The Norwich Review of International and Transnational Crime

THE NORWICH REVIEW OF INTERNATIONAL AND TRANSNATIONAL CRIME

VOLUME 1

OCTOBER 2016

Editor's Comments

GABRIEL LAJEUNESSE

Application and Suspension of the Writ of Habeas Corpus

JONATHAN E.B. LEWIS

Obscured in the Margins: Crime, Terrorism, and the Rule of Law

ISSUE NO. 2

Closing the Gap on International Terrorism Investigations

GABRIEL LAJEUNESSE

The Implications of the Evolution of Transnational Crime in Mexico

SYLVIA LONGMIRE

BRAD NICHOLSON AND ARNIE HAMMARI

China and The Interpol: New Partners in Global Crime Fighting?

Antiquities and Conflict: Changing Military Strategy

MALGORZATA J. ZUBER & EMILY GOH-MARCHESE

DAVID GRANTHAM

ZI YANG

Nosher Sheriarji Gowadia: A Case Study

THE NORWICH REVIEW OF INTERNATIONAL AND TRANSNATIONAL CRIME VOLUME 1, 2ND EDITION, OCTOBER 2016 Editor Gabriel C. Lajeunesse, J.D., Editor Director; International Law Research Fellow Journal Point of Contact Gabriel C. Lajeunesse glajeune@norwich.edu Production Editor Jessica DeVisser, Five7Alpha, Inc. Affiliation The Norwich Review of International and Transnational Crime (NRITC) would like to acknowledge our partner association with the Institute for the Study of Culture and Language (www.iscl.norwich.edu) and Norwich University Applied Research Institutes (NUARI) (http:// nuari.org) About NRITC The Norwich Review of International and Transnational Crime is a publication of the Program for International and Transnational Crime (PITC). PITC is housed within the Institute for the Study of Culture and Language, where it supports Institute programs developing crosscultural communications skills among law enforcement, intelligence and security agencies.

In keeping with the Norwich tradition of developing leaders to “advance the causes of the Republic, ensure its continued freedom, and develop the economic, political, and social infrastructure of this new century,� the PITC will prepare scholars and practitioners for the challenges posed by international and transnational crime, and will partner with appropriate agencies in efforts to combat these threats.

The program seeks to enable practitioners, scholars, and students to better analyze legal and investigative issues in transnational crime, evaluate courses of action to neutralize those threats, demonstrate competency for cross-cultural communication, and apply that knowledge in law enforcement and/or security settings.

The PITC program is directed by Gabriel C. Lajeunesse, J.D., Research Fellow, International Law and Policy.

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Permissions For information or to request permission to reproduce any part of this journal, please contact the editor, Gabriei C. Lajeunesse at glajeune@norwich.edu Disclaimer Statements of fact and opinion contained within the articles of NRITC, made by the editor, the editorial board, the advisory panel or article authors, are those of the respective authors and not of NUARI, Norwich University or the Institute for the Study of Culture and Language. NUARI, Norwich University or ISCL does not make any representation, in respect of the accuracy of material in this journal and cannot accept any legal responsibility or liability for any errors or omissions that may be made. The reader should make his/her own evaluation as to the appropriateness or otherwise of any information

EDITORIAL BOARD THE NORWICH REVIEW OF INTERNATIONAL AND TRANSNATIONAL CRIME VOL. 1, 2ND EDITION

Michael James Barton

Jim Kirdar, Special Agent

Security Solutions Global Office of the Secretary of Defense, International Security Affairs Staff (2006-2009) White House, Homeland Security Council Staff (20032006)

HQ Investigations Division, DOJ/OIG

James Dinkins Thomson Reuters Special Services Executive Associate Director, ICE Homeland Security Investigations (Ret)

Kevin Favreau First Tee Federal Bureau of Investigation, Special Agent in Charge (Ret) Thomas W. Geary Maj Gen., USAF Norwich University, Class of 1988

Greg McCurdy, V.P. SBE Entertainment Assistant Sheriff, Las Vegas Metro Police Department (Ret)

David Stewart, J.D., L.L.M., Professor, Georgetown University Law Center US Department of State, Assistant Legal Advisor (Ret)

William Wunderle, Division Chief Political - Military Affairs, Middle East Directorate, The Joint Staff, J5 (2009-Present)

Douglas Farah, President, IBI Consultants CSIS Senior Associate, Americas Program Author: Transnational Organized Crime, Terrorism, and Criminalized States in Latin America

Jim Gavrilis, The Gavrilis Group LTC, US Army Special Forces (Ret)

Yangmo Ku, Ph.D. Assistant Professor, Norwich University Director, International Studies Program

Maren Leed, Ph.D. Center for Strategic and International Studies Senior Advisor, Vice Chairman of the Joint Chiefs of Staff (2005-2008)

Sylvia Longmire Longmire Consulting Consultant on US/Latin American Security Issues Author, Cartel; Border Insecurity

W. Travis Morris, Ph.D., Assistant Professor, Norwich University School of Justice Studies and Sociology

Brad Nicholson, LTC, USA, USAFRICOM Security Cooperation Officer, US Embassy Uganda (2011-2013) Foreign Area Officer, US Embassy Tanzania (2010-2011)

Dermot O’Reilly Deputy Director, International Operations Defense Criminal Investigative Service Director, Joint Counterintelligence Unit—Afghanistan (2012-2013)

Josh Perles, J.D., Perles Law Firm, P.C. International Law Litigation Practice

Ahmed Qureshi, Ph.D. V.P. DynCorp International COMISAF Advisory and Assistance Team (2012-2013)

Charles Faddis, J.D.,

C. Dart Thalman, Ph.D.

Orion Strategic Services CIA Clandestine Service, Operations Officer (Ret) Author, Willful Neglect: The Dangerous Illusion of Homeland Security

Patrick M. Walsh, J.D., L.L.M.

Matthew Levitt, Ph.D., Washington Institute for Near East Policy Deputy Assistant Secretary for Intelligence and Analysis, Treasury Dept (2005-2007) Author: Hezbollah: The Global Footprint of Lebanon's Party of God

Visiting Professor, Norwich University Department of Political Science

Associate Professor, United States Army Judge Advocate General's Legal Center and School Assistant United States Attorney, on Leave of Absence

TABLE OF CONTENTS THE NORWICH REVIEW OF INTERNATIONAL AND TRANSNATIONAL CRIME VOL. 1, 2ND EDITION

-1EDITOR’S INTRODUCTORY REMARKS

-3APPLICATION AND SUSPENSION OF THE WRIT OF HABEAS CORPUS JONATHAN E.B. LEWIS

-23OBSCURED IN THE MARGINS: CRIME, TERRORISM, AND THE RULE OF LAW BRAD NICHOLSON AND ARNIE HAMMARI

-28ANTIQUITIES AND CONFLICT: CHANGING MILITARY STRATEGY DAVID GRANTHAM

-44CLOSING THE GAP ON INTERNATIONAL TERRORISM INVESTIGATIONS GABRIEL LAJEUNESSE

-51THE IMPLICATIONS OF THE EVOLUTION OF TRANSNATIONAL CRIME IN MEXICO SILVIA LONGMIRE

-59CHINA AND THE INTERPOL: NEW PARTNERS IN GLOBAL CRIME FIGHTING ZI YANG

-75NOSHIR SHERIARJI GOWADIA-A CASE STUDY MALGORZATA J. ZUBER AND EMILY GOH-MARCHESE

EDITOR’S INTRODUCTORY REMARKS Transnational crimes, from a legal jurisdiction perspective, represent those activities which a nation chooses to criminalize even though the actions or impacts take place outside the borders of that nation. There are many reasons a state may choose to enforce activities on the international stage. They may want to police the actions of its citizens abroad. They may want to protect and hold accountable those who commit crimes against their citizens in foreign nations. Some crimes are deemed so deplorable, that any nation which can bring a perpetrator to justice must do so—crimes of universal jurisdiction such as genocide and crimes against humanity. Further, in our globalized world, states recognize that criminal activities happening in some far away land can often impact the security of its people at home.

In the U.S., laws that provide for extraterritorial jurisdiction have generally been limited. Most criminal activity that occurs abroad has been left beyond the scope of U.S. law enforcement, and will be handled, or not, by the country in which the crime occurred. Common murder, for example, in most circumstances is not something which can be prosecuted within the U.S. when committed in another country, regardless of whether the perpetrator or victim is an America citizen. Increasingly, however, there are crimes for which extraterritorial jurisdiction is provided.

As a result, U.S. courts and law enforcement often have jurisdiction on certain crimes that occur abroad such as bribery of foreign officials by American businessmen, terrorism, money laundering and organized crime—if U.S. persons were the perpetrators or were victimized.

This special edition of the Norwich Review of International and Transnational Crime focusses on a specific subset of transnational crime—crimes affecting U.S. national security. Many of the laws providing U.S. courts and law enforcement extraterritorial jurisdiction are designed to address weighty matters that impact the safety and security of our nation as a whole. Crimes such as espionage, sabotage, the disclosure of classified information, violations of export controls, terrorism, and organized crime can directly threaten vital interests of the U.S. These crimes present such significant threats that tools beyond law enforcement often must be brought to bear. It is not uncommon to see diplomatic, economic, military and intelligence instruments of power being used to address these challenges.

Criminal activity which poses this level of threat requires our earnest study and effort. This issue seeks to highlight examples of the challenges involved.

Several articles address the problem of terrorism in our modern word. Jeb Lewis traces the development of the current state of constitutional protections afforded terrorists detained in the United States. Brad Nicholson and Arnold Hammari examine the structural challenges of combating terrorism, through the lens of African terror groups Al Qa’ida in the Mahgreb and alShabaab. David Grantham looks at terror financing through the theft and sale of antiquities. I include a piece arguing for a return to a holistic campaign against terror networks threatening U.S. interests.

Beyond terrorism, we have a review of threats just across the border in Mexico by Syvia Longmore.

Zi Zang explores the developing relationship between China and Interpol, and how that impacts the United States.

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EDITOR

INTRODUCTORY REMARKS

Finally, Emily Goh-Marchese and Malgorzata J. Zuber provide a case study of Noshir Gowadia, providing insight into espionage and export violations investigations by examining Gowadia’s transfer of stealth technologies to the Chinese.

As we review the various contributions by the authors, it becomes increasingly evident that national security crimes pose a significant threat, one that requires a multi-disciplined approach to address. Our best legal, law enforcement, intelligence, foreign affairs, and military thinking must be brought to bear in a cohesive way if we wish to effectively close the gaps and seams which these criminal enterprises currently exploit.

We express appreciation to the Norwich University Applied Research Institute for their continued support of this project.

Gabriel C. Lajeunesse, J.D., Editor October 15, 2016

THE NORWICH REVIEW OF INTERNATIONAL AND TRANSNATIONAL CRIME VOL. 1, 2ND EDITION

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A REVIEW OF THE HISTORICAL REVIEW AND DETAIL OF THE APPLICATION AND SUSPENSION OF THE WRIT OF HABEAS CORPUS IN AMERICAN JURISPRUDENCE AS APPLIED TO CITIZENS AND UNLAWFUL ENEMY COMBATANTS

BY JONATHAN E.B. LEWIS

“The real test of one’s belief in the doctrine of Habeas Corpus is not when one demands its application on behalf of one’s friends, but of one’s enemies”

--Clement Attlee, Barrister and Prime Minister of the United Kingdom I.! Introduction and Background This paper examines the historical application and evolution of the Writ of Habeas Corpus in American Jurisprudence, and reflects the current status of its application to United States citizens and unlawful enemy combatants in the global war on terror. Though it is often one of the many legal rights which many American citizens either take for granted or give no thought to, the writ of habeas corpus is one of the fundamental bedrocks of the American and Western legal systems. First codified by the Magna Carta in 1215, this

concept is a pillar of the rule of law and one of the oldest continuing legal principles still in practice today (Magna Carta, 1215). Literally translated from Latin as “you may have the body”, habeas corpus is a legal order from a court ordering the government to produce a prisoner and demonstrate probable cause as to why a defendant was arrested and to justify their continued detention. The power of the court to bring a prisoner of the State before its authority, and to force the State to justify the person’s arrest and detention, has been called “the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action” (Harris v.

Nelson, 1969). However, even though this right is so indispensable to the western legal system, it has historically been infringed and limited by western governments who have found it to be a hindrance or inconvenience during times of war or emergency. The United States, considered to be one of the

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foremost leaders in the world as to the rule of law, is no exception to such historical limitations for practical needs or convenience. In this paper I examine the United States’ suspension, hindrance, and infringement of the right of habeas corpus, how the government of the United States has applied habeas corpus to its own citizens and to those enemies it has deemed to be unlawful combatants during times of emergency, and how such practices have adapted and evolved through armed warfare between states and uniformed forces to the current Global War on Terrorism.

Signed by King John of England on 15 June, 1215 the Magna Carta Libertatum, or the Great Charter of Liberties, was a peace agreement drafted by the Archbishop of Canterbury designed to bring an end to the warring conflict between the Crown and the Barons of the monarchy (Breay & Harrison, 2015). One of the rights agreed to by the Crown was that “No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land” (Magna Carta, 1215). This enumerated clause is the writ of habeas corpus. The historical application of this right would become an essential aspect of the English common law, case law developed by judges and courts which has precedent upon future legal cases in the jurisdiction of the courts applying the law (Garner, 2001). When the framers of the United States drafted the Constitution, this English common law was enshrined as an essential liberty and protected from interference by the executive branch; “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it” (U.S. Const., 1789). Throughout the history of American jurisprudence there has been six times in which the United States government has invoked this clause to suspended, impeded, or otherwise infringed the right of habeas corpus: the U.S. Civil War, the Reconstruction era, as a response to the Philippine-American War, during the Second World War, to inmates in state penal

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systems attempting to avail themselves of the federal court systems, and during the initial years of the United States’ Global War on Terrorism (GWoT). Each of these periods produced case law which has developed how we view and apply habeas corpus in the United States; further clarified in the courts to whom habeas corpus extends; and just how far the government may go in permissibly limiting this right to its citizens, foreign nationals under its protection, and its enemies. In order to better present the current standing of Unlawful Enemy Combatants’ right to habeas corpus in the U.S. federal judiciary, it is necessary to briefly present the federal government’s limitation on the right through these periods, as well as what defines what is an “Unlawful Enemy Combatant.” This brief review is necessary in order to appreciate the evolution of how the conceptualization of the unlawful enemy combatants has developed in international law through treaties in the post-world war era, and how the United States interpreted these developments and applied them to domestic federal law enforcement.

II. Unlawful Enemy Combatants International humanitarian law under the Third and Fourth Geneva Conventions does not specifically define an unlawful combatant. In fact, the statutory language of the Third Geneva convention is utterly silent on the issue even though the drafters had the prescience to name and enumerate civilians for statutory protection who had even nascent supporting or neutral roles for an armed state – suppliers, war correspondence reporters, and contractors (Geneva III, Art. 4(1)(4), 1949). Due to a lack of clear iteration as to what defines an unlawful combatant, it has been left mainly to states involved in armed conflicts to decide for themselves what activities or persons qualify as unlawful combatants. Under the Geneva Conventions, an authorized combatant is one who is engaged in acts of warfare, is identified or identifiable per the statutory language, and is entitled to POW status upon capture by an enemy state (Geneva III).

Geneva III goes on to give protection to those combatants who status is not clear at the time of the capture of the fighter.

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“Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal” (Geneva III Art. 5, 1949). However, in this age of modern warfare in which combatants are no longer uniformed armies who line up across from the soldiers of a foreign state, but instead form asymmetric combatant units composed of militias, and lone combatants fighting uniformed and privileged soldiers of a Geneva-signatory nation, how does one classify such participants?

For the purposes of this article, an unlawful enemy combatant can be defined as “all persons taking a direct part in hostilities without being entitled to do so and who therefore cannot be classified as prisoners of war on falling into the power of the enemy” (Aldrich, 2002). The lack of privilege to engage in direct hostilities or combat denies the subject the right to “kill or wound enemy combatants and destroy other enemy military objectives” (Report on Terrorism and Human Rights, 2002). As these combatants lack the privilege to engage in hostilities, they are subsequently denied the protections normally afforded by the Geneva Conventions. Conversely, a lawful enemy combatant is one who serves in the uniformed armed services of a nation, or serves in a regulated and organized militia in service to a state. The two main distinctions between the classes concerns legal liability and privileges associated with the combatant’s conduct. A lawful combatant recognized by the Geneva Conventions cannot be held criminally liable as an individual for their participation in acts of warfare which violate civilian laws and statutes, other than those which are outside such protections unless those acts violate international customary law or treaties, such as crimes against humanity and genocide.

Upon the capture of a lawful combatant, the forces of the custodial state must afford the prisoner all of the requisite privileges and protections enumerated within the Third

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Geneva Convention.

Unprivileged or unlawful enemy combatants, however, are no so privileged.

Unlawful combatants are criminally liable for their individual and joint conduct (in cases such as conspiracy) of any violations of customary international law, treaties, and the civilian criminal and civil laws of the arresting and detaining nation. They are not afforded the protections, privileges, or status of a prisoner of war. Article 5 of The Fourth Geneva Conventions only affords and guarantees the rights of a fair and impartial trial, and the legal rights generally associated with this process.

Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the [s]tate, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such [s]tate . . . In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention (Geneva IV, Art. 5, 1949).

Therefore, unlawful enemy combatants are those who are not privileged or protected combatants of international warfare, whom are not eligible for protected status as a POW, and whom are civilly and criminally liable for conduct related to their acts of war.

The unprivileged combatants are only guaranteed the right to a “fair and regular” trial as held by international norms and conventions in a fashion consistent with the security needs of the detaining state.

III. Curtailment or Suspension of Habeas Corpus by the United States There have been five main events in American history which have evolved the common and statutory law of habeas corpus before the GWoT – the American Civil War, the post-war Reconstruction Era, the

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Philippine-American colonial period, World War II, and the passage of The Anti-Terrorism and Effective Death Penalty Statute of 1996.

In comparison to legal issues seen in American law since the 21st Century, such as the GWoT, the American Civil War forms the most applicable period of case law answering questions of military tribunals and suspending the writ of habeas corpus to U.S. citizens or unlawful combatants of U.S. citizenship.

A. The Civil War In response to the American Civil War, President Abraham Lincoln suspended the writ of habeas corpus as a means of ensuring that the ability to wage war would not, or could not, be hindered by the judicial process. Using executive authority and acting without the will or consent of the Congress, President Lincoln suspended the writ in Maryland during April 1861 due to an inability to maintain transportation networks in the State considered vital to the Union’s military efforts (Goodwin, 2005).

Maryland had seen mobs supporting the Confederacy obstruct army attempts to use trains to ferry soldiers and materials through the State. Amid the growing public unrest, Baltimore Mayor George Brown and Governor Thomas Hicks demanded that the War Department cease crossings through Maryland (Simon, 2007). On April 27 Lincoln authorized General Winfield Scott to declare martial law along the “military line”, the territories between Washington, D.C. and Annapolis, and to suspend the writ of habeas corpus as a result of martial law (Simon, 2007). Lincoln’s actions enraged the Maryland legislature, and on April 29 they issued a directive that routes through Maryland could not be used as a means of transporting troops or materials which would be directed against the southern States (Tucker, 2013). In response to this directive Governor Hicks ordered the State’s militias to destroy railroad bridges along lines that would lead to Washington (Tucker, 2013).

By suspending habeas corpus in Maryland, Lincoln thought he could exert Union authority and control without the need to bombard the city of Baltimore into

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submission, a proposal of General Scott. It also carried other beneficial, but invidious, effects. By suspending the writ and with Maryland being under martial law, military courts could be enacted to try the so-called “Copperheads” or “Peace Democrats”, democrats who objected to the use of armed warfare as a strategy to compel the Confederacy to rejoin the Union (Sellery, 1907). The military tribunals and suspension of the most basic of judicial rights were also intended to inspire fear and intimidate those within the northern States who would openly or secretly voice support for the actions of the Confederacy (Sellery, 1907).

A small minority of powerful citizens in Maryland were arrested and imprisoned without charge or trial. They included the city council of Baltimore, the entirety of the board of police including the chief of police, and the mayor of Baltimore (Sellery, 1907).

Showing the true power of the suspension, however, was attorney and democratic U.S. Representative Henry May. May was arrested and held at Fort Lafayette on the “suspicion of treason”, but was never formally indicted or tried for said crimes (Hardwicke, 1861).

Also arrested was John Merryman, a lieutenant in the militia who was arrested on May 25th by the Union forces: while peaceably in his own house, with his family, it was at two o'clock on the morning . . . entered by an armed force, professing to act under military orders; he was then compelled to rise from his bed, taken into custody, and conveyed to Fort McHenry, where he is imprisoned by the commanding officer, without warrant from any lawful authority… for directing the destruction of the Bush and Gunpowder Rivers’ bridges (Ex Parte Merryman, 1861). He was charged with treason for directing hostile actions against the U.S. government and imprisoned at Fort McHenry. Merryman would become the test case for the constitutionality of the executive’s actions.

Merryman’s attorneys filed a writ with Judge William Fell Giles of the United States District Court for the District of Maryland

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(Benson, 1997). Judge Giles issued the writ and ordered that Major William Morris of Fort McHenry produce Merryman before the court. Morris refused. Citing what was held by the federal government to be rebellion by the people in Maryland, Morris informed the court that habeas corpus had been suspended and that the court’s writs would not be honored.

An assemblage elected in defiance of law, but claiming to be the legislative body of your State, and so recognized by the Executive of Maryland, was debating the Federal compact. If all this be not rebellion, I know not what to call it. I certainly regard it as sufficient legal cause for suspending the privilege of the writ of habeas corpus . . . If, in an experience of thirty-three years, you have never before known the writ to be disobeyed, it is only because such a contingency in political affairs as the present has never before arisen (Benson, 1997).

Merryman’s lawyers filed an appeal to Chief Justice Roger Taney, Chief Justice of the United States Supreme Court. Chief Justice Taney, sitting as a circuit court judge, issued the writ on May 26, 1861 to General George Cadwalader, the garrison commander of Fort McHenry, demanding Merryman be produced. By sitting as a circuit justice, and not as the Chief Justice of the United States, the parties would only need to travel to Baltimore rather than Washington (Ex Parte Merryman, 1861). The next morning Chief Justice Taney was met with a refusal sent by a colonel of General Cadwalader, who indicated that the general would not be bringing Merryman before the court. To say that Taney was displeased would be an accurate understatement. Taney held General Cadwalader in contempt of court, and issued a writ of attachment – simply put, an arrest warrant for a person in contempt of court – and directed the United States Marshalls seize the General and produce him before the court (McGinty, 2011).

On May 28 the U.S. Army headquarters ordered General Cadwalader to continue to hold Merryman under the authority of

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President Lincoln and to refuse arrest by the U.S. Marshalls (Silver, 1956). Cadwalader did exactly that, and when the marshal arrived to collect the general he was barred from the installation and forced to flee under the threat of military arrest or death (Ex Parte Merryman, 1861). Faced with a looming constitutional crisis, Chief Justice Taney issued a bench decision later that day addressing these matters. In his opinion Taney stated that the President of the United States cannot unilaterally suspend the writ of habeas corpus (Ex Parte Merryman, 1861). Further, the military cannot arrest people without the order or consent of the courts. Taney warned that he would issue his formal opinion within a week and order it be delivered to President Lincoln so “that he might perform his constitutional duty, to enforce the laws, by securing obedience to the process of the United States" (Ex Parte Merryman, 1861).

That opinion came on June 1, 1861, and it was scathing in its indictment of the executive.

Taney reiterated that the president was not privileged to unilaterally suspend habeas corpus, and noted that not even one of the Kings of England had attempted such a feat since the signing of the Magna Carta (Ex Parte Merryman, 1861).

These great and fundamental laws, which Congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now before me, and I can only say that if the authority which the Constitution has confided to the judiciary department and judicial officers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found.

Taney went on to clearly delineate that the privilege to suspend the writ, as detailed in

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the constitution, is a power reserved exclusively to the legislative branch.

If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the Legislature to say so. That question depends on political considerations, on which the Legislature is to decide. Until the legislative will be expressed, this court can only see its duty, and must obey the laws (Ex Parte Merryman, 1861).

Lincoln and the cabinet widely expected that Congress would support the government’s position on the matter, but did not gain the reception that they were hoped to receive. When Congress met on the matter in 1863 it failed to pass legislation supporting the executive’s unilateral suspension of habeas corpus (Sellery, 1907).

But, seeing the dispute that had arisen between the executive and judiciary in the Congress’ absence, did pass the Habeas Corpus Suspension Act of 1863. The Suspension Act retroactively immunized the executive’s actions prior to its passage and indemnified federal officials and military officers who had violated the habeas rights of citizens from 1861 to 1863. A section of the Suspension Act solved Taney’s constitutional problem; Congress suspended habeas corpus for the duration of the civil War, but required that political prisoners were wither indicted or released. This provision was surely a nod to Taney’s concerns regarding the politicians and public officials of Baltimore.

The Chief Justice of the United States would ultimately make his opinion on the matter clear. On July 10 of 1861 Merryman was indicted for treason in the U.S. District Court of Maryland in Baltimore. He was released from confinement pending trial on a secured bond of $20,000, a rather sizeable fortune given the times (McGinty, 2011). The government made one tactical mistake; treason was a capital offense requiring trial before the entire circuit. To fulfill that requirement both Judge William Giles and Chief Justice Taney would need to hear the case. Fearing that the men charged could

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never receive a fair trial, and facing the death sentence by the charge of a capital offense, Taney directed his clerks and Judge Giles to ignore scheduling any matters relating to the case. In 1864 the Chief Justice wrote to Associate Justice Samuel Nelson that he would “not place the judicial power in this humiliating position nor consent to degrade and disgrace it, and if the district attorney presses the prosecutions I shall refuse to take them up” (McGinty, 2011). Lt. Merryman never did stand trial for treason simply because Taney never scheduled their trials.

There were important lessons learned during this period. The first is that only Congress has the authority to suspend the writ of habeas corpus. Though the executive is charged with executing such a responsibility, it may not choose to suspend the writ unilaterally and without specific authorization from the legislative branch.

The second is that the judiciary, even with the power of posse comitatus through the U.S. Marshall’s Service, is powerless to enforce their decisions regarding extrajudicial executive actions without the will and consent of the agent or agency of the executive branch to be bound by such a decision.

B. The Reconstruction Era The Reconstruction Era can be seen as an extension of the same legal conflicts which presented themselves during the Civil War, specifically regarding the suspension of the writ of habeas corpus to a civilian population. The time of reconstruction in the south was a violent period in American history, and saw the rise of systemic domestic terrorism against AfricanAmericans by groups like the Ku Klux Klan (KKK). Fearing that such extremism could hinder the progress of efforts to grow and rebuild the socioeconomic infrastructure of the southern states, or outright destabilize the region altogether, the Congress passed the Enforcement Acts of 1870-1871 (Act to Enforce the Right of Citizens, 1870). The most important of the acts was the Civil Rights Act of 1871. This act granted the president the authority to suspend habeas corpus in the face of threats to federal authority which could not be stopped by regular law-

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enforcement methods or means (The Enforcement Act, 1871). President Ulysses S. Grant executed that authority by suspending the writ of habeas corpus in nine counties of the State of South Carolina (Exec.

Proclamation No. 201, 1871). Unlike authority previous granted to Lincoln, the Civil Rights Act of 1871 contained a termination clause that revoked the president’s authority upon the convening of Congress’s next regular session. In drafting the act in such a fashion Congress ensured that they would continuously control the executive’s power over enforcement of the act by limiting the time that a suspension of the writ would remain in effect for. Unlike the Civil War, all future suspensions of the writ hold or held some clause which either would terminate the suspension or require the suspension to be renewed, likely a hard lesson learned from the writ’s removal during the War between the States.

C. The Philippine-American War At the end of the Spanish-American War in 1898, the United States took possession of Puerto Rico, Guam, and the Philippines from Spain in the signing of the Treaty of Paris of 1898 (Treaty of Peace, 1898). This war had been an extension of the larger Philippine fight for independence and autonomy during the Philippine Revolution which had begun in 1896 (Bielakowski, 2013). Fighting between America and the Philippines began on February 4, 1899 when the Filipinos objected to American governance and rule at the Battle of Manila. The Philippines saw the United States merely as another colonial occupier and an impediment to their autonomy and personal freedom (Randolph, 2009). By June 2, the fighting escalated to a declaration of war against the United States by the First Philippine Republic (Randolph, 2009). The war officially ended in 1902 with the passage of the Philippine Organic Act by the United States Congress (Philippine Organic Act, 1902). The act allowed for the creation of the Philippine Assembly, the popularly elected lower house of a bicameral legislature with the U.S. Philippine Commission serving in the capacity of the upper legislative body. The Philippine Assembly would come to power upon the fulfillment of three provisions,

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specifically the end of the current insurrection in the Philippines, completion and publication of a public census, and that following the publication of the census there was no less than two years of sustained and continued peace during which time the authority of the U.S. was recognized. The nation’s executive authority would rest in the hands of the Governor-General of the Philippines, a position appointed by the president of the United States and confirmed by the U.S. Senate (Philippine Organic Act, 1902).

Complicating the issue of autonomy and independence found in the promises of the Philippine Assembly was the Spooner Amendment of the Army Appropriations Act of 1901. The act stated . . . all military, civil, and judicial powers necessary to govern the Philippine Islands shall until otherwise provided by Congress be vested in such person and persons, and shall be exercised in such manner, as the President of the United States shall direct, for the establishment of civil government, and for maintaining and protecting the inhabitants of said Islands in the free enjoyment of their liberty, property, and religion (Army Appropriations Act, 1901).

