National Security

The Appeal of the Courts

Actually, we've already figured out how to win the legal war on terrorism.

In his second inaugural address, President Barack Obama alluded to the end of the nation's post-9/11 wars, describing his vision of a world where "enduring security and lasting peace do not require perpetual war." Listening to the debate last week on whether Congress should expand its previous guidelines for using military force to combat terrorism, it was easy to wonder whether that vision would ever become a reality. 

Yet the path to a postwar approach to terrorism has been well on display these past few weeks in Manhattan, exemplified in the foreign capture and federal criminal prosecutions of Sulayman Abu Ghaith, Osama bin Laden's son-in-law, and Ibrahim Suleiman Adnan Adam Harun, an al Qaeda operative captured in Italy and extradited to the United States last year. Abu Ghaith pleaded not guilty; court filings suggest Harun is cooperating with investigators and may soon plead guilty.

Each of these cases could have gone a different route: U.S. special operations forces could have targeted each man, relying on the same statutory authority to use military force that has animated U.S. military counterterrorism operations since just after 9/11.  Had either been in Afghanistan or Pakistan, that might have been what happened. But after 12 years of war, we have learned that we can neither kill our way to victory, nor rely on military force alone. The nearly 500 criminal cases related to international terrorism since 9/11 -- including 67 cases involving defendants captured overseas, according to the Department of Justice -- demonstrate the viability of a postwar paradigm for counterterrorism. This model uses military force when necessary and appropriate, but relies more heavily on diplomacy, intelligence, and, yes, law enforcement. 

Abu Ghaith, for example, had reportedly been under the watchful eye of the U.S. intelligence community for years. After he slipped across the border from Iran into Turkey, Turkish authorities arrested him in Ankara and interrogated him there with the help of the U.S. interagency "High-Value Detainee Interrogation Group," comprising experts from the FBI, CIA, Department of Defense, and other agencies, supported by analysts who have been tracking the bin Laden family for more than a decade. Turkey declined to move Abu Ghaith directly to the United States over concerns he could face the death penalty. Instead, Washington brokered a deal whereby the Turks would send Abu Ghaith back to his native Kuwait by way of Jordan, a country with whose intelligence service the CIA has an extraordinarily close relationship. Abu Ghaith thus landed in Jordan to be met by FBI agents, who arrested him and flew him back to the Southern District of New York, so jurisdiction would fall to the court located just a few blocks from Ground Zero.

This model -- surveillance abroad by military and intelligence agencies, strong allied cooperation, coupled with U.S. prosecution and incarceration -- has now been used successfully in a range of cases. In 2011, U.S. military forces captured suspected terrorist Ahmed Warsame off the coast of Yemen, and later transferred him from Pentagon to Justice Department control. Warsame pled guilty to multiple federal terrorism charges, a number of which carry a minimum sentence of 30 years. According to news reports and government filings, Warsame's cooperation has produced a great deal of valuable intelligence and evidence, including information that induced another defendant, Mohamed Ibrahim Ahmed, to plead guilty this past summer to crimes carrying a minimum sentence of 30 years in federal prison.

Similarly, in August 2012, local authorities apprehended three European men with alleged ties to the Somali terror group al-Shabab as they were making their way to Yemen. The FBI took custody of the men in November 2012, and on December 21 federal prosecutors hauled the trio into a Brooklyn court to face a multi-court terrorism indictment. The initial hearing took place in a sealed courtroom, following the federal courts' well-established rules for handling classified information and evidence.

The Justice Department in fact has a far better record than the Defense Department in prosecuting and convicting terrorist suspects. The federal Bureau of Prisons houses more than 350 international terrorists at three special prisons in Florence, Colorado, Terre Haute, Indiana, and Marion, Illinois. Most of these terrorists are serving long sentences for their crimes, thanks to stiff sentencing guidelines in the federal criminal system for terrorism. In these facilities, they may be subject to security, restrictions, and monitoring protocols that equal or surpass the conditions for detainees at Guantánamo  Bay. The endgame for these men is clear: With the legitimacy of their convictions and sentences beyond question, they now serve out their sentences in obscurity, without the ability to threaten our safety or to challenge U.S. policy from the public platform provided by still- novel military trials or legally uncertain detention. 

This blended, postwar approach works precisely because the military plays a supporting, not a leading, role. A number of foreign intelligence and law enforcement agencies are far more likely to cooperate with their American intelligence and law enforcement counterparts than they are with the U.S. military. This was true in the Abu Ghaith case for Turkey and Jordan, two key allies in the counterterrorism effort against al Qaeda, both of which cooperated with U.S. intelligence and law enforcement agencies. The same was true in the Harun case, in which Italian authorities gave the suspect to the United States upon assurances he would be prosecuted in civilian court -- and not transferred to Guantánamo Bay or charged before a military commission.

