Enemy Combatant Terror Commanders Are Fair Game

U.S. Marines with Second Battalion, Seventh Marines, reinforce the Baghdad embassy compound in Baghdad, Iraq, January 3, 2020. (Sergeant Kyle C. Talbot/USMC)
Regardless of whether their attacks are ‘imminent'

NRPLUS MEMBER ARTICLE L ast week, Iranian General Qasem Soleimani was killed in a targeted strike by U.S. forces authorized by President Trump. This preemptive attack has spawned a curious debate over whether Soleimani posed an imminent threat at the time he was taken out. The suggestion, mainly by partisan Democrats, is that it was illegitimate for the president to use lethal force without congressional authorization absent proof that Soleimani was on the cusp of killing Americans — or, better, killing even more Americans.

The debate puts me in mind of the early-to-mid 1990s, when our counterterrorism laws were dangerously flawed. Back then, sensible Democrats — as most of them were — knew that these defects had to be addressed. Rather than sound like apologists for anti-American jihadists, they took admirably expeditious action.

The problem emerged in the investigation of the proto-Qaeda terror network guided by the so-called Blind Sheikh, Omar Abdel Rahman. I was then a federal prosecutor and took over that investigation in Spring 1993. At the time, having just bombed the World Trade Center, the jihadists were actively plotting something even more monstrous: simultaneous attacks on the Lincoln and Holland Tunnels and the United Nations complex on Manhattan’s east side. The jihadists were also scouting additional landmarks in the city, including U.S. military facilities and the FBI’s downtown headquarters.

We knew about the plot — and were in a position to thwart it — because we had a confidential informant. (Back then, neither he nor anyone else got the sniffles over the media’s labeling him a “spy.”) Emad Salem, a former Egyptian military officer, had infiltrated the cell and covertly recorded discussions with the Blind Sheikh about the desirability of bombing U.S. armed forces. Like the Shiite Iranian regime (longtime supporters of Sunni al-Qaeda and Hamas, as well as Shiite Hezbollah), Abdel Rahman, a renowned Sunni sharia scholar, recommended that Muslims put aside their internecine conflicts when it came to fighting America, “the Great Satan.”

In the early-to-mid 90s, the United States thankfully did not have extensive experience with international terrorist attacks on the homeland, certainly not the systematic use of mass-murder attacks as a method of prosecuting war that we’ve seen in the last quarter-century. This meant that our legal architecture was sorely lacking. That was a significant defect, given that the government was determined to treat this national-security challenge as if it were a mere crime problem.

There were anomalies. If, for example, terrorists successfully detonated an explosive, as they did in the 1993 WTC attack (killing six, including a woman about to give birth, injuring hundreds, and causing massive property damage), we had a bombing statute that prescribed an appropriately severe penalty: life imprisonment. But there was no federal bombing-conspiracy statute. Consequently, any bombing plot had to be charged under the catch-all federal conspiracy statute. Generally applicable to less serious offenses, it makes sundry conspiracies punishable by no more than five years, and as little as no imprisonment.

In other words, if jihadists killed a few people, you could put them away forever; but if they were stopped while plotting to kill 10,000 people, the penalty was illusory. In effect, our investigators were penalized for doing their jobs well.

There was something of a fall-back position, though it further illuminated the flaws in our criminal code — and, analogously, the foolishness of today’s debate over whether a suspected attack is sufficiently imminent to warrant responding with force.

Terrorists who’d been stopped could be charged with attempted bombing, which carried a possible penalty of up to ten years’ imprisonment — still inadequate, but better than zero to five years. Yet there was a catch. Court decisions, even in the bombing context, made proving the crime of attempt much harder than it should have been. Evidence was deemed insufficient unless prosecutors could establish that the suspects had taken enough actions in furtherance of a bombing to meet the legal threshold of a “substantial step.”

So . . . what was a substantial step? Was discussing a bombing enough? How about conducting surveillance of a target? Purchasing bomb components? Did it matter whether the plotters had done bombings in the past? No one could really be sure.

