We are privileged to have with us tonight Amos Guiora. Mr. Guiora is a professor at Case Western Reserve University School of Law and director of its Institute for Global Security Law and Policy which was created in 2005 to provide guidance on pressing security problems in the post 9/11 environment. He is the author of the upcoming first of its kind casebook "Global Perspectives on Counterterrorism". For 19 years Professor Guiora served in the Israel Defense Forces Judge Advocate General's Corps retiring at the grade of Lieutenant Colonel. He held senior command positions in the IDF and was involved in many legal and policy issues, including the capture of the PLO weapons ship - the Karine A in 1997 and implementing the "Safe Passage" Agreement between the Gaza Strip and the West Bank a negotiation that lasted from 1994 to 1999 - the 1994 Gaza-Jericho Agreement and the 1993 Israeli-Palestinian Interim Agreement that was signed in our White House. Professor Guiora also had command responsibility for development of an internationally recognized interactive video teaching IDF soldiers in a 11 point Code of Conduct Based on International Law, Israeli Law and the IDF Code. Professor Guiora graduated Kenyon College and from Case Western Reserve University School of Law. He is frequently interviewed and is been published in the national and international media including CNN, The Washington Post, PBS, The New York Times and the BBC. This week is participant in the Stanford Law School conference on Global Constitutalism. Please join me in welcoming Professor Guiora. Thank you very much good evening. What I would like to do in about 25 or 30 minutes is talk to you about what I call "Global Perspectives on Counterterrorism" and then to open up for questions. So as a lawyer ultimately we all make our living in defining things. So the first thing we have to do is to define what is terrorism? We all are using this expression terrorism, counterterrorism what does it mean? Schmid and Jongman - two scholars have come up with a 109 different definitions of terrorism. So you are struck with their definition and it is as follows. Terrorism is the act intended to kill, injure, cause damage to property or intimidate a civilian population for the purpose of a cause. I define the cause as three types of causes one is political, one is social and one is religious. But what's important to emphasis in the context of understanding terrorism is the determination on the part of the terrorist to harm a civilian or an innocent civilian population. That is what makes terrorism what it is. Then we will go about developing a counterterrorism policy. I suggest there are three very critical overarching principles - all three problematic. One is that the policy must be subservient to the rule of law because if you have a policy that is not subservient to the rule of law then frankly you become like the terrorist. So the first thing is rule of law. But what does that really mean? Because ultimately we have to be able to take these abstract concepts and articulate them in a practical sense. It means that here in the United States that we are going to respect the constitution other nations will be will respect their own domestic laws and in addition we will at all times respect international law. International law is one of those concepts that we all talk about those of us talk about International law. There is something amorphous about it, there is something that is murky about it and there is something that is very not very much undefined about international law. That being said there are four important principles of international law that are relevant to counterterrorism. One is collateral damage. What does that mean? That if you are going to go kill the bad guy you have to minimize the damage you cause to innocent civilians. How do we define minimal - how do we define minimize don't know but it's a principle that must be respected. The second principle that must be respected is proportionality. Proportionality if I make something complicated as simple is if the terrorist who are planning on doing something to is all he is doing is throwing stones at us aren't any great reason to cause him any harm on the other hand if he is about to go blow us up then we need to do something. The third important principle is military necessity. Military necessity means that he is indeed about to do something severe and that then implies the concept of immediacy. So the first principle rule of law constitutional law plus international law. The second principle that's complicated in itself now we got even more complicated. The second principle is morality and arm conflict. Five years ago somebody would have been invited to speak in front of this distinguished group he would not have spoken to you about morality and arm conflict. It is a new concept in the context of arm conflict. It did not frankly exist when states were fighting states in the context of traditional warfare. But because we are today not engaged in traditional warfare, but we are in something called arm conflict where the Israeli Supreme Court calls arm conflict short of war war minus. It means ultimately that from the perspective of the soldier not in the battlefield, but in the zone of combat, the person standing opposite to him is not a soldier, but he is a civilian and that soldier has to determine whether or not that the person standing opposite him is an innocent civilian or combatant and if he is a combatant, is he a legitimate target? And what is a legitimate target? And what does that person have to do in order to become a legitimate target? The soldier in real life has maybe a second to decide that. The third important principle that must be discussed is what I call effectiveness. Because if we are