![](media/image1.jpeg){width="4.4in" height="0.9986111111111111in"}

**Testimony of Prof. Amos N. Guiora**

**Professor of Law, S.J. Quinney College of Law**

**University of Utah**

**guioraa@law.utah.edu**

**"The Resilient Homeland: How DHS Intelligence Should Empower America
to Prepare for, Prevent, and Withstand Terrorist Attacks"**

**U.S. House of Representatives, Committee on Homeland Security**

**Subcommittee on Intelligence, Information Sharing, and Terrorism Risk
Assessment**

**May 15, 2008**

**[TABLE OF CONTENTS]{.underline}**

**I.
[Introduction]{.smallcaps}\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\.....3**

**II. [Understanding the
Threat]{.smallcaps}\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\....3**

**III. [Effectively Countering the Threat While Preserving American
Values]{.smallcaps}\.....4**

**IV.
[Accountability]{.smallcaps}\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\....7**

**V.
[Resiliency]{.smallcaps}\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\....7**

**VI.
[Conclusion]{.smallcaps}\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...13**

**[Appendix-A Matrix for Determining
Effectiveness]{.smallcaps}\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...14**

**[Appendix-B Matrix for Implementing
Accountability]{.smallcaps}\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...20**

Prof. Amos N. Guiora[^1]

S.J. Quinney College of Law, University of Utah

**[[The Resilient Homeland: How DHS Intelligence Should Empower America
to Prepare for, Prevent, and Withstand Terrorist
Attacks]{.underline}]{.smallcaps}**

# Introduction

To ensure a resilient homeland in a post-9/11 society, the United States
must have a homeland security strategy that (1) understands the threat,
(2) effectively counters the threat while preserving American values,
(3) establishes a system of accountability, and (4) creates
public-private and federal-state partnerships facilitating intelligence
sharing and the continuity of society in the aftermath of an attack.

It is necessary to work with clear definitions of the terms and concepts
that frame this strategy. As I have previously articulated, "one of the
greatest hindrances to a cogent discussion of terrorism and
counterterrorism has been that the terms lack clear, universal
definitions."[^2] For this reason, I will provide clear, concrete
definitions of all key terms relevant to articulating strategy necessary
for a resilient homeland.

# Understanding the Threat

### Terrorism: Recommended Definition[^3]

> I define **terrorism** as:
>
> **Terrorism:** Acts of politically based violence aimed at innocent
> civilians[^4] with the intent to cause physical harm, including death,
> and/or conducting psychological warfare against a population aimed at
> intimidating it from conducting its daily life in a normal fashion.

I have chosen the definition above because it captures the core elements
of terrorism in clear and concise language. In reviewing scholarship and
terrorists' writings, the overwhelming impression is that causing harm
(physical or psychological) to the innocent civilian population is the
central characteristic of terrorist action. The available literature
articulates that harming civilians is the most effective manner---from
the terrorist mindset--- to effectuate their goals.

While causing death or injury to the innocent civilian population is the
"means to the end," I also suggest that intimidation of the population
is of equal importance from the terrorist perspective. The
emphasis---whether resulting in death, injury, property damage, or
intimidation---is the attack, in whichever form, on the innocent
civilian population. Accordingly, government must develop
counterterrorism policies that protect the innocent civilian population.

In addition, the importance of impacting "daily life" cannot---and
should not---be underestimated. Terrorism is a daily grind; it must be
understood in the context of daily attacks rather than one-time,
dramatic-effect attacks (such as 9/11). Smaller, more frequent attacks,
while perhaps less "dramatic," have a much greater long-term effect on
an innocent civilian population than does a one-time major event whose
undeniable short-term effect may not linger.

#  Effectively Countering the Threat while Preserving American Values

###  {#section .unnumbered}

### A. Counterterrorism: Recommended Definition {#a.-counterterrorism-recommended-definition .unnumbered}

> I define **counterterrorism** as:
>
> **Counterterrorism:** The term must be viewed with two prongs
> (separate, yet of equal importance): the actions of a state, proactive
> or reactive, intended to kill or injure terrorists and/or to cause
> serious significant damage to the terrorist's infrastructure[^5] and
> re-financing (financing) of socio-economic depressed regions of the
> world and educating communities regarding democracy and its values

Counterterrorism "is a never-ending war of attrition conducted in baby
steps comprised of some victories \[and\] some defeats." Defining
counterterrorism is inextricably linked to the definitions and limits of
terrorism. Counterterrorism must also be considered in the context of
domestic balancing, international law, judicial activism, intelligence
gathering, and interrogation of detainees.

