Readers Comment on STRATFOR Reports
The Hasan Case: Overt Clues and Tactical Challenges
November 11, 2009 | 1841 GMT
By Scott Stewart and Fred Burton
In last week’s global security and intelligence report, we discussed the recent call by the leader of al Qaeda in the Arabian Peninsula, Nasir al-Wahayshi, for jihadists to conduct simple attacks against a variety of targets in the Muslim world and the West. We also noted how it is relatively simple to conduct such attacks against soft targets using improvised explosive devices, guns or even knives and clubs.
The next day, a lone gunman, U.S. Army Maj. Nidal Malik Hasan, opened fire on a group of soldiers at Fort Hood, Texas. The victims were in the Soldier Readiness Processing Center, a facility on the base where troops are prepared for deployment and where they take care of certain processing tasks such as completing insurance paperwork and receiving medical examinations and vaccinations.
Even though the targets of Hasan’s attack were soldiers, they represented a very soft target in this environment. Most soldiers on bases inside the United States are normally not armed and are only provided weapons for training. The only personnel who regularly carry weapons are the military police and the base civilian police officers. In addition to being unarmed, the soldiers at the center were closely packed together in the facility as they waited to proceed from station to station. The unarmed, densely packed mass of people allowed Hasan to kill 13 (12 soldiers and one civilian employee of the center) and wound 42 others when he opened fire.
Hasan is a U.S.-born Muslim who, according to STRATFOR sources and media accounts, has had past contact with jihadists, including the radical Imam Anwar al-Awlaki. Al-Awlaki is a U.S.-born imam who espouses a jihadist ideology and who was discussed at some length in the 9/11 commission report for his links to 9/11 hijackers Khalid al-Midhar and Nawaf al-Hazmi. Al-Awlaki, who is currently living in Yemen and reportedly has contacts with al Qaeda, posted a message on his Web site Nov. 9 praising Hasan’s actions. Despite Hasan’s connections to al-Awlaki and other jihadists, it is unknown at this point if he was even aware of al-Wahayshi’s recent message calling for simple attacks, and therefore it is impossible to tell if his attack was in response to it.
However, one thing that is certain is that investigators examining Hasan’s computer hard drive, e-mail traffic and Internet history will be looking into that possibility, along with other indications that Hasan was linked to radicals.
We noted last week that by their very nature, individual actors and small cells are very difficult for the government to detect. They must somehow identify themselves by contacting a government informant or another person who reports them to the authorities, attend a militant training camp or conduct correspondence with a person or organization under government scrutiny. In the Hasan case, it now appears that Hasan did self-identify by making radical statements to people he worked with, who reported him to the authorities. It also appears that he had correspondence with people such as al-Awlaki, whom the government was monitoring. Because of this behavior, Hasan brought himself to the attention of the Department of Defense, the FBI and the CIA.
The fact that Hasan was able to commit this attack after bringing government attention to himself could be due to a number of factors. Chief among them is the fact that it is tactically impossible for a government to identify every aspiring militant actor and to pre-empt every act of violence. The degree of difficulty is increased greatly if an actor does indeed act alone and does not give any overt clues through his actions or his communications of his intent to attack. Because of this, the Hasan case provides an excellent opportunity to examine national security investigations and their utility and limitations.
The Nature of Intelligence Investigations
The FBI will typically open up an intelligence investigation (usually referred to as a national security investigation) in any case where there is an indication or allegation that a person is involved in terrorist activity but there is no evidence that a specific law has been broken. Many times these investigations are opened up due to a lead passed by the CIA, National Security Agency or a foreign liaison intelligence service. Other times an FBI investigation can come as a spin-off from another FBI counterterrorism investigation already under way or be prompted by a piece of information collected by an FBI informant or even by a tip from a concerned citizen — like the flight instructors who alerted the FBI to the suspicious behavior of some foreign flight students prior to the 9/11 attacks. In such a case, the FBI case agent in charge of the investigation will open a preliminary inquiry, which gives the agent a limited window of time to look into the matter. If no indication of criminal activity is found, the preliminary inquiry must be closed unless the agent receives authorization from the special agent in charge of his division and FBI headquarters to extend it.
