National Security Law & Intelligence Policy

Defining Terrorism: Perfection as Enemy of the Possible
by Wayne McCormack and Jeffrey Breinholt

Published on January 17th, 2007
For the past couple of decades, the world has been striving for a single, all-encompassing definition of terrorism. The current venue for these efforts is the United Nations General Assembly, embroiled in a prolonged unsuccessful attempt to negotiate a Comprehensive Convention on Terrorism, originally proposed by India in 1996. The committee assigned to crafting final language for this treaty adjourned in late November 2006, and is next scheduled to meet in February 2007. The competing sides in this controversy are each seeking the perfect definition for their respective purposes and making no progress, while there may be a possible definition on which they could compromise.

Being Wrong About the Big Issues
Review of Satanic Purses: Money, Myth and Misinformation in the War on Terror by R.T. Naylor
by Jeffrey Breinholt

Published on April 6th, 2007
These days, there is quite a bit of frustration about how much secrecy has engulfed post-9/11 American counterterrorism efforts. In law enforcement and intelligence, a certain amount of secrecy is inevitable, in order to preserve the sanctity on ongoing operations and sensitive source and methods. Cops and spies, after all, depend on the element of surprise. Meanwhile, we live in a democracy. The trick for any republic is to strike the proper balance between operational security and the public’s right to know what is being done by their government in their name.  One aspect of U.S. counterterrorism that has not been cloaked in so much secrecy is efforts to combat terrorist financing, in part because success depend so much on the private sector and international cooperation. American officials involved in anti-financing initiatives have been very open what they have been doing in Congressional testimony, public statements and articles since 9/11. To understand how the United States is tackling the problem of terrorist financing - our goals and methods - one need only have access to the Internet.

Muslim Employment Discrimination: A Legal Examination
by Jeffrey Breinholt

Published on September 7th, 2007
Since the 1960s, employees within the U.S. enjoy protection from workplace discrimination by rigorous federal anti-discrimination laws. We have a federal agency, the Equal Employment Opportunity Commission (EEOC), which receives and investigates complaints of discrimination by anyone within the U.S. If they EEOC finds discrimination, it can sue the offending employer on behalf of the affected employees. If not, it gives employees the right to sue themselves. Employment discrimination cases are typically heard in federal court, where the judges are good and the dockets efficient. Meanwhile, several cities and states have bolstered this regime with remedies that go beyond the federal nationwide minimum.  How have these systems worked for Muslim employees, many of whom come from countries where discrimination, if not institutionalized, is at least a fact of life? That is a question I set out to answer, through a systematic review of those cases in which Muslim employees here claim that they have been discriminated against in their jobs. I wanted to see how Muslim employment cases have evolved with the growth of Islamic terrorism in the United States, and as the volume of judicial opinion involving Muslim-related asylum claims has increased.

Courtroom Jihad and the Defense of “I am a Muslim”
by Jeffrey Breinholt

Published on October 29th, 2007
When you look into Sheik Omar Abdel Rahman’s eyes, you see nothing. It’s not because of the darkness in his soul, though some may claim that’s the case. Rather, it’s because he’s blind. This physical infirmity led American lawyers to claim that he was incapable of conspiring to wage war on the United States, by orchestrating an audacious plot to simultaneously destroy several New York City landmarks in the 1990s. His lawyers chose to ignore conspiracy law, which permits prosecutors to reach anyone who is party to the illegal agreement. Sheik Rahman was right in the middle of it. If he and his cohorts had succeeded, it is likely that the death count would have exceeded 9/11. They were caught before the killing started, through the help of an undercover informant. Rahman and nine other defendants were convicted.

Islam in American Courts: 2007 Year in Review
by Jeffrey Breinholt

Published on January 7th, 2008
The history of Islam in the U.S. courts is not a long one, which is a good thing. It means this aspect of legal history is easily digestible. Most of it comes from the last 25 years. We now have another year under our belts. Which cases from 2007 will future historians and strategists use to glean trends relevant to American national security? As I predicted several months ago, 2007 ended with highest number of American court opinions involving Islam of any in U.S. history. They totaled 888 cases (792 federal opinions and 94 state opinions).

The Strategic Challenge of Failed States
by Douglas Farah

Published on September 25th, 2006
The number of failed or “fragile” states has jumped in the past three years—from 17 to 26—according to a recent study by the World Bank, showing significant deterioration in the global security situation. The extent of the downward spiral is even more notable when compared to a similar World Bank study conducted in 1996 that found only 11 failed states. These While talking about the threat posed by failed states  is now accepted, the next step must be to build an understanding of what attracts different groups to what regions, mapping the overlapping networks among non-state actors and developing a strategy that denies these sanctuaries to enemies who are working hard to exploit and expand them.

Islamism and Stratagem
by John J. Dziak, Ph.D

Published on April 6th, 2007
A running reflection on the intelligence and counterintelligence problems posed by resurgent, militant Islam, especially in the post-9/11 era, that offers observations on these intelligence problems with an effort to identify and make sense of the deceptive dimensions therein. Such dimensions include not only active deception and manipulation activities undertaken by our adversaries, but the proclivities inherent in the doctrinal aspects of militant Islam itself. In that sense Islamic stratagems against the West are both explicit and implied within the theocratic culture of Islam. But they also embrace a tendency among much of the media and within US policy and intelligence to deny that there’s even a problem in the first place. These reflections draw on the author’s experience in intelligence and counterintelligence and graduate school teaching of the same subjects for over four decades.

Overlooked History: Islam, Warrantless Wiretaps, and Organized Violence
by Jeffrey Breinholt

Published on July 27th, 2007
As a legal researcher, I am constantly amazed at how many modern issues we think are unique to our time have been debated in the past and are discussed in old American court opinions. A few years ago, I wrote a law review article which described this phenomenon in relation to the then-hot debates on the USA PATRIOT Act. In it, I argued that the very same points then being made by critics of American counterterrorism efforts had been tried (and resolved) non-stop over the past 50 years, and that these critics should visit the law library before throwing around such words as "unprecedented." Lately, in the course of my ongoing research on Islam in the U.S. courts, I stumbled on another set of cases that demonstrate this dynamic. These cases involve whether Islam is, doctrinally, a religion of peace, and the implications and consequences of warrantless wiretapping by the FBI. Sound familiar?

The Challenge of Failed and Failing States, The Muslim Brotherhood and Radical Islam*
by Douglas Farah

Published on July 11th, 2007
The emergence of a generation of radical Islamist movements, the root of which is the Muslim Brootherhood, is fueld by twin, seemlingly contradictory phenomena: global integration through free trade, the dawn of the Internet age and mass migrations; and global disintegration as states implode, government structures fracture under the accumulated scourges of corruption, poverty and renewed ethnic rivalries, and the massive traffic in small weapons that gives more and more groups the possibility of waging conflict at very little cost.

Muslim Asylum Claims in U.S. Courts: A Legal Examination
by Jeffrey Breinholt

Published on October 8th, 2007
Is the U.S. a force of good in the Muslim world?This very question would seem outlandish to Al Qaida and to many of today’s foreign policy commentators. However, the answer is not so obviously answered in the negative. If one looks at the history of Islam in American courts, one notices a number of federal judicial opinions over the last decade involving Muslims who fear being deported by United States because of what will happen to them at the hands of fellow Muslims in their home countries.The situation is not reversed.With the exception of individual Americans who have been indicted by grand juries here, there are no overseas American refugee populations.That fact alone should give comfort to those who get tired of hearing the U.S. criticized for what we are doing in the Middle East.We have plenty of Muslims here, and they have no interest in going home, even when home happens to be an Islamic country.