Fighting Terrorism Read online

  A good example of the absurdity of shielding terrorist incitement is provided by the case of Sheikh Omar Abdel Rahman, the blind Egyptian cleric whose Gamaa Islamiya terror network has been charged with the World Trade Center bombing and with planning attacks on targets such as the Lincoln Tunnel. Rahman was allowed into the United States in 1990 from Sudan, after a history of perfidy in his native land, which included serving time for recruiting members for the Islamic terrorist faction that had assassinated President Anwar Sadat. His fatwahs in Egypt and the United States are among the bloodiest ever issued, calling for the death of Sadat’s successor, Hosni Mubarak, and the overthrow of the Egyptian regime, and ruling in favor of the murder of foreign tourists traveling in Egypt. Yet none of this was sufficient to justify the scrutiny of the American authorities, because Rahman’s freedom of action in the United States was protected by the right to immigrate into the country and, once there, the right to practice his brand of freedom of speech and religion, which called for outright murder. It was only after Rahman’s minions had already killed five and had injured hundreds in the Twin Towers in Manhattan that some of those rights were curbed. It is clear that a fresh look is needed at the way the United States presently chooses which liberties are worthy of protection.

  The ideal of an absolute civil liberty—whether a “leftist” liberty such as absolute free speech or a “rightist” liberty such as the absolute right to bear arms—should be tempered by political realities, and the attempt to apply it in its pristine form has grave consequences. When a society tries to grant such pockets of unlimited freedom, it provides the proverbial 99 percent of normal citizens with supposed “rights” that they neither want nor need—the “right” to call for the murder of what they deem an obnoxious author, or the “right” to own a grenade launcher. But there are always those in the other 1 percent who, if granted such freedoms, are capable of coming up with ways to abuse them. In fact, it is just such supposed rights that are needed to transform a handful of odious but essentially impotent lunatics at the edges of society into a seething menace capable of turning that society into a shambles. Advocates of absolute civil liberties forget that legally protected freedoms are not ends in and of themselves; they are means to ensuring the health and well-being of the citizens. The United States Constitution, said Justice Robert Jackson, is not a suicide pact. And when a protected “right” in practice results in the encouragement and breeding of terrorist monstrosities ready to devour other members of society, then it is clear that such a right has ceased to serve its true end and must be either revised or reduced.

  At the Jonathan Institute’s 1979 conference, Professor Joseph W. Bishop of Yale University inquired into the question of whether the United States Constitution could be made to square with firm anti-terror measures such as had been adopted in Britain, Germany, and other European democracies. After all, the Fifth Amendment of the U.S. Constitution appears to prohibit convictions on the basis of self-incriminating testimony—which is just the kind that security services are practiced in obtaining in interrogation; it similarly prohibits depriving a citizen of his liberties without “due process of law”—which is exactly what an arrest without a warrant is; the Sixth Amendment guarantees the right to a trial by jury—and yet the British found trials by a lone judge to be a crucial step in obtaining convictions, because the Ulster citizenry had become so intimidated by terrorists.

  Yet Bishop’s conclusion was that even under the rigid civil liberties orientation of the American Bill of Rights, the courts had consistently upheld the authority of the executive branch to curtail civil freedoms where there was compelling evidence of a threat to the security of the United States if these unlimited liberties remained in force. Thus Bishop notes that the Supreme Court, which is responsible for ensuring that the government of the United States conforms to the standards set out in the Constitution, stood aloof as Abraham Lincoln dramatically curtailed civil liberties during the Civil War. Lincoln suspended the writ of habeas corpus, had civilians in the South tried by military tribunals without the use of either a jury or the normal rules of evidence, and made use of wholesale internment of individuals suspected of supporting the Confederacy—and yet the Supreme Court was silent. The Court also refrained from commenting on the so-called Ku Klux Klan Act of 1871, which gave the President virtually unlimited power to suppress the activities of the Klan “by using the militia or the armed forces, or both, or by any other means, to take such measures as he considers necessary to suppress … any insurrection, domestic violence … or conspiracy” which—like terrorism—prevents citizens from enjoying their legal rights. During World War II, the Supreme Court upheld the military trial of American civilians suspected of engaging in activities on behalf of the Nazis and even the dreadful mass internment of Japanese-Americans for the duration of the war.4