The clause was effectively an open-ended authorization to the Governor-General of the Philippines granting the ability to declare martial law at will. Given that the Philippines administration could not tamp out all rebellion, even with the promise of limited autonomous rule, the Spooner Amendment was a tool of immense power. The insurgency of the Filipinos proved difficult to quell in a fashion which would meet the edicts of the Organic Act’s statutory requirements and allow for the eventual transfer of government. In order to expedite the process of establishing the Philippine Assembly, the Commission asked GovernorGeneral Luke Edward Wright to suspend habeas corpus for all Filipinos on January 31, 1905. The Governor-General signed the order that day, and his order remained in effect until he revoked it on October 15 of that year (Fisher v. Baker, 1906).

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This suspension in the writ spurred the case of Fischer, on behalf of Barcelon v. Baker.

Barcelon, a Filipino, filed a petition for a writ of habeas corpus with the district court seeking to be discharged from jail as he had been neither tried nor convicted of any crime. The motion was denied due to the suspension of habeas corpus by GovernorGeneral Wright. Before Barcelon could appeal this decision, the Governor-General’s order was lifted and its provisions denying him habeas relief no longer applied.

Barcelon appealed to the Philippine Supreme Court, asking the court to reverse the trial court. The court ruled the action of the Philippines administration was not subject to judicial review as the GovernorGeneral’s valid order had suspended the habeas writ; there could not be error on the part of the trial court’s part in denying a habeas motion if Barcelon was not entitled to habeas relief. Barcelon appealed his case to the United States Supreme Court on a writ of error, a motion in which a movant asks an appellate court to review the decision of a lower court for errors in the application of law. The United States Supreme Court granted certiorari on the matter (Fisher v. Baker, 1906).

The Court affirmed the Supreme Court of the Philippines. Chief Justice Melville Fuller issued the opinion of the Court, in which the Court ruled that the issue before it was moot and no longer ripe for consideration; by removing the suspension of the writ, the government no longer prevented the writ to Barcelon and there existed no controversy to decide. In dismissing Barcelon’s appeal the Court also noted that a habeas proceeding is a civil matter, not a criminal one. As such, the suspension of habeas corpus prevents a prisoner from seeking review for error in the proceedings of the trial because the civil right has been suspended. Effectively, an appeal regarding a right cannot be heard if the right has been suspended; a right cannot be infringed if the right does not exist at the time of the alleged infringement (Fisher v.

Baker, 1906).

This decision in the realm of habeas law clarified important principles. The first is that a habeas petition is a civil proceeding that is

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outside the procedural protections afforded in criminal proceedings, and must be filed within the scope and limitations of civil procedures. The second is that habeas protections may be legally suspended against foreign nationals under U.S. protection or control. Finally, it reaffirmed the legality and procedural process of executing the suspension of the writ. While the agents of the executive branch are ultimately tasked with enforcing its provisions, any legislation authorizing the suspension of the writ must come from the Congress and specify the time and reasons for such curtailment.

D. World War II World War II was the first time in American history in which we began to explore the issues relating to suspension of the writ and how it applied to unlawful enemy combatants, lawful combatants, whether civilian citizens of the United states could be subjected to trial by military tribunals.

Similar to the Philippines, the United States Congress had passed the Hawaiian Organic Act of 1900 (Hawaiian Organic Act, 1900).

Just like its Filipino counterpart, the Hawaiian Organic Act contained a provision allowing for the declaration of martial law by the executive branch in control of Hawaii (Hawaiian Organic Act, 1900). On December 7, 1941 the U.S. Naval Base at Pearl Harbor was attacked by the navies of the Japanese Empire. Following this attack, the Governor of Hawaii, Joseph Poindexter, declared martial law and suspended the writ under authority granted to him by the act.

Following the declaration of martial law, and while the islands were under military rule, Duncan was arrested for public intoxication, shoplifting, and a “brawl” with United States Marine Corps Military Police. He was eventually tried by a military tribunal for these crimes and sentenced to jail (Duncan v. Kahanamoku, 1946). Duncan appealed his sentence to the United States District Court for the District of Hawaii on a writ of habeas corpus. The district court granted the writ, and ordered Duncan to be released from custody. The government appealed this decision to the Court of Appeals, who ruled that the military tribunals had proper jurisdiction as the islands were under the

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control of martial law, and reversed the district court. Duncan appealed to the United States Supreme Court, which agreed to take the case.

Issuing the opinion of the Court, Justice Hugo Black reversed the Appellate Division and the Court granted the habeas writ. In his opinion Justice Black stated that the absolute authority of military rule was no longer in effect at the time of Duncan’s trial (Duncan v. Kahanamoku, 1946). The civilian courts were open and operating, and this meant that the proper venue for a detainee whose illegal conduct was not an impediment to military operations or within the clear scope of prosecution by a tribunal were the civilian courts.

Our question does not involve the wellestablished power of the military to exercise jurisdiction over members of the armed forces, those directly connected with such forces, or enemy belligerents, prisoners of war, or others charged with violating the laws of war.

We are not concerned with the recognized power of the military to try civilians in tribunal established as a part of a temporary military government over occupied enemy territory or territory regained from an enemy where civilian government cannot and does not function. . .. Nor need we here consider the power of the military simply to arrest and detain civilians interfering with a necessary military function at a time of turbulence and danger from insurrection or war. . .. If the Organic Act, properly interpreted, did not give the armed forces this awesome power, [Duncan is] entitled to [his] freedom (Duncan v. Kahanamoku, 1946).

The Court ruled that the Organic Act only gave “awesome powers” to bar American habeas petitions and petitioners from civilian courts in the most extraordinary and limited of circumstances. Such was not the case here when civilian courts were able to hear a civilian’s case which did not directly impact the military’s mission or functions.

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Overruling long standing jurisprudence on the topic, the Court’s decision ensures that martial law and a legitimate congressional suspension of the writ does not alone bar a petitioner from civilian justice, so long as the civilian courts are open and able to operate in their constitutionally proscribed fashion.

This opinion overturned precedent as far back as Ex Parte Merryman, and ensures that martial law cannot be an indefinite impediment for access to the courts. The conclusion to Black’s opinion makes clear the principle that safety and security do not alone stem from the legislative and executive branches, but must include the judiciary; In order to have the benefit of the full strength of our Constitution, both in time of peace and in time of war, it is necessary to protect the authority of our legislative and executive officials, as well as that of our courts, in the performance of their respective obligations to help to "establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity" (Duncan v.

Kahanamoku, 1946).

The next case dealt with one of the darkest periods in American legal history – the detention and internment of American citizens without access to the courts solely because of their race or nationality. On May 19, 1942 pursuant to clauses contained within Civilian Restrictive Order No. 1, all Japanese-Americans and Americans of Japanese decent living along the states and territories of the west coast of the United States were ordered to internment camps (Civilian Restrictive Order No. 1 (1942); see also Exec. Order 9066 (1942)). The government had a fear rooted in racial bias that citizens of Japanese lineage would support Japan in the war, and may act as spies or saboteurs. Fred Korematsu was a Japanese-American citizen living in San Leandro, California. Korematsu decided to stay in his home rather than report to the camps, a violation of the U.S. Army’s Civilian Exclusion Order No. 34 (Korematsu v. United States, 1944). He was subsequently arrested

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and tried with willful violation of the order.

At trial he argued that the detention of American citizens without trial or access to the courts was a fundamental violation of the Constitution’s 5th Amendment. He was convicted at trial, and the Court of Appeals affirmed the decision. The Supreme Court agreed to hear the case (Korematsu v.

United States, 1944).

In a 6 to 3 decision written by Justice Black, the Court upheld the constitutionality of the exclusion order and the suspension of habeas corpus to citizens of Japanese ancestry. The Court held that individual rights may be curtailed in favor of risks to national security – specifically the possibility of espionage for the nation of Japan (Korematsu v. United States, 1944). By the virtue of their race alone, JapaneseAmericans were denied habeas corpus relief. The decision in Korematsu was extremely controversial, and remains so today. No case law has ever overturned the Court’s decision in this matter. As such, the decision in Korematsu is still good law today and, by extension, such executive orders which could deny habeas relief to a petitioner based upon immutable characteristics is still legal today in absence of a new decision.

1942 also saw the first time that the United States was presented with issues surrounding unlawful enemy combatants, specifically whether said individuals had a right to habeas relief in the federal courts of the United States. The case of Ex Parte Quirin dealt with unlawful enemy combatants’ status for the purposes of applying the writ of habeas corpus. In Ex Parte Quirin, eight German saboteurs, two of whom were dual U.S. – German citizens living abroad, secretly entered the United States from off-shore German submarines with the intent to target manufacturing and other industrial facilities vital to the war. The two Americans surrendered themselves to the FBI, and the others were caught before they could follow-through with their plans (Ex Parte Quirin, 1942).

President Franklin Roosevelt ordered that the captured saboteurs be tried by a secret

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military commission, pursuant to Executive Proclamation (Exec. Proclamation 2561, 1942). The eight were tried by a 7-member military board for the charges of violating various U.S. articles of war, various international laws of war as prescribed by the Geneva conventions, and that while doing so they were not privileged combatants (Ex Parte Quirin, 1942). They were subsequently found guilty and sentenced to death. During the trial they filed a writ of habeas corpus to the federal district courts, arguing that as civilians they were entitled to trial in the federal district court rather than by military commission as the courts of the United States were still functioning and sitting, the standard found in Duncan (Ex Parte Quirin, 1942). The federal district court denied the petitions, and the defendants appealed to the appellate division. In an unusual procedure, the defendants simultaneously appealed to the Supreme Court while their appeal was pending in the appellate division. The Supreme Court agreed to take the case directly.

Issuing the opinion of the Court, Justice Robert Jackson denied the petitioners motion. Justice Jackson described that, unlike the issues found in Duncan, the actions of the defendants fell directly into the scope of the executive orders issued by the President, and that the offenses alleged against them were of the type designed to be handled by a military commission. The Court further held that their status as unlawful combatants denied them the ability to access the federal civilian court systems. Applying the language of the Geneva statutes above, the Court ruled that the saboteurs were: plainly within the ultimate boundaries of the jurisdiction of military tribunals, and were held in good faith for trial by military commission, charged with being enemies who, with the purpose of destroying war materials and utilities, entered or after entry remained in our territory without uniform — an offense against the law of war. Those particular acts constitute an offense against the law of war which the Constitution

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authorizes to be tried by military commission (Ex Parte Quirin, 1942).

The petition for habeas relief was denied by the Court on July 31, 1942. The defendants were found guilty at tribunal on August 3, and were sentenced to death (Persico, 2002). Roosevelt commuted the death sentences of the American conspirators, and they would remain in jail until they were deported to the American Zone of occupied Germany by President Harry Truman in 1948.

The remaining six were executed 5 days after their sentences were rendered, on August 8, 1942.

A different sort of habeas case presented itself in the years immediately following the war. The case of Johnson v. Eisentrager dealt with habeas petitions from captured prisoners held by American military forces, but whom had never entered nor been to the United States. Several German prisoners had been tried in China by a U.S. military commission during the war (Johnson v.

Eisentrager, 1950). They were convicted and transported to the American occupation zone in Germany were they were imprisoned by the Army. The prisoners filed a writ of habeas corpus in the District Court for the District of Columbia, arguing that their convictions were in violation of the Geneva Conventions, and argued that their rights were thereby infringed.

The government argued that non-resident enemy aliens had no access to the U.S. courts, and that combatants captured abroad had no right to habeas relief through the U.S. courts as the situation and background are significantly different from Ex Parte Quirin. The district court found these arguments persuasive, and ruled against the petitioners. On appeal, the appellate division reversed the district court and found in favor of the prisoners. The Supreme Court granted certiorari to resolve the conflict (Johnson v. Eisentrager, 1950).

Justice Jackson again delivered the Court’s ruling, reversing the appellate division and affirming the circuit court. The Court relied heavily on the lack of substantial contacts to the United States, finding that an alien could not avail themselves of the protections

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afforded by the United States Constitution if they were a non-resident alien and a lawful enemy combatant who lacked substantial ties to the forum in which they were filing suit. As habeas petitions are civil matters, the Court heavily scrutinized the civil jurisdictional and venue requirements necessary for a suit to proceed. The Court held that the “jurisdiction of military authorities, during or following hostilities, to punish those guilty of offenses against the laws of war is long established” and that “it being within the jurisdiction of a military commission to try these prisoners, it was for it to determine whether the laws of war applied, and whether they had been violated” (Johnson v. Eisentrager, 1950).

Ultimately, Eisentrager set a clear rule that prisoners lacking substantial ties to the forum in which they are petitioning prevent the prisoner from succeeding in their writ for habeas relief. Here, the petitioners had been captured by military forces in China, were they were tried and convicted by a military commission under the rules of war and the applicable laws the commission applied.

They were held in custody by the U.S. Army, and transferred to an Army installation in Germany. By having never been transferred to the United States or its territories, the prisoners could not avail themselves of the Constitution’s protections and the courts had no jurisdiction over the prisoners.

E. The Anti-Terrorism and Effective Death Penalty Statute of 1996 (AEDPA) In response to the domestic extremist truck bombing of the Oklahoma City Federal Building by Timothy McVeigh and Terry Nichols, Congress passed The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) which was signed into law by President Bill Clinton on April 24th, 1996 (Antiterrorism and Effective Death Penalty Act, 1996). One of the key provisions to the statute, and arguably one its most controversial, were changes to how and when federal courts could hear habeas petitions from prisoners incarcerated in State courts. Title I of AEDPA severely limits a state prisoner’s access to the federal court system for judicial review of a verdict or plea in a case originating from a State. Of the restrictive titles and provisions of AEDPA

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which are applicable in the federal courts who hold jurisdiction over Unlawful Enemy Combatants, two are of particular note. The first of these key restrictions limits the time in which a prisoner may file a habeas motion to one year from: 1)

the date that the final judgement was entered in the case; 2) the date from which the Supreme Court of the United States has recognized a constitutional right and made their decision retroactive allowing for collateral review, or; 3) the date from which facts or evidence could have been discovered through due diligence on the defendant’s part (Antiterrorism and Effective Death Penalty Act, 1996).

The second provision codifies an absolute bar to habeas petitions in which the claim has already been presented to the district court, or should have been presented.

AEDPA requires that a petition for relief must cite all issues which entitle the petitioner to relief by the court, that these claims must not have been raised before, and that all claims must be brought at the same time. A petitioner may not file a motion on one argument, and later bring another motion if that argument could and should have been brought with the initial pleading (28 U.S.C. 2244(b)). To exceed the number of petitions or to file a second or subsequent petition requires the movant to file a certificate of appealability, a petition to the applicable federal circuit court of appeals seeking its permission to file a motion in the appropriate district court. Only with the court of appeals leave may a defendant then file another subsequent habeas petition. Should a motion for a certificate of appealability be denied, such a decision is not appealable to the Supreme Court (28 U.S.C. 2253).

While these AEDPA provisions may seem minor and be of arguable benefit to the justice system by streamlining efficiency through the assurance of preventing frivolous motions and appeals, the procedural barriers that they place in the path of petitioners seeking relief is not

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inconsequential. AEDPA certainly cannot be said to be an infringement or suspension of the right to habeas corpus, but it is most certainly a hindrance to petitioners who seeking to exercise this right (Felker v. Turpin, 1996). Take, for example, the provision limiting the time of appeal to one year from the entering of a final judgement. In the legal world, where case law and jurisprudential precedent evolves over decades, one year is a miniscule amount of time for a petitioner to file an appeal with any sort of due diligence. It is necessary in crafting the central arguments to an appeal for the appellant and his counsel to, in essence, reinvestigate the entire case. This involves reinterviewing witnesses, pouring through reams of court filings and transcripts, conducting countless hours of research regarding primary and secondary sources of case law. In short, the appellate process is neither quick nor for the faint of heart. However, we expect counsel for the appellant to manage to conduct this entire process expeditiously within a year when true diligence could require far longer. By requiring such a limited amount of time, we as a society risk quashing the rights of defendants who may have legitimate appeals for the sake of mere expediency.

When taken in concert with the statutory provision that an appellant only receives one habeas appeal, and therefore has only one potential bite at the apple, the risks to a prisoner’s rights and liberty become far starker. The fallacies and hindrances to the writ of corpus which come about due to the application of AEDPA are readily apparent, and are the subject of continuous litigation in the federal courts. For the purposes of this piece, it suffices to demonstrate that this is a legal barrier to prisoners wishing to exercise their habeas rights, and that its status as good law appears to be bulwarked for the foreseeable future.

IV.

Post 9/11/2001 and the Global War on Terrorism The first legal question that presented itself post-9/11 was a novel amalgamation of previous case law precedent: can a United States citizen captured abroad as an unlawful enemy combatant be denied their

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constitutionally afforded protections as any other unprivileged combatant could? Yaser Esam Hamdi was an American citizen born in Louisiana, whose family moved to Saudi Arabia during his childhood. In the summer of 2001 Hamdi went to Afghanistan as an aid worker (Hamdi v. Rumsfeld, 2004). Shortly after the United States’ invasion of Afghanistan following the September 11th terror attacks, Afghan militia forces captured Hamdi and gave him to American authorities, alleging him to be a terrorist connected to the on-going war (Hamdi v.

Rumsfeld, 2004). In January of 2002 he was transferred to the naval brig at Guantanamo Bay, Cuba. In April it was discovered that Hamdi was actually a U.S. citizen and he would ultimately be transferred to the Naval Consolidated Brig in Charleston, South Carolina. In June his father filed a writ of habeas corpus on his behalf in the U.S. district courts (Hamdi v. Rumsfeld, 2004).

The district court demanded that the government produce the evidence against Mr. Hamdi used to justify his detention, as it found the hearsay evidence of militia fighters to be “woefully inadequate” (Hamdi v. Rumsfeld, 2004). The government objected and appealed the court’s decision to the appellate division, in which a threejudge panel reversed the district court ruling that Hamdi was not entitled to habeas relief, nor was the government required to provide evidence to justify his detention as it was “"undisputed that Hamdi was captured in a zone of active combat in a foreign theater of conflict” (Hamdi v. Rumsfeld, 2004). The court of appeals gave extreme deference to the executive in regards to any evidence which could compromise national security interests by revealing such information to the public through the courts. The Supreme Court agreed to take on the case to answer if such deference was appropriate.

In an 8-1 ruling Justice Sandra Day O’Conner gave the Court’s opinion that the executive lacks the authority to indefinitely detain an American citizen without due process. While the Court was sympathetic to the government’s argument, they: reject the Government's assertion that separation of powers principles mandates a heavily circumscribed role

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for the courts in such circumstances.

Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens . . . Likewise, we have made clear that, unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive's discretion in the realm of detentions. [...] it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge (Hamdi v. Rumsfeld, 2004).

In a dissenting opinion concurring in judgement, Justice Antonin Scalia made clear that he would have limited the executive considerably more. To Scalia and Justice David Souter, the executive had only two clear choices: Congress must suspend the writ as dictated by the Constitution and upheld by legal precedent, or as an American Hamdi must be tried in federal court under federal law (Hamdi v. Rumsfeld, 2004). The Court reversed the appellate division and remanded. Before the matter proceeded to trial the government struck an arrangement with Hamdi. If Hamdi agreed to be deported to Saudi Arabia and surrender his U.S. citizenship the government would nolle prosequi Hamdi’s case. Hamdi agreed, and left the United States for Saudi Arabia.

Hamdi set a new standard in the law, specifically deciding whether the rights of citizens may be permissibly curtailed if they are labeled an unlawful combatant during a

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time in which there is no congressional suspension of habeas corpus. The Court’s opinion in Hamdi reinforced the standard set in Duncan, but went further. Not only must a citizen be afforded judicial access to the civilian courts in times of emergency when those courts are functioning, but citizens must be afforded their constitutional rights even if they are captured and detained as enemy combatants.

In 2004 the High Court also examined the case of Rasul v. Bush. Rasul dealt with the ability of the detainees to access the federal courts for habeas relief. In 2002 the Center for Constitutional Rights filed two separate habeas petitions in the U.S. District Court for the District of Columbia – Rasul v. Bush and Habib v.

Bush – challenging the government’s indefinite detention of enemy combatants held at Guantanamo Bay, Cuba who had been denied habeas protections.

As enemy combatants the prisoners were denied access to attorneys, legal documents, the right to view any evidence which supported their detention, and denied them the right to access the courts (Rasul v. Bush, 2004). While Habib’s petition was dismissed for procedural error, Rasul’s was allowed to proceed.

The U.S. District court dismissed the motions with prejudice, which prevents the suit from being refiled, citing the standard in Eisentrager; specifically, Guantanamo Bay is neither sovereign U.S. territory, nor had the detainees ever been held in sovereign territory in which they could avail themselves of constitutional protections (Rasul v. Bush, 2004). Unlike other military bases in foreign states, the treaty with Cuba specifically details that Guantanamo Bay is leased to the American government; Cuba retains full sovereignty over the land. As this was not sovereign soil in the same way that embassies and military bases abroad are, the detainees could not avail themselves of the protections of the constitution. On appeal, the appellate court confirmed. The Supreme Court granted review to answer the constitutionality of denying the prisoners the ability to apply for habeas relief (Rasul v.

Bush, 2004).

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Writing for a 6-3 Court, Justice John Stevens opined that Eisentrager had been successively weakened over the decades, and was no longer good law. Over the objections of the government, Stevens held that the degree of control and dominion over Guantanamo Bay presupposed the notion that the United States was not under America’s power or exclusive control.

Further expanding on this, Stevens held that the right to petition for habeas relief can be exercised in all forums that the government has control, sovereignty, or dominion. The Supreme Court reversed the appellate court and remanded (Rasul v. Bush, 2004). Of note, the named plaintiff would never see this opinion’s impact. Shafiq Rasul was a British national, one of nine British Citizens held at Guantanamo. Under pressure from the British government, Rasul and two other nationals were released to British authorities in March of 2014, three months before the Supreme Court would approve his petition (BBC, 2004).

Rasul completely and unequivocally reversed the Eisentrager standard. Now, so long as the United States can be shown to have exclusive physical control and rule over an area, detainees held in those areas have the rights of judicial access. To combat this issue, Congress passed the Military Commissions Act of 2006. The act barred detainees at Guantanamo qualified as enemy combatants from accessing the federal courts for habeas relief to challenge their confinement. Pending writs of habeas corpus were indefinitely stayed. The act would spark the cases of Boumediene v.

Bush and Hamdan v. Rumsfeld.

In Hamdan the Court considered whether the Military Commissions Act of 2006 unconstitutionally infringed on the judiciary’s ability to fulfill its duty to interpret and apply the constitution and treaties to which the United States was a signatory (Hamdan v. Rumsfeld, 2006). Salim Ahmed Hamdan was a bodyguard and chauffer to Osama Bin Laden who had been captured by militias in Afghanistan in 2001. His custody was transferred to the government who sent him to Guantanamo Bay (Hamdan

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v. Rumsfeld, 2006). Arrangements were made to try him before military tribunals pursuant to the Military Commissions Act. Hamdan’s Judge Advocate General counsel filed a writ of habeas corpus in the United States District Court for the District of Columbia arguing that under Rasul the tribunal process lacked the protections for his client afforded by the constitution and under the United States’ obligations as a signatory to the Geneva Convention. The district court ruled in Hamdan’s favor. On appeal the U.S. District Court of Appeals for the District of Columbia unanimously reversed the district court, holding that military commissions were a legitimate forum for the trial of enemy combatants; the Geneva Conventions could not be enforced in U.S. courts and, if they could, it did not apply because the fight against extremists was not a war between two states; Congress had specifically suspended habeas protections to these individuals as constitutionally required; and, the judicial branch could not enforce the Geneva Conventions if Hamdan was ruled a prisoner of war. The Supreme Court took the case to resolve the questions (Hamdan v. Rumsfeld, 2006).

Writing for the Court in a 5-3 split Justice John Paul Stevens held that the Act as passed by Congress failed to specifically bar Supreme Court review; jurisdictionally, the Court still had the ability to take the case for judicial review. As to the issues of interpreting or applying treaties, the Court quickly dismissed this theory. As the Court is charged with judicial interpretation, and treaties become federal law upon senate confirmation, the Court was well within its jurisdictional scope and constitutional duties in interpreting and applying the Geneva conventions. The Court further held that the Uniform Code of Military Justice (UCMJ) was the governing law for any military tribunal process. As the UCMJ granted stricter protections than those granted by the act, the statute violated the UCMJ and therefore the rights of Hamdan (Hamdan v. Rumsfeld, 2006). The only other way that the act could pass constitutional muster would be to provide protections equal to, or greater than the Geneva

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conventions. The Court found that the D.C. Court of Appeals had erred in determining that Geneva was inapplicable because Article 3 affords minimal protections to combatants held “in the territory” of a signatory state. As Guantanamo was held in Rasul to be U.S. soil, and the act required less protection than afforded by the constitution, it failed to meet the Geneva burden. Geneva also requires minimal protections that would be afforded by a regularly constituted court; the military commissions were specifically crafted and were not regular. The Court reversed and remanded for further proceedings consistent with its decision (Hamdan v. Rumsfeld, 2006).

Lakhdar Boumediene was a naturalized citizen of Bosnia – Herzegovina who was being held at Guantanamo as part of the GWoT. As part of the Military Commissions Act Boumediene was subjected to the provisions denying him the ability to file habeas petitions (Boumediene v. Bush, 2008). Boumediene brought suit in the Federal District Court for the District of Columbia, alleging that under Rasul he was guaranteed the writ of habeas corpus in the federal courts, regardless of what the language of the Military Commissions Act (Boumediene v. Bush, 2008). The district court denied the petition, and the appellate division split in its review ruling that Congress had the authority to curtail habeas corpus as permitted to the legislature by the Constitution. The Supreme Court granted certiorari to finally settle the matter that had been the basis for so many claims.

Delivering the majority opinion of 5-4, Justice Anthony Kennedy held that the constitution guarantees the writ of habeas corpus to every prisoner at Guantanamo Bay (Boumediene v. Bush, 2008). This right is an extension of the precedent case law of Rasul.

If Congress wished to suspend the writ as described by the Constitution, they must grant a substitute that offers prisoners a meaningful ability to show that they are being held in error, that there must be somebody which can correct the errors of law, that there must be a judicial process of appeal which allows for assessment of the government’s evidence and weigh it to the

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case at bar, and that their rights under the constitution in any judicial forum must equal those afforded in the constitution. The Court held that the Military Commissions Act was woefully lacking such judicial equality in the military proceedings as the detainees would be afforded in any other U.S. venue (Boumediene v. Bush, 2008).

Justice Kennedy went on to apply the principles of the oldest Supreme Court case in American law, Marbury v. Madison.

Marbury granted the Court’s roll as the interpreter and definer of the law, not the executive or legislative branches. Only the Court can decide if or when a prisoner’s rights are applicable and constitutionally protected. By invoking Marbury Justice Kennedy sent a strong message to the government: you may decide the venue or detail the proceedings for justice, but only the judiciary has the power to interpret the laws or limit a prisoner’s right to equal justice.

The Nation’s basic charter cannot be contracted away like this.

The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply.

To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say “what the law is” (Boumediene v. Bush, 2008).

Hamdan and Boumediene set clear legal standards for detainees and new bright lines in how constitutional protections are applied to enemy combatants. Congress has the authority to enact military tribunal systems, and it may delegate operations to the executive. These courts, designed to try enemy combatants, may be permissibly outside of the standard court systems. The Congress may also permissibly curtail habeas corpus for these prisoners in the standard fashion. However, where the government errs is in attempting to strip the combatants of any rights by both suspending habeas protections and denying them the rights common to due process afforded by the constitution. The executive and the legislative may not completely

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remove judicial oversight or protections from detainees; they must be afforded rights in the military commission process which would equal or exceed those proscribed by the Uniform Code of Military Justice or the Geneva conventions. Such protections include habeas corpus in some fashion. If the government denies prisoners this most basic and fundamental right, it is an unconstitutional infringement on the judiciary to prevent the Supreme Court from reviewing such governmental actions.

Collectively as a body Rasul, Boumediene, and Hamdan form the case law defining the protections afforded by the writ of habeas corpus to enemy combatants, while Hamdi and Duncan sets the bright line for habeas protections of American citizens.

V. Conclusions The case law surrounding the suspension of the writ of habeas corpus to those in the government’s custody during times of emergency has seen an incredible shift during the last 150 years, and the landscape is ever changing. From Ex Parte Merryman to Eisentrager to Hamdi, as a society we continue to evaluate and analyze how the writ applies legal protections to both our citizens and to unprivileged combatants.

Even in this changing landscape there are several cases presenting stare decisis, the doctrine of precedent which serves as a binding rule on the courts obliged to follow the decisions of the appellate court issuing the rule. Only Congress may suspend the writ of habeas corpus, and the Congress must be faced with an emergency or extreme measures justifying its infringement. While the executive is charged with executing such provisions dictated by Congress, the legislative branch alone may truly suspend the writ. However, as was demonstrated in several cases, the mere threat of emergency or the passage of an act in and of itself is insufficient grounds to strip those in custody of their habeas rights. So long as the courts are open and able to meet, the government must allow its prisoners to be heard.

Hamdi now firmly clarifies that U.S. citizens may not be deprived of their rights to habeas

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corpus or other rights afforded them by the Constitution, regardless of any statute which would otherwise limit these rights, or any other legal forum which would afford them less protection then required by customary international law or treaties. This precedent is important as the government continues to combat those who travel abroad to fight for insurgent or extremist groups, and someday may be found to be in a position which makes that person eligible to be labeled an unlawful combatant.

Rasul firmly overturned jurisdictional precedent in Eisentrager; detainees must have access to the United States federal courts and are afforded the legal protections of the Constitution, including the writ of habeas corpus. This precedent applies to anywhere in the world in which an individual is held by the government, so long as the government has control that would otherwise be considered sovereignty, such as diplomatic posts, military bases, or intelligence facilities.

