that perhaps two thousand recruits from North America, Europe, and Australia have already flocked to ISIL, drawn by its religious stance, an exciting promise of combat, the allure of adventure, or other reasons.902 Counterterrorism authorities worry that some of those recruits, their skills developed and honed fighting for ISIL, will return to their native lands as terrorists. A few former mujahidin who fought in Afghanistan against the Soviet Union (or elsewhere) were from North America, Europe, and Australia. A minority of them returned to their own states and relatively few of those became terrorists.903 One study tabulated that Western states have arrested just 114 returnees for terror related crimes since 1993. The authors then extrapolate from that data that one in three returnees may subsequently engage in a terror related crime.904 Nobody can accurately predict, at this writing, the numbers of ISIL’s foreign fighters who may wish to return home.

The Just Counterterrorism Model offers no assistance for devising a strategy or tactics to end ISIL’s insurgency against the Syrian and Iraqi regimes or for preventing the conflict from spreading to neighboring states. The Just Counterterrorism Model does offer practical suggestions for responding to the potential terror threat that returning fighters may represent.

A community that faces a potential terror threat should practice the cardinal virtues (Justice for the Attacked). Temperance restrains a community from overreacting. No state outside of the Middle East now has more than a thousand of its citizens serving with ISIL.905 Even in a worst-case scenario, not all of those fighters will return and engage in a terror campaign. At a minimum, some will die in combat (perhaps as many as one third906); others will suffer incapacitating wounds or become POWs. If ISIL prevails, some may choose to live in the newly established caliphate; if ISIL fails, some will want more from life than the never-ending insecurity and violence that characterizes life as an insurgent or terrorist; not all will return at the same time. In sum, whatever their number (perhaps as few as ten to twenty percent by one estimate907), fighters returning from serving with ISIL do not pose an existential threat to states in North America, Europe, or Australia.908

Nevertheless, a state concerned about the potential threat, acting prudentially and with justice, will implement defensive measures designed to identify, intercept or locate, arrest when warranted, and then adjudicate in accordance with relevant laws, returning citizens who have fought for ISIL.909 That is, states will implement Justice for Terrorists with respect to persons for whom the state has reasonable evidence to believe that they are guilty of a terror crime. Insisting on these steps being reactive rather than preemptive protects suspects’ rights and prevents wrongly escalating the size of the threat. States will prudentially utilize both a layered defense and cost-benefit risk analysis to assess possible defensive measures, adopting a measure only if the projected risk reduction fully offsets the financial and other costs, e.g., any diminution of individual rights and privacy. France, the UK, and Norway have effectively utilized existing laws, law enforcement agencies, and law enforcement methods to intercept a handful of individuals returning from fighting against Assad’s regime in Syria who, though not connected to ISIL, sought to commit terror crimes in Europe.910

A state and its public opinion leaders who intentionally promote a culture of courage help to create a context in which it is difficult both for terrorism to develop an enabling constituency and for terrorists to achieve their instrumental goals of revenge, renown, and reaction. In particular, a state and public opinion leaders concerned about a potential terror threat from returning ISIL volunteers will avoid demonizing ISIL and exaggerating hypothetical dangers, encourage increased vigilance, enlist the community to take an active role in pro-active defensive measures, and utilize the education system to develop the virtue of courage in children.

Lastly, a state anticipating this new type of terror threat—citizens who have fought for ISIL (or another insurgency) and who return to initiate a terror campaign at home—can reduce the threat by working globally for the improved equality, improved political fairness, and improved distributive fairness consonant with the Just Counterterrorism Model’s Justice for Others component. In view of ISIL’s Islamist identity and Middle Eastern location, engaging Muslim states and peoples in these efforts may be critical for draining the Middle East swamp of the waters of discontent and enmity that terrorism needs in order to survive.

Persons who are inflamed by injustice, but who are politically and military weak, seemed poised to continue believing that terrorism is their only viable hope for achieving greater justice. Even though non-state terrorism is likely to continue morphing into new patterns and types of threats, no non-state terror group ever poses an intractable or unsolvable problem. Ethical, effective, flexible, and comprehensive counterterrorism strategy and tactics shaped by the Just Counterterrorism Model can minimize terrorism’s adverse consequences on an attacked community, diminish or end a terror group’s ability to wage a terror offensive, and, in the long term, significantly reduce the probability of new terror groups emerging.

[]Notes

1. Andrew J. Bacevich, The Limits of Power (New York: Metropolitan Books, 2008), p. 123.

2. Lars Ersley Andersen and Jan Aagaard, In the Name of God (Odense, Denmark: University Press of Southern Denmark, 2005), pp. 177-178.

3. Richard A. Muller, Physics for Future Presidents: The Science Behind the Headlines (New York: W.W. Norton & Company, 2008), Kindle Loc. 306-309, 468-469.

4. National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report (Washington, DC: U.S. Government, 2004), pp. 311-316.

5. Peter L. Bergen, Holy War, Inc. (New York: Simon & Schuster, 2002), pp. 233-234.

6. Louise Richardson, What Terrorists Want (New York: Random House, 2006), p. 141.

7. Dana Priest and William Arkin. Top Secret America: The Rise of the New American Security State (New York: Little, Brown and Company, 2011), p. 88.

8. Richardson, What Terrorists Want, p. 147.

9. Philip Bobbitt, Terror and Consent (New York: Alfred A. Knopf, 2008), p. 292.

10. Micah Zenko and Michael A. Cohen, “Clear and Present Safety,” Foreign Affairs, March/April 2012, p. 82.

11. National Commission on Terrorist Attacks upon the United States, p. 169; Bergen, p. 107.

12. George W. Bush, Address of the President to the Nation (Washington, DC: October 6, 2001), accessed March 23, 2008 at www.whitehouse.gov/news/releases/2001/10/20011006.html.

13. Steve Coll, Ghost Wars (New York: Penguin, 2004), p. 509.

14. Michael Scheuer, Marching Toward Hell: America and Islam after Iraq (New York: Free Press, 2008), p. 7. For a more recent assessment of US security from terror attacks that reaches the same conclusion, cf. Anthony H. Cordesman, “The Imploding U.S. Strategy in the Islamic State War?” 23 October 2014. Center for Strategic & International Studies, p. 1. Document accessed 27 October 2014 at http://csis.org/publication/imploding-us-strategy-islamic-state-war.

15. Alex Strick van Linschoten and Felix Kuehn, An Enemy We Created: The Myth of the Taliban-Al Qaeda Merger in Afghanistan (New York: Oxford University Press, 2012), pp. 264-267.

16. Aki Peritz and Eric Rosenbach, Find, Fix, Finish: Inside the Counterterrorism Campaigns that Killed Osama bin Laden and Devastated al-Qaeda (New York: Public Affairs, 2012), pp. 32-33.

17. Susan N. Herman, Taking Liberties: The War on Terror and the Erosion of American Democracy (New York: Oxford University Press, 2011), Kindle Loc. 172-181.

18. Audrey Kurth Cronin, How Terrorism Ends (Princeton: Princeton University Press, 2009), p. 120.

19. Peritz and Rosenbach, p. 231.

20. Boaz Ganor, “Israel, Hamas, and Fatah,” in R.J. Art and L. Richardson, eds., Democracy and Counterterrorism: Lessons from the Past (Washington, DC: United States Institute of Peace, 2007), pp. 294-300.

21. Thomas A. Marks, “Sri Lanka and the Tamil Tigers,” in R.J. Art and L. Richardson, eds., Democracy and Counterterrorism: Lessons from the Past (Washington, DC: United States Institute of Peace, 2007), p. 515.

22. Seth G. Jones and Martin C. Libicki, How Terrorist Groups End: Lessons for Countering al Qa’ida (Santa Monica, CA: Rand, 2008), Kindle Loc. 300-302; Gabriella Blum and Philip B. Heymann, Laws, Outlaws, and Terrorists: Lessons from the War on Terrorists (Cambridge, MA: MIT Press, 2010), p. 136.

23. Richardson, What Terrorists Want, p. 3.

24. C. Coady, “Terrorism, Morality, and Supreme Emergency,” Ethics, Vol. 114, (2004 July), p. 772.

25. Robert W. Brimlow, What about Hitler? (Grand Rapids, MI: Brazos Press, 2006), p. 89.

26. Executive Office of the President of the United States, National Strategy for Combatting Terrorism (Washington, DC: US Government, 2003).

27. Richardson, What Terrorists Want, pp. 4-7.

28. For example, Jean Bethke Elshtain, Just War against Terror: The Burden of American Power in a Violent World (New York: Basic Books, 2003, p. 19; Lee Griffith, The War on Terror and the Terror of God (Grand Rapids, MI: Eerdmans, 2002), p. 6.

29. Thomas Harris, The Silence of the Lambs (New York: St. Martin’s Press, 1988).

30. For example, Chapter 5 delineates the background of the typical Islamist terrorist in more detail.

31. Jones and Libicki, Kindle Loc. 313, 624-727; Brendan O’Leary and Andrew Silke, “Conclusion: Understanding and Ending Persistent Conflicts: Bridging Research and Policy,” in M. Heiberg, B. O’Leary and J. Tirman, eds., Terror, Insurgency, and the State: Ending Protracted Conflicts (Philadelphia: University of Pennsylvania Press, 2007), pp. 396-398.

32. For example, Saul Smilanksy, “Terrorism, Justification, and Illusion,” Ethics, Vol. 114 (2004 July), pp. 790-805; Lionel K. McPherson, “Is Terrorism Distinctively Wrong?” Ethics, Vol. 117 (2007 April), pp. 524-546.

33. Michael Walzer, Arguing about War (New Haven: Yale University Press, 2004), pp. 51-66, 130-142.

34. Andrew Fiala, The Just War Myth: The Moral Illusions of War (Lanham, MD: Rowman and Littlefield Publishers, 2008), p. 103.

35. John Rawls, A Theory of Justice. rev. ed. (Cambridge, MA: Harvard., 1999), p. 50.

36. Robert M. Cassidy, Counterinsurgency and the Global War on Terror (Westport, CT: Praeger Security International, 2006), p. 31.

37. Max Boot, Invisible Armies: An Epic History of Guerrilla Warfare from Ancient Times to the Present (New York: W.W. Norton, 2013), p. 333.

38. This phrasing, used extensively in Just Counterterrorism, connotes Richardson’s seven-part definition of terrorism previously discussed.

39. Jean Bethke Elshtain, “Terrorism, Regime Change, and Just War: Reflections on Michael Walzer,” Journal of Military Ethics, Vol. 6, No. 2 (2007), pp. 131-137; Coady, p. 772.

40. Tim Winter, “Terrorism and Islamic Theologies of Religiously Sanctioned War,” in D. Fisher and B. Wicker, eds., Just War on Terror? Christian and Muslim Response (Farnham, Surrey, UK: Ashgate, 2010), pp. 9-24; Ahmad Achtar, “Challenging al Qaeda’s Justification of Terror,” in D. Fisher and B. Wicker, eds., Just War on Terror? Christian and Muslim Response (Farnham, Surrey, UK: Ashgate, 2010), pp. 25-36.

41. Johnathan Haidt, The Righteous Mind: Why Good People Are Divided by Politics and Religion (New York: Pantheon Books, 2012), Kindle Loc. 4710-4715.

42. For a different opinion, cf. Seumas Miller, Terrorism and Counterterrorism: Ethics and Liberal Democracy (Malden, MA: Blackwell, 2009), pp. 30-59.

43. Randall D. Law, Terrorism: A History (Malden, MA: Polity, 2009), p. 13.

44. Ibid, p. 185.

45. Jones and Libicki, Kindle Loc. 434-436.

46. Assaf Moghadam, Ronit Berger, and Polina Beliakova, “Say Terrorist, Think Insurgent: Labeling and Analyzing Contemporary Terrorist Actors,” Perspectives on Terrorism, Vol. 8, No. 5 (2014), p. 3.