Furthermore, any useful definition of counterterrorism requires a
recognition of critical attributes of operational
counterterrorism---"actionable intelligence, operational capability, and
an understanding that swift victory is, at best, a fiction."[^6]
Counterterrorism in civil democratic societies must also be "conducted
according to the rule of law and morality in armed conflict."[^7]

I propose that "operational counterterrorism is *effective* if the
terrorist infrastructure suffers serious damage, thereby preventing a
particular, planned attack from going forth and postponing or impacting
plans for future attacks."[^8] It is important to note, that "the damage
is not permanent; terrorism cannot be defeated. However, the tactical
impact of the measures above should not be minimized . . . . \[B\]y
attacking the terrorist---rather than the state sponsor---the
effectiveness model described above is not strategic and therefore
inherently limited."[^9]

### B. Homeland Security: Recommended Definition {#b.-homeland-security-recommended-definition .unnumbered}

> I define **Homeland Security** as:
>
> **Homeland Security:** A group of preventative measures undertaken by
> a state in an attempt to reduce the probability that a terrorist
> attack will occur. This strategy will be fluid, constantly reassessing
> the balance between rights of the individual and rights of the state.
> A realistic strategy must prioritize threats according to their
> probability and imminence.

Priorities must be established according to the limits, both
ideologically and fiscally, that the American people will support. In
examining government policy in the aftermath of 9/11 the lack of a
concentrated and realistic focus is dramatically apparent. In seeking to
address "all" possible threats, the policy was, in actuality, not a
policy.

Numerous state, federal and municipal agencies must work together to
ensure public safety in the United States. These include law enforcement
agencies, the military and intelligence gathering and analysis realms,
public health, and emergency response sectors, which coordinate
activities with the community's utilities, infrastructure,
transportation, police and fire personnel. Job security, education, and
community values in the aftermath of an attack are critical components
of homeland security.

Executive branch documents name two particular areas the United States
must be protected against in the context of homeland security: first,
al-Qaeda, its affiliates (international and domestic), and those
inspired by them; and catastrophic events, including natural disasters
and man-made accidents.[^10] Scholars have suggested three priorities
with respect to homeland security: border security, critical
infrastructure protection, and intelligence analysis.[^11]

###  C. Effectiveness: Recommended Definition {#c.-effectiveness-recommended-definition .unnumbered}

I define **effectiveness** as:

This definition incorporates the following premises: (1) terrorism is
not "100% preventable"; (2) counterterrorism must have a short-term
(tactical) as well as a long-term (strategic) component; and (3)
counterterrorism must be conducted while balancing competing interests
of human life, financial cost, and civil liberty.

1.  *Terrorism is not 100% preventable*.

Security analysts are wont to frame recommended counterterrorism
measures in an effectiveness paradigm that demands "fool proof"
safeguards. However, it must be clearly stated that terrorism is not
100% preventable. A successful terrorist attack does not mean existing
counterterrorism measures are ineffective. The inverse is also true: the
absence of terrorist attacks does not necessarily indicate existing
counterterrorism measures are effective.

2.  *Counterterrorism must have a short-term as well as a long-term
    perspective*.

If a counterterrorism strategy only targets short-term threats, it will
likely overlook other (long-term) real threats. It is important to note
that terrorist organizations define effectiveness through the prism of
"long-term" strategic considerations.[^12] "To understand the terrorist
mind-set, it is necessary to appreciate the determination, resilience,
and single-mindedness with which terrorists work. Terrorists are willing
to engage in a 'war of attrition' with enormous personal hardship for
the individual and his immediate family to achieve specific goals.
Counterterrorism, both strategically and tactically, must be premised on
this reality. Engaging in a never-ending cycle of violence is one means
by which terrorist organizations signal to various audiences (the
general public, followers, and the relevant government) their commitment
to the cause.

3.  *Counterterrorism must be conducted in balance with competing
    interests of human life, financial cost, and civil liberty.*

"Finding a balance between national security and the rights of
individuals is the most significant issue faced by liberal democratic
nations developing a counterterrorism strategy. Without a balance
between these two tensions, democratic societies lose the very ethos for
which they fight. As Benjamin Franklin once said, 'those who would give
up essential liberty, to purchase a little temporary safety, deserve
neither liberty nor safety.'[^13] Indeed, it is imperative for
democracies to avoid infringing on political freedoms and civil
liberties. Yet, a government's ultimate responsibility is protecting its
citizens. This struggle to balance competing interests may be the most
fundamental dilemma confronting democracies today."[^14]

