Academic journal article The Yale Law Journal

Disaggregating Legal Strategies in the War on Terror

Academic journal article The Yale Law Journal

Disaggregating Legal Strategies in the War on Terror

Article excerpt

Since the September 11th attacks, Al Qaeda has pursued a global insurgency campaign against the United States and its allies by exploiting the grievances of local guerilla groups against their home countries. In response to this global insurgency, many commentators have argued that a "disaggregation" strategy is necessary to break the ties between local insurgent groups and the globalized ideology of Al Qaeda. American counterterrorism policies have been shifting to a disaggregation approach against this global insurgency, but our legal strategies remain focused on tying local and regional extremist organizations to high-level Al Qaeda leadership.

This Comment argues that current legal strategies will prove counterproductive if they aggregate terrorist threats. The prosecution of terrorist suspects based on the material support statute and the legal basis for the use of military force against groups "associated" with Al Qaeda are two such aggregating strategies. Instead, this Comment recommends adopting disaggregation as a framework for the U.S. legal strategy against the Al Qaeda global insurgency. A disaggregated strategy could take many forms, but this Comment recommends that the U.S. government (1) seek to detain suspected terrorists in the country where they are captured rather than in centralized facilities; (2) decouple criminal terrorism prosecutions from the State Department's Foreign Terrorist Organization list; and (3) adopt a new "use of force" statute to supplement the 2001 Authorization for Use of Military Force (AUMF). (1)

I. DISAGGREGATED TERRORIST NETWORKS AND COUNTERINSURGENCY STRATEGY

Al Qaeda's operational model for the September 11th attacks--train a cadre of operatives, send them to infiltrate a Western country, and then direct them to carry out a large-scale attack--has been replaced by a decentralized "global insurgency" model. (2) This global insurgency seeks out insurgents with grievances against their local government and attempts to aggregate them into a larger ideological campaign against the United States and its Western allies. (3) Technological developments of the postmodern world--the low costs of acquiring weapons and explosives, the ability of isolated aggrieved individuals to organize via the Internet, and low organizational barriers to entry--have enabled these small local actors to create outsized threats against hierarchically organized states. (4) The "small niche providers of violence" sometimes compete with each other, but "at the same time they are willing to work together to fight the United States by building a market that advances the fortunes of all." (5) Al Qaeda therefore seeks to find and exploit local grievances to integrate local groups into its broader Islamist ideology at minimal cost. (6)

In order to fight this new globalized insurgency, many counterterrorism experts have suggested that the United States and its allies pursue a strategy of "disaggregation." (7) If Al Qaeda's strategy succeeds by aggregating local insurgents into a global movement, the United States should attempt to break down the ties between local guerillas and global players like Al Qaeda. Disaggregation results in "a series of disparate local conflicts that can be addressed at the regional or national level without interference from global enemies." (8) The concept of a "Global War on Terror" may have been useful after the September 11th attacks, but as a counterinsurgency strategy today, it is ineffective. Lumping together groups that practice terrorism is not only unhelpful, but actively plays into the hands of Al Qaeda as it attempts to unify local groups under a global insurgency campaign. Disaggregation, on the other hand, requires America to "separate [adversaries] from each other, turn them where possible against each other, and deal with those who need to be dealt with in sequence rather than simultaneously." (9) Disaggregation was a key element of the successful U. …

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