November 5, 2009 Harvard Law Record Page 3
WAR ON TERROR
used such groups as proxies through which to conduct its foreign policy. He hopedthat the headquarters attack would compel the Pakistani military to decisivelymove away from its defensive stance toward India and to engage militant groupsinstead. He expressed optimism, however, that Pakistan’s nuclear weapons wouldnot “fall into the wrong hands,” saying that the weapons had been secured, and thathe worried about the use of cruder, more improvised weapons instead.Leiter also highlighted the security risk emanating from Yemen. Recently, aYemeni national trained by Al Qaeda had tried to assassinate a member of theSaudi royal family, he said.According to Leiter,Afghanistan,Yemen, and Soma-lia were symptomatic cases, illustrating a larger trend: ex-tremist groups taking over sparsely-governed states or areaswithin states and using them as training grounds to exportterrorism.While the U.S. has not faced as challenging a securitythreat from its domestic Muslim population as the U.K.,Leiter noted, the Somali immigrant population in the coun-try was posing an increasing challenge. 18-25 year old So-malis have been traveling in increasing numbers back toSomalia, attracted by the desire to defend the countryagainst intervention from the African Union and other forces, which are sporadically present in unstable regions of the country. While Americans have always traveled abroad to fight for foreigncauses, such as during the Spanish CivilWar, Leiter observed, this was the first in-stance in which the U.S. was producing home-grown suicide bombers.While they existed in lesser numbers, Leiter also pointed out thatAfghan-Amer-icans have traveled to Pakistan to gain training fromAl Qaeda, and have attemptedto set off improvised explosive devices in the group’s name in the U.S.Leiter said that it would be difficult for domestic agencies to form a single pol-icy for engagement with the U.S. Muslim community, which he said was too het-erogeneous for such a scheme, although he also noted that the government coulddo more to earn the trust of poorer, less-educated U.S. Muslims, particularly theSomali community.Still, Leiter emphasized that instances of “home-grown terror” were not causefor any more alarm than traditional domestic security issues faced by the U.S.,such as school shootings. In such a big country, he observed, there were always bound to be new and creative forms of violence.This illustrated, he said, that suchterror should be dealt with as domestic law enforcement agencies deal with other threats – they should be prevented and stopped as often as possible, but could not be eliminated entirely.Leiter said he had divined at least four major lessons from his time at the NCTC.The first was to not over-learn lessons from the past – an enemy could alwaysreact in a different way to a given tactic or policy. The second was that “the coun-terterrorism tail should not wag the policy dog” – that counterterrorism shouldnot be the basis for foreign policy. He noticed that inAfghanistan, pursuing coun-terterrorism at the expense of other priorities had left the U.S. supporting literallyany group that would act against Al Qaeda, with potentially dangerous conse-quences. Still, in some cases, as inYemen, he acknowledged, the U.S. has few in-terests to attend to other than counterterrorism.Third, Leiter opined, formulating policy was easy, but – and here was where hewas most skeptical of the Kennedy School’s public policy perspective – forminga cohesive process to ensure accountability when something happens as a byprod-uct of that policy, work, he said, better suited to lawyers, was the hard part.Finally, and most controversially, Leiter said that everything counterterrorismdid would require a large degree of public trust. He believedtransparency would undermine such trust, making it diffi-cult for counterterrorism policymakers to operate. Muchneeded to happen behind the scenes, he said, citing the useof provisions of the Patriot Act to foil a recent bomb plotagainst NewYork City subways, and noting that, in terms of international operations, there “was no altruism in interna-tional affairs,” and that difficult and delicate trade-offs wereoften made in the pursuit of security.Returning to his third major lesson, Leiter said that, in theabsence of public oversight, lawyers ought to play a greater role ensuring that there is accountability for any action taken behind the scenes.Abreakdown of the internal channels set up by the Church andPike Commissions in the 1970s – specifically, a lack of trust in the House andSenate Intelligence Committees and the special courts set up to monitor use of the Foreign Intelligence Security Act (FISA) is what has led members of Con-gress to leak vital information to the press, rather than deal with problems withinthe system. “Everything now plays out on the front page of the
New York Times
and the
Washington Post
,” Leiter said, making it difficult for the NCTC and other national security agencies to pursue effective policies.Leiter’s position on secrecy may reflect the fact that he is a legacy of the Bushadministration, which first appointed him to his position in 2008. Still, he insists,his job has not changed much since Obama took office. 98% of his work, Leiter said, was “apolitical;” it was just that “the discourse” in the media focused on thehard cases that were not. “In the
New York Times
