Fight Terrorism with a Time-Proven Approach

By Vice Admiral Colin J. Kilrain, U.S. Navy

Foreign Criminal Laws: The Disconnect

The primary legal tool used by the United States to arrest, prosecute, and convict prospective FTFs and facilitators is 18 U.S.C. § 2339 (as amended). This law prohibits “providing material support or resources” to an organization the Secretary of State has designated as a “foreign terrorist organization.” Though uncommonly effective from a global perspective, U.S. counterterrorism laws are challenging for even the best-resourced and well-trained law enforcement organizations in the world to enforce. Despite possessing statutes with expansive jurisdiction (e.g., those that may be applied to a broad range of crimes committed outside the territory of the United States), it is common for U.S. prosecutors to seek convictions based on “generic” criminal offenses versus counterterrorism-specific statutes.

A cursory glance at foreign legal systems reveals something that most Americans might find surprising: Foreign criminal laws generally do not apply to offenses committed outside the borders of that particular country. To put a finer point on it: In most countries it is not a crime to fight alongside ISIS in Iraq or Syria. On the contrary, in some Western European countries, it is unlawful for authorities to delay the travel of a would-be jihadist to Iraq or Syria. Germany, for example, is only now working to pass a law allowing authorities to confiscate the travel documents of suspected terrorists. 1

Four main factors limit the effectiveness of many foreign counterterrorism laws. First, many countries do not have them. Second, those that do often cannot apply them to their citizens who commit crimes outside their borders. Third, many countries resist describing or framing the situation in counterterrorism terms because of possible negative effects on tourism and/or international perception. Finally, many countries lack the capacity to investigate and prosecute even simple, generic criminal offenses, or to effectively incarcerate those found guilty.

Shared Intelligence Underused

The U.S. intelligence community, including the Department of Defense, tirelessly collects information on FTFs traveling to join or otherwise support terrorist groups. This intelligence is sometimes shared with other countries to enable action against FTFs or terrorist networks. Defense intelligence organizations traditionally frame their collection in terms of combat operations, but intelligence could be of equal value in noncombat operations if it could be disclosed to partner-nation governments to be used as evidence. One of the most concrete and lasting effects of intelligence collected outside a conflict area such as Iraq or Syria might be a successful criminal prosecution in a domestic or foreign court.

It is important to underscore that information collected by the Department of Defense will not be directly shared with a particular country for the purposes of facilitating a criminal prosecution. In most (if not all) cases, the information collected by the DOD will be disseminated to its interagency partners; they will determine through existing processes and procedures whether, when, with whom, and for what desired purpose this information will be shared. It is recognized that in few to no cases will DOD personnel serve as the conduit of this information to foreign officials for this purpose.

Presently, however, the hard-won intelligence we share with most countries is rarely used to enable criminal prosecutions, with the principal objective being arrest, prosecution, conviction, sentencing, and lengthy detention under secure conditions. Analysis of this disconnect reveals three common denominators:

• U.S intelligence agencies collect intelligence predicated on U.S. law, evidence rules, and procedure—which often differ significantly from other countries.

• The intelligence the United States shares with foreign countries often is not informed by an assessment of a foreign country’s political will to prosecute counterterrorism offenses.

• The intelligence we share with foreign countries often is not informed by their capability to investigate and prosecute complex offenses. 2

The information we choose to collect and ultimately share with a particular country should reflect, to the maximum extent possible, the types of criminal offenses a particular country already is accustomed to investigating and prosecuting. 3 In many countries, these offenses likely include simple, “generic” criminal offenses such as the possession of forged documents or basic immigration violations. We cannot expect follow-through on a terror-threat finance case when a particular country has difficulty investigating and prosecuting simple criminal cases.

A Workable Paradigm

Although foreign nations may not criminalize the acts of FTFs or possess the legal framework to prosecute them, this should not deter the United States from action. Instead, the U.S. intelligence and counterterrorism communities should examine other methods available to stop the threat. A deliberative process is needed by which U.S. agencies can identify derivative crimes and contribute to their successful prosecution by partner nations. The following paragraphs detail critical components that should be included in such a process.

Define the behavior. Identify core criminal activities that are against the law in common FTF source and transit states (e.g., immigration violations; the possession of forged documents; money laundering and tax evasion; import/export violations; possession of and trafficking in weapons and explosives, including precursors; bribery; pornography possession, etc.). These crime categories should be refined by the embassy country team for factors that might be unique to that specific country (e.g., if a particular facilitation network generates revenue through the sale of illegal drugs or prostitution).

