Combating Terrorism: With a Helmet or a Badge?

Jeffrey H. Norwitz

August 2002

Jeffrey H. Norwitz has been in law enforcement for 28 years. Formerly an Army Captain in Military Police and an El Paso County, Colorado, Deputy Sheriff, he is now a civilian special agent with the Naval Criminal Investigative Service, where he has served tours in California; Washington, DC; Rhode Island; Okinawa; Thailand; and Kuwait; as well as aboard submarines and surface combatants. He represents the Naval Criminal Investigative Service at the U.S. Naval War College, where he is a Professor of National Security Decision Making. He holds a criminal justice undergraduate degree from Eastern Kentucky University and a master of arts degree in strategic studies from the Naval War College.

Washington, DC—In a surprise development that has the Justice Department spinning, Saudi dissident and wanted terrorist Osama bin Laden appeared today at Washington, DC, police headquarters accompanied by a team of defense lawyers. His attorneys told stunned police officials that bin Laden wished to surrender to law enforcement authorities. Bin Laden, who has been chased all over the world following his 1998 federal indictment for the dual embassy bombings in Africa as well as his alleged involvement for the 11 September 2001 terrorist attacks, said he’d been hiding in Iranian caves ever since the American military assaults on Afghanistan began. He decided to turn himself in rather than continue to evade U.S. special forces who “wanted him dead—not alive.” His defense team refused to reveal how bin Laden, on the FBI’s ten-most-wanted list, managed to make his way into the country undetected. They demanded safety for their client while he is in detention and, assuming that bin Laden would not be afforded bail, insisted on his right to a speedy trial. A Justice Department lawyer who requested anonymity told reporters that in the coming weeks, bin Laden’s lawyers will probably move for full discovery of all evidence, testimony, witness identities, and details of the prosecution case. Additionally, anticipating that some of the evidence is classified, bin Laden’s defense team may move that security clearances be given to them as well as their defendant so that he can assist in his own defense. Exercising due process provisions, bin Laden’s defense team can be expected to force the prosecution to reveal sensitive criminal and intelligence leads or risk dismissal of charges. Furthermore, through the process of voir dire, designed to elicit information about prospective jurors so that attorneys can challenge members to find the most receptive audience, Justice lawyers are afraid that the defense will try to shape the jury with members who are amenable to bin Laden’s cause.[1] In one nightmarish scenario that has the Attorney General scrambling, the accused terrorist and murderer of over 5,000 people may claim that it’s impossible to receive a fair trial and challenge the justice system to relocate the trial where the population has no preconceived ideas about the 11 September attack, if that’s even possible. If not, the defense has a good foundation for appealing any conviction, based on an inability to receive a fair trial. According to an experienced attorney with the Justice Department, “This case will bounce from one judicial stage to another until the concept of justice becomes secondary to procedure. A trial court is simply not suited for dealing with the sort of legal quandary posed by prosecuting such a defendant.” Initial defense efforts to suppress evidence are already scheduled for pretrial motions next month.

How prepared are we for such a development? Is this the way the American public expects terrorists to be handled? Is this the sort of “war” that President Bush envisioned—a war of words, semantics, legal parsing of statutory phrases and constitutional rights granted to a murderous zealot who despises the very nation that grants him these rights? It’s time to consider very carefully how this nation goes about waging war on terrorism. Is terrorism a crime to be fought with search warrants and jurisprudence, or is it an act of war, as President Bush has affirmed? If criminalists with a badge are the warriors, then the battlefield will look very much like this fictitious account.

The American public was galvanized by the events of 11 September. Military members mourned lost Pentagon comrades but became resolute, as instructed by the President, who said, “I have a message for our military: Be ready.”[2] Meanwhile, our leaders in Washington demonstrated bipartisanship and genuine unity in the face of the largest terrorist attack ever on U.S. soil. Indeed, the word war became commonplace in media and government lexicon while citizens, political leaders, and the military became energized.

Curiously, as talk of military mobilization permeated the media, we heard of Herculean law enforcement efforts by thousands of federal, state, and local officers to gather physical evidence, execute search warrants, and run thousands of leads seeking to establish criminal culpability for the 11 September atrocity. This essay will examine old paradigms about terrorism and offer a perspective on how criminal approaches have not grasped the nature of this war.

