Is the American Response to Foreign Threats Proportional?

by Sophie Haworth

It is undeniable that the increasing threat of international intrusion has had a significant impact on the composition and severity of American policy toward the perceived threat, with such responses becoming increasingly extreme. Though there are serious threats posed by internal terrorism and extremism in America, such as far-right groups or white-supremacist organisations, in this essay I will focus on the American response to external threats posed by factors such as terrorism and state surveillance, with a specific focus on the aftermath of 9/11. Increasingly antagonistic relations between the US and perceivably ‘hostile’ nations such as Russia and China have created vulnerabilities for failings in international cooperation, and arguably overreaction on occasion. Since the events of September 2001, the American intelligence services have been far more focused on perceived organised threats, with heightened security across all borders and constant monitoring of foreign groups and their prevalence within the confines of the US. There has also been increased vigilance regarding their vulnerabilities to foreign interference, such as through the claims of electoral fraud and state surveillance. However, it is clear to many entities that a nation with the gravitas and power of the US may be prone to over-reactive responses, especially in more recent years. Striking the delicate balance between underestimating the threat and overcompensating for the perceived dangers is a struggle of increasing consequence which? America still juggles to this day.

The reaction to 9/11 

9/11 was an indisputable wake-up call to America and her intelligence services. The issues were clear; the federal intelligence agencies failed to properly categorise and identify growing known risks, which could have acted to minimise or prevent the events of September 2001.  According to Jane Mayer, author of The Dark Side, 9/11 was ‘perhaps the worst intelligence failure in the nation’s history’ (p12). It was not a problem at a fundamental, composition level, rather a lack of utilisation of the resources already provided to them by the government. The fact that the FBI had even obtained a vital phone number, that of the future 9/11 hijacker’s father-in-law in Yemen, after the Al Qaeda attacks in Nairobi, constituted a severe oversight from the agency. These catastrophic shortfalls and the immediate aftermath of the attacks prompted arguably the most significant federal response to terrorism within the United States - the PATRIOT Act of 2001. It was preceded by the Antiterrorism and Effective Death Penalty Act of 1996, ratified under Bill Clinton, which, amongst other things, increased penalties for terrorism actions, as well as allocating the removal of so-called ‘alien’ terrorists and blacklisting and designating foreign terrorist organisations. This was a clear and demonstrative move against the increasing threat level from foreign organisations, especially focused on the Middle East. However, with the clear legislative and communicative shortfallings exposed by the Twin Tower attacks, it is evident that the American response at this point significantly underestimated the terrorist threat, or at least its imminence. Though bringing in such legislation acknowledged the national security implications of these foreign organisations, the basic framework established within these acts was not effectively utilised preceding the events of 2001, categorising the US response to terrorism as inadequate, and thus less than proportional.

The PATRIOT Act, however, sought to solve the underlying fundamental issues within the internal American intelligence community, creating provisions for more streamlined communication across the federal intelligence agencies, such as the CIA and the FBI. It is hard to overestimate the significance of this act in expanding the capabilities of federal agencies, especially with regards to personal surveillance; it authorised wiretapping for ‘terror-related crimes’ and broadened the accepted use of federal surveillance. It was an appropriate response to the exposed threats, and measured in its nature with its expiration date set for 2005 within the sunset provision of its terms. These increased capabilities were aimed to quell the sense of panic and anxiety instilled by the terror attacks, and their extension through the USA Patriot and Terrorism Reauthorization Act in March 2006 recognised the sustained need for such measures to protect national security. Although not satisfying the scope of the preferred reforms of senior intelligence figures, such as Cofer Black (the head of the Counter Terrorism Centre), who preferred the more radical methods set out in the Blue Sky Memo, it proportionately recognised the need for increased protection in response to terrorism.