47. Jones and Libicki, Kindle Loc. 1930-1935.

48. Moghadam, Berger, and Beliakova, p. 4.

49. James I. Walsh, The Effectiveness of Drone Strikes in Counterinsurgency and Counterterrorism Campaigns (Carlisle, PA: U.S. Army War College, 2014), pp. 48-49.

50. Hamas’ army, for example, has begun to attract public attention (cf. Shlomi Eldar, “Hamas, the First Palestinian Army,” USA Today, July 23, 2014, accessed July 25, 2014 at http://www.usnews.com/news/articles/2014/07/23/hamas-the-first-palestinian-army?google_editors_picks=true.)

51. Daniel Byman, A High Price: The Triumphs and Failures of Israeli Counterterrorism (New York: Oxford University Press, 2011), p. 376.

52. Ibid, pp. 6-8.

53. Jones and Libicki, Kindle Loc. 180-182.

54. Cronin, How Terrorism Ends, p. 198.

55. Brimlow, p. 92.

56. Richardson, What Terrorists Want, pp. 14-15.

57. Richard Fox, Reinhold Niebuhr (San Francisco: Harper and Row, 1985), pp. 209-210.

58. Richardson, What Terrorists Want, pp. 71-103.

59. Coll, p. 138.

60. David L. Clough and Brian Stiltner, Faith and Force (Washington, DC: Georgetown University Press, 2007), pp. 149-150.

61. Maryann Cusimano Love, “Effective Ways to Fight Terrorism While Returning to Our Values,” in J. Kleiderer, P. Minaert, and M. Mossa, ed., Just War, Lasting Peace: What Christian Traditions Can Teach Us (Maryknoll, NY: Orbis, 2006), p. 64.

62. Matthew Levitt, Hezbollah: The Global Footprint of Lebanon’s Party of God (Washington, DC: Georgetown University Press, 2013), p. 332.

63. Walsh, pp. 40-41.

64. Boot, p. 567.

65. National Strategy for Combatting Terrorism, 2003.

66. Byman, A High Price, p. 32.

67. Levitt, Hezbollah, p. 358.

68. Jeroen Gunning, “Hamas: Harakat al-Muqawama al-Islamiyya,” in M. Heiberg, B. O’Leary and J. Tirman, eds., Terror, Insurgency, and the State: Ending Protracted Conflicts (Philadelphia: University of Pennsylvania Press, 2007), p. 147; Jeroen Gunning, “Hizballah and the logic of political participation,” in M. Heiberg, B. O’Leary and J. Tirman, eds., Terror, Insurgency, and the State: Ending Protracted Crises (Philadelphia: University of Philadelphia Press, 2007), pp. 164-165.

69. Jones and Libicki, Kindle Loc. 2426-2427.

70. Mathieu Deflem, The Policing of Terrorism: Organizational and global perspectives (New York: Routledge, 2010), p. 11.

71. Eric Schmitt and Thom Shanker, Counterstrike: The Untold Story of America’s Secret Campaign Against Al Qaeda (New York: Henry Holt and Company, 2011), p. 236.

72. Jones and Libicki, Kindle Loc. 624-627.

73. Cronin, How Terrorism Ends, pp. 118-120.

74. Michael L. Gross, Moral Dilemmas of Modern War: Torture, Assassination, and Blackmail in an Age of Asymmetric Conflict (New York: Cambridge University Press, 2010), p. 193.

75. This, incidentally, is another proposed definition of terrorism (Law, p. 4).

76. Cronin, How Terrorism Ends, pp. 82, 93, 167, 182, 185, 190.

77. Marks, pp. 515-516.

78. Love, p. 67.

79. Alan Dershowitz, Why Terrorism Works: Understanding the Threat and Responding to the Challenge (New Haven: Yale University Press, 2002), p. 92.

80. Byman, A High Price, pp. 5, 270-271.

81. Rand Corporation, How Terrorist Groups End: Implications for Countering al Qa’ida (Santa Monica: Rand Corporation, 2008).

82. Cronin, How Terrorism Ends.

83. Ibid, pp. 31-32.

84. Bryan C. Price, “Targeting Top Terrorists: How Leadership Decapitation Contributes to Counterterrorism,” International Security, Vol. 36, No. 4 (2012 Spring), pp. 9-46.

85. Cronin, How Terrorism Ends, pp. 35-72.

86. Ibid, pp. 73-93.

87. Ibid, pp. 94-114.

88. Ibid, p. 94.

89. Ibid, 115-145.

90. Prem Mahadevan, “The Gill Doctrine: A Model for 21st Counterterrorism?” Faultlines, Vol. 19 (2008 April) accessed July 27, 2013 at http://www.satp.org/satporgtp/publication/faultlines/volume19/Article1.htm.

91. Cronin, How Terrorism Ends, p. 49.

92. Bruce Hoffman, “A Counterterrorism Strategy for the Obama Administration,” Terrorism and Political Violence, Vol. 21, No. 3 (2009), pp. 360-361.

93. Matthew Levitt, Hamas: Politics, Charity, and Terrorism in the Service of Jihad (New Haven: Yale University Press, 2006).

94. Cronin, How Terrorism Ends, pp. 146-166.

95. Audrey Kurth Cronin, Ending Terrorism: Lessons for defeating al Qaeda (London: International Institute for Strategic Studies, 2008), p. 48.

96. Andersen and Aagaard, p. 218.

97. Friedrich Nietzsche, “The Genealogy of Morals,” in B. Chapko, ed., Nietzsche’s Best 8 Books: An Ebook to Search the Spirit of Friedrich Nietzsche. Version 4.67, Kindle Loc. 18990-18991.

98. Daveed Gartenstein-Ross, Joshua D. Goodman, and Laura Grossman, Terrorism in the West 2008 (Washington: FDD Press, 2009).

99. Megan Braun and Daniel R. Brunstetter, “Rethinking the Criterion for Assessing CIA-Targeted Killings: Drones, Proportionality, and Jus ad Vim,” Journal of Military Ethics, Vol. 12, No. 4 (2013 December), p. 307.

100. Avery Plaw, Matthew S. Fricker, and Brian Glyn Williams, “Practice Makes Perfect? The Changing Civilian Toll of CIA Drone Strikes in Pakistan,” Perspectives on Terrorism, Vol. 5 No. 5-6 (2011 December), pp. 63-64.

101. Bruce Hoffman, Inside Terrorism (New York: Columbia University Press, 2006), p. 22.

102. Gross, p. 189.

103. Byman, A High Price, p. 371.

104. Byman, A High Price, pp. 230-265, 376; Levitt, Hezbollah, p. 372.

105. Gross.

106. Bush.

107. Richardson, What Terrorists Want, p. 61.

108. Emphasis in the original. Tony Zinni and Tony Kolz, The Battle for Peace (New York: Macmillan, 2006), p. 114.

109. Melvin A. Goodman, National Insecurity: The Cost of American Militarism (San Francisco: Open Media, 2013), p. 11.

110. Executive Office of the President, National Strategy for Counterterrorism (Washington, DC: The White House, 2011).

111. Goodman, p. 373.

112. Coady, p. 789.

113. National Strategy for Counterterrorism, 2011.

114. For a more general discussion of Just War Theory’s inapplicability to counterterrorism that also uses the GWOT for illustrative purposes, cf. Bill Calcutt, “Just war theory and the war on terror,” Journal of Policing, Intelligence and Counter Terrorism, Vol. 6, No. 2 (2011), pp. 108-120.

115. George Clifford, Forging Swords into Plows: A Twenty-First Century Christian Perspective on War (Raleigh: Ethical Musings, 2013), Chapter 5.

116. Terrence K. Kelly, “The just conduct of war against radical Islamic terror and insurgencies,” in C. Reed and D. Ryall, eds., The Price of Peace: Just War in the Twenty-First Century (New York: Cambridge University Press, 2007), pp. 211-212.

117. Peter Steinfels, “Justice After War,” New York Times, September 4, 2004 accessed August 5, 2008 at http://www.nytimes.com/2004/09/04/national/04beliefs.html?ex=1095519837&ei=1&en=82c2bf5020b953c2.

118. George Clifford, “Jus Post Bellum: Foundational Principles and a Proposed Model,” Journal of Military Ethics, Vol. 11, No. 1 (2012), pp. 42-57.

119. Jeremy Scahill, Blackwater (New York: Avalon Books, 2007).

120. Marc Sageman, Understanding Terror Networks (Philadelphia: University of Pennsylvania Press, 2004), p. 183.

121. John L. Esposito, Unholy War: Terror in the Name of Islam (New York: Oxford University Press, 2002), pp. 9-18.

122. Griffith, p. x.

123. Ahmad Rashid, Taliban (New Haven: Yale University Press, 2000), pp. 130-134.

124. Brimlow, p. 75.

125. Michael Novak, The Universal Hunger for Liberty (New York: Basic Books, 2004), p. 201.

126. P.W. Singer, Corporate Warriors, (Ithaca: Cornell University Press, 2003), p. 52.

127. Rashid, Taliban, p. 134.

128. Bobbitt, p. 126.

129. Jeremy Scahill, Dirty Wars: The World Is a Battlefield (New York: Perseus, 2013), p. 520.

130. David Halberstam, War in a Time of Peace, (New York: Simon & Schuster, 2002), pp. 420-435; Michael Ignatieff, Virtual War (New York: Metropolitan Books., 2000).

131. Walzer, Arguing about War, pp. 99-103.

132. Martin Cook, “Moral Foundations of Military Service,” Parameters (2000), accessed September 6, 2006 at http://carlisle-www.army.mil/usawc/parameters/00spring/cook.htm.

133. Anthony F. Lang, Jr., ed., Just Intervention (Washington, DC: Georgetown University Press, 2003); Fernando R. Teson, “Eight Principles for Humanitarian Intervention,” Journal of Military Ethics Vol. 5, No. 2 (2006), pp. 93-113.

134. Yona Alexander, Counterterrorism Strategies: Successes and Failures of Six Nations (Washington, DC: Potomac Books, 2006), pp. 13, 28.

135. Samantha Power, “Our War on Terror,” New York Times Review of Books, July 29, 2007 accessed July 29, 2007 at http://www.nytimes.com/2007/07/29/books/review/Power-t.html?8bu=&emc=bu&pagewanted=all.

136. Richardson, What Terrorists Want, p. 177.

137. Andrew J. Bacevich, The New American Militarism (New York: Oxford, 2005), p. 2.

138. Joel Rosenthal, “New Rules for War?” Naval War College Review, (2004 Summer/Autumn). p. 94.

139. Richardson, What Terrorists Want, p. 176.

140. Chairman of the Joint Chiefs of Staff, National Military Strategic Plan for the War on Terror, 2006.

141. O’Leary and Silke, pp. 388-390.

142. Schmitt and Shanker, p. 59.

143. Cordesman, p. 2.

144. Cassidy, pp. 23-32.

145. Andersen and Aagaard, p. 199.

146. Cassidy, p. 74.

147. James Turner Johnson, The Holy War Idea in Western and Islamic Traditions (University Park, PA: University of Pennsylvania Press, 1997), pp. 156-157.

148. John A. Lynn, “Fear and Outrage as Terrorists’ Goals,” Parameters (2012 Spring), p. 60.

149. Lou DiMarco, “Losing the Moral Compass: Torture and the Guerre Révolutionnaire in the Algerian War,” Parameters (2006 Summer), p. 74.

150. David G. Bolgiano and L. Morgan Banks, “Military Interrogation of Terror Suspects,” Military Review (2010 November-December), pp. 2-10.

