This post is an excerpt of a new article I am currently working on about the legal and foreign policy implications of U.S. counterterrorism policies today. 

 

The terrorist attacks of September 11, 2001 were undoubtedly transformative of the ways Americans, and their government, would view the threat of terrorism to their security and the lengths they would go to combat this threat. While the 9/11 attacks certainly represented a major shift in the importance placed on counterterrorism by the US government, the foreign policy and military strategies adopted by the Bush administration, and continued by the Obama administration, were not as revolutionary as some may believe. In fact, many of the strategies in use today and the debates surrounding them have deep roots in US policies in combatting various threats throughout recent history. Understanding these links and the extent to which 9/11 represented a shift in US counterterrorism policy provides a clearer picture of how we arrived at the policies of today and how we should view their domestic and international legal implications.

 

Understanding the Threat

Prior to the 9/11 attacks, there were fundamental misunderstandings and disagreements between administrations on the nature of the threat that terrorism posed as well as the appropriate means to combat them. In the decades between the Richard Nixon and the George W. Bush administrations, nearly every President had radically different views on the threat of terrorism and, thus, employed very different approaches to handling counterterrorism policy. This led to a complete lack of long- term, consistent counterterrorism strategies or policies between administrations. Take, for example, the Nixon administration. President Nixon formed the Cabinet Committee to Combat Terrorism in response to the 1972 Munich Massacre of 11 Israeli Olympians, stating, “It is vital that we take every possible action ourselves and in concert with other nations designed to assure against acts of terrorism.”2 However, after Nixon, President Ford downplayed the threat and made no real progress, as did Carter after him. As a result of Carter’s inaction, President Reagan came into office with terrorism as a top priority.3 The cycle continued with George H.W. Bush after him, downplaying the threat once more, only for it to be renewed one final time by the Clinton administration. The cycle ended when President George W. Bush failed to heed the Clinton administration’s conclusion that al-Qaeda and its leader Osama bin Laden posed a new, significant threat to the security of the US and focused very little on counterterrorism in his initial foreign policy strategies after entering office. In the end, prior to 9/11, each President felt the need to distance themselves from the policies of the previous administrations and set a new course, leaving no room for the long-term development of any consistent counterterrorism strategy.1

Even during administrations that prioritized counterterrorism strategy very little was accomplished and few changes were made. Much of this was due to the fact that fighting terrorism is often a risky endeavor with a high potential for public embarrassment and political disaster if unsuccessful.2 A prime example is President Clinton’s pursuit of Osama bin Laden. After unsuccessful attempts to coerce the Taliban into handing over bin Laden in 1998, Clinton refused to use the Delta Force to attempt to capture him so as to avoid a disaster akin to that of the failed rescue mission in the Iran hostage crisis.3 Compare this to today where Presidents have a much greater propensity for risk in pursuing counterterrorism goals—including sending Special Forces to capture bin Laden again. Even Reagan who came into office with terrorism as a top priority refused to repeat the Libyan bombing raids of 1986 for fear that they would be unpopular among the public.4 In other cases, changes simply didn’t take place due to bureaucratic inefficiencies and poor communication between federal agencies. When the Reagan administration announced an intelligence clearinghouse in their National Security Decision Directive in 1984, very few changes in the operations of the CIA or FBI actually took place.5

However, underlying the problems of disagreements, inconsistency, and weariness to take action lied a fundamental misunderstanding of the nature of the threat that terrorism presented and how to adequately combat it. Prior to 9/11, many different problems competed for the attention of the President, both foreign and domestic. On the foreign policy front, administrations were primarily interested in traditional interstate conflicts that presented traditional military threats. Only if a terrorist threat was state-sponsored—thus elevating it to the level of a traditional tactic of interstate warfare—or potentially capable of procuring a WMD was it considered a top foreign policy issue.6 Administrations instead viewed terrorism as a mere offshoot of regional politics and a nuisance that complicated larger issues, such as Arab- Israeli peace, rather than an independent, culminating problem. As such, it was not until 9/11 that the US would stop reacting to terrorism on an event basis and instead take into account the consequences of our foreign policies on the development of regional terrorist threats and develop appropriate, long-term counterterrorism strategies.

