The age of international and transnational terrorism came to prominence in the late 1960s and 70s, and then kicked into high gear in the 1980s, particularly where terrorists were supported by, and sometimes used as surrogates for, regimes. On October 23, 1983, on the one year anniversary of the attack on the US Marines' barracks in Lebanon, and a mere two weeks after a massive IRA bomb placed in a hotel nearly killed Prime Minister Margaret Thatcher, then-Secretary of State George P. Shultz delivered an address at the Park Avenue Synagogue in New York City.
The speech articulates something that was known then as the "Shultz Doctrine" for dealing with terrorism, terrorists and terrorist groups, and the states that harbored them. Together with then-Department of State Legal Adviser Abraham Sofaer's 1989 Solfer Lecture at the US Army JAG School in Charlottesville VA, the Park Avenue Synagogue speech lays out the most important elements of a long-run American legal policy view of how transnational terrorism should be approached, and the legal views that support those actions. (The context for these remarks - the terrorist situations giving rise to the speech - can be found in the two chapters on terrorism and counterterrorism in Shultz's (massive) diplomatic memoir, Turmoil and Triumph.)
Another, more political, way to put this is to say that American legal policy for "counterterrorism-on-offense" has gone through the following periods:
- The Carter years, epitomized by the Iranian embassy hostage-taking and the special forces disaster in the desert;
- the Reagan-Bush years, in which the Shultz doctrine was announced (though not until after the Lebanon Marine barracks bombing) and which found its expression particularly in the Libya raids, but in which the fall of the Berlin Wall and the first Gulf War finally tended to sweep terrorism issues to one side;
- the Clinton years, in which the US cautiously experimented with an extraterritorial law enforcement paradigm, interrupted by occasional (though half-hearted and ineffectual) returns to the Shultz Doctrine, such as the Sudan factory strike;
- the Bush 9/11 years, in which (perhaps seemingly oddly) the question of the Shultz Doctrine and active, continuing self-defense did not really arise, because, after all, the US was at war, game on; and
- the Obama years.
The President's May 23, 2013 National Defense University address took up (among many other things) the question of "continuing, imminent" threats and the use of hostilities to address them, even after the formal end of the current conflict under the AUMF. That speech reflects, I think, powerful long-run continuities in the US government's legal policy views on the use of force in counterterrorism. A lot is said today - correctly - about continuities of national security policies between the Obama and Bush administrations. But the continuities, I'd suggest, run back much further, on at least some very basic matters. The Shultz Doctrine lays out the underlying legal policy of the United States for active, continuing self-defense. Read the passage from Shultz's speech (below the fold) and consider what, if any, parts of it would not have been utterable by Obama administration officials and senior counsel today. (Comment if you like on Facebook.)
We must reach a consensus in this country that our responses should go beyond passive defense to consider means of active prevention, preemption, and retaliation. Our goal must be to prevent and deter future terrorist acts, and experience has taught us over the years that one of the best deterrents to terrorism is the certainty that swift and sure measures will be taken against those who engage in it. We should take steps toward carrying out such measures. There should be no moral confusion on this issue. Our aim is not to seek revenge but to put an end to violent attacks against innocent people, to make the world a safer place to live for all of us. Clearly, the democracies have a moral right, indeed a duty, to defend themselves.
A successful strategy for combating terrorism will require us to face up to some hard questions and to come up with some clear-cut answers. The questions involve our intelligence capability, the doctrine under which we would employ force, and, most important of all, our public's attitude toward this challenge. Our nation cannot summon the will to act without firm public understanding and support.
First, our intelligence capabilities, particularly our human intelligence, are being strengthened. Determination and capacity to act are of little value unless we can come close to answering the questions: who, where, and when. We have to do a better job of finding out who the terrorists are; where they are; and the nature, composition, and patterns of behavior of terrorist organizations. Our intelligence services are organizing themselves to do the job, and they must be given the mandate and the flexibility to develop techniques of detection and contribute to deterrence and response.
Second, there is no question about our ability to use force where and when it is needed to counter terrorism. Our nation has forces prepared for action —from small teams able to operate virtually undetected, to the full weight of our conventional military might. But serious issues are involved—questions that need to be debated, understood, and agreed if we are to be able to utilize our forces wisely and effectively.
If terrorists strike here at home, it is a matter for police action and domestic law enforcement. In most cases overseas, acts of terrorism against our people and installations can be dealt with best by the host government and its forces. It is worth remembering that just as it is the responsibility of the U.S. Government to provide security for foreign embassies in Washington, so the internationally agreed doctrine is that the security of our Embassies abroad in the first instance is the duty of the host government, and we work with those governments cooperatively and with considerable success. The ultimate responsibility of course is ours, and we will carry it out with total determination and all the resources available to us. Congress, in a bipartisan effort, is giving us the legislative tools and the resources to strengthen the protection of our facilities and our people overseas—and they must continue to do so. But while we strengthen our defenses, defense alone is not enough.
The heart of the challenge lies in those cases where international rules and traditional practices do not apply. Terrorists will strike from areas where no governmental authority exists, or they will base themselves behind what they expect will be the sanctuary of an international border. And they will design their attacks to take place in precisely those "gray areas' where the full facts cannot be known, where the challenge will not bring with it an obvious or clear-cut choice of response.
In such cases we must use our intelligence resources carefully and completely. We will have to examine the full range of measures available to us to take. The outcome may be that we will face a choice between doing nothing or employing military force. We now recognize that terrorism is being used by our adversaries as a modern tool of warfare. It is no aberration. We can expect more terrorism directed at our strategic interests around the world in the years ahead. To combat it, we must be willing to use military force.
What will be required, however, is public understanding before the fact of the risks involved in combating terrorism with overt power. The public must understand before the fact that there is potential for loss of life of some of our fighting men and the loss of life of some innocent people. The public must understand before the fact that some will seek to cast any preemptive or retaliatory action by us in the worst light and will attempt to make our military and our policymakers— rather than the terrorists—appear to be the culprits. The public must understand before the fact that occasions will come when their government must act before each and every fact is known—and the decisions cannot be tied to the opinion polls. Public support for U.S. military actions to stop terrorists before they commit some hideous act or in retaliation for an attack on our people is crucial if we are to deal with this challenge. Our military has the capability and the techniques to use power to fight the war against terrorism. This capability will be used judiciously. To be successful over the long term, it will require solid support from the American people.
I can assure you that in this Administration our actions will be governed by the rule of law; and the rule of law is congenial to action against terrorists. We will need the flexibility to respond to terrorist attacks in a variety of ways, at times and places of our own choosing. Clearly, we will not respond in the same manner to every terrorist act. Indeed, we will want to avoid engaging in a policy of automatic retaliation which might create a cycle of escalating violence beyond our control.
If we are going to respond or preempt effectively, our policies will have to have an element of unpredictability and surprise. And the prerequisite for such a policy must be a broad public consensus on the moral and strategic necessity of action. We will need the capability to act on a moment's notice. There will not be time for a renewed national debate after every terrorist attack. We may never have the kind of evidence that can stand up in an American court of law. But we cannot allow ourselves to become the Hamlet of nations, worrying endlessly over whether and how to respond. A great nation with global responsibilities cannot afford to be hamstrung by confusion and indecisiveness. Fighting terrorism will not be a clean or pleasant contest, but we have no choice but to play it.