Terrorism and Counterterrorism: Acts of War and America’s Responses
Contrary to popular opinion, the world has not changed since September 11, 2001. All that is different is that Americans became aware of the animosity the rest of the world feels to the United States. Two stories from the twentieth century illustrate this. The first happened on September 6, 1901: the assassination of President William McKinley. Leon Czolgosz shot the President twice at the Pan-American Exposition after McKinley had been shaking hands with the people there. Although it appeared the President might recover from the bullet that ravaged his internal organs, he died a little over a week later. Czolgosz was an anarchist influenced by the ideas of anarchist Emma Goldman. His goal was the elimination of the US government. The second story happened almost a century later. Ramzi Yousef, an Islamist and the nephew to Khalid Sheik Mohammad, wanted to commit terrorism against the United States. On February 26, 1993, he and Eyad Ismoil drove a truck with over 1,300 lbs of fertilizer in the parking garage of the World Trade Center. Their goal was to blow up the base of the North Tower and knock it onto the South Tower; he wanted to kill tens of thousands of people. Luckily only six people died. His motivation was America’s support of Israel and the removal of American intervention in the Middle East. On September 11 al-Qaeda acted in the same way terrorists for the last century have. The destruction of the US government, American-Israeli relations, and American’s involvement in the Middle East motivated the hijackers. Furthermore, they were not the first to try and bring down the Twin Towers. Nothing has changed.
Historicizing Sub-State Violence in America
America has dealt with what academics call sub-state violence since the beginning of the 19th century. Thomas Jefferson, and later James Madison, had to deal with the Barbary pirates. The two presidents responded by sending the US navy to swiftly deal with the Barbary states, which were quasi-independent powers in the Ottoman Empire. Later in the 1800’s, America had to deal with the Civil War. Although this conflict is often characterized as a war between two state actors, the Federal government of the United States did not consider the Confederacy to be a legitimate government. For Abraham Lincoln, the Confederacy would be what people call sub-state actors today. A little known set of cases during the Civil War actually greatly affects the conceptualization of how Americans should view the War on Terror. The Supreme Court decided the Prize Cases in 1863 because President Abraham Lincoln blockaded the Confederacy without a formal declaration of war. The Supreme Court ruled “[a] state of actual war may exist without any formal declaration of it by either party, and this is true of both a civil and a foreign war.” Furthermore, the Court ruled that “[t]o create this and other belligerent rights as against neutrals, it is not necessary that the party claiming them should be at war with a separate and independent power.” The Prize cases established a legalist paradigm on how Americans should view war with sub-state actors.
On September 11, 2001, al-Qaeda operatives attacked the United States by flying planes into the Twin Towers and the Pentagon. However, even before those attacks, al-Qaeda was at war with the United States. Osama bin Laden released a fatwa in 1996 titled “Declaration of War against the Americans Occupying the Land of the Two Holy Place.” In the fatwa he writes: “Today your brothers and sons, the sons of the two Holy Places, have started their Jihad in the cause of Allah, to expel the occupying enemy from of the country of the two Holy places…And as you know, it is wise, in the present circumstances, for the armed military forces not to be engaged in a conventional fighting with the forces of the crusader enemy…unless a big advantage is likely to be achieved; and great losses induced on the enemy side (that would shaken (sic) and destroy its foundations and infrastructures) that will help to expel the defeated enemy from the country.”
A fatwa is a religious declaration by someone within the ulema, religious scholars of Islam. Whether Osama was allowed to deliver a fatwa is nugatory. What is important is that he declared war against America, which means the US and al-Qaeda were in a state of war according to the Prize Cases even though America did not offer a formal declaration. America did not need to declare war for the country to be drawn into one.
Second, al-Qaeda is a sub-state actor; however, there does not need to be a legitimate government to create a state of war. As the Supreme Court ruled, the US could be at war with someone who is not a “separate and independent power.” This is usually the part of contention between those who say terrorism is an act of war verses those who say it is merely a crime. The Prize Cases settle this in a legal sense, although someone may disagree with the principle in theory. Yet, in the American context, the precedent set by United States law is that when a sub-state actor attacks the legitimate authority then the state is at war. This broad historical analysis establishes the framework that politically motivated sub-state violence has been and will always be an act of war. However, every particular case is different and deserves a different response.
How to fight the war…
Usually after establishing that terrorism is an act of war, academics or policy makers follow through with the “logical” step of saying the military needs to respond. However, even though terrorism is an act of warfare, this does not necessarily mean that a military response is necessary. Each case is specific and needs a specialized response. It would be reckless to send the military after an individual terrorist, but it would be more appropriate to use them against an international terrorist threat. People cannot generalize about terrorists and respond to them in the same way. As previously demonstrated, there is a long history of sub-state violence in and against America. Each time, the United States did not respond the same every time; a specified approach is necessary to deal with the threat of terrorism.
In response to individual terrorism, the United States has a tradition of responding with a trial and punishment. The previous mentioned case of Leon Czolgosz is an example from the 20th century, and Nidal Malik Hassan is an example from the 21st. Nine days after Czolgosz attempted to kill the president, he went on trial, and the prosecution finished their case in two days. He was found guilty and received the death penalty a little over a month later. Hassan was a soldier in the US military, who for[C1] religiously motivated reasons, opened fire against his fellow soldiers at Fort Hood while yelling “Allahu Akbar.” He killed 13 people and wounded dozens of others before being brought down. At the end of November and beginning of December, the government began the proceedings to try Hassan. He has a trial coming in March. For individual terrorists, it is not necessary to respond with military action. Although it was a soldier who stopped Hassan, and civilians who stopped Czolgosz, the two just needed to be put on trial for their crimes.
