There is an old adage at the CIA’s Directorate of Operations: when you have to make a tough call in the field, you won’t want a lawyer; you’ll want a priest. America’s fledgling Global War on Terror has proven the wisdom of adage. Most experts agree that terrorism must be studied as a subset of the insurgency. “Terrorism is a tactic. Insurgency is a strategy.TP[1]PT” In dealing with terrorism as a tactic, we must not allow our focus to become so myopic that we lose sight of the broader political and ideological struggle that makes up the underlying aims of the insurgency. The utility of terrorism as a tactic lies in the fact that the phenomenon falls neatly between the purview of domestic criminal law and international laws pertaining to armed conflict. In many ways, terrorists have the best of both legal worlds. If they are caught, they may fall back on the legal protections afforded to them by either their nationality or the laws of the nation they are captured in such as the European Union’s human rights laws or the US Constitution. They can also claim the protection afforded to combatants under the provisions of the four Geneva Conventions. If captured Al Qaeda training manuals like the Manchester Document are any indicator, some terrorists receive more training in the law of armed conflict than many soldiers. The War on Terror has raised many vexing and indeed, unprecedented legal questions about the legal status of both terrorists and the agencies that pursue them. As America embarks on a public debate about the moral and legal efficacy of the Patriot Act and the legal status of captured terror suspects, it is worthwhile to look at the laws that govern the structure and conduct of our military, intelligence and law enforcement agencies and the historical circumstances they were created in. As we will see, both America’s unique historical experience and national culture makes terror legislation particularly troublesome.

It is worthwhile to begin a survey terror laws by looking at nations with more extensive terrorism problems than our own.  The British experience in Ireland and Israeli experience with the Palestinians offer tempting comparative case studies in the study of terror legislation. They are, to an extent, western democracies with similar cultures that we are comfortable relating too but it should be noted that both are hardly models of Jeffersonian democracy. Neither the British nor the Israelis have a bill of rights.  While they both dealt with their insurgencies in a legal framework, they often did not extend the same rights to terror suspects they did to rest of their citizenry. In times of duress, they both resorted to passing special terror laws that gave their authorities expanded powers to interrogate and detain suspected terrorists. These expanded powers did not prevent excesses from either side. The Israelis continue to have pariah status among much of the developed world for human rights abuses as part of their war on terror. The Israelis have resorted to internment, assassination and torture in their fight against terrorism but they are no closer a meaningful and lasting peace with the Palestinians.

While the British have produced some of the leading theorists in the world of low intensity conflict their domestic counter-terror campaign in Northern Ireland has been messy and indecisive.  While British Sir Robert Thompson makes rule of law a central component of his counter-insurgency theory, both the British Army and police forces were mired by high profile scandals arising from excessive use of force and the contravention of Britain’s terror laws by authorities. High profile incidents like Bloody Sunday and the Guilford Four as well as the official internment policy undercut the legitimacy of British cause enough for high profile IRA members like Gerry Adams to be elected to public office. While the US hasn’t interned it citizens since the Japanese Americans of the Second World War, it could be argued that the reservation system used during the Indian wars was a de facto internment policy. Clearly in the annals of counter-insurgency history, there are no saints.

As other nation’s experience with anti terror laws offer few clear cut lessons, our own history provides a better guide. Understanding the American experience with countering terrorism can best be understood by studying three key pieces of legislation: The Posse Comitatus act of 1878, the National Security Act of 1947 and the Intelligence Oversight Act of 1981. These acts both shaped the bureaucratic structure of America’s counter-terrorist agencies and provided a legal framework for them to operate. 

Where are your handcuffs?

   “From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress; and no money appropriated by this act shall be used to pay any of the expenses incurred in the employment of any troops in violation of this sectionTP[2]PT”

The Civil War saw the genesis of America’s first counter-terrorism legislation. Our founding fathers never intended for America to have any sort of gendarme or Guardia Civil. It was not until Lincoln found himself embroiled in the most destructive insurgency in American history that the need for a national intelligence service became apparent. Interestingly, Lincoln looked to the private sector to create this agency. Allen Pinkerton, founder of the Pinkerton Detective Agency, led the Union Intelligence Service and as its head, coordinated the Union’s military and civilian intelligence efforts much like today’s Director of Central Intelligence or Director of National Intelligence.

Over a decade after the war, Congress passed the Posse Comitatus Act.

This was the south’s response to over a decade of de facto military occupation by federal troops. As the role of federalism was one of the most contentious issues of the constitutional convention and the central issue of the civil war, the act was intended to temper the excesses of Reconstruction. The original act and all the subsequent revisions also contain clauses that allowed it to be suspended by the President in times of civil disorder.