The strategic case for a less military-centric postwar approach is clear. Capturing individual terrorists and treating them all like warfighters (such as by detaining them under the laws of armed conflict) empowers them, feeds their propaganda efforts, and enables them to attract funds and recruits in their efforts against us. Worse, lumping together otherwise scarcely connected terror groups under the banner of al Qaeda "associates" -- or "associates of associates" -- can foster alliances where they might not otherwise exist, and inhibit the development of more individualized counterterrorism strategies aimed at isolating, disrupting, and dismantling specific terror groups.

Critically, the postwar approach does not compromise the acquisition of human intelligence. The Abu Ghaith case shows the tremendous power of the Justice Department to leverage its remarkable track record of convictions, and all of the tools at its disposal in the federal criminal system, to produce reliable intelligence. Relaying an interview with one of the prosecutors, New York Times reporter William Rashbaum told the NewsHour that Abu Ghaith "had talked extensively after he was arrested," both before and after he had a lawyer. Prosecutors gathered so much intelligence from Abu Ghaith that their summary of the information he shared before his indictment was 22 pages long. With each successful prosecution comes a new trove of information and intelligence, creating a virtuous cycle of counterterrorism.

Let's be clear: This is not a call for a law-enforcement-only approach. It is not a rejection of military force (including the power to detain) when a public case can be made that force is necessary to U.S. national security and in keeping with our obligations under domestic and international law. America's targeting capability, our special operations teams, and our ability to deploy force globally may at times play a critical role. Rather, this is a call for the adoption of a blended, postwar approach that rebalances the use of military tools with others in our national kit in the interest of a counterterrorism strategy that is more effective and efficient. It is an argument, based on the evidence of the past 12 years, that successful counterterrorism need not require permanent war.

The debate about the role of military force in counterterrorism has crystallized recently with arguments for (and here in Foreign Policy, against) a revised, updated, and expanded Authorization for Use of Military Force, the law passed just days after 9/11 that provides the core legal basis for current U.S. counterterrorism operations. The case for a new AUMF builds from the premise that, while our foes may be changing, our need for military force to fight them is no different now than it was in the fall of 2001.

That is a flawed premise. As with the end of World War II or the end of the Cold War, we are at a historic inflection point. The war in Iraq is over, the war in Afghanistan is ending, and the United States and its allies have disrupted, dismantled, and degraded al Qaeda and many of its confederates. We now have a wealth of tools and capabilities to fight terrorism -- tools that did not exist in 2001. The time has come for the United States to transition from its current war footing to a long-term, sustainable counterterrorism strategy. The Abu Ghaith, Harun, and Warsame cases, and the many like them, show we are ready.

DON EMMERT/AFP/Getty Images

Democracy Lab

Beggaring Thy Neighbors

Poorer countries no longer have rich ones to blame for inequalities in trade. Now they're the ones pulling the strings.

The miseries inflicted by colonial powers on Africa, Asia, and Latin America are undeniable to economic historians. Borders were drawn that made no economic or ethnic sense; little was invested in the human capital or the institutional structure needed for growth and stability. And while the sun set on the western colonial empires more than a half century ago, the leaders of what are today called developing countries all have reason to appreciate William Faulkner's line: "The past is never dead. It's not even past." 

One living legacy is a crazy quilt of trade preferences and protection buttressed by a mix of geopolitics, nostalgia, and rich-country interest group protectionism -- distortions that undermine growth in export-oriented agriculture and make it tough for women in some of the poorest countries in the world to sew their way out of poverty. Indeed, most developing country leaders view rich-country protectionism as the cause of the deadlock in the World Trade Organization's so-called Doha Round of negotiations aimed at sweeping trade liberalization. 

The advanced economies do indeed deserve a disproportionate share of the blame. But as economist Simon Evenett of Switzerland's University of St. Gallen has observed, "the beggar thy neighbor game is not confined to North-South trade." The African Development Bank recently reported that only about one-tenth of the continent's total trade is neighbor-to-neighbor. The numbers for Latin America and Asia are higher (22 percent and 50 percent respectively). Poor countries complaining about commerce-impeding barriers would be well advised to check the mirror to see where their troubles lay. 

Most levies imposed by America and Europe have fallen to just 2 to3 percent, while a handful of newly rich countries led by Hong Kong and Singapore have dispensed with tariffs on virtually everything. 

Now consider West Africa's Benin, one of the poorest countries in the world (GDP per person in terms of purchasing power: $1,700). Benin's meager trade and living standards are held back by agricultural and industrial tariffs averaging 14 and 12 percent respectively. And it's pretty much the same throughout the poorer corners of the world. In Cameroon (GDP per capita: $2,300), farmers hide behind agriculture tariffs averaging 22 percent, while manufactured goods are hit with 12 percent import levies. The parallel figures for Burundi (GDP per capita: $600) are 20 percent and 11 percent; for Gambia (GDP per capita: $1,900) 17 percent and 16 percent. 