#  Accountability

A.  **[Recommended Definition]{.smallcaps}**

I define **accountability** as:

The 9/11 Commission Report emphasizes in detail the need for standards
of accountability in developing and implementing counterterrorism
measures. The 9/11 Commission correctly stated that "effective public
policies . . . need concrete objectives."[^15] That is, in the struggle
against terrorism, "agencies need to be able to measure success."[^16]

Without standards for accountability, Congress unwittingly creates an
unfettered executive. "An unfettered executive, unrestrained by courts
and legislatures, is detrimental to liberal democracies attempting to
balance national security and individual rights."[^17] Furthermore, when
neither the legislature nor the judiciary rein the executive in, the
former is bound to make mistakes whereby more-effective alternative
means are often overlooked. Particularly in the murkiness and
uncertainty of drawn-out amorphous operational counterterrorism, the
executive must know there are clear guidelines determining
accountability. Counterterrorism requires both strict separation of
powers and checks and balances.

# Resiliency

A.  **[Recommended Definition]{.smallcaps}**

I define **resiliency** as:

B.  **[Establishing Partnerships]{.smallcaps}**

Post-9/11 and in the wake of Hurricane Katrina, one of the most
important lessons learned by the United States was the dire consequences
of the break-down in communications between governmental agencies
amongst themselves and with the private sector. Ineffective
communication directly led to hesitation, confusion, lost time, and
ultimately lost property and lives. Effective cooperation and
coordination between governmental agencies within, and among, the
federal, state, and local governments is essential to achieving a
successful homeland security strategy. However, in order to realize
[resiliency]{.underline}, it is paramount that there is clear
cooperation and coordination between the public sector and the private
sector.

The importance of the pubic-private initiative is outlined in the
Department of Homeland Security's recent *National Response Framework*
("NRF"), which defines the roles and responsibilities of the government
(federal, state, local, and tribal) and the private sector (private
business and/or NGO). As articulated in the NRF, "Government agencies
are responsible for protecting the lives and property of their citizens
and promoting their well-being. However, the government does not, and
cannot, work alone. In many facets of an incident, the government works
with the private-sector groups as partners in emergency
management."[^18]

The NRF outlines five critical roles played by the private sector during
both disasters and terror attacks. *First*, privately owned critical
infrastructures such as transportation, private utilities, financial
institutions, and hospitals play a significant role in economic recovery
from disaster and terror incidents.[^19] *Second*, "owners and operators
of certain regulated facilities or hazardous operation may be legally
responsible for preparing for and preventing incidents from occurring
and responding to an incident once it occurs."[^20] *Third*, private
business "provide response resources during an incident---including
specialized teams, essential service providers, equipment, and advanced
technologies."[^21] *Fourth*, private entities "may serve as *partners*
in local and State emergency preparedness and response organizations and
activities."[^22] *Fifth*, private entities play an important role "as
the key element of the national economy, private-sector resilience and
continuity of operations planning, as well as recovery and restoration
from an actual incident, represent essential homeland security
activities."[^23]

A necessary component to establishing a resilient homeland, therefore,
is a viable public-private sector partnership that is based on (1)
*defined roles and responsibilities*, (2) articulating a coordinated
*prevention-response plan*, and (3) repeated *training or simulation
exercises* using the prevention-response plan against realistic
disaster/terror scenarios.

1.  *Defined Roles and Responsibilities*

In forging lasting partnerships between the public and private sectors,
the private sector (private business and/or NGO) must define its role
and responsibilities relative to the public sector on all government
levels (local, state, and federal). Agencies such as the New York Red
Cross must work alongside FEMA and the NYPD in an effort to respond to a
disaster or another terrorist attack. These partnerships must be created
using individual liaisons to private and public entities predicated on
clearly defined roles and responsibilities and open and frequent
communication.

2.  *Articulating a Plan*

The private sector must work closely with the public sector to
articulate, develop and implement a disaster/terror prevention
prevention/response plan. Such a plan must implement the clearly defined
roles and responsibilities outlined above. Additionally, a proposed plan
need take into account multiple scenarios addressing prevention and
response thereby ensuring that different entities are seeking to achieve
similar goals. The plan will ensure that different organizations see the
"big picture" and know their particular responsibilities within the
larger framework.