In effect, the question became: Did it seem, under the circumstances, that the bombing was imminent? On this calculus, even evidence of implacable terrorist hostility and a commitment to use force would not be sufficient to prove an attempted bombing. Investigators would need, in addition, evidence that the plotters were so far along in their planning that we could conclude an attack would have happened if the police had not interrupted it.

Consider the perverse incentive this legal framework created. If investigators were fortunate enough to be in a position to stop a mass-murder attack and round up the jihadists, the law nevertheless encouraged them to let the plot continue, right up to the moment before detonation if possible, to ensure that a “substantial step” had been proved.

Of course, even if they have an inside cooperator, investigators are never in complete control of a criminal enterprise. The last stage of a plot is the time when plotters may speed up matters to avoid getting caught in possession of incriminating evidence. The higher-ups are apt to flee before the strike, so they’ll be beyond capture when the lower-ranking plotters set off the explosion. The chance that a bombing will happen increases immensely if investigators are discouraged from taking decisive preemptive action that a court may later second-guess as premature.

This is one reason (of many) that international terrorism is best regarded as a military threat rather than a criminal prosecution issue. It is one thing to agitate about whether the proof of an attempt is good enough when, if the agents lose control of the situation, the only danger is that a few victims will be defrauded or robbed. It is quite another thing when jihadists are projecting power on the scale of a national military force. That risk is unacceptable.

It is interesting to contrast the mid Nineties to today.

Back then, most Democrats were committed to the law-enforcement approach to counterterrorism. While you can debate the wisdom of that, those Democrats were at least serious about making sure that court prosecution was as effective as it could possibly be. In the 1996 overhaul of counterterrorism law, the Clinton White House and Justice Department worked closely with a Republican-controlled Congress. They not only addressed the flaws that made uncompleted bombing plots so challenging to prosecute. They also defined new crimes tailored to how modern international terrorism actually works. These improvements enabled investigators to thwart plots in their infancy; we were also empowered to starve jihadist organizations of funding, personnel, and materiel.

The bipartisan message was loud and clear: We want terrorists aggressively prosecuted but, even more, we want our agents to have the tools to prevent plots and attacks from taking shape in the first place.

Where is that message today?

In neutralizing terrorists and their state sponsors, the venerable law of war is, to my mind, a necessary complement, if not a preferable alternative, to the criminal law. One of many reasons is that, when an enemy is making war on the United States, there is no need to wait for an attack to be imminent in order to justify a defensive, preemptive strike. General Soleimani was an enemy combatant commander for the Iranian regime and the jihadist terror networks it uses in Iraq, Lebanon, Syria, and elsewhere. For more than 40 years, Iran has unabashedly pronounced itself as at war with the United States. It has conducted major attacks that have killed hundreds of Americans. In just the past few weeks, Iran’s jihadist militias attacked American bases in and around Baghdad eleven times.

Reports of intelligence indicating that Soleimani was planning more attacks in the near term are surely credible. Legally, though, they are beside the point. Soleimani was a proper target regardless of the evidence that any new attack was imminent.

The real question is: Why is imminence even an issue? This is not a close call. We are talking about one of the most notorious mass-murderers of Americans on the planet, the top combatant commander of the regime that proudly tells the world its motto is “Death to America.” Why would we want to raise an abstruse question that would make eliminating such a monster more difficult?

In the Obama years, Democrats were happy to line up in support of unprovoked U.S. attacks on Libya. The use of lethal force was not authorized by Congress, and Americans were not being threatened. Now, because the president at the helm is Donald Trump, they want to quibble over whether the latest Iranian atrocities and U.S. intelligence were a sufficiently flashing neon sign that more atrocities were imminent? That is irresponsible.

In the 1990s, Democrats understood that we needed to fix our laws to make it easier to eliminate threats to attack the United States, regardless of whether they were about to occur or hadn’t even gotten beyond the recruitment-and-training phase. Maybe those Democrats make themselves heard only when one of their own is in the White House. Right now, though, we need to pull together as a united front against an Iranian enemy that could not be clearer about its murderous intentions.

Yes, we’re in a period of extreme partisanship. That is no excuse for playing politics with our security.

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