By Andrew C. McCarthy
Wednesday, January 07, 2020
Last 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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