Terrorism in the USA:threat & response

[Boondoggle]

Monograph on Information Sharing prepared for the 9/11 Commission is released:

http://www.fas.org/irp/eprint/wall.pdf

Legal Barriers to Information Sharing:
The Erection of a Wall Between Intelligence and Law Enforcement Investigations
Commission on Terrorist Attacks Upon the United States
Staff Monograph
Barbara A. Grewe
Senior Counsel for Special Projects
August 20, 2004

And if you want to skip to the end....

It is clear, therefore, that the information sharing failures in the summer of2001 were not the result of legal barriers but of the 'failure of individuals to understand that the barriers did not apply to the facts at hand. Simply put, there was no legal reason why the information could not have been shared.

[jmm99]

I will have to read this (previously "Secret") memo with some care.

I kid Ken about his emphasis on training, training, training .... But, here we seem to have another example (based on the bottom line you quoted) of an education and training failure - in the civilian sector.

This memo may remind us that spin (and I recall a lot of spin from both sides of the spectrum on these issues) is often - almost always ? - dead wrong.

Since you're the catcher here, why don't you do the blow by blow legal analysis ?

[davidbfpo]

Legal Barriers to Information Sharing: The Erection of a Wall Between Intelligence and Law Enforcement Investigations Commission on Terrorist Attacks Upon the United States

I have just read the document, much of which IMHO has appeared before, possibly in parts; rightly the conclusion needs to be read - as a lesson learnt I hope! Yes, it is written in a prose and style that some will find difficult.

Good catch.

davidbfpo

[davidbfpo]

Somewhat long and for a non-American only a few nuggets: http://www.washingtoninstitute.org/h...th20090623.pdf

davidbfpo

[Boondoggle]

and the Falkenrath too.

For the first, the last paragraph seems to have little correlation to what the author was writing. If anything, it shows the great difficulties the admin is going to have if they really want to use the Federal criminal process to handle terrorists. It may crimp our intel methods once that road is taken and it clearly slows, in fact did slow our decision making processes when time was precious. I'd disagree with the author's premise.

As an aside, after reading this, I wonder if there will be a time where terrorists will send some of their ilk to US law schools to become their own "mob" attorneys. There are clearly some seams to pick here and a lawyer could help them. With the admin's recent decision to emphasize the courts, this may be an unintended consequence, and a new weapon to be "acquired" by terror organizations. If the mob and drug cartels can do it, so can they now that they may end up in the courts.

As for the second article I'm depressed I didn't get a chance to see that. Quite, quite interesting for me, especially as some of my work got brought up in it (not me personally, but my work ). And I'd have loved to have pinged him on it because I disagree with his position (I'll leave you to guess what I am talking about.

That said, I thought he made some good cautioning arguments of the second hand effects that may result from using the federal courts. I hadn't seen the effect on law enforcement resources articulated like that before.

[jmm99]

I must have downloaded the initial article at the office. Couldn't find it here at home. So, both articles are now DL'd in the correct sub-folder here.

Have to read both later.

We probably could use a thread on Lawfare. Not sure what it would look like or whether there'd be interest.

Thoughts on Lawfare thread - everyone.

from Boon...
As an aside, after reading this, I wonder if there will be a time where terrorists will send some of their ilk to US law schools to become their own "mob" attorneys. There are clearly some seams to pick here and a lawyer could help them. With the admin's recent decision to emphasize the courts, this may be an unintended consequence, and a new weapon to be "acquired" by terror organizations. If the mob and drug cartels can do it, so can they now that they may end up in the courts.

[Steve Blair]

Post something and see what happens. That's usually the best way to determine interest.

[slapout9]

We probably could use a thread on Lawfare. Not sure what it would look like or whether there'd be interest.

Thoughts on Lawfare thread - everyone.

Build it and they will come

[davidbfpo]

JMM has opened a thread in response to encouragement: http://council.smallwarsjournal.com/...ead.php?t=7665

davidbfpo

[davidbfpo]

A fascinating NYT article on the home grown radicalized Somali youth from Minneapolis, who are reported to have left for Somalia and an active part in the violent Jihad: http://www.nytimes.com/2009/07/12/us...pagewanted=all

It has all the ingredients of the process - as the NYPD report illustrated.