Words Have Meaning

When viewed legally, terrorism will always be a crime regardless of whether the act is a murder, hijacking, kidnapping, or bombing. Within legal vernacular, terrorist crimes have “elements of the offense,” each of which must be proven beyond a reasonable doubt; venue must be established to determine the appropriate court to hear the case; finally, if convicted, a defendant will be sentenced in accordance with precedent, and appeals can run their course as well. Viewed through a political lens, terrorism is a tool of non-state or state actors, driven by religious or political ideation designed to manipulate governments and politics through violence. Consequently, terrorism can be dealt with either as a crime or as an attack on the body politic. Since defeating terrorism is clearly in our national interest, all elements of power (diplomatic, economic, and military) ought to be employed.

In defining the nature of war, Clausewitz held that “war is not a mere act of policy but a continuation of political activity by other means.” Terrorism is political activity, and the terrorist has chosen to make a political statement using violence. To further clarify what war is, consider Clausewitz’s observation, “The political objective is the goal, war is the means of reaching it, and means can never be considered in isolation from their purpose.”[3] In other words, war is a means toward a political end, and, correspondingly, terrorism is war.

Differing definitions confuse the question of whether terrorism is a crime or an act of war. The Defense Department defines terrorism as “the calculated use of violence or threat of violence to inculcate fear; intended to coerce or to intimidate governments or societies in the pursuit of goals that are generally political, religious, or ideological” (emphasis added).[4] In contrast, the Justice Department’s definition includes “the unlawful use of force or violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political objectives” (emphasis added).[5] Words mean something, and the differences are striking.

The Defense Department regards terrorism as a “calculated” act. The identity of the actor is irrelevant. It could just as well be an individual or a nation-state. Additionally, there is no suggestion of illegality—just that the act be purposeful as opposed to an accident, and intended to intimidate or coerce governance. Implicit in the Justice Department’s definition of terrorism is the concept of illegality, which clearly empowers the department, via the FBI, to take the lead in a terrorist incident. Thereafter, the best forensic science and investigative resources are secured, enabling leads to be disseminated and results analyzed among countless law enforcement agencies. But consider for a moment the statutory guidelines, jurisdictional limitations, and laws of jurisprudence that must be adhered to in the legal rubric.

Because the objective of a criminal investigation is successful prosecution, all law enforcement effort must withstand judicial scrutiny at trial. Provisions of Articles IV, V, and VI of the U.S. Constitution, as well as the Bill of Rights, offer powerful protections against law enforcement excess, which, by extension, applies to international terrorists operating on our soil. Moreover, every decision made by investigators will be reviewed for compliance with legal precedent from countless prior decisions with mind-numbing attention to detail. Any procedural error—intentional or otherwise—will be cause for suppression of evidence or testimony. And what about differing legal structures between allied nations in countering terrorism? Evidence obtained by one nation’s police may not meet the standards for admissibility into the court system of a partner nation. Likewise, will admissions of guilt be universally accepted in all courts regardless of which police conducted the questioning? Even if a conviction is obtained, the criminal justice system still will go over everything on appeal with the threat of a reversal of the first verdict. Is this the way we want to wage war on terrorists? Not according to the National Commission on Terrorism.

Federal Commission Findings

The National Commission on Terrorism was established by Congress in 1999 with the appointment of 10 commissioners (all eminently qualified), who, after a series of hearings and international visits, produced a report relative to new and emerging threats of international terrorism.[6] One of the commission’s recommendations was to “pursue a more aggressive strategy against terrorism.” Critical analysis was given to the question of whether terrorism should best be handled as a criminal matter, suggesting a new paradigm that would give the Defense Department a much greater leadership role in the event of a catastrophic terrorist attack. The members of the commission held that law enforcement tools were not adequate to address international terrorism. According to the commission:

Law enforcement is designed to put individuals behind bars, but is not a particularly useful tool for addressing actions by states. The Pan Am 103 case demonstrates the advantages and limitations of the law enforcement approach to achieve national security objectives. The effort to seek extradition of the two intelligence operatives implicated most directly in the bombing gained international support for economic sanctions that a more political approach may have failed to achieve. The sanctions and the resulting isolation of Libya may have contributed to the reduction of Libya’s terrorist activities. On the other hand, prosecuting and punishing the two low-level operatives for an act almost certainly directed by Qadafi is a hollow victory, particularly if the trial results in his implicit exoneration.