151. Singer, Corporate Warriors, p. 52.

152. Elizabeth Rubin, “Battle Company Is Out There,” New York Times Magazine, February24, 2008 accessed February 25, 2008 at http://www.nytimes.com/2008/02/24/magazine/24afghanistan-t.html?R=1&oref=slogin&ref=magazine&pagewanted=all.

153. Byman, A High Price, p. 197.

154. Paul Ramsey, The Just War: Force and Political Responsibility (Lanham, MD: Rowman and Littlefield, 1983), pp. 157-158.

155. Peter W. Galbraith, The End of Iraq (New York: Simon & Schuster, 2006), pp. 221-223.

156. David Rodin, “The Ethics of Asymmetric Warfare,” in R. Sorabji and D. Rodin, eds., The Ethics of War: Shared Problems in Different Traditions (Aldershot (Hants): Ashgate, 2006), p. 161.

157. Avishai Margalit and Michael Walzer, “Israel: Civilians and Combatants,” New York Times Review of Books, Vol. 56, No. 8 (May 14, 2009) accessed April 26, 2009 at http://www.nybooks.com/articles/22664.

158. Telford Taylor, Nuremberg and Vietnam (New York: Quadrangle Books, 1970), p. 170.

159. Catherine Philip, “Goodbye Uncle Sam,” The Times, July 28, 2007 accessed July 28, 2007 at http://www.timesonline.co.uk/tol/news/world/us_and_americas/article2110978.ece?token=null&offset=12.

160. Gunning, Hmas, p. 152; Gunning, Hizballah, p. 183; Griffith, pp. 92-97; John D. Carlson, “Winning Souls and Minds: The Military’s Religion Problem and the Global War on Terror,” Journal of Military Ethics, Vol. 7, No. 2 (2008), p. 97.

161. Rashid, Taliban, p. 135.

162. Ibid, p. 182.

163. Bacevich, The New American Militarism, p. 218.

164. Alexander, pp. 212-215.

165. Clifford, Forging Swords into Plows, Chapter. 6.

166. Michael Bess, Moral Choices: Moral Dimensions of World War II (New York: Knopf, 2006), pp. 252-253.

167. Cristian Iftode, “Philosophy, Terror, and Biopolitics,” Public Reason, Vol. 4, No. 1-2 (2012), p. 234.

168. Bill Gertz, Treachery: How America’s Friends and Foes are Secretly Arming Our Enemies (New York: Crown Forum, 2004).

169. van Linschoten and Kuehn, p. 340.

170. Seth G. Jones, Hunting in the Shadows: The Pursuit of al Qa’ida Since 9/11 (New York: W.W. Norton, 2012), Kindle Loc. 6878-6884.

171. Cordesman, p. 1.

172. Richardson, What Terrorists Want, p. 70.

173. Nita C. Crawford, “Principia Leviathan: The Moral Duties of American Hegemony,” Naval War College Review, Vol. LVII, No. 3/4 (2004 Autumn), p. 79.

174. Scahill, Blackwater, pp. 263-280.

175. Bacevich, The Limits of Power, p. 125.

176. Zinni and Kolz, p. 114. Emphasis in the original.

177. Paul Schulte, "Going Off the Reservation into the Sanctuary -- Cross-Border Counterterrorist Operations, Fourth Generation Warfare and the Ethical Insufficiency of Contemporary Just War Thinking," in D. Fisher and B. Wicker, eds., Just War on Terror? A Christian and Muslim Response (Farnham, Surrey, UK: Ashgate, 2010), p. 172.

178. Timothy L. Challans, Awakening Warrior: Revolution in the Ethics of Warfare (Albany: State University of New York Press, 2007), p. 181.

179. Blum and Heymann, p. ix.

180. Amalendu Misra, Afghanistan: The Labyrinth of Violence (Malden, MA: Polity Press, 2004), pp. 135-137.

181. Blum and Heymann, p. 2.

182. Blum and Heymann, p. xii.

183. Ibid, p. xvii.

184. Ibid, p. xiii.

185. Gross, p. 103.

186. DiMarco, p. 72.

187. Leslie H. Gelb and Justine A. Rosenthal, “The rise of ethics in foreign policy,” Foreign Affairs, Vol. 82, No. 3 (2003), p. 7.

188. Anais Reding, A. et al., Handling ethical problems in counterterrorism (Brussels, BE: RAND Europe, 2014).

189. Michael Stohl, “Old myths, new fantasies and the enduring realities of terrorism,” Critical Studies on Terrorism, Vol. 1, No. 1 (2008), pp. 5-9.

190. Coll, pp. 432-433.

191. National Commission on Terrorist Attacks upon the United States, p. 363.

192. COT Institute for Safety, Security and Crisis Management, et.al. Towards a comprehensive, coherent, and ethically just European counterterrorism policy, Deliverable 13, Work Package 6, 2009, accessed July 16, 2013 at www.transnationalterrorism.eu.

193. Richardson, What Terrorists Want, pp. 200-239.

194. Robert Mandel, “Defining postwar victory,” in J. Angstrom and I. Duyvesteyn, eds., Understanding Victory and Defeat in Contemporary War, (London, UK: Routledge, 2007), pp. 20-30.

195. Hoffman, A Counterterrorism Strategy for the Obama Administration.

196. Cronin, How Terrorism Ends, p. 59.

197. Kelly, pp. 201, 208.

198. Marc D. Hauser, Moral Minds (New York: Harper, 2006), p. 70.

199. Henrik Friberg-Fernros, “Abortion and the Limits of Political Liberalism,” Public Reason, Vol. 2, No. 1 (2010), pp. 27-42.

200. Alexander Brown, “On the Public Reason of the Society of Peoples,” Public Reason, Vol. 2, No. 1 (2010), pp. 43-60.

201. Robert S. Taylor, “Rawlsian Affirmative Action,” Ethics, Vol. 119 (2009 April), pp. 476-506.

202. Alejandro Agafonow, “Human Security and Liberal Peace: Some Rawlsian Considerations,” Public Reason, Vol. 2, No. 1 (2010), pp. 77-84.

203. Albert Borgmann, Real American Ethics (Chicago: University of Chicago Press, 2006), p. 79.

204. Miller, p. 85.

205. Zbigniew Brzezinski, The Choice: Global Domination or Global Leadership (New York: Basic Books, 2004), p. 23.

206. Laurent Murawiec, The Mind of Jihad (New York: Cambridge University Press, 2008), p. 320.

207. John Mueller and Mark G. Stewart, Terror, Security, and Money: Balancing the Risks, Benefits, and Costs of Homeland Security (New York: Oxford University Press, 2011), Kindle Loc. 1100-1107.

208. Ahmad Rashid, Descent into Chao.( New York: Penguin, 2009), p. lvii.

209. Stephen Flynn, “Recalibrating Homeland Security,” Foreign Affairs (2011 May/June), p. 131.

210. Ibid.

211. Plato, The Republic, tr. B. Jowett, Book IV.

212. Thomas Aquinas, Summa Theologica, tr. A.C. Pegis (New York: Random House, 1945), II (I), 61.

213. “What Is Virtue?” Newsweek, June 13, 1994, pp. 38-39.

214. James H. Toner, Morals under the Gun: The Cardinal Virtues, Military Ethics, and American Society (Lexington, KY: University Press of Kentucky, 2000).

215. Per Sandin, “Collective Military Virtues,” Journal of Military Ethics, Vol. 6, No. 4 (2007), pp. 303-314.

216. Alasdair MacIntyre, After Virtue, 2nd ed. (Notre Dame, IN: University of Notre Dame Press, 1984), p. 221.

217. Borgmann, pp. 79-80; John Rawls, Justice as Fairness (Cambridge, MA: Harvard, 2001), p. 195.

218. Rawls, A Theory of Justice, p. 161.

219. Ibid, p. 167.

220. Roger Petersen and Evangelos Liaras, “Countering Fear in War: the Strategic Use of Emotion,” Journal of Military Ethics, Vol. 5, No. 4 (2006), pp. 313-333.

221. Griffith, p. 244.

222. Byman, A High Price, p. 372.

223. Lars Svendsen, A Philosophy of Fear (London, UK: Reaktion Books, 2007), p. 19.

224. Svendsen, pp. 21-47.

225. Fawaz A. Gerges, The Rise and Fall of al Qaeda (New York: Oxford University Press, 2011), p. 193.

226. Marc Sageman, Leaderless Jihad (Philadelphia: University of Philadelphia Press, 2008), p. 162.

227. Mueller and Stewart, Kindle Loc. 1586-1594.

228. Blum and Heymann, p. 189.

229. Sageman, Leaderless Jihad, pp. 149-151.

230. Aristotle, Nicomachean Ethics, tr. W.D. Ross, in The Basic Works of Aristotle, R. McKeon, ed. (New York: Random House, 1941), 1115b24-1116a11.

231. Ibid, 1115a33-35.

232. Ibid, 1115b10-20.

233. Ibid, 1116a16-21.

234. Ibid, 1116b3-5. Cf. Andrei G. Zavaliy and Michael Aristidou, “Courage: A Modern Look at an Ancient Virtue,” Journal of Military Ethics, Vol. 13, No. 2 (2014), pp. 179-180.

235. Mueller and Stewart, Kindle Loc. 1185-195.

236. Aristotle, Nicomachean Ethics, 1116b23-27.

237. Richardson, What Terrorists Want, p. 198.

238. George Orwell, 1984 (London, UK: Penguin, 1949).

239. Mueller and Stewart, Kindle Loc. 3194-3196.

240. Toner, pp. 110-114.

241. Zavaliy and Aristidou, p. 186.

242. Peter Olsthoom, “Courage in the Military: Physical and Moral,” Journal of Military Ethics,Vol. 6, No. 4 (2007), p. 272.

243. MacIntyre, p. 122.

244. Robert D. Putnam, Bowling Alone (New York: Simon & Schuster, 2000), pp. 19-28.

245. Byman, A High Price, p. 333.

246. Lord Moran, The Anatomy of Courage (New York: Avalon, 2007).

247. David Goleman, Emotional Intelligence (New York: Bantam, 1995), p. 114, citing David Busch, “Culture Cul-de-Sac,” Arizona State University Research (Spring/Summer 1994).

248. Boot, p. 259.

249. Blum and Heymann, p. xvi.

250. Ari N. Schulman, “What Mass Killers Want – And How to Stop Them,” Wall Street Journal, November, 8, 2013, accessed November 9, 2013 at http://online.wsj.com/news/articles/SB10001424052702303309504579181702252120052.

251. Blum and Heymann, p. 193.

252. Daniel Klaidman, Kill or Capture: The War on Terror and the Soul of the Obama Presidency (New York: Houghton Mifflin Harcourt Publishing, 2012), p. 175.

253. Schmitt and Shanker, p. 249.

254. David Kilcullen, The Accidental Guerrilla: Fighting Small Wars in the Midst of a Big One (New York: Oxford University Press, 2009), p. 300.

255. O’Leary and Silke, pp. 413-415.

256. Blum and Heymann, p. 42.

257. Law, p. 5.

258. Petersen and Liaras, pp. 321-323.

259. Alexander, p. 68.

260. Barack Obama, Transparency and Open Government: Memorandum for the Heads of Executive Departments and Agencies, January 21, 2009, accessed March 27, 2013 at http://www.whitehouse.gov/the_press_office/TransparencyandOpenGovernment/.

261. Peritz and Rosenbach, p. 235.

262. Flynn, p. 137.

263. Gerges, p. 192.

264. Love, pp. 62-67.

265. Schmitt and Shanker, p. 249.

266. Sageman, Leaderless Jihad, p. 161.

267. Miller, pp. 87-88.

268. Sageman, Leaderless Jihad, p. 153.

269. Jacob N. Shapiro, The Terrorist’s Dilemma: Managing Violent Covert Organizations (Princeton: Princeton University Press, 2013), p. 260.