If, during the preliminary inquiry, the investigating agents find probable cause that a crime has been committed, the FBI will open a full-fledged criminal investigation into the case, similar to what we saw in the case of Luqman Ameen Abdullah and his followers in Detroit.
One of the large problems in national security investigations is separating the wheat from the chaff. Many leads are based on erroneous information or a misidentification of the suspect — there is a huge issue associated with the confusion caused by the transliteration of Arabic names and the fact that there are many people bearing the same names. Jihadists also have the tendency to use multiple names and identities. And there are many cases in which people will falsely report a person to the FBI out of malice. Because of these factors, national security investigations proceed slowly and usually do not involve much (if any) contact with the suspect and his close associates. If the suspect is a real militant planning a terrorist attack, investigators do not want to tip him off, and if he is innocent, they do not want to sully his reputation by showing up and overtly interviewing everyone he knows. Due to its controversial history of domestic intelligence activities, the FBI has become acutely aware of its responsibility to protect privacy rights and civil liberties guaranteed by the Constitution and other laws.
And the rights guaranteed under the Constitution do complicate these national security investigations. It is not illegal for someone to say that Muslims should attack U.S. troops due to their operations in Iraq and Afghanistan, or that more Muslims should conduct attacks like the June 1 shooting at a recruiting center in Little Rock, Ark. — things that Hasan is reported to have said. Radical statements and convictions are not illegal — although they certainly would appear to be conduct unbecoming a U.S. Army officer. (We will leave to others the discussion of the difficulties in dealing with problem officers who are minorities and doctors and who owe several years of service in return for their education.)
There are also many officers and enlisted soldiers in the U.S. Army who own personal weapons and who use them for self-defense, target shooting or hunting. There is nothing extraordinary or illegal about a U.S. Army major owning personal weapons. With no articulable violation of U.S. law, the FBI would have very little to act upon in a case like Hasan’s. Instead, even if they found cause to extend their preliminary inquiry, they would be pretty much limited to monitoring his activities (and perhaps his communications, with a court order) and waiting for a law to be violated. In the Hasan case, it would appear that the FBI did not find probable cause that a law had been violated before he opened fire at Fort Hood. Although perhaps if the FBI had been watching his activities closely and with an eye toward “the how” of terrorist attacks, they might have noticed him conducting preoperational surveillance of the readiness center and even a dry run of the attack.
Of course, in addition to just looking for violations of the law, the other main thrust of a national security investigation is to determine whom the suspect is connected to and whom he is talking to or planning with. In past cases, such investigations have uncovered networks of jihadist actors working together in the United States, Canada, Europe and elsewhere. However, if all Hasan did in his correspondence with people such as al-Awlaki was exercise his First Amendment right to hold radical convictions, and if he did not engage in any type of conspiracy to conduct an attack, he did not break the law.
Another issue that complicates national security cases is that they are almost always classified at the secret level or above. This is understandable, considering they are often opened based upon intelligence produced by sensitive intelligence programs. However, this classification means that only those people with the proper clearance and an established need to know can be briefed on the case. It is not at all unusual for the FBI to visit a high-ranking official at another agency to brief the official on the fact that the FBI is conducting a classified national security investigation involving a person working for the official’s agency. The rub is that they will frequently tell the official that he or she is not at liberty to share details of the investigation with other individuals in the agency because they do not have a clear need to know. The FBI agent will also usually ask the person briefed not to take any action against the target of the investigation, so that the investigation is not compromised. While some people will disagree with the FBI’s determination of who really needs to know about the investigation and go on to brief a wider audience, many officials are cowed by the FBI and sit on the information.
Of course, the size of an organization is also a factor in the dissemination of information. The Department of Defense and the U.S. Army are large organizations, and it is possible that officials at the Pentagon or the Army’s Criminal Investigation Command (still known by its old acronym CID) headquarters at Fort Belvoir, Va., were briefed on the case and that local officials at Fort Hood were not. The Associated Press is now reporting that the FBI had alerted a Defense Criminal Investigative Service agent assigned to the Joint Terrorism Task Force (JTTF) in Washington about Hasan’s contacts with al-Awlaki, and ABC reports that the Defense Department is denying the FBI notified them. It would appear that the finger-pointing and bureaucratic blame-shifting normally associated with such cases has begun.