As it happened, only one of the Libyan defendants acting on behalf of the state intelligence service was convicted, and the other freed, without implication of Qadafi himself—a hollow victory indeed.[7]

In yet another example of apparent ineptitude of a police response to terrorism, research by the Christian Science Monitor disclosed that in the six months following 11 September, criminalists in the United States and Europe arrested nearly 1,400 people in connection with the attacks but charged only one. Moreover, no al-Qaeda cells have been uncovered in the United States.[8] Revelation of the 8 May 2002 Chicago arrest of New York–born Jose Padilla, aka Abdullah al Muhajir, for his part in planning a possible bombing attack on behalf of al-Qaeda is evidence of the value of militarily obtained intelligence employed to intercept a terrorist attack. Indeed, Padilla is being treated as an “enemy combatant” by the Justice Department and was sent to a military jail in South Carolina.[9]

While distinguishing terrorism as a crime or an act of war, Stephen Gale, a counterterrorism expert at the University of Pennsylvania, points out, “If you think someone is going to take out your electrical grid, in a criminal investigation you arrest him. In a war you shoot first and ask questions later.”[10]

Michael Clarke, head of the Centre for Defense Studies at London University, observed, “Terrorism poses a fundamental challenge to the legal system. Terrorists often do nothing indictable till they commit the act. Ninety percent of the time sleepers are absolutely legal, so you can’t do anything about them even if you know who they are. Terrorism challenges our categories of what is legal and what is illegal.”[11]

The National Commission on Terrorism’s findings highlighted unrecognized Pentagon organizational and resource strengths as they relate to terrorism.

The U.S. Government’s plans for a catastrophic terrorist attack on the United States do not employ the full range of the Department of Defense’s (DoD’s) capabilities for managing large operations. Additionally, the interagency coordination and cooperation required to integrate the DoD properly into counterterrorism planning has not been accomplished.

The Department of Defense’s ability to command and control vast resources for dangerous, unstructured situations is unmatched by any other department or agency. According to current plans, DoD is limited to supporting the agencies that are currently designated as having the lead in a terrorism crisis, the FBI and the Federal Emergency Management Agency (FEMA). But … when a catastrophe … is directly related to an armed conflict overseas, the President may want to designate DoD as a lead federal agency.

Missing from the commission’s report, but of equal significance, is DoD’s ability to compile worldwide intelligence from an array of sources unavailable to civilian law enforcement. Moreover, given the military intelligence community’s system of satisfying diverse intelligence requirements, the infrastructure to do the same with terrorism is a DoD strength—and without the dilemma of testimonial scrutiny at a later time. Does that mean that military operations are free from legal constraint? Of course not.


There is an ethos in America, rooted in our birth as a nation, that standing armies are a threat to governments, unless they are at war. Whig politics of the early American colonies held that when conflict is finished, so should be the standing army. Whigs believed that a standing military force in time of peace was a threat to liberty.[12] Evolution and compromise modified that dismal view of standing armies; however, the framers of the Constitution still wanted to limit the military’s authority over the population, and our citizenry today holds that protection dear. Three documents with presidential or congressional authorship seek to ensure legal limits of military power.