270. Coll, p. 419.

271. Borgmann, 106-110.

272. Zavaliy and Aristidou, p. 179.

273. Schmitt and Shanker, p. 274.

274. Isabelle Duyvestyen, “Paradoxes of the strategy of terrorism,” in J. Angstrom and I. Duyvestyen, eds., Understanding Victory and Defeat in Contemporary War (London, UK: Routledge, 2007), p. 137.

275. Ganor, p. 285.

276. Ami-Jacques Rapin, “Does terrorism create terror?” Critical Studies on Terrorism, Vol. 2, No. 2 (2009), p. 172.

277. Byman, A High Price, p. 373.

278. Paul Ricoeur, Reflections on the Just (Chicago: University of Chicago Press, 2007), p. 54.

279. Toner, p. 60; Aquinas, II(I), Q47.

280. Gregory M. Reichberg, “Thomas Aquinas on Military Prudence,” Journal of Military Ethics,Vol. 9, No. 3 (2010), p. 272.

281. Borgmann, pp. 99-100.

282. John Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), p. 87.

283. Ibid.

284. Ibid, p. 88.

285. Ibid; Rawls, A Theory of Justice, pp. 358-359.

286. Reichberg, pp. 266-268.

287. Novak, p. 228.

288. Aristotle, Politics, tr. b. Jowett, in The Basic Works of Aristotle, R. McKeon, ed. (New York: Random House, 1941), 1277b25-27.

289. Aristotle, Nicomachean Ethics, 1103a14-18.

290. Eugene Garver, Confronting Aristotle’s Ethics (Chicago: University of Chicago Press, 2006), p. 146.

291. Aristotle, Politics, 1276b13-33; Garver, p. 145.

292. Garver, pp. 144-145, 148.

293. Ibid, p. 148.

294. Mueller and Stewart, Kindle Loc. 254-256.

295. Flynn, pp. 133-134.

296. Sageman, Leaderless Jihad, p. 107.

297. Jeremy Shapiro, “France and the GIA,” in R.J. Art and L. Richardson, eds., Democracy and Counterterrorism: Lessons from the Past (Washington, DC: United States Institute of Peace, 2007), p. 134.

298. Ganor, p. 284.

299. Herman, Kindle Loc. 502-504.

300. Peter Irons, War Powers (New York: Henry Holt and Company, 2005), p. 246.

301. O’Leary and Silke, pp. 408-411.

302. Ibid, pp. 411-413.

303. Stephen L. Carter, The Violence of Peace (New York: Beast Books, 2011), pp. 31-35.

304. Craig J.N.de Paulo, Patrick A. Messina, and Daniel P. Thompkins, “Introduction: Confessions, Contentions and the Lust for Power,” in C.J. dePaulo, P.A. Messina and D.P. Thompkins, eds., Augustinian Just War Theory and the Wars in Afghanistan and Iraq (New York: Peter Lang, 2011), p. 2.

305. P.W. Singer, Wired for War: The Robotics Revolution and Conflict in the 21st Century (New York: Penguin, 2009), p. 39.

306. Mueller and Stewart, Kindle Loc. 64-65.

307. Mueller and Stewart, Kindle Loc. 3227-3232.

308. Gerges, p. 28.

309. Andrew McCarthy, “Surveillance Round-Up,” in Dayeed Gartenstein-Ross, Joshua D. Goodman, and Laura Grossman, ed., Terrorism in the West 2008 (Washington: FDD Press, 2009), p. 6.

310. Rawls, Law of Peoples, p. 87.

311. Jessica Wolfendale, “Terrorism, Security, and the Threat of Counterterrorism,” Studies in Conflict & Terrorism, Vol. 29, No. 7 (2006), pp. 753-770.

312. Mueller and Stewart, Kindle Loc. 3433-3438.

313. Sageman, Leaderless Jihad, p. 163.

314. Ellen Nakashima, “Verizon providing all call records to U.S. under court order,” Washington Post, June 5 2013 accessed July 22, 2013 at http://www.washingtonpost.com/world/national-security/verizon-providing-all-call-records-to-us-under-court-order/2013/06/05/98656606-ce47-11e2-8845-d970ccb04497_story.html?hpid=z1.

315. Goodman, p. 183.

316. Herman, Kindle Loc. 3178-3418.

317. Rawls, A Theory of Justice, pp. 187, 214.

318. Cited in Cornell West, Democracy Matters (New York: Penguin, 2004), p. 6.

319. Miller, pp. 109-116.

320. Mueller and Stewart, Kindle Loc. 1915-1919.

321. Kip Hawley, "Why Airport Security Is Broken -- And How to Fix It," Wall Street Journal, April 15, 2012 accessed April 15, 2012 at http://online.wsj.com/article/SB10001424052702303815404577335783535660546.html.

322. Christopher Dickey, Securing the City: Inside America’s Best Counterterror Force – the NYPD (New York: Simon & Schuster, 2009), pp. 211-212.

323. Mueller and Stewart, Kindle Loc. 263-268.

324. Ibid, Kindle Loc. 972-975.

325. Ibid, Kindle Loc. 1016-1019.

326. COT Institute for Safety, p. 11.

327. Muller, Kindle Loc. 345-348 and 643-645, reaches the same conclusion: post 9/11, “sky marshals are hardly necessary, because no pilot ever again will willingly hand over the controls to a terrorist. Even if a hijacker kills the pilots, the courage and fury of the passengers and crew will be unleashed.”

328. Sageman, Leaderless Jihad, p. 107.

329. Rawls, A Theory of Justice, p. 3.

330. Hauser, p. 83.

331. George Lakoff, Moral Politics (Chicago: University of Chicago Press, 1996), cited by Hauser, pp. 68-71.

332. Aristotle, Nicomachean Ethics, 1129b-1130a14.

333. Nicholas Wolterstorff, Justice: Rights and Wrongs (Princeton, NJ: Princeton University Press, 2008), Kindle Loc. 1077-1081.

334. MacIntyre, p. 155.

335. Wolterstorff, Kindle Loc. 586-591.

336. Rawls, A Theory of Justice, pp. 42-43.

337. Borgmann, pp. 83-84.

338. Rawls, A Theory of Justice, p. 53.

339. Garver, p. 140.

340. Rawls, A Theory of Justice, pp. 58-60.

341. Wolterstorff, Kindle Loc. 628-635.

342. Borgmann, pp. 83-84.

343. MacIntyre, p. 244.

344. Borgmann, p. 125.

345. Stephen E. Ambrose, Eisenhower: Soldier and Statesman (New York: Simon and Schuster, 1990), p. 349.

346. Peritz and Rosenbach, pp. 236-237.

347. Goodman, pp. 29, 289.

348. Gerges, p. 209.

349. Brzezinski, p. 161.

350. Blum and Heymann, p. ix.

351. Marks, p. 514.

352. Blum and Heymann, p. 52.

353. Irons, pp. 75-86.

354. Ibid, pp. 132-148.

355. Michael Walzer, Just and Unjust Wars, (New York: Basic Books, 1977), pp. 251-255.

356. Blum and Heymann, pp. 21-25.

357. Muller, Kindle Loc. 510-512.

358. Richardson, What Terrorists Want, pp. 203-233; DiMarco, p. 76.

359. Herman, Kindle Loc. 999-1132, 3685-3690.

360. Ibid, Kindle Loc. 1047-1048.

361. Rawls, Justice as Fairness, p. 11.

362. J. Glenn Gray, The Warriors: Reflections on Men in Battle (Lincoln, NE: University of Nebraska Press, 1959), p. 229.

363. Aristotle, Nicomachean Ethics, 1107b4-6; 1118a1-7.

364. Aquinas, II(I), Q. 61, A. 3.

365. Toner, pp. 123-142.

366. Sayyid Qutb, Milestones (Cedar Rapids, IA: Mother Mosque Foundation, n.d.).

367. Garver, p. 135. Cf. Aristotle, _Nichomachean Ethics_,1119a33-1119b3, 1118a23-25.

368. Fiala, p. 20.

369. Frank W. Gaffney and colleagues, War Footing: 10 Steps America Must Take to Prevail in the War for the Free World (Annapolis: Naval Institute Press, 2006), pp. 39-58, 160-161.

370. Royal Embassy of Saudi Arabia, Washington, DC, 2013. “About Saudi Arabia: Oil” accessed April 6, 2013 at http://www.saudiembassy.net/about/country-information/energy/oil.aspx.

371. Khaled Abou el Fadl, The Great Theft: Wrestling Islam from the Extremists (San Francisco: HarperSanFrancisco, 2005), pp. 87-94, 169-171.

372. Svendsen, pp. 21-47.

373. Gerges, p. 200.

374. Cronin, How Terrorism Ends, p. 167.

375. Ibid, p. 120.

376. Andersen and Aagaard, p. 213.

377. Byman, A High Price, p. 322.

378. Lynn, p. 59.

379. Sageman, Leaderless Jihad, p. 153.

380. Gerges, pp. 199, 202.

381. Flynn, pp. 135-136.

382. Mueller and Stewart, Kindle Loc. 3194-3196.

383. Ibid, Kindle Loc. 2200-2450.

384. Albert J. Mauroni, “A Counter-WMD Strategy for the Future,” Parameters, (2010 Summer), pp. 58.

385. Muller, Kindle Loc. 494-526, 1782-1785.

386. Mauroni, p. 68; Muller, Kindle Loc. 526-527.

387. Muller, Kindle Loc. 538-589.

388. Mauroni, p. 46; Muller, Kindle Loc. 742-750.

389. Ibid, pp. 58-73.

390. Richardson, What Terrorists Want, pp. 203-233.

391. Ibid, p. 131.

392. National Commission on Terrorist Attacks upon the United States, p. 72.

393. Deflem, pp. 111-140.

394. 18 US Code § 1385.

395. Scahill, Dirty Wars, p. 52.

396. Jones and Libicki, Kindle Loc. 2408-2422; Alexander, p. 13; Richardson, What Terrorists Want, pp. 198, 200-239; Sageman, Leaderless Jihad, pp. 165-172; Rosenthal, p. 254; Miller, pp. 117, 122, 125.

397. Schmitt and Shanker, p. 185.

398. Gartenstein-Ross, et al.

399. Levitt, Hezbollah.

400. Rawls, A Theory of Justice, p. 99.

401. Miller, p. 88.

402. Alexander, p. 15.

403. Ibid, p. 97.

404. James I. Walsh and James A. Piazza, “Why Respecting Physical Integrity Rights Reduces Terrorism,” Comparative Political Studies, Vol. 43, No. 5 (2010), pp. 551-577.

405. Deflem, p. 189.

406. Levitt, Hezbollah, p. 171.

407. David H. Bayley and Robert M. Perito, The Police in War: Fighting Insurgency, Terrorism, and Violent Crime( Boulder: Lynne Reiner, 2010), pp. 86-87.

408. Louise Richardson, “Britain and the IRA,” in Democracy and Counterterrorism: Lessons from the Past (Washington, DC: U.S. Institute of Peace, 2007), p. 77.

409. Byman, A High Price, p. 73.

410. Bob Woodward, The War Within (New York: Simon & Schuster, 2008), pp. 136-137.

411. Bayley and Perito, p. 99.

412. Jones, Hunting in the Shadows, Kindle Loc. 6884-6886.

413. Sageman, Leaderless Jihad, p. 93.

414. John Horgan, The End of War (San Francisco: McSweeney’s Books, 2011), Kindle Loc. 1856-1860.

415. Gross, p. 46.

416. Cronin, How Terrorism Ends, pp. 31-32.

417. Robert J. Art and Louise Richardson, “Conclusion,” in Democracy and Counterterrorism: Lessons from the Past (Washington: U.S. Institute of Peace, 2007), pp. 570-572.