  As these examples strongly suggest, the American judicial system is ready and able to distinguish normal, peaceful circumstances from those in which the security of American citizens is being threatened by organized violence from without or within. This willingness to take responsibility and make hard decisions in the service of democracy is the hallmark of a mature political culture, such as the American Founding Fathers hoped would evolve in the United States. As James Madison wrote to Thomas Jefferson with regard to the balance between the powers of the state and the rights of the citizen: “It is a melancholy reflection that liberty should be equally exposed to danger whether the government have too much or too little power.”5 However, when it came to matters that endangered the security of the nation, Madison and Alexander Hamilton were unequivocal that the authority of the executive to ensure the security of the nation must take precedence over all other concerns. As they wrote in The Federalist:

  [The powers to ensure security] ought to exist without limitation, because it is impossible to foresee or to define the extent and variety of national exigencies, and the correspondent extent and variety of the means which may be necessary to satisty them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can be wisely imposed on the power to which the care of it is committed.

  … As I know nothing to exempt this portion of the globe from the common calamities that have befallen other parts of it, I acknowledge my aversion to every project that is calculated to disarm the government of a single weapon, which in any possible contingency might be usefully employed for the general defense and security [emphasis mine].

  As the constitutional scholar Walter Berns pointed out at the Jonathan Institute’s 1984 conference, even a great defender of democracy like Abraham Lincoln was forced to assume extraordinary powers when the security of the American nation was in jeopardy. Among his other encroachments on civil liberties which he deemed to be endangering the United States, he authorized the execution by firing squad of those who used their freedom of speech to demoralize the Union armies and incite criminal defections. His justification was that in impinging on the rights of the agitator, he protected the rights of the rest of society: “Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert? … I think that, in such a case, to silence the agitator and save the boy is not only constitutional, but a great mercy.” What distinguishes Lincoln’s case from our case today, in which the idea of curtailing freedom of speech in order to protect the United States is so difficult for many to accept? According to Berns, the answer is that Lincoln truly believed that the survival of the society he deeply cherished was in jeopardy. Lincoln called America “the last best hope of earth”—and meant it. And valuing the unique society that had been built there, he could not find the rationale to grant those who did not value it the freedoms that would enable them to destroy it.6

  The terrorism of today has obviously in no way reached the dimensions of the Civil War in jeopardizing the United States. Nor can we disregard the natural development of the concept of civil liberties
over the intervening century. But the unchecked growth of terrorism is a grave danger in and of itself. Rampant terrorism is a mortal threat to any society. Of course, the need to cut back on the absolute freedom of the terrorist, a freedom which ultimately undermines democracy, does not by any means mean that law enforcement agencies should be granted absolute freedom either. As always in forging a legal system, the key is in striking a judicious compromise.

  In the European democracies, two methods have been developed for ensuring that the executive branch’s efforts against terrorism remain within the bounds of the legitimate effort to save lives. The British model, which dates back to 1973 and the beginning of intensified terrorism by the new Irish Republican Army (IRA), controls the activities of the security services by requiring that they annually receive a new legislative mandate from Parliament. Thus, the burden of proof lies with law enforcement officials to demonstrate that their special powers are justified and under control; failure to do so means the automatic expiration of their license to act. On the Continent, on the other hand, the responsibility for keeping an eye on the activities of the security services is usually concentrated in the hands of the judicial system, which reviews anti-terror actions to make sure that they can be justified out of legitimate concerns for public safety, generally within a specified number of days. Requiring periodic renewal of a legislative mandate and judicial review within a prescribed period permits the public, through its elected representatives and judges, to monitor the activities of its monitors.

  But perhaps the most important factor in regulating the conduct of counter-terrorism by democratic governments is the independent investigative powers of the free press—and the right of the citizens to turn their government out of power if they feel it has gone too far. Presumably a public recognizing that the govenment had begun to slide down the road to oppression through reckless violations of civil rights would in short order find somebody more respectful of its interests. Yet the history of European counter-terrorism reveals no such public reaction, and for good reason. In Britain, Germany, Italy, and France, such active measures have had next to no adverse effects on the civil liberties of the overwhelming majority of citizens, a fact which is emphasized by the lack of any democratic backlash worth mentioning. These countries remain perfectly and fully democratic in every way—but their citizens feel more secure as a result of responsible government efforts to ensure that those inciting and preparing for political violence are kept at bay.

  Both experience and common sense suggest, then, that the fascist and Marxist theory that democracies are weak and incapable of defending themselves against the superior ideological motivation of their terrorist opponents is groundless. Indeed, the exact reverse is true: The Western democracies are inherently very strong, precisely due to the nearly universal ideological ties which, beneath the cacophony of democratic politics, quietly unite their peoples. It is the terrorists who are in fact weak, resorting to bombs only because they can get no one to listen to them in any other fashion. It only remains to a democratic society to decide that it is willing to use the tools at its disposal to eliminate the scourge of domestic terror, and this end can be achieved with astonishing speed.