The Posse Comitatus Act is codified in law under 18 U.S.C. 1385 and explicitly prohibits, unless with presidential intervention, using the armed forces to execute laws upon the citizenry.[13] Executive Order 12333, “United States Intelligence Activities,” provides presidential endorsement to the limits of all intelligence activity, military and otherwise. The purpose of Executive Order 12333 is to balance constitutional protections against the need for timely and accurate information about the activities, capabilities, plans, and intentions of foreign powers, organizations, and persons.[14] Furthermore, Executive Order provides succinct, specific, and strong language relative to what Defense agencies may and may not do concerning intelligence activities. Lastly, Presidential Decision Directive 39, “U.S. Policy on Counterterrorism,” lays out roles and missions for federal organizations, including the Department of Defense.[15]

As the bulwark to protect citizens against military abuse, these three documents provide a tremendous check and balance on what our armed forces can do domestically in performing homeland security missions. In contrast to fears of rampant military disregard for legal framework and citizens’ rights, our courts are very attuned to permissible conduct, and so are today’s military commanding officers and service personnel. The Pentagon has already embraced urban warfare in training and doctrine, resulting in exemplary skills for dealing with such a challenging environment.[16] But perhaps the strongest argument for trusting our armed forces with domestic security is the fact that they are citizen-soldiers, exemplifying the truest sense of volunteerism as envisioned by George Washington. If there are constitutional limits on the military’s activity at home, what sort of guidelines exist for military operations on foreign soil?

The legalities of employing U.S. armed forces in foreign countries to battle terrorism are complex. Military operations abroad must complement, and be coordinated with, the strategic use of diplomatic and economic elements of national power. Likewise, if force is envisioned where casualties and property destruction are likely, the Law of Armed Conflict will limit military action to what is necessary, reasonable, and justified.[17]

Armed conflict is not the end of law. It is, in fact, the beginning of a different legal status as it relates to how belligerents behave. Two legal terms underscore the dimension for which the Law of Armed Conflict is codified: jus ad bellum is law that defines whether the conflict has a legal basis to happen in the first place; jus in bello is law that outlines what actions in war are legal in and of themselves. Clearly, war is not the absence of legal restraint, nor does war condone uncontrolled maniacal behavior. War crimes tribunals are evidence that the world will not stand for unconstrained military devastation. Any suggestion of unbridled American military vigilantes, ranging the globe on vendettas, is unsupportable.

American Perceptions

The American public has long held that terrorism was something that happened elsewhere. Former Secretary of State George Shultz theorized that our nation’s threat was “99% overseas,” and empirical data suggested this to be true.[18] In the 1970s and 1980s, international terrorist incidents varied annually from around 450 to more than 600 events. Occurrences lessened in the late 1980s; however, following the Gulf War, the number rose to over 560. By 1996, international terrorist incidents diminished to fewer than 300 a year.[19]

While the world experienced a statistical roller coaster of terrorist incidents, the number of domestic episodes remained startlingly low. America’s premier law enforcement community of federal, state, and local authorities was praised for having halted terrorism at our borders, and with that apparent achievement, law enforcement also took on the responsibility of consequence response in the event of a rogue attack. FEMA seemed the likely candidate for coordination of national assets, while local and state agencies looked to FEMA for direction. Naturally, FEMA turned to the Army for resources, training, and actual response capability, seeing the Army as possessing the greatest capability for response to disaster, which, not surprisingly, replicated the mayhem of warfare. Meanwhile, many Americans developed an artificial sense that somehow our guardian oceans would keep harm from our shores, as historically was the case. Terrorism experts, however, warned that this sense of safety was fictional because of broadened economic globalization and ease of world travel; 11 September proved them correct.

Nevertheless, what worked in the past seemed adequate to ensure domestic tranquillity, especially in light of competing demands for scarce federal resources. The Pentagon was committed elsewhere, and terrorism remained the domain of law enforcement. Americans expected terrorism to remain an “overseas” dilemma, and the public expected police to be the key protector of the homeland.

What Is Our Experience?

How did our country come to deal with terrorism this way? Upon assuming office, President Reagan was deeply affected by the Carter administration’s struggle against international terrorism and, as a result, was determined to deploy the traditional elements of national power to defeat the terrorist menace. Economic measures, diplomatic mechanisms, and military force were the tools that supported Reagan’s strategy. During the early Reagan years, terrorism became synonymous with warfare, particularly after 241 Marines and other servicemen were killed in Beirut by a terrorist truck bomb on 23 October 1983.[20]

Despite early military victories such as airstrikes against Libya and the capture of Abu al-Abbas, who was responsible for the Achille Lauro hijacking, other driving factors undermined America’s military assault on terrorism. Reagan’s use of military force against terrorists was curtailed when it appeared we had traded weapons for hostages during the Iran-Contra scandal, thereafter diminishing our credibility with other nations as a consequence of our deal with Tehran. Accordingly, military strategies became almost impossible to execute because of reduced international support; as a consequence, American counterterrorist emphasis returned to law enforcement and a judicial approach. Military involvement in counterterrorism dwindled as criminalists took over. Yet one dilemma remained: the lack of intelligence haunted the battle against terrorism and indeed continues today.