418. Chris Isidore, “Local police get billions in military equipment,” CNN Money, August 15, 2014 accessed September 29, 2014 at http://money.cnn.com/2014/08/15/news/economy/police-militarization.

419. Radley Balko, “Rise of the Warrior Cop,” Wall Street Journal, July 22, 2013 accessed July 24, 2013 at http://online.wsj.com/article/SB10001424127887323848804578608040780519904.html.

420. Martha T. Moore, “1985 Bombings in Philadelphia Still Unsettled,” USA Today, 11 May 11, 2005 accessed May 6, 2007 at http://www.usatoday.com/news/nation/2005-05-11-philadelphia-bombing_x.htm.

421. Ibid.

422. Coll, p. 254; Brian Orend, The Morality of War (Orchard Park, NY: Broadview, 2006), p. 112.

423. Gross, p. 126.

424. Ibid, pp. 127, 135-137.

425. Byman, A High Price, p. 302.

426. Scahill, Dirty Wars, p. 89.

427. S. Carter, pp. 40-43.

428. Gross, p. 8.

429. Shankar Vedantam, “APA Rules on Interrogation Abuse,” Washington Post, August 20, 2007, p. A3, accessed August 30, 2007 at http://www.washingtonpost.com/wp-dyn/content/article/2007/08/19/AR2007081901513_pf.html.

430. Gross, p. 126.

431. Schmitt and Shanker, pp. 205-206.

432. Orend, p. 110.

433. DiMarco, p. 64.

434. Klaidman, p. 131.

435. Greg Miller, Adam Goldman, Ellen Nakashima, “CIA misled on interrogation program, Senate report says,” Washington Post, March 31, 2014 accessed May 1, 2014 at http://www.washingtonpost.com/world/national-security/cia-misled-on-interrogation-program-senate-report-says/2014/03/31/eb75a82a-b8dd-11e3-96ae-f2c36d2b1245_story.html.

436. Scott Shane and Mark Mazzetti, “Interrogation Methods are Criticized,” New York Times, May 30, 2007 accessed May 30, 2007 at http://www.nytimes.com/2007/05/30/washington/30interrogate.html?hp=&pagewanted=all.

437. John Kelsay, Arguing the Just War in Islam (Cambridge, MA: Harvard, 2007), p. 212.

438. Deflem, p. 189.

439. Mark Perry, Talking to Terrorists (New York: Perseus, 2010), p. 140; Levitt, Hezbollah, p. 357.

440. Press TV, Iran Urges Pakistan to Extradite Terrorist, accessed May 18, 2013 at http://www.presstv.com/detail/157112.html.

441. Micah Zenko, Between Threats and War: U.S. Discrete Military Operations in the Post-Cold War World (Palo Alto: Stanford University Press, 2010), p. 73.

442. W. Andrew Terrill, “Drones over Yemen: Weighing Military Benefits and Political Costs,” Parameters, Vol. 42, No. 4/Vol. 43, No. 1 (2013 Winter-Spring), p. 21.

443. Art and Richardson, pp. 565-568; Marks, p. 519.

444. Mahadevan.

445. Scahill, Blackwater, p. 264.

446. Sageman, Leaderless Jihad, p. 90.

447. Richardson, What Terrorists Want, pp. 185, 203-233.

448. Gaffney and colleagues, p. 86.

449. S. Carter, p. 39.

450. Peter Finn, “Somali’s case a template for U.S. as it seeks to prosecute terrorism suspects in federal court,” Washington Post, March 30, 2013accessed June 10, 2013 at http://www.washingtonpost.com/world/national-security/somalis-case-a-template-for-us-as-it-seeks-to-prosecute-terrorism-suspects-in-federal-court/2013/03/30/53b38fd0-988a-11e2-814b-063623d80a60_story.html.

451. Klaidman, p. 147.

452. Finn.

453. Art and Richardson, pp. 586-587.

454. Brzezinski, p. 23.

455. Senate Appropriations Subcommittee, Catching Terrorists: The British System Versus the U.S. System (Washington, DC: Government Printing Office, 2006), pp. 37-42.

456. David Omand, “How Much of Our Liberties and Privacy do We Need to Give Up for Public Security?” in D. Fisher and B. Wicker, eds., Just War on Terror? (Farnham (Surrey): Ashgate, 2010), pp. 108-110.

457. Herman, Kindle Loc. 1928-2117.

458. Ibid, Kindle Loc. 1674-1676.

459. Ibid, Kindle Loc. 150-157, 238-247.

460. Coll, p. 562.

461. Robert O’Harrow and Ellen Nakashima, “National Dragnet Is a Click Away,” Washington Post, March 6, 2008, p. A1, accessed May 15, 2009 at http://www.washingtonpost.com/wp-dyn/content/article/2008/03/05/AR2008030503656_pf.html.

462. Coll, p. 572.

463. Omand, p. 101.

464. Bayley and Perito, p. 61.

465. Craig Whitlock, “After a Decade at War with West: al-Qaeda Still Impervious to Spies,” Washington Post, March 20, 2008, p. A1, accessed March 20, 2008 at http://www.washingtonpost.com/wp-dyn/content/article/2008/03/19/AR2008031903760_pf.html.

466. Greg Miller and Karen DeYoung “Al-Qaeda airline bomb plot disrupted, U.S. says,” Washington Post, May 7, 2012, accessed May 26, 2013 at http://www.washingtonpost.com/world/national-security/cia-disrupts-airline-bomb-plot/2012/05/07/gIQA9qE08T_story.html.

467. Mueller and Steward, Kindle Loc. 3061-3067.

468. Andrea Altman and Christopher Wellman, “From Humanitarian Intervention to Assassination: Human Rights and Political Violence,” Ethics, Vol. 118, No. 2 (2008 January), p. 229.

469. United Nations, Charter, 1945, accessed May 13, 2013 at http://www.un.org/en/documents/charter/, Art. 2 (4) and (7).

470. Mario Loyola, “Legality Over Legitimacy,” Foreign Affairs, Vol. 89, No. 4 (2010 July-August), pp. 175-176.

471. Rawls, The Law of Peoples, p. 37.

472. Crawford, pp. 81-82.

473. Thomas Friedman, The World Is Flat: A Brief History of the Twenty-First Century (New York: Farrar, Straus and Giroux, 2005).

474. Richardson, What Terrorists Want, pp. 203-233.

475. Bing West, The Wrong War: Grit, Strategy, and the Way Out of Afghanistan (New York: Random House, 2011), p. 123.

476. Seth G. Jones, In the Graveyard of Empires: America’s War in Afghanistan (New York: W.W. Norton & Company, 2009), Kindle Loc. 5917-5920.

477. Jones, Hunting in the Shadows, Kindle Loc. 6937-6942.

478. Byman, A High Price, pp. 212-213; Levitt, Hezbollah.

479. Jones and Libicki, Kindle Loc. 2399-2400.

480. Crawford, p. 82.

481. Robert Baer, Sleeping with the Devil (New York: Three Rivers Press, 2003), p. 208.

482. Shapiro, The Terrorist’s Dilemma, p. 268.

483. Mark Mazzetti, The Way of the Knife: The CIA, a Secret Army, and a War at the Ends of the Earth (New York: Penguin, 2013), Kindle Loc. 588-591.

484. “A nice safe haven for jihadists,” The Economist, January 29, 2009, accessed January 29, 2009 at http://www.economist.com/world/mideast-africa/displaystory.cfm?story_id=13041120.

485. National Strategy for Combatting Terrorism, 2003, Kindle Loc. 356-57.

486. M.W. Aslam, “A critical evaluation of American drone strikes in Pakistan: Legality, legitimacy, and prudence,” Critical Studies in Terrorism, Vol. 4, No. 3 (2011), pp. 320-321.

487. David C. Unger, The Emergency State: America’s Pursuit of Absolute Security at All Costs (New York: Penguin, 2012), p. 269; Priest and Arking, pp. 221-255; Eric Schmitt and Mazzetti, “Secret Order Lets U.S. Raid Al-Qaeda,” New York Times, November 10, 2008, accessed November 13, 2008 at http://www.nytimes.com/2008/11/10/washington/10military.html?_r=1&th=&oref=slogin&emc=th&pagewanted=print.

488. Schulte.

489. Byman, A High Price, p. 323.

490. Avery Plaw, “Terminating Terror,” Theoria (2007 December), pp. 1-2.

491. Sarah Kreps and Micah Zenko, “The Next Drone Wars,” Foreign Affairs, April 2014, accessed April 19, 2014 at http://www.foreignaffairs.com/articles/140746/sarah-kreps-and-micah-zenko/the-next-drone-wars.

492. Scahill, Dirty Wars, p. 520.

493. Gross, p. 74.

494. Aslam, pp. 313-329.

495. United Nations, Charter, Art. 55 and 56.

496. U.N. General Assembly, Universal Declaration of Human Rights, 1948, accessed May 29, 2013 at http://www.un.org/en/documents/udhr/index.shtml.

497. Conor Foley, The Thin Blue Line: How Humanitarianism Went to War (London: Verso, 2008), p. 49.

498. United Nations, Charter, Art. 51; Foley, p. 50.

499. Altman and Wellman.

500. Tamar Meisels, “Targeting Terror,” Social Theory and Practice, Vol. 30, No. 3 (2004 July), pp. 297-326. Also, cf. Gary Solis, “Targeted Killing and the Law of Armed Conflict,” Naval War College Review, Vol. 60, No. 2 (2007 Spring), p. 127.

501. Plaw, “Terminating Terror,” pp. 507.

502. Blum and Heymann, p. 86.

503. Edward T. Barrett, “Warfare in a New Domain: The Ethics of Military Cyber-Operations,” Journal of Military Ethics, Vol. 12, No. 1 (2013 April), p. 9.

504. Blum and Heymann, p. 34.

505. Ibid, pp. 84-85.

506. Schulte, p. 172.

507. Sageman, Leaderless Jihad, p. 169.

508. Blum and Heymann, pp. 90-91.

509. Schulte, p. 151.

510. Jane Perlez and Robert F. Worth, “Attacks Traced to Two From Pakistan,” New York Times, December 5, 2008 accessed December 5, 2008 at http://www.nytimes.com/2008/12/08/world/asia/08terror.html?hp=&pagewanted=all.

511. Scahill, Dirty Wars, p. 96.

512. Linda Robinson, “The Future of Special Operations Beyond Kill and Capture,” Foreign Affairs, November/December 2012, pp. 110-123, accessed December 10, 21012, at http://www.foreignaffairs.com/articles/138232/linda-robinson/the-future-of-special-operations?page=show.

513. Plaw, et al., pp. 53-56.

514. Brzezinski, p. 47.

515. Alexander, p. 120.

516. Aslam, p. 317.

517. Tariq Ali, The Duel (New York: Scribner’s, 2008), pp. 274-276; Gerges, p. 175.

518. Walsh, p. 39.

519. Aslam, p. 319.

520. David Markey “A New Drone Deal For Pakistan,” Foreign Affairs, July 16, 2013, accessed July 23, 2013 at http://www.foreignaffairs.com/articles/139584/daniel-markey/a-new-drone-deal-for-pakistan?page=show.

521. Randall L. Koehlmoos, “Positive Perceptions to Sustain the US-Pakistan Relationship,” Parameters, 2010 Summer, pp. 52-53.