However, it is clear that from abroad, nations, especially key allies such as Britain, were wary of American overreaction and the sanctioning of extreme measures.  According to Mayer’s The Dark Side, British delegates from the intelligence services, sent to the US in the immediate aftermath of 9/11, conveyed messages of ‘deep concern that the Bush Administration might be subject to overreaction.’ And it is clear their concerns were rooted in reality; following 9/11, ‘America became the first nation ever to authorize violations of the Geneva Conventions’. The legal departments authorised the ‘secret capture and indefinite detention’ of suspected ‘aliens’, or supposed foreign terrorist threats. It is apparent that the US was willing to undermine fundamental international agreements, and concepts such as habeas corpus, for the benefit of their own national security interests. This is a clear example of disproportionate action. These provisions included state sanctioned torture and abuse in the newly established terrorist holding site in Guantanamo Bay and the consequent CIA blacksites as a key response to the heightened terrorist threat. It is clear that provisions to condemn torture went unwritten due to their intimidatory benefits in the US war against terror. The vast array of techniques used was exposed after events in Abu Ghraib prison, and was symptomatic of a fundamental torture tendency across these American sites. Particularly prevalent was the use of waterboarding:

‘Although banned for use by the US military in 2005, the Bill did not cover the CIA, who went on to use the technique with government backing’ - G. Mitchell, GTMO Shames us all, 13 Feb 2021

In this way, British fears were confirmed.Through their legalisation of these questionable interrogation and holding techniques, the Americans demonstrated how successfully the terrorist threat had managed to get under their skin. Reactionary, yes, but also a deeply troubling, almost disproportionate reaction to this breach of security. Alongside their blacksite methods, the sitting government also authorised the creation and usage of ‘secret paramilitary death squads’ custom-made for the purpose of pursuing foreign terrorist threats. These groups would orchestrate assassinations of terrorist interests abroad; ‘under the new legal analysis, such killings were sanctioned as acts of national “self-defence”’. 9/11 triggered a response which few could have predicted. Far from the ‘Americans will always fight for Liberty’ messages widely distributed during the Second World War, Americans were now undermining the very ideal through their policy response. 

The sentiment in America was far more complex. Such a heinous security breach constituted an embarrassing failure. According to The Dark Side, many in America argued that ‘saving America from possible extinction justified virtually any means’. In this way, from an American perspective, these measures were all a justified and wholly proportional response to events, despite the misgivings of foreign professionals. The introduction of these principles seemed to satisfy the American public, outwardly demonstrating that the government was doing something in response.

One of the most immediate responses to 9/11 was George W. Bush’s executive order specifically targeting the assets and fiscal aspects of terror. It froze ‘the assets of named terrorists, terrorist groups, terrorist fundraising organizations’ to weaken terrorist networks, and to directly wound Al Qaeda. Furthermore, President Bush created the Foreign Terrorist Asset Tracking Centre within the Treasury to monitor terrorist fiscal actions. Such moves were measured and required, and were wholly proportionate to the evident risk. It is clear that the decision to utilise an executive order was also highly effective and a warranted decision, as it avoided the difficulties and formalities of legislating, providing a swift and effective response to events.

More publicly, however, the federal department’s response to 9/11 demonstrated a measured reaction. One of the main problems preceding the attacks was interdepartmental rivalry and hostility, especially between the CIA and FBI. This led to a lack of communication between the two entities, severely limiting the capabilities of the force. In 2002, the Homeland Security Act established the department of Homeland Security, effectively reshuffling a variety of government intelligence roles. This move reiterated the perceived need for an increasingly powerful and centralised government, with broadening and expansive capabilities, in order to effectively tackle the threat of terrorism. Though there were initially fears that the government had gone too far in their reaction, compromising the individual liberties of their citizens through wiretapping abilities, it became a more widely accepted, proportional measure during the following years, acknowledged as necessary in a time of such global hostilities.

“The United States must not adopt the tactics of the enemy. Means are as important as ends” (Report of the US State Senate Select Committee to Study Governmental Operations With Respect to Intelligence Activities, 1976). Such volatile tendencies of Washington’s overreactions, overcompensating for prior failures that led to the attacks in the first place, were exposed by the events of 9/11. The shortcomings of the CTC were ‘painfully mundane’, and ‘failures of management’, rather than a lack of ability to deal with the terrorist threat. This proves that the capabilities were arguably already in place before 9/11, and subsequent legislation was purely for public image. Thus, we subsequently see the compensatory actions of top officials, such as Cofer Black, demanding that the country go on ‘“...a war footing. NOW.”. The origins of this reactionary tendency can be linked to the grave reputation damage the United States government, and their federal agencies, suffered due to their catastrophic mismanagement. The political pressure exerted on the federal agencies played a significant role in determining their responses, especially at an outward level. Measures tended to be outwardly productive and hyper-publicitised in order to be seen as regrouping and rebuilding following the attacks. Though there were many within the government departments clambering for an escalation, such as Black, American policy did not reflect this wartime attitude thanks to the restraining actions of America’s allies and the inner workings of government.