counterterrorism is Guantanamo,torture, and assassinations,” Leiter said. What had truly shifted between adminis-trations, Leiter observed, was the weight given to the needs and desires of differ-ent departments – Defense, in particular, had received more attention under Bushthan Obama.And while Leiter’s stance in favor of secrecy and internal oversight both rankledand invited skepticism, he insisted that the approach would and should not sacri-fice its commitment to values. “The idea of not protecting civil liberties whiledoing this job,” he said, “is losing the war in a different way.”B
Y
V
ICTORIA
B
ARANETSKY
Cyberterrorism is a buzzword that has been thrivingin President Barack Obama ’91’s administration, butit has such a nebulous meaning that it managed toeluded three expert panelists last Wednesday.Leonard Bailey was transferred from the Depart-ment of Justice’s (DOJ) Computer Crimes and Intel-lectual Property Division to the administration’s new National Security Division (NSD), in September 2009to spearhead the team’s cybercrime efforts.According the NSD’s press release, “Mr. Bailey iswidely respected within the Justice Department andthe Intelligence Community for his knowledge of cyber issues.” However, even he admitted he is at aloss for words on the subject. The area suffers from a“limited lexicon,” he explained, “we even lack a uni-fied definition of cyberterrorism and that makes dis-course on the subject difficult.”The government has failed to convene its variousdepartments to forge a single definition. The FBIalone has published three distinct definitions of cyber-terrorism: “Terrorism that initiates…attack[s] on in-formation” in 1999, to “the use of Cyber tools” in2000 and “a criminal act perpetrated by the use of computers” in 2004. Other government agencies re-sponsible for responding to cyberattacks, such as theDepartment of Defense, Federal Emergency Manage-mentAgency, National Infrastructure Protection Cen-ter, Drug Enforcement Agency, National HomelandSecurityAgency, and the Department of Justice haveeach created their own definitions.Bailey’s explanation for the limited and conflictingvocabulary is twofold. First, “the interest in cyber is-sues only started in the nineties so the terms are stillnascent.” Secondly, the departments have fragmentedthe definition because the meaning depends on their differing interests. “Look at the response to Twitter,”he observed. “The Department of State lauded its usein Iran, while other departments heavily criticized it.”Unlike Bailey, Kim Taipale, founder and executivedirector for the Stilwell Center forAdvanced Studiesin Science andTechnology Policy believes “cyberter-rorism, whatever it is, is a useless term.” Taipale be-lieves that, “terrorists will use any strategic tool theycan” so “cyber” terrorism is no more important thenother forms. Rather the problem is that there is no“unified legal regime,” creating a “gap between law-makers and authorities,” he stated. “Whether the mil-itary or police should respond, whether it is domesticor foreign is not fully determined,” said Taipale.These separate entities are “incompatible and incon-sistent, making us more vulnerable to terrorism.”Taipale explained that having such a fragmentedlegal structure means that we are “not equipped todeal with an array of a whole host of new problems”that cyber issues present.And this is truly troublesome because the line between “safe society and chaos is athin one,” said Taipale, “We are in line for some seri-ous cyber-Katrinas that we are not ready to deal with.”Like Bailey, however,Taipale believes that the “ob-solete security infrastructure” exists because differententities have differing concerns. After cyber-threatswere made to Slobodan Milosevic’s bank accountsduring the 1999 Kosovo crisis, for example, the cy- berterrorism discussion was raised in the U.N., andalthough Russia expressed interest in the problem, theU.S. stalled the discussion. “What is and isn’t per-missible was never decided because of the U.S.’ in-terest in its own international liability,” said Taipale.“Now there are no rules,” he continued. “Now we arereaping the problems.”Taipale’s fear that the line between safe society andchaos is fragile is compounded by the problem of trust, highlighted by Dr. Andrew Colarik, an infor-mation security consultant. Colarik stressed the term’setymology, saying that “there is no cyberterrorismwithout terrorism.” In essence, the goal of terrorism isto cause severe disruption through widespread fear insociety, meaning “our dependency on digital mate-rial,” is the problem, he said. “The majority of our currency is not paper, it’s digital. And like money, if we loose confidence in the underlying system, we willhave insolvency.” Colarik argues that we should limitthe amount of information we store digitally.Taipale echoed the doomsday concern, “the U.S. isa real target because of our dependency on the onlinesystem.” These attacks are about “exploitation.”“Non-peer” countries don’t depend on the digital sys-tem and so they have an opportunity to attack withoutthe risk of suffering from similar counterattacks.But Bailey believes the problems Taipale and Co-larik raise cannot be solved without some basic agree-ment over terminology. “These are conversations thatcannot take place because there is no common lan-guage to discuss this,” he said. He suggests as a firststep “that we as a government have to consider whatwe think about these issues first.” The hesitation isthat “whatever you decide you have to live with.”While it is possible that trying to divine a definition of cyberterrorism is a fools’ errand, “it is a way of achieving an end.”
What Is Cyberterrorism? Even Experts Can’tAgree
Leiter
, cont’d from pg. 1
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