522. Naheefa Mustafa, “Drone Lands Dispatch,” Foreign Affairs, December 9, 2013, accessed December 16, 2013 at http://www.foreignaffairs.com/articles/140372/naheed-mustafa/drone-lands-dispatch?sp_mid=44587873&sp_rid=Z2VvcmdlY2xpZmZvcmRAYmVsbHNvdXRoLm5ldAS2.

523. Audrey Kurth Cronin, “Why Drones Fail: When Tactics Drive Strategy. Foreign Affairs, July/August 2013, p. 54.

524. Scahill, Dirty Wars, p. 149.

525. Herman, Kindle Loc. 213-215.

526. Sarah E. Kreps, Ground the Drones? Foreign Affairs, December 4, 2013, accessed December 16, 2013 at http://www.foreignaffairs.com/articles/140318/sarah-kreps/ground-the-drones?sp_mid=44528490&sp_rid=Z2VvcmdlY2xpZmZvcmRAYmVsbHNvdXRoLm5ldAS2.

527. John P.Abizaid, Rosa Brooks, et. al. Recommendations and Report of the Task Force on US Drone Policy [_(_]Washington, DC: Stimson, 2014), p. 10.

528. U.S. Department of Justice, Lawfulness of Lethal Operations Directed Against a U.S. Citizen Who is a Senior Operational Leader of Al-Qa’ida or An Associated Force (Washington: 2013), accessed June 13, 2013 at http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf.

529. Jones, Hunting in the Shadows, Kindle Loc. 5327-5630.

530. Scahill, Dirty Wars, pp. 239, 453.

531. Ibid, p. 503.

532. Ibid.

533. Priest and Arkin, pp. 203-211; Scahill, Dirty Wars, p. 351.

534. Mazzetti, Kindle Loc. 4010-4013.

535. Scahill, Dirty Wars, p. 352.

536. Mazzetti, Kindle Loc. 4268-4284.

537. Byman, A High Price, p. 42.

538. Peter W. Singer, “Do Drones Undermine Democracy?” New York Times, January 21, 2012, accessed January 23, 2012 at http://www.nytimes.com/2012/01/22/opinion/sunday/do-drones-undermine-democracy.html.

539. Plaw, “Terminating Terror,” pp. 22-24; Miller, p. 140; Rawls, Justice as Fairness, pp. 147-148.

540. Rawls, A Theory of Justice, pp. 209-210.

541. Byman, A High Price, p. 338.

542. Priest and Arkin, p. 229.

543. Chairman of the Joint Chiefs of Staff, p. 26.

544. Robinson.

545. Plaw, et al., p. 52.

546. Gunning, Hamas, pp. 141-143.

547. Robert Young Pelton, Licensed to Kill: Hired Guns in the War on Terror (New York: Crown Books, 2006), p. 29.

548. Zenko, p. 9.

549. Sageman, Leaderless Jihad, p. 150.

550. Abizaid, Brooks, et. al, p. 42.

551. Klaidman, p. 117.

552. Gerges, p. 174.

553. Cronin, “Why Drones Fail,” pp. 49-51.

554. Walsh, p. 19.

555. Plaw, et al., pp. 58-61.

556. Zenko, p. 125.

557. Byman, A High Price, p. 230.

558. Ibid, p. 377.

559. Sarah E. Kreps, “The 2006 Lebanon War: Lessons Learned,” Parameters, Spring 2007, p. 82.

560. Morris Janowitz, “The Future of the Military Profession,” in War, Morality, and the Military Profession, ed. Malham M. Wakin (Boulder, CO: Westview Press, 1986), pp. 59-69.

561. Cassidy, p. 34.

562. Boot, p. 391.

563. Kelly, pp. 208-209.

564. Blum and Heymann, pp. 90-91.

565. Schulte, pp. 163, 166-167.

566. Mazzetti, Kindle Loc. 835-837.

567. Avery Plaw, “Upholding the Principle of Distinction in Counter-Terrorist Operations: A Dialogue,” Journal of Military Ethics, Vol. 9, No. 2 (2010), pp. 3-22.

568. Schmitt and Shanker, p. 235; Jones, Hunting in the Shadows, Kindle Loc. 6854-6857.

569. Neil Sheehan, A Bright Shining Lie: John Paul Vann and America in Vietnam (New York: Random House, 1988), pp. 106-117.

570. Aslam, pp. 324-325.

571. Gross, pp. 113-117.

572. Byman, A High Price, p. 313.

573. Walsh, p. 15; Mohammed M. Hafez and Joseph M. Hatfield, “Do Targeted Assassinations Work? A Multivariate Analysis of Israel’s Controversial Tactic during Al-Aqsa Uprising,” Studies in Conflict & Terrorism, Vol. 29, No. 4 (2006), pp. 359-382.

574. Scahill, Dirty Wars, p. 6.

575. Gross, pp. 113-117.

576. Walzer, Just and Unjust Wars, p. 153.

577. Blum and Heymann, pp. 90-91.

578. Cora Currier, “Hearts, Minds and Dollars: Condolence Payments in the Drone Strike Age,” ProPublica, accessed June 13, 2013 at http://www.propublica.org/article/hearts-minds-and-dollars-condolence-payments-in-the-drone-strike-age.

579. Gerges, p. 197.

580. Ibid, p. 154.

581. Thanassis Cambanis, “Letter from Gaza: Hamas the Opportunist” in Clueless in Gaza, ed. Gideon Rose (New York: Foreign Affairs, 2014), pp. 66-69.

582. Stewart Patrick, “Irresponsible Stakeholders?” Foreign Affairs, November-December 2010, pp. 44-53.

583. Gerges, p. 145.

584. Renee de Nevers, “Sovereignty and Ethical Argument in the Struggle against State Sponsors of Terrorism,” Journal of Military Ethics, Vol. 6, No. 1 (2007), p. 15.

585. Kreps and Zenko.

586. Unger, p. 264.

587. Jessica Donati, “U.S. may keep secret prisoners in custody after Afghan exit,” Reuters, September 29, 2014, accessed September 29, 2014 at http://www.reuters.com/article/2014/09/29/us-afghanistan-detainees-idUSKCN0HO0YR20140929?feedType=RSS&feedName=topNews&rpc=71&google_editors_picks=true.

588. Karma Nabulsi, “Conceptions of Justice in War: From Grotius to Modern Times,” in R. Sorabji and D. Rodin, eds., The Ethics of War: Shared Problems in Different Traditions (Aldershot (Hants): Ashgate, 2006), p. 52.

589. Blum and Heymann, p. 41.

590. Schmitt and Shanker, p. 230.

591. Scott Shane, “Beyond Guantánamo, a Web of Prisons for Terrorism Inmates,” New York Times, December, 11, 2011 accessed June 13, 2013 at http://www.nytimes.com/2011/12/11/us/beyond-guantanamo-bay-a-web-of-federal-prisons.html?_r=0&pagewanted=all.

592. Walter Pincus, “Powell Calls for Closure of Military Prison at Guantánamo,” Washington Post, June 11, 2007, p. A3, accessed June 11, 2007 at http://www.washingtonpost.com/wp-dyn/content/article/2007/06/10/AR2007061000451.html?referrer=email&referrer=email&referrer=email.

593. Rawls, A Theory of Justice, p. 48.

594. Klaidman.

595. Walsh, p. 29, quoting Gary Solis The Law of Armed Conflict: International Humanitarian Law in War (New York: Cambridge University Press, 2010), p. 528.

596. Priest and Arkin, p. 211; Mazzetti, Kindle Loc. 3402-3421; Byman, A High Price, p. 34.

597. Walsh, pp. 18-19.

598. Solis.

599. Scahill, Dirty Wars, p. 296.

600. Jo Becker and Scott Shane, “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will,” New York Times, May 29, 2012, p. A1, accesssed September 30, 2013, at http://www.nytimes.com/2012/05/29/world/obamas-leadership-in-war-on-al-qaeda.html?smid=pl-share.

601. Siobhan Gorman, “Drones Evolve Into Weapon in Age of Terror,” Wall Street Journal, September 8, 2011, accessed September 9, 2011 at http://online.wsj.com/article/SB10001424053111904836104576556952946952670.html?mod=WSJ_hp_MIDDLENexttoWhatsNewsThird; Mazzetti, Kindle Loc. 4335-40.

602. Coll, p. 501.

603. Daniel Byman, “Why Drones Work: The Case for Washington’s Weapon of Choice,” Foreign Affairs, July/August 2013, pp. 33-34.

604. Walsh, p. 46.

605. Ibid, pp. 49-50.

606. Jeffrey A. Sluka, “Death from Above: UAVs and Losing Hearts and Minds,” Military Review, May-June 2911, pp. 72-73.

607. Pakistan Body Count.org, Pakistan Body Count, accessed June 12, 2013 at http://www.pakistanbodycount.org/.

608. Cora Currier, “Everything We Know So Far About Drone Strikes, ProPublica, accessed June 13, 2013 at http://www.propublica.org/article/everything-we-know-so-far-about-drone-strikes.

609. Byman, Why Drones Work, pp. 35-38.

610. Peter Begen and Katherine Tiedemann, “Washington’s Phantom War,” Foreign Affairs, July/August 2011, pp. 12-18; Gerges, p. 25; Zenko, pp. 83, 117, 125.

611. Becker and Shane.

612. Zenko, p. 83.

613. Sluka, p. 74.

614. Meisels; Cronin, Ending Terrorism, p. 29; Scahill, Dirty Wars, p. 349.

615. E. Walker Nordan, “The Best Defense is a Good Offense: The Necessity of Targeted Killing,” Small Wars Journal, August 2010, pp. 1-13; Byman, A High Price, p. 365.

616. Cronin, Why Drones Fail, p. 45.

617. Schmitt and Shanker, p. 34.

618. Cronin, Why Drones Fail, p. 45.

619. Byman, A High Price, p. 365.

620. Scahill, Dirty Wars, p. 355; van Linschoten and Kuehn, p. 303.

621. Cronin, Ending Terrorism, p. 30.

622. Solis, p. 132.

623. Sluka, p. 73.

624. Byman, A High Price, p. 323.

625. For a similar assessment, cf. Abizaid, Brooks, et. al.

626. Kreps and Zenko.

627. Deborah A. Stone, Policy Paradox and Political Reason (New York: Harper Collins, 1988), p. 271.

628. Klaidman, pp. 237, 259.

629. Ibid, p. 150.

630. Shane.

631. Peritz and Rosenbach, p. 233.

632. Rawls, A Theory of Justice, pp. 47-52, p. 206.

633. Sageman, Leaderless Jihad, p. 155.

634. Rawls, A Theory of Justice, pp. 209-210.

635. Cronin, How Terrorism Ends, p. 17.

636. Rawls, A Theory of Justice, pp. 209-210.

637. Bayley and Perito, p. 57.

638. For example, Bobbitt, p. 422.

639. Unger, pp. 45, 264.

640. Bess, p. 265.

641. Sageman, Leaderless Jihad, p. 171.

642. Rawls, A Theory of Justice, pp. 209-210.

643. Shane.

644. Rawls, A Theory of Justice, pp. 209-210.

645. Andersen and Aagaard, p. 60.

646. Hoffman, Inside Terrorism, p. 250.

647. Senate Appropriations Subcommittee, “Testimony of Richard A. Posner,” p. 3.

648. James S. Corum, Fighting the War on Terror: A Counterinsurgency Strategy (St. Paul: Zenith, 2007), pp. 256-257.

649. Byman, A High Price, p. 162.

650. Levitt, Hezbollah, p. 152.

651. Senate Appropriations Subcommittee, “Testimony of Richard A. Posner,” p. 3.

652. Ibid, p. 5.

653. Sageman, Leaderless Jihad, p. 153.

654. Bobbitt, p. 422; Gaffney and colleagues, pp. 76-77.

655. Unger, pp. 45, 264.

656. Rawls, A Theory of Justice, pp. 276-277.

657. Ibid, pp. 476-477. Hugo Adam Bedau and Erin Kelly, , “Punishment”, [_The Stanford Encyclopedia of Philosophy _](Spring 2010 Edition), Edward N. Zalta (ed.), accessed 24 September 2014 at <http://plato.stanford.edu/archives/spr2010/entries/punishment/>.