Posse Comitatus has played an interesting role in development of America’s counter terrorism structure.  In the wake of several high profile international terrorist incidents such as the attack on the Munich Olympics in 1972, the US military created the 1P^stP Special Operations Detachment Delta. Its original charter called for it to be able to respond to terrorist attacks anywhere in the world, including on American soil. This became a point of concern after Attorney General visited the newly formed unit. After watching a hostage rescue demonstration and looking at a display of the equipment Delta used, he asked Major General Scholtes, commander of the Joint Special Operations Command, where why he didn’t see any handcuffs. He replied “We don’t have handcuffs. It’s not my job to arrest peopleTP[3]PT.”  Soon thereafter, Delta was relieved of its domestic responsibilities and the FBI stood up its Hostage Rescue Team, trained and organized much like Delta and the British Special Air Service.

Neither the Israelis nor the British have an equivalent of the Posse Comitatus. The Israelis, who have essentially been on a war footing for its entire fifty year history and still practice universal conscription, do not consider the Palestinians “citizens” as such nor do they generally consider their security services pursuit of terrorists an affront to their civil liberties. The British regularly deploy their military in law enforcement roles. The Special Air Service’s most famous raid took place on British soil, when Iranian terrorists took over the Iranian Embassy at Princess Gate.  In 1987, the SAS was used to stop prison riots in Peterhead, Scotland; much like the FBI’s Hostage Rescue team was used to rescue prison guards in Talladega, Alabama and St Martinsville, Louisiana. The British military has been continually deployed on British soil in Northern Ireland for the last several decades and some of the most egregious excesses committed by the British government, such as the killing of several unarmed protestors on Bloody Sunday, were committed by soldiers. It appears the concept of Posse Comitatus is a uniquely American phenomenon.

America has a deep seeded cultural reluctance to use the military inside its border in anything resembling a law enforcement role. The presence of two military technical advisors from Delta during the siege at Waco gave rise to wave of conspiracy theories and congressional inquiries into their role.  In the wake of Hurricane Katrina, the military commander in charge of the relief efforts made it quite clear that despite widespread looting and a shortage of police, the military would not be party to any law enforcement efforts. While some contemporary commentators have suggested employing the military to reinforce America’s borders under the auspices of preventing terrorism, politicians remain wary of anything resembling a deterioration of the concept of Posse Comitatus

The Enemy Within

The next key piece of terrorism legislation was the National Security Act of 1947. In addition to creating the department of defense and laying the groundwork for the modern military, this act created the Central Intelligence Agency and outlined the current counter-terrorism structure. It also established the role of the Federal Bureau of Investigation (FBI) in national security affairs. The FBI had come into being at the turn of the century to stop racketeering and enforce Prohibition. Its size and responsibilities had gradually expanded to include catching spies and foiling Nazi domestic sabotage plots.

The bureaucratic animosity between the FBI and the newly formed CIA predate the creation of the CIA. The main point of contention was the division of counterintelligence responsibilities. Prior to 1947, the FBI was the sole counterintelligence agency and was as close to a civilian national intelligence agency as existed before World War II. When global intelligence collection and analytical responsibilities were consolidated under the War Department’s Office of Strategic Services, William Donovan, its founder, squared off against the bureaucratic juggernaut that was J. Edgar Hoover. Hoover wanted all international intelligence efforts consolidated under the FBI after World War II. Donovan successfully lobbied to have a separate civilian agency created to collect and analyze national level intelligence under the CIA. A compromise was reached on counterintelligence responsibilities. The FBI would remain the lead agency with responsibility for domestic counterintelligence, while the CIA would work abroad.

This clumsy compromise would prove troublesome. This requirement to “split a man in half” meant that every time a suspected intelligence officer crossed the border, responsibility shifted between the agency.  This would help continue bureaucratic animosity between the agencies. It also served to calcify the organizational cultures of both the CIA and the FBI, fixating each on their established turf.

The early decades of the Cold War were a turbulent time for the America. McCarthyism and the all too real threat of Soviet espionage contributed to a climate of paranoia. The FBI began investigating both communist and radical groups as part of the COINTELPRO or counterintelligence program. This carried over into investigations of anti-war groups and civil rights groups. While many of these investigations were politically motivated witch hunts against legal dissident groups, some of these groups, such as the Black Panther movement, openly espoused violence. The anti-war group Students for a Democratic Society took their revolutionary rhetoric one step further, engaging in a domestic terror campaign that included several bombings and riots, before being shut down by the FBI.  In this period, J Edgar Hoover also kept extensive files of potentially embarrassing information on prominent public figures for blackmail purposes. The FBI had, to a greater or lesser extent, become the politicized Guardia Civil the founding fathers were afraid of. The CIA also got in the act, opening the mail of suspected communist dissidents keeping files on Americans as part of what became known as Operation Chaos and reporting on domestic social movements like “The New Left.” While CIA’s abuses were less egregious then the FBI’s, they were only different by degreeTP[4]PT.