Even more severe problems would have plagued the dissemination of information from the CIA to local commanders and CID officers at Fort Hood. Despite the intelligence reforms put in place after the 9/11 attacks, the U.S. government still faces large obstacles when it comes to sharing intelligence information with law enforcement personnel.
Criminal Acts vs. Terrorism
So far, the Hasan shooting investigation is being run by the Army CID, and the FBI has been noticeably — and uncharacteristically — absent from the scene. As the premier law enforcement agency in the United States, the FBI will often assume authority over investigations where there is even a hint of terrorism. Since 9/11, the number of FBI/JTTF offices across the country has been dramatically increased, and the JTTFs are specifically charged with investigating cases that may involve terrorism. Therefore, we find the FBI’s absence in this case to be quite out of the ordinary.
However, with Hasan being a member of the armed forces, the victims being soldiers or army civilian employees and the incident occurring at Fort Hood, the case would seem to fall squarely under the mantle of the Uniform Code of Military Justice (UCMJ). From a prosecutorial perspective, a homicide trial under the UCMJ should be very tidy and could be quickly concluded. It will not involve all the potential loose ends that could pop up in a federal terrorism trial, especially when those loose ends involve what the FBI and CIA knew about Hasan, when they learned it and who they told. Also, politically, there are some who would like to see the Hasan case remain a criminal matter rather than a case of terrorism. Following the shooting death of Luqman Ameen Abdullah and considering the delicate relationship between Muslim advocacy groups and the U.S. government, some people would rather see Hasan portrayed as a mentally disturbed criminal than as an ideologically driven lone wolf.
Despite the CID taking the lead in prosecuting the case, the classified national security investigation by the CIA and FBI into Hasan and his possible connections to jihadist elements is undoubtedly continuing. Senior members of the government will certainly demand to know if Hasan had any confederates, if he was part of a bigger plot and if there are more attacks to come. Several congressmen and senators are also calling for hearings into the case, and if such hearings occur, they will certainly produce an abundance of interesting information pertaining to Hasan and the national security investigation of his activities.
This report may be forwarded or republished on your website with attribution to www.stratfor.com
Direct all submissions to letters@stratfor.com. STRATFOR will consider publishing only emails that include the sender's full name, a working telephone number, return email address, and city, state and country of residence. See our Letters Policy for additional information.
Deciphering the Mohammed Trial
November 16, 2009 | 2035 GMT
By George Friedman
U.S. Attorney General Eric Holder has decided that Khalid Sheikh Mohammed will be tried in federal court in New York. Holder’s decision was driven by the need for the U.S. government to decide how to dispose of prisoners at Guantanamo Bay, a U.S. Naval base outside the boundaries of the United States selected as the camp in which to hold suspected al Qaeda members.
We very carefully use the word “camp” rather than prison or prisoner of war camp. This is because of an ongoing and profound ambiguity not only in U.S. government perceptions of how to define those held there, but also due to uncertainties in international law, particularly with regard to the Geneva Conventions of 1949. Were the U.S. facility at Guantanamo a prison, then its residents would be criminals. If it were a POW camp, then they would be enemy soldiers being held under the rules of war. It has never really been decided which these men are, and therefore their legal standing has remained unclear.
War vs. Criminal Justice
The ambiguity began shortly after 9/11, when then-U.S. President George W. Bush defined two missions: waging a war on terror, and bringing Osama bin Laden and his followers to justice. Both made for good rhetoric. But they also were fundamentally contradictory. A war is not a judicial inquiry, and a criminal investigation is not part of war.