3.  *Training and Simulation*

Fundamental to creating and maintaining the public-private sector
initiative is consistent training and simulation exercises. Members of
the private and public sector should conduct scenario based, simulation
exercises (together and separately) with respect to the proposed plan.
These exercises must include realistic disaster scenarios subject to
real-life time constraints testing the effectiveness with which both the
private and public sectors respond to complicated and complex attacks
and disasters. Such training and simulation will ensure that the public
and private sectors understand---both theoretically and
practically---the vital necessity of cooperation and coordination. Such
scenario based simulation exercises---in highlighting existing
institutionalized and systemic weaknesses---most effectively facilitate
the development of an effective homeland security strategy.

C.  **[Goals for Partnerships]{.smallcaps}**

Public-private partnerships, if properly developed and implemented, are
the key to economic recovery. Such a partnership---in the aftermath of a
disaster or attack---facilitates the resilience of critical
infrastructure including transportation, utilities, financial
institutions, and hospital care. By strategically strengthening
security, sharing intelligence, and creating plans for post-attack
procedures (including evacuation plans, transportation plans,
identifying places of refuge, and providing basic supplies to aid
first-responders) such partnerships become the key to a secure and
resilient homeland.

1.  *Prevention & Resiliency Through Intelligence Sharing*

The Department of Homeland Security (DHS) has provided excellent
guidance regarding how to frame intelligence sharing between the public
and private sectors. The importance of information before, during and
after a disaster or attack is vital to resilience. Information sharing
is, perhaps, the single most important aspect of successful resilience.
Information sharing requires government agencies (federal, state and
local) to share information both amongst themselves and with the private
sector. Furthermore, it requires that the private sector---subject to
existing legal and constitutional limits---share information with the
public sector. Successful information sharing requires cooperation and
coordination both internally (within sectors) and cross sectors (between
public-private entities).

The process must be institutionalized, requiring a fundamental
re-articulation of homeland security strategy. While various public
sector agencies are historically hesitant (predicated on policy, culture
and legal restraints) to share information with other agencies---much
less the private sector---the lessons of 9/11 and Katrina speak for
themselves. Resilience in the aftermath of either disaster or attack
requires federal, state and local government agencies to understand that
information sharing is vital to the nation's homeland security. That
information sharing process must include the private sector. Otherwise,
the mistakes of yesterday will inevitably re-occur.

To that end, DHS recommends that public and private agencies:[^24]

In addition, the National Infrastructure Advisory Council published a
report on private and public sector intelligence coordination and made
the following recommendations:[^25]

2.  *Providing Critical Infrastructure---Continuity Planning*

In order to play their essential role of re-establishing critical
infrastructure after an attack, private entities must have continuity
plans. These plans must take into account the known threats,[^26] which
are only "known" through intelligence sharing between the public and
private sectors, as discussed above. These plans must also take into
account the components essential to re-establishing the service that the
particular entity provides. These plans must provide details regarding
how the particular entity will promptly resume service, which may differ
depending on the form of attack. In addition, the plan must articulate
how the entity will communicate with the public sector after an attack
and what, if any, assistance the entity will surely or likely need from
the public sector in order to promptly re-establish service.

The United Kingdom has enacted legislation requiring contingency plans.
That legislation, the Civil Contingencies Act, requires certain private
entities to "maintain plans to ensure that they can continue to exercise
their functions in the event of an emergency so far as is reasonably
practicable."[^27] Specifically, entities are required to makes
arrangements to warn and inform the public, handle emergencies, and make
provisions to ensure that the entity's ordinary functions can be
continued to the extent necessary.[^28] To ensure effectiveness, the
legislation also requires entities enact training programs for those
directly involved in the execution of the continuity plan.[^29] To
assist the entities, the legislation requires local authorities to
provide advice and assistance to businesses and voluntary organizations
in relation to business continuity.[^30]

New York City has taken a first step at creating similar legislation.
New York City's Local Law 26 (2004) amended the existing administrative
code in relation to building safety in the city. [^31] In particular,
this new law requires owners of big buildings, in coordination with the
FDNY, to prepare detailed plans, train staff members and conduct full
evacuation drills of the entire building every three years.[^32] While
evacuation plans are an essential first component of a contingency plan,
they are not enough to establish even the hope for a resilient homeland.

The following is a list of suggested measures that would most
effectively facilitate resilience in the aftermath of a disaster or
attack:

# Conclusion

Not only the public sector, but also the private must contemplate
resiliency must before a terrorist attack occurs. Sophisticated
planning---based on scenario based simulation exercises\-- will
significantly contribute to creating a resilient homeland. The first
step to making the homeland resilient to a terrorist attack requires
defining terrorism, counterterrorism, effective counterterrorism and
accountability.