As the public became aware of these abuses, Congress established the Church Committee to investigate the conduct of the FBI and CIA.  Their findings sparked a series of sweeping reforms culminating in the Intelligence Oversight Act of 1981, more commonly known to the intelligence community as Executive Order 12333. This act forbids any intelligence agency from collecting on US persons and codified the rules that now govern the conduct of intelligence operations.

The common thread woven through all three of these statues is that while they are criminal in form they are structural in function. No one has ever been convicted of violating Posse Comitatus.  Likewise, outside of espionage cases like Aldrich Ames, no CIA operations officer has ever been successfully prosecuted for violating Executive Order 12333 or acting beyond the authority given to the under Title 50. The FBI has investigated several CIA officers, usually during the various scandals that have plagued the Agency since its founding.  Indeed, some of the best works of literature available about case officer work are memoirs written to underwrite legal defenses a la Duane Clarridge and Robert Baer. To date, in every scandal involving officers of the CIA, the Nuremburg Defense, “I was only following orders”, has proven infallible. Executive Order 1233 is on particularly shaky legal ground, as it is not a law. As an Executive Order, it can be suspended at anytime without the consent of Congress and can be easily sidestepped when terrorism is involved. What we are left with it not so much a fixed set of legal boundaries for dealing with terrorism, but a nebulous structural framework that outlines responsibilities, but gives the executive wide latitude to make exceptions. With this vague legal landscape, it is not surprising that the current administration would have as many problems as it has had in it dealings with the legal status terror detainees.

In the world of counter-terrorism strategy, commentators often fixate on the dichotomy between the law enforcement approach and the intelligence approach. Much like the maneuver verses attrition debate taught to new Marine lieutenants at the basic course, this dichotomy is as shallow as it is false. The correct approach is whatever is most appropriate for the circumstances. At its heart, the differences between the FBI and CIA lie not in their approaches, but their organizational philosophies

The FBI is a law enforcement agency.  While it is beholden to elected officials, it is ultimately bound by the law and the nebulous concept of justice.  Their philosophical dilemma is what to do when the exigent circumstances blur the line between the imperative of protecting the public and the obligation of observing the letter of the law. The CIA is an intelligence agency. While it is bound by the law, its mission is inherently illegal and is ultimately a servant of the executive. The tasks it performs for its duly elected civilian masters are merely a reflection of those official’s potentially flawed values. The philosophical dilemma they find themselves in is; where does the servant’s moral culpability end and the master’s begin? As one commentator noted in the wake of a scandal involving the elder Bush administrations channeling military assistance to Iraq during its war with Iran, intelligence involves a degree of intrusiveness that the public would otherwise consider unacceptableTP[5]PT. The question them becomes, how do we reconcile these two philosophies and how much obtrusiveness will the public accept from their spies or cops?

The New Great Game

“A strict observance of the written law is doubtless one of the highest duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose law itself, with life, liberty and property, and all those who are enjoying them with us; thus sacrificing the end to the means”

- Thomas JeffersonTP[6]PT

“For what would it profit a man, if he shall gain the whole world and lose his soul?”

- Mark 8:36TP[7]PT

The beginning of the Cold War was a time of tremendous change. America emerged as superpower and found itself locked in an existential ideological struggle with the Soviet Union. The Great Game played between the intelligence services on either side of the Iron Curtain was played by rules both sides understood. Both sides observed the rules and practiced moderation in order to head off the unthinkable. As we have seen, the intelligence laws and structure that currently exist are largely a reflection of the strategic reality that existed during this era. The end of the Cold War was a time of tremendous change as well. The Great Game has been replaced by the New Game of terrorism with fewer rules, enemies defined by ideology not nationality and a different set of stakes. America lost more innocent lives on one Tuesday in September than the British lost in two decades of “The Troubles”TP[8]PT.

In the end, the question we, as Americans, are faced with are more philosophical than legal. Our grand experiment with democracy created one of the safest, freest, and prosperous nations the world has ever known. But the freedom that makes us strong is also the freedom that makes us vulnerable. As we continue our public debate about the degree and extent executive powers to fight terror, we must strive to strike the right balance between winning the battle against the terrorists and losing the ideological war that created them. In the end, the question we, as Americans, are faced with is, what kind of nation do we want to be?

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