Study the law. Identify how intelligence collected by U.S. agencies could contribute to criminal prosecution within the laws, evidence rules and requirements, and relevant procedures in FTF source and transit states as it applies to these behaviors. Information requirements and procedures for certain administrative processes should not be ignored. Passport revocation and asset forfeiture may yield desired effects in certain situations. Although the Department of Defense has not yet dedicated sufficient resources to conduct studies of this magnitude, successful partnerships between the government and academia already have demonstrated an effective solution. This effort should be expanded.

Map foreign criminal justice motivations and capacity. Particular attention must be paid to the political will required to prosecute particular offenses on a country-specific basis. We also must determine whether the country in question possesses the capacity and capability to investigate and prosecute FTFs for those offenses. The intersection between political will and capacity can be visually depicted with a simple graph. Although such an assessment is highly qualitative, it is most helpful in identifying outliers (e.g., countries in the bottom left or top right). This tool will highlight those countries where opportunity for cooperation exists, whether they are long-term diplomatic efforts or capacity-building missions from groups such as the Office of Overseas Prosecutorial Development, Assistance and Training, and the International Criminal Investigative Training Assistance Program.

Use this knowledge to shape intelligence-collection requirements. A prospective FTF and his or her facilitation network likely will violate several laws during recruitment, indoctrination, training, and ultimate travel. If a counterterrorism-focused agency is tracking this process, it likely will become aware of some of these violations. With the appropriate knowledge of foreign laws, prosecutorial capability, and political will, that agency can then develop country-specific collection requirements against the particular offense that most likely will lead to incarceration of the FTF and his facilitators.

Prepare tailored intelligence packages for the interagency. Individual agencies collect intelligence relevant and tailored to their particular mission sets. If a military intelligence agency identifies a FTF network in a friendly nation, however, the most acceptable way to counter that network likely will be through a law enforcement activity (versus a kinetic strike). A targeting package detailing the likely effects of a precision-guided munition strike would be of little use to the FBI. Intelligence developed intentionally for an interagency partner or foreign nation to act against must contain information that is tailored to that partner’s capabilities to affect a target.

Develop key relationships. This whole-of-government approach requires close interagency cooperation with multiple elements of a partner-nation government. The United States must identify those key authorities as they relate to the investigation, prosecution, and detention of the identified offenders. Relationships must be built and maintained with foreign partners throughout their counterterrorism and criminal justice systems. Only through these relationships will the United States be able to share information that may be of use to a foreign judicial or administrative process.

The ultimate objective of this effort, from a DOD perspective, is to provide our interagency partners with information of the greatest possible utility. Their choice to share it with a foreign nation for the purpose of facilitating a particular effect will be entirely dependent on its relevance to a criminal prosecution (or administrative proceeding) in the nation where it takes place and in the context of due process and other laws of that nation. This can hardly be accomplished without the intelligence-collection and target-development process first considering prospective legal effects, fueled with an understanding of foreign criminal laws, evidence rules, and procedures.

The application of this information is best illustrated with a hypothetical fact pattern:

Through a foreign intelligence service liaison, you learn that a terrorist facilitator was arrested in Country X under its counterterrorism law. Past experience indicates this person likely will be released within a few weeks for lack of sufficient evidence to charge and convict him under the statute.

Further inquiries are made. The subject is described as a terrorist facilitator (e.g., he is believed to have procured official documents for other members of his network, so they can travel from Country X, through Country Y, to Country Z).

He is further believed to have procured and distributed weapons for the training of fellow network members and new recruits on a remote, government-controlled, restricted-access island in Country X.

The suspect also actively recruits new members on the Internet and disseminates terrorist propaganda through social media (Facebook, Twitter, and various online forums)—though there is some indication he spends most of his time online viewing and saving pornographic images and movies to his personal laptop.

Finally, there is some indication that he procured explosive precursor materials and blasting caps, with the intention of personally conducting a future suicide attack in Country Z.

The legal attaché confirms through a foreign-liaison relationship that the terrorist still possesses a valid passport and an airline ticket for travel from Country X to Country Y—which he would have used had he not been arrested.

This fact pattern presents numerous opportunities for the development of prospective effects that may be brought to bear, directly or indirectly, on this suspect. Each of them, discussed above, would be better informed with a country-specific understanding of the respective foreign criminal laws and systems.

