International Counterterrorism

and a Legitimacy Deficit

This is an adapted and revised excerpt from Chapter 2 of:

Rather, they seek either to cause the enemy to overreact and thereby permit them to recruit large numbers of followers so that they can launch a guerilla campaign, or to have such a psychological or economic impact on the enemy that it will withdraw of its own accord. Bin Laden called this the “bleed-until-bankruptcy plan.”

--Louise Richardson[1]

The government must function in accordance with law. There is a very strong temptation in dealing both with terrorism and with guerrilla actions for government forces to act outside the law . . . Not only is this morally wrong, but, over a period, it will create more practical difficulties for a government than it solves.

--Sir Robert Thompson[2]


Destruction, Not Construction, of Legitimacy

Attempting to understand the reasoning behind flying a hijacked commercial aircraft, filled with civilians, into symbolic buildings occupied by more noncombatants so as to build an Islamic caliphate indeed causes an analytical short-circuit. There is more to be understood about the “strategy of provocation” of terrorism, and thus we must look further.

The fact that Al-Qaeda crossed international borders to carry out its attack had a direct impact upon where the US administration focused its attention for interpreting the constraints it would be required to heed for counterterrorism policy: international law. At the same time, the international character of this conflict also helps to explain that while Al-Qaeda attempts to target US legitimacy, it has little intention of reconstructing a new legitimacy to later occupy that territory. It is significant to understand that the aims are primarily related to destruction and not to construction, because this further promotes the need to fortify defenses around legitimacy where the attack is primarily focused.

Counterinsurgency: 2006 Army Field Manual 3-24

To flesh out this first point, it is most useful to look into a work that has been given significant credence by the US government itself. At the end of 2006, nearly four years after the invasion of Iraq, President Bush was under significant pressure to change course in that country. This was largely due to significant losses by Republican candidates at the polls in November 2006, along with the release of a highly anticipated report in December of that year by the Iraq Study Group (a bipartisan commission appointed by Congress) which began its recommendations by describing the situation as “grave and deteriorating”.[3] At this critical juncture, the President appointed General David Petraeus to lead US troops in Iraq and to oversee the so-called “surge” strategy primarily based on the US Army Field Manual 3-24, Counterinsurgency. General Petraeus was later promoted to head the US Central Command, and President Obama appointed him as the Commander of US forces in Afghanistan and then to the head of the Central Intelligence Agency (CIA). This meteoric rise certainly speaks to the relevance of the line of thinking found in the Army Field Manual drafted under his supervision.

The document was developed and written by military thinkers, and thus it is not surprising that they are primarily looking at the overseas operations launched by politicians to deal with the threat posed by terrorism. It is meant for use overseas and thus does not contemplate a legitimacy deficit at home, even if there are places where such a discussion would be most welcome. The strategy of provocation certainly manifests problems for the society and government that has been directly attacked, but the focus is on the adversaries found abroad and the foreign theaters of operation.

Most pertinently, there is an explicit recognition throughout the Field Manual that legitimacy is the central front of the conflict at hand. This is first made clear in the very definition of the conflict: “an insurgency is an organized, protracted politico-military struggle designed to weaken the control and legitimacy of an established government, occupying power, or other political authority while increasing insurgent control”.[4]

We see clearly that the drafters of the manual are keenly aware that insurgents are attempting to weaken a government by targeting its legitimacy, and the document is filled with similar references. It can thus be said that they saw the legitimacy of a government as the primary target of attack in the case of an insurgency, just as posited here. Demonstrating this point most clearly is the fact that there is an entire section that discusses this idea as central, falling under an unambiguous heading:

Legitimacy Is the Main Objective

The primary objective of any COIN [counterinsurgency] operation is to foster development of effective governance by a legitimate government. Counterinsurgents achieve this objective by the balanced application of both military and nonmilitary means. All governments rule through a combination of consent and coercion. Governments described as “legitimate” rule primarily with the consent of the governed; those described as “illegitimate” tend to rely mainly or entirely on coercion. [ . . . ] A government that derives its powers from the governed tends to be accepted by its citizens as legitimate. It still uses coercion—for example, against criminals—but most of its citizens voluntarily accept its governance.[5]

The primary objective of any COIN [counterinsurgency] operation is to foster development of effective governance by a legitimate government.

Of course, it is certainly debatable whether legitimacy can be so easily summarized, then taught to a military force so as to pass along a legitimate government to an occupied territory. Furthermore, traditional humanitarian law assumes that occupying powers should respect the existing laws and economic arrangements and therefore raises questions about the validity of transformative military occupation.[6]

The notion of what constitutes a legitimate government and how that is to be achieved has been profoundly and hotly debated for centuries by political philosophers from Machiavelli to Hobbes to Locke to Rousseau. Therefore, it can come across as presumptuous to suggest that such a pivotal aspect of society’s functioning has been resolved and can be moderated and manufactured by an uninvited outside military force. This is surely why foreign military operations aimed at the construction of legitimacy must be understood as nation-building, and perhaps as beyond the capabilities of even the most powerful militaries.