Foreign Policy

Until 9/11, the threat of terrorism was seen as an international and, importantly, a foreign policy issue, leading to an arguably underestimated response. In 2001, ‘approximately 63% of all terrorist incidents worldwide were committed against US citizens’, proving the high-risk terrorism posed to Americans abroad, and thus the requirement for a wider-reaching federal response. As such, it was, and continues to be, vital that the congressional legislation reflects the continued need for global management of terrorist threats. The collaborative recognition of a foreign terrorist threat has catalysed international cooperation, including encouraging the US to ‘step-up intelligence sharing and law enforcement cooperation with other governments’, a proportionate and important measure in the continued prevention schemes. America views itself as a peace-keeping interventionary force, as demonstrated by its involvement in a variety of other wars, such as Iraq and Afghanistan. The main interventionary method adopted by the US is supporting economically unstable nationalism in order to prevent radical groups from being able to ‘exploit economic and political instability’ to galvanise their cause. Thus, it can be argued that American investment and the support of humanitarian work is inherently counter-terrorist. Such methods are moderate and measured interventions, which demonstrate a proportionate and comprehensive preventative scheme. It is evident that the stability of a national government is directly proportional to their effectiveness in preventing the expansion of a terrorist or radical presence, which has an inextricable impact on American security.

Creating and maintaining stability falls directly under America’s interests: ‘International terrorism is recognized as a threat to US foreign and domestic security, and it undermines a broad range of US foreign policy goals. Terrorism erodes international stability, a major foreign and economic policy for the United States. Terrorism undermines peace processes in which the United States has invested heavily’ - Terrorism, the Future, and US Foreign Policy, Issue Brief for Congress, 2002

The US policy response preceding 9/11 was heavily economic, with ‘US counterterrorism policy … [having] been heavily sanctions orientated’. Especially hard hit by these sanctions were the list of six state sponsors of terrorism published by the American government in 2001 (Cuba, Iran, Iraq, Libya, North Korea and Sudan), which included automatic actions such as a ban on munitions exports through the Arms Export Control Act. Though this method can be effective in incentivising reform within some of the governments of these nations (for example in Libya, which saw terrorism ‘sharply reduced’) they unintentionally drive resentment and suspicion of Americans by demonising their country, playing into the hands of terrorist/radicalist propaganda. This is emphasised by the fact that despite the plethora of sanctions, Iran was found to be the ‘“most active” state sponsor of international terrorism in 2000’. Furthermore, it creates further instability within the country, especially within the government, by withdrawing American funding, thus providing breeding grounds for terror and further violence.

In the foreign arena, America often went it alone. Further strengthened by the expansion of covert surveillance and operations after 9/11, the Executive had an increasing direct influence over foreign matters, often able to surpass Congress. The ‘Override Opinion’ reinforced, alongside a memorandum from the Department of Justice, the idea that ‘the President has the authority to violate customary international law .. should the national interest so require’.

“[A]s a matter of domestic law, the Executive has the power to authorize actions inconsistent with Article 2(4) of the U.N. Charter.” (Finucane) These allowances were highly controversial, and set a dangerous precedent in the political sphere. Though the international risk posed by terrorism was and continues to be high, this memorandum again compromised American integrity in their war against terrorism, in a similar vein to their responses directly following 9/11. In this way, they were a disproportionate and unnecessary compromise in the campaign.

Amongst the fallout from the attacks on the Twin Towers was heightened monitoring of high-risk individuals, such as Osama bin Laden. The decision by President Barack Obama to ultimately take the ‘50-50…flip of a coin’ chance demonstrated an assertive and proportional measure. The opportunity to take out the terrorist leader signified the importance of individual actions within extremist organisations, and the changing targets of American policy. This covert operation had been planned and examined for years, and was an ultimately necessary measure, despite the associated risks. This change in focus also reflects the evolution of foreign national security threats, with a greater number of so-called “lone wolf” terrorist activities emerging, which are harder to track and less predictable. This, in turn, also contributes to and justified the increased wiretapping and cyber-spying capabilities of the federal agencies.