Hamdan sent clear messages to the legislative and executive branches that the judiciary alone is qualified to interpret and apply such decisions to laws and treaties; any attempt by the executive or legislative branches to exclude petitioners from accessing the Courts or other substituted means of justice will never pass constitutional muster, and in such cases the judiciary will always be a haven for relief.

Boumediene formed the final bright line. In trying unlawful enemy combatants captured on foreign battlefields the Congress may proscribe other methods than the courts to try such individuals for their crimes, such as commissions or tribunals.

However, in order to comply with the requirements of the Constitution such proceedings must have trial and appellate protections which are equal to, or greater than, those found in the UCMJ and the Geneva Conventions. Any statutes which fails to fulfill these requirements is

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unconstitutional and allows the detainee to file a writ for habeas relief to the federal judiciary regardless of any legal exclusions proscribed by the Congress.

Though the law continues to evolve, as of the publication of this journal the law surrounding the suspension of the writ of habeas corpus and the right of the writ to American nationals and unprivileged combatants is the clearest it has been since the end of World War II. Americans now have clearly enumerated protections and detainees are afforded far more stringent protections than at any time in U.S. history, and certainly since any time following the terrorist attacks of September 11th, 2001. The protection afforded by the writ of habeas corpus to those who would harm the United States or its interests is politically unpopular but, to paraphrase British Prime Minister Clement Atlee, it is when the writ is unpopular that those who require it should find the full effect of its protections.

Notes 1) The use of defendant, movant, detainee and petitioner are interchangeably substituted and refer to the individual petitioning for relief.

2) The use of unlawful combatant, illegal combatant, enemy combatant, and unlawful enemy combatant are interchangeably substituted and refer to unprivileged parties who engage in acts of armed warfare but who are not members of a foreign military, or persons whom the Geneva Conventions do not recognize as prisoners of war (POWs).

3) ‘States’ in this article deals with the independent States of the United States of America; ‘states’ refer to nations within the international system

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REFERENCES

REFERENCES Aldrich, G. H. (2002). The Taliban, Al Qaeda, and the Determination of Illegal Combatants. The American Journal of International Law, 96(4), 891.

BBC NEWS | UK | At-a-glance: Guantanamo Bay Britons. (2004, March 09). Retrieved July 15, 2016, from http://news.bbc.co.uk/2/hi/uk_news/3089395.stm Bielakowski, A. M. (2013). Ethnic and Racial Minorities in the U.S. Military: An Encyclopedia.

Santa Barbara, CA: ABC-CLIO. Breay, C., & Harrison, J. (Eds.). (2015). Magna Carta: Law, Liberty, Legacy. London, UK: British Library.

Garner, B. A. (2001). A Dictionary of Modern Legal Usage (2nd ed.). New York, NY: Oxford University Press.

Hardwicke, R. (1861). The Bastille in America; or Democratic Absolutism. London, UK. Hoffman, B. (2006). Inside Terrorism. (rev. ed.). New York, NY: Columbia University Press.

Lossing, B. J. (1997). Pictorial field book of the Civil War: Journeys through the battlefields in the wake of conflict. Baltimore, MD: Johns Hopkins University Press.

McGinty, B. (2011). The Body of John Merryman. Boston, MA: Harvard University Press.

Persico, J.E. (2002). Roosevelt's Secret War: FDR and World War II Espionage. New York, NY: Random House.

Randolph, C.F. (2009). The Law and Policy of Annexation. Charleston, SC: BiblioBazaar.

Report on Terrorism and Human Rights (Rep. No. OEA/Ser.L/V/II.116 Doc. 5 rev. 1 corr.).

(2002, October 22). Retrieved June 05, 2016, from Organization of American States website: http://www.cidh.org/terrorism/eng/intro.htm Sellery, G. C. (1907). Lincoln's suspension of habeas corpus as viewed by Congress. (Doctoral dissertation, University of Wisconsin - Madison, 1907).

Silver, D. (1956). Lincoln’s Supreme Court. Champaign, IL: University of Illinois Press.

Simon, J. F. (2007). Lincoln and Chief Justice Taney: Slavery, Secession, and the President's War Powers. New York, NY: Simon & Schuster.

The 1215 Magna Carta: Clause 39 (H. Summers, Trans.). (n.d.). Retrieved June 27, 2016, from http://magnacarta.cmp.uea.ac.uk/read/magna_carta_1215/Clause_39 Tucker, S. C. (Ed.). (2013). American Civil War: The Definitive Encyclopedia and Document Collection. Santa Barbara, CA: ABC-CLIO.

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CASES Boumediene v. Bush, 553 U.S. 723 (2008).

Duncan v. Kahanamoku, 327 U.S. 304 (1946).

Ex parte Merryman, 17 F. Cas. 144 (1861).

Ex Parte Quirin, 317 U.S. 1 (1942).

Felker v. Turpin, 518 U.S. 651 (1996) (Holding that AEDPA does not amount to a suspension of the writ of habeas corpus).

Fisher, on behalf of Barcelon v. Baker, 203 U.S. 174 (1906).

Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

Hamdi v. Rumsfeld, 542 U.S. 507 (2004).

Harris v. Nelson, 394 U.S. 286, 290-91 (1969).

Johnson v. Eisentrager, 339 U.S. 763 (1950).

Korematsu v. United States, 323 U.S. 214 (1944).

Marbury v. Madison, 5 U.S. 137 (1803).

Rasul v. Bush, 542 U.S. 466 (2004).

STATUTES, EXECUTIVE ACTIONS, AND TREATIES U.S. Const., art. 1, § 9, Cl. 2.

28 U.S.C. § 2244.

28 U.S.C. § 2253.

An Act to enforce the Right of Citizens of the United States to vote in the several States of this Union, and for other Purposes, 16 Stat. 140 (1870).

The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996).

The Army Appropriations Act of 1901, 31 Stat. 910, (1901).

Civilian Restrictive Order No. 1, 8 Fed. Reg. 982 (May 19, 1942).

The Enforcement Act of 1871, 17 Stat. 13, (1871).

Executive Order No. 9066 – Authorizing the Secretary of War to Prescribe Military Areas (Feb. 19, 1942).

Executive Proclamation No. 201 – Suspending the Writ of Habeas Corpus in Certain Counties of South Carolina (Oct. 17, 1871).

Executive Proclamation No. 2561 – Denying Certain Enemies Access to the Courts (July, 2, 1942).

Geneva Convention Relative to the Treatment of Prisoners of War (III), Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (Third Geneva Convention).

Geneva Convention Relative to the Protection of Civilian Persons in Time of War (IV), Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 (Fourth Geneva Convention).

The Hawaiian Organic Act of 1900, Pub.L. 56–331, 31 Stat. 141 (1900).

The Military Commission Act of 2006, Pub.L. 109-366, 120 Stat. 2600 (2006).

Treaty of Peace between the United States of America and the Kingdom of Spain, U.S. – Sp., Apr. 10, 1898, 30 Stat. 1754.

The Philippine Organic Act of 1902, c. 1369, 32 Stat. 691 (1902).

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JONATHAN E.B. LEWIS

BIOGRAPHY

Jonathan E.B. Lewis is a law clerk for the South Carolina Attorney General’s Office, assisting the Attorney General in criminal appeals. He is a second-year law student at the University of South Carolina School of Law, where he focuses his studies on criminal and national security law, and how those areas intersect with the U.S. Constitution and civil liberties. He completed his Masters at Norwich University in International Diplomacy, with a concentration in Transnational Terrorism. Mr. Lewis has previously spoken and written about religious extremism and its effects on international affairs.

Mr. Lewis’s additional background and experience includes living and travelling throughout Europe and the Mid-East. He has previously studied Transnational Security and NATO Partner Relations at Zrínyi Miklós National Defense University in Budapest, Hungary while on an exchange program with Hungary’s military academy and its Senior Military College counterpart.

Additionally, he has studied Transnational Law at the Honorable Society of Gray’s Inn, one of London’s four Inns of Court.

He can reached at jeb.lewis@gmail.com

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Obscured in the Margins: Crime, Terrorism, and the Rule of Law

BY BRAD NICHOLSON AND ARNIE HAMMARI

Global terrorism remains an overriding security concern for the international community. Seemingly new threats emerge quicker than they can be assessed or addressed using traditional security protocols. Globalization has connected the distant parts of the world to one another for the exchange of ideas and commerce. As quickly as new technologies spread via these same networks transnational terrorist groups move their ideologies, supporters, and funding throughout the world. By the time an area of risk is identified the very nature of that threat may have changed.

Terrorist groups and networks often evolve at a speed that is directly proportional to the emergence of opportunities for realizing their goals. The life cycle of such organizations exists along a fluid continuum where activities and objectives may change while the underlying motivations and existing leadership cadres do not. Gerald Seymour popularized the slogan, “One

man’s terrorist is another man’s freedom fighter,” in his 1975 novel Harry’s Game about the Irish Republican Army1. As the last 20 years have shown not only is one man’s terrorist a freedom fighter but is also a criminal or insurgent, sometimes assuming the role of all three at once.

Most terrorist organizations do not form with the direct goal of performing acts of political violence but evolve from preexisting social groups. Typically, these are rooted in criminal activity. A basic understanding of gang formation and behavior illustrates the types of conditions from which terrorist organizations emerge. Gangs form because the needs of a certain group within a family, neighborhood, or culture are not being met.2 Classical counterinsurgency theory draws upon similar themes as the motivational origins for people taking up arms as insurgents. Either as terrorists, insurgents, or criminals these groups exist on a continuous

1. Seymour, G., Harry’s Game, Overlook Press, New York, NY, 2007.

2. Gardner, S., Street Gangs in America, Franklin Watts, New York, NY, 1992.

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spectrum along which movement from one type of activity to another is easily accomplished. Organizations can quickly adapt their activities based upon external or internal stimuli that threaten the core reasons such groups formed in the first place. The speed at which these changes occur poses particular challenges to governments seeking to counter such illicit activities.

Typically, governments develop specific tools to address the problems posed by illegal activity.

The legislative, law enforcement or even social programs provide means for countering not only the criminal activities of these groups but also to ameliorate the motivations that drive individuals to join. The fluid identity of groups along the spectrum of criminal activity makes them hard to counter.

Exploring the debate about the nature of terrorism as a criminal or military matter is beyond the scope of this article. Since terrorism is by definition an illegal activity a particular focus will be placed upon the challenges posed by the criminality of terrorism. Governments develop a broad array of tools to address non-state actors such as terrorist or insurgent groups. Military forces, intelligence services, and other measures both defensive and offensive in nature are routinely employed. A glaring omission is often the less robust development of holistic judicial procedures for terrorism. The conundrum facing the United States with what to do with captured terrorists is a great example. The entire enterprise of countering terrorism is predicated upon conducting efficient and routine physical acts against such groups but quickly unravels when successful.

There is often little policy, legal precedent, or legislative authority providing adequate guidance on how to address terrorist criminal activities. Such circumstances are particularly true in incidents of terrorism where the actors are domestic members of international organizations. The tools

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available to law enforcement may be adequate to prevent groups from engaging in organized racketeering geared towards making money through an illegal enterprise.

When these same groups change their activities and become terrorist organizations legal authorities are often inadequate for effective law enforcement. Even the physical capabilities of law enforcement organizations may not be properly configured, trained, or resourced for conducting counterterrorism. Conversely, military activities geared towards conducting counterinsurgency or direct action counterterrorism are themselves inadequate for dealing with sub-state actors such as criminal groups and gangs that are only part-time terrorists. The speed at which groups can change their identity through activity modification keeps governments off balance. Existing in an undefined policy area between law enforcement and military action allows these groups to exploit systemic weaknesses and sustain their activities.

Examining how groups move along the continuum of illegal criminality may illustrate seams or gaps where policy makers can focus efforts on closing loopholes available for these actors. Three examples illustrate just how such groups evolve in response to changing external and internal dynamics; these are the North African-based Al Qaeda in the Islamic Maghreb (AQIM) and the Somalia-based Al Shabaab. Each of these groups has at times engaged in criminal activities, terrorism, and insurgency.

Often, performing variations of all three illegal activities at once.

Perhaps few other groups illustrate the extremes of mobility along a broad spectrum between criminality and terrorism like Al Qaeda in the Islamic Maghreb. The group emerged in 1998 as an Islamist rebel group known as the Group for Salafism and Preaching in Combat (GSPC).

The movement employed terrorist tactics to wage an insurgency against the government

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of Algeria. Eventually, the rebellion failed due alienating the majority of the country's moderate Muslims through its brutality.

Following the introduction of an Algeriawide amnesty program in 1999, the GSPC leadership and a cadre of irredentist fighters retreated to the under-governed southern border shared with Mali, Niger, and Tunisia.

Although the insurgency had failed the remaining committed fighters continued a more limited struggle against the Algerian state. These activities were funded primarily through the illicit trafficking of people, drugs, and weapons.

In particular, kidnapping for ransom became the organization's preferred tactic for terrorism and fund-raising. Although low-level attacks continued conducting a general insurgency was no longer the group's primary purpose.

The group gained international notoriety in 2003 with the kidnapping and ransom of 32 European tourists in the southern mountains of Algeria. Throughout this period the successful tactics employed during the early years of the insurgency were used to exert control over regional trafficking networks. Asserting control of the traditional trading and smuggling routes throughout the region allowed GSPC to expand its influence.

Once enfranchised by al-Qaeda in 2006, the group was able to greatly expand their area of operations as well as their activities. As their network spread throughout the region AQIM established a cocaine trafficking operation in coordination with the Revolutionary Armed Forces of Colombia, better known by the acronym FARC. Thus, by 2007 and 2009 and narco-trafficking had become their primary source of income.

Joining Al Qaeda also broadened the movement’s appeal to a wider Islamist audience. Many of these regional Islamistinspired groups were already fighting insurgencies against their own governments. In 2012 AQIM joined the Tuareg coalition with Ansar al-Dine and the Movement for Unity and Jihad in West Africa (MUJAO) in northern Mali. Together they

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succeeded in driving Malian government forces to the south. Once the Malian military had retreated MUJAO declared the establishment of the Islamic caliphate of Azawad and AQIM turned on the Tuaregs, driving them from the major cities in northern Mali. The AQIM coalition was only stopped in by a Franco-Chadian led United Nations peacekeeping operation. Following this defeat, AQIM was once again forced to retreat again to the Sahel's ungoverned border regions. During this time, AQIM seamlessly shifted its focus back to terrorism and criminal activities such as kidnapping and trafficking. These actions resulted in some spectacular attacks against soft targets and have shown an expansion of the group's reach into countries such as Cote d'Ivoire.

Just as AQIM evolved from a civil war so too did Somalia’s Al-Shabaab grow from the remnants of the extremist Islamic Courts Union in 2006 following the entry of Ethiopia into the Somalia Civil War. Much like AQIM Al Shabaab eventually pledged allegiance to al-Qaeda. Joining the global jihadist movement brought a potent body of foreign fighters, to include the numerous UK and US citizens, into Somalia. By 2011 Al Shabaab established itself as de facto government, collecting taxes, administering civil institutions, and notably running Somali's ports. After joining forces with Al Qaeda international and regional powers began to place more emphasis upon stopping Al Shabaab’s centralization of power. The deployment of the African Union Mission in Somalia (AMISOM) in 2007 and a subsequent violent yet limited successful counter-insurgency drove Al-Shabaab from Mogadishu by October 2011. Al-Shabaab retreated away from the coast to inland cities it controlled, all the while continuing to conduct attacks in Mogadishu to destabilize the government and peacekeeping forces.

Eventually, AMISOM forces also succeeded in driving Al Shabaab from the major cities

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in Southern Somalia in 2014-2015. This removed the major port of Kismayo from Al Shabaab control. Without the income provided by this port, the group could no longer sustain its insurgency or territorial control. Now Al Shabaab primarily engages in the illicit trafficking of charcoal, persons, and livestock. The income from smuggling is a significant source of income and funds many of the group’s terrorist activities.

Interestingly as Al Shabaab transitioned from quasi-government back to terrorism and crime its scope of activities has expanded in geographic terms. Al Shabaab has conducted terrorist strikes in the AMISOM troop contributing countries of Kenya, Uganda, Djibouti, and Ethiopia. In some ways, as insurgencies are degraded their lethality increases because resources and fighters are freed up to conduct more terrorist attacks. The movement pattern along a spectrum of criminality in Somalia resembles those that emerged in Iraq following the Sunni Awakening and in Syria as regional forces have begun to take territory from the Islamic State.

Closely examining the history of both AQIM and Al Shabaab illustrates the adaptability and survivability of such organizations. These two cases are not unique, they are representative of the speed at which nonstate actors may evolve. States do not enjoy these same advantages. By their very nature states are bureaucratic and decision making involves numerous stakeholders. Even strongly authoritarian governments cannot adjust their activities as quickly as an insurgent, terrorist, or criminal network. A government’s ability to conceive, approve, and issue a timely reply in the information campaign waged via social media platforms is much slower than a dissociated and disaggregated non-state actor. A great example of where these facts reveal themselves daily is the internet. The Islamic State, in particular, is adept at using social media to spread its ideology, recruit new fighters, and raise funds. Since these activities are hard to geographically locate

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states are constrained in their responses. It is hard to physically disrupt something that does not exist in a fixed location. Although some governments have begun cyber operations against the Islamic State the simple utility of the internet means that if one outlet is denied another can be quickly enacted.

Groups such as the Islamic State, AQIM, and others exist in several forms at once. Laws and regulations apply differently when borders are crossed, foreign nationals or domestic citizens are involved, or when activities change from terrorist to criminal in nature. In the context of the United States law enforcement, intelligence, and military forces each operate under distinct authorities as empowered by the law.

Despite nearly 15 years of nearly continuous counterterrorist activities, the lines that divide these separate entities are strongly in place if a little blurred at the extremities.

There is a good reason for such strong divisions, at the forefront is a desire to protect the civil liberties and freedoms of U.S. citizens. This is why the existence of Americans on terrorist targeting lists for military strikes is so controversial. Other government more or less face the same challenges. Where do the lines begin and end? When is it acceptable to cross them?

These questions have almost universally not been adequately addressed. In most states, the law is insufficiently robust enough to counter the flexibility of groups such as AQIM and Al Shabaab these organizations will endure on the margins of civil society.

Perhaps institutional development, instead of armed force, is the best way to develop the ability to effectively address the enduring challenges posed by groups that operate quickly along a spectrum of capabilities scalable to the existential threat facing them.

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BIOGRAPHY

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Lieutenant Colonel Brad Nicholson is currently pursuing a PhD in political science at the University of Utah. His previous posts include US Embassy Tanzania, US Embassy Uganda, US Africa Command, and the Joint Chiefs of Staff.

Major Arnie Hammari is the executive officer to the Chief of Staff, US Africa Command in Stuttgart, Germany. His previous assignments include US Embassy Senegal, US Embassy Uganda, and US Embassy Chad. Their collective works have previously appeared in numerous publications to include The Diplomat, Armed Forces Journal, Small Wars Journal, Journal of Peace and Stability Operations, and other periodicals.

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ANTIQUITIES AND CONFLICT: CHANGING MILITARY STRATEGY

BY DAVID GRANTHAM

Once treated as purely a criminal problem, the looting and sale of illicit antiquities has recently become matter of national security.

The frequent contact between the U.S. military and non-state actors, namely Islamic terrorist organizations, demands a doctrinal change in how military strategy accounts for cultural heritage. The U.S. government and the Department of Defense should give greater precedence to the protection of movable cultural heritage in wartime in order to diminish the capabilities of terrorist organizations who remain the preeminent threat to the safety and security of the United States.

Set against the backdrop of cultural identity in the Middle East, this work establishes the nexus between movable cultural heritage and the success of military strategy by retracing the historical role antiquities plays in warfare and their current use as a funding mechanism for Islamic terrorist organizations.

The thrust of this piece aims to demonstrate why antiquities, traditionally a criminal matter, should take greater priority within

military circles. Safeguarding a community’s historical sites and movable cultural heritage in conflict provides U.S. forces an operational advantage in securing the support of the local population and preempts the theft of priceless antiquities that fund adversarial organizations.

Preventing cultural heritage from entering the illicit market diminishes the financial capabilities, and thus, the operational effectiveness of terrorist organizations.

Narrow in scope, this piece is not intended to answer lingering legal questions of private property and national antiquities. Nor to address due diligence issues surrounding the legal sale and purchase of antiquities in the U.S. market.

Instead, my project contributes a precise examination on the implications of trafficked, movable cultural heritage to U.S. national security and military doctrine.

The Non-state Actor and Cultural Heritage The non-state actors ‒‒ groups unaffiliated with an internationally recognized

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government ‒‒ represent the twenty-first century combatant.

And terrorist organizations, primarily based in the Middle East, comprise the bulk of these unaligned parties. As a result, they remain the primary threat to and target of U.S. military forces.

The enormous attention terrorist organizations have commanded from the international community and the U.S. military during the last three decades shows no signs of slowing.

Terrorist organizations continue to carry out attacks at a rate far greater than any time before. The Global Terrorism Index for 2015 demonstrated that deaths directly attributed to acts of terrorism increased 80 percent from 18,111 in 2014 to 32,685 the following year. The same report explained that five more countries experienced a terrorist attack in 2014 than the year prior, and six more countries experienced greater than 500 deaths related to terrorism than 2013. That represents over a 100 percent increase in terrorist-related death from 2013 to 2014. Moreover, these attacks are highly concentrated in the Greater Middle East.

Terrorist attacks in Iraq, Nigeria, Afghanistan, Syria and Pakistan together represent over 50 percent of all attacks worldwide (Global Terrorism Index, 2015).

Naturally then, Islamic terrorist organizations dominate the U.S. Department of State’s list of Designated Foreign Terrorist Organizations. Once a mix of Asian, Latin American and Middle Eastern organizations, the 59-member list now consists almost exclusively of Islamic or Islamic-themed factions. Islamic terrorist organizations now represent over 80 percent of the entire catalogue (U.S. Department of State, Foreign Terrorist Organizations).

The same actors identified in the State Department directory thrive in developing, weak and failed states.

Indeed, these unaffiliated parties operate almost exclusively in those developing or nonindustrialized nations where U.S. forces have operated for the last three decades.

Beginning in Lebanon in 1982 through the Bosnian War in the mid-1990s and up through recent engagements in Iraq and

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Afghanistan, U.S. armed forces have spent over 35 years operating almost exclusively in areas of weak governing authority. The aforementioned rise in terrorism suggests this trend will not change in the coming years. The last three decades of U.S. warfare indicates that even with the aggressive military maneuvers on the part of Russia and China in recent years, conflict between superpowers will likely be carried out through proxy-wars in some corner of the developing world.

In any case, Islamic terrorist organizations operate in those developing or failed states, particularly the Middle East, where U.S. armed forces have maintained a presence for decades. This reality is important for several reasons: (1) the greater Middle East is often home to the world’s rarest and most valuable cultural heritage; (2) Islamic terrorist groups misuse cultural heritage to manipulate the outcome of war and are often reliant on the illicit market to fund their operations; (3) illicit antiquities network has a direct connection to U.S. markets but remains a narrow criminal matter. In short, the treatment of movable cultural heritage can have an immediate impact on military strategy and long-term impact on national security.

Defending Cultural Heritage How U.S. armed forces respond to the looting or destruction of antiquities during conflict could well determine the course of the war.

The statement alone seems irrefutable. After all, most military strategists recognize the value of cultural heritage to an indigenous population, beyond their mere market value. But the notion that the treatment of cultural heritage has the potential to undermine military operations also sounds somewhat exaggerated. Recall how former Secretary of Defense Donald Rumsfeld dismissively said “stuff happens” after learning about the looting of the Iraq National Museum. He claimed the media inflated the problem by “recycling video of a single looter with a vase” (Rich, 2006). This flippancy belies an all-too-common underappreciation for artifacts and their wide-ranging impact on military operations.

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Critics who bemoan the lack of military preparation or interest in protecting cultural heritage harbor their own misunderstandings. Detractors assume that the preservation of heritage should automatically be treated as a prewar priority based on international agreements (Stone & Farchakh, 2008). The longstanding and widely endorsed Hague Convention for the Protection of Cultural Property of 1954, for example, defines cultural heritage as “movable or immovable property of great importance to the cultural heritage of every people…buildings whose main and effective purpose is to preserve or exhibit the movable cultural property…[and] centers containing a large amount of cultural property as defined in sub-paragraphs.”

(Hague Convention, 1954).

The Hague Convention and The Geneva Convention also include provisions that require signatories to protect cultural heritage during conflict. However, since the United States has not ratified the agreement, the extent to which the military exercises the protection clause rests with the judgment of those executing a mission. “A country which has implemented the 1954 Hague Convention…is obliged to safeguard cultural property during conflict,” scholar Emma Cunliffe points out, “although it falls to the military organization to decide upon appropriate use of lethal force within that doctrine.” (Antiquities Coalition, 2016, p.38).

Critics also point to a shared human history as reason enough to protect the treasures of the international community.

After all, unlike some countries in Europe and Asia, those developing nations that have experienced a U.S. military presence in the last four decades, more often than not, possess inadequate infrastructure to protect priceless artifacts. Their arguments often include ambiguous declarations of protecting “priceless treasures” or vague calls to “preserve the past” for future generations.

But strategic objectives cannot be developed and tactical advantage cannot be achieved based on ambiguous language or academic affinities.

Few American citizens would presumably support sacrificing the lives of its soldiers

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simply to protect a foreign monument. The U.S. military is not the enforcement arm of a tourism bureau.

There exists then a disconnect then between criminal emphasis, military strategy and international mandates that demand the proactive protection of historical sites during armed conflict.

The solution should center on the very real connection between military strategy and the treatment of cultural heritage; a relationship that elevates the issues of cultural heritage to a national security matter. The U.S. military’s presence in places with high volume cultural heritage, and the continued operations against those terrorist organizations embedded in the illegal antiquities market should be reason enough to make cultural heritage an integral part of war planning and a part of military training for those elite forces in close contact with enemy forces. But the more immediate need involves reconciling military objectives with preservation of cultural heritage during conflict by proving beyond a reasonable doubt that the treatment of cultural heritage can have a direct impact on defense strategies.

Identity in Cultural Heritage The first element in bridging cultural heritage and military strategy involves a willingness to understand and appreciate the emotional attachment antiquities hold.

How a given community observes the treatment of its artifacts, immeasurable as it may be, can have a measurable impact on military operations and U.S. national security as a whole.

The Department of Defense needs to equip its armed forces with a broader understanding antiquities and their role in cultural identity. The physical pieces are themselves valuable collectibles that can be used to fund illicit activity, to be sure. But such a reductionist perspective fails to fully comprehend the political and cultural implications attached to cultural heritage.

Whether as a means of expressing identity or to preserve authority, antiquities play an important part in fostering cohesion,

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centralizing power and creating conflict within a given society.

The role of movable cultural heritage in the formation of a cultural identity is foundational to understanding their impact on wartime operations.

Charles Tripp, professor of politics at the School of Oriental and African Studies in London, touched on this idea in the aftermath of the looting in Baghdad in 2003: "This is really a terrible thing…One of the problems has been establishing an identity, a place in history and in the future. If you lose those documents you are subject to remolding of history which will be extremely dangerous" (Jehl & Becker, 2003).

Antiquities help shape individual, cultural and national identities.

They offer characteristics that explain how someone or some group is situated in both time and place. Lyndel V. Prott and Patrick J. O’Keefe (1992) define cultural heritage as “manifestations of human life which represent a particular view of life and witness the history and validity of that view” (p. 307). This expression of cultural heritage “may be embodied in material things,” such as antiquities – clothing, pottery, weaponry, among others.

Indeed, the intrinsic or “immovable” attributions attached to antiquities have a primary importance to different cultures (Prott & O’Keefe, 1992, p.

307). And the erosion of identity through the damage of cultural heritage can quickly lead to a rise in violence and sectarianism.

Observers do not have to peer deep into Middle East society to see the power cultural heritage holds within a given society. Egypt and the contested country of Israel are both prime examples.

For the Jewish state, antiquities play a crucial role in establishing a historical precedence for its founding. The movable heritage excavated from sites throughout the current state of Israel, especially the contested Temple Mount area, often serves as the political defense, the validation for the establishment of Israel in its current location (“A Powder Keg Left Unguarded,” 2007). The Israeli government

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reasons that legitimate archaeological processes have repeatedly unearthed tangible representations of a longstanding presence of the Hebrew people in the area; evidence of supreme importance since the Arab-Israeli conflict revolves primarily around the right of return for Palestinians and the historic birthright to the land for Israelis (Finkelstein & Schmidt, 2007; Price, 2001).

Understanding this reality, some Palestinians have allegedly participated in the organized looting, sale and destruction of Hebrew artifacts from the Temple Mount area (“Cultural Without Context,” 2001).

The same movable cultural heritage can act as a vehicle for diplomacy. After Israeli intelligence services received information in 1957 that Nazi fugitive Adolf Eichmann was living in Buenos Aires under an assumed name, a select group of Israeli operators captured Eichmann as he returned home from work on the evening of May 11, 1960 (Harel, 1975; Morris, 1991; Aharoni & Dietl, 1997; Arendt, 2006). The Israeli government approved the plan without notifying local Argentine officials.

Soon after media outlets revealed that Israeli agents had absconded from Argentina with the outlaw Nazi, the Jewish state found itself having to repair the now fractured relationship with its angered South American ally.

A major step in the process of diplomatic reconciliation involved opening the first Israel-Argentina friendship league in Buenos Aires and used cultural relations as the basis for improving “the Israeli public’s acquaintance with Argentina and to enhance Argentina’s image,” scholar Raanan Rein explains (Rein, 2002, p. 192).

The Israeli government then delivered the priceless Dead Sea Scrolls exhibit to Buenos Aires in September 1960 in an especially risky decision since anti-Semitic reprisals continued throughout the city in the wake of the Eichmann capture.