going to have a policy that's lets say, legal and still based on the morality, if its not effective then you haven't done anything. So how do we go about to defining effectiveness? Or conversely how do we define non-effective policy? Unfortunately, one of the realities of counterterrorism whether it's practiced here in the United States or anywhere in the world is that we really do not have an empirical sense of effectiveness in counterterrorism. So that means we are doing a little bit of, you know, a litmus test, little bit of a finger in the wind. On the other hand on the other hand no nation state can undertake a policy such as killing somebody who they think is the bad guy, that at least attempting to understand the word effectiveness. How do we go about defining it? So there are some thoughts. Lets say that there 100 policemen who guard LAX, not the San Francisco Airport, LAX is better. And then tomorrow morning there is a terrorist attack at LAX and then people die. Does that mean the policy of having a 100 soldiers guard or 100 policemen guard LAX was ineffective? Don't know. On the other hand for the next five years there is no terrorist attack in LAX, does that mean that the policy is effective? Don't know. There is no - unfortunately there is no clear matrix in articulating effectiveness or ineffectiveness. On the other hand there is always a matter of on the other hand in these matters. Nation states must be able to articulate a policy that is based on morality and the rule of law. So when one makes a quick scope around the world looking around see how different nations conduct their business one sees some things that are good and some things that are very disturbing. Before I go into the quick analysis of five different countries here are some thoughts preliminary thoughts. First of all we are not going to win the war on terrorism, because first of all according to international law war can only be between states, Al Qaeda or the terrorist organizations are not a state. So we are not going to we are not in conflict against the nation state. That means then that international law which was when it was created and talked about nation states has changed. It is now nation state against non state states in the context of a war is something different, it is behind us we are into actor. Some non state actor state supported, but the concept of nation states against nation states in the context of a war is something different, it is behind us we are into actor. something very different. So in the context of counterterrorism we have to create an entirely new paradigm. So then the question becomes what paradigm is applicable to terrorism? Are they criminals, are they soldiers, are they something else? If we assume that they are criminals then if they are arrested, they are to be granted a full criminal law, trial as we know from that from all the TV shows in criminal law. I suggest that's inappropriate, but we have to think about something that's appropriate, because we believe in the rule of law. The opposite paradigm is the POW paradigm - Prisoners of War. We need that they are entitled to full Geneva Convention protections, cant be brought to trial if they committed a crime aboard or committed a crime in captivity. And I don't think that the people who we have detained be at in Baghdad or Abu Ghraib or Guantanamo are people who do we do not want to bring to trial, we do want to bring to trial, the question is in what context do we bring them to trial? If you agree with me that it's not a full criminal law process that has to be something different. What is that there is something different going to be? So I have articulated that it is something called the hybrid paradigm. I can't think of a better term somebody has a better idea, I am open to suggestions. The hybrid paradigm says the following: The individual who has been arrested will be brought before a judge, he will not be held in indefinite detention and when he is brought to trial, he will be brought to trial, but he will not in all circumstances have the right to confront his accuser unlike the Principle of Guarantee of the Eight Amendment in the United States Constitution. So it's a criminal law process minus. On the other hand because he can't be brought to a trial its he is not a POW. So it's POW minus, criminal law minus and that is this hybrid paradigm. An addition to that I suggest - I offer that if we are going to bring these people to trial we cannot bring them to court as we know that United States Civilian Courts to be according to article three the United States Constitution is to be something very different. I suggest that we will establish a domestic terror court where they will be no juries, where they will be the right to appeal convictions or acquittals to the United States Supreme Court, criminal law minus POW minus something in between. So now lets from there take off to see how five different countries go about conducting operational counterterrorism. One more word, counterterrorism or operational counterterrorism - counterterrorism policy is predicated on four things: the law, policy, operational decisions who am I going to kill and fourth intelligence gathering. If you do not have good sources you cannot then conduct operational counterterrorism in a lawful fashion because you are then you are going to kill people in a discriminatory or arbitrary fashion. It is the worst thing you can do. With that are the way let's look at five different countries and their responses. Let's begin here, in the immediate aftermath of 9/11 former Attorney General of this great land, Mr. Ashcroft ordered the FBI to arrest anybody who look like an Arab American. Now is that bad? It's horrible. Why did he do it? Because it is what I call a panic response. For those