These relics of an international past regarding terrorism and surveillance translate to the current day, and continue to dictate American foreign policy regarding perceived threats, most recently demonstrated by the delayed decision to shoot down the suspected Chinese surveillance balloon over the Atlantic. The American willingness to cooperate with some unstable nations and their continued suspicion of others, such as China, speaks to their awareness of the foreign threat posed by such a nation. The ultimate decision to down the balloon and immediately launch patrols to recover debris was an explicit and public example of the continued management of foreign threats and American interests, which was arguably a proportional response, not only destroying the threat but also sending clear messaging to volatile nations. Despite the potential for escalation in this case, the response was measured and proportional, after US officials had tracked the object ‘from Montana all the way to the Carolinas’.

Overall, the proportionality of America’s foreign policy to perceived foreign threats since the turn of the millennia have been mostly justified. Short-term events, such as the hit on Osama bin Laden, were the most successful moments in this domain, this event in particular acting to end the extended saga which had continued for a decade following 9/11. It demonstrated the capabilities of the American forces, and was widely proportional due to the threat he posed as an individual. However, long-term strategies, though not over-proportional and arguably mild, were not the most effective. Economic sanctions undermine any sense of remaining stability in countries prone to extremism, and are arguably counterproductive in the foreign policy realm. Additionally, they could be considered an underwhelming reaction to the serious threat posed to America by foreign organisations.

Cyber-terrorism

Though it is clear that the nature of terrorism has evolved since the attack on the Twin Towers, it still presents a serious threat to the security of America through its various forms, whether that be homegrown, internet-based or foreign. Nowadays, there is a greater emphasis on cyber-terrorism, as seen through the suspected Russian-led mass hacks on federal software in 2020, even hitting the institution responsible for the American nuclear weapons arsenal. The potential for this emergent domain to act as a key vulnerability for homeland security is increasingly clear, with the capacity for grave damage to be done to infrastructure and classified information. Even so-called ‘homegrown violent extremists (HVEs)’ are progressively inspired and trained by ‘Foreign Terrorist Organisations (FTOs)’, further exacerbating the foreign terrorist threat, through far more elusive methods. The security of national documents and information is threatened more and more as hacking methods and capabilities expand, requiring an immediate legislative response in order to protect American interests.

The threats posed by cyber hacking have been prevalent in the previous decades, with high profile governmental leaks damaging American interests and security, as well as their reputation abroad. A recent example of this is the April 2023 Pentagon document leaks, in which an individual was able to post images of often classified and top-secret branded documents onto social media sites such as Discord and Twitter. Though not classed as terrorism, it demonstrates a clear need for heightened governmental security. Furthermore, the systematic vulnerability arguably proves a need for reform, denoting an underwhelming and less-than-proportionate response to cyber threats. However, what is also evident is that the United States is not the only country suffering such breaches; for example, France’s National Assembly site was taken down by Russian hackers, and Poland suffered a hack of its official tax service website. This increasingly global issue mainly plagues the West, acting to heighten suspicions between these nations and frequent perpetrators, such as Russia, China, Iran and North Korea. Due to the nature of these hostilities, effective legislation is hard to implement. The White House has placed greater emphasis on the responsibility of private companies to implement secure cyber measures across their networks as one way of tackling the threat from the ground up, establishing the ‘Shields Up’ campaign as their federal response. Although this is clearly not an over-reactive measure, as the cyber risks posed are well-documented and wide-reaching, it can be argued that a federal approach may be more effective and proportionate to risk.

As well as the threats to the data and security of private businesses, the US faces a significant challenge to the security of their state and local governments, including attacks on ‘school systems in New Mexico and Ohio’ as well as ‘the city of Quincy, Massachusetts’.

“For hackers, state and local governments are an attractive target. We must increase support to these entities so that they can strengthen their systems and better defend themselves from harmful cyberattacks.” Rep. Joe Neguse (Cybersecurity Exchange)

This support came in the form of the State and Local Government Cybersecurity Act of 2021, which provided for ‘collaboration between the Department of Homeland Security (DHS) and state, local, tribal, and territorial governments, as well as corporations, associations, and the general public, regarding cybersecurity.’ It proves that the government has recognised the risk, on a more localised level - the legislation acts to expand co-operational capabilities and grant more assistance to organisations to help combat and prevent cyber issues. It is clear however, that despite attempts, legislation will never keep up with the pace of the ever-changing cyber domain, with new vulnerabilities exploited in different operating systems each time. American policy, like that of many other nations, will struggle to fully protect themselves from the foreign threats posed to their online infrastructure, and thus will never be fully proportional to risk.