Although both governments claimed the exhibit was merely part of Argentina’s independence celebration, the New York Times concluded with “little doubt…that the quality and breadth of the exposition

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[was] connected with a more topical development – the case of Adolf Eichmann” (“Argentines See Dead Sea Scrolls,” 1960).

Whereas cultural heritage has aided in the justification for a Jewish state and helped shape a national Jewish identity, Egyptian antiquities have engendered a national debate. Donald Malcolm Reid, in his newest publication Contesting Antiquity in Egypt (2016), shows how the complex nature of cultural heritage in Egyptian identity led to years of shifting emphasis in the preservation and promotion of certain cultural heritage. The fluctuating interests in displaying or promoting certain antiquities and symbols over others illustrated, among other things, the unsettled dimensions of Egyptian identity.

Reid’s treatise highlights how the struggle over the ultimate expression of Egyptian identity caused shifts in emphasis among cultural heritage. Pharaonic pieces and Coptic antiquities fell in and out of vogue throughout the nineteenth and twentieth century based largely on political need and social response. In an attempt to redefine Egypt’s character years later, leaders then jostled with notions of Arab-ness and “Islamic” art within the realm of cultural heritage.

This debate, Reid points out, gained significant traction in the postcolonial era after locals became frustrated with the years of western control over the domestic excavation and preservation process. One could indeed point to this twentieth century fight as a contributor to politics of Cold War nonalignment and anti-Western foreign policy.

From pieces that reflected Arab ethnicity to those of Islamic representation, from resurrecting Pharaonic heritage in World War I to finding anti-colonial expression through antiquities during the Cold War, antiquities created an atmosphere of contested identity.

Those subsequent debates had a remarkable influence on Egyptian politics and foreign policy.

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A more sinister case of cultural manipulation emerged in Iraq after Saddam Hussein forcibly captured the presidency in 1979. In an extreme instance of hubris, the infamous dictator tried to recreate the glory days of the Babylon Empire by building on top of its ancient ruins approximately 50 miles south of Baghdad. Hussein began this process in earnest during the early 1990s. Famed archaeologists ridiculed the plan as “Disney for a Despot,” warning of irreparable damage to the existing site and reminded observes that, among other things, no one really knew what the palaces actually looked like (MacFarquhar, 2003).

The project went forward despite its futility. Adding insult to international consternation, Ba’athist officials inscribed on the newest additions, “In the era of Saddam Hussein, who rebuilt civilisation and rebuilt Babylon” (Freeman, 2009).

Hussein was attempting to create a cult of personality through cultural heritage. But despite the vanity behind it all, as scholar Benjamin Isakhan explains, this extensive nation-building campaign also included reconstruction of archaeological sites and reinvigoration of state libraries and museums. The strategy proved “central to the formation of a variety of different identities” and was responsible for “at least some degree of social cohesion and inclusion” (Kila & Zeidler, 2013, p. 221). That cohesion bred an emotional attachment to cultural heritage, which engendered fierce and intense reactions to its mistreatment.

Another example of the affinity for cultural heritage surfaced after the civil war in Lebanon that raged from 1975 through 1990.

The threats to Lebanon’s cherished National Museum led Emir Chehab, the director of antiquities, and his wife Olga to save much of the museum’s most treasured pieces. The two workers smuggled priceless artifacts to secret locations or stored them in upper floors of the building; shielded from munitions and looters by cement walls and reinforced barriers. The pair risked death by making irreplaceable Pharaonic Greek, Phoenician, and Roman pieces inaccessible to looters and other unauthorized people, to include occupying military forces (Moseley,

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1983). Their relentless efforts in preserving these antiquities and the cooperation they secured from local officials in guarding it together showed a shared concern between government and private parties for the protection of their collective heritage.

This intense reaction to identity extends into other artistic arenas of cultural representation.

Israel’s Ambassador to Sweden physically attacked an art exhibit at the Museum of National Antiquities in Stockholm during the international conference on genocide in January 2004.

According to media reports, Zvi Mazel became enraged, ripping out the electrical wires and tossing the spotlight, when he encountered the so-called “Snow White and the Madness of Truth.” The conversational piece featured a grinning suicide bomber, Hanadi Jaradat, floating in a boat atop a basin filled with red fluid intended to represent blood. Mazel told the press later, “I became a bit emotional…there was the terrorist, wearing her perfect makeup and floating on the blood of my people.” Jaradat had killed 22 people on October 4, 2004, when she detonated herself inside a packed Haifa restaurant (Myre, 2004).

Some officials hoped these powerful emotions could be channeled in the opposite direction during the volatile period following the September 11th terrorist attacks in 2001. Curators and art experts believed Islamic Art and Middle Eastern cultural heritage could act as a “meditator for cultures in confrontation” (Riding, 2004).

Galleries in Europe and the United States took measures to bring people together by displaying Islamic Art alongside related work from other cultures. The Louvre in Paris and the Met in the New York City, among others, hoped to “place Islamic Art within the context of universal culture” to help illustrate “the influence of Islamic Art on architecture and design in the West” (Riding, 2004). Many believed familiarity would help lessen the tension between cultures during this especially tense time.

Emotions even ran high when Ismail Khan returned to Herat, Afghanistan in 2001 to help build a new Afghan government after

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U.S. forces had ousted the Taliban from power. Khan was cheered as a “favorite son…perhaps because he [had] ensured that the antiquities of his ancient city [were] not exported [during the reign of the Taliban] and because he [had] always encouraged the education of girls and women” (Perlez, 2001).

Military and government officials must remember, to borrow from Erik Nemeth, even “collateral damage of cultural property…erodes the identity of individuals for whom the military presence intends to provide stability” (Nemeth, 2015, p. 66).

Identity Matters in Conflict Malleable as identity can be, cultural heritage still helps shape individuals, communities and nations, and threats to those representations create an intrinsic threat to self. And adversarial organizations understand any perceived mistreatment can negatively impact foreign military operations.

This truth cannot be underestimated.

The destruction of the Golden Mosque in Samarra, Iraq on a February morning in 2006 provides a useful example. Likely a Sunni insurgent operation, according to then President George W. Bush, ushered in a remarkable period of sectarian violence. The destruction of the Shiite shrine in southern Iraq and one of the most revered sites among Shiite Muslims saw protesting mobs swarm the streets calling for “revenge and set[ting] fire to dozens of Sunni Mosques” (Worth, 2006). The violence engulfed major cities of Baghdad and Basra leading Prime Minister Ibrahim al Jaafari to call for a threeday mourning. President Bush even took the time to offer condolences and call for calm. The destruction of a major cultural heritage site made an already violate situation for U.S. forces that much more dangerous.

Anti-American militia used the apparent lack of security by “occupation forces” to exploit the simmering discontent with the U.S.-led war and used the incident to garner support for their efforts against American forces (Worth, 2006). Shiite leader in Iraq at

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the time, Ayatollah Ali-Al-Sistani, made the obvious statement that many feared could be the ultimate undoing of Iraq should it resonate: “if government's security forces cannot provide the necessary protection, the believers will do it” (Worth, 2006).

The attack unleashed unprecedented sectarian violence, and widened the gap of trust between the people and U.S. forces.

Ghassan Atiyyah, an Iraqi political commentator, called subsequent sectarian divide the “Weimar period,” referring to 1920 Germany, inferring that the situation would likely result in the disintegration of the country or the takeover of an authoritarian government (Cockburn, 2006). The Golden Dome did not singlehandedly provoke unparalleled violence.

But it could be considered a turning point in what became a full-blown civil war. Nearly 900 U.S. and coalition personnel lost their lives during the period between the bombing in February 2006 and the so-called surge in 2007 −̶ the fourth highest number of any year during Operation Iraqi Freedom (Iraq Coalition Causality Count, 2016).

A larger and equally problematic public relations battle ensued. After the bombing of the Golden Dome, the Iranian supreme leader, Shiite Ayatollah Ali Khamenei, chose to accuse American intelligence services and Israel for the bombings (Cockburn, 2006). The same Shia leader had already used the legal U.S. destruction of an insurgent-filled mosque in Fallujah in a 2004 to proclaim America’s disregard for Iraq’s cultural heritage. Iranian and Iraqi news outlets criticized U.S. forces for the “incalculable” damage to the Iraq’s cultural heritage (Nemeth, 2015 p. 23).

Russian government took an opportunity to chide the United States, having already done so after the looting of Iraq’s National Museum in 2003. Ten years later, Russian news outlets ran reports quoting Iraq archaeologist and architect Ihsan Fathi, who claimed U.S. forces transferred billions of dollars’ worth of looted cultural artifacts to America “without any paper trail.” The Iraqi government tried to have them returned, he explained, but the “American administration wanted to strike a deal and return only half”

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of the items. Fathi added that Polish troops had damaged Babylonian artifacts while occupying the area south of Baghdad (“US illegally obtained,” 2013.)

Regardless of unreliability of the Russia media outlet and the veracity of the accusations themselves, the looting of the museum remained an easy way for hostile governments to undermine American military credibility in Iraq years after the looting of the museum and the destruction of the mosque.

Looted Antiquities in Conflict Looting by Muslim extremists or Islamic terrorist-affiliated organizations has become more pronounced, or at least better documented in recent years. Najibullah Popal, once the Afghan curator for the National Museum in Kabul explained in a 1993 news article that looting of the prized museum started soon after the Communist government in Kabul surrendered power.

Without the support from Soviet troops who withdrew in 1989, the newly installed regime promptly fell roughly three years later. “The problem [of looting] began,” Popal said, “almost as soon as the Muslim guerilla groups captured the capital in April 1992 (Burns, 1996).” The civil war that ensued engulfed the museum and its contents.

The ransacking of the building proved to be more than random opportunism. Those experts involved in recapturing some of the stolen items explained that the “Islamic guerrillas…acted at the direction of an international network of middle-men, dealers and collectors” (Burns, 1996). The possible workings of shady antiquities networks connected to Afghanistan resurfaced again after the September 11th attacks when a German professor claimed that Mohamed Atta offered to sell Afghan antiquities two years before he would pilot the plane that crashed into Tower Two of the World Trade Center (Rothchild, 2008, p. 60).

The Taliban remained the primary culprit for the smuggling and brokering of looted Afghan antiquities.

According to one observer, the Taliban focused primarily on

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smuggling pre-Islamic antiquities out of country (Cultural Without Context, 2001, p.8).

A separate June 2001 report suggested the Taliban had likely colluded with the Pakistani police to control the flow of antiquities from Afghanistan to traders in Peshawar, a major Pakistani city just over the border. There was also evidence to suggest the group offered “antiquities as collateral to sponsors [of their operations]” (Nemeth, 2015, p. 27). Other accounts appear to substantiate the Taliban’s role. According to leading British dealer of Pakistani and Afghan antiquities George Bristow, after the public display of destroying the Bamiyan Buddhas in Afghanistan, the Taliban promptly transferred pieces of the ancient statutes to middle men positioned in the illicit antiquities network in Peshawar (Cultural Without Context, 2001, p.8). And a 2009 documentary found Taliban-looted masterpieces for sale in Belgium, “fresh with dirt from Afghanistan and Pakistan.”

Those foreign fighters occupying a divided Afghanistan also took opportunities to destroy.

In March 2001, “non-Afghan squad[s] from Al Qaeda,” presumably some of the torchbearers of the Muslim guerilla groups present during the civil war, systematically ransacked the National Museum, destroying priceless antiquities under the banner of religious purification (Bohlen, 2002). Interestingly, the Taliban refused to participate in that particular instance of destruction.

Separately, many of the antiquities stolen during the looting of the Iraqi museums after the U.S.-led invasion in 2003 remain unaccounted for. As of 2008, authorities have only recovered about 6,000 of the 15,000 items stolen (Emberling & Hanson, 2008, p.26). Some of the vases, cylinder seals and statuettes from the museum were later found in the possession of terrorists hiding in a bunker alongside automatic weapons, ammunition, black uniforms, and ski masks.

In fact, Matthew Bogdanos (2005), who led the investigation into the looting of the museum, argues that evidence surfaced, pointing to organized criminal activity. But evidence of an organized network responsible for the transfer of illicit

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antiquities had already been uncovered before the museum incident when Iraqi authorities stopped a smuggler with 3,000 different cultural artifacts months earlier.

The smuggler confessed to making two or three such shipments a week (Johnston, 2005). The repeated exposure of these networks has led experts to fear Al-Qaeda offshoots like ISIS are today selling unaccounted for antiquities to fund their terrorist operations.

Islamic State and Antiquities Currently, as Islamic State operatives make a public display of destroying antiquities, they peddle smaller pieces off camera to prospective buyers.

This profitable enterprise has allegedly netted ISIS anywhere between several thousands of dollars to upwards of $150 million a year since 2012 (Yoon, 2015; Pringle, 2014; Fanusie & Joffe, 2015; Swanson, 2015). The actual amount of proceeds remains a topic of fierce debate.

Nevertheless, plenty of evidence exists that implicates the Islamic State in the sale of illicit antiquities. In May 2015, a U.S. Special Forces operation targeting ISIS leader Abu Sayyaf yielded a cache of “hundreds of archaeological and historical objects and fragments,” among them coins, pottery and manuscripts, some of which was property of the Mosul Museum.

State Department official explained how the raid revealed “systemic” financial operations, which included antiquities. The U.S. Special Forces found receipt, organizational charts, and digital usage for the ISIS’ “antiquities department” and evidence of transactions from a three month period that amounted to $1.3 million (U.S. Department of State, ISIL Leader’s Loot; Brennan, 2015; Lehr & Davis, 2016).

Almost a year later, Kurdish fighters allegedly found “archaeological pieces” and an “old map in French” abandoned in a tunnel by ISIS militants after they fled during the liberation of Shaddadi, Syria. The same fighters also claimed to have found letters from IS fighters to Turkish border guards requesting they allow an antiquity dealer

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into Syria to conduct unspecified business (“ISIS’ Department of Artifacts,” 2016). In a separate report nearly a year later, United Nations Russian envoy Vitaly Churkin claimed extremists smuggled cultural heritage through major Turkish cities like Gazinatep.

Middlemen and Turkish transports companies then helped deliver artifacts to representatives from international crime groups who produce fake documentation on their origin (U.N. Security Council, 2016).

Earlier that year, counterterrorism officers tracked the ISIS organizers of the 2015 attack on Paris to Molenbeek in southern Brussels.

Not only is the municipality known as a hotbed for extremists, it is also the hub for illegally trafficked antiquities. “Both Islamic State fighters and those fleeing them provide channels to bring stolen material directly to Brussels,” Antiquities Coalition Chairman Deborah Lehr and Executive Director Tess Davis explain (2016).

ISIS digital footprint also confirms their activity in the illicit antiquities market. The group’s “Kardashian approach” to publically destroying cultural heritage, as scholar Erin Thompson (2015) describes it, is followed by a similar use of social media for covertly hawking looted items. Illicit antiquities have appeared for sale on eBay, Facebook and Whatsapp. Scholar Amr Al Azm who tracks the sale of looted antiquities by posing as a potential buyer once received notice of an ancient Mesopotamian vase valued at nearly $250,000 (Yoon, 2015).

It should be noted also that while ISIS takes a role in the process of looting antiquities, they by no means are the sole perpetrators.

This fact complicates the issue. Indeed, the sudden ransacking of the Iraq National Museum suggested opportunism played a part. The incident proved that some of those locals who might cherish cultural heritage in peacetime might also resort to looting in times of need or lack of authority. The same can be inferred from evidence gained in Syria.

New data suggests groups or individuals not under Islamic State control are responsible

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for some of the wide-spread looting that continues in the ongoing civil war. Through the analysis of “radically improved” highresolution satellite imagery, scholar Jesse Casana (2015) has determined that the looting of heritage sites in Syria has occurred in areas under government and Kurdish control. The data reveals a startling fact: “it does not appear that looting is more widespread in ISIS-held areas [than others].”

This conclusion does not absolve ISIS or other terrorist organizations from participation in the illicit antiquities market, but it does complicate a matter that many observers blamed primarily on the Islamic State and their associates (McGoogan, 2015).

Financial Impact Terrorist organizations, and Islamic State most recently, remain a major threat to U.S. national security because of their financial prowess.

As already mentioned, that network includes a very lucrative operation in the sale of looted antiquities, one that can touch American and European markets.

Indeed, the estimated proceeds alone earned from antiquities could cover the costs of multiple terrorist operations.

Putting the threat in dollars, experts estimate that an average Al Qaeda operation cost around $30,000 to execute.

For example: (1) The Al Qaeda-led bombings that destroyed the U.S. Embassies in Kenya and Tanzania cost approximately $50,000; (2) The USS Cole attack cost less than $10,000. (3) The March 2004 Madrid train bombings cost an estimated $10,000 (Cassara, 2006, p. 190).

If ISIS has, for example, made $36 million off the antiquities trade since 2012, that profit alone could fund three attacks a day for an entire year. That figure, however, is more suited to the cost of attacks in close proximity to territories controlled by ISIS. An operation in the United States would obviously be more expensive.

The 9-11 Commission Report estimated that the September 11th attacks cost between $400,000 and $500,000. That means a reasonable median estimate of aforementioned earnings ($36 million) would give ISIS the funds necessary to

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execute at least 72 attacks on par with September 11th (Grantham, 2015, p. 2).

From the beginning of the Afghan Civil War, priceless antiquities have found their way into U.S. and European markets. A 1996 New York Times article recounts how items moved across the border into Pakistan where middle men for international dealers awaited.

At the Pearl Continental in Peshawar “antiquities experts from London, Hong Kong and Tokyo entertain[ed] one another with stories of being led into Peshawar’s bazaars,” and then on to “remote frontier villages, to view ancient Buddha heads and jeweled caskets,” some which sell for half a million dollars (Burns, 1996).

Matthew Boganos calls this “…a modern-day version of the old ‘molasses to rum to slaves’ triangle trade.” Once made up of “pious New England ship captains,” the modern-day comparison to the triangle trade is now made up of a “cozy cabal of academics, dealers, and collectors who turn a blind eye to the illicit side of the trade….” (Bogdanos, 2005). A separate report from the Defense of Democracies echoes this point stating that “main buyers are, ironically, history enthusiasts and art aficionados in the United States and Europe – representatives of the Western societies which IS has pledged to destroy” (Fanusie & Joffe, 2015). Despite the history and connection to western markets, the government response remains tepid and focused on criminal elements.

Lack of Attention The endemic lack of appreciation for how cultural heritage impacts policy extends into law enforcement as well.

As former Executive Director of the World Bank and award-winning author Moisés Naím (2005) wrote that “to the extent…governments paid attention to illicit trade at all,” they have treated it as a criminal enterprise (p. 5). That scant attention is reflected in the resources dedicated to the problem. As of 2010, for instance, the Los Angeles Police Department remained the only American police force with a full-time art (and antiquities) crime investigator. And the FBI did not field a dedicated art and antiquities team until 2004, according to former FBI Robert

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Wittman (2010, p. 19). The government answer to ISIS involved an FBI notification in August 2015 warning prospective buyers against the inadvertent purchase of ISIS antiquities circulating on the U.S. market (Federal Bureau of Investigation, 2015). The following month, the U.S. Department of State established the “Reward for Justice” program, which offers $5 million for information that leads to a disruption in the ISIS antiquities trade (Howell, 2015). The involvement of both the criminal and diplomatic wings of the U.S. government illustrates how illicit antiquities straddle the fence between military and criminal enforcement.

The effort on the military side has historically proven to be causal and reactionary. The U.S. Government insists that although it has not ratified the Hague convention, its armed forces follow the spirit of the statute (Nemeth, 2015, p. 14). The Monuments Men model, made popular by the 2014 film of the same name, is used as popular proof of the military’s longstanding cultural heritage strategy.

In it, a group of handpicked antiquities experts helped recover a variety of art and antiquities looted by the Nazis during their advance across Europe in World War II. But pointing to the Monuments Men celebrates reactive policy rather than proactive strategy. The Nazis had seized a large quantity of cultural heritage prior to the founding of the group, suggesting the U.S. government and Department of Defense either did not anticipate their value to the enemy or deemed them inconsequential in the initial strategy. This select team of art experts led to the establishment of the small and underfunded Arts, Monuments and Archives (AMA) unit after the war. But this group has played a limited role in conflict ever since (Antiquities Coalition, 2016, p. 23-24).

Coalition efforts during Operation Enduring Freedom in Afghanistan and Operation Iraqi Freedom included, at times, investigative teams to protect antiquities. In the later stages of both campaigns, Special Agents from military agencies and analysts from relevant civilian law enforcement agencies

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were detailed to Terror Threat Finance Cells to help shut down the movement of money.

However, those efforts proved ad-hoc and reactive. The unpreparedness in defending the Iraq National Museum from looters after the invasion of Iraq in 2003 seemed to confirm that the reactive attention to cultural heritage remained largely unchanged.

The Reasons for a Lackluster Military Response The military’s overall institutional training in cultural heritage plagues strategy ‒‒ although the Defense Department recently begun ramping up active duty education efforts through partnerships with the Smithsonian (Antiquities Coalition, 2016, p.

23-24). The lack of emphasis in cultural heritage during wartime likely stems from two different realities: (1) the decreased importance of plunder in military strategy; (2) criminal nature of illicit antiquities dissuades military from involvement.

First, the Pentagon’s insufficient interest in protecting cultural heritage during war has much to do with the transition in armed conflict from the plundering of cultural heritage to the looting of it. As Erik Nemeth explains, plunder, or the seizure of cultural property by soldiers on the behalf of nations, was a common practice dating back to the times of Alexander the Great. And the 1954 Hague Convention was conceived partly as a negative response to its continued practice in World War II. As the Cold War raged, state-sponsored plundering gave way to peacetime looting, which “developed into a threat of comparable magnitude” (Nemeth, 2015, p.

11). The transition from Cold War to postCold War era coincided with the “burgeoning art market,” which further “tightened” the relationship between cultural heritage and security (Nemeth, 2015, p. 61).

Ultimately, the growth in the antiquities market and political upheaval in the developing world provided opportunities for non-state actors to again use illicit distribution networks to sell looted antiquities.

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Said another way, state-sponsored plundering has lost the strategic military value it once possessed. The creation of modern nations, borders and government has diminished the wealth advantage that acquiring booty once provided. Armies and governments no longer rely on plunder to expand their sphere of influence and finance operations. In short, modern warfare has left forces with less incentive to commandeer or steal a people’s cultural heritage. “World War II marked a turning point in attitudes towards the spoils of war,” Nemeth concludes (2015, p. 61). Less value in plunder presumably translated into less value in protecting it. The vacuum has thus been filled by other non-state organizations.

Secondly and somewhat connected to the first, the looting and illicit sale of antiquities have historically been categorized as a criminal matter, thereby, discouraging its inclusion in military doctrine. But terrorists’ involvement in the illicit antiquities market and the twenty-first century War on Terror have combined to blur the lines between criminal jurisdiction and defense prerogatives. Although the U.S. government has by and large transitioned general terrorism from a criminal to a military matter, American officials have yet to fully define what behavior constitutes a law enforcement action and that which demands military intervention.

Indeed, location of the behavior, rather than the act itself, often times remains the sole determining factor.

It can be argued then that a decrease in state-sponsored plundering during major conflicts since World War II alongside the simultaneous rise in criminal looting has together convinced defense officials that the looting and illegal sale of cultural heritage should not play a major role in military strategy.

In other words, war planners conceivably discount it as a scheme of transnational criminals that warrants little or no military involvement.

Rumsfeld’s comments after the looting in Baghdad seem to confirm that mindset.

The outdated model of past international treaties might further discourage increased attention. As Nemeth (2015) points out, the

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risks from global terrorism and insurgencies potentially “antiquate the design” of past conventions (p. 22).

In any case, the transition from plundering to looting has merely redefined the role of cultural heritage in conflict. It has not diminished its influence. Indeed, the impact of looted cultural heritage on military operations, both from the reactions of a local population and the financial assistance for U.S. adversaries, is quite astounding when one reviews recent history.

Nevertheless, American law enforcement and military communities have more recently grown to appreciate cultural heritage and its impact on policy. But has interest grows and military planners find themselves facing enemies co-opting cultural heritage to further their agenda, new questions arise – primarily how looted antiquities can be treated as a military matter rather than purely criminal operation.

The Solutions First and foremost, the Department of Defense needs to prioritize the protection of cultural heritage to guard against sectarian violence and to develop trust with a local community. The proactive protection of cultural heritage also helps counteract the illicit antiquities trade that partly funds terrorist organizations. A comprehensive plan for cultural heritage cannot be overlooked.

The process must involve predictive analysis, wherein experts in the field identify precise areas of concern −̶ a similar process occurred before the Iraq War but advice went unheeded.

Military strategy must deploy proactive protection of those sites it deems high-risk for looting or destruction. In particular, movable cultural heritage should take precedence over the protection of large sites or historical markers, although those areas should not be discounted altogether.

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During conflict, the military must have operational capabilities to respond to actionable intelligence that indicates a given site is or may become under threat from looters. A response could include ground forces, airstrikes or varied types of military intervention. A doctrinal standard for future conflict must also include military experts dedicated to the protection of antiquities detailed to Terror Threat Finance Cells to help shut down the movement of money and help promote the protection of cultural heritage.

A long-term strategy should also involve the training and education of military personnel on the importance of cultural heritage and the impact of looting. Defense policy should also include clear military objectives for the interdiction of illicit antiquities networks within predetermined areas of military responsibility. The source must become a viable target of military operations.

Conclusion “Despite the implications of the relationship between terrorist groups and antiquities,” Nemeth (2015) argues, “the demand for antiquities persists and consequently increases the market value of cultural artifacts from emerging nations” (p. 29).

Since the participation in the illicit antiquities markets has been a hallmark of militant governments and terrorist organizations for years, the U.S. government could direct more military resources to this area.

Islamic terrorist organizations and their expansionist aims demand new defense strategies that prioritize the protection of cultural heritage and destruction of their financial networks. These groups remain a threat specifically because of their financial prowess and their occasional links to U.S. markets. Since money earned from the sale of antiquities directly finances the very organizations pitted against U.S. armed forces, all relevant military assets and legal procedures should be used as tools for interaction and preservation.

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REFERENCES

REFERENCES A Powder Keg Left Unguarded. Jerusalem Post. February 8, 2007.

Aharoni, Z. and Dietl, W. Operation Eichmann: The Truth about the Pursuit, Capture, and Trial, New York: Wiley Press, 1997.

Antiquities Coalition. #CultureUnderThreat Task Force Report. 38, April 2016.

Arendt, H. Eichmann in Jerusalem: A Report on the Banality of Evil. New York: Penguin Classics, 2006.

Argentines See Dead Sea Scrolls: Israelis Exhibit Fragment of Document and Many Other Biblical Items. New York Times. September 25, 1960.

Black, I. and Morris, B. Israel’s Secret Wars: A History of Israel’s Intelligence Services, New York: Grove Press, 1991.

Bogdanos, M. See No Evil: Museums, Art Collectors, and the Black Markets They Adore in Antiquities Under Siege: Cultural Hertiage Protection After the Iraq War, ed. Lawrence Rothfield, New York: Altamira Press, 2008.

Bogdanos, M. Terrorist in the Art Gallery. New York Times. Web, December 10, 2005.

Bohlen, C. Archaeologists and Curators Work To Patch Up a Ravaged Nation’s Heritage. New York Times. April 15, 2002.

Brennan, M. ISIS Cashing in on selling plundered antiquities to fund terror. CBS News. Web, September 29, 2015.

Burns, J.. Kabul’s Museum: The Past Ruined by the Present. New York Times. November 30, 1996.

Cassara, J. Hide & Seek: Intelligence, Law Enforcement, and the Stalled War on Terrorist Finance, Washington, D.C., Potomac Books, 2006.

Casana. J. Satellite Imagery-Based Analysis of Archaeological Looting in Syria. Near Eastern Archaeology. Vol. 78. No. 3, September 2015.

Cockburn, P. Destruction of holiest Shia Shrine brings Iraq to the brink of Civil War. Independent. Web, February 22, 2006.

Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention 1954. May 1954.

Cultural Without Context. The Newsletter of the Illicit Antiquities Research Centre. MacDonald Institute for Archaeological Research. Issue 8. 2001.

Douglas Jehl and Elizabeth Becker, Experts’ Pleas to Pentagon Didn’t Save Museum, New York Times, April 16, 2003.

Emberling, G. and Hanson, K. eds., Catastrophe! The Looting and Destruction of Iraq’s Past, Oriental Institute of the University of Chicago, Oriental Institute Museum Publications, No. 28, 2008, page 26.

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Fanusie, Y. and Joffe, A. Monumental Fight: Countering the Islamic State’s Antiquities Trafficking. Foundation for the Defense of Democracies. November 15, 2015.

Federal Bureau of Investigation. ISIL Antiquities Trafficking. Web, August 2015.

Finkelstein, I, Mazar, A. and Schmidt, B. eds. The Quest for the Historical Israel: Debating Archaeology and the History of Early Israel, Atlanta: Society of Biblical Literature, 2007.

Freeman, C., Saddam Hussein’s Palaces. Telegraph. Web, July 16, 2009.

Global Terrorism Index 2015. Institute for Economics and Peace. Web, 2105.

Grantham, David. Shutting Down ISIS’ Antiquities Trade. National Center for Policy Analysis. 2.

Web, 2015.

Harel, I. The House on Garibaldi Street, New York: Bantam Books, 1975.

Howell, K. U.S. Offers $5 Million Reward to Stop Islamic State from Stealing Antiquities.

Washington Times. Web, September 30, 2015.

Iraq Coalition Causality Count. Web, 2016.

Johnston, D. Picking Up the Stolen Pieces of Iraq’s Cultural Heritage. New York Times. Web, February 14, 2005.