India's economic reforms, which included sharp reductions in industrial tariffs (to 10 percent) are widely credited for the quadrupling of average living standards over the last two decades. But India still protects food imports with 31 percent average tariffs, with peaks up to 56 percent (for coffee and tea). 

In the Doha negotiations, the rich countries have agreed to allow Benin, Burundi, and the rest of the world's poorest countries to maintain their tariffs. (Perhaps not surprisingly: They collectively represent a very modest market for western exports.) But more muscular emerging market economies -- notably India and South Africa -- have threatened to make further tariff reform a deal-breaker. In fact, they are demanding the right to raise tariffs sharply under some circumstances.   

Arguably, the greater barriers to intra-continental trade (especially in Africa) are bureaucratic and logistical. To carry goods from Kigali, Rwanda to Mombasa, Kenya, trucks "have to negotiate 47 roadblocks and weigh stations," the African Development Bank reported in 2012. At the time, the Bank also noted, there was usually a 36-hour wait at the South African border for trucks to cross the Limpopo River into Zimbabwe. It was much the same story getting through customs from Burkina Faso into Ghana, from Mali into Senegal --- actually, from just about anywhere to anywhere in Africa. 

Take your pick as to which misery is worst: The mud-plagued, potholed roads that drive up the costs of doing business, or the border checks with corrupt customs officials seeking alms.  Paying bribes is so common that the African Development Bank report published a table listing the borders where officials are the most corrupt (Ivory Coast-Mali seems to be the prizewinner). 

African reformers freely acknowledge such problems. Nigeria's trade minister, Olusegun Aganga, has publicly lamented that "billions of dollars" and "millions of jobs" have been lost due to the "the fragmentation of Africa in terms of trade." And some progress is being made. The World Bank noted that Ghana and Nigeria are discussing cuts in bilateral tariffs and otherwise making their cross-border trade flows more efficient. The New Times, a Rwanda newspaper, recently celebrated the fact that roadblocks between Kenya, Rwanda, Uganda, and Burundi had been pared from 30 to 15 (which are still way too many). 

Meanwhile, there is still a Sisyphusian quality to poor-on-poor trade disputes, with modest advances matched by threats of retrenchment. South Africa, which by virtue of its relative affluence and stability is the economic leader of southern Africa, has been railing against cheap chickens from Brazil, metal screws from China, and even artificial turf from rival soccer competitors India, Thailand, and Malaysia. When we do these things, we are only following "common sense," and not indulging in "protectionism," Pretoria officials insist. 

"Common sense" is apparently infecting middle-income countries not above the impulse to close the door behind them. Argentina is now considering stiff tariffs on plywood from Brazil and China. Turkey is in the process of imposing tax hikes on terephthalic acid (useful stuff that goes into plastic bottles and clothing) from more than a dozen trading partners including Indonesia and Brazil. Malaysia has imposed "antidumping duties" on newsprint from the Philippines and Indonesia. For their part, the Indonesians are in the process of "safeguarding" their domestic sorbitol industry (a versatile sweetener) against competitors in Malaysia, India -- and curiously, communist North Korea, which isn't known for offering sweet deals to anyone. 

The ongoing phenomenon of quasi-colonial economic ties has also been a major source of tension -- and a major impediment to a Doha-enabling compromise. Countries that were previously extorted for their resources are now receiving preferential treatment from their former colonizers, much to the chagrin of others. Ecuador, a major banana producer, has complained about preferential trade deals France has given its former colonial banana suppliers, notably Cameroon. Mauritius has railed against European farm subsidies, even as it maneuvered to retain its preference to export sugar to the European Union. 

Camps are also emerging as blocs of developing countries pit themselves against others. When the Doha talks last went into hibernation (2008), Uruguay and Paraguay were complaining that Indian-led demands, on behalf of 44 poor countries, for continued agricultural protectionism would cripple their exports to Latin neighbors. On the opposite end, Cambodia and Bangladesh's efforts through Doha to curb the United States' 15 and 17 percent respective tariff on their garment trade are facing stiff opposition from African countries that already enjoy duty-free access to U.S. apparel markets. 

Economists speak in unison on relatively few issues -- one of them being the critical role open trade has played in bringing a billion people out of poverty in the last two decades. And it's hard to imagine that, without more of the same, another billion will be given the means to live above subsistence in the next two. All the more ironic, then, that poor countries are way too often part of the problem in negotiating trade liberalization, rather than part of the solution. As Pogo, the once-celebrated bard of the newspaper comic strip world put it: "We have met the enemy, and he is us."    

ANTONIO SCORZA/AFP/Getty Images