The FBI are investigating and the community itself has taken some action, e.g. parents hiding children's (US) passports.

davidbfpo

[davidbfpo]

Thanks to a vigilant US press watcher: http://www.nytimes.com/2009/10/29/us...l.html?_r=2&hp and linked is a FBI December 2008 'Domestic Investigations Current Operations Guide', obtained in a FOI court case and has large parts blanked out: http://documents.nytimes.com/the-new...-the-f-b-i#p=1

Too large, 269 pgs, to readily absorb on a fine autumn afternoon. So try this;

“It raises fundamental questions about whether a domestic intelligence agency can protect civil liberties if they feel they have a right to collect broad personal information about people they don’t even suspect of wrongdoing,” said Mike German, a former F.B.I. agent who now works for the American Civil Liberties Union.

Interesting that this domestic issue has similar echoes in the UK, not over invesigations, but preventative activity by public agencies to stop the flow of recriuits to violent extremism.

davidbfpo

[davidbfpo]

Slightly dated as this was a speech on 22nd October 2009, entitled Los Angeles Police Department's Counterterrorism and Criminal Intelligence Bureau "Counterterrorism and Crime Fighting in Los Angeles": http://www.washingtoninstitute.org/h...LAPD-Stein.pdf (Hat tip http://counterterrorismblog.org/ ).

Amidst the speech is a section on Legitimacy and Constitutionality and

Legitimacy and intelligence are equally important tools for U.S. law enforcement to use in counterterrorism efforts. Legitimacy starts with an organizational knowledge and pride in operating constitutionally and within the law. The need for transparency - being perceived to be and authentically honoring this principle - in intelligence and counterterrorism activities cannot be understated. Taking great care to ensure that intelligence and enforcement operations are narrowly targeted against terrorist cells determined to go operational is critical.

The hardware of surveillance --CCTV cameras, license plate readers, "rings of steel" - which has become widespread despite a demonstrable lack of effectiveness in crime prevention or solution is less compatible with the freedoms and privacies Americans expect. Those methods, designed to fill a gap in law enforcement capabilities, are the worst of all worlds when compared with proper intelligence gathering; they are intrusive - despite the legalistic arguments that there should be limited expectations of privacy in public spaces; they are without question damaging to the freedoms of expression and speech that are constitutionally enshrined (unless you are of the persuasion that authorities should be the uninvited guest at the party whenever they choose to join in); they fail the test of logic (can cameras and license plate readers effectively stop secret plans?); they turn on its head the value systems we hold dear because like it or not, their placement speaks for itself -- they enshrine property and capital above human life.

Coming from a police officer in CT this is fascinating and shows how different the USA is from the UK on the use of mass surveillance, notably CCTV. Admittedly CCTV is invariably post-incident and may act as a deterrent. This is regular debate in the UK, albeit on the fringes and in some surprising places, like a conservative paper - The Daily Telegraph.

davidbfpo

[davidbfpo]

In recent weeks it appears that a series of un-connected 'home grown' plots to attack targets in the USA have been revealed. The first article suggests a way of grading threats: http://www.npr.org/templates/story/s...ryId=114343626 Note the reference to the Zazi plot (Denver to NYC) having a direct link and communications with AQ. Hence the assessment this was the most serious threat since 9/11.

There is a good descriptive piece on the Zazi plot: http://www.nefafoundation.org/miscel...verArrests.pdf This IMHO lacks a good analysis and Bruce Hoffman has provided that - if wanted please PM (no link found for a recent lecture he gave at Oxford University).

[jmm99]

Constitutional Questions

You certainly have been busy. Your first two posts are the stuff of which books are written - and many have been written, covering such "illustrious" US "constitutional" eras as WWI's German and Red Scares, WWII's German and Japanese Scares, the initial Cold War Red Scares, the Vietnam Era Domestic Radicals Scares, etc. You could go back further in our history to the Civil War, the Alien & Sedition Acts and finally to the Revolutionary War.

For every action, there is a reaction (not necessarily equal or proportionate); and to that reaction, a reaction, etc., etc. Whether we are going to perdition in a handbasket depends very much on the people in office, but more so on the people who put them in office. Eventually, things tend to level out as folks on one side of an issue realize that their own oxen could be gored by the same LE measures they are advocating.