Kila, J. and Zeidler, J. eds. Cultural Heritage in the Crosshairs: Protecting Cultural Property During Conflict, Boston: Brill, 2013.

Lehr, Deborah. and Davis, Tess. Looted Art Helps Fund Jihadists in Europe. New York Times, August 25, 2016.

Malcolm Reid, D. Contesting Antiquity in Egypt: Archaeologies, Museums & the Struggle for Identities from World War I to Nasser, New York: American University in Cairo Press, 2015.

MacFarquhar, N. Hussein’s Babylon: A Beloved Atrocity. New York Times. August 2003.

McGoogan, C. Islamic State isn’t the only group raiding Syria’s ancient ruins. Wired.co.uk. Web, October 21, 2015.

Moseley, R. Heroism in Beirut: Secret battle to save relics of Lebanon. Chicago Tribune. July 17, 1983.

Myre, G. Israel Diplomat Defends Attack on Bomber Art in Stockholm. New York Times, January 18, 2004.

Naím, M. Illicit: How Smugglers, Traffickers, and Copycats Are Hijacking The Global Economy, New York: Anchor Books, 2005.

Nemeth, E. Cultural Security: Evaluating the Power of Culture in International Affairs, London: Imperial College Press, 2015.

Perlez, J. The Warlords: The Corrupt and Brutal Reclaim Afghan Thrones, Evoking Chaos of Somalia. New York Times. November 19, 2001.

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REFERENCES

Price, R. Unholy War: America, Israel ad Radical Islam, Eugene: Harvest House Publishers, 2001.

Pringle, H. ISIS Cashing in On Looted Antiquities To Fuel Iraqi Insurgency. National Geographic, Web June 27, 2014.

Prott, Lyndel and O’Keefe, P. Cultural Heritage or ‘Cultural Property. International Journal of Cultural Property. Vo. 1. Issue 02. July 1992.

Rein, R. Argentina, Israel, and the Jews, College Park: University of Maryland, 2002.

Rich, Frank. Stuff Happens Again in Baghdad. New York Times. Web, September 24, 2006.

Riding, A. Islamic Art as a Mediator for Cultures in Confrontation. New York Times. April 6. 2004.

Stone, Peter and Farchakh Bajjaly, Joane eds. The Destruction of Cultural Heritage in Iraq.

Rochester: Boydell & Brewer, 2008.

Swanson, A. How the Islamic State Makes Its Money. Washington Post. Web, November 18, 2015.

Thompson, E. How Twitter Could Bring ISIS to Trial. The Crime Report. Web, September 8, 2015.

Turkey’s Gazianstep is main ISIS trade hub of antiquities hauled in Syria & Iraq – Russian UN envoy. RT. Web, 2016.

U.N. Security Council (2016). Smuggling of Antiquities by the international terrorist organizations Islamic State in Iraq and the Levant. Web, 2016.

U.S. Department of State, “Foreign Terrorist Organizations.” Web, 2016.

U.S. Department of State. ISIL Leader’s Loot. Bureau of Educational and Cultural Affairs, Web 2016.

US Forces Bomb Mosque in Iraq Offensive against Sunni, Shiite “thugs.” Free Republic; Nemeth, Cultural Security, 23. April 7, 2004.

Wittman, R. Priceless: How I Went Undercover to Rescue the World’s Stolen Treasures, New York: Crown Publishers, 2010.

Worth, R. Blast Destroys Shrine in Iraq, Setting Off Sectarian Fury. New York Times. Web, February 22, 2006.

Yoon, S. Islamic State Is Selling Looted Art Online For Needed Cash. Bloomberg Business. Web, June 28, 2015

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ANTIQUITIES AND CONFLICT: CHANGING MILITARY STRATEGY

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David A. Grantham, Ph.D., is a leading expert in national security matters and international affairs with specializations in Latin America and the Middle East. Dr. Grantham’s expertise engages the nation’s most pressing issues, like terrorism, international security and military affairs. Dr. Grantham’s research offers timely solutions on problems ranging from defense spending and personnel management to terrorist finance and regional security strategies. His work has been featured in a variety of academic journals and media outlets, and he speaks on these issues to audiences nationwide.

Prior to his work at NCPA, Dr. Grantham served as an officer in the United States Air Force and as a Special Agent with the Air Force Office of Special Investigations (AFOSI). While on active duty, Dr. Grantham conducted and managed counterintelligence and counterterrorism investigations and operations, both stateside and abroad. Dr. Grantham led efforts in areas of anti-terrorism, cyber defense and foreign espionage, and deployed twice to Afghanistan and Iraq in support of AFOSI operations.

Dr. Grantham holds a PhD in Modern History from Texas Christian University and a Master of Science in International Relations from Troy University. He earned his Bachelor of Art in History from University of South Florida in 2004.

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Closing the Gap on International Terrorism Investigations

BY GABRIEL LAJEUNESSE

Fifteen years after 9/11, the lack of a coherent strategy to defeat radical Islam continues to place U.S. security interests at risk.

A revamped strategy, including a diplomatic push for a new international treaty regime on terrorism investigations, could help secure more enduring results. Specifically, a new Mutual Legal Assistance Treaty to drive intelligence sharing and international cooperation is needed.

Tactical Shortfalls and Operational Successes Recent attacks, inspired by the Islamic State (ISIS), raise doubts about the ability of our security apparatus to keep us safe. As demonstrated in the attacks in San Bernardino and Orlanda “lone wolves”, self-

radicalized individuals, and the mentally unstable will continue to be a challenge to domestic security.

These threats to homeland security will require continued emphasis of the “see something, say something” campaign, reevaluation of gun control and terror watch list policies, and the levying of criminal sanctions against family and friends that fail to report suspected plots. Unfortunately, it is unlikely that such acts can be completely eliminated given the nature of a free society.

These high profile incidents cloud the significant operational successes made in dismantling global jihadist networks. In the years since 9/11, the US counterterrorism

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community has become increasingly adept at identifying, exploiting and neutralizing terror cells. Numerous attacks within the U.S. have been disrupted (FBI). Some of these may have been less than credible threats (Szoldra). Yet significant and serious transnational terror plots have been disrupted: the dirty bomb plot by al-Qa’ida affiliate, Jose Padilla, the would be bomber of the Portland, Oregon tree lighting ceremony, Mohamed Osman Mohamud, or the plan for airplane based attacks on the West Coast (McLaughlin, 2014). So there has been progress in dismantling terror networks threatening the homeland.

We have had operational success on the international front as well. Efforts by law enforcement agents and intelligence officers abroad have pressured terrorist groups, devastating al-Qa’ida and its affiliates.

The fusion of all source intelligence—law enforcement, human intelligence, counterintelligence, signals intelligence, imagery intelligence and surveillance—has enabled time-sensitive targeting of hostile forces, a true revolution in military/security affairs. The thousands of detainees captured since 9/11 from various terror groups attests to U.S. ability to find, fix, track, and target key terror leaders and their associated networks (See Nordlan; Shanker; and Human Rights First for broader discussion of detainees numbers).

During my tenure as the Theater Counterintelligence (CI) Coordinating Authority for the Coalition from 2012-2013, over 247 terrorist and insurgents were neutralized though coalition CI efforts in Afghanistan. Particularly effective were Special Agents from the Air Force Office of Special Investigations and their Marine counterparts. The skill sets to disrupt these networks at tactical and operational levels exist within the Law Enforcement (LE) and Intelligence Communities (IC).

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Good Tactics Versus Bad Strategy Unfortunately, even the best tactical execution of well-planned operations will never overcome bad strategy. Now, in 2016, we see a resurgent al-Qa’ida and Taliban in Pakistan and Afghanistan, and a fractured Iraq and Syria overcome by the Islamic State, al-Qa’ida affiliates or Iranian sponsored extremists. We have a failed state in Libya and ISIS affiliated groups in the Sinai Peninsula. Add to that the support to violent factions by allies such as Turkey and Saudi Arabia and we have a cauldron of extremism that will fuel terrorism well into the future.

When President Obama first came to office, he and his team rejected the idea of the Global War on Terrorism (GWOT) and purged guiding national security documents of references to GWOT and The Long War. I served on the Joint Staff during the transition years, representing the military in various National Security Council Interagency Policy Committees, where the shifting focus was apparent at every level.

The view of many on the Obama team was that U.S. policy during the George W. Bush administration appeared to be at war with Islam, and such policies fostered terrorism.

What followed was a series of failures, from appeasement of Islamist (i.e. Obama Speech At Cairo University; support to Morsi’s Muslim Brotherhood, Case; placating Turkey’s Erdogan, Cooper), a disastrous withdrawal from Iraq, an inept Afghanistan policy, and repeating the same post-conflict mistakes in Libya the Bush administration made in Iraq.

Eight years later, the answer to failed policy is apparently to throw up our hands, say the Middle East is irrelevant and just too difficult to figure out, and move on to something with real life or death stakes, like reestablishing relations with Cuba (Goldberg).

While the Obama administration has continued, and even increased in some cases, counterterrorism efforts, it is more of good tactics and bad strategy. The very best police, intelligence, and special operations

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work will never be sufficient to secure our interests. It is impossible to arrest, capture or kill our way out of the threat posed by Islamic extremists—our failed strategies, lack of leadership, withdrawals, concessions, and appeasements, provide space for terror movements to grow. The idea that terrorism is not an existential threat, or a threat to our vital interests, ignores the desires some of these groups have exhibited for weapons of mass destruction, and their ability to destabilize partners far beyond the boundaries of the Middle East. For example, terrorism fears and western security failures played a large part in the June 2016 UK referendum to leave the European Union— one cannot reasonably argue that a strong European Union is not a vital interest of the United States.

What is necessary is a recognition that as much as we might wish to pivot to Asia and potential threats from China, terrorism is the struggle of our day. The U.S. response must be a global war on terrorism. This GWOT is a Long War, because time is needed to defeat a threat that is fueled by a religious ideology that is as cancerous and requires as much effort to combat as communism did during the Cold War. This would require whole of government effort, beyond the simple whack-a-mole counterterrorism effort we are currently engaged in. The strategy, as I have argued elsewhere (Lajeunesse) must be one of containment. Thanks to Russia, Syria, Iran and the Kurds, we may see a containment of ISIS in the near future—but like squeezing a balloon, jihadists will shift and move. In some cases, they will return to Europe, Africa, Asia, and possibly even the U.S., and prepare lethal attacks in their homelands.

Part of the whole of government effort that needs to be returned to is on the diplomatic front, particularly those efforts related to strengthening international regimes against terrorism.

Challenges of Terrorism Investigations International and transnational crime is inherently difficult to address.

Like all

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transnational criminal groups, terrorist networks exploit the seams provided by national borders and the challenges presented by poor state-to-state communications, cultural differences, historical animosities, immigration policies, and freedoms, to hide in plain sight.

These challenges are exacerbated by the nature of intelligence information. It has been difficult for some countries to share intelligence at home between their own intelligence and law enforcement agencies (see 9/11 commission report for our own domestic challenges)—never mind trying to share with a foreign government. Further, the ability to use intelligence information in court proceedings can vary drastically, and still presents problems here at home (American Bar Association).

Tension between intelligence and law enforcement is natural.

Intelligence operations are designed to garner information. They do so through the use of human or technical sources. Oftentimes the information collected—should it become public knowledge—could allow for easy identification of the source. Compromise of sources will often lead to loss of information, as the adversary moves to decisively cut off additional intelligence collections from that source.

The intelligence community is therefore inherently concerned with the protection of sources and methods.

On the enforcement side, however, due process standards require that accused individuals have the right to see the evidence against them, so they may rebut that evidence. While in an investigatory stage, similar concerns about the protection and sources may exist, but once charges are filed and prosecution begins, the criminal process mandates disclosure.

While the counterterrorism community has come to grips with these challenges within a national scope—i.e. the U.S. intelligence community recognizes a potential compromise of sources when a Seal Team

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takes down a terror cell somewhere—the situation is much more complicated when dealing with international counterparts. The U.S. has intelligence sharing arrangement around to world, and in 2016, we would hope that basic information about terror plots would be shared with any country under threat and that they would likewise share that information with us. However, the value of the information provided may be impacted by the quality of our relationship, concerns about the information being passed to a third, hostile nation, and potential compromise of sources as a result.

The ability to use such information in a criminal proceeding will vary nation by nation.

From a pure evidentiary view, Intelligence information, especially if watered down and redacted, could be questioned on many fronts—for example, was it obtained under coercion, is it hearsay, is it deception, to name a few. The source will likely not be available for cross-examination or ready validation.

What is clear, looking at the Paris and Brussels ISIS attacks in particular (source), is that the status quo is unacceptable. It allows terrorists to exploit our vulnerabilities as nation states, and could one day have catastrophic, even existential, implications.

To close these gaps, the level of effort imagined under our previous GWOT strategy will be necessary. A good place to reset that effort would be a diplomatic effort to close some of the gaps between international intelligence and law enforcement by treaty.

A Mutual Legal Assistance Treaty on Terrorism Similar issues related to transnational crime have been dealt with via Mutual Legal Assistance Treaties (MLATs). An MLAT is an agreement under which ratifying parties are required to take a number of steps, which often include items such as the criminalization of certain acts, mechanisms for search, seizure and transfer of evidence between parties, and extradite or prosecute provisions. MLATs exists and are widely

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adopted in the international community for issues such as organized crime, money laundering (UN Convention Against Transnational Organized Crime) and narcotics trafficking (UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances).

While the detailed construction of a terrorism-focused MLAT is beyond the scope of this brief article—some if the issues it should deal with include: I. A list of terrorist groups Any regime against terrorism must include a clear process for listing of terror groups and members.

The old adage, one man’s terrorist is another’s freedom fighter, may mostly be a Cold War holdover, yet in some areas, it is still a point of contention. For example, one of the most effective partners in the fight again the ISIS, the Kurdish People’s Protection Units (YPG), have been accused by NATO ally Turkey of terrorism, due to alleged contacts with the Kurdistan Worker’s Party (PKK). The PKK is a Kurdish separatist group responsible for terrorist attacks and fighting in Turkey that have left over 40,000 people dead. While the classification of YPG is debatable, this is an example of the type of tension that will arise in any treaty debate. A MLAT on terrorism must contain a clear definition of terrorism, likely one that would focus on groups targeting civilian non-combatants, and define a process for the listing and delisting of terrorist groups by the treaty parties. This could present one of the most contentious items in treaty ratification. Using Turkey as an example again—one of the nations key to our fight against terrorism— the U.S. would want to list groups they have supported in the past (i.e. al-Qa’ida affiliated al-Nursa Front), but would not want YPG to be listed.

This issue would require diplomatic heavy lifting that we have not seen since immediately following 9/11.

II. Extradite or Prosecute Terrorism as a crime needs be raised to the level of a jus cogens norm, one that cannot be set aside. The original international

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crime—piracy—required any nation laying hands on a pirate, whether they had committed an offense against that nation or not, to administer justice.

Modern jus cogens norms include genocide and war crimes. Terrorism—defined narrowly here as violent actions against civilian noncombatants to obtain a political end or make a political statement—should be likewise acknowledged by all nations as an international crime. A MLAT on terrorism should include an extradite or prosecute provision, requiring all parties to either extradite the suspect to a requesting nation to face terrorism charges, or for the nation where the suspect resides to carry forth the prosecution themselves.

III. Criminalization A MLAT on terrorism should require parties to criminalize terrorism, and to include extraterritorial jurisdiction over nationals engaged in terrorism abroad. The MLAT should include provisions for criminalization of conspiracies to commit terrorism as well.

Since nations with civil law traditions do not generally recognize conspiracies as a crime, criminalization of terror group membership should be included, as was the case in the U.N Convention Against Transnational Organized Crime (Article 5).

IV. Duty to Warn and Intelligence Sharing A MLAT on terrorism should require a duty to warn, binding parties to a duty to report threat information—to include information of terror plots time, place/target, methods, persons involved in the plots and an evaluation of the intelligence. It should include a standard rating scale for accessing intelligence information so receiving parties can appreciate the difference between one time, unvented source information, like an anonymous phone threat, versus well vetted, multi-source information.

The MLAT should require that nations provide legal mechanisms for classified information, whether nationally derived, or shared by other treaty parties, to be entered into a court proceeding, with proper steps

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taken to protect the classified information.

Such precautions should include allowing closed hearings, requiring security clearances for those involved in the court process, and the proper handling and archiving of classified evidence.

V. Legal assistance The MLAT should require parties assist one another in the investigative process— conducting surveillance, collecting evidence, conducting interviews, interrogations, etc. It should require parties to establish a central office to receive requests and coordinate support within each member state. It should also require national laws be introduced or modified, if needed, that evidence gathered by a partner nation be admitted into evidence in the requesting nation’s courts.

Why it matters Pressing for a MLAT on terrorism is only one component of a whole of government approach to the threats we face. Clearly, a long war strategy requires lines of operation across the entire DIMEFIL spectrum (diplomatic, informational, military, economic, financial, intelligence and law enforcement instruments of power). Yet, the impact of such an effort should not be underestimated. It will allow the U.S. to take active world leadership again, focus allies, press uncooperative nations, and generate a level of discussion and dialog that is essential to our exterminating the scourge of radical Islam. This is a global threat requiring a global response. It requires leadership, resolve, an unwavering surety of purpose and resiliency that has been lacking in recent years. Tactical successes alone will not keep us safe in the long-term. We need a revamped, long-term strategy, which should include treaty bound obligations for law enforcement and intelligence cooperation against terrorism. We must act now.

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REFERENCES American Bar Association. Trying Terrorists in Article III Courts Challenges and Lessons Learned.

Web, 2009.

Case, Spencer. How Obama Sided with the Muslim Brotherhood, National Review. Web, 3 July 2014.

Cooper, Helene. America Seeks Bonds to Islam, Obama Insists, New York Times. Web, 6 April 2009.

Federal Bureau of Investigation. Ten Years After 9/11 Report. Web, 2011.

Goldberg, Jeffry. The Obama Doctrine The U.S. president talks through his hardest decisions about America’s role in the world, The Atlantic. Web, April 2016.

Human Rights First. Guantanamo, By the Numbers. Web, 23 June 2016.

Lajeunesse, The Costs of War—Toning Down the Rhetoric on Syria, Huffington Post. Web 10 May 2013.

McLaughlin, John. Senate interrogation report distorts the CIA’s success at foiling terrorist plots, Washington Post. Web, 9 Dec 2014.

Nordland, Rod. Three Thousand Detained in 2012 Transfer, New York Times. Web, 10 Sep 2012.

Shanker, Thom. With Troop Rise, Iraqi Detainees Soar in Number, New York Times. Web, 25 Aug 2007.

Szoldra, Paul. The FBI Hatched Some Crazy Terror Plots, Business Insider. Web. 11 Mar 2013 United Nations Convention Against Transnational Organized Crime. Web, 2004.

United Nations Convention Against Illicit Traffic In Narcotic Drugs And Psychotropic Substances. Web, 1988.

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BIOGRAPHY

Gabriel Lajeunesse, J.D., is an International Law Fellow at the Norwich University Applied Research Institute. He is a licensed attorney and an investment advisor in private practice. A retired Special Agent for the Air Force Office of Special Investigations (AFOSI), Mr. Lajeunesse managed complex investigations of domestic and transnational crimes affecting US national security interests, to include international terrorism and illegal technology transfer. He served at the Theater Counterintelligence Coordinator for US Forces Afghanistan and the International Security Assistance Force from 2012-2013, overseeing counterintelligence efforts of over six hundred personal from twenty-nine coalition nations throughout Afghanistan.

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THE IMPLICATIONS OF THE EVOLUTION OF TRANSNATIONAL CRIME IN MEXICO

BY SILVIA LONGMIRE

Observers of the drug war south of the U.S.Mexico border are accustomed to hearing news of shootouts, assassinations, arrests, and even routine dismemberments. The landscape in which Mexican transnational criminal organizations (TCOs) work has always been changing since drug trafficking hit its peak in the 1970s and 1980s. However, in the past decade, changes in TCO organizational structures have been accelerating, causing what few prospects for occasional peace that existed to vanish. The Mafia-style family drug business—and

associated rules of engagement—has all but vanished, only to be replaced with a free-forall that can only mean chaos for the Mexican government and more fear and bloodshed for the Mexican people.

The drug business wasn’t always this messy south of the border. The emergence of true capos, or drug lords, began in the 1970s.

Pedro Áviles Pérez is known as the “pioneer of drug trafficking” in Mexico, and ran the first large organization that could be considered a TCO (more commonly known as a cartel, despite the misnomer) by today’s

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standards. Several famous traffickers cut their teeth under his tutelage, including the most wanted man in Mexico, Sinaloa Federation leader Joaquin “El Chapo” Guzmán. Áviles was killed in a shootout with federal police in 1978, and the organization needed new leadership. Shortly before his death, Áviles’ trusted lieutenants starting moving out of Culiacán and into Guadalajara and other Mexican cities as a result of Operation Condor. This was a military counterdrug mission that resulted in several deadly confrontations between traffickers and soldiers, as well as the drug lords’ relocation. Soon afterwards, Miguel Ángel Félix Gallardo emerged as the leader of these lieutenants and became known as “The Godfather” of Mexican drug trafficking.

Over the next decade, Félix Gallardo and his people established strong ties with corrupt Mexican politicians and officials that allowed the organization to flourish. But more importantly, they set up arrangements to transport cocaine for Colombian drug cartels through Mexico into the United States. The Guadalajara cartel, as it was known, started out as the hired help.

However, as their levels expertise improved, they began to demand payment not only in cash, but in product. This expansion into the cocaine trade raised Félix Gallardo’s organization to a whole new level of profit making.

It didn’t last forever. Félix Gallardo learned that a DEA agent named Enrique “Kiki” Camarena had infiltrated his organization and made the call to have him kidnapped, tortured, and executed. The manhunt for Camarena’s killer was on, and by 1987, Félix Gallardo knew his days as a free man were limited. He finally moved out of Culiacán and into Guadalajara, rounded up his trusted brigade at an Acapulco resort and divided up his empire into several pieces.

This would make it harder for the Mexican government to bring down the entire organization at once. The Tijuana plaza, or drug smuggling corridor, was assigned to

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the Arellano Félix brothers; the Ciudad Juárez corridor would be run by the Carrillo Fuentes family; the Sonora plaza was granted to Miguel Caro Quintero; the northeast Tamaulipas corridor was left unchallenged under the leadership of Juan García Ábrego; and Pacific coastal operations in Sinaloa would be controlled by Guzmán and Ismael “El Mayo” Zambada Garcia. It was a smart move, as Félix Gallardo was arrested in 1989 and is currently serving a forty-year sentence in Mexico’s Altiplano maximum security prison.

These are the “old school” cartels—friends and family-run under the traditional organized crime model. All of them still exist today, more familiar as the Tijuana cartel (Arellano Félix Organization, or AFO), the Juárez cartel (Vicente Carrillo Fuentes Organization, or VCFO), the Sinaloa Federation, and the Gulf cartel (Cartel del Golfo, or CDG). Because of this history and tradition, these cartels have more or less followed the unwritten rules of the Mafia— that is, business is business, keep things under the radar, and stay away from spouses, children, and innocents.

Then something changed. Osiel Cárdenas Guillén was firmly in charge of the CDG in the late 1990s after taking the TCO’s reins by murdering his predecessor, Salvador Gómez, and in the process earning himself the nickname “El Mata Amigos”—the friend killer.

He was known to be secretive and paranoid, to the point of creating his own private army of mercenaries known as Los Zetas to protect his turf and operations from a myriad of rivals.

In 1997, Cárdenas commanded one of his most trusted subordinates, Arturo “Z-1” Guzmán Decena, to recruit a paramilitary squad for him. Guzmán was a former special forces soldier, so he knew where to look.

Within a couple of years, he had recruited thirty-one men, most with military backgrounds and several with special forces-type training, into Cárdenas’ private army. Their mission for several years was

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mainly to protect Cárdenas and his operations through enforcement tactics— meaning the use of threats, assaults, kidnappings, torture, and executions against anyone who crossed the CDG or failed to live up to Cárdenas’ expectations.

This worked well enough for a few years, until Cárdenas was arrested in 2003 after a shootout with the Mexican military. While he more or less ran the CDG from a Mexican prison, Los Zetas started to operate under the premise of when the cat is away, the mice will play. In 2004, the city of Nuevo Laredo became ground zero for the battle over territory between the Federation and the Gulf cartel. Los Zetas were dispatched to take care of CDG business, and in the process, introduced beheadings, dismemberments, and the narco style of urban guerrilla warfare to the drug war. Most media reports and many journals and books point to the December 2006 inauguration of former President Felipe Cálderon as the beginning of today’s drug war in Mexico.

However, as neat and tidy as that date is, the real start of the brutality we see today along the border and beyond occurred two years earlier in Nuevo Laredo.

Since the creation of Los Zetas, there have been a string of similar mercenary groups detailed to the various larger TCOs as their enforcement arms. For example, Los Linces were a group of mostly corrupt police officers from the state of Chihuahua who worked for the Juárez cartel, and Los Negros worked for Edgar “La Barbie” Valdez, who ran enforcement operations for the Beltrán Leyva Organization prior to his arrest in 2012.

Despite the brutality of any mercenary group, few can compare to the routine violence demonstrated by the fastest growing threat to security in Mexico. The Cartel de Jalisco Nueva Generación (CJNG) is easily one of the more dangerous TCOs currently operating in Mexico. The drug trafficking group got its start as the armed wing of the notorious Sinaloa Federation, originating in roughly 2010 and operating

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almost exclusively in the Guadalajara area.

According to InsightCrime.org, the CJNG arose after the 2010 death of Ignacio “Nacho” Coronel, the Federation’s representative in Jalisco, which unleashed a fight for succession. The CJNG won in large part because of its solid ties with the Milenio Cartel, also known as the Cartel of the Valencia brothers, an old criminal structure that dominated Michoacán until the year 2000 (Caballero, 2014). However, it didn’t take long for their presence to expand to the areas of Veracruz, Guerrero, Morelos, Colima, Guanajuato, and Michoacán as part of the Federation’s seemingly never-ending war with rival Los Zetas.

In April 2012, security firm Stratfor assessed that the relationship between the Federation and the CJNG was very solid (Solis, 2012). However, it’s growth and regional dominance have allowed the CJNG to step away from the umbrella of the Federation and make a name for itself separate and apart. The group has fully injected itself into conflict with the Knights Templar TCO in Michoacán and Guerrero states, all while taking advantage of the logistical benefits of being based out of the megacity of Guadalajara. This gives the group access to maritime ports where methamphetamine precursor chemicals are brought in from Asia, as well as access to prime smuggling routes to the US border.

The CJNG became known as a criminal organization with no scruples after they committed possibly one of the worst atrocities in drug war history. In late January 2013, five members of the TCO kidnapped ten year-old Irma Isaisa Jasmine Arroyo, a sweet little girl with long brown hair and big brown eyes, near Tecoman, Mexico. After they raped her, they executed her, partially incinerated her body, and dumped her in a lemon orchard. Worse yet, Irma wasn’t even the right target. The CJNG thought they were kidnapping the daughter of a rival cartel member, and instead they grabbed

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an innocent little girl whose family had nothing to do with the drug trade.

Some analysts have likened the CJNG’s tactics to that of a paramilitary organization, with the capacity to both engage Mexico’s armed forces directly and also infiltrate security forces and community organizations with the shared goal of weakening the Knights Templar (Solis). In June 2015, Mexican authorities reported that the CJNG is considered the most dangerous criminal group, has a presence in at least eight states and Mexico City. According to reports of the Deputy Attorney Specialized Investigation of Organized Crime, the cartel no longer operates only in the state of Jalisco, where he began, but spread to the states of Colima, Michoacan, Guanajuato, Nayarit, Guerrero, Morelos, Veracruz and the Federal District. They are responsible for a spring 2015 ambush that resulted in the death of 15 state troopers who were attacked on the orders of CJNG leader Nemesio Oseguera Cervantes Mencho as retaliation for the arrest of 15 people involved in an assassination attempt March 30, 2015, in the municipality of Zapopan, according to local prosecutors. This is the deadliest attack on security forces in recent drug war history. In April 2015, the US Treasury Department designated the CJNG as one of the most powerful drug trafficking groups in Mexico (Univision, 2015).

In February 2016, the San Diego UnionTribune reported that the CJNG was teaming up with what was left of the AFO to fight the Federation for control of the Tijuana corridor. Bodies have been appearing around Tijuana with narcomessages purportedly signed by the CJNG, and the border city’s homicide rate has doubled since this time last year (Dibble, 2016). Given that Tijuana has barely recovered from its blood-soaked image from 2008-2010, the potential for a new epicenter of cartel fighting has officials in both Baja California Norte and San Diego County concerned.

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The biggest concern about this latest evolution of TCOs is their willingness to target innocent people who have nothing to do with the drug trade. Sometimes, these groups work hard to mask the innocence of their victims so as to maintain some semblance of a decent reputation with the public. The general assumption in Mexico that has been propagated by law enforcement and the government is that the vast majority of victims of extreme violence are involved in the drug trade. TCOs have been able to manipulate this mentality to their advantage. If a TCO leaves a note or sign with a pile of dead bodies, people are more likely than not to believe whatever the message says. They’re also more likely than not to believe that the pile of bodies consists of a bunch of dead traffickers. But a bit of digging—a deadly prospect in Mexico— reveals that all is not necessarily what it seems when it comes to mass casualties.

