America’s Counterterrorism Partners as a Check on Trump

By Zachary Burdette
Wednesday, March 1, 2017, 9:00 AM

President Trump has begun to shift U.S. counterterrorism policies toward an extreme paradigm that departs from both liberal and conservative orthodoxy. In his first weeks in office, Trump recast the enemy as radical Islam, reconsidered U.S. policy on black sites and torture, and instituted a travel ban covering seven Muslim-majority countries. The unifying logic of these approaches is one of defining Islam as the problem, unshackling humanitarian constraints, and adopting extreme tools to combat terrorism. In implementing this vision, Trump inherits an already formidable counterterrorism architecture and an expansive legal interpretation of executive war powers from the Obama administration.

Ideally, the checks and balances of the U.S. political system will force moderation and curtail executive overreach. The national security bureaucracy, Congress, the courts, the press, and civil society are—individually and collectively—powerful impediments to illegal and extreme counterterrorism measures. While there are fierce debates over how effectively these domestic constraints have operated in the past, the early judicial challenges to Trump’s counterterrorism policies suggest that domestic institutions could place meaningful constraints on the new administration.

International dynamics may reinforce these domestic checks and balances. U.S. allies and partners could leverage their continued cooperation on counterterrorism to pressure the Trump administration to exercise uncharacteristic self-restraint. In other words, the United States could soon face an uncomfortable dilemma: President Trump must either restrain his most hawkish impulses or his administration may find itself increasingly going it alone in the war on terror.

The Trump administration may not be concerned about such a possibility, given the President’s dismissive attitude toward American allies throughout the campaign, but it should be. Allies provide important assets in international counterterrorism operations, many of which the U.S. intelligence community would be hard-pressed to replace.

If partners believe the new administration’s counterterrorism policies are illegal or excessive, they will likely turn first to diplomatic condemnation to induce moderation. The collective voice of the international community shapes expectations about what is acceptable, which raises the political costs of crossing certain legal and political thresholds. Global outcry would lend weight and legitimacy to those inside the United States calling for restraint, serving as an external prompt to jumpstart dialogue and the internal processes of U.S. checks and balances. For example, international naming and shaming of the Obama administration helped end the U.S. practice of spying on the communications of certain allied heads of state.

While the Trump administration may prove itself immune to such international condemnation, there is some cause for optimism. In addition to his uncompromising demand for unconditional praise, one of Trump’s few consistencies is his lack of principled commitment to any particular policy. He flip-flopped on proposed counterterrorism measures when domestic audiences criticized him during the campaign. A concerted, global effort may have a similar effect during his presidency, especially if it were combined with fawning praise for his leadership when he moderates.

Yet the more significant leverage is not public moral suasion but private threats of withholding vital counterterrorism cooperation. The United States relies on a world-wide network of partners to carry out the war on terror. While the kinetic effects of drone strikes and special operations raids receive the most attention, a foundational element of post-9/11 counterterrorism has been an immense allied intelligence campaign to crack down on transnational terrorist networks.

Intelligence cooperation is a force multiplier for American efforts. U.S. partners provide critical human intelligence assets, share tips, arrest suspects, and allow American interrogators access to detainees. They offer the United States on-the-ground resources across the world on a scale that dwarfs what the U.S. intelligence community alone could provide. Beyond intelligence sharing, partners grant the United States the fly-over and basing rights necessary to sustain its air campaign against terrorist networks. Individually these are helpful, but in the aggregate they are essential.

The highly-secretive U.S. intelligence community cooperates with foreign governments because it must. Terrorism is a transnational problem that requires a transnational response. If the United States could conduct all necessary intelligence gathering and operations without involving foreign intelligence agencies, it likely would. But it cannot, and this reliance on foreign support gives U.S. partners some leverage over American decision-making on counterterrorism.

Ashley Deeks has explored the dynamics of how this interstate intelligence cooperation constrains the U.S. intelligence community, referring to these limitations as “peer constraints.” In intelligence operations involving multiple nations, she argues, the United States has to comply not only with its own laws but also with those of its partners—even if they are more restrictive than American law. Foreign intelligence agencies require U.S. compliance so that foreign operatives do not face legal sanctions for aiding and abetting what their court systems consider illegal conduct. The constraints that intelligence communities place on their peers are institutionalized both formally and informally, and can induce restraint in an intelligence agency if its peers are committed to the rule of law and have valuable cooperation to leverage.

With partners closely watching the Trump administration for changes to U.S. policy and potential U.S. violations of international laws and norms, the President cannot take their cooperation for granted. Though American partners have strong security incentives to work with the United States, security is only one among a hierarchy of values that countries prioritize: The European states, in particular, share a strong commitment to upholding human rights. If the United States returns to practices such as torture, European governments may curtail intelligence sharing with the United States out of fear of becoming complicit in American humanitarian abuses.

