Truman Series: Terrorist Prosecutions Should Evolve

The following is the latest in our series from fellows in the Truman National Security Project.  Mike Foote writes:

The Department of Justice has made prosecuting terrorists its top priority, but those prosecutions generally focus on domestic support systems for terrorist groups. There have been many successes, including a recent 20 year sentence for Ohio resident Christopher Paul, who provided training and other support to al Qaeda since the early 1990’s. There have been some setbacks too. Some prosecutions required new trials after hung juries and others had to settle for a less than optimal result.  This is inevitable in the criminal justice system.

But last week a new kind of criminal terrorism case succeeded. Iraqi insurgent Wesam al Delaema pled guilty in a U.S. federal court to conspiracy to commit murder of U.S. nationals by targeting American soldiers in Fallujah from 2003 through 2005. This conviction is the first of its kind – the first time a foreign insurgent (al Delaema is an Iraqi-born Dutch citizen) was convicted in a U.S. court for acts against American soldiers entirely outside of the United States.  His guilty plea shows the great potential of federal prosecution as a counterinsurgency tool.

More officials realize al Qaeda and other Islamic extremist groups represent a global insurgency, and our fight against those groups should be a counterinsurgency rather than the now disfavored “global war on terror.” But the role of federal prosecutions has not been adjusted to reflect that fact. Put simply, the United States must prosecute more enablers of the global insurgency.

There needs to be more prosecutions against people like Afghan narco-trafficker and Taliban supporter Khan Mohammed, who once told undercover agents that drugs can be just as effective against Americans as guns. It is well known that drug trafficking by Mohammed and other Afghans have fueled the Taliban’s resurgence.

The United States can also aid other governments by extraditing and prosecuting their insurgents who violate demobilization and cease-fire agreements, as it did recently with terrorist drug traffickers from Colombia.

Just as important in these instances is the fact that insurgents are treated like mere criminals rather than soldiers who die in a noble battle. Prosecuting terrorist supporters is not as sure as dropping on bomb on them, but it is a lot less likely to cause collateral damage. It is also more likely to succeed over the long term. A well known tenet of counterinsurgency is that the governing authority competes against insurgents for legitimacy among the people.The government cannot simply kill its way out of an insurgency. It must provide security under the rule of law.

Our preventive prosecution model should focus more attention on terrorist defendants whose prosecution will enhance U.S. legitimacy and that of friendly governments. The Department of Justice needs to be an active part of a larger COIN strategy against the global insurgency. Public and fair trials to illuminate the connection between the Taliban and heroin, or the connection between insurgent activity and civilian deaths, are two ways among many. But these prosecutions will not be as effective unless they are seen as part of a larger goal: counterinsurgency.

Mike Foote is a prosecutor in Colorado and completing a study on trials of the Colombian FARC in the United States.  The views expressed here are his own.