People also begin to live with the threat that initially seemed so large. The sight of 3000 dead from 9/11 loomed large, but once people begin to compare it to the 110K that die each year in accidents (home, industrial and auto), that threat is placed in perspective. And those of us who lived through the early Cold Wars "duck and cover" and after, realize that the "GWOT" scenarios, even the most extreme (and hence unlikely), are frankly chump change (harsh words, but comparatively true). We are still maturing in this "GWOT" thing.

-------------------------
Degrees of Separation

The articles on AQ affiliation and degrees of separation are dear to my own heart (nice to see some re-inforcement), since I last beat that drum here about six weeks ago:

The domestic US cases seem to fit three basic patterns (as to which, there is some legitimate and some illegitimate arguments about classification):

1. AQ members (in effect, their "SOF" teams) - e.g., 9/11 perps.

2. Domestic US insurgents (US citizens, legal resident aliens, illegal resident aliens) linked to AQ by some training and mission support - there have been quite a few of these cases.

3. "Parallel thinkers" (not clearly linked to AQ, but ideological counterparts) - e.g., DC snipers and Arkansas shooter.

The present case, on the basis of its present (limited) facts, fits into the second category - i.e. the theory of COL Jones that AQ is the base for waging unconventional warfare (in its traditional SF sense) via use of domestic insurgent groups who have a common ideology.

From a legal standpoint, that classification has no bearing - homicide is homicide; and a conspiracy to manufacture and use explosive devices is just that. From a military and law enforcement standpoint, classification is important to determine what systems we are confronting (e.g., the nodes of the network and which ones are most important).

Ranking threats on the basis of proximity to AQ is IMO a stretch, except as perhaps a necessity if resources are inadequate to cover all or most threats. This from the NPR article is desirable but not always feasible:

Finding The Connections

Sam Rascoff used to work the intelligence desk at the New York Police Department. He says that ranking plots based on how closely they are connected to al-Qaida or its affiliate groups is a good first step toward understanding them. But that's only the beginning.

"Part of what you do when you do counterterrorism is not to think about just this case, but the run of cases that are currently going on or may go on in the future," Rascoff says. Rascoff says law enforcement has to figure out why people in this country turn to violent jihad in the first place — and why the number of homegrown plots is growing at such an alarming rate.

My view (modifying Bruce Hoffman) is that one must also consider the possible threats that can be generated by small groups that are only loosely linked, or not at all to AQ. Tim McVeigh and Terry Nichols come to mind - one large bomb can kill 100s. And, groups the size of the Detroit and Boyd extremists could, by taking over a school or event Chechniya-style, could easily exceed that total with far more publicity.

The bright point in these cases is that people are informing. In "COIN" terms, we (USG) have not isolated ourselves from the people and they are doing what they as US citizens or resident aliens should be doing - turning on the bad guys.

I will also add my mantra: the best defense a people have against terrorists is not to be terrorised - and retribution is best savored eaten with cold anger.

Regards & thank you for the interesting (to me) links.

Mike

[davidbfpo]

JMM in his comment referred to:

The bright point in these cases is that people are informing. In "COIN" terms, we (USG) have not isolated ourselves from the people and they are doing what they as US citizens or resident aliens should be doing - turning on the bad guys.

One point made by Bruce Hoffman in the Zazi case was that he moved from NYC to Denver, where purchasing supplies was far easier as NYPD had in place a robust reporting system - which acted as a deterrent. I'm not sure how much public involvement there has been.

In the UK there have been very few examples of public information on real plots; which has been commented upon in public statements. Northern Ireland was different, anecdote suggests for Republicans public information was not a significant factor and of greater use with Loyalists.

One of the few open source articles that provides some context for the role of the public is from Turkey:http://ccj.sagepub.com/cgi/content/abstract/23/2/142 (Behind a pay wall, although I have a copy)

In November 2003, a series of coordinated suicide bombings were carried out by
al-Qaeda in Istanbul. The targets represented Israel and the West, including two synagogues,
an HSBC bank, and the British consulate. The attacks resulted in 68 deaths and more than 700 injured. The investigation and arrests that ensued revealed that the network involved in the bombings had trained in Afghanistan. Of particular interest was the interpersonal web that grew from the four suicide bombers as well as the range of materials confiscated in the investigation. Specifically, nearly 300 people were identified who had some knowledge of the planned attack. Of these, 48 were viewed as hard-core committed terrorists, leaving approximately 250 community members who were not ideologically committed to al-Qaeda’s goals and who had some information that potentially could have been used in preventive action.