  It is natural that a society of free citizens should shrink before a path which inevitably involves limiting the very liberties which the society is committed to protect. For granting extensive security powers to law enforcement officials in a vast nation is impossible without encountering a certain number of abuses as well. And while such abuses may be relatively unimportant during wartime or when the terror threat appears to be entirely out of control, it is also natural that when the authorities get the upper hand and the threat recedes somewhat, the relative importance of every abuse will grow again, raising the demand for more careful oversight of the security services. Thus it seems that the democracies are destined to wander to and fro between the poles of too much liberty and too extensive a security effort, walking the fine line between security and freedom. But so long as the tension between these two poles is maintained, without one extreme becoming the permanent fixation of the society and its ruin, the democracies can hope to have the best of both, remaining at once free and secure.

  The prospect of constantly being jostled by the swings of this pendulum is not all that pleasant, but it is not that bad either. And as America stands before the crucial decision to embark on a path that many other mature democracies have had to take, it must bear in mind Spinoza’s great injunction. No thinker was more important in laying the philosophical foundations of the modern democratic state, yet in his Theological-Political Treatise, Spinoza was careful to define clear limits to personal freedoms, including the pivotal one of freedom of speech, without which the meaning of democracy is vitiated. “We cannot deny that [the] authority [of the state] may be as much injured by words as by actions; hence … [the] unlimited concession [of free speech] would be most baneful …” Those kinds of speech which should not be permitted are “those which by their very nature nullify the [social] compact …”7

  We need not adopt Spinoza’s particular prescription regarding which kinds of speech are to be regulated in order to preserve democracy. But we should recognize the larger principle that he is articulating: that civil liberties should sometimes be limited not only at the point when physical violence is actually being perpetrated against others but also when such action is being incited, planned, and organized. That is, democracies have a right and a duty to protect themselves in advance against those who would set out to destroy their societies and extinguish their freedoms.

  III

  The 1980s: Successes Against International Terrorism

  The Western democracies are capable of eliminating the domestic terror in their midst only if they decide to make use of the operational tools presently at their disposal. But such optimism would be misplaced with regard to international terrorism, a much hardier and more implacable nemesis. What road should the United States and other democracies pursue if they are to overcome not only the domestic terror of Oklahoma City but the potentially much more insidious international terror which produced the World Trade Center bombing, and which may very well produce other such tragedies before it has been defeated? To answer this question, we must first understand the nature and genesis of international terrorism and the process by which it has assumed its present form.

  International terrorism is the use of terrorist violence against a given nation by another state, which uses the terrorists to fight a proxy war as an alternative to conventional war. Sometimes the terror is imported at the initiative of a foreign movement which nevertheless enjoys the support of a sovereign state, at the very least in the form of a benign passivity which encourages the growth of such groups on its own soil. The reason that international terrorism is so persistent and so difficult to uproot is that the support of a modern state can provide the international terrorist with everything that the domestic terrorist usually lacks in the way of cultural and logistical assistance. An alien, non-democratic society may be able to provide the depth of support for terrorist ideas to spawn a genuine terrorist army; it can offer professional training and equipment for covert operations, as well as diplomatic cover and other crucial logistical aid; it can make available virtually unlimited funds; and most important of all, it can ensure a safe haven to which the terrorists may escape and from which they can then emerge anew. Thus, with the support of a terrorist state, the terrorist is no longer a lonely and hunted fugitive from society. He becomes part of a different social milieu, which encourages him, nurtures him, protects him, and sees to it that he succeeds. The absurdly lopsided contest between the Western security services and the terrorist is under these circumstances no longer lopsided. It now pits the formidable resources of the West against the nearly comparable resources of a foreign state or network of states—and in this contest it is by no means immediately clear who will emerge the victor.

  As late as 1979, when my colleagues and I had organized
one of the first conferences on international terrorism, there were still many who did not recognize that there was such a thing as international terror. The wild growth of terrorism against the United States and virtually every one of its allies over the preceding two decades was often understood to be the result of a proliferation of technology, which had suddenly permitted “frustrated” individuals to become much more effective in expressing domestic social outrage that had always been there. At the time, many of the journalists attending the conference, and even some of the participants, believed that the support of states for terrorism was an incidental phenomenon, and that its essence lay in the domestic causes that “spontaneously” generated the violence.