Foreign Policy Blogs

Law Enforcement in “Modern” Counterterrorism


Networks of communication and global finance that did not exist even sixty years ago have brought together terrorists and their supporters in previously unimaginable ways. And in conjunction with these technological changes, new norms about rights, religion, and governance have given terrorists new ways of undermining their enemies and appealing to recruits. Especially where religion serves as an animating force to glue together disparate nationalities seeking to stir up strife in democracies that will bring them tumbling down under the weight of their own contradictions.

With that end goal of theirs in mind, the key to crafting effective counterterrorism policies depends on balanced judgments between democratic principles and security policies.

The most significant operational strides across Western counterterrorism operations in recent years have been in financial interdiction and expansion of technical capabilities to spy on suspects. But the legal aspects of these actions have not kept pace with technological breakthroughs, and ideological changes in how aspiring terrorists and terrorist-helpers come to identify with these movements, if not formally join them. Governments have been hard-pressed to counter something as nebulous and effective at mobilizing great numbers of believers as religion.

Much remains to be done in countering the ideologies themselves, since it is much easier to rail against them than change policies to offer alternatives that diminish the appeal of radicals who rely on poverty, frustration, and the missteps of governments in their “wars on terror” to recruit members. Propaganda efforts have been even extremely lacking. And not just the U.S., but all around the world, whether in Brussels and Paris or Tunis and Amman or Kabul and Urumqi: “de-radicalization” only goes so far when the root causes of disaffection remain.

In this regard, better use of law enforcement over military options and bulk surveillance can help significantly. Before 9/11, law enforcement agencies were often in the lead to track down terrorists on their “beat,” while traditional espionage and diplomacy efforts operated at some remove on the interstate level and in any event did not prioritize or understand how policing and community relations worked.

After 9/11, though, law enforcement priorities shifted to preventive measures. Today, far more effort is expended at investigating thousands of claims by informants and tipsters, or entrapment operations against men and women who turn out to be especially gullible and inept. And, in many cases, these are stymied by the simple lack of language specialists to interpret conversations, even those made in the clear by suspects without any special “code” or encryption measures.

One technical area that law enforcement could contribute to more profitably in counterterrorism is enforcement of laws against document forgeries. The 9/11 hijackers, for one, made use of ID forgers to get drivers’ licenses—forgers who were unaware of the fact these men got the IDs in order to maintain their cover to launch attacks. So too have terrorists from Russia to Kenya, relying on the inattentiveness or even corruption of local law enforcement and bureaucracy to move into position for an attack.

Terrorist networks have always depended on such cracks in these ranks to carry out their actions. Indeed, it is imperative they do so today because they do not have the manpower to set up their own clearinghouses of fakes and contraband. Many “active supporters” of the movement occupy spaces within this shadow economy: without their expertise, operations would be harder to plan. Law enforcement would be of more use here than intelligence agencies because many of these petty criminals would be better dealt with by a security service that has detailed local knowledge.

However, the focus of law enforcement on prosecution would have to be balanced with the fact that this sort of work is more intelligence oriented, and therefore, not so fixated on scoring prosecutions. This is a problem that multiple EU members have faced over the years in transnational cases, as some do not wish to extradite suspects whose value as informants in one jurisdiction outweighs any gains from their being prosecuted in other jurisdictions.

Before 9/11, there were significant restrictions on overseas collection operations, in particular human intelligence (HUMINT), due to ethical reasons—the “fiction” peddled in video games that an undercover agent will kill citizens of his or her own country to maintain their cover is still just that: fiction. But in the real world, after 9/11, many restrictions were in fact removed from existing agencies and new ones.

Military operations have expanded significantly from retaliatory strikes to preventive actions, overt and covert. This brought intelligence agencies back into the business of paramilitary training, wet ops, and targeted killing, and after nearly two decades of global warfare against “terrorism,” it is hard to see how killing the #2 man of the same organization over and over again is going to lead to a point where “victory” can be declared against the message it represents.

Many of the accompanying legal measures taken to tear down privacy norms in the name of fighting terrorism have been even less successful and very controversial, to the point that disclosure of their details undermines faith in democratic governance. In the U.S., the PATRIOT Act updated the 1978 Foreign Intelligence Surveillance Act (FISA) with respect to new technologies, including changing warrants to cover the suspect and all current or future communications lines rather than item-by-item; reduced barriers for sharing intelligence; increased access to potential evidence, which had previously been limited to certain things; and lowered the threshold for obtaining FISA warrants on grounds of “reasonable suspicion” instead of “probable cause.”

But, this can only go so far in terms of revising procedures and laws. In finding needed legal justifications, some democracies must decide whether exposure of their methods and arguments is worth jeopardizing ongoing investigations in order to build up rationales for future actions.

Since 9/11, preemption and prevention have become the norm because it is no longer politically viable to allow attacks to take place, especially when the stakes for mass casualty operations are so high. Moreover, the “face” of terrorism is more often than not both international and domestic. Financial transactions, intelligence sharing, port of departure security, communications interception, watch lists, and renditions all require a level of secret international cooperation that does not often reflect public relationships among nations.

Counterterrorism work dealing with the movement of goods and people across borders is almost always a reactionary move, not helped by the fact that logistics work is the most time-consuming and, yes, “unsexy” aspect of investigations. And, in the absence of common, enforceable customs rules to screen people and goods, measures like random inspection and container scanning do little good. A determined terrorist can easily defeat such half-measures, if there is even a need for him or her to do so when the odds of detection are so low anyway. No preparedness drill will even match the real thing, and governments in the age of pinched budgets and untrusting publics have to balance between honest threat assessments and mere window dressing.

The domestic angle balances between whether terrorism is no different from other violent crimes, or falls into a distinctive national security realm that requires preventive actions over prosecutions and arrests. Though states have made progress in revamping their own domestic efforts, international cooperation remains lacking in many areas, and the efficacy of domestic measures are challenged by the sheer logistical and legal challenges that democracies face in practicing counterterrorism.

The greatest challenge, though, remains finding and selling legal justifications for expanded counterterrorism work in needed areas of improvement–global logistics, domestic monitoring, anti-corruption drives, poverty resolutions–over short-term military options and mass surveillance technologies.