Good intelligence is the cornerstone for dealing effectively with terrorism, and the U.S. intelligence community, heavily dependent on superb technical collection means, is almost omniscient. Unfortunately, terrorists don’t tend to be vulnerable to technical collection, owing to their disparate cell-like nature and veiled operational profile, thwarting photographic and signals exploitation. Human intelligence collection is the most effective source but also the most difficult to obtain. Frequently, terrorist cells have familial foundations and are extremely difficult to penetrate. Unfortunately, American human intelligence collection capabilities were severely diminished during the 1970s and 1980s, when, responding to public outcry about the sometimes “dirty” nature of recruiting intelligence operatives, the CIA changed vetting practices, disallowing its agents to enlist sources with dubious backgrounds.[21] Furthermore, would intelligence agents be required to testify as to how they obtained information? For instance, would techniques of handling clandestine sources be subject to judicial scrutiny and rules of evidence admissibility? How could a legal case be prosecuted when “chain of custody,” a judicial requirement to establish authenticity of evidence, cannot be demonstrated for bomb-making gear supplied by a double agent? If law enforcement officers captured terrorists, would the terrorists face their accuser and have the benefit of legal representation? Lastly, the rise of “leaderless resistance,” a concept of independent action encouraging unitary but coordinated violence, has also severely limited American counterterrorist efforts.[22]

By 1990, with the fight against terrorism returned to the law enforcement world, the military went back about its business of fighting and winning the nation’s wars and was relegated to a supporting role in counterterrorism. However, the paradigm of FBI primacy in the fight against terrorism took a new shift on 21 September 2001, when President Bush addressed Congress and the American people to explain a new war on terrorism. According to the President and congressional sentiment, the military seemed again to be the tool of choice.

Present Driving Forces

Just seven months before the terrorist attack of 11 September, the U.S. Commission on National Security/21st Century, popularly called the Hart-Rudman Commission after its chairpersons, issued its Phase III report, Road Map for National Security: Imperative for Change. In it, the commission made some startlingly prophetic observations about the preparedness of the United States to deal with a catastrophic terrorist attack. One of the key findings is related to “organizational realignment,” in a subchapter of the same title. Therein is suggested the creation of the National Homeland Security Agency with cabinet-level status and direct responsibility to the president. The commission’s findings included minimizing the Justice Department and FBI’s leadership role in homeland defense and increasing Defense’s profile across the range of mission tasks.[23]

Likewise, increased priority of homeland security is reflected in the Quadrennial Defense Review (QDR) Report, which lays out a Defense Department vision for future force structure and strategy. The QDR “restores the defense of the United States as the Department’s primary mission.”[24] Furthermore, the Pentagon acknowledges that preparing for homeland security will impact organization and structure of future forces and redefine expectations of reserve and active components. Indeed, the newly issued Unified Command Plan established Northern Command as a separate combatant command to provide a more coordinated approach for military support to homeland defense civil authorities.[25] As a road map for national military strategy, the QDR points out that “the U.S. military will be prepared to respond in a decisive manner to acts of international terrorism committed on U.S. territory or the territory of an ally.” The Defense Department’s vision for the future unequivocally includes the war on terrorism.