In September 2011, the Gente Nueva, another secretive armed wing of the Sinaloa Federation, parked two trucks containing thirty-five dead bodies a highway overpass in Boca del Rio, a town on the outskirts of the coastal Mexican city of Veracruz. A few men unloaded the bodies onto a busy thoroughfare during rush hour under the eyes of horrified onlookers. At the time, no one knew it was the Gente Nueva that was responsible, but the Mexican government was quick to announce that the thirty-five semi-nude victims—most showing signs of torture—were associated with Federation rival Los Zetas. Veracruz State Attorney General Reynaldo Escobar Perez said at the time they had criminal records for kidnapping, extortion, murder and drug dealing. A banner left at the scene was signed “G.N.” and threatened Los Zetas, further solidifying the government’s claims (Castillo, 2013).

But some things didn’t add up so neatly. The narcomessage left with the bodies said that Luis Felipe “El Ferras” Ferra Gomez, a member of Los Zetas who had escaped from

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a local medium security prison the day before, was among the dead. In midDecember 2011—three months after the Boca del Rio body dump—a very-much-alive Ferra Gomez was captured in a large military operation elsewhere in the state of Veracruz.

The announcement of the victims’ criminal history came only hours after the bodies were dumped—a miraculous achievement in background checking of thirty-five people by all global standards. In an interview with a Mexican journalist, José Cuitláhuac Salinas Martínez, the Deputy Regional Director of the Attorney General’s Office at the time, stated twice that the victims were not found to have cartel connections, and that only six of them had any type of criminal record. In truth: among the dead were housewives, high school students and a highly decorated policeman (Borderland Beat, January 1, 2012).

Other incidents followed where innocent Mexicans would be murdered and used as props by cartels. In May 2012, authorities found eighteen bodies in Chapala, Jalisco of people who had been tortured, killed, and dismembered by the Milenio cartel, allies of Los Zetas. Reports came out soon after that the victims were innocent people, and the body count was actually initially higher by thirteen people. These were children who had been kidnapped and held in a safe house in the town of Tala. They were supposed to be executed as well, but the executioner never showed and their guards got high and passed out, allowing all but two to escape. Tragically, those two boys were among the eighteen dead found in Chapala.

A few days later, Juan Carlos Antonio “El Chato” Mercado, Tala plaza (drug smuggling corridor) chief for Los Zetas and mastermind of the massacre, was captured. He said all the kids in the safe house were innocent.

Mercado also explained how they picked their victims: his boss would point to someone and say “that one,” and Mercado would kidnap him (Borderland Beat, May 28, 2012).

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The same day El Chato was captured, a different TCO committed a different massacre hundreds of miles to the north. In this grisly scene, the perpetrators dumped forty-nine bodies on a highway leading out of Monterrey and near the town of Cadereyta. The bodies were mutilated like many others, but specific parts were notably missing: the heads, hands, and feet, meaning there were no teeth or fingerprints that could be used by police to identify many the victims. Initially authorities and the media assumed Los Zetas were responsible for the massacre, based solely on a narcomessage left with the bodies and graffiti left at the entrance to the town. But several days later, the Mexican military arrested Daniel “El Loco” Elizondo and several others in connection with the killings—and they were members of the Gulf cartel, not Los Zetas, so there was the possibility that Los Zetas were being framed (Alazaga, 2012). It also started to look more and more like the victims were innocent migrants from Central America who had been targeted out of sheer convenience (Borderland Beat, May 14, 2012).

Perhaps as a result of this evolution, although it’s always hard to say for sure, the murder rate in Mexico has started to rise once again after several successive years of decline. Mexico’s Executive Secretary of the National System of Public Security (Secretariado Ejecutivo del Sistema Nacional de Seguridad Pública - SNSP) announced there were 1,746 homicides nationwide during the month of May, reported the Mexican daily Milenio in June 2016. The previous high for murders under President Enrique Peña Nieto was 1,726 in December 2012, the same month he was sworn in as president. The last time homicides were this high was in September 2012, when former President Felipe Calderon was still in office, reported the Mexican daily El País. And homicides are up 19 percent during the first five months of 2016 compared to the same time period in 2015 (Gagne, 2016).

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More competition between TCOs usually means an increase in violence. However, with the current evolution of the fundamental nature of Mexican TCOs, the characteristics of that associated violence is degenerating into a chaos with no regard for organized crime “tradition” or the lives of innocents. One thing drug war history has demonstrated is that “there is no going back” to a more peaceful time of unsaid

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agreements and understandings between criminal groups. As such, governments on both sides of the border would be wise to evolve their counterdrug strategies to match the changes within their TCO adversaries if they want to make a dent in both the levels of violence and northbound flow of illegal drugs.

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REFERENCES Alazaga, Ignacio “Captura Ejército a ‘El Loco’ presunto responsable de 49 ejecutados en Cadereyta, NL,” Milenio, May 18, 2012, Web. BorderlandBeat.com, “A Closer Look: Who Were The 35 Slaughtered in Veracruz?”, January 1, 2012, Web. BorderlandBeat.com, “MEXICO: The Killing of Innocents, by Cartels, Police, Military and Death Squads,” BorderlandBeat.com, May 28, 2012, Web. BorderlandBeat.com, “Were the Cadereyta 49 migrants? Plus Chronology of mass killings in Mexico since 2010,” May 14, 2012, Web. Caballero, Jesus Perez, “How the Jalisco Cartel Evolved with Mexico's Drug War,” InsightCrime.org, October 15, 2014.

Castillo, E. Eduardo, “Mexico Horror: Suspected Drug Traffickers Dump 35 Bodies On Avenue In Veracruz,” The Huffington Post, September 22, 2011, Web. Dibble, Sandra, “New group fuels Tijuana's increased drug violence,” San Diego Union-Tribune, February 13, 2016, Web. Gagne, David, “Mexico Sees Most Violent Month Since Calderon Era,” InSightCrime.org, June 27, 2016, Web. Solis, Victor, “’Chapo’ y Cartel de Jalisco, aliados contra Zetas: Stratfor,” El Universal, April 19, 2012.

Univision.com, “Jalisco Nueva Generación: banda criminal que crece en México y que EEUU tiene en la mira,” April 10, 2015.

.

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BIOGRAPHY

Sylvia Longmire is a former officer and Special Agent with the Air Force Office of Special Investigations and worked for four years as a Senior Intelligence Analyst for the California State Threat Assessment Center, specializing in southwest border violence and Mexico’s drug war. She received her Master’s degree from the University of South Florida in Latin American and Caribbean Studies, and she is an award-winning writer and contributing editor for Homeland Security Today magazine and American Military University’s In Homeland Security blog. Ms. Longmire has consulted for the producers of the History Channel and National Geographic Channel, and is regularly interviewed by national, international, and local media outlets for her knowledge and expertise on drug war and border security issues. She is the author of Cartel and Border Insecurity, both nominated for literary awards, and she has written for numerous peerreviewed academic journals and online publications.

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China and the Interpol:

New Partners in Global Crime-Fighting?

BY ZI YANG

Interpol (International Criminal Police Organization) Secretary General Jürgen Stock’s visit to China in October 2015 marked the fifth high-level exchange between China and the largest international law enforcement agency in three years. Meeting with two powerful ministers in China’s domestic security apparatus—the Chinese Minister of Public Security1 and the Deputy Secretary of the Central Commission for discussion Discipline Inspection2—the involved a range of mutually concerning issues, with anti-corruption at the top of the agenda. As China-Interpol relation continues to grow, Stock expressed warm optimism regarding his host country, praising its

“increasingly prominent role in strengthening regional and international police cooperation.3 Indeed, participation in international organizations (IGOs) constitutes a key facet of Chinese foreign policy strategy. Currently, China belongs to 75 IGOs that it uses to exert influence and gain critical information.4 However, China’s degree of participation varies depending on the organization. As the world’s second largest economy, China’s contribution to global governance is generally behind expectations. A permanent member of the United Nations Security Council, China’s financial support to the UN’s

1 The Ministry of Public Security commands China’s police and paramilitary.

2. The Central Commission for Discipline Inspection investigates corruption charges against Chinese Communist Party members.

3. “China Visit by INTERPOL Chief Focuses on International Police Collaboration,” INTERPOL, October

9, 2015, http://www.interpol.int/News-andmedia/News/2015/N2015-157.

4. “International Organization Participation,” CIA World Factbook, accessed June 2, 2016, https://www.cia.gov/library/publications/the-worldfactbook/geos/ch.html.

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best-known and most influential organs— UNICEF,5 UNHCR,6 UNESCO,7 World Bank,8 World Health Organization9—is miniscule and rarely makes the top donors list.

Chinese diplomacy picked up fresh dynamism after Xi Jinping became President in 2012. Compared to his predecessor, Xi took a personal interest in using diplomacy to extend Chinese influence abroad. As a diplomat, Xi is a natural public relations agent with an amicable persona that is a fresh change from his stodgy predecessor Hu Jintao. As a decision-maker, Xi centralized the foreign policy formulation process, thus making his personal will a chief factor in how China behaves on the international stage.10 And as an ideologue, Xi proposed the loosely defined “China Dream” concept, which some analysts have interpreted as a nationalist vision that seeks to make China the political center of Asia once again.11 The growth of relations between China and Interpol is happening under this context.

The world’s largest international law enforcement organization, the Interpol has 190 member states. China joined the Interpol in 1984, but the level of collaboration remained more or less constant until the beginning of the Xi era that saw the inauguration of new Interpol sub-bureaus across the country and the redoubling of efforts to tackle transnational crime. Frequent high-level exchanges between Chinese and Interpol officials allowed the latter greater access to China that culminated in the first Interpol-hosted

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training session for Chinese law enforcement professionals on combating the trafficking of illicit goods.12 After all of China’s reluctance in global governance participation, it is puzzling to witness this volte-face. This begs the question, despite not having a record of close partnership, why did China suddenly and substantially expand cooperation with the Interpol after Xi Jinping came to power? Moreover, how is the warming of China-Interpol relations affecting domestic security of states that have conflicting interest with China, namely the U.S.? I argue the newly established partnership is only one among China’s collection of instruments intended on assuring the success of the anti-corruption campaign—launched on the order of Xi Jinping in November 2012—hence the increase in cooperation after the 2012 power transition. Designed to please public opinion, the anti-corruption campaign’s results are crucial in garnering public support for the state, the Chinese Communist Party (CCP) and the Xi administration. The Interpol’s cooperation is necessary for China to retrieve corrupt officials who fled abroad. However, when the Interpol fails to deliver, China has also used extrajudicial channels in its pursuit of corruption suspects that saw the footprints of its secret agents across the world (including the U.S.), a development that has increased tension between Beijing and Washington over the issue of Chinese anticorruption and U.S. sovereignty and domestic security.

5 “Compendium of Resource Partner Contributions” (UNICEF, June 2015), http://www.unicef.org/publicpartnerships/files/UNICEF _Compendium_of_Resource_Partner_Contributions_2 014.pdf, 7.

6 “Donors,” UNHCR, April 30, 2016, http://www.unhcr.org/en-us/donors.html.

7 “Bilateral Government Donors,” UNESCO, accessed August 5, 2016, http://www.unesco.org/new/en/culture/communities/p artners/bilateral-government-donors/.

8 “Biggest Donors by Countries 2010,” World Bank, 2010, https://finances.worldbank.org/FinancialIntermediary-Funds/Biggest-donors-by-countries2010/r2cs-ptjn.

9 “Contributions to WHO’s Health Emergencies Programme Humanitarian Country Operations,” World

Health Organization, June 30, 2016, http://who.int/hac/donorinfo/2016/country_operations/ en/.

10. David M. Lampton, “Xi Jinping and the National Security Commission: Policy Coordination and Political Power,” Journal of Contemporary China 24, no. 95 (September 3, 2015): 776.

11. Robert Lawrence Kuhn, “Xi Jinping’s Chinese Dream,” The New York Times, June 4, 2013, http://www.nytimes.com/2013/06/05/opinion/global/xijinpings-chinese-dream.html.

12. “First INTERPOL Training in China Major Step Forward in Global Effort to Combat Trafficking in Illicit Goods,” INTERPOL, September 25, 2013, http://www.interpol.int/News-andmedia/News/2013/PR116.

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China’s relationship with the Interpol is an insufficiently investigated topic. Although academic literature on Chinese politics, economic development, and social progress is ubiquitous, works pertaining to China’s role in international law enforcement is limited. There have been a few short Chinese essays on aspects of historical China-Interpol relations, but nothing on the new partnership after 2012. Other than David Shambaugh who briefly addressed this subject in China Goes Global,13 no scholar of the English-speaking academia has written an article dedicated entirely to the changing relations between China and the Interpol.

Without the availability of pre-existing academic literature, this paper will be based on an assemblage of relevant newspaper reports, peer-reviewed academic articles and books in both English and Chinese.

The Interpol as an Organization The ideological roots of the Interpol can be traced to the mid-19th century when European states proposed an international police network to combat democrats, socialists, and anarchists who waged a campaign of assassination on European leaders.14 Yet an actual IGO was not established until 1923 as the International Criminal Police Commission (ICPC) to combat transnational crime.15 Headquartered in Vienna with more than a dozen member states, the ICPC functioned independently until the Anschluss—Nazi Germany’s 1938 annexation of Austria—when the Nazis usurped the ICPC leadership and moved its headquarters to Berlin.16 After the Second World War, the ICPC relocated to France and reemerged as The International Criminal Police Organization,

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or Interpol.

Although the French government tried to limit the Interpol’s independence during the early 1950s, the organization at last broke free of French interference. The adoption of a new constitution in 1956 formalized the Interpol’s duties and began the organization’s the first step toward organizational independence.17 According to Article 2 of the constitution, the aims of the Interpol is: “(1) To ensure and promote the widest possible mutual assistance between all criminal police authorities within the limits of the laws existing in the different countries and in the spirit of the ‘Universal Declaration of Human Rights’; (2) To establish and develop all institutions likely to contribute effectively to the prevention and suppression of ordinary law crimes.”18 Unlike the criminal police of sovereign states, the Interpol does not dispatch its agents to arrest criminals.

Instead, the Interpol coordinates and provides information to law enforcement agencies of member states.19 At present, the Interpol has 190 members. Though the organization maintains sub-bureaus in every one of its member states, the Interpol constitution forbids the undertaking of “any intervention or activities of a political, military, religious or racial character.”20 To facilitate the work of the Interpol, each member state must appoint a body to serve as the National Central Bureau (NCB).21 In the case of China, the Interpol NCB is placed under the Ministry of Public Security—that commands China’s police and True to the Chinese paramilitary.22 government’s proclivity of opacity and secretiveness, there’s no detailed information available to the public on the

13 David Shambaugh, China Goes Global: The Partial Power (New York: Oxford University Press, 2013), 144– 147.

14 Sesha Kethineni, Comparative and International Policing, Justice, and Transnational Crime (Durham: Carolina Academic Press, 2014), 80.

15 Ibid, 82.

16 Obi N. I. Ebbe, Comparative and International Criminal Justice Systems: Policing, Judiciary and Corrections (Boca Raton: CRC Press, 2013), 152.

17 Malcolm Anderson, Policing the World: Interpol and the Politics of International Police Co-Operation (Oxford; New York: Oxford University Press, 1989), 43.

18 Rutsel Silvestre J Martha, The Legal Foundations of Interpol (Oxford: Hart, 2010), 212.

19 Ebbe, 152.

20 Martha, 212.

21 “Structure and Governance,” INTERPOL, accessed June 2, 2016, http://www.interpol.int/AboutINTERPOL/Structure-and-governance.

22 “China,” INTERPOL, accessed June 2, 2016, http://www.interpol.int/Member-countries/Asia-SouthPacific/China.

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China NCB’s organizational structure, funding, and number of personnel.

The Interpol is funded through two main channels. Member states are required to contribute annually. The Interpol’s budget was EUR 79.8 million in fiscal year 2015.

Statutory contributions from member states constituted EUR 52.8 million, EUR 3.5 million from other contributions, in addition to EUR 23.5 million from trust funds and special account contributions.23 The U.S. was the top contributor to the Interpol in 2015, with EUR 9.5 million, followed by Japan (EUR 6.9 million) and Germany (EUR 4.3 million).

China ranked number eight in financial contributions, at EUR 1.5 million.24 The Interpol and Chin China became a member of the Interpol in 1984. The Chinese NCB was established the same year in Beijing under the international police cooperation department of the Chinese Ministry of Public Security.25 The initial Chinese aim regarding the Interpol is to exchange knowledge and obtain assistance in combating transnational crime, which increasingly affected public order six years after China opened itself to International policing the world.26 symposiums are held annually, providing a venue for capacity building between the Chinese police and global partners. Also, the Interpol has been quite helpful in assisting the Chinese government in tracking down fugitives. Whether it is clamping down on

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smuggling rings or international terrorist organizations, the Interpol has had positive working relations with China.27 Cooperation between China and the Interpol has increased drastically since the start of China’s anti-corruption campaign in 2012.

Corruption is a primary source of public discontent in China. In a 2015 Pew poll, 84 percent of those surveyed say corrupt officials are a “big problem,” while 44 percent believe they are a “very big problem”28—a decrease from 50 percent in a 2012 poll.29 For the Communist Party, corruption is “a matter of life and death”30 because rampant corruption reflects terribly upon its meritocratic appointee system, championed by the party propaganda machine as superior to the democratic system based on election.31 The Leninist party-state structure that penetrates all units of society means corruption has a direct influence on the lives of ordinary citizens.

The Chinese citizenry, in return, perceives corruption as the root cause of all problems in China today from collapsing bridges32 to devastating floods.33 Although the main cause of corruption is rooted in China’s socialist market economy, where the state has unparalleled power in distributing economic resources such as

23 “Funding,” INTERPOL, accessed June 2, 2016, http://www.interpol.int/About-INTERPOL/Funding.

24 “ INTERPOL member country statutory contributions 2015,” INTERPOL, accessed June 2, 2016, http://www.interpol.int/content/download/29081/38475 0/version/1/file/INTERPOL%20member%20country%20 statutory%20contributions%202015.pdf.

25 “China.”

26 “Zhongguo jiaru guoji xingjing zuzhi neimu (tu) 中国 加⼊国际刑警组织内幕(图) [Insider’s View on China’s Entry into the Interpol],” Xinhua News Online, November 5, 2008, http://news.xinhuanet.com/legal/200811/05/content_10309570.htm.

27 Shambaugh, China Goes Global, 144–147.

28 Richard Wike and Bridget Parker, “Corruption, Pollution, Inequality Are Top Concerns in China,” Pew Research Center’s Global Attitudes Project, September 24, 2015, http://www.pewglobal.org/2015/09/24/corruptionpollution-inequality-are-top-concerns-in-china/.

29 “Growing Concerns in China about Inequality, Corruption,” Pew Research Center’s Global Attitudes Project, October 16, 2012, http://www.pewglobal.org/2012/10/16/growingconcerns-in-china-about-inequality-corruption/.

30 Orville Schell, “Catching Tigers and Flies,” The New York Review of Books, April 21, 2016, https://anticorruption.chinafile.com/#embed.

31 Daniel A. Bell, “Why China’s Leaders See Corruption as a Mortal Threat,” The Huffington Post, February 17, 2015, http://www.huffingtonpost.com/daniel-abell/china-corruption-threat_b_6699410.html.

32 Frank Langfitt, “Chinese Blame Failing Bridges On Corruption,” NPR, August 29, 2012, http://www.npr.org/2012/08/29/160231137/chineseblame-failed-infrastructure-on-corruption.

33 Zheping Huang, “China’s Devastating Floods Can Be Traced back to Corruption and Overbuilding,” Quartz, July 7, 2016, http://qz.com/725468/chinas-devastatingfloods-can-be-traced-back-to-corruption-andoverbuilding/.

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CHINA AND THE INTERPOL: NEW PARTNERS IN GLOBAL CRIME-FIGHTING?

land and bank loans,34 the Chinese approach of anti-corruption still takes the traditional route that emphasize on punishing corrupt government officials. Every generation of Communist leadership have vowed to uproot corruption, but the anti-corruption campaign under Xi is the most uncompromising. The Chinese public, initially aloof to the new administration’s bombast, have now voiced greater support for Xi’s efforts as mass arrest of corruption suspects continues unabated into the fourth year, regardless of their political stature or behind-the-scene sponsors.35 As of 2015, 63 percent surveyed in a Pew poll is optimistic that the problem of corruption will get better in the coming years.36 Yet beyond the public façade of fighting corruption for the greater good there is a private facet. Xi took over a government filled with ministers of opposing factions. In order to strengthen his standing among peers, Xi needed a thorough purge of the party and state. Under this context, anticorruption offers the perfect justification, since few of China’s bureaucrats can claim innocence from graft and bribery. So far, the anti-corruption campaign has exhibited a clear factional pattern, where members of the Shanghai Clique37 and Tuanpai38 have been specifically targeted.

The arrests of corruption suspects mostly take place in China. But the state is also confronting the problem of suspects who fled abroad. These are usually wealthy individuals who stashed their assets in foreign banks—another source of public ire.

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Wang Qishan, Xi’s chief corruption investigator, promised the Chinese citizenry to bring back these corruption suspects to face justice.39 And the Chinese government finds Interpol red notices, issued “to seek the location and arrest of wanted persons with a view to extradition or similar lawful action,”40 especially useful for hunting down corrupt officials who fled abroad.

China employs five methods in capturing overseas fugitives. First is to use immigration laws.41 Since a number of suspects went abroad without completed immigration documents, China has used immigration laws of the state where the fugitive resides to facilitate extradition. For example, the fugitive smuggler Lai Changxing was extradited to China due to his infringement of Canadian immigration laws. The second method is to file a criminal lawsuit against the fugitive in the state where he or she resides. If the fugitive is successfully convicted, China can seize the opportunity and have the criminal deported after serving a sentence.42 Persuasion has also been used to bring fugitives back to China. Working with local law enforcement agencies, Chinese agents employ a range of persuasive methods—from promising a light prison term to guaranteeing the immunity of the fugitive’s family from prosecution—to have the fugitives surrender voluntarily.43 Since the start of Operation Fox Hunt 2014 (liehu xingdong), the Chinese code name for an initiative to capture corrupt officials who fled abroad, there have been 390 instances of fugitives surrendering to local law

34 See Andrew Wedeman’s Double Paradox: Rapid Growth and Rising Corruption in China for the complete argument.

35 Chris Marquis and Zoe Yang, “Zhongguo wangmin dui fanfu yundong de qidai 中国⽹民对反腐运动的期待 [Chinese Netizens’ Expectations Regarding the AntiCorruption Campaign],” Zhongguo jingji baogao [China Economy Report], no. 9 (2013), 103.

36 Wike and Parker, “Corruption, Pollution, Inequality Are Top Concerns in China.”

37 The Shanghai Clique is a political faction associated with former paramount leader Jiang Zemin.

38 Tuanpai, or Communist Youth League Faction, is a political faction associated with former paramount leader Hu Jintao.

39 “Xi Jinping Wang Qishan bu ‘tianwang’ quanqiu zhuitao 习近平王岐⼭布‘天⽹’全球追逃 [Xi Jinping and

Wang Qishan Spreads ‘Skynet’ for Global Pursuit],” Sohu News, April 23, 2015, http://news.sohu.com/20150423/n411776727.shtml.

40 “Notices,” INTERPOL, accessed June 2, 2016, http://www.interpol.int/INTERPOL-expertise/Notices.

41 Delinar Tayyip德丽娜尔-塔依甫 and Zhang Yao张尧, “Woguo jingwai zhuitao gongzuo nandian ji duice fenxi—yi ‘liehu’ zhuanxiang xingdong wei shijiao 我国境 外追逃⼯作难点及对策分析——以‘猎狐2014’专项⾏动为视⾓ [Analysis of Difficulties and Countermeasures on Our Country’s Work of Extradition - From the Angle of ‘Fox Hunt 2014’],” Jingyue Journal, no. 4 (July 2015), 50.

42 Ibid, 50–51.

43 Ibid, 51.

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enforcement agencies or returning to China voluntarily due to persuasion.44 Working with countries that signed bilateral extradition treaties is the fourth way.

International law does not stipulate a requested state to extradite upon the request of another. However, once an extradition treaty is signed, it becomes the legal obligation for the requested state to accept the requesting state’s call for extradition. Nonetheless, this method has its limits, because international law protects fugitives who can make a successful case that the extradition request is of political or religious nature or he/she will be subjected to torture upon returning to the requesting state.45 Also, China lacks extradition treaty with the U.S., Canada, New Zealand and Australia, where most corrupt officials fled.46 This is where Interpol red notices come into play. There are two ways a red notice is issued. The headquarters of the Interpol may issue red notices to every one of its 190 member states upon request.47 But if a country’s NCB has detailed information on the whereabouts of a fugitive, it may file a red notice request directly to a corresponding NCB in the requested state.48 Former General Counsel and Director of Legal Affairs of the Interpol Rutsel Martha

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describes the red notice as “a prototypical operational police response to match the rapid move of wanted persons across borders in light of the much slower process of judicial mutual assistance.”49 Interpol red notices help China circumvent the problem of not having bilateral extradition treaty with a number of Western countries.50 But there are also limits regarding red notices, for example, requested states in most cases do not extradite its own citizens, in addition, there are also the following limitations: the failure to fulfill dual criminality (the crime of the accused fugitive must be considered a crime in the requested state), possibility of death penalty, torture, inhuman treatment or punishment, political nature of alleged crime.51 The number of Interpol red notices issued on behalf of China’s request has been rising since the start of the anti-corruption campaign, especially the initiation of Fox Hunt 2014, led by the Ministry of Public Security with the goal of retrieving corrupt officials who fled abroad.52 In 2014, China retrieved 680 corruption suspects from overseas.53 There were 282 “tigers” among them, or officials involved in high-profile cases of corruption, with 208 accused of

44 Xi Zhigang席志刚, “Liehu 2014: Zhongguo jingwai fanfu xinchangtai 猎狐2014：中国境外反腐新常态 [Fox Hunt 2014: the New Normal of China's Overseas Anticorruption Campaign],” China Newsweek, February 2015, http://news.inewsweek.cn/detail-1524.html.

45 Tayyip and Zhang, 50.

46 Ibid, 49.

47 Ibid, 50.

48 Ibid, 50.

49 Martha, 115.

50 The original intent of creating the red notice system is very different from how states manipulated its application. According to Paul Marabuto, Representative of the ICPC at the fifth session of the Commission on Narcotic Drugs, red notices are to remedy two inconveniences regarding extradition: “Before the procedure can be started, it is necessary to know the place of refuge of the criminal. Moreover, once the place is known, the formalities of this procedure are very often long and the international malefactor, aware of the action concerning him, can change his domicile in order to hinder the action. As we know, the procedure implies a transmission of documents through diplomatic channels and judicial authorities, and it must be recognized that the extradition treaties are no longer suitable for the

necessities of the period. The ICPC has endeavoured to remedy these inconveniences. Not because it wanted to by-pass the diplomatic or judicial authorities, for to consult the latter remains the normal procedure, but the police departments of the different countries can contact each other, in order to seek the international malefactor, before starting the normal procedure of extradition.” See: Paul Marabuto, “The International Criminal Police,” UNODC, January 1, 1950, https://www.unodc.org/unodc/en/data-andanalysis/bulletin/bulletin_1951-01-01_3_page003.html.

51 Liu Zhirong刘植荣, “Guoji xingjing de yinxing liliang bushu bulou de qingbao jigou 国际刑警的隐形⼒量 不疏 不漏的情报机构 [The Hidden Force of the Interpol, a Well-Organized Intelligence Institution],” World Vision, no. 10 (May 2015), 46–47.

52 Yan Qing 燕青, “Zhongguo qidong ‘liehu xingdong’ jina tanguan quanqiu sanwang 中国启动‘猎狐⾏动’缉拿贪 官全球撒⽹ [China Initiates ‘Fox Hunt,’ Spreading Its Anti-Corruption Net Worldwide],” VOA Chinese, accessed July 22, 2014, http://www.voachinese.com/content/china-hunt20140722/1962833.html.

53 Xi, 31.

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stealing ten million RMB worth of public property, and 74 above 100 million RMB.54 The successful result of Fox Hunt 2014 caught the attention of party leaders and Fox Hunt 2015 was incorporated as part of the Central Anti-Corruption Coordination Leading Group’s Operation Skynet (tianwang xingdong) that involves multiple agencies to recapture corrupt officials.55 Compared to only three red notices issued a decade ago in 2005,56 Interpol’s China NCB broke its record by issuing 100 red notices in 2015; 60 of them involved corruption. 40 of the red notice fugitives are in the U.S., twenty-six in Canada, eleven in New Zealand and ten in Australia.57 Fox Hunt also employed other extradition methods outlined previously.58

passing of the Magnitsky Act in memory of his Russian lawyer Sergei Magnitsky— tortured to death in a Russian prison after uncovering a major corruption scandal involving members of Putin’s inner circle— was repeatedly harassed by law enforcement agencies due to a red notice issued by the Interpol on behalf of Russia.61 Although Browder eventually rectified the Interpol’s mistakes, others were not so lucky.

Despite the wrongfully accused’s efforts to clear their name, the Interpol has repeatedly reinstated red notices, creating an atmosphere of fear for opponents of the Russian state, even after they left the country. Akhmed Zakayev, the overseas representative of the Chechen Republic of Ichkeria, is one of such victims:

But the red notice system is far from perfect; it had been manipulated in the past by authoritarian states to suppress dissidents.

The most notorious abuser of the red notice system is Russia. Since Putin came to power, the Russian government has filed dozens of red notice requests on political dissidents and opposition leaders, accusing them of various falsified charges.59 Although the Interpol denied some Russian requests,60 many were processed and distributed globally. Bill Browder, the CEO of Londonbased Hermitage Capital and human rights activist who lobbied the U.S. congress for the

With the aid of an Interpol Red Notice, Zakayev was arrested in Copenhagen, on 30 October 2002, where he was attending a Chechen congress. He was accused, by Russia, of involvement in planning the 2002 Moscow theatre siege, a charge which he denied. After spending 34 days in Danish custody, Zakayev was freed, due to lack of evidence supporting the Notice and extradition request. When he returned to the UK following his detainment in Copenhagen, he was briefly arrested at Heathrow Airport, on a new Red Notice. In this case, he was accused of 13 criminal acts – including terrorism and the taking of

54 Ibid, 31.

55 “Gongan bu qidong ‘liehu 2015’ zhuanxiang xingdong zhuitao zhuizang bingzhong 公安部启动‘猎狐 2015’专项⾏动 追逃追赃并重 [The Ministry of Public Security Initiates Special Operation ‘Fox Hunt 2015’ to Retrieve Corrupt Officials and Stolen Money],” China Anti-Counterfeiting Report, no. 4 (April 2015), 58.