 

Historical Strategies

The Bush administration set out many new policies in response to the terrorist attacks on 9/11 including invoking the doctrine of preventive warfare, unilateralism, and an increased reliance on targeted killings, and an explicit expansion of the power of the President to protect the country. In this brief history, we will primarily focus on the histories of preventative warfare and targeted military killings. While we will cover the details of these strategies as implemented by the Bush administration further in the next section, it is important to examine the historical uses of these strategies in the past to understand their relevance today.

One of the cornerstone features of the Bush administration’s new counterterrorism strategy was the use of preventive warfare and a vigorous military buildup which led to the US’s wars in both Iraq and Afghanistan. However neither of these policies were unique to Bush. In the mid-1990s President Clinton signed a national security directive declaring that “the United States shall pursue vigorously efforts to deter and preempt, apprehend, and prosecute … individuals who perpetrate or plan to perpetrate such attacks.”7 And it was during Clinton’s era that the US started spending more than any other nation on defense.8 The strategies stretch back even further to Franklin Delano Roosevelt’s anticipatory self-defense in response to German ships in the Atlantic prior to the US’s entry into World War II and John F. Kennedy’s imposition of a quarantine around Cuba during the missile crisis—an international act of belligerence invoked to prevent the threat to our security that Soviet missiles in Cuba presented. Nor was the decision to act unilaterally in our pursuit to combat terrorism uncharacteristic of American foreign policy. The US has had a long history of acting unilaterally against potential security threats including during the Cold War. In fact, Clinton’s final National Security Strategy document before leaving office explicitly promised to do the same.9

Targeted military killings also predate 9/11. Although today the most common image that comes to mind when discussing the practice of targeted military strikes is that of an unmanned “drone” aircraft dropping bombs on a country across the globe via remote control, this is not the only practice that falls under the targeted killing umbrella. Specifically, there are two different types of operations that today’s drone program makes use of: targeted killings and signature strikes. In targeted killings, decision makers identify and intentionally kill an individual. Conversely, in signature strikes, targeted operations are based on the patterns of behavior an individual exhibits, i.e., their “signature,” and then kills that individual for that behavioral signature rather than their identity. Both of these strategies predate 9/11 and the new drone program. A prime example of a targeted killing was the operation against Japanese Admiral Isoroku Yamamoto, chief architect of the attack on Pearl Harbor. American intelligence was able to decipher the Admiral’s flight itinerary and American aviators were sent to shoot down the plane.10 Another example comes from the Reagan administration when, in 1986, President Reagan authorized an airstrike against, among other facilities, the home of Libyan leader Muammar Qaddafi. Of particular note in this operation was the international legal justification used by President Reagan to conduct the strike: the right to self-defense as stipulated by the United Nations Charter, a defense commonly used in today’s targeted strikes.11

Signature strikes also have a long history of use. Today, characteristics such as travel towards areas of armed conflict, handling of explosives, and involvement in known terror training compounds are used to target low-level militants of al-Qaeda. These types of strikes don’t target high-level commanders with known identities but, instead, low-level fighters. The US used this exact process during the Vietnam War to identify and eliminate Viet Cong fighters.12 Later, the Reagan administration also directly advocated for a similar policy in their 1984 National Security Directive 138.13 While never implemented, the policy clearly set out a preemptive counterterrorism strategy very similar to that of today.

 

Counterterrorism after 9/11

After 9/11, the Bush administration launched a global war on terror with strategies outlined in the administration’s 2002 National Security Strategy document. Key among these was the adoption of a strategy of “anticipatory self-defense”—essentially preventive warfare—in which the administration vowed to take action against not only imminent threats, but culminating ones, and would act alone if necessary. The administration also emphasized strategies included the promotion of democratization around the world as a means of protecting our security through the democratic peace and an increased military buildup to take on counterinsurgency missions—including through the use of targeted killings—and increase intelligence. Most importantly, the administration oversaw the explicit expansion of the power of the President, by Congress, to broadly pursue those “nations, organizations, or persons” that perpetrated the attacks.14

All of these major policies implemented soon after the 9/11 attacks— preventive warfare, unilateralism, and targeted strikes—were largely made possible by the express will of the President and, often, without the express approval of Congress. Presidential supremacy over Congress in controlling military operations is a historically recurring theme in US military operations and continues to be today, particularly in the realm of counterterrorism. While recent examples of this trend can be found as recently as in President Clinton’s cruise-missile strikes against al-Qaeda in Afghanistan and Sudan, the passage of the AUMF by Congress has the potential to set an entirely new precedent for Presidential power to wage war.

