To view this site you need Adobe Flash Player and your browser must allow javaScripts. Go here to get the latest Flash Player. Counterterrorism: Prevention vs. prosecution BY JOSHUA FILLER THE DECISION TO PLACE KHALID SHEIKH MOHAMMED (KSM) AND FOUR OTHER AL QAEDA OPERATIVES IN A FEDERAL COURT IN NEW YORK IS A CATASTROPHICALLY BAD DECISION. WE SIMPLY CANNOT DISRUPT AND DEFEAT A MORTAL ENEMY ON THE BATTLEFIELD UNDER CIVILIAN CRIMINAL RULES OF PROCEDURE AND EVIDENCE. FRONT LINES noted that, “Often, too, the emphasis of domestic intelligence gathering is on the prevention of unlawful activity… .” Such national security investigations are referred to as “special needs” cases, and the courts have long allowed greater flexibility in preventing their occurrence than in cases involving general crime control. Despite numerous post-9/11 successes in counterterrorism, such an approach is still a major cultural shift for many in the US law enforcement community. Regardless, consistent with our Constitution and laws, we must continue to inculcate the value of terrorism prevention across law enforcement, particularly at the FBI, and ensure that the public and especially the press understands that. Often, the disruption of plots in the early stages is downplayed by the press, who seem to want the FBI and others to stop the truck loaded with explosives just moments before it reaches its target. That’s nice for Hollywood movies, but in the real world we want to stop these people in the pre-planning phase of a terrorist plot. Currently, there is a prosecution against Umar Farouk Abdulmutallab for allegedly trying to detonate a bomb onboard Northwest Flight 253. I’m sure the passengers on that plane would have preferred Abdulmutallab be killed or captured in Yemen or at least stopped in the screening line at the airport in Amsterdam. In short, the current prosecution of Abdulmutallab is a homeland security failure on virtually every level. In another recent high-profile terrorist incident, the FBI arrested Najibullah Zazi on terrorism conspiracy charges. What’s key here is the conspiracy aspect since it takes two or more people to form a conspiracy and only one person has been arrested. The other alleged co-conspirators have not been arrested, but they have been disrupted and remain under constant surveillance. As for Hasan, if what we are reading about his statements and contacts over the years are true, the Army could have disciplined him or thrown him out, and the FBI could have kept him under surveillance much the same way they are watching Najibullah Zazi’s alleged co-conspirators. It’s hardly the powerful criminal prosecution waged against Hasan now, but it may have prevented a devastating act of terrorism. HST JOSHUA D. FILLER is the founder and president of Filler Security Strategies Inc. (www.fssconsulting.net) in Washington, DC, and was the director of state and local government coordination at the Department of Homeland Security from 2003 to 2005. Homeland Security Today Magazine | February 2010 As Sen. Lindsey Graham (R-SC), an Air Force Reserve attorney, has said, placing KSM in a civilian court sets a dangerous precedent of “criminalizing” war fighting. We don’t capture enemy combatants to prosecute them first. We do so to defeat them and protect ourselves. While there are significant differences between domestic law enforcement counterterrorism operations and war fighting operations against terrorists, this basic concept of prevention first holds true on battlefields overseas and here in the homeland. T The Fort Hood shootings I’ve heard the argument that Nidal Malik Hasan did not commit a crime until his alleged attack at Ford Hood, and, therefore, there was little that law enforcement and intelligence agencies could do to stop him. First, whether Hasan committed a crime before the alleged attack may or may not be true. Second, even if Hasan had not committed a crime, we are not condemned to simply sit back and wait for men like Hasan to commit terrible acts and only then react. The primary purpose of a criminal investigation is to determine who committed the crime, arrest the perpetrator, prosecute him and incarcerate him upon conviction. This is based on the general principles that guide our criminal justice system: deterrence and rehabilitation through prosecution and incarceration. In contrast, the purpose of a terrorism investigation is to prevent the act from occurring in the first place, given the potential catastrophic nature of the threat, e.g. nuclear terrorism. Indictments, prosecutions and incarceration are all secondary elements in counterterrorism. Moreover, the idea of deterring a radical Islamist suicide attacker through the HE US SUPREME COURT AS FAR BACK AS 1972 RECOGNIZED THE DIFFERENCE BETWEEN INTELLIGENCE-BASED INVESTIGATIONS AND CRIME CONTROL, AND IT’S CRITICAL THAT EVERY AMERICAN UNDERSTAND IT TODAY, AS WELL. threat of prosecution is ridiculous. While virtually every domestic counterterrorism case has a criminal component to it, there are significant differences. This may include using intelligence collected within the United States to capture or kill known terrorists abroad; gaining a better understanding and knowledge of other suspected terrorists within the United States; enhancing preparedness and security as a result of a better understanding of terrorist capabilities, tactics and intent; bringing non-terror related charges (such as “lying to federal investigators”) against suspected terrorists within the United States in order to preserve the intelligence process; and, finally; bringing criminal charges against the individual(s) related directly to terrorism. Intel gathering or crime fighting? The US Supreme Court as far back as 1972 recognized the difference between intelligence-based investigations and crime control, and it’s critical that every American understand it today, as well. In United States v. US District Court, the Supreme Court Register online today for exclusive online content and eNewsletters 7