658. Shane.

659. Corum, p. 148.

660. Shane.

661. Shapiro, The Terrorist’s Dilemma, pp. 258-259.

662. Andersen and Aagaard, pp. 218-219.

663. Erroll Southers, Homegrown Violent Extremism (Oxford, UK: Elsevier, 2013), pp. 59-62; Richardson, What Terrorists Want, pp. 203-233; Challans, p. 182.

664. Boot, p. 383.

665. Schmitt and Shanker, p. 235.

666. Art and Richardson, pp. 564-565.

667. Schmitt and Shanker, p. 182.

668. Art and Richardson, p. 574.

669. Pamela Brubaker, James F. Burke, Duane K. Friesen, John Langan, and Glen Stassen, “Introduction: Just Peacemaking as the New Ethic for Peace and War,” in G. Stassen, ed., Just Peacemaking (Cleveland: Pilgrim Press, 2008), p. 22.

670. Cronin, How Terrorism Ends, p. 90.

671. Peter Mascini, “Can the Violent Jihad Do without Sympathizers?” Studies in Conflict & Terrorism, Vol. 29, No. 4 (2006), pp. 343-357.

672. Cronin, Ending Terrorism, p. 45.

673. Mueller and Stewart, Kindle Loc. 763-770, 1040-1043; Jones, Hunting in the Shadows, Kindle Loc. 4524-4528.

674. Duyvestyen, p. 134.

675. Shapiro, The Terrorist’s Dilemma, p. 1.

676. Cronin, Ending Terrorism, p. 46.

677. David Rodin, “Terrorism without Intention,” Ethics, Vol. 114 (2004 July), p. 755.

678. Gross, p. 183.

679. Kilcullen, pp. 146-147.

680. Gerges, p. 118.

681. Jones, In the Graveyard of Empires, Kindle Loc. 3129-3130.

682. Cronin, Ending Terrorism, p. 26.

683. Ibid, p. 27.

684. Ibid, p. 20.

685. Cronin, How Terrorism Ends, pp. 180-181.

686. Gunning, Hizballah, p. 184; Gunning, Hamas, p. 150; Levitt, Hezbollah, pp. 8, 371.

687. Byman, A High Price, p. 354.

688. Ibid, pp. 166-168; Ganor, pp. 293-294.

689. Sageman, Leaderless Jihad, pp. 47-70.

690. Scott Atran, “Who Becomes a Terrorist Today?” in C.P. Webel and J.A. Arnaldi, eds., The Ethics and Efficacy of the Global War on Terror (New York: Palgrave,2011), pp. 45-58; Jones, Hunting in the Shadows, Kindle Loc. 4942-4944; Byman, A High Price, p. 168.

691. Sageman, Leaderless Jihad, pp. 71-88.

692. Schmitt and Shanker, p. 213.

693. Andrea Elliott, “The Jihadist Next Door,” New York Times Magazine, January 27, 2010, accessed February 10, 2010 at http://www.nytimes.com/2010/01/31/magazine/31Jihadist-t.html.

694. Edward Newman, “Exploring the ‘Root Causes’ of Terrorism,” Studies in Conflict & Terrorism, Vol. 29 (2006), pp. 749-772.

695. Rawls, The Law of Peoples, p. 37.

696. Art and Richardson, pp. 578-580.

697. Southers, pp. 99-120.

698. Fred Kaplan, The Insurgents: David Petraeus and the Plot to Change the American Way of War (New York: Simon & Schuster, 2013), p. 326.

699. Levitt, Hezbollah, p. 8.

700. Kenneth M. Pollack, Daniel L. Byman, Martin Indyk, Suzanne Maloney, Michael O’Hanlon, and Bruce Riedel, Which Path to Persia: Options for a New American Strategy toward Iran (Washington: Brookings Institution Press, 2009).

701. Rawls, The Law of Peoples, p. 37.

702. Rawls, Justice as Fairness, pp. 12-14.

703. Rawls, A Theory of Justice, p. 297.

704. Schmitt and Shanker, p. 204.

705. Unger, p. 288.

706. Sageman, Leaderless Jihad, p. 164.

707. Gerges, p. 209.

708. Jones, Hunting in the Shadows, Kindle Loc. 6903-6908.

709. Gross, p. 8.

710. Schmitt and Shanker, p. 155.

711. Ibid, p. 58.

712. Richard Wike, Musharraf’s Support Shrinks, Even As More Pakistanis Reject Terrorism… and the U.S., Pew Global Research Project, 2007, accessed June 25, 2013 at http://www.pewglobal.org/2007/08/08/pakistanis-increasingly-reject-terrorism-and-the-us/.

713. Cronin, How Terrorism Ends, p. 190.

714. Andersen and Aagaard, pp. 16-17.

715. Gerges, p. 211.

716. Schmitt and Shanker, p. 161.

717. Ibid, p. 156.

718. Andersen and Aagaard, pp. 16-17.

719. Rawls, The Law of Peoples, pp. 42-43.

720. Rawls, A Theory of Justice, pp. 135-156.

721. Cronin, Ending Terrorism, p. 54.

722. Kaplan, p. 290.

723. U.S. Army, US Government Counterinsurgency Guide (Washington: U.S. Government Printing Office, January 2009), p. 37.

724. Clifford, Forging Swords into Plows, Chapter 6.

725. Richard H. Schultz, Jr., and Andrea J. Dew, Insurgents, Terrorists, and Militias (New York: Columbia University Press, 2006), p. 247; Novak, 2004, pp. 159-162

726. Law, p. 150.

727. “A war of money as well as bullets,” The Economist, May 22, 2008, accessed May 22, 2008 at http://www.economist.com/displayStory.cfm?source=hptextfeature&story_id=11402695.

728. Bayley and Perito, p. 100.

729. Jones, Hunting in the Shadows, Kindle Loc. 6858-6897; David Galula, Counterinsurgency Warfare: Theory and Practice (Westport, CT: Praeger Security International, 2006), Kindle Loc. 844-848.

730. Scahill, Dirty Wars, p. 202.

731. Walsh and Piazza.

732. Bayley and Perito, p. 152.

733. Art and Richardson, pp. 574-575.

734. Gerges, p. 213.

735. John L. Esposito, The Future of Islam (New York: Oxford University Press, 2010), p. 158.

736. Thomas W. Lippman, Inside the Mirage: America’s Fragile Partnership with Saudi Arabia (Boulder, CO: Westview Press, 2004), p. 318.

737. Gerges, p. 204.

738. Brzezinski, p. 28.

739. Sageman, Leaderless Jihad, pp. 154-163.

740. Schmitt and Shanker, p. 195.

741. Cronin, Ending Terrorism, pp. 61-65.

742. Cronin, How Terrorism Ends, pp. 35-72.

743. Ibid, p. 105.

744. Perry, p. 60.

745. Schmitt and Shanker, p. 9.

746. O’Leary and Silke, pp. 403-406.

747. Richardson, What Terrorists Want, p. 185.

748. Gunning, Hamas, p. 145.

749. Sheera Frenkel, “Hamas ‘ready to accept’ Israel as peaceful neighbor,” The Times, April 21, 2008, accessed April 21, 2008 at http://www.timesonline.co.uk/tol/news/world/middle_east/article3787685.ece.

750. Steven Erlanger, “In Gaza, Hamas’ Insults to Jews Complicate Peace,” New York Times, April 1, 2008, accessed April 1, 2008 at http://www.nytimes.com/2008/04/01/world/middleeast/01hamas.html?R=1&hp=&oref=slogin&pagewanted=all.

751. Blum and Heymann, pp. 44, 134-159.

752. Richardson, What Terrorists Want, pp. 203-233.

753. Andrew J. Bacevich, “More Modesty, Not Troops,” Raleigh News and Observer, June 21, 2007, accessed June 21, 2007 at http://www.newsobserver.com/opinion/columns/v-print/story/611468.html.

754. O’Leary and Silke, pp. 416-418.

755. Deepak Malhotra, “Without Conditions: The Case for Negotiating with the Enemy,” Foreign Affairs, Vol. 88, No. 5 (2009 September/October), p. 90.

756. Levitt, Hezbollah, p. 358.

757. Gunning, Hizballah, pp. 166, 182.

758. Gerges, p. 204; Cronin, Why Drones Fail, p. 46.

759. Jones and Libicki, Kindle Loc. 1259-1261.

760. Thomas Shanker and Eric Schmitt, “U.S. Military Goes Online to Rebut Extremists’ Messages,” New York Times, November 17, 2011 accessed June 28, 2013 at http://www.nytimes.com/2011/11/18/world/us-military-goes-online-to-rebut-extremists.html.

761. Cronin, Ending Terrorism, pp. 68-71.

762. Jones, Hunting in the Shadows, Kindle Loc. 6859-6865.

763. Ibid, Kindle Loc. 6937-6942.

764. Gerges, p. 127.

765. Cronin, Why Drones Fail, p. 48.

766. United Nations, Charter, Articles 1(2) and 55.

767. Art and Richardson, pp. 577-578.

768. Kaplan, p. 158.

769. Hoffman, A Counterterrorism Strategy for the Obama Administration, p. 367.

770. Rawls, Justice as Fairness, pp. 50-79; A Theory of Justice, pp. 273-277.

771. Rawls, Justice as Fairness, p. 50.

772. Ibid, p. 64.

773. Rawls, The Law of Peoples, pp. 114-115.

774. Ira M. Lapidus, A History of Islamic Societies, 2nd ed. (Cambridge, UK: Cambridge University Press, 2002), pp. 768-770; Ralph Peters, Wars of Blood and Faith (Mechanicsburg, PA: Stackpole Books, 2007), pp. 338-340; Schultz and Dew, pp. 56-100; Peritz and Rosenbach, pp. 196-205.

775. Benjamin Beit-Hallahmi, Original Sins: Reflections on the History of Zionism and Israel (New York: Olive Branch Press, 1993), pp. 82-85.

776. Jimmy Carter, Palestine: Peace Not Apartheid (New York: Simon & Schuster, 2006), p. 63.

777. Paul L. Williams, Al Qaeda: Brotherhood of Terror (New York: Alpha Books, 2002), pp. 99-104.

778. Hoffman, Inside Terrorism, pp. 101-118.

779. Corum, pp. 24-34.

780. Kaplan, pp. 184-185.

781. Esposito, The Future of Islam, p. 192.

782. Jonathan D. Sachs, The End of Poverty, (New York: Penguin, 2006), p. 215.

783. Hoffman, A Counterterrorism Strategy for the Obama Administration, p. 367.

784. Gerges, p. 212.

785. Byman, A High Price, p. 356.

786. Brzezinski, p. 33.

787. Levitt, Hamas, p. 192.

788. Coll, p. 512.

789. Power.

790. Michael Jacobson, “Terrorist Financing and the Internet,” Studies in Conflict & Terrorism, Vol. 33, No. 4 (2010), pp. 353-363.

791. Schmitt and Shanker, pp. 183-185.

792. Jacobson, p. 360.

793. Richardson, What Terrorists Want, p. 185.

794. Schmitt and Shanker, p. 183.

795. Andersen and Aagaard, pp. 16-17.

796. Jones, Hunting in the Shadows, Kindle Loc. 6100-6600.

797. Matthew Levitt, “Hamas’ Not-So-Secret Weapon,” Foreign Affairs, July 9, 2014, accessed July 25, 2014 at http://www.foreignaffairs.com/articles/141624/matthew-levitt/hamas-not-so-secret-weapon?cid=nlc-foreign_affairs_this_week-071014-hamas_not_so_secret_weapon_5-071014&sp_mid=46430687&sp_rid=Z2VvcmdlY2xpZmZvcmRAYmVsbHNvdXRoLm5ldAS2.