On War, Clausewitz’s seminal work, states that war is successfully waged only when there is a synergy among the government, the military, and the will of the people. Support of all three is necessary for victory.[26] Likewise, Clausewitz observed that organized warfare between great powers has a construct that can be studied, albeit sometimes clouded by the fog and friction of battle. He also commented on the fortunes of a war against the likes of modern terrorists, suggesting that poor political understanding and a constrained military policy will play into the hands of an enemy that is without rules or moral limitations. As if predicting the difficulty of facing terrorism, Clausewitz observed, “Woe to the government, which, relying on half-hearted politics and a shackled military policy, meets a foe who, like the untamed elements, knows no law other than his own power.”[27]

Colin Gray, professor of international politics and director of the Centre for Strategic Studies at the University of Reading, England, has supported the idea that terrorists are enemy soldiers and not criminals, but he pointed out, “If we redefine what the concept and legal idea of ‘war’ encompasses, then so also will we have to redefine who can wage it legitimately.”[28] Indeed, the matter of militarily captured terrorists in Afghanistan challenged our concept of wartime prisoners and whether they could be questioned about terrorist activity. If interrogated as prisoners of war, must they be afforded self-incrimination protections? The American Bar Association, Task Force on Terrorism and the Law, concluded that the actions of 11 September 2001 were acts of war although, because noncombatant civilians were attacked, the perpetrators violated the law of armed conflict, forfeiting Hague Convention protections.[29] At the same time, Pentagon doctrine states that captured terrorists are not afforded prisoner-of-war protection because terrorists act outside the laws of war.[30] As we redefine notions about crime and war while rethinking strategies to fight terrorism, there are some key areas for consideration.

A New Paradigm Is Necessary

America must remove impediments, real and perceived, to Defense Department involvement in homeland security. First, we must reflect on the original purpose of the Posse Comitatus Act with a long view toward broadening the use of armed forces in traditional law enforcement roles. Only the military can truly deal with catastrophic events such as biological and chemical attack as well as radiological release and consequence management. Furthermore, the organic capability for superb military investigation, intelligence analysis, and fact-finding can be an invaluable augmentation of state and local authority during a calamity. This may need to include questioning of civilians and perhaps collection of information relevant to tracking terrorists. Furthermore, the possibility that this material may have evidentiary value cannot be discounted.

According to John R. Brinkerhoff, a retired Army officer and former FEMA associate director and senior career executive in the Office of the Secretary of Defense, the Posse Comitatus Act has been grossly misinterpreted as preventing the military services from acting as a national police force. Brinkerhoff pointed out that the Posse Comitatus Act was passed in 1878 when, reacting to Southern sheriffs and U.S. Marshals pressing Army troops into their service without Washington’s approval, Congress voted to restrict the ability of U.S. Marshals and local constabulary to conscript military personnel into their posses.[31] In passing the Posse Comitatus Act, Congress conceded the use of military troops for police actions when authorized by the president or Congress. Brinkerhoff offered his opinion that an erroneous interpretation has resulted from a general Pentagon desire to avoid quagmires involving domestic unrest. He added that much of the twisting of the Posse Comitatus Act was by persons averse to any role for military forces in law enforcement, including the military itself.

It now appears that to fully engage our armed forces to defeat terrorism, we must rethink posse comitatus. It is not a rigid proscription of use of the military to enforce or execute laws. Rather, when so ordered by the president, the military can support civilian authorities in a wide array of enforcement missions for which it is uniquely trained and equipped. Why continue to craft strategies that require states to shoulder an additional burden owing to the Posse Comitatus Act since, when strictly construed, it is no obstacle to a partnership of the armed forces and civilian authority in domestic security? Rethinking policy and practice regarding posse comitatus should be a priority for the new Department of Homeland Security as it creates links to the Pentagon’s Northern Command in the coming battle against terrorism, heretofore limited to the criminal justice system.[32]

The term preemption has drawn considerable attention, particularly in the President’s rhetoric, and deserves consideration in the quiver of weapons against terrorism. In a criminal context, police can frustrate unlawful schemes only within a legally consistent framework of probable cause, elements of the offense, legally obtainable evidence, reasonable expectation of privacy, hearsay, and entrapment. Preemption, as envisaged by the Law of Armed Conflict, has none of these constraints and therefore finds fertile ground as a military option. Along these lines, Peter H. Liotta, Professor of Strategy at the U.S. Naval War College, stated that terrorists can be expected to practice chaos as a strategy. “We will practice preemption against those who seek to harm our vital interests and our way of life. Military forces will increasingly be in the business of shooting archers, and not just catching arrows. That is to say that we cannot just wait for chaos provocations to occur before we react.”[33] According to Liotta, however, our execution of military options must be tempered by a clear understanding of the nature of the enemy and how, if misapplied, military force may play right into the hands of terrorists who will practice chaos as a strategy.


