Disaggregating legal strategies in the war on terror.

• Author: Ellis, Michael J.
• Position: COMMENT

Since the September 11th attacks, Al Qaeda has pursued a global insurgency campaign against the United States and its allies by exploiting the grievances of local guerilla groups against their home countries. In response to this global insurgency, many commentators have argued that a "disaggregation" strategy is necessary to break the ties between local insurgent groups and the globalized ideology of Al Qaeda. American counterterrorism policies have been shifting to a disaggregation approach against this global insurgency, but our legal strategies remain focused on tying local and regional extremist organizations to high-level Al Qaeda leadership.

This Comment argues that current legal strategies will prove counterproductive if they aggregate terrorist threats. The prosecution of terrorist suspects based on the material support statute and the legal basis for the use of military force against groups "associated" with Al Qaeda are two such aggregating strategies. Instead, this Comment recommends adopting disaggregation as a framework for the U.S. legal strategy against the Al Qaeda global insurgency. A disaggregated strategy could take many forms, but this Comment recommends that the U.S. government (1) seek to detain suspected terrorists in the country where they are captured rather than in centralized facilities; (2) decouple criminal terrorism prosecutions from the State Department's Foreign Terrorist Organization list; and (3) adopt a new "use of force" statute to supplement the 2001 Authorization for Use of Military Force (AUMF). (1)

1. DISAGGREGATED TERRORIST NETWORKS AND COUNTERINSURGENCY STRATEGY

   Al Qaeda's operational model for the September 11th attacks--train a cadre of operatives, send them to infiltrate a Western country, and then direct them to carry out a large-scale attack--has been replaced by a decentralized "global insurgency" model. (2) This global insurgency seeks out insurgents with grievances against their local government and attempts to aggregate them into a larger ideological campaign against the United States and its Western allies. (3) Technological developments of the postmodern world--the low costs of acquiring weapons and explosives, the ability of isolated aggrieved individuals to organize via the Internet, and low organizational barriers to entry--have enabled these small local actors to create outsized threats against hierarchically organized states. (4) The "small niche providers of violence" sometimes compete with each other, but "at the same time they are willing to work together to fight the United States by building a market that advances the fortunes of all." (5) Al Qaeda therefore seeks to find and exploit local grievances to integrate local groups into its broader Islamist ideology at minimal cost. (6)

   In order to fight this new globalized insurgency, many counterterrorism experts have suggested that the United States and its allies pursue a strategy of "disaggregation." (7) If Al Qaeda's strategy succeeds by aggregating local insurgents into a global movement, the United States should attempt to break down the ties between local guerillas and global players like Al Qaeda. Disaggregation results in "a series of disparate local conflicts that can be addressed at the regional or national level without interference from global enemies." (8) The concept of a "Global War on Terror" may have been useful after the September 11th attacks, but as a counterinsurgency strategy today, it is ineffective. Lumping together groups that practice terrorism is not only unhelpful, but actively plays into the hands of Al Qaeda as it attempts to unify local groups under a global insurgency campaign. Disaggregation, on the other hand, requires America to "separate [adversaries] from each other, turn them where possible against each other, and deal with those who need to be dealt with in sequence rather than simultaneously." (9) Disaggregation was a key element of the successful U.S. "surge" in Iraq in 2006-2007 (10) and has become an increasingly important part of U.S. counterterrorism policy. (11)

2. CURRENT LEGAL TACTICS CREATING AGGREGATION

   A successful counterinsurgency strategy against Al Qaeda must also encompass legal tactics. A number of factors--the desire of prosecutors to charge as many terrorism suspects as possible, the political popularity of aggressive military targeting, and the need to classify the fight against Al Qaeda as a non-international armed conflict (12) among them--drive American counterterrorism legal tactics toward aggregation. In this respect, the government's legal tactics may work at cross-purposes with larger U.S. counterterrorism strategy.

   1. Aggregation in Terrorism Prosecutions

      The prosecution of terrorism suspects in civilian courts is predicated on tying individual suspects into a larger Al Qaeda network. For instance, federal prosecutors have filed criminal charges against Hakimullah Mehsud, one of the leaders of the Pakistani Taliban, (13) and against low-ranking members of the Somali militant group Al Shabaab based on their connections to Al Qaeda. (14) In charging Mehsud, Al Shabaab, and even domestic terrorist groups based on their ties to Al Qaeda, prosecutors may have inadvertently played into Al Qaeda's hands by explicitly aggregating these local groups' grievances with the larger global insurgency. On the other hand, prosecutions like the recent indictment of Ahmed Abdulkadir Warsame, a member of Al Shabaab who served as a liaison between the Somali group and Al Qaeda of the Arabian Peninsula, help disrupt the ties between local and global organizations. (15)

      In part, criminal prosecutors' reliance on connecting individual suspects with membership in a larger terrorist organization is based on their experience combating organized crime. Among its many provisions, the USA PATRIOT Act of 2001 amended the Racketeering Influenced and Corrupt Organizations (RICO) Act of 1970 to include terrorism in its definition of "racketeering activity." (16) Under RICO, an individual can be convicted for mere membership in an organization that commits two or more predicate criminal acts, which, in addition to terrorism, include money laundering, illegal firearms possession, and other crimes. The RICO Act makes the prosecution of suspected terrorists significantly easier by creating culpability for low-level individuals, but it also forces the government to connect local insurgents with the global Al Qaeda organization, subtly aggregating the two.

      Furthermore, the RICO model of prosecution may not be as effective against "open source jihad" terrorists as it is against organized crime. Traditionally, prosecutors indict low-level members of criminal organizations not because foot soldiers are important--on the contrary, they generally have few specialized skills and are easy to replace--but because they can turn state's evidence against the organization's higher-ups. (17) RICO prosecution, however, assumes a hierarchical organization in which underlings receive orders from their superiors. But Al Qaeda now relies on decentralized networks of operatives who may not be aware of each other or the organization's leadership (18) and are thus not capable of aiding future prosecutions.

      The material support to terrorism statute, which criminalizes knowingly providing material support or resources to any organization designated as a "terrorist organization," (19) has been federal prosecutors' other chief tool against terrorism suspects since 2001. (20) Providing material support to terrorists has been prohibited since 1994, (21) but prosecutors have increasingly turned to the material support statute since the September 11th attacks, (22) and in 2001 and 2004, Congress made the statute extraterritorial in reach. (23) Furthermore, since material support is itself a substantive crime, individuals can also be charged with conspiracy to provide material support, extending criminal liability to virtually any member of a foreign terrorist organization. (24)

      In June 2010, the Supreme Court rejected a legal challenge to the statute in...