56 “Jinnian Zhongguo fachule sanfen hongse tongjiling 今年中国发出了3份红⾊通缉令 [China Requested Three Red Notices This Year],” Journal of XPCC Party School, no.2 (April 2005), 18.

57 Yijin Jiang 蒋伊晋, “Baiming waitao renyuan sishi ren qu Meiguo tanwu shouhui lei zhan baifenzhi liushi百名 外逃⼈员40⼈去美国 贪污受贿类占60% [40 Out of 100 Fugitives Went to the U.S., Corruption Cases Constitute 60 Percent],” Ifeng News Online, April 23, 2015, http://gz.ifeng.com/zaobanche/detail_2015_04/23/3817 509_0.shtml.

58 “Liehu 2015: disanming ‘hongse tongjiling’ xianfan bei yajie huiguo 猎狐2015：第3名‘红⾊通缉令’嫌犯被押解

回国 [Fox Hunt 2015: Third ‘Red Notice’ Suspect Extradited to China],” QQ News Online, June 8, 2015, http://news.qq.com/a/20150608/035727.htm.

59 David Satter, “Russia’s Abuse of Interpol,” Russia Studies Centre Policy Paper, no. 6 (July 2015), http://henryjacksonsociety.org/wpcontent/uploads/2015/07/Russias-Abuse-ofInterpol.pdf, 3.

60 Michelle A. Estlund, “INTERPOL Denies Russia’s Red Notice Request for William Browder,” Red Notice Law Journal, January 26, 2015, http://www.rednoticelawjournal.com/2015/01/interpolsthird-decision-on-russias-red-notice-request-forwilliam-browder-no-red-notice/.

61 William Grimes, “Bill Browder’s ‘Red Notice,’ About His Russian Misadventures,” New York Times, February 1, 2015, http://www.nytimes.com/2015/02/02/arts/billbrowders-red-notice-about-his-russianmisadventures.html?_r=1.

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hostages – relating to his role as a commander during the First Chechen War. Interpol issued this Red Notice due to the severity of the purported crimes; but the accusations were proved to be false, and the UK granted Zakayev political asylum. On 17 September 2010, Zakayev was arrested, again, on a Red Notice – this time, in Poland.

He was released on the same day, however, when the judge ruled that he could not be held because of his political-asylum status in the UK.62 Even though the Interpol general secretariat is empowered “to refuse to issue a Red Notice when it is not satisfied that the notice contains all the information needed to formulate a valid request for provisional arrest,” it continues to accept Russia’s requests time and again without careful examination.63 We do not know the Interpol’s exact source of incompetence when it comes to scrutinizing red notices filed by authoritarian states like Russia, but a bloated bureaucracy, the fear of offending Russia and the lack of a sanctions mechanism against abusers of red notices are part of the problem.64 We do not have any hard evidence that China commonly used Interpol red notices to harass overseas dissidents or targeted individuals for purely political objectives.

Possibly because China does not want to strain its relations with the Interpol and jeopardize its Fox Hunt. A review of Chinese red notices filed in 2015 shows the majority are involved in public property theft or other types of criminal activities.65 But the drastic increase of Chinese red notice requests since the start of the anti-corruption campaign

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could well be an attempt to hunt down officials who might have evidence that could be used to implicate other officials out of favor with the current administration.

Although it is hard for us to prove this hypothesis since the Interpol only offers information relating to criminal charges of its Chinese red notice fugitives. Further research only turn up snippets, if any information on the wanted men’s past, inadequate to confirm that China is indeed following Russia’s footsteps in manipulating the red notice system.

Where the Interpol Cannot Reach: Covert Agents and Domestic Security China’s search for fugitives does not always abide by international law and norms. The Interpol is an apolitical organization, and when it cannot retrieve high-profile suspects on behalf of China, covert agents were put into action. In 2015, 857 fugitives returned to China to face corruption charges, 366 surrendered as a result of Fox Hunt.66 The U.S. is one of the prime destinations for Fox Hunt covert agents. In August 2015, the Obama administration issued a stern warning against China on the use of covert agents to facilitate the return of Chinese expatriates residing in the U.S.67 According to the New York Times, China have deployed trained specialists to the U.S. on tourist or business visa to identify and bring back high-profile fugitives.68 The agents commonly used persuasive tactics to convince fugitives to return to China voluntarily, but intimidation tactics have also been employed to coerce fugitives into submission.69 Although the White House has agreed to assist China in tracking

62 Satter, “Russia’s Abuse of Interpol,” 4.

63 Martha, 117.

64 Satter, 9.

65 “Wanted,” INTERPOL, accessed June 2, 2016, http://www.interpol.int/notice/search/wanted.

66 Tom Mitchell and Christian Shepherd, “China Steps up ‘fox Hunt’ Campaign,” Financial Times, January 28, 2016, https://next.ft.com/content/f6a1c75c-c573-11e5808f-8231cd71622e.

67 Mark Mazzetti and Dan Levin, “Obama Administration Warns Beijing About Covert Agents Operating in U.S.,” New York Times, August 16, 2015, http://www.nytimes.com/2015/08/17/us/politics/obamaadministration-warns-beijing-about-agents-operatingin-us.html.

68 Ibid.

69 U.S. officials reported in August 2015 that Fox Hunt agents have intensified the use of threats against Chinese fugitives’ family members. See: Ibid.

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down corruption fugitives,70 China’s extralegal methods not only violates U.S. sovereignty, but also put the safety of U.S. citizens and foreign nationals in danger.

Unfortunately, details on all of Fox Hunt’s operations in the U.S. are unavailable since China vehemently denies the U.S.’s allegations71 and American officials have declined to publically supply supporting evidence to its claim.72 But there are details available on certain cases that may help us understand the complexity of China’s overseas anticorruption effort and its implications for the U.S. The case of Ling Wancheng is perhaps the most telling and dramatic. A younger brother of Ling Jihua (sentenced to life imprisonment for corruption in July 2016)73— the former director of the Central General Office (zhongyang bangong ting)74—Ling Wancheng is said to have illegally obtained Chinese state secrets through Jihua.75 He is one of the most valuable targets for Fox Hunt agents,76 having fled China in the summer of 2015 and now residing in an undisclosed location in the U.S. Chinese Fox Hunt agents have tried to close in on Ling Wancheng in the past, but so far they have been unsuccessful.77 In a February 2016 report by career China-watcher Bill Gertz of the Washington Free Beacon, U.S. intelligence officials confirmed that Ling

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Wancheng have briefed the CIA, FBI and other U.S. intelligence agencies about China’s nuclear command and control system, as well as details about the Chinese leadership and its facilities.78 Given the secrecy surrounding the case, we cannot properly assess the degree of damage Ling’s revelations did to Chinese national security.

But the Ling Wancheng case does serve as a snapshot of the impact of China’s overseas anti-corruption operations on U.S. as well as Chinese domestic security. Moreover, the case shows the degree of difficulty facing the U.S. when it comes to collaborating with China on returning wanted individuals.

Conclusion: Implications for China and the U.S. Compared to other IGOs that China is a member of, the Interpol’s usefulness as part of Chinese foreign policy is more or less confined to the field of criminal justice.

Overall, besides providing a venue for the Chinese police to build relations with international partners, the Interpol’s main purpose for Chinese foreign policy in recent years is limited to assisting the Chinese government in retrieving corruption fugitives from overseas. This function has been increasingly important for China in winning credibility with its citizenry.

Corruption is an issue that triggers public ire in China. Therefore, the ongoing anticorruption campaign, whether out of

70 Sophia Yan, “China’s Anti-Corruption Crackdown Reaches U.S.,” CNN Money, March 27, 2015, http://money.cnn.com/2015/03/26/news/china-anticorruption-us/.

71 Tom Phillips, “China Lashes out at US after Claims Beijing Is Deploying ‘covert Agents,’” The Guardian, August 18, 2015, http://www.theguardian.com/world/2015/aug/18/chinabeijing-operation-fox-hunt-america.

72 Mazzetti and Levin, “Obama Administration Warns Beijing About Covert Agents Operating in U.S.” 73 Edward Wong, “Ling Jihua, Ex-Presidential Aide in China, Gets Life Sentence for Corruption,” The New York Times, July 4, 2016, http://www.nytimes.com/2016/07/05/world/asia/chinaling-jihua-sentence.html.

74 The Central General Office manages the administrative affairs of the CCP Central Committee and the Politburo. The director of the Central General Office is a highly sensitive position because of the amount of classified documents he/she could access.

75. Bill Gertz, “Chinese Defector Reveals Beijing’s Secrets,” Washington Free Beacon, February 3, 2016, http://freebeacon.com/national-security/chinesedefector-reveals-beijings-secrets/.

76. Josh Chin et al., “Hunt for Chinese Man in U.S. Fuels Political Intrigue,” Wall Street Journal, August 17, 2015, http://www.wsj.com/articles/hunt-for-chinese-man-inu-s-fuels-political-intrigue-1439771779.

77. Ibid.

78. Gertz, “Chinese Defector Reveals Beijing’s Secrets;” Ling Wancheng’s U.S. lawyer Gregory Smith disputes Gertz’s claim. Smith said his client, an avid golfer, did not reveal any Chinese state secret, but came to the U.S. to share “golf secrets, not state secrets.” This is a peculiar statement given the evidence available so far does not suggest Ling Wancheng to be a man of simple worldly pleasures. See also: Tim Reid, “Exclusive - Brother of Ex-Chinese Official Sharing Golf Secrets in U.S., Not State Secrets - Attorney,” Reuters UK, February 11, 2016, http://uk.reuters.com/article/uk-usa-chinabusinessman-exclusive-idUKKCN0VK2CI.

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genuine concerns for the party’s survivability or out of raw power struggle necessities, satisfies the average Chinese because the state’s uncompromising stance against corruption lowers their cost of living—as officials are now less inclined to demand bribes.79 A 2015 survey shows the average Chinese strongly support Xi’s anti-corruption efforts, and his approval rating is on the rise.80 Therefore, the new China-Interpol partnership is of great worth to the Chinese government.

Yet when the Interpol cannot deliver, China’s attempt to catch high profile targets through extralegal channels have not sat well with countries like the U.S. where a conflict of interest exist. For the U.S. government, the penetration of Fox Hunt agents into the U.S. is likely going to remain a bone of contention in U.S.-China relations.

Although it is easy for the U.S. and China to cooperate on low-level corruption suspects (agreements of such kind have already been concluded between Beijing and Washington), the U.S. is unlikely to surrender valuable assets like Ling Wancheng, who could be used as a trump card in future interaction with China. Likewise, China will not give up its pursuit of individuals like Ling as long as they have the potential to harm China’s national security. Thus, it is hard to foresee a future where the U.S. and China have an entirely mutually beneficial relation when it comes to joint anti-corruption efforts and returning wanted men to China.

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To conclude, China’s interaction with IGOs are carefully designed with domestic goals in mind. The Interpol, the anti-corruption campaign, and Fox Hunt are a triad aimed at raising the state’s popularity with the ordinary Chinese. The issue of credibility became so dire even the state-run mouthpiece Global Times felt the need to publish an article of trenchant criticism three months ahead of the 2012 power transition urging the government to put the restoration of credibility “at the top of the entire policy-making process.”81 Regaining credibility with a citizenry that distrusts the government is a priority for Xi as he consolidates power. Fox Hunt, where the Interpol plays a crucial role is an extension of the state’s mainly domestic effort to garner public support. Showing Chinese citizens that the government has the will and deft in utilizing an organization as large as the Interpol in hunting down publicly despised officials is a win for the government, even when most of the stolen money cannot be retrieved from overseas.82 Moreover, the visual impact of handcuffed corrupt officials being escorted off the air-stairs by two uniformed Chinese police officers, a scene that has been proliferating in Chinese media83 is a propaganda bonanza that boosts the government’s credibility for the promise that it does not matter where corrupt officials flee, they will eventually be

79 “Waimei: Xi Jinping fanfu jiang guoren banshi chengben zhichilü yilu biaosheng 外媒：习近平反腐降国 ⼈办事成本 ⽀持率⼀路飙升 [Foreign Media: Xi Jinping’s Anti-Corruption Campaign Lowers the Cost of Living in China, Support Is Rapidly on the Rise],” Ta Kung Pao, September 27, 2014, http://news.takungpao.com/mainland/focus/201409/2757166.html.

80 Zijing Zhou 周子静, “Hafo daxue diaocha: Zhongguo ren qunian dui fanfu zui manyi, zui buman xianji yixia zhengfu 哈佛⼤学调查：中国⼈去年对反腐最满意，最不满 县级以下政府 [Harvard University Survey: Chinese Highly Approve the Anti-Corruption Campaign, but Very Unhappy About Government Below the CountyLevel],” The Paper, September 15, 2015, http://www.thepaper.cn/newsDetail_forward_1375410.

81. “Govt Suffers under Credibility Crisis,” Global Times, July 9, 2012, http://www.globaltimes.cn/content/719808.shtml.

82. “Zhongguo haiwai zhuizang jichu xin liqi 中国海外追 赃祭出新利器 [China Shows New Weapon in Retrieving Stolen Money from Overseas],” Legal Daily Online, September 29, 2015, http://www.legaldaily.com.cn/index_article/content/201 5-09/29/content_6290701.htm?node=5955.

83. “Guangdong gongan ‘liehu’ xingdong jibu waitao jingji fanzui xianyiren ⼴东公安‘猎狐’⾏动缉捕外逃经济犯罪 嫌疑⼈(图) [Guangdong Police Captures Fugitive Financial Crime Suspects amid Operation Fox Hunt],” CRI, September 17, 2014, http://gb.cri.cn/42071/2014/09/17/7551s4695689.htm.

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brought back to face justice.84 In the end, although the range of foreign policy subjects covered by the Interpol is limited, it is quite effective in helping the Chinese government reclaim credibility with the domestic audience—that is the driving force behind the advent of the China-Interpol partnership.

84 Wu Yu 吴雨, “Wang Qishan shiyan zhuicheng waitao tanguan 王歧⼭誓⾔追惩外逃贪官 [Wang Qishan Promised to Catch and Punish Officials Who Fled

Abroad],” Deutsche Welle, January 29, 2014, http://bit.ly/2efHajZ

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“Gongan bu qidong ‘liehu 2015’ zhuanxiang xingdong zhuitao zhuizang bingzhong 公安部启动‘ 猎狐2015’专项⾏动 追逃追赃并重 [The Ministry of Public Security Initiates Special Operation ‘Fox Hunt 2015’ to Retrieve Corrupt Officials and Stolen Money].” China AntiCounterfeiting Report, no. 4 (April 2015).

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BIOGRAPHY

Zi Yang is an independent researcher and consultant on China affairs. His research centers on Chinese internal security issues. He holds a M.A. from Georgetown University and a B.A. from George Mason University. He is a regular contributor to Jamestown Foundation’s China Brief.

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Noshir Sheriarji GowadiaA Case Study

BY MALGORZATA J. ZUBER AND EMILY GOH-MARCHE

I. Introduction Despite various technical definitions, “espionage” can be broadly defined as “consciously deceitful collection of information, ordered by a government . . . accomplished by humans unauthorized by the target to do the collection” (Demarest, 1996). National leaders use the information they gain through espionage to make better-informed policy decisions (Baker, 2004). In some cases, international laws have legalized waging war (Bigdeli & Reza, p.1380) and attempted to “reduce the inclusion of individuals under the title of spy and to exclude the dressed civilians and military men from the definition of espionage.”

(Baheri & Fard, 2015, p.41). However, domestic law punishes captured spies because they have engaged in intelligence operations against national interests (Sulmasy & Yoo, 2006). Being the only crime explicitly delineated in the Constitution of the United States, espionage is known to be the “oldest and most strongly condemned wrong” (Nettler, 1982, p.35). Espionage should never be undermined due to the

potentially severe consequences to a nation.

From the words1 of Marcus Tullius Cicero (58 BC):

“A nation can survive its fools, and even the ambitious. But it cannot survive treason from within. An enemy at the gates is less formidable, for he is known and carries his banner openly… [The traitor] rots the soul of a nation, he works secretly and unknown in the night to undermine the pillars of the city, he infects the body politic so that it can no longer resist. A murderer is less to fear. The traitor is the plague” This case study concentrates on Noshir Sheriarji Gowadia, whom was sentenced to 32 years in the ADX Florence2 in 2011 for disclosing classified information (i.e. stealth bomber’s infrared-suppression secrets) to other foreign governments including the Chinese.

From a national security perspective, this study explores inter-related elements of the case. Addressing this will aid in understanding espionage from the perspective of law enforcement agencies.

1. A paraphrase from Caldwell (1965) 2 ADX Florence is the United States Penitentiary, Administrative Maximum Facility is an American federal supermax prison for male inmates located in

Fremont County, Colorado. ADX is a 23-hours lockdown facility. The inmates only receive 1-hour out of their respective cells for exercise.

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The research discusses the severe repercussions of reacting to this betrayal lightly and the implications for U.S security interests. The study looks at the existing U.S. Espionage Act 1917 to further understand the ambiguities of the law itself. Then it examines espionage deeper by identifying various cases, offering brief examples, and evaluating the contemporary progress in espionage prevention. There's also a brief look into known Chinese espionage acts and other similar cases. Finally the study narrows to Noshir Gowadia case and examines the roles played by law enforcement agencies.

Particularly focusing on the Federal Bureau of Investigation (FBI) and Field Intelligence Group (FIG). The study concludes with analysis and discussion of the lessons derived from the case of Noshir Gowadia, especially those applicable to law enforcement in the future.

We express heartfelt gratitude to FBI Special Agent Mohajerin Thatcher for agreeing to be interviewed by us despite his busy schedule and assisting with the production of this case study.

II. The U.S. Espionage Act 1917 The U.S Espionage Act has left significant evidence of its presence since being enacted. Historically synchronized with U.S. entry into the First World War, Congress enacted the Espionage Act in 1917.

According to Hyde (1918), the law can be broadly defined as “an act to punish acts of interference with the foreign relations, neutrality, and the foreign commerce of the United States, to punish espionage and better to enforce the criminal laws of the United States, and for other purposes”(p.142).

The law was originally designed to prevent sedition in the army. As well as to preclude individuals from obtaining, communicating and delivering information to foreign governments or to any persons within a foreign country. Information which may cause detrimental effect(s) to national security specifically. Nevertheless, the law possesses a level of ambiguity and potentially controversial provisions.3

Therefore, it should be amended in order to clarify better between information considered classified by the U.S. Government and information that is not.

The Espionage Act comprises a number of statutes such as the § 793 (a) – (f), § 794, § 797, and § 798. The present 18 U.S.C. § 793(a) is derived from section 1(a) of the Espionage Act. This particular law prohibits individuals, parties, or any organization from obtaining information relevant to the national defense installations “with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation” (Vladeck, 2007, p. 222). In the same tone, § 793 (b) forbids any individuals with “like intent or reason to believe” to obtain, copy, take, or make “any sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, document, writing, or note of anything connected with the national defense. § 793 (c), on the other hand, states that it is a violation against certain provisions of the Espionage Act should individuals attempt to receive information relating to the national defense. § 793 (d) and § 793 (f) impede the distribution of any information in regards to the national security, even though it is in the lawful possession of the individual (Vladeck, 2007, p. 222). § 793(e) prohibits any form of communication or attempts to communicate information relevant to national defense from any individuals to any persons that are not entitled to receive it.

Three other noteworthy provisions of the Espionage Act are the 18 U.S.C. § 794, § 797, and § 798. § 794 prohibit individuals from collecting, communicating, recording, publishing and/or communicating information relating to national defense, especially information perceived to be useful to the enemy. § 797 prohibits individuals from reproducing, publishing, selling, or giving away pictures of specified defense installations, unless properly censored. Lastly, § 798 precludes individuals

3 Then-Assistant Attorney General Charles Warren contributed a significant portion of the U.S. Espionage Act.

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See Vladeck, S.I. (2007).

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from communicating, furnishing, transmitting, and/or publicly disclosing prohibited materials (i.e. “classified information… concerning the communication intelligence activities of the United States or any foreign government”) (Vladeck, 2007, p. 225).

Julius and Ethel Rosenberg, a pair of notorious atom bomb spies, were charged under the Espionage Act and executed. The success story of their convictions has been attributed to stringent FBI background investigations. In a more recent case, a U.S. Navy officer allegedly provided secret information to China and Taiwan and was charged with multiple counts of espionage.4 Edward Snowden, Chelsea Manning and Thomas Drake have also been targeted by the Espionage Act. III. Espionage Historically, especially during times of war, the act of gathering information has been used worldwide by countries to advance their superiority over other nations. In 1917 during the Russian Revolution, espionage emerged as one of the defining interconnected moments between the USSR and the United States (Herbig & Wiskoff, 2002). In the 1980s the FBI discovered hundreds of alleged espionage cases involving the Chinese (Mattis, 2015).

Over the years, this phenomenon has risen and continues to place both nations and people at risk. Based on Richards Heuer and Katherine Herbig’s (2001) research on individuals that have committed espionage, spy demographics comprised of mostly males (about 93%), married (57%), born in the U.S. (83%), and included naturalized citizens (17%). In regards to offender motivations, money was cited as a common factor in about 69% of the cases. In which

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56% of those cited money as being the sole motive. For about 27% of the cases studied, offenders claimed to hold resentment or vengefulness toward his/her employer or authorities. Ideology comprised 22% of the cases – ideology meaning beliefs and sympathies arising from shared culture, ethnicity or race. The study recorded 17% of the cases to be caused by a desire to please a friend of family member, 12% claimed to be influenced by the thrill of spying and 4% of the cases had a grandiose self-image i.e. huge ego to be satisfied.

The first statement from FBI Special Agent Robert Hanssen, after being arrested near his Northern Virginia home, was “What took you so long?” (Buncombe, 2002, p. 14).

Special Agent Robert Hanssen is one of many that have betrayed their nation (See Adams, 1995; Blum, 1987; Headley & Hoffman, 1989; Lindsey, 1979; Maas, 1995).

From 1947 to 2007, it's reported that 173 Americans engaged in acts of espionage5.

One of the reports published by the Defense Personnel Security Research Center 6 (PERSEREC) suggested seven reasons why a citizen may commit espionage: 1) disgruntlement; 2) financial; 3) divided loyalties; 4) honey entrapment; 5) ego; 6) threats; and 7) excitement. The report further explained that financial gain has been found to be the most statistically significant factor; thereby denoting that it is the primary motivation for Americans to spy.

There were two variables reported as the second most common reasons for espionage – disgruntlement and divided loyalties (Herbig & Wiskoff, 2002). Some examples of divided loyalties include Chinese immigrants like Katrina Leung, Wen-ho Lee, Edward Lin, Chi Mak, and Wutai Chin. There is reasonable doubt understandably when trying to determine

4 Lt. Cmdr. Edward C. Lin whom has spent a majority of his time in the Navy with reconnaissance and patrol squadrons, has been taken into custody in a Navy brig in Chesapeake, Va., for almost eight months. He faces five counts of espionage and attempted espionage, four counts of “wrongfully transporting material classified as SECRET”, and seven counts of communicating defense information to a foreign person.

5 PERSEREC maintains a database of American citizens that have been convicted of espionage (e.g.,

successfully released classified information and caught red-handed). See The Defense Personnel and Security Research Center (PERSEREC), March 2008. p. 1 6. PERSEREC was founded in 1986, the year after John Walker and Jerry Whitworth’s annihilative espionage acts. PERSEREC gathered its resources from press accounts, scholarly articles, books, and open sources. A majority of PERSEREC research were based on the findings obtained from an IC-wide project, called the “SLAMMER” or “The Decade of the Spy.”

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whether the individuals were ever loyal to America or if they were deliberately planted to spy (Tepley, 2010). PERSEREC also found that loyalty shown to another country by naturalized Americans has been found to play a crucial role in espionage cases since the 1990s (Herbig &Wiskoff, 2002).

IV. Chinese Espionage The transformation of China, particularly its economy and modernized military, has risen to a high level of prominence in global affairs. A key element attributed to China’s blossoming growth strategy was the attainment of other nations science and technological capital (Hannas, Mulveon & Puglisi, 2013). Capital that was obtained, especially from the United States, through legal and illegal means. Some of the legal methods included foreign domestic investment, licensing, and collaboration.

Illegally, it's not a secret that Chinese national industrial policy goals advocate Intellectual Property (IP) theft (The National Bureau of Asian Research, 2013). Such illicit acquisition is on the rise because it allows China to skip tedious stages of research and development that would take years to accomplish. Nevertheless, China has been abjuring U.S. claims on the PRC implementing espionage as a part of the country’s economic strategy.

Rep. Mike Rogers, R-Mich., chairman of the House Intelligence Committee warns that the government of China has been attempting to steal economic secrets for the country’s benefit in order to pit oneself against the U.S. Economy (U.S. House of Representatives, 2012). According to Krekel, Adams, and Bakos (2012)’s study, the rising strength in China’s military capabilities and information warfare (IW) will present a higher calculated risk to other nations, particularly the leaders of the West, to intervene in any Chinese’s affairs. In 2011, the Office of the National Counterintelligence Agency addressed China as “the world’s most active and persistent perpetrators of economic espionage” (Office of the National Counterintelligence Executive, 2011).

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students, transnational sympathizers, professionals from various fields, and officers from law enforcements agencies. In May 2015, two Chinese professors who trained at the University of Southern California were charged with stealing sensitive wireless technology information from U.S. firms. One of the defendants, Professor Zhang Hao, is the only one in custody after being arrested by authorities upon landing at Los Angeles International Airport. Xiang Dong Yu was a product engineer for Ford Motors; he has since left Ford to work with its competitor, the Beijing Automotive Company. Yu was found to have downloaded Ford’s design documents illegally onto an external drive.

Some of the designs were highly sensitive and took Ford Motors more than several decades and millions spent on research to develop.

Lt. Cmdr. Edward C. Lin of the U.S. Navy was charged with several counts of espionage in early April 2016. Some of the charges included falsely listing his travel destination, disclosing classified information, as well as frequent visits to prostitutes. While Lin was born in Taiwan, he moved to the U.S. at fourteen and eventually became a naturalized citizen. Suspected of spying for both Taiwan and China, he is currently in custody at a Navy brig in Chesapeake, VA. Dongfan Chung, known as “Greg”, who was also a naturalized citizen released classified information on NASA’s space shuttle program. In 2009, he was convicted after hundreds of thousands of classified documents were found stored under his home in California. Greg received a sentence of more than 15 years in prison. In recent years, President Obama has addressed these issues with President of the PRC, Xi Jinping.

However, resolution attempts have been unsuccessful, particularly since Edward Snowden revealed that U.S. Agencies have

Interestingly, China’s intelligence services comprise not only highly trained spies but

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been attempting to monitor Huawei7, a telecommunication company in China.

V. Law Enforcement Agencies Law enforcement agencies are government entities responsible for the enforcement of laws. There are many types of law enforcement agencies ranging from rural police departments to large federal agencies. The main purpose of law enforcement agencies are to investigate suspected criminal activity, refer the results of investigations to the courts, and oversee the temporary detention of suspected criminals pending judicial action. They often deal with crime deterrence, prevent the successful commission of crimes in progress, and respond to emergencies and/or threats to public safety. Law enforcement agencies are categorized into local, state, and federal agencies. They operate together to perform many of the described tasks. Only federal agencies have nationwide jurisdiction for the enforcement of federal law.

“At the federal level, most officers have primary responsibility for investigations and enforcement, followed by correction-related duties, police service, court operations, and security and protection” (Robinson, 2009, p.169). Federal officers work in various agencies such as the: FBI, Drug Enforcement Administration (DEA), Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), United States Marshall Service, Federal Bureau of Prisons (BOP) and others. The Department of Homeland Security (DHS) is another branch with numerous federal law enforcement agencies reporting to it including: U.S. Customs and Border Protection (CBP), U.S. Immigration and Customs Enforcement (ICE), United States Secret Service (USSS), United States Coast Guard (USCG), Homeland Security Investigations (HSI), and the Transportation Security Administration (TSA). Then there are the state administered agencies that perform law enforcement duties like investigations and state wide patrols. Those agencies are typically referred to as state police or highway patrol, and are

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part of the state's Department of Public Safety. In addition, each state Attorney General's office has its own bureau of investigations.

There are also law enforcement agencies acting on the local level. County law enforcement is provided by the sheriffs' department and county police.

VI. The Federal Bureau Investigation (FBI) According to J. Edgar Hoover “The most effective weapon against crime is cooperation (…) The efforts of all law enforcement agencies with the support and understanding of the American people.” The conviction of Noshir Gowadia required the cooperation of many people and law enforcement agencies, particularly when it came to the special roles played by the FBI and its Honolulu Field Intelligence Group (FIG). The FBI, a branch of the U.S. Department of Justice (DOJ), is the domestic intelligence and national security organization of the United States. The FBI also serves as the nation's prime federal law enforcement agency. Their mission is specified as: to protect and defend the United States against terrorist and foreign intelligence threats, to uphold and enforce the criminal laws of the United States, and to provide leadership and criminal justice services to federal, state, municipal, and international agencies and partners (FBI, Quick Facts) The FBI prioritizes the prevention of: terror attacks on U.S. soil, active foreign intelligence operations and espionage, cyber-based attacks and other technology related crimes, public corruption on all levels, transnational/national criminal organizations and enterprises, major whitecollar crime, significant violent crime, and civil rights protection. They also work to support federal, state, local and international partners.