of us who remember our American history the first thing we need to think about is one, the Japanese-Americans post Pearl Harbor (indiscernible) all over again, two, its all about guilt by association, three, its round up the usual suspects, four, its ineffective, five, its illegal, six, other than that that's fine. Of the 5000 people who are detained in the immediate aftermath of 9/11 because they look like Arab Americans only last fall when the last ones finally released. There was no basis for their detention. In terms of analyzing a counterterrorism policy, if I were in the business of giving a grade you mention them academic then we will have to give grades right, for this you get an "F". But not only does the administration get "F", just as troubling in the context of the American Constitution there is a thing called checks and balances and separation of powers. So you do have to ask yourselves, where was the congress and where was the United States Supreme Court? So if the administration gets an F, I think there is no grade lower than F - so they all three get Fs, because here is a little been yet that should be very you should all view as problematic. In November of 2001, President Bush signs a Presidential Order establishing Guantanamo Bay. The first senate hearings are held in December of 2001 and Ashcroft is about to before the Senate Judiciary Committee, the then Chairman of the Senate Judiciary Committee Pat Leahy says to Ashcroft, he says, "Do you know how I know the President issued a Presidential Order establishing Guantanamo Bay?" And Ashcroft says, "No, how do you know?" And Leahy says to him, "Thank god, my wife has a subscription to The Washington Post." That means the following: It means the administration did not consult with the congress. It means the congress allowed to play ball with the administration and did not engage in what I called active oversight which is ultimately the responsibility of the congress. Where is the Supreme Court in all of this? Only this past summer the Supreme Court finally, five years after 9/11 issue a case called (indiscernible) in which they articulated that the military commissions are problematic borderline illegal. It took five years. That I think is extremely problematic and there is how we go forward and I will offer a solution about that in a second. So in terms of a response to terrorism post 9/11 I think there are some things that need to trouble us trouble us enormously. The next country I suggest we look at is probably is the world's laboratory for counterterrorism - Terrorism in Israel. In the name of full disclosure in addition to what you mention here at the beginning for three years when I was a legal advisor to the Gaza Strip with the exception of two and half decisions which are irrelevant for this conversation I personally was involved in every operational decision that required a legal opinion made for three years in the Gaza Strip. If my wife were here she would tell you that's why your husband, that's me, doesn't have any here. Because the day in day out responsibility for those serious decisions, I mean, real life decisions including who shall live and who shall die? Ultimately what I did for a living. So in terms of looking at different policies, the first thing I would say about Israel is you made every effort sometimes succeeding to balance between the rights of the individual and then equally legitimate rights of the State. Now that sounds easy, here we are in beautiful San Francisco, but ultimately all of these policies are implemented by a 19 year old soldier who really has to decide this way or tha way. It's extremely difficult to do, so only I will give you a couple of concrete examples. We had a policy of demolishing the homes of Palestinians who were suspected of having committed acts of terrorism. Blowing up their homes was in addition to the criminal law process it was intended to impact, affect, deter the community because we figured if we blow one persons house other people in the community will not follow suit and will not become terrorists. So we argued deterrence for 30 years. And it was argued in front of the Supreme Court and the Supreme Court bought into it the Israeli Supreme Court. Two years ago, former Prime Minister Sharon said, you know, what let's actually look at the policy, let's ask ourselves is this really deterring, is it really effective, does it really do a damn thing? The idea of commission took a couple of months and came to the conclusion that no, it doesn't and there is good news and bad news. The bad news is for 30 years we were blowing up people's homes, that's bad, the good news is at least we engaged in lessons learnt and asked ourselves if something was working, it took 30 years, on the other hand better late than never. There is no doubt however that it raises important questions about collective punishment, about effectiveness and about what is called blowback, blowback being cycle of violence meaning that we have done something to a family that caused them pain, what would their children do? Because you must always ask yourselves whenever you conduct operation to counterterrorism, how does somebody who is passively watching, a child for instance, how does it effect him? So the house demolition policy I think at the end of the day, I think most of us who were involved in this stuff will tell you that it was not effective. On the other hand here are a couple of examples of effective counterterrorism policy which I suggest are legal and I appreciate the fact that not everybody will agree with me. One is a security fence between the West Bank and Israel, is very unattractive - I don't know how many of have seen it, I took my wife to see it and I said to her do you know what this is and she says I didn't know