Consequently, before politicians commit troops to invasions abroad it should be understood that while “regime removal” is within the military’s capacities, “regime change” is far more complex, and yet to be fully understood by humanity.

Nonetheless, from the perspective of this work, what is most important is that all of the attention here is on constructing legitimacy outside of the US, not on the attempts to weaken the legitimacy at home. Therefore, it is valuable to recognize that the idea of focusing on the destruction of legitimacy, rather than on its construction, is a less complicated task. That is not to say that undermining and weakening the legitimacy of a government is easy and obvious. Rather, as with nearly all things known in this world, destruction is less difficult than construction.

Consequently, before politicians commit troops to invasions abroad it should be understood that while “regime removal” is within the military’s capacities, “regime change” is far more complex, and yet to be fully understood by humanity.

Of course, this is not entirely surprising in the context of terrorist movements. In general, there have been only vague outlines put forward of the future world which they wish to create. Al Qaeda speaks about the establishment of a caliphate ruled by Sharia law but tends to fall short on any detail. Even after all of its carefully managed publicity campaigns, Al-Qaeda and its leaders “appear altogether more interested in the process by which the present system will be destroyed than in the functioning of the new system”.[7]

One notable result that follows from not possessing a coherent vision of the future is that there are far fewer constraints on the means employed. If one is concentrated only on the destruction of the enemy because this is believed to be the sole obstacle to deliverance, then the methods chosen are irrelevant and public attacks on noncombatants become more easily seen as a viable option.

This is not uncommon for leaders of terrorist organizations and of Al-Qaeda specifically. David Aaron, a diplomat who compiled a manuscript of the writings of extremists willing to target civilians, explained:

One of the curious things about jihadism is the notable lack of articulated political or social goals beyond implementing shari’a law. [ . . . ] Even such jihad writers as Sayyid Qutb focus their analyses on the shortcomings of other ideologies rather than explicating how their philosophy would translate into government structures and economic and social policy. As one jihadi notes, [ . . . ] it is as if they are not really interested in governing, but only in waging jihad. Bin Laden’s only evident policy impact on the Taliban was in persuading them to blow up the historically priceless Bamiyan Buddhas.[8]

As a policy prescription, destroying historic religious artifacts is undoubtedly limited and patently intolerant. Yet this work is meant to focus attention at the point of attack, the US political authority. In other words, we will posit how exactly Al-Qaeda meant to weaken the legitimacy of its enemy’s government through its strategy of provocation.

Terrorism as Tactic and Strategy

Terrorism is not a new phenomenon. The term “terror” begins to appear in dictionaries and is used in writings in reference to the French Revolution, and in this context the term referred to political violence used as a tool by the state. The Jacobins were said to occasionally use the term “terrorism” or “terrorist” in a positive sense when speaking or writing about themselves, according to a French dictionary published in 1796.[9] The idiom contemporaneously migrated across the channel and into the English language, where in 1795 we find Edmund Burke referring in a famous passage to “those hell hounds called terrorists” unleashed onto the people of France.[10]

Historian Guglielmo Ferrero provides a plausible theory for understanding the origins of this “reign of terror” that was let loose in 1789.[11] His hypothesis brings us back to the central issue of legitimacy for all organized societies. Ferrero reminds us that all aspects of the apparatus of state (i.e. laws, police, courts, and jailers) rest on the idea of an uncoerced pull toward obedience to command. Any government would become instantly and completely paralyzed if all subjects came to the simultaneous agreement to withhold their obedience. While Ferrero claims that man’s existence is relatively ordered because this could seemingly never happen, there was in fact one such moment that he found in his historical research. On July 14, 1789, the Bastille, the infamous royal jail in Paris, was stormed by a crowd while a substantial number of nearby Royal Army forces did not come to defend the ancien régime. Ferrero highlights this moment as the complete collapse of legitimacy, and a frightening chaos thus spread throughout all of France. Ferrero explains,

It is less familiar that this victorious uprising was followed, for the first time in history, by the event which we held, not without reason, to be impossible: All over France, for six weeks, as soon as the news from Paris was heard, all the people—peasants, workers, lower middle classes, officials, upper classes—as at a signal after a secret agreement, refused to obey.[12]

Thus, it is Ferrero’s theory that it was the absence of any legitimate authority that spawned this particular state terror epitomized by the thousands of public beheadings with the guillotine. This is certainly not to suggest a justification for the “reign of terror” that followed in an effort to impose order on a society without any recognized commanding authority. Nor is it to launch into historical disputes over the events of that time period. The point is simply to underline the manner in which legitimacy rests at the center of struggles to steer any society.