Considering the challenges and new risks that America is facing, “we are going to have to invent new ideas about what war is, and that will have far-reaching implications for the legal system,” says Stephen Gale.[34] Another terrorist attack in the United States is inevitable.[35] The role for law enforcement in this fight against terrorism and via the Department of Homeland Security is undeniable; coordination and consolidation of federal enforcement agencies will be the challenge for the new cabinet appointee. Nevertheless, we must acknowledge the limitations of constabulary soldiers and courtroom battlefields, put aside the fingerprint powder and handcuffs, and instead tighten our helmet straps. This is after all, a war.

Click on an end note number to return to the article.

1. More information about voir dire can be found at

2. President George W. Bush, “Address to a Joint Session of Congress,” 21 September 2001.

3. The late Michael I. Handel, a professor of strategy at the U.S. Naval War College, authored three books on Carl von Clausewitz. Handel established a matchless reputation as an expert on theories of war and Clausewitz in particular. Clausewitz is quoted in Handel’s Masters of War, 3rd ed. (London: Frank Cass, 2001), p. 68.

4. Department of Defense Directive 2000.12, “DoD Antiterrorism/Force Protection (AT/FP) Program,” 13 April 1999;

5. “Organization of the Department of Justice,” Code of Federal Regulations, Title 28—Judicial Administration, (Washington, DC: U.S. General Services Administration, National Archives and Records Service, Office of the Federal Register, 1 July 2001), hap. I,pp. 51-52;

6. The members of the commission were L. Paul Bremer III, Maurice Sonnenberg, Richard K. Betts, Wayne A. Downing, Jane Harman, Fred C. Iklé, Juliette N. Kayyem, John F. Lewis Jr., Gardner Peckham, and R. James Woolsey. See the Report of the National Commission on Terrorism, Countering the Changing Threat of International Terrorism (Washington, DC: 1999);

7. Information about the Pan Am 103 trial and conviction is available at

8. Peter Ford, “Legal War on Terror Lacks Weapons,” Christian Science Monitor, 27 Mar 2002;

9. Initial release of information on this case can be read at “Transcript of the Attorney General John Ashcroft Regarding the Transfer of Abdullah Al Muhajir (Born Jose Padilla) to the Department of Defense as an Enemy Combatant,” 10 June 2002;

10. Stephen Gale, quoted in Peter Ford.

11. “Sleepers” are persons who quietly reside in a community and go unnoticed by intelligence or law enforcement but in fact have criminal or terrorist objectives and are waiting for an opportunity or higher direction to execute a planned mission. Sleeper agents are very difficult to detect and harder to prosecute due to the benign nature of their lives. See Michael Clark, quoted in Peter Ford.

12. In the 16th century, a British political faction known as Whigs drew upon certain ideas of Niccolo Machiavelli, believing that any army powerful enough to defend a state would also have the power to overthrow it. The danger, according to Machiavelli, was especially acute in time of peace, when the army’s usefulness was finished. Therefore, the concept of standing armies was challenged by Machiavelli and by Whigs who found his philosophies attractive. This became central to their political thought and influenced early American colonial politics as well as the crafting of our Constitution and Bill of Rights.

13. An excellent treatment of posse comitatus is contained in Thomas R. Lujan, “Legal Aspects of Domestic Employment of the Army,” Parameters, Autumn 1997; The Posse Comitatus Act itself is available at

14. Executive Order 12333, “United States Intelligence Activities, 1981,” is available at

15. Presidential Decision Directive 39, “U.S. Policy on Counterterrorism, 1995.” This directive is classified Secret. A redacted version is available at

16. One example of innovative training in the area of urban operations is the Center for Emerging Threats and Opportunities, a partnership of the Marine Corps and the Potomac Institute for Policy Studies dedicated to exploring innovative ways to deal with non-conventional threats to national security;

17. Yale Law School provides an extensive reference resource concerning the Law of Armed Conflict;

18. George Shultz, quoted in Douglas Menarchik , “Organizing to Combat 21st Century Terrorism,” in The Terrorism Threat and U.S. Government Response, ed. James M. Smith and William C. Thomas (Colorado: USAF Institute for National Security Studies, 2001), p. 222.