The agency operates under the jurisdiction of the DOJ, and is concurrently a member of the U.S. Intelligence Community (IC).

7 .With offices and branches in 140 countries, Huawei is the second-largest telecommunications equipment company in the world.

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Therefore the FBI reports to both the Attorney General and the Director of National Intelligence. FBI Field Intelligence Groups (FIG) are overseen by the FBI Directorate of Intelligence. The group performs intelligence functions through special agents, intelligence analysts, linguists, and other members of the law enforcement and intelligence communities.

The FIG coordinates, manages, and executes all of the functions of the intelligence cycle in the field. More precisely, they gather information and details about threats the country may be facing. This is done by agents in the field collecting relevant and desired information, then processing, exploiting, and putting into context the acquired data, before finally compiling the information into reports and disseminating this to the FBI Headquarters and other law enforcement/intelligence agencies and relevant decision makers. Decision makers receiving these reports include the President of the United States and the Attorney General. Field Intelligence Groups are the focal point of the FBI Intelligence Program and logical conduit for information sharing and collaboration between the FBI and fusion centers. Gowadia’s case could not have been made without the support of the U.S. Air Force Office of Special Investigations (AFOSI). This agency reports directly to the Office of the Secretary of the Air Force. Their mission is to identify and neutralize criminal, terrorist, and intelligence threats to not only the Air Force, but Department of Defense and U.S. Government.

VII. Introduction to the Case

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Noshir Sheriarji Gowadia was introduced to the world in 2005 as “father of Chinese stealth technology”. He was born in Mumbai, India on April 11, 1944 to a Parsi family. He came to the United States in the summer of 1963 and became a naturalized citizen on July 25th 1969. His present wife, Cheryl Gowadia, is a U.S. citizen born in Texas.

Gowadia has two children, son Ashton (from his relationship with Cheryl) and daughter Tanzi (from his first marriage). In November 1968 he joined Northrop Grumman, where he worked as a design engineer for over 18 years on a number of classified research projects. In 1979 he was chosen to be one of the principal designers of the B-2 Spirit stealth bomber.

In 1979, Gowadia was selected to be a part of the then-classified Special Access Program, which was tasked with developing a unique propulsion system for the stealth bomber integrating classified documents of design techniques for infrared, visual and radar signature reduction8. Specifically, Gowadia contributed to the radar-evading design for the stealth bomber. He was also teaching government employees and authorized contractors a classified course at Georgia Tech Research Institute. Gowadia, with his colleague Whitaker, authored an article in Journal of Aircrafts titled Aircraft thrust vectoring using flexible non-axisymmetric nozzles.

Gowadia’s “security clearance was terminated” (Hannas, Mulvenon, Puglisi, 2013, p. 258) in 19979. In 1999 Mr. Gowadia then founded a consulting business, N.S. Gowadia, Inc. in Albuquerque, New Mexico.

That same year, Special Agent Thatcher’s

Noshir Sheriarji Gowadia Picture retrieved from bit.ly/2ew83oK

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8 The United States of America vs. Noshir S. Gowadia, superseding indictment. United States District Court for the District of Hawaii. 25 October 2007. p.2

9 Gowadia continued to work on classified information with the U.S. government, as a contractor, until his security clearance was terminated in 1997.

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affidavit10 revealed that Gowadia taught a course in a foreign country using classified information from the U.S. Air Force. During this time he also bought a multi-milliondollar property in Hawai'i. There was no prior criminal record and no history of violence.

In October 2005, Noshir Gowadia was first arrested on a criminal complaint accusing him of disclosing classified information (i.e., the stealth bomber’s infrared-suppression secrets) to foreign governments, including the Chinese. Evidence from the trial revealed that Gowadia took at least six trips to China from July 2003 to June 2005 to assist the PRC with the development of a stealthy exhaust nozzle. The indictment showed that the Chinese attempted to conceal Gowadia’s trips by “failing to stamp, or making false and misleading stamps” in his passport. It was also mentioned that the Chinese handlers paid for Gowadia’s travel expenses. In accordance to the FBI Honolulu press release (2011), Gowadia was convicted of two charges in relation to the transmission of classified information: “a PowerPoint presentation on the exhaust nozzle of a PRC cruise missile project and an evaluation of the effectiveness of a redesigned nozzle”, as well as a computer file that consisted of his prognosis of a “PRC cruise missile outfitted with his modified exhaust nozzle and associated predictions in relation to a U.S. air-to-air missile.” It was reported that Gowadia pocketed about $110,000 for disclosing Secret and Top Secret documents to Chinese government representatives (The USA vs. Noshir S. Gowadia, superseding indictment, 2007).

Understandably, Gowadia had taken initiative to camouflage payments he received from the Chinese by opening offshore bank accounts. Not only that, in order to communicate securely, Gowadia and his Chinese contacts established a specific tradecraft, i.e. a covert e-mail address to send classified documents and military defense information.

Under federal espionage statutes, Noshir was charged for communicating national

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defense information to a person not entitled to receive such top security information. The FBI discovered multiple instances when classified information was revealed while Noshir was employed at Northrop.

Additionally, the FBI discovered his $4 million dollar home in Hawai'i. The lifestyle was suspicious for Gowadia's reported income. The evidence produced at the trial documented Gowadia’s establishment of three foreign entities, one of which was a Liechtenstein charity focused on the welfare of children, in order to conceal income received from foreign nationals. Gowadia made conflicting statements during his trial to the IRS and others about his donations to charities (The USA vs. Noshir S. Gowadia, superseding indictment, 2007). It was also discovered that Gowadia evaded paying incoming taxes after he left Northrop Grumman in 1997 until he was arrested in 2005.

Initially, Gowadia was adamant on not pleading guilty. He disputed this argument in the court - arguing that he did not disclose any classified information, only information that was publicly available.

Gowadia claimed that FBI Special Agent Thatcher Mohajerin’s affidavit supporting the warrant application presented false statements. In the specific document, FBI Special Agent Thatcher Mohajerin lays out 5 documents on page 17 that have been classified at the Secret level, while Gowadia argues that the documents were unclassified (Noshir S. Gowadia vs. United States of America, 2015). Nevertheless, his attorneys, David F. Klein and Birney B. Bervar released a joint declaration, stating that they were not able to find a concrete basis to support Gowadia’s intention of filing a motion to suppress the search warrant.

According to FBI Special Agent Thatcher Mohajerin’s affidavit, Gowadia worked on the B-2 bomber project when he was still working at Northrop Grumman Corporation, and that he has written e-mails indicating that he was working with both foreign corporations and governments on

10 On October 26, 2005, FBI Special Agent Thatcher P. Mohajerin filed a criminal complaint against Noshir Gowadia at the U.S. District Court.

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commercial applications of defense technologies. The affidavit also specifies that Gowadia has entered/left the United States for approximately 15 times between 1992 and 2001. What’s more important on Mohajerin’s affidavit was that it showed that Gowadia was listed as the sender and recipient for a container shipment that was filled with papers pertaining information on the B-2 bomber, discussions on the usage of infrared technology to neutralize missiles, as well as proposals to create and implement anti-missile technology for several foreign nations, which was sent to Honolulu from Singapore.

On October 13, 2005, a warrant was issued by the United States District Judge Helen Gillmor to search Gowadia’s house.

Eventually, Gowadia confessed to sharing classified documents through presentations, paper documentations, spoken word, letters, and other forms to persuade prospective clients of his technological credibility. Gowadia later claimed that the only reason he confessed was because he “was threatened, my family was threatened, I was tired, I was confused, and I didn’t want the hassle. So I told them things which are not completely correct, but like I said, there was no crime, there is no crime today, and all the worlds in the world are meaningless”11 (Noshir S. Gowadia vs. United States of America, 2015).

After nearly four months on trial in Honolulu and six days of jury deliberation, Gowadia was found guilty of five criminal offenses in relation to his design and assisting the People’s Republic of China (PRC) in rendering their “cruise missile resistant to detection by infrared missiles” (United States of America vs. Noshir S. Gowadia, 2014).

Gowadia was also convicted on three counts for disclosing classified information on a “lock-on range for infrared missiles against the U.S. B-2 bomber” (Hannas, Mulvenon, & Puglisi, 2013, p. 258) to people not entitled to the information. He was convicted of a total of 14 charges including conspiracy, “illegally

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exporting military technical data”, violating the arms export control act, tax evasion in the years of 2001 and 2002, and money laundering12. Gowadia, 66, was sentenced on January 24, 2011 to 32 years at a super maximum facility in Colorado.

VIII. First Glimpse of a Chinese Stealth Fighter The U.S. B-2 bomber is considered to be a critical defense asset of America. Being a core component of America’s long-range strike arsenal, the B-2 is capable of penetrating the enemies’ defense system.

Particularly penetrating the airspace while having the ability to accurately project air strikes on multiple targets. Having been used in significant moments of combat (i.e., Operation Allied Force in Kosovo; Operation Enduring Freedom in Afghanistan, Operation Iraqi Freedom and Operation Odyssey Dawn in Libya)13, Northrop Grumman is the B-2 prime contractor and collaborates with the U.S. Air Force to secure the nation from any foreign threats.

In December 2010, the Chinese revealed their own stealth fighter pictures to the world. For many it was strange that the Chinese were able to develop such advanced stealth fighter technology in such little time. To date, the PRC is known to have three stealth projects excluding its latest, Chengdu J-20 (Graff and Higham, 2012). The J-20 was manufactured by Chengdu Aircraft Industry Group (CAIG) of China, and is similar to America’s F-22 Raptor and Russia’s SUkhoi T-50 fighters. According to Graff and Higham (2012), the Chengdu J-20’s relatively large size enables it to be able to aim long range and accommodate heavy weapon loads. The introduction of Chengdu’s J-20 fighter makes China the only other country in the world, apart from the United States, to have stealth fighter jets that are readily available in the event of a war.

IX. Motivations of Espionage According to the FBI, Gowadia allegedly disclosed classified information to the

11 This excerpt was obtained from the transcript of proceedings of July 23, 2010, ECF No. 907, PageID # 13310 12 FBI Honolulu Division, January 25, 2011

13 Northrop Grumman, n.d. “B-2 Spirit Stealth Bomber – Centerpiece of Long Range Strike.” Retrieved from: www.northropgrumman.com/capabilities/b2spiritbom ber/pages/default.aspx

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Chinese government to help finance a $15,000 monthly mortgage on his new multi-million dollar home in Maui, Hawai’i.

Prosecutors further claimed that Gowadia also received a minimum of $110,000. Apart from direct financial gain, Gowadia was using the classified documents to market himself and obtain more business for his company. Special Agent Thatcher Mohajerin explained that Gowadia disclosed United States military technology secrets (i.e. B-2 stealth bomber) in the interest of convincing foreign governments and prospective clients that he was able to work with and aid them in acquiring higher levels of military technology. According to an FBI affidavit that was unsealed in early November 2005, Gowadia told the investigators that he disclosed such classified information to “establish the technological credibility with the potential customers for future business” and he wished “to help this (sic) countries to further their self-aircraft protection systems” (Mohajerin, Aff. 7, 2005). Gowadia felt that his personal gain from this was the ability to generate more business for his company.

While many wouldn’t doubt that financial gain is a primary motive for espionage, there are other factors that could explain the actions of Gowadia and similar individuals.

For example the personality factors at play.

As Tepley (2010) explained, ‘the need for money’ excuse does not justifiably fit as the only reason for committing espionage because these individuals could have easily resorted to theft or embezzlement.

Special Agent Mohajerin described Mr. Gowadia as a brilliant man, somewhat egotistical, thinking himself above the law, and feeling that the world owed him. In Tepley’s (2010) Wilderness of Shattered Mirrors, he examined potential evidence that may indicate types of personality disorders such as narcissism and psychopathy from a sample of twenty confirmed American spies. According to Tepley, people that show traits of such disorders tend to lack empathy for other human beings, are impetuous, and possess pompous self-images.

Tepley further suggested that a majority of individuals that have engaged in espionage did so because their egos have been bruised countless

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times and revenge is a form of redressing the damage. His research found that individuals possessing a significant number of narcissistic or psychopathic traits are more likely to engage in treason.

X. Investigation Process Special Agent Thatcher P. Mohajerin from the Honolulu counterintelligence team took the lead for the case after learning that Mr. Gowadia disclosed classified information to foreign governments. For instance, Gowadia sent a letter to an official from the Swiss Ministry of Defense offering his knowledge, experiences and success in suppressing the infrared signature of the B-2 “to reduce the signature of Swiss military helicopters” through his company, N.S. Gowadia, Inc. (“NSGI”) (United States vs. Gowadia, 2014, p.6).

Similarly, Gowadia sent letters of equivalent content to individuals working for defense contractors in countries such as Germany and Israel. Neither of these individuals was authorized to receive the nation’s top secret information.

As mentioned in the earlier section, the affidavit filed by the FBI reported that Gowadia used the classified information to promote himself to the foreign officials as the “father” of the Stealth bomber’s infrared suppressing propulsion system.

Federal agents later discovered several top secret documents Gowadia obtained from his service at Northrop and Los Alamos National Laboratory after searching his house. During questioning, the FBI said that Gowadia acknowledged providing foreign nationals the classified information. In 2004, a report published in Jane’s International Defense Review noted that Gowadia had developed a unique system that will aid aircrafts to be “virtually invulnerable to attack” through the infrared guided air defense systems. At the time, Gowadia was in the running to be selected as a subcontractor by the U.S. Department of Defense to design a system similar to his B-2 project at Northrop. Soon after though, Gowadia was arrested.

According to the Canberra Times, Arthur Lazarou, a Canberra public servant (a Defense Material Organization officer and a

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retired navy lieutenant commander) had been accused of working with Gowadia in committing espionage. The link between Gowadia and Arthur Lazarou began when Lazarou wrote about Gowadia’s work at Northrop and the B-2 bombers. As a result of the publication, Australian defense officials’ peaked their interest. Thereafter, Australian officials invited Gowadia to lead a two-day course on stealth designing. With the tremendous success of the course, Australia’s defense authorities informally invited Gowadia to set up a company in Australia to introduce stealth technology to the Australian Defence Force (ADF).

Shortly after in 2001, Gowadia and Lazarou set up a Canberra-based company named NTech Australia, which began conducting ADF-funded tests for the adaptation of the stealth technology to the RAAF’s Hercules C130 transport aircraft. A preliminary investigation showed that the Defense Department in Australia paid NTech nearly $1 million between 1999 and 2003. However, when Mr. Gowadia asseverated to take full ownership of all the intellectual property rights, the Defense officials called off the testing in late 2002. The Air Force Suspension Debarment Officer, SDO, debarred Gowadia and NTech-Australia PTY Ltd., and NTech-E (Swiss Company) in 2011 for violating U.S. export control laws and transferring classified information to China (Baker Hostetler, 2015), which has allegedly been used to launder money from the selling of classified information to foreign governments.

On April 19, 2004, Officer Keith Ikeda, a United States Customs and Border Patrol’s (CBP) employee informed Special Agent Steven Marceleno (“Agent Marceleno”) that Gowadia was about to fly to Singapore on China Airlines Flight # 17. Agent Marceleno requested that Customs Inspector Eduardo Meza conduct an outbound inspection on Gowadia and specifically search for classified documents containing information regarding aircraft technology14. During Inspector Meza’s search of Gowadia’s

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luggage, he discovered a package consisting of several documents detailing anti-missile aircraft designs. Before Gowadia was scheduled to leave for this trip, a furniture container arrived in the United States. When the CBP officers opened the container, they found a box of documents containing sales contracts and military defense information about the aircraft infrared suppression technology. Two months later on June 7, 2004, Agent Marceleno received notification again that Gowadia was scheduled to depart for Hong Kong via Tokyo, Japan. This time, ICE Special Agent Doug Palmer requested an outbound frisk on Gowadia.

The customs inspector discovered a set of documents complete with graphs and PowerPoint presentations in regards to C130 aircraft technology. Gowadia retaliated and argued that the customs inspector seizing documents on three separate occasions (March 29, April 19, and June 7 2004) violated the Fourth Amendment of the United States Constitution.

Due to the significant number of documents to be analyzed, Special Agent Thatcher Mohajerin called on the assistance of Special Agent Michael Gadsden, the head of a Field Intelligence Group (FIG) based in Honolulu.

FIG is a team operated by the FBI and consists of intelligence analysts, special agents, language analysts, financial analysts and many others that work in 56 field offices.

Some of the tasks performed by a FIG include: collecting, gathering, analyzing, producing, and disseminating actionable intelligence to support FBI investigative teams and programs, as well as to inform other agencies (i.e. IC, and other federal and SLTT law enforcement agencies). According to Special Agent Mohajerin, the assistance provided by the FIG was “critical” and FIG gets called upon on a daily basis.

During the investigation, the FIG assisted by providing their technical expertise on analyzing computer forensics while understanding the evidence needed to produce a link between an individual(s) and a crime. The experts/analysts were well

14 UNITED STATES OF AMERICA, Plaintiff, vs. NOSHIR S. GOWADIA, Defendant. CR. NO. 05-00486 HG-KSC.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII 610 F. Supp. 2d 1234; 2009 U.S. Dist.

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versed in appropriate interrogation procedures and efficient methods of analyzing deleted records from the defendant’s technological devices. In addition, Agent Gadsden’s team successfully analyzed a surplus of financial data (i.e. bank statements, tax records, credit statements, and other business forms) collected by Agent Mohajerin. This subsequently and successfully linked the transactions to discoveries in the case.

On April 5, 2006 Noshir Gowadia applied for a “Motion to Dismiss the Indictment” (Motion, Doc. 42). Two weeks later the Government filed an “opposition to Gowadia’s motion to dismiss his indictment” and addressed only three of the six counts.

The defendant’s motion to discard all counts was rejected when the courts ruled they adequately addressed each element of the alleged offense and fairly informed Gowadia of the charges15. For example, Counts One, Two and Three each indicted Gowadia of violating the 18 U.S.C. §§ 793 € and 2.

Prosecutors argued Gowadia had:

unauthorized possession of, access to and control over information relating to the national defense, and having reason to believe that such information could be used to the injury of the U.S. and to the advantage of any foreign nation, did willfully communicate, deliver, transmit… information relating to the national defense to a person not entitled to receive it…

Charges associated with Counts Four, Five, and Six touched on the unlawful export of services, articles, or technical data regarding national defense information. Counts Four, Five, and Six alleged that Gowadia “did knowingly and willfully export and attempt to export classified technical data.” This breach in data was in relation to the development of “infrared suppression technology for a foreign military aircraft and containing information classified at the Top Secret level concerning a defense system of the U.S.” Gowadia disseminated the classified information to foreign officials or

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business partners “without having first obtained a validated license or written approval from the U.S. Department of State, Directorate of Defense Trade Controls.”

XI. Verdict Gowadia's conviction took prosecution two years to secure. Gowadia’s family and defense attorney argued against the charges by supporting that the information released could also be publicly obtained.

Nevertheless, two years was considered a long time for the due process to take place.

According to Special Agent Mohajerin, Gowadia changed counsel midway through the trial requiring time for the new counsellor to receive the necessary security clearance. Aside from that, the investigation took such a long time because it was difficult to determine what evidence was classified and what wasn't. According to indictments, the government claimed to have discovered that Gowadia may have passed on classified information on B-2 bomber’s unique propulsion system to officials and partners in Germany, Israel, Liechtenstein, and Switzerland.

The judge said Gowadia failed to show remorse for his actions. Gowadia was convicted on 14 of the original 17 counts.

When asked to make a statement about this incomplete conviction, Special Agent Mohajerin replied he was unable to answer, further explaining that the jury had deliberated over the case and suggesting that he and others respect the court’s opinion and verdict.

Special Agent Mohajerin remains firm that Gowadia is guilty on all counts. The jury came to a unanimous decision for Gowadia to receive a possible life-threatening sentence. But the judge ordered for 32 years of incarceration at a super maximum security prison. Gowadia was convicted of five criminal offenses related to his design for the PRC, including three counts of illegally disclosing classified information relevant to the national security of persons to those not entitled to receive such information. And he was also convicted of exporting classified

15 UNITED STATES OF AMERICA, Plaintiff vs. NOSHIR S. GOWADIA, Defendant. CRIM NO. 05-00486 HG-KSC.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII 2006 U.S. Dist August 25, 2006.

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information on the stealth bomber, illegally keeping the documents at his home, money laundering and falsifying tax returns for the years 2001 and 2002.

Ultimately, sentencing decisions are the purview of a judge presiding over a specific case; and in every case the decision making factors differ. For instance Walter Kendall Myers, a former State Department official, was sentenced to life imprisonment in the District of Columbia on July 16, 2010 for conspiring against the U.S. and releasing highly-classified military defense information to the Republic of Cuba.

Dongfan Chung, a former Rockwell and Boeing engineer, was sentenced to over 15 years in prison after being convicted of economic espionage and his role as an illegal agent of the PRC. He was convicted of stealing classified and restricted technology and Boeing trade secrets. As for Chi Mak, a former engineer for the defense contractor Power Paragon, he was sentenced to more than 24 years in prison for his attempts to obtain U.S. naval warship technology and illegally export such classified material to the PRC. Chi Mak was convicted of two counts in May 2007. One count of attempting to violate export control laws and another for his role as an illegitimate agent to a foreign government.

The DOJ explained that Gowadia received over 30 years of imprisonment in maximum security because he was involved in one of the most important military defense projects of the U.S. (B2 stealth bomber) and disclosing highly classified information was detrimental to the nation. For example by the exposure of U.S. military arsenal capabilities, the risk of penetrating into the U.S. airspace with the new technology, and destabilizing the equilibrium of power between the United States of America and other countries.

XII. Future Lessons The prosecution of Noshir Gowadia and other espionage related cases should serve as a warning to others in an effort to prevent the transmission of U.S. military classified information to China. Such cases have serious implications for U.S. national defense

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as well as the welfare of the American people. Assistant Attorney General Kris applauds the excellent performance and teamwork shown by the prosecutors, analysts, and agents (especially the ones from the FBI and the Air Force) who were responsible for Gowadia’s case. US Attorney Nakakuni also expressed her gratitude towards the FBI, AFOSI, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, the State Department’s Directorate of Defense Trade Controls, as well as the IRS Criminal Investigation Division for their assistance in obtaining the espionage, arms export, tax and money laundering convictions. Former AFOSI Commander Brigadier General Kevin Jacobsen said the Gowadia case set the standard for interagency collaboration and teamwork in cases specifically focused on protecting the nation from harm. Special Agent Mojaherin observed that the teamwork shown by the different law agencies was “spectacular and drew upon the expertise of a variety of participants from several agencies.” He continues to advise that excellent teamwork between agencies is extremely important, both within the FBI and with the USIC partners. “The collaboration between special agents, intelligence analysts, financial analysts and others was critical – as was the close collaboration with the USIC partners,” according to Special Agent Mohajerin. Ken Sorenson, the assistant of the U.S. attorney, says that individuals will continue to be pursued and convicted accordingly should they be found guilty.

When Gowadia was sentenced to the maximum number of sentences at the BOP’s Supermax facility, it demonstrated that justice was found in this case. Especially considering it involved highly classified and sensitive information. Despite the damage having already been done and nearly impossible to reverse, Gowadia’s conviction of 32 years at a federal prison provides reassurance to many that he is incapable of committing treason(s) to the U.S. again.

Special Agent Mojaherin believes that Gowadia was fairly prosecuted and received a significant penalty. It is important to note that Gowadia’s sentence not only addressed

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the espionage crime activities he committed, but the several false international identities he established to disguise his income and other ill obtained gains.

When asked about the lessons law enforcement agencies obtained, Special Agent Mohajerin stated that he had no opinion – although he elaborated that it is common sense that each agency learns from their experience. He did not comment on the flaws that may have occurred during the investigation process, arguing that he is not in a position to judge. The DOJ commented that any individuals such as Gowadia whom are convicted of providing classified information to a foreign government should receive a punishment that acts as a deterrent to others. The DOJ further elaborated that it plans to continue collaborating with its partners in law enforcement agencies as well as the Intelligence Communities (IC) to seek out others who may be providing classified information to those not entitled to receive it.

XIII. Implications for U.S. Law Enforcement Agencies Foreign nations, particularly the Chinese, adopt a multipronged approach to collecting intelligence from the United States of America. In a 2005 report to the Congress of the US-China Economic and Security Review Commission, it found that:

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America. Among the 6.5 million individuals, there have been significant numbers of naturalized citizens who have been charged and convicted of severe national security crimes. Crimes including but not limited to terrorist activities, espionage, etc.

Irrespective of that, the ability to accurately detect spies and potential criminals among naturalized American citizens is a needle-inthe-haystack proposition. Simply accusing one without any justification or proper evidence will result in the worst possible outcome of McCarthyism. In light of these difficult odds, it is paramount for the immigration department to critically examine applicants prior to granting them approval for naturalization and subsequently when considering the removal of their citizenship status should they commit offenses that put the nation’s security at risk in the future. In 1996, Department of Justice (DOJ) and Office of Inspector General (OIG) conducted an investigation on the accelerated naturalization of applicants for alleged political gains and found a significant spike in the demand for naturalization early 1993, resulting in application backlogs throughout the country.

According to W.D. Reasoner17’s (2013) research, the federal government and the DHS do not have a systematic approach in place in terms of investigating national security related cases, particularly in establishing a method to derive lessons from previous cases. For example, there have

the technology that China is developing and producing is increasing in sophistication at an unexpectedly fast pace. China has been able to leap frog in its technology development using technology and know-how obtained from foreign enterprises in ways other developing nations have not been able to replicate16.

Over the last decade, about 6.5 million individuals have been granted citizenship in

16 United States. 2005 Report to Congress of the U.SChina Economic and Security Review Commission.

109th Cong., 1st sess. Cong. Rept.

17 According to CIS website, W.D. Reasoner (a pseudonym) is a retired government employee with

many years of experience in immigration administration, law enforcement, and national security matters. http://cis.org/Reasoner

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been no attempts to de-naturalize individuals whom have committed a serious offense involving nation’s security and wellbeing. Section 349 of the Immigration and Nationality act (INA), codified at 8 U.S.C. §1481 provides that:

(a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality…(7) committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating any of the provisions of section 2385 of title 18, United States Code, or violating section 2384 of said title by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction18.

convicted offenses.

of

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serious

national-security

XIV. Conclusion This case study emphasizes the growing number of threats America is facing regarding the relationship between naturalized citizens and espionage. While this study specifically discussed acts of espionage committed by Noshir Gowadia, it demonstrated real life examples of U.S. citizens betraying their nation by disclosing classified information/documents to Chinese counterparts.

Therefore the conclusion to be drawn is that U.S Counterintelligence must remain vigilant19 and on constant alert to the changing security status of U.S entities, the threat posed by foreign governments such as the Chinese, and the citizens potentially willing to commit treason against the nation for their own personal gain.

In spite of this, Reasoner further reported that the American government does not have a central body of information about naturalized citizens whom have been

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18 Federal treason and treason-related criminal offenses may be found in Title 18 of the United States Code, in Section 2381 through 2390.

19 Vigilance, in this context, should include but not limited to a mandatory Insider Threat training that specifically caters to the misuse of cyber and

recognizing the early signs of espionage activity.

Oftentimes, the acts of “trusted” individuals within the organization misusing and exploiting the sensitive computer systems go unnoticed until it’s too late i.e. leaked on the Internet platforms such as WikiLeaks, blogs, and etc.

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Baker Hostetler, (2015). Managing Anti-Corruption and Export Control Risk in the Aerospace Industry. Retrieved from https://www.bakerlaw.com/webfiles/Understanding%20Anticorruption%20Laws%20in% 20the%20Aviation%20Industry_p13.pdf Bigdeli, Z., and Reza, M. (1378). General International Law. Tehran, Ganj-e- Danesh.

Blum, H. I Pledge Allegiance: The True Story of the Walkers: An American Spy Family. Simon & Schuster (NYC), 1987.

Cicero, M.T. (63 BC). Second Catiline Oration. In M. F. Caldwell (1965). Cicero's Prognosis.

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Demarest, G.B. (1996). Espionage in International Law. UC Davis Journal of International Law and Policy, Vol.24, 321-326.

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MALGORZATA J. ZUBER AND SU YOONG GOH MARCHESE

BIOGRAPHY

Malgorzata Zuber was accepted into the UMass Lowell Criminology and Criminal Justice Ph.D. program in fall 2012 and currently holds ABD status. She obtained her M.Ed. and LL.M. from University of Rzeszow in Poland, and M.A. in Criminal Justice from UMass Lowell. She is also employed as an Instructor at Alvernia University in Pennsylvania.

Her primary research interests include: immigration policy, intersection of immigration and criminal law, comparative research on migration issues, and public policy making.

Emily Goh-Marchese was accepted into the UMass Lowell Criminology and Criminal Justice Ph.D. program, Option in Terrorism Studies in the fall of 2015. She received her double degree in Economics and Finance from Royal Melbourne Institute of Technology (RMIT) before pursuing her Master’s Degree in Criminal Justice at UMass Lowell and graduating in fall, 2012. Apart from being a Doctoral Fellow Teaching Assistant, she is also a part-time Research Assistant.

Coming from an international background and diversified culture in Malaysia, she is deeply interested in International Terrorism (particularly within the Asia Pacific region), Preradicalization, Psychology of Terrorism, Ethno-Nationalist Separatist and Irredentist Groups, Terrorism Economics and International Counter-Terrorism Policies.

THE NORWICH REVIEW OF INTERNATIONAL AND TRANSNATIONAL CRIME VOL. 1, 2ND EDITION