An extension of these hacking threats is the exposed susceptibility to cyber interference concerning foreign elections:

‘The US government is actively defending against foreign interference and influence operations in US elections, specifically by focusing on how adversaries seek to undermine US interests and prosperity’ (NSA Public Affairs)

Though the aim of electoral cyber terrorism is not always to disrupt the process of elections, the hackers do aim to cause panic and undermine their legitimacy through the use of an ‘unremarkable cyber incident’. Especially vocal about the issue of electoral fraud, former President Donald Trump has claimed that ‘election interference at a scale never seen before’ was the reason for his unsuccessful 2020 campaign. Though not specifically targeted at foreign entities, it demonstrates that the validity of elections, especially in an increasingly digital world, is under speculation. In a sphere such as America, these issues have the intended effect, causing ‘more than 40% of Americans [to] … not believe that Joe Biden legitimately won the 2020 presidential election’. This form of foreign threat has far-reaching consequences, undermining the very foundations of the American republic: democracy. By damaging the premise of the United States, electoral interference, or the threat of it, requires a comprehensive response from the American government. However, due to the covert nature of this brand of interference, it is difficult to provide a direct and up-to-date legislative response to cover all routes. Instead, the American response has been through the publishing of continual reassurances from the various federal agencies about the absence of recorded interferences, and their continual work to prevent such breaches. In Foreign Threats to the 2020 US Federal Elections, a recently declassified document published by the National Intelligence Council, they acknowledge the attempts of countries like Venezuela, Cuba and Iran, but most predominantly Russia, to interfere with the federal election in 2020, through mostly cyber-based routes. However, they also reinforce the fact that no attempts were made to ‘alter any technical aspect of the voting process’ in these elections. Such responses are vital to invalidate interference claims by individuals such as Trump, and proportional to the risk of reputation damage and damage to the validity of elections.

In recognition of the difficulties presented by tackling cyber threats, it is hard to classify proportionality as there are few legislative documents directly addressing such issues. The potential for cyber security breaches such as electoral fraud is present, as demonstrated by the variety of attempts presented by foreign entities at both the 2016 and 2020 Presidential elections, but it is clear that the government has ensured heightened security and monitoring of its federal bases through the National Security Agency and frequent reporting. The fact that there has never been a documented successful breach demonstrates that the current policies/legislation are wholly proportionate and effectively blocking attempts. Though it is impossible to safeguard from the eventuality entirely, the government are taking reasonable and proportionate action in regard to the threat, including removing ‘TikTok from all government-issued cell phones’ as a precaution, in order to reduce their vulnerability on a federal scale. The only area regarding cyber security where further extensive action may be required is on a more localised level. For example, something such as a federal introduction of mandatory security measures for private businesses would be a relatively easy area to tighten cyber security, with cyber security benefits being able to be felt on a national level.

Conclusion

Overall, it is evident that America is continually faced with a variety of threats, whether foreign, virtual or homegrown. The evolution of government policy and general reaction to such threats and organisations has evolved rapidly since the turn of the millennia, catalysed by the events and shortcomings of 9/11. They have been measured and proportionate in some areas of policy, notably with foreign policy, where select decisions (such as taking out Osama bin Laden) have demonstrated clear successes of their work. However, there was a tendency in the period immediately following 9/11 to overcompensate for prior intragovernmental failings with extensive legislation, which was arguably surplus to requirements and disproportionate to shortcomings. Additionally, decisions such as the Override Opinion and their continued use of state-sanctioned torture in Guantanamo Bay and the CIA blacksites demonstrate the tendency for American responses to perceived threats to be disproportionate to reality, considerably harming their human rights reputation and consequently damaging their own position in an increasingly international world. The growing threat exists in a virtual world, with cyber security the emerging salient issue to be tackled. Though it is unlikely official congressional legislation will be able to keep up with changing methods and technologies, America must continue to protect national security interests, as their response so far has been restrained. The lack of localised legislation (especially for private companies), has damaged their unified response to the threat, and represents a key area for improvement to compensate for so-far underwhelming protections. In conclusion, the American responsibility to be a figurehead for fighting foreign threats will not go away, and threats will perceivably continue to expand in the following decades. The shift of foreign threats to a more cyber-based world must be reflected in legislation in order for the US to proportionately shield themselves, but it is important such measures against threats/terror continue to go through formal processes in order to prevent snap reactions from the Executive branch, which are often more vulnerable to disproportionate reactions. Due to America’s unique international role, constant evaluation of the proportionality of its measures is vital to safeguard a variety of domestic and global interests.

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