An analogy might be drawn from Pearl Harbor. Imagine that in addition to stating that the United States was at war with Japan, Franklin Roosevelt also called for bringing the individual Japanese pilots who struck Hawaii to justice under American law. This would make no sense. As an act of war, the Japanese action fell under the rules of war as provided for in international law, the U.S. Constitution and the Uniform Code of Military Justice (UCMJ). Japanese pilots could not be held individually responsible for the lawful order they received. In the same sense, trying to bring soldiers to trial in a civilian court in the United States would make no sense. Creating a mission in which individual Japanese airmen would be hunted down and tried under the rules of evidence not only would make no sense, it would be impossible. Building a case against them individually also would be impossible. Judges would rule on evidence, on whether an unprejudiced jury could be found, and so on. None of this happened, of course — World War II was a war, not a judicial inquiry.
It is important to consider how wars are conducted. Enemy soldiers are not shot or captured because of what they have done; they are shot and captured because of who they are — members of an enemy military force. War, once launched, is pre-emptive. Soldiers are killed or captured in the course of fighting enemy forces, or even before they have carried out hostile acts. Soldiers are not held responsible for their actions, but neither are they immune to attack just because they have not done anything. Guilt and innocence do not enter into the equation. Certainly, if war crimes are in question, charges may be brought; the UCMJ determines how they will be tried by U.S. forces. Soldiers are tried by courts-martial, not by civilian courts, because of their status as soldiers. Soldiers are tried by a jury of their peers, and their peers are held to be other soldiers.
International law is actually not particularly ambiguous about the status of the members of al Qaeda. The Geneva Conventions do not apply to them because they have not adhered to a fundamental requirement of the Geneva Conventions, namely, identifying themselves as soldiers of an army. Doing so does not mean they must wear a uniform. The postwar Geneva Conventions make room for partisans, something older versions of the conventions did not. A partisan is not a uniformed fighter, but he must wear some form of insignia identifying himself as a soldier to enjoy the conventions’ protections. As Article 4.1.6 puts it, prisoners of war include “Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.” The Geneva Conventions of 1949 does not mention, nor provide protection to, civilians attacking foreign countries without openly carrying arms.
The reasoning behind this is important. During the Franco-Prussian war, French franc-tireurs fired on Prussian soldiers. Ununiformed and without insignia, they melded into the crowd. It was impossible for the Prussians to distinguish between civilians and soldiers, so they fired on both, and civilian casualties resulted. The framers of the Geneva Conventions held the franc-tireurs, not the Prussian soldiers, responsible for the casualties. Their failure to be in uniform forced the Prussians to defend themselves at the cost of civilian lives. The franc-tireurs were seen as using civilians as camouflage. This was regarded as outside the rules of war, and those who carried out such acts were seen as not protected by the conventions. They were not soldiers, and were not to be treated as such.
An Ambiguous Status
Extending protections to partisans following World War II was seen as a major concession. It was done with concerns that it not be extended so far that combatants of irregular forces could legally operate using their ability to blend in with surrounding civilians, and hence a requirement of wearing armbands. The status of purely covert operatives remained unchanged: They were not protected under the Geneva Conventions. Their status remained ambiguous.
During World War II, it was U.S. Army practice to hold perfunctory trials followed by executions. During the Battle of the Bulge, German commandos captured wearing U.S. uniforms — in violation of the Geneva Conventions — were summarily tried in field courts-martial and executed. The idea that such individuals were to be handed over to civilian courts was never considered. The actions of al Qaeda simply were not anticipated in the Geneva Conventions. And to the extent they were expected, they violated the conventions.
Holder’s decision to transfer Khalid Sheikh Mohammed to federal court makes it clear that Mohammed was not a soldier acting in time of war, but a criminal. While during times of war spies are tried as criminals, their status is precarious, particularly if they are members of an enemy army. Enemy soldiers out of uniform carrying out reconnaissance or espionage are subject to military, not civilian, justice, and frequently are executed. A spy captured in the course of collecting information is a civilian, particularly in peacetime, and normally is tried as a criminal with rules of evidence.
Which was Mohammed? Under the Geneva Conventions, his actions in organizing the Sept. 11 attacks, which were carried out without uniforms or other badges of a combatant, denies him status and protection as a POW. Logically, he is therefore a criminal, but if he is, consider the consequences.