While historical precedents can also be found for both the use of preventive war actions by the US and for targeted killings, 9/11 has drastically changed the way they are used in both the US and abroad. For one, targeted strikes are now much more transparent—even boasted about—than they were in the past. Far from the days of covert CIA operations that maintained plausible deniability for the administration that authorized the strikes, today’s drone strikes are publicly ordered by the President and successful strikes against high-level militants by both the US and other countries with the capability of drone warfare are announced with pride. The proliferation of these targeted killings in response to terrorist threats combined with the increasing use of the strategy of preventative warfare in justifying bombing campaigns in states such as Iraq, Afghanistan, and Syria have stretched the UN’s right to self defense and have created an interesting legal grey area for the extent to which such practices can avoid being described as belligerence.

 

While it is certainly not outrageous to view 9/11 as a point of inflection in US counterterrorism policy, it is also important to note that virtually all of the policies in use today have clear connections to historical policies undertaken throughout the history of the US. In the coming sections we will explore these policies in greater depth to understand exactly how they differ from past precedents and how those difference will have serious implications on international and domestic law in the US.

 

  1. TIM NAFTALI, BLIND SPOT: THE SECRET HISTORY OF AMERICAN COUNTERTERRORISM ___ (2005). []
  2. TIM NAFTALI, BLIND SPOT: THE SECRET HISTORY OF AMERICAN COUNTERTERRORISM ___ (2005). []
  3. TIM NAFTALI, BLIND SPOT: THE SECRET HISTORY OF AMERICAN COUNTERTERRORISM ___ (2005). []
  4. TIM NAFTALI, BLIND SPOT: THE SECRET HISTORY OF AMERICAN COUNTERTERRORISM ___ (2005). []
  5. TIM NAFTALI, BLIND SPOT: THE SECRET HISTORY OF AMERICAN COUNTERTERRORISM ___ (2005). []
  6. TIM NAFTALI, BLIND SPOT: THE SECRET HISTORY OF AMERICAN COUNTERTERRORISM ___ (2005). []
  7. Presidential Decision Directive 39. []
  8. TIM NAFTALI, BLIND SPOT: THE SECRET HISTORY OF AMERICAN COUNTERTERRORISM ___ (2005). []
  9. TIM NAFTALI, BLIND SPOT: THE SECRET HISTORY OF AMERICAN COUNTERTERRORISM ___ (2005). []
  10. Damian Mencini, Blast from the Past: Using History to Shape Targeted Strikes Policy, Georgetown Security Studies Review (June 10, 2014), http://georgetownsecuritystudiesreview.org/2014/06/10/blast-from-the-past-using-history-to-shape- targeted-strikes-policy/ []
  11. Damian Mencini, Blast from the Past: Using History to Shape Targeted Strikes Policy, Georgetown Security Studies Review (June 10, 2014), http://georgetownsecuritystudiesreview.org/2014/06/10/blast-from-the-past-using-history-to-shape- targeted-strikes-policy/. []
  12. Damian Mencini, Blast from the Past: Using History to Shape Targeted Strikes Policy, Georgetown Security Studies Review (June 10, 2014), http://georgetownsecuritystudiesreview.org/2014/06/10/blast-from-the-past-using-history-to-shape- targeted-strikes-policy/. []
  13. National Security Directive 138, in an effort to combat the increasing threat of terrorism, authorized the CIA to: “Develop, in coordination with other friendly security services, capabilities for the pre-emptive neutralization of anti-American terrorist groups which, plan, support, or conduct hostile terrorist acts against U.S. Citizens, interests, and property overseas.” []
  14. Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (hereinafter AUMF). []