Terrorism poses a threat that cannot be eliminated. Nor can the
government truthfully claim that it will prevent all terrorist attacks.
While measures can be implemented to prevent attacks civil, democratic
societies must recognize that at some terrorist attacks will succeed. In
an effort to minimize *both* the chances of a particular attack and the
consequences of a successful attack it is necessary to create
public-private sector partnerships.. Such partnerships must be based
upon communication, mutual (subject to legal and constitutional limits)
information sharing and defined roles. Such partnerships will facilitate
the development of continuity plans seeking to ensure the restoration of
infrastructure vital to the nation. Resilience depends on such
cooperation; information sharing between and among the public and
private sectors is the essence of that relationship.

# Appendix-A {#appendix-a .unnumbered}

**[Matrix for Determining Effectiveness]{.smallcaps}**

The first step in creating an effective counterterrorism measure is
analyzing the threat. To that end, the following questions must be
answered:

Once these questions are answered, the threat can be placed on an
imminent continuum with the understanding that one large threat may be
comprised of smaller, more manageable, threats. The imminent continuum
has four major benchmarks: Imminent, Foreseeable, Long-range, and
Uncertain.

**Imminent** threats are those that are to be shortly conducted; as an
example a "hot" intelligence report suggests that a bomb will be
detonated *tomorrow* at 9:11 a.m. at a domestic terminal at JFK airport.

**Foreseeable** threats are those that will be carried out *within a
year* and are therefore more distant than an imminent threat. For
example, a foreseeable threat includes valid intelligence that indicates
that terrorists will shortly begin bringing explosives onto airplanes in
liquid substances.

**Long-range** threats are specific threats that may reach fruition at
an unknown time; for example, terrorist's training with no operational
measure specifically planned would fit in this category.

**Uncertain** threats constitute those that invoke general fears of
insecurity. As a result of train bombings in England and Spain travelers
in the United States might potentially or conceivably feel insecure
riding trains without bolstered security. This would be true regardless
of whether there is valid intelligence indicating terrorists intend to
start targeting trains in the United States.

Where a particular threat fits on the continuum of imminence necessarily
relates to the balance that must be struck between national security and
competing interests related to that threat. The following chart depicts
the imminence spectrum graphically. The threat of a terrorist attack is
listed from left to right, progressing from imminent to uncertain. The
vertical column on the left lists seven factors that counterterrorism
measures must balance in considering these threats. The balancing
factors include collateral damage, civil liberties, valid intelligence,
frequency of reporting, fiscal responsibility, geopolitical concerns,
and the rule of law. Understanding these factors is crucial and detailed
explanations are outlined below the chart. The triangular bars in the
body of the graph represent the relative priority placed on each of
these factors in the event of an imminent, foreseeable, long-range, or
uncertain threat of a terrorist attack. The thicker the triangular bar,
the greater the importance of the corresponding factor. For example, the
triangular bar representing the first factor, collateral damage, is
thicker for an imminent threat and thinner as it reaches an uncertain
threat. This bar indicates that collateral damage is more permissible
for imminent counterterrorism measures than for foreseeable, long-range,
or uncertain measures.

> ![](media/image2.png){width="5.440277777777778in"
> height="1.801388888888889in"}

1.  *Collateral Damage*

"Collateral damage requires a minimizing of loss of civilian life in a
military operation; proportionality requires that civilian losses be
proportional to the military advantage, which will be assessed as
follows: what were the factors in target selection and what were the
means and methods of attack?"[^33] Ultimately, the public is willing to
stomach greater collateral damage the more imminent a threat is.[^34]
However, alternative effective measures that would lessen collateral
damage must also be considered. In doing so, collateral damage becomes
only one of many factors to be weighed when selecting one measure over
others.

2.  *Civil Liberties*

"Liberal democratic societies that unilaterally decide on 'self-imposed
restraints' inherently limit their responses to terrorism."[^35]
However, "\[b\]alancing legitimate national security needs against the
rights of those individuals living in the nation is a true test of a
nation's adherence to democratic values."[^36] Any suspension of
constitutionally guaranteed liberty must be weighed against legitimate
national security considerations. That is a balancing dilemma that
decision makers must address.

3.  *Validating Intelligence*

To be valid, intelligence must be reliable, viable, and
corroborated.[^37] Needless to say, reliable, viable, and corroborated
intelligence may be difficult to obtain. In all circumstances,
reasonable effort should be made to obtain valid intelligence before
action is taken.[^38] However, the level of imminence dictates the
definition of reasonable (both with respect to the credulity of the
information and how much time is allotted to its corroboration).

4.  *Frequency of Reporting*

This factor encompasses the forthcoming accountability discussion.