Criminal law is focused on punishments meted out after the fact. They rarely have been preventive measures. In either case, they follow strict rules of evidence, require certain treatments of prisoners and so on. For example, prisoners have to be read the Miranda warning. Soldiers are not policeman. They are not trained or expected to protect the legal rights of captives save as POWs under the UCMJ, nor protect the chain of custody of evidence nor countless other things that are required in a civilian court. In criminal law, it is assumed that law enforcement has captured the prisoner and is well-versed in these rules. In this case, the capture was made without any consideration of these matters, nor would one expect such consideration.
Consider further the role of U.S. covert operations in these captures. The United States conducts covert operations in which operatives work out of uniform and are generally not members of the military. Operating outside the United States, they are not protected by U.S. law although they do operate under the laws and regulations promulgated by the U.S. government. Much of their operations run counter to international and national law. At the same time, their operations are accepted as best practices by the international system. Some operate under cover of diplomatic immunity but carry out operations incompatible with their status as diplomats. Others operate without official cover. Should those under unofficial cover be captured, their treatment falls under local law, if such exists. The Geneva Conventions do not apply to them, nor was it intended to.
Spies, saboteurs and terrorists fall outside the realm of international law. This class of actors falls under the category of national law, leaving open the question of their liability if they conduct acts inimical to a third country. Who has jurisdiction? The United States is claiming that Mohammed is to be tried under the criminal code of the United States for actions planned in Afghanistan but carried out by others in the United States. It is a defensible position, but where does this leave American intelligence planners working at CIA headquarters for actions carried out by others in a third country? Are they subject to prosecution in the third country? Those captured in the third country clearly are, but the claim here is that Mohammed is subject to prosecution under U.S. laws for actions carried out by others in the United States. And that creates an interesting reciprocal liability.
A Failure to Evolve
The fact is that international law has not evolved to deal with persons like Mohammed. Or more precisely, most legal discussion under international law is moving counter to the Geneva Conventions’ intent, which was to treat the franc-tireurs as unworthy of legal protection because they were not soldiers and were violating the rules of war. International law wants to push Mohammed into a category where he doesn’t fit, providing protections that are not apparent under the Geneva Conventions. The United States has shoved him into U.S. criminal law, where he doesn’t fit either, unless the United States is prepared to accept reciprocal liability for CIA personnel based in the United States planning and supporting operations in third countries. The United States has never claimed, for example, that the KGB planners who operated agents in the United States on behalf of the Soviet Union were themselves subject to criminal prosecution.
A new variety of warfare has emerged in which treatment as a traditional POW doesn’t apply and criminal law doesn’t work. Criminal law creates liabilities the United States doesn’t want to incur, and it is not geared to deal with a terrorist like Mohammed. U.S. criminal law assumes that capture is in the hands of law enforcement officials. Rights are prescribed and demanded, including having lawyers present and so forth. Such protections are practically and theoretically absurd in this case: Mohammed is not a soldier and he is not a suspected criminal presumed innocent until proven guilty. Law enforcement is not a practical counter to al Qaeda in Afghanistan and Pakistan. A nation cannot move from the rules of counterterrorism to an American courtroom; they are incompatible modes of operation. Nor can a nation use the code of criminal procedures against a terrorist organization operating transnationally. Instead, they must be stopped before they commit their action, and issuing search warrants and allowing attorneys present at questioning is not an option.
Therefore — and now we move to the political reality — it is difficult to imagine how the evidence accumulated against Mohammed could enter a courtroom. Ignoring the methods of questioning, which is a separate issue, how can one prove his guilt beyond a reasonable doubt without compromising sources and methods, and why should one? Mohammed was on a battlefield but not operating as a soldier. Imagine doing criminal forensics on a battlefield to prove the criminal liability of German commandos wearing American uniforms.