Procurement and possession of forged documents. What information, if passed to Country X, would be required to sustain an arrest and successful conviction for this offense (i.e., the unlawful possession of forged documents and possibly bribery or extortion of a public official)? Can we realistically tailor our collection requirements to seek this information? If so, can we release it to Country X? Would Country X be willing to act if we shared this information? If it would not, could the information “get traction” if shared with Country Y (when those persons, presumably traveling on false documents, transit through that country)?

Unlawful possession and distribution of weapons and trespassing. Even countries with the most nascent criminal justice systems (and those that lack political will to prosecute under counterterrorism-specific statutes) presumably possess both the capacity and will to prosecute simple offenses such as these. Even then, are there unique evidentiary standards in Country X that might inform the type of information we seek to collect and ultimately share for the purpose of facilitating a prosecution for these offenses?

Online activities. Assuming that it is lawful in Country X for the suspect to disseminate terrorist propaganda online, would prosecutors be interested in prosecuting him for the possession of pornographic materials? Is this a minor or major offense in that country? Might this offense be punished more harshly in Country Y? If so, perhaps this information could be withheld—with an eye toward sharing it with Country Y if/when he travels there.

Logistical preparation for a suicide attack in Country Z. Planning to conduct a suicide attack in Country Z might not be punishable under the laws of Country X, but the unlawful possession of explosive precursors and blasting caps might be. If so, what information is required to sustain a conviction for these offenses? Can we adjust our collection requirements with the realistic expectation of gathering this information?

Preventing travel post-release. Past experience indicates the suspect likely will be released soon. For whatever reason, Country X has not revoked his passport. He is a $100 ticket-change fee away from departing the country and carrying out his plan. What information is required for Country X to revoke his passport? Do we already possess this information? Is it readily obtainable? Who within this government has the authority to make this decision? Has someone within the agencies already established a relationship with this person? Are there other tools that might be used to freeze his assets or otherwise frustrate his ability to travel?

There are multiple benefits with this “legal approach.” Our nation’s 14-plus years of sustained armed conflict have underscored the value of a “capture end state.” This approach allows for not only a significant potential intelligence reward—from exploitation of follow-on testimony—but also the very important “second order” effects of host-nation capture and incarceration, namely the legitimization and reinforcement of host-nation legal structure and institutions. Central to this approach is the fact that FTFs are not one-dimensional miscreants; they are bad in multiple ways. Identifying, and then mobilizing, the aspects of a host-nation legal system that are most likely to lead to a conviction may require placing less focus on a more egregious terrorist offense but still can ultimately lead to justice being served.

The use of Hellfire missiles (and other kinetic options), in the counterterrorism fight has caused much ink to be spilt on both sides of the policy debate. These remain, however, but one of the tools at our disposal to address the threat. The judge’s gavel can prove an equally effective implement—and one with positive and enduring second- and third-order effects. Eliot Ness’s creative, holistic approach to incarcerating Al Capone would be no less effective today; U.S. whole-of-government counterterrorism efforts, by, with, and through willing foreign partners, should explore the rich possibilities of a “legal approach.”



1. Daniel Tost, “Germany Discusses New Law to Crack down on Foreign Fighters,” EurActiv, 23 January 2015, www.euractiv.com/section/justice-home-affairs/news/germany-discusses-new... .

2. Ibid.

3. Ibid.


Vice Admiral Kilrain is a career Naval Special Warfare (SEAL) Officer with multiple Joint Special Operations duty assignments. His staff assignments include duty as Operations Officer for the State Department’s Office of Counterterrorism; Executive Office of the President, where he served the National Security Council as Director of Strategy and Policy for the Office of Combating Terrorism; and Assistant Commanding General, Joint Special Operations Command. His command tours include Special Operations Command, Pacific, Naval Special Warfare Unit Four, SEAL Team Four, and Naval Special Warfare Group Two. He is now Commander, North Atlantic Treaty Organization Special Operations Headquarters.

 

AUTHOR’S NOTE: Captain Roger Ullman, U.S. Navy; Commander Brent K. Faulkner, Judge Advocate General’s Corps, U.S. Navy; Lieutenant Colonel Matthew T. Laurentz, U.S. Air Force; and Lieutenant Colonel Steve D. Berlin, U.S. Army, contributed to this article.
 

 
 

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