we built a new jail, I said, no, its not a jail, its the fence. It's not attractive but it's extremely effective for it's what it is primarily intended to do and that is to prevent Palestinians from crossing for the West Bank into Israel, that's the good news. The bad news is that involved taking land from Palestinians albeit compensated, but land was taken from Palestinians, the Israeli Supreme Court said it affected the very fabric of life of the Palestinians. Its constant balancing, but I think that from the perspective of preventing people from coming into Israel the fence is success is effective, that it caused damage to the Palestinians, yes. Is that something that you can argue in terms of balancing? I think so, yes. The other policy is more complicated and that's called the targeted killing policy. For those of you who don't know targeted killing is a decision by the state to kill you know, I will pick on you okay, I will pick on you you know, one of you, all right but don't worry you will come back, okay. We are going to kill you because we have intelligence information. That tells us you are going to blow up this building, go back to the four principles I talked about earlier, alternative proportionality, collateral damage and military necessity. According to the targeted killing policy which was approved by the Israeli Supreme court in December of this year last year, I can do so provided, one, that the intelligence information was reliable, viable and collaborated and that there was no other way to prevent you from killing all of us. The decision to go bang-bang either by a hell fire missile or to have a sniper take you out is ultimately the most complicated, complex and difficult step in or measure in operational counterterrorism. It requires intelligence analysts to be very honest about the intelligence material. It requires somebody to talk to the source, somebody to understand if the source is giving information because I don't mean to pick on you because may be you are messing with his sister, may be has his own agenda, it is the most difficult thing and then you have to have operators, people actually do the shooting tell the senior commander I can sorry kill you without killing you the people behind you or that if I am going to blow up the building, where you are in, the structure of the building is such in terms of of structural engineering that the building won't implode or explode and the other people won't be killed. It is the ultimate act in counterterrorism, but I argue. If you believe in aggressive operational counterterrorism under the rule of law, Article 51 of the United Nations Charter it is defensible and here is and here is how it is defensible. Self defense according to the international law can occur only if a state has been attacked - well after an attack has occurred. So there is a problem here because if you believe in aggressive counterterrorism policy you have to change international law. It must be revamped to allow the state to attack before it's attacked. But to justify an attack you need intelligence information. So if you will think about the four legs of counterterrorism that I talked about, the most critical one is intelligence information, because if you don't have good intelligence you do the following, you do what the Russians do to the Chechens in Chechnya. The Russians conducted two tier counterterrorism policy one good, one bad. I start with the bad; they could do what I call nonspecific counterterrorism which is a very polite term for what we would call aerial bombings. Bombing you know, carpet bombings, trying to kill as many people as you can for no specific reason without a specific target. Its all about collateral damage and it is a very serious violation of international law. On the other hand the Russians have done what I call a specific counterterrorism which is targeted killings. The problem the Russians have in with the Chechens is in terms of the Chechen population which is a clan based it is almost impossible to gather intelligence information. And if you cannot gain intelligence information but you believe in operational - aggressive operational counterterrorism, the distance between here and committing crimes against international law is very short. The Russians therefore I would suggest in terms of how they conduct their operational counterterrorism regularly commit crimes against not against crimes to humanity but in terms of human right violations, that's called that. Do they have a choice? Well, they have a problem, because the Chechen terrorists have done a number of horrible attacks be at the Beslan School house, the Moscow State Opera, the apartment buildings in Moscow, so the Russians have a significant problem of Chechen terrorists who were committed to the establishment of Chechen State plus the Russians are not able to penetrate Chechnya's society in terms of intelligence gathering, the result is non specific counterterrorism and human rights violations. So that's not very good. In addition to that in terms of checks and balances and separation of powers Russia is what is called a managed democracy which I think is a very pleasant sounding euphemistic term for an unfitted executive with a very weak Duma and a constitutional court that doesn't really have the teeth to engage in active judicial review. From there we are going to go to India. India of all the countries that I am going to talk about is frankly the most interesting because India has three kinds of threats - it has to respond to three kinds of threats. One is external, one is external-internal and the third is internal. What is external? This India has a neighbor called Pakistan, both nations have the bomb. So there is mutual assured deterrence and that's an external threat. But what