Compare this to America’s response to September 11. After al-Qaeda brought down the Twin Towers andattacked the Pentagon, America went after the terrorists in Afghanistan with military force. This was necessary because the Taliban, the government of Afghanistan, shielded al-Qaeda from receiving justice. The United States needed to intervene in the country to neutralize the threat of al-Qaeda. This should raise the question as to why the two responses differ. Hassan and Czolgosz were individual terrorists, while al-Qaeda was an international terrorist organization that had cells throughout the world and the protection of a government. The only appropriate responses to the former examples were trials, while the latter needed a military response to bring down the Taliban and pursue al-Qaeda in the mountainous region between Afghanistan and Pakistan.
These are not the only two responses to terrorism available, though. If America wants to stop terrorism, then the country needs to have an honest assessment of how to stop it. Contrary to the popular conception of the FBI or CIA stopping the terrorists in the nick of time, the vast majority of terrorist attacks are not thwarted that way. According to the Institute for Homeland Security Solution, “More than 80% of foiled terrorist plots were discovered via observations from law enforcement or the general public. Tips included reports of plots as well as reports of suspicious activity, such as pre-operational surveillance, para-military training, smuggling activities, and the discovery of suspicious documents.” Roughly 40% of the cases of thwarted terrorism happened because of public awareness or informants sharing information. Intelligence is another response to terrorism and trying to interdict the attacks.
Restructuring the System
Fundamentally, this will need a systemic and philosophical restructuring of how the government deals with terrorism. This shift will have to be similar to how America reorganized itself after World War II with the creation of the National Security Council, CIA, and the Department of Defense. The current war against radical jihadists and other types of terrorists is unlikely to go away in the foreseeable future. Therefore, America’s national security apparatus needs to create a multilevel response with a combination of hard and soft power. First, the FBI and local police forces need to continue and extend their intelligence gathering abilities. Before September 11, the FBI was primarily a force to collect evidence and prosecute criminals within the country. After the terrorist attacks, the government forced intelligence gathering upon the institution. A possible restructuring is to build up a part of the FBI to resemble the gendermaries of European countries, which would require specific training for agents and analysts to work to interdict terrorism more than just collecting evidence. This would be a para-military part of the government rather than either military or police. A model America could utilize is Britain’s MI5, which is the country’s internal security force. MI5 had great amount of success against both the Provisional IRA and the Real IRA. Along these lines, the government needs to decide if terrorists will be tried in military or civilian courts. Currently, if a terrorist is tried in a military court, the FBI has to hand over all their intelligence to the military and is no longer part of the process. This causes turf wars, frustration, and competition. Another restructure would involve allowing the FBI to still collect the intelligence, and for the Department of Justice to stilltry the terrorist, whether it is in civilian court or military tribunal. The Department of Justice would need a special department of military lawyers who could work with the FBI and bring individual terrorists to trial.
Next, America needs to reconsider how it engages in diplomacy within the State Department. Traditionally, the State Department conducted foreign policy within the Westphalian system. Foreign ministers would meet with other foreign ministers and reach conclusions. However, in this conflict, sub-state actors are equally important as state actors. The new approach should allow the Secretary of State and Ambassadors to negotiate and talk with sub-state actors, including organizations that are considered the enemy like the Taliban. More diplomatic power will allow possibly peaceful ends to the conflict with certain terrorist organizations. Here, Britain is another good example with the IRA. Eventually the British government came to a settled agreement with a sub-state actor to end a decades long war between the IRA and the UK. Finally, because this is a war, America should always be ready to utilize military force. This does not always mean invading another country with a battalion; it could simply mean the use of Reaper drones to neutralize a terrorist in a foreign country or a special operations team like the one that eliminated Osama bin Laden. Yet, the option of a full military operation needs to always be available if the terrorist threat reaches international proportions, like in Afghanistan. This last option needs to only be used when there is a danger large enough to threaten American interests abroad. A combination of intelligence gathering, police work, diplomacy, and military action, both hard and soft power, are necessary to interdict, stop, or remove a terrorist threat.
The varying cases of terrorism throughout American history necessitate that the US consider the nature of terrorism and how to respond to it when it occurs. Terrorists do not always act in the same way and have different organizational structures. There are “lone wolves” like Hassan and Czolgosz, cells like those lead by Ramzi Yousef, and international ones like al-Qaeda. America should be ready to handle each type of case differently and should not respond dogmatically to acts of terrorism. A static approach will ultimately fail in the end because the same solution cannot always work. America needs to use a combination of tools available, including trials, interrogation, intelligence, local communities, informants, and military action when necessary. The counter-terrorism establishment needs to be reasonable and flexible in how it tries to stop and prevent terrorism in the homeland and abroad.
 Prize Cases, 67 U.S. 2 Black 635 (1862)
 Osama bin Laden’s fatwa, originally published in Al-Quds Al Arabi, Aug. 1996: http://www.pbs.org/newshour/terrorism/international/fatwa_1996.html
 Fort Hood Soldier: I ‘started doing what I was trained to do.’ Nov. 9, 2009: http://articles.cnn.com/2009-11-09/justice/fort.hood.foster_1_gen-robert-cone-nidal-malik-hasan-soldier?_s=PM:CRIME
 Institute for Homeland Security Solution, Building on Clues: Examining Successes and Failures in Detecting U.S. Terror Plots, 1999-2009. Oct. 2010, pg. 1: https://www.ihssnc.org/portals/0/Building_on_Clues_Strom.pdf