Extreme counterterrorism measures could also create strategic incentives for partners to curb their cooperation with the United States even if they care little about human rights. Within countries like Pakistan, Trump’s proposed actions could prompt greater anti-Americanism and radicalization. These concerns already plague the existing drone program, which involves relatively restrictive targeting rules. If the United States demonizes Islam, portrays the war on terror as a cataclysmic clash of religious civilizations, and loosens humanitarian constraints on civilian casualties, the Pakistani government could lose both the political appetite and the strategic incentive to work with the United States. Its leaders may calculate that even tacit collaboration with the United States would aggravate its already vexing internal security challenges by delegitimizing the government and strengthening the appeal of anti-U.S. insurgents in its tribal regions. Pakistan’s de facto support could devolve over time into real opposition, given extreme enough U.S. approaches to counterterrorism.

Even more stable allies, such as the United Kingdom or Germany, could face strategic and political incentives to curtail cooperation beyond a simple commitment to human rights. Concerns that European intelligence officials might face legal sanctions for facilitating tactics their courts consider illegal has already posed an obstacle to U.S.-E.U. cooperation. The anticipation of new litigation may encourage foreign governments to take even more conservative policy positions on intelligence sharing out of fear that courts will intervene and limit their own executive authority in the future. Partners may also scale back cooperation due to the threat of public backlash, and the risk of leaks could even deter more clandestine forms of collaboration. Moreover, any state that enables the United States to carry out excessively harsh methods may place itself in the crosshairs for retaliation, especially by lone wolves from communities disproportionately targeted by these approaches.

Employing extreme counterterrorism practices may not precipitously bring about the end of all allied intelligence cooperation, but a counterterrorism paradigm that relies heavily on unorthodox methods—in the aggregate and over time—could seriously erode international support for U.S. operations. Even a small decline in allied cooperation poses risks by giving terrorist groups more breathing room to operate. Furthermore, mounting political pressure could force states to significantly reduce or even eliminate their cooperation with the United States if allies’ publics overreact or the United States dramatically oversteps its bounds. Much depends on what counterterrorism tools the Trump administration ultimately employs, how pervasively and overtly it does so, and how it talks about them. The diversity of America’s counterterrorism allies also means that reactions will vary among partners.

The United States has clashed with the international community over its counterterrorism policies before, and this history reveals a number of ways that countries might choose to restrict cooperation. They could refuse to extradite detainees to the United States out of fear they would be tortured; European states did so during the Bush administration, also citing concerns about the death penalty and law of war detention. They could decline to share intelligence that may lead to measures they viewed as illegal; Germany has implemented just such a policy, refusing to share intelligence that could lead to drone strikes beyond hot battlefields. They could place certain restrictions on how U.S. authorities use shared data; the European Union established such limitations when sharing financial and airline data due to concerns about lax U.S. data privacy laws. They could deny the United States fly-over or basing rights; Turkey denied these rights to U.S. forces in the run-up to the Iraq War.

America’s partnerships survived these restrictions, but these disputes show that cooperation is not unconditional. The United States has responded to the suspension of intelligence cooperation by exercising restraint to ensure continued collaboration. It signed agreements restricting how it could treat extradited detainees and how it could use shared data. The Obama administration released its policy standards that outlined limits on how the United States employs targeted killing beyond zones of active hostilities. Allied counterterrorism cooperation may appear to run on auto-pilot, but this veneer of resiliency is in part the result of continued engagement and compromise that fosters some moderation.

Pushback from U.S. counterterrorism allies may already be influencing the Trump administration’s decision-making. Last week, Ashley Deeks noted that previous assurances to partners could shape upcoming decisions on transferring detainees like Abu Khaybar, an al Qaeda captive currenty being held in Yemen, to Guantanamo. The United States may have made assurances about Khaybar’s treatment or detention status, and flouting those commitments risks undermining partners’ trust and continued collaboration.

The international political costs of harsh counterterrorism tools would likely be greater now than in the past, because of the understanding among partners that these debates have been settled. The United States under Trump may also lack the international goodwill on counterterrorism that the Bush administration had in the immediate aftermath of 9/11, and states may feel less dependent on cooperation with the United States after years of developing indigenous capabilities. These factors elevate the risk that employing extreme counterterrorism tools could undermine allied operations.

Moreover, the success of American counterterrorism suggests that there is little to gain by rocking the boat through sweeping and dramatic changes. The threat of terrorism is real, but the risk of dying from a terrorist attack in the United States is exceptionally low and largely stems from home-grown threats. The government has made considerable strides in dismantling transnational terror networks, and it has done so in the past eight years—and for a number of years before that—without the most extreme measures of the early Bush administration. The current approach evolved through trial and error. The Obama administration recalibrated from Bush-era excesses, refining the rule of law, keeping programs that were effective, and discarding those that were not. If the United States has not tried something that President Trump has proposed, there is likely a reason beyond mere political correctness.

It is highly unlikely that extreme methods like torture or indiscriminate bombing could have prevented lone wolf attacks such as those in Orlando and San Bernardino. Implementing brutal tactics could actually make attacks more likely by alienating Muslim communities, which would undermine essential community support for law enforcement and fuel radicalization and recruitment. Such approaches would not only compromise American values and principles but also fail to address the meaningful counterterrorism challenges that remain. Even if methods like torture did offer some meager tactical benefits, the United States would incur even greater strategic losses from the decline in international support for American operations. The Trump administration would then have to address a more potent terror threat without the help of our international partners.