19. U.S. Department of State, Patterns of Global Terrorism (Washington, DC: 2001), as well as earlier annual reports;

20. More information about the Marine barracks bombing is available at

21. An outstanding treatment of the challenges of human source intelligence and specifically the recruitment of questionable sources was authored by Admiral Stansfield Turner, U.S. Navy (ret.). The author reviewed his controversial tenure as Director of the CIA and the problems of operating a secret intelligence organization in a democratic society in Secrecy and Democracy: The CIA in Transition (Boston: Houghton Mifflin, 1985).

22. The concept of leaderless resistance was proposed by Ulius Louis Amoss in 1962. In 1983, Louis Beam expounded on Amoss’ idea in a quarterly journal, The Seditionist, wherein he wrote an essay proposing the overthrow of the American government. Leaderless resistance is a system based on the cell organization but does not have any central control or direction. Under the leaderless resistance concept, all individuals and groups operate independently and never report to a central headquarters or single leader for direction or instruction. Beam’s essay is available at

23. The commission’s suggestion of a cabinet-level agency to deal with homeland security included some of the earliest deliberation reflected in the President’s recent proposed Department of Homeland Security. See the United States Commission on National Security/21st Century, Road Map for National Security: Imperative for Change (Washington DC: 2001), pp. 10–29.

24. U.S. Department of Defense, Quadrennial Defense Review Report (Washington, DC: 2001). A copy and analysis of the QDR are available at

25. More information about Northern Command is available at

26. Handel, p. 102.

27. Ibid., p. 121.

28. Colin S. Gray, “Thinking Asymmetrically in Times of Terror,” Parameters, Spring 2002, available at

29. American Bar Association. Task Force on Terrorism and the Law, “Report and Recommendations on Military Commissions,” 4 January 2002;

30. Joint doctrine states, “By definition, terrorists do not meet the four requirements necessary for combatant status (wear uniforms or other distinctive insignia, carry arms openly, be under command of a person responsible for group actions, and conduct their operations in accordance with laws of war).… For this reason, captured terrorists are not afforded the protection from criminal prosecution attendant to prisoner of war status” (emphasis in original). See Joint Chiefs of Staff Publication 3-07.2, Joint Tactics, Techniques and Procedures for Antiterrorism (Washington, DC: 17 March 1998);

31. An excellent treatment and analysis of posse comitatus and its history are found in John R. Brinkerhoff, “The Posse Comitatus Act and Homeland Security,” Journal of Homeland Security, February 2002;

32. The Department of Homeland Security is fully defined and discussed at

33. Peter H. Liotta, Professor of Strategy at the U.S. Naval War College, wrote about the emergence of “adversaries who … will increasingly look for innovative ways to ‘attack’ without attacking directly the brick wall of American military predominance. The chaos strategist thus targets the American national security decision-making process and, potentially, the American people, rather than American military force, in order to prevail. Such a strategist seeks to induce decision paralysis.” Liotta applied this concept to the war on terrorism and offered insightful analysis for American defense planners. See P. H. Liotta, “Chaos as Strategy,” Parameters, Summer 2002;

34. Stephen Gale, quoted in Peter Ford.

35. “In response to a senator’s question about the gravity of the threat, one intelligence official said there is a ‘100 percent’ chance of an attack should the United States strike Afghanistan.” See Susan Schmidt and Bob Woodward, “FBI, CIA Warn Congress of More Attacks as Blair Details Case Against Bin Laden; Retaliation Feared if U.S. Strikes Afghanistan,” Washington Post, 5 Oct 2001; According to a CBS News poll on 3 Apr 2002, 74% of questioned Americans thought that another terrorist attack was likely.