Congress has mandated annual reports on terrorist threats.[^39] These
reports, however, are too infrequent for imminent and foreseeable
threats and possibly inapplicable to uncertain threats. Counterterrorism
measures taken to address imminent threats should be reported to
Congress after the threat has passed. Only in this way can Congress have
meaningful review of significant Executive actions.

Foreseeable threats should be reported to Congress when the threat is
identified. This reporting enables Congress to coordinate efforts,
emphasize to the Executive the need for balancing, and better understand
how various agencies are detecting and countering various threats.
Congress has appropriately addressed the need for annual reporting
regarding long-range threats.

Conversely, many uncertain threats will not fall within the scope of the
federal government.[^40] Threats that do, may appropriately be addressed
when agencies address long-range threats. State legislatures should
implement reporting procedures for uncertain threats that exist on a
state-level.

5.  *Fiscal Responsibility*

Financial costs necessarily limit the quantity of counterterrorism
measures a nation may conduct. With limited resources, government must
pick and choose which measures will most effectively counter short-term
and long-term threats. Although the need for fiscal responsibility
lessens as a threat becomes more imminent, careful planning for
potential attacks will allow careful use of financial resources even in
the face of imminent threats. This would, thereby, free resources for
countering long-range and uncertain threats. Thus, financial
responsibility needs to be considered not only in light of the threat
level of a particular threat, but in light of an overarching
counterterrorism strategy.

[]{.mark}

6.  *Geopolitical Concerns*

Counterterrorism necessarily raises international concerns because the
threat does not reside exclusively within a nation's borders. Opinions
of other states are not the only factors, but the court of international
opinion must be considered when selecting a particular counterterrorism
measure. Wrong choices cause the United States to lose global influence
or be an impetus that turns swayables into terrorists. If measures are
chosen under the consideration of geopolitical concerns, then weight
must be given to those that have the potential to impact geo-political
considerations.. Of course, in the light of an imminent threat,
geopolitical concerns do not weigh when creating deterrence strategies
for uncertain threats or strategies to counter long-range threats.

7.  *Rule of Law*

The rule of law protects free democracies and sets a basis for trust
between nations. In order to best adhere to the rule of law counter
terrorism measures should be drafted in advance of such an actual
threat. Such measures should dictate which laws may be relaxed and to
what extent when facing an imminent threat. To wait until a threat is
present denies government the opportunity to make careful and conscious
choices that will provide security to the public while balancing their
rights.

**[[Appendix-B]{.underline}]{.smallcaps}**

**[Matrix for Implementing Accountability]{.smallcaps}**

On a practical level, Congress must ask questions that enable it to
determine whether a particular counterterrorism measure should proceed
as defined, should be altered, or should be discontinued. The ultimate
conclusion (whether to continue, alter, or discontinue a measure) cannot
be reached by the answer to only one question, such as "what is the
financial cost?". Rather, the conclusion will be reached by recognizing
a balance between numerous factors. For example, the nation may be
willing to pay a higher financial price tag if the measure preserves
civil liberties to a greater extent than less-expensive alternatives.

The matrix below lists the questions that must be answered before
Congress should decide whether a measure should be continued, altered,
or discontinued. The matrix represents these three options graphically
at the top of the chart, from left to right. On the left, are the
questions that Congress must ask to determine whether a measure is
effective: (1) is the measure preventative, preemptive, or retaliatory;
(2) what is acceptable collateral damage; (3) what are the financial
costs; (4) what are the costs to civil liberties; (5) what are the
geopolitical costs; (6) how valid is the intelligence; (7) to what
extent does the measure follow the rule of law; (8) what alternatives
exist; (9) to what extend does the measure overlap with existing
measures? The body of the matrix includes horizontal spectrums that
allow for real-world answers to the accountability questions. Only after
answer all of the accountability questions can Congress determine
whether the particular measure should be continued, altered, or
discontinued. For complicated measures that elicit mixed results,
Congress can view the matrix and determine if the measure strikes a good
balance between answers that encourage implementation and answers that
encourage discontinuance or non-implementation. The questions in the
matrix, if asked in a timely manner, will lead to effective
Congressional oversight

![](media/image3.png){width="5.216666666666667in"
height="1.4069444444444446in"}

Preventative Preemptive Retaliatory

No Collateral Damage Significant Collateral Damage

Insignificant Financial Cost Significant Financial Cost

No Impact on Civil Liberties Significant Impact

International Cooperation Endanger significant relationships

Reliable, Viable, Corroborated No Verification

Follows Law & Intent of Law Disregards Law

No Better Alternatives Much Better Alternatives

No Overlap Duplicates an Existing Measure

1.  *Is the Measure Preventative, Preemptive, or Retaliatory?*

Preventative measures counter terrorism before terrorists are prepared
to strike. These measures work to prevent swayables from becoming
terrorists, destroy training camps and other terrorist infrastructure,
and strengthen nations that are vulnerable to terrorists. Preemptive
measures prevent particular terrorist acts from being carried out.
Retaliatory measures are emotional responses to terrorist attacks.
Preventative and preemptive measures can be considered self-defense.
However, retaliatory measures are unlawful.