Unfortunately, the frailty of human memory has meant that more recent events involving attacks by non-state actors have been regarded by many to be a novel phenomenon in our history. Most important during its long existence as a tactic is the belief that such political violence must be at least public, if not spectacular. Therefore, it is not new that such political violence is a spectacle in search of an audience.

The modern employment of terrorism can be said to have an enhanced political effect which can be attributed to more recent changes that have occurred within our societies. Here we highlight two significant transformations that directly shape the effectiveness of terrorism as both tactic and strategy. The first is the widespread proliferation of cameras, mass media, and information-sharing tools. Hence, when Margaret Thatcher spoke of publicity being the “oxygen” on which terrorists depend she was addressing a historical fact long understood as tied to the phenomenon.[13] At the same time, she was identifying an experience of modern times that has continued to increase appreciably since the statement was first made.

The second important factor that has enhanced the impact of terrorist tactics is the notable rise during the twentieth century in international acceptance and explicit codification of detailed laws of war and legal treaties enshrining the idea that each and every individual has inviolable human rights. The development of such laws protecting individuals has been accompanied by a growth in cadres of diplomats, international tribunals, and human rights monitoring bodies to debate and oversee implementation of these laws. While these enforcement mechanisms fall far short when compared with domestic law and governing institutions, such developments also represent giant steps forward when seen in an historical perspective.

...while the increased media sources and new diplomacy have provided a drastic increase in credible facts distributed to a citizenry about abuses by the government, international law has offered analytical tools that can and have been applied in evaluating this increased empirical data.

International law protecting individuals has undoubtedly become more conspicuous in our human consciousness over the previous decades. That is to say, its development since the end of World War II represents a palpable change in the tools that citizens can use to evaluate and scrutinize their own government’s protection of individual rights—protection to which the government is obligated by its legal commitments made to other states. This is where new diplomacy, both public and widely disseminated, is having an intensified impact. Counterterrorism policy today is under a new type of microscope which frames and structures the scrutiny of a state that attempts to confront terrorist groups. As will become clear in what follows throughout this work, international law provides metrics for the public to employ to evaluate their own state’s exercise of force and diplomacy focusing on these legal commitments helped move the conversation in this direction. We will see that while the increased media sources and new diplomacy have provided a drastic increase in credible facts distributed to a citizenry about abuses by the government, international law has offered analytical tools that can and have been applied in evaluating this increased empirical data.

International Counterterrorism and a Legitimacy Deficit

    1. Introduction: Destruction, Not Construction, of Legitimacy
    2. Terrorism as Tactic and Strategy…
      1. Terrorism as Tactic
      2. Terrorism as Strategy: Revenge, Renown, and Reaction
    3. International Law as the Framework
      1. Detention through the Lens of Legality
      2. War-making through the Lens of Morality
      3. Interrogation through the Lens of Efficacy
    4. A Legitimacy Deficit and Causality
      1. New Diplomacy and Domestic Civil Society
      2. Pertinent Judicial Decisions
      3. Further Civil Dissent
      4. Causality
    5. Conclusion


 [1] RICHARDSON, L., What Terrorists Want (New York, Random House, 2006) at 6.
[2] THOMPSON, R., Defeating Communist Insurgency: Experiences from Malaya and Vietnam (London, Chatto & Windus, 1966) at 52, cited in Roberts, A., ‘Countering Terrorism: A Historical Perspective’ in BIANCHI, A. and KELLER, A. (eds.), Counterterrorism: Democracy’s Challenge, (Oxford, Hart Publishing, 2008) at 20.
[3] The Iraq Study Group Report, Baker, J., and Hamilton, L., (co-chairs) (6 Dec 2006), at xiii. Available at: <>.
[4] Army Field Manual (FM 3-24), Counterinsurgency, U.S. Department of Defense (15 December 2006) at 1-1, §1-2 (my emphasis).
[5] Idem, at 1-21, §1-113 (my emphasis).
[6] See generally ROBERTS, A., ‘Transformative Military Occupation: Applying the Laws of War and Human Rights’in Pejic, J., Schmitt, M.N. (eds.) International Law and Armed Conflict: Exploring the Faultlines (The Netherlands, Koninklijke Brill BV, 2007) 439-495.
[7] RICHARDSON, What Terrorists Want, at 85.
[8] AARON, D., In Their Own Words: Voices of Jihad (Santa Monica, CA, RAND Corporation, 2008) at 109 (internal citations omitted).
[9] LAQUEUR, W., Terrorism, (London, Weidenfeld and Nicolson, 1977) at 6.
[10] BURKE, E., Selected Works, vol. 4 (Indianapolis, Liberty Fund, 1999) at 315.
[11] FERRERO, G., The Principles of Power (New York, G.P.Putnam’s Sons, 1942) at 82-101.
[12] Idem, at 82-3.
[13] THATCHER, M., Speech delivered 15 July 1985 at Albert Hall, South Kensington, central London, to the American Bar Association: “And we must try to find ways to starve the terrorist and the hijacker of the oxygen of publicity on which they depend”.