798. Shapiro, The Terrorist’s Dilemma, p. 261.

799. Gerges, p. 199.

800. Blum and Heymann, pp. 161-185.

801. Sageman, Leaderless Jihad, p. 156.

802. Kaplan, p. 164.

803. Moghadam, Berger, and Beliakova, p. 7.

804. Law, p. 143.

805. Jonathan Powell, “How to talk to terrorists,” The Guardian, October 7, 2014, accessed October 25, 2014 at http://www.theguardian.com/world/2014/oct/07/-sp-how-to-talk-to-terrorists-isis-al-qaida?CMP=ema_565.

806. Richardson, “Britain and the IRA,” p. 97.

807. Clough and Stiltner, p. 145.

808. Douglas Woodwell, “The ‘Troubles of Northern Ireland’: Civil Conflict in an Economically Well-Developed State,” in P. Collier and N. Sambanis, eds., Understanding Civil War: Evidence and Analysis. Vol. 2: Europe, Central Asia, and Other Regions (Washington: World Bank, 2005), pp. 162-163.

809. Ranga Kalansooriya, LTTE and IRA: Combating Terrorism and Discussing Peace (Sri Lanka: Sanhinda Printers and Publishers, 2001), p. 9.

810. Woodwell, p. 163.

811. Ibid.

812. Law, p. 145.

813. Clough and Stiltner, p. 144.

814. Law, p. 146.

815. Kalansooriya, p. 10.

816. Clough and Stiltner, p. 145.

817. Ibid, pp. 145-146.

818. Senate Appropriations Subcommittee, p. 17.

819. Woodwell, p. 161.

820. Boot, p. 266.

821. Moghadam, Berger, and Beliakova, p. 7.

822. Mueller and Stewart, Kindle Loc. 875-882, 1152-1156, 1181-1184.

823. Ibid, Kindle Loc. 2478; Rapin, p. 168.

824. Schmitt and Shanker, p. 155.

825. Mueller and Stewart, Kindle Loc. 2252-2254.

826. Andrew Mumford, “Minimum Force Meets Brutality: Detention, Interrogation and Torture in British Counterinsurgency Campaigns,” Journal of Military Ethics, Vol. 11, No. 1 (2012, March), p. 19.

827. Ibid, p. 15.

828. Mary Kaldor, “From Just War to Just Peace,” in C. Reed and D. Ryall, eds., The Price of Peace: Just War in the Twenty-First Century (Cambridge, UK: Cambridge University Press, 2007), p. 270.

829. Senate Appropriations Subcommittee, pp. 21-22.

830. Kaldor, p. 270.

831. Senate Appropriations Subcommittee, p. 21.

832. Lynn, p. 55.

833. Ibid.

834. Ibid.

835. Ibid.

836. Law, pp. 146-147.

837. Senate Appropriations Subcommittee, pp. 21-22.

838. Boot, p. 391.

839. Senate Appropriations Subcommittee, pp. 21-22.

840. Brendan O’Leary, “IRA: Irish Republican Army (Óglaigh na hÉireann),” in M. Heiberg, B. O’Leary and J. Tirman, eds., Terror, Insurgency, and the State: Ending Protracted Conflicts (Philadelphia: University of Pennsylvania Press, 2007), p. 216.

841. Cassidy, p. 91.

842. O’Leary, p. 199.

843. Ibid, p. 215.

844. Ibid, pp. 215-216.

845. Woodwell, p. 168.

846. Marie Breen Smyth, “Lessons learned in counter-terrorism in Northern Ireland: an interview with Peter Sheridan,” Critical Studies on Terrorism, Vol. 1, No. 1 (2008 April), p. 112.

847. Senate Appropriations Subcommittee, p. 17.

848. Northern Ireland Statistics and Research Agency, Census 2001 (2001), accessed March 19, 2008 at http://www.nisranew.nisra.gov.uk/Census/Census2001Output/UnivariateTables/uv_tables1.html#irish%20language.

849. Northern Ireland: Access Research Knowledge, Northern Ireland Life and Times Survey (Belfast: Economic and Social Research Council, 2006), accessed March 18, 2008, at http://www.ark.ac.uk/nilt/.

850. Kaldor, p. 270.

851. Law, p. 147.

852. Miller, p. 135.

853. Mumford, p. 22.

854. Richardson, Britain and the IRA, pp. 85-87.

855. Bayley and Perito, p. 103.

856. Senate Appropriations Subcommittee, p. 5.

857. Mueller and Stewart, Kindle Loc. 1633-1642.

858. Woodwell, p. 168.

859. Richardson, pp. 87, 95.

860. Shapiro, “France and the GIA,” p. 139.

861. Senate Appropriations Subcommittee, pp. 18-25.

862. Ibid, p. 19.

863. Bayley and Perito, p. 57.

864. Kaldor, pp. 270-271.

865. Senate Appropriations Subcommittee, p. 48.

866. O’Leary, p. 208.

867. Powell.

868. Rhonda L. Callaway and Julie Harrelson-Stephens, “Toward a Theory of Terrorism: Human Security as a Determinant of Terrorism,” Studies in Conflict & Terrorism, Vol. 29 (2006), pp. 773-796.

869. Rawls, The Law of Peoples, p. 37.

870. Alvin Jackson, Home Rule: An Irish History: 1800-2000 (London, UK: Weidenfeld & Nicolson, 2003), p. 328.

871. Woodwell, p. 182.

872. Robert D. Putnam and David E. Campbell, American Grace (New York: Simon & Schuster, 2010), Kindle Loc. 2347-2349.

873. Woodwell, p. 182.

874. Cronin, Ending Terrorism, p. 46.

875. Shapiro, The Terrorist’s Dilemma, p. 3.

876. Jackson, pp. 310, 315; Kalansooriya, pp. 151-162.

877. Woodwell, p. 182; Richardson, Britain and the IRA, p. 81.

878. Kalansooriya.

879. Byman, A High Price, p. 380.

880. Woodwell, p. 175.

881. Cronin, Ending Terrorism, p. 45.

882. Northern Ireland Office, United Kingdom of Great Britain, The Belfast Agreement: An Agreement Reached at the Multi-Party Talks on Northern Ireland (London, UK: Stationery Office, 1998), accessed September 23, 2013 at http://peacemaker.un.org/sites/peacemaker.un.org/files/IE%20GB_980410_Northern%20Ireland%20Agreement.pdf.

883. Shapiro, The Terrorist’s Dilemma, p. 266.

884. Perry, p. 118.

885. Cronin, How Terrorism Ends, pp. 44-46.

886. Woodwell, p. 175.

887. Ibid, pp. 177-178.

888. Northern Ireland Office, United Kingdom of Great Britain.

889. Boot, p. 391.

890. Gartenstein-Ross, et al., p. 28.

891. O’Leary, pp. 189-190, 198.

892. Jackson, p. 328.

893. Woodwell, p. 165.

894. Ibid, p. 171.

895. Ibid, p. 182.

896. Brzezinski, pp. 30-31.

897. Cronin, Britain and the IRA, p. 47.

898. Cronin, How Terrorism Ends, p. 54.

899. Brzezinski, p. 105.

900. Executive Office of the President of the United States, Kindle Loc. 24-27.

901. Bacevich, The Limits of Power, p. 112.

902. Evan Kohlmann and Laith Alkhouri, “Profiles of Foreign Fighters in Syria and Iraq,” CTC Sentinel, Vol. 7, No. 9 (Summer 2014), p. 2. Daniel Byman and Jeremy Shapiro, “Homeward Bound? Don’t Hype the Treat of Training Jihadists,” Foreign Affairs, September 30, 2014 accessed October 3, 2014 at http://www.foreignaffairs.com/articles/142025/daniel-byman-and-jeremy-shapiro/homeward-bound?cid=nlc-foreign_affairs_this_week-100214-homeward_bound_5-100214&sp_mid=47109184&sp_rid=Z2VvcmdlY2xpZmZvcmRAYmVsbHNvdXRoLm5ldAS2.

903. Byman and Shapiro.

904. Jytte Klausen, “They’re Coming: Measuring the Threat from Returning Jihadists,” Foreign Affairs, October 1, 2014 accessed October 3, 2014 at http://www.foreignaffairs.com/articles/142129/jytte-klausen/theyre-coming?cid=nlc-foreign_affairs_this_week-100214-theyre_coming_5-100214&sp_mid=47109184&sp_rid=Z2VvcmdlY2xpZmZvcmRAYmVsbHNvdXRoLm5ldAS2.

905. Kohlman and Alkhouri, p. 2.

906. Klausen.

907. Byman and Shapiro.

908. Ibid.

909. For an elaboration on these ideas, cf. Klausen.

910. Ibid.

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[]About the Author

George Clifford retired as a US Navy Captain after 24 years of active duty as a chaplain. While in the Navy, he served at sea, overseas, with Marines, and taught philosophy at the Naval Academy and ethics and the Naval Postgraduate School (NPS). In retirement, he has been a Visiting Professor of Ethics and Public Policy at NPS, authored two other books (Forging Swords into Plows: A Twenty-First Century Perspective on War and [+ Charting a Theological Confluence: Theology and Interfaith Relations+]), and continued his ministry as an Episcopal priest. He now lives in Hawaii and can be reached through his blog, Ethical Musings.


Just Counterterrorism

Terror attacks and threats remain at frustratingly high levels even though governments continue to spend enormous sums on counterterrorism operations by the police, armed forces, and other agencies. The seemingly intractable problem of terrorism often leads people to believe that terrorism has no solution. The actual difficulty is that terrorism has no widely accepted definition. Government officials, scholars, the media, and the public all indiscriminately conflate the violence of non-state terror groups, insurgents, mass murderers, and harsh, non-democratic states into the single problem labeled terrorism. Good problem solving begins by carefully defining the problem to be solved. Clifford defines terrorism as violence by non-state actors against innocent people for political purposes. This definition circumscribes a distinct problem for which solutions exist. He then analyzes what terrorists want, how terror groups end, and why law enforcement and warfighting models are both inadequate for shaping effective, ethical counterterrorism. These analyses explain the need for a new counterterrorism model that is comprehensive, effective, ethical, and flexible. The proposed Just Counterterrorism Model's components—Justice for the Attacked, Justice for Terrorists, and Justice for Others—comprehensively address the problem of non-state terrorism. Each component includes a set of criteria for ethically assessing or shaping counterterrorism strategy and tactics regardless of a terror group's composition, ideology, or geography. John Rawls' concept of justice as fairness pervasively informs the Just Counterterrorism Model. Numerous examples, primarily from US and Israeli counterterrorism, mini case studies of extraordinary rendition and targeted killing, and a fuller case study of British counterterrorism in Northern Ireland, demonstrate the Model's potential for shaping effective counterterrorism. Justice for the Attacked explores how communities when attacked or threatened by non-state terrorists can best respond to minimize terrorist gains in an attack's aftermath and to defend against future attacks. Justice for Terrorists outlines protocols for states to follow in apprehending terrorists where the rule of law prevails, interdicting them elsewhere, and adjudicating and punishing those arrested or captured. Justice for Others sketches the moves that states can implement to sever the vital connections between a terror group and the constituency or constituencies that enable the terror group to pose a viable threat.

  • Author: George Clifford
  • Published: 2016-12-21 21:50:27
  • Words: 105045
Just Counterterrorism Just Counterterrorism