complicates Indian counterterrorism is the following, the significant percentage of terrorists attacks in India are Pakistani driven, Pakistani paid and Pakistani motivated. But India's operational response in inherently limited because if they respond to Pakistani driven terrorism it means that ultimately they are going to engage the Pakis in conflict and because both nations have the bomb that's lose-lose. Meaning the Pakistani driven terrorism India cannot really respond, the only kind of terrorism that India can really respond to is what I call internal terrorism that's home grown terrorism, not Pakistani related. But what happens in real life in India is also problematic because the Indian response here is two fold. One is the an act legislation that in terms of violating basic rights is harsh and when they finally let their security forces engage operation in combat against terrorist they too ultimately have significant human rights violations. So the two tier response, one legislative with violations of civil and political rights and the other is operational which often times leads to a significant human rights violation, also not good. The last country is Spain, Spain is not India is most interesting, Spain may be the most interesting to talk about. In the immediate aftermath of the bombing of the Madrid Train Station two three years ago, in March of 2004 which was a run up to the Spanish election, Spain did the following, Spain the new government withdrew from Iraq. That have been the issue in the Spanish election, the opposition party had said it was a one agenda ticket saying withdraw from Spain the party wins President Bush calls the newly elected Prime Minister of Spain and literally begs him not to withdraw from Spain, telling him the following, that if you withdraw from Iraq not from Spain, from Iraq you have been you will give into terrorism. You will be acquiescing in the face of terrorism. The newly elected Prime Minister of Spain says, Mr. President this is what I promised to Spanish people, I am going to honor my promise. So he withdraws, the world accused Spain of acquiescing in the face of terrorism. On the other hand three years later there has not been one act of Islamic terrorism in Spain; there have been acts of Basque related terrorism in Spain but not of Islamic related terrorism in Spain. Does that ultimately mean that the policy of not responding is effective? May be yes, may be no. On the other hand nations that engage in aggressive operational counterterrorism, United States and Israel, Russia obviously, examples of that have they put an end to terrorism? No. So is the Spanish model the correct one? I don't know but it is certainly something that one needs to think about in terms of where we go from here. So where do we go from here? First of all, I argue that the terrorism counterterrorism is the new 100 year war. When my unborn grandchildren will be my age we will still be dealing with this. There will be good days, there will be bad days but we are not going to win the war on terrorism, the best we could hope to do is may be to marginalize, may be to minimalize terrorism but there are some parameters or some limitations on how you go about doing it? One, you cannot allow yourself to go down the slippery slope of violating human rights, because once you start going down that slope you can't stop yourself. And once you actually go down that slope you end up being just like them. And you loose your morality and you loose, from my perspective what we are all really all fighting for. The just retired president of the Israeli Supreme Court Baraq described in the following way. He said civil democratic society must engage in self-imposed restrains, sounds easy, what does it really mean? So, IDF commanders went to tell him the following. They said what is this self-imposed restrains? And Baraq says here is what it means it means that you guys will fight the terrorists with one arm tied behind your back. Commander said to Baraq, it sounds good but the problem is that the bad guys have two arms in front of them. Baraq said, that's right and that's how you are continue fighting them, with one arm tied behind your back. That means inherently or intrinsically that the state assumes on itself possible deaths of innocent civilians. On the other hand the balancing act requires that the state also protect its citizens. There is no greater challenge facing the decision makers, the policy makers and the public than to ask its leaders the difficult questions of how are we going to go about conducting counterterrorism. Couple of closing thoughts, first of all no one state has the answer, no one political leader has the answer, there is an absolute requirement, mandatory from my perspective to engage in a comparative analysis of how different nations go about doing this. We have no choice but to learn from each other. We have no choice but to learn from each other operationally, we have no choice but to learn from each other legally, judicially and in terms of policy. Otherwise, we will go about it by ourselves as unilateralist and at the end of the day that obviously doesn't work. The public has an absolute requirement from my perspective, to demand that it's needless to say the truth in terms of what is the plan? What's the policy? Why are we doing this? And why are we not doing that? To do so requires the public to be truly aware what's happening here and what's happening elsewhere. The ultimate threat facing all of us obviously is terrorism, not that necessarily it threatens our very existence but it is that the daily grind of terrorism that affects how we respond to others and ultimately is going to define who we are as a society. Thank you very much.
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