2.  *What Potential Collateral Damage does the Measure Cause?*

While the goal is to minimize collateral damage, this factor is weighed
in light of the other factors. It is appropriate to balance collateral
damage with financial cost, cost to civil liberties, and risk to
personnel.

3.  *What is the Financial Cost of Conducting the Measure?*

Operational counterterrorism can be a costly endeavor. However, cost
must be balanced with the effectiveness of the measure (including the
measure's cost on civil liberties, collateral damage, the nature of the
target, and more).

4.  *What is the Cost to Civil Liberties of Conducting the Measure?*

Civil liberties define our democracy. When a measure proposes to suspend
civil liberties, Congress must decide whether there are alternative
measures that have a smaller impact in the context of legislative
oversight.

5.  *How Valid is the Intelligence that Led to Implementing the
    Measure?*

To be valid, intelligence must be reliable (to what degree is the source
reliable?), viable (to what degree can the threat actually be carried
out?), and corroborated (who or what else provides similar
intelligence). Unless circumstances such as an imminent threat warrant
otherwise, counterterrorism measures that infringe on the civil
liberties must be valid.

6.  *What Geopolitical Concerns Arise Due to the Measure?*

Ideally, the United States would work in concert with the other nations
of the world when conducting global operational counterterrorism.
However, achieving global consensus and support can be timely, costly,
and at times impossible. Yet, the United States must understand the
risks it takes when it conducts a particular measure unilaterally.
Decision makers must determine if they are willing to accept the
geopolitical consequences.

7.  *Does the Measure Follow the Rule of Law*

To be valid, counterterrorism measures must be rationally based on
Constitutional and legal foundations. Congress has a duty to create laws
that empower agencies but also to enact clear guidelines that limit the
agencies' power. Clear guidelines will enable the judiciary to hold
agencies accountable for their counterterrorism efforts. Further, clear
guidelines will instill with Congress greater control over
counterterrorism efforts.

8.  *What Alternatives Exist?*

Alternatives must always be identified and viable alternatives explored.
Without recognizing the alternatives, Congress cannot know whether a
particular measure is actually cost-effective.

9.  *To What Extent does the Measure Overlap with Existing Measures?*

Although a measure may pass the other nine explorations without pause,
this question is still significant. If a particular measure overlaps
with another existing measure, then one of the two measures should be
scaled back to the extent the two overlap to avoid unnecessary social
and financial costs.

[^1]: ^^ Professor of Law, S.J.Quinney College of Law, University of
    Utah. Publications include *Global Perspectives on
    Counter-terrorism,* casebook (Aspen); *Constitutional Limits on
    Coercive Interrogation* (OUP); *Understanding Counterterrorism*
    (Aspen, Fall 2008); and, general editor, *Annual Review---Top Ten
    Global Security Law Review Articles, Vol. I *(Oxford University
    Press, 2008). I would like to thank Tara Harrison, Pete Lattin,
    Rachel Otto, Rich Roberts, Evan Tea, Artemis Vamianakis, and Tasha
    Williams.

[^2]: [Amos N. Guiora, Global Perspectives on
    Counterterrorism]{.smallcaps} (Aspen Publishers 2007) \[hereinafter
    [Guiora, Global Perspectives]{.smallcaps}\].

[^3]: *Id*[.]{.smallcaps} at 5[.]{.smallcaps}

[^4]:

[^5]: [Guiora, Global Perspectives,]{.smallcaps} *supra* note Error:
    Reference source not found, at 139.

[^6]: *Id*.

[^7]: *Id*[.]{.smallcaps} at 140.

[^8]: *Id*[.]{.smallcaps}

[^9]: *Id*[.]{.smallcaps}

[^10]: *Id.* at 21.