In our mind, there is a very real possibility that Mohammed could be found not guilty in a courtroom. The cases of O.J. Simpson and of Jewish Defense League head Rabbi Meir Kahane’s killer, El Sayyid Nosair — both found not guilty despite overwhelming evidence — come to mind. Juries do strange things, particularly amid what will be the greatest media circus imaginable in the media capital of the world.
But it may not be the jury that is the problem. A federal judge will have to ask the question of whether prejudicial publicity of such magnitude has occurred that Mohammed can’t receive a fair trial. (This is probably true.) Questions will be raised about whether he has received proper legal counsel, which undoubtedly he hasn’t. Issues about the chain of custody of evidence will be raised; given that he was held by troops and agents, and not by law enforcement, the chances of compromised evidence is likely. The issue of torture will, of course, also be raised but that really isn’t the main problem. How do you try a man under U.S. legal procedures who was captured in a third country by non-law enforcement personnel, and who has been in military custody for seven years?
There is a nontrivial possibility that he will be acquitted or have his case thrown out of court, which would be a foreign policy disaster for the United States. Some might view it as a sign of American adherence to the rule of law and be impressed, others might be convinced that Mohammed was not guilty in more than a legal sense and was held unjustly, and others might think the United States has bungled another matter.
The real problem here is international law, which does not address acts of war committed by non-state actors out of uniform. Or more precisely, it does, but leaves them deliberately in a state of legal limbo, with captors left free to deal with them as they wish. If the international legal community does not like the latter, it is time they did the hard work of defining precisely how a nation deals with an act of war carried out under these circumstances.
The international legal community has been quite vocal in condemning American treatment of POWs after 9/11, but it hasn’t evolved international law, even theoretically, to cope with this. Sept. 11 is not a crime in the proper sense of the term, and prosecuting the guilty is not the goal. Instead, it was an act of war carried out outside the confines of the Geneva Conventions. The U.S. goal is destroying al Qaeda so that it can no longer function, not punishing those who have acted. Similarly the goal in 1941 was not punishing the Japanese pilots at Pearl Harbor but destroying the Japanese Empire, and any Japanese soldier was a target who could be killed without trial in the course of combat. If it wishes to solve this problem, international law will have to recognize that al Qaeda committed an act of war, and its destruction has legal sanction without judicial review. And if some sort of protection is to be provided al Qaeda operatives out of uniform, then the Geneva Conventions must be changed, and with it the status of spies and saboteurs of all countries.
Holder has opened up an extraordinarily complex can of worms with this decision. As U.S. attorney general, he has committed himself to proving Mohammed’s guilt beyond a reasonable doubt while guaranteeing that his constitutional rights (for a non-U.S. citizen captured and held outside the United States under extraordinary circumstances by individuals not trained as law enforcement personnel, no less) are protected. It is Holder’s duty to ensure Mohammed’s prosecution, conviction and fair treatment under the law. It is hard to see how he can.
Whatever the politics of this decision — and all such decisions have political dimensions — the real problem faced by both the Obama and Bush administrations has been the failure of international law to evolve to provide guidance on dealing with combatants such as al Qaeda. International law has clung to a model of law governing a very different type of warfare despite new realities. International law must therefore either reaffirm the doctrine that combatants who do not distinguish themselves from noncombatants are not due the protections of international law, or it must clearly define what those protections are. Otherwise, international law discredits itself.
This report may be forwarded or republished on your website with attribution to www.stratfor.com
Direct all submissions to letters@stratfor.com. STRATFOR will consider publishing only emails that include the sender's full name, a working telephone number, return email address, and city, state and country of residence. See our Letters Policy for additional information.
STRATFOR's three-part series on China's development of a blue-water navy.
Direct all submissions to letters@stratfor.com. STRATFOR will consider publishing only emails that include the sender's full name, a working telephone number, return email address, and city, state and country of residence. See our Letters Policy for additional information.
To have STRATFOR's free intelligence reports emailed to you each week, click here.
Click below to receive free updates and supplemental material from STRATFOR and to learn more about Fred Burton's latest book (now out in paperback), Ghost: Confessions of a Counterterrorism Agent
Click below to learn more about Dr. George Friedman's New York Times Bestseller, The Next 100 Years