Chilling and possibly a reason why it is the only example in the public domain I know of.

davidbfpo

[davidbfpo]

Changing the focus Bill Roggio provides a 2009 timeline of the US plots: http://www.longwarjournal.org/archiv...months_the.php

This misses one other plot (details tomorrow).

davidbfpo

[davidbfpo]

An indictment has been issued for an Alabama resident of Somali origin:
http://blog.al.com/live/2009/09/repo..._high_and.html

Once again the mystery is why he was radicalised; limited comment in the story:

Before moving to Somalia and taking on his battlefield name, al-Amriki grew up near Daphne, just east of Mobile, under his given name, Omar Hammami. By all accounts, he lived a normal suburban life and even spoke out against terrorism. He left Daphne High School, where he participated in a Model United Nations program, after his junior year.

Shortly after Muslim terrorists hijacked planes and crashed them into the World Trade Center in New York and the Pentagon, Hammami, then a University of South Alabama student, told the student newspaper that he was shocked and found it difficult to believe a Muslim could have done it.

Thanks to George Singelton who sent this item over.

davidbfpo

[jmm99]

The indictment (one probably exists) is still sealed - so, the actual facts and charges are not known. There has been a good deal of media speculation about this case. Until al-Amriki is captured and returned to the States, speculation is what we are likely to know - except for his media efforts in Somalia if they continue.

[82redleg]

JMM99, regarding your classifications, it seems to my legally untrained mind that there is (or should be) significant differences in your category 2, between US citizens, legal residents, and illegal aliens. As far as I'm concerned (this may not be the law) if they are illegal, and they get caught planning or conducting terrorism, we should shoot them for spies. Legal residents probalby have some more rights, while US citizens must have full constitutional protections.

[jmm99]

The classifications (probably as well or better expressed as patterns) are, as stated, for intelligence and military use.

A crime is a crime whether the perp is a US citizen, legal resident or illegal alien[*]. If the proceedings are in a Federal District Court, the Federal Rules of Criminal Procedure apply; if the proceedings are before a military commission (MCA), its rules of procedure apply. The apparent choice has been made to try US citizens, legal residents, and some illegal aliens (or foreign nationals detained in foreign countries and extradited or rendered to the US) in Federal District Courts. The future of MCA trials has not been finally determined by the Obama administration.

I find this interesting:

from 82redleg
As far as I'm concerned (this may not be the law) if they are illegal, and they get caught planning or conducting terrorism, we should shoot them for spies.

I suppose what you expect is some lecture on "rule of law" or whatever. The only little legal lecture is that espionage is a defined crime (regardless of status) and that purely planning or conducting terrorism is not espionage. So, I will end your sentence with "shoot them".

I suggest we throw the "Law" out the window for the moment.

I'd have no moral or ethical qualms about judging all by myself someone charged with planning or conducting terrorism which led to loss of life; and also no moral or ethical qualms, if I found that person guilty of the charge, of my putting a round through his or her head.

What and how I would do in the latter execution phase is something I honestly don't know. I might make a bloody hash of it.

I do know that in the former trial phase, I would use exactly the same standard to determine guilt in a capital case (evidence beyond a reasonable doubt), regardless of whether the person before me was a US citizen, legal resident or illegal alien.

Now, you are a field grade officer. So, perhaps, you might suggest a somewhat different process. A panel of three field grade officers ? Your standard for determining guilt ? Who does the shooting ?

I'd be interested in hearing your views (and those of others) - remember the "Law" is out the window. We are talking morals and ethics.

Regards

Mike

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[*] We could make some distinctions for certain crimes. E.g., Treason applies only to US citizens (and arguably to legal residents). Habeas rights differ depending on citizenship and (probably) legal residence status.

Most of the crimes we talk about in War Crimes involve giving false information to Fed LE, providing material support for a terrorist organization, explosives & firearms violations and conspiracy to commit murder. No real distinction there on the crime charged based on status; but the venue (Fed Dist Ct or an MC) might be affected by status.