[^11]:
    ###  Paul Light & James Lindsay, Council on Foreign Relations, Views of Homeland Security (2002); http://www.cfr.org/publication/6395/views_of_homeland_security.html. {#paul-light-james-lindsay-council-on-foreign-relations-views-of-homeland-security-2002-httpwww.cfr.orgpublication6395views_of_homeland_security.html. .unnumbered}

[^12]: [Guiora, Global Perspectives,]{.smallcaps} *supra* note 1, at 14.

[^13]: Benjamin Franklin, Pennsylvania Assembly: Reply to the Governor,
    Nov. 11, 1755. The Papers of Benjamin Franklin, Leonard W. Labaree
    ed., vol. 6, p. 242 (1963).

[^14]: [Guiora, Global Perspectives]{.smallcaps} *supra* note 1, at 19.

[^15]: "What to Do? A Global Strategy?", The 9/11 Commission Report
    (364).

[^16]: *Id*.

[^17]: [Guiora, Global Perspectives]{.smallcaps} *supra* note 1, at 75.

[^18]: National Response Framework (hereinafter "NRF"), Department of
    Homeland Security, (January 2008) at 18, available at
    http://www.fema.gove/pdf/emergency/nrf/nrf-core.pdf.

[^19]: *Id*.

[^20]: *Id*. at 19 (this legal responsibility is exemplified by the
    owners and operators of nuclear power plants obligated under federal
    regulations to maintain emergency plans and conduct training for a
    response to such an incident).

[^21]: *Id*.

[^22]: *Id*.

[^23]: *Id*.

[^24]: *Engaging the Private Sector to Promote Homeland Security:* Law
    Enforcement-Private Security Partnerships: New Realities Law
    Enforcement in the Post-9/11 Era, U.S. Department of Justice Bureau
    of Justice Assistance, September 2005, at vi, *available at*
    http://www.ncjrs.gov/pdffiles1/bja/210678.pdf.

[^25]: National Infrastructure Advisory Council Public Private Sector
    Intelligence Coordination Final Report and Recommendations by the
    Council, July 11, 2006, *available at*
    http://www.dhs.gov/xlibrary/assets/niac/niac_icwgreport_july06.pdf

[^26]: *See* Appendix A for a classification of "known" risks. For this
    discussion, all risks, including the imminent, foreseeable,
    long-range, and uncertain are considered "known" threats.

[^27]: UK Resilience: Business Continuity, May 7, 2008, *available at*
    http://www.ukresilience.info/ preparedness/businesscontinuity.aspx
    (last visited May 10, 2008).

[^28]: *Id.*

[^29]: *Id.*

[^30]: *Id.*

[^31]: *See* Jim Dwyer. Evacuation Plans Due for High Rises in New York
    City, [New York Times]{.smallcaps} (August 5, 2004), available at
    http://query.nytimes.com/gst/fullpage.html?res=9B03E2DA153CF936A3575BC0A9629C8B63
    (last visited April 11, 2008).

[^32]: *Id.*

[^33]: [Guiora, Global Perspectives]{.smallcaps}, *supra* note 1, at 63.

[^34]: The Geneva Convention states that minimizing collateral damage is
    a requirement of International Law and nations must limit collateral
    damage in times of war. Protocol Additional to the Geneva
    Conventions of 12 August 1949, and relating to the Protection of
    Victims of International Armed Conflicts (Protocol 1) art. 57 (2).

[^35]: [Guiora, Global Perspectives]{.smallcaps} *supra* note 1, at 19.

[^36]: *Id*.

[^37]: *Id*. at 242.

[^38]: *Id*.

[^39]: Sec. 216, H.R. 1, "Implementing the 9/11 Commission
    Recommendations Act of 2007," *available at*
    http://www.cfr.org/content/publications/attachments/911.pdf (The
    Assistant Secretary for Infrastructure Protection must compile an
    annual report notifying Congress of the following: 1. Changes in the
    infrastructure vulnerability from the year before 2. Explanation of
    the greatest risks facing the country 3. Recommendations to mitigate
    those risks.).

[^40]: "One example might be dissemination of preparedness information
    about potential threats and emergency plans. The state of California
    currently has a law pending that would 'require the State Department
    of Education to electronically distribute disaster preparedness
    educational materials and lesson plans that are currently available
    to local education agencies.'" Amos Guiora & Kyle McKenzie, *A
    Framework for Evaluating Counterterrorism Regulations*, Mercatus
    Policy Series, Policy Resource No. 3, 25--26 (2006) (quoting
    Assembly Bill No. 103, California Legislature 2005--06 Regular
    sessions, *Legislative Counsel's Digest*, last amended May 22, 2006,
    http://www.homeland.ca.gov/legislative.html).