The Tangle of Terrorism

Tung Yin, professor of law, unravels the complex legal issues surrounding domestic and international terrorism.

Tung Yin, professor of law, unravels the complex legal issues surrounding domestic and international terrorism.

In early December, shortly after the attempted bombing of the holiday tree-lighting celebration in Portland’s Pioneer Courthouse Square, Tung Yin became a media rock star.

“That was a crazy time,” says Yin, professor of law, who teaches criminal law, criminal procedure, and national security law at Lewis & Clark Law School. “I was inundated by calls from the local and regional media—the Oregonian, the Portland Tribune, radio stations, television news, talk shows. I even got media calls from French and Swiss reporters based in Washington, D.C.”

The case that attracted all the attention and made Yin an in-demand legal authority focused on Mohamed Osman Mohamud, a 19-year-old Somali-born naturalized U.S. citizen. The youth allegedly tried to detonate a van filled with explosives at Portland’s popular tree-lighting ceremony the day after Thanksgiving. Unbeknownst to the would-be bomber, his accomplices were undercover FBI agents and the “bomb” was actually a dud.

Yin says the failed bomb plot raises thorny legal questions.

“Mohamud’s actions are generally undisputed, but what’s the legal status of his actions?” Yin asks. “Was he entrapped by the government? If federal officials implanted the idea of the crime and induced its execution—or if they bribed, coerced, or threatened him—it would mean he wasn’t really committing the crime himself.”

According to FBI affidavits, law enforcement officers were careful to allow Mohamud to develop his own terror plot and gave him plenty of opportunities to back out. However, the FBI failed in its attempt to tape a critical early meeting with the suspect. “That’s bad for the government’s case, because everything else that occurred afterward doesn’t matter if at that first meeting FBI agents gave him the idea about the bombing,” says Yin. “We should assume the agents aren’t lying in the affidavits, but they may have omitted parts of the conversation, or they could have used nonverbal gestures that had an impact on what Mohamud did.” The lack of a recording, Yin explains, might even be viewed as an intentional omission by jurors who are skeptical of the government.

The public won’t know the outcome of the case until it goes to trial in federal court, which will not be until much later this year at the earliest.

The Rise of National Security Law

National security law surrounding domestic and international terrorism was largely uncharted territory on September 11, 2001, when the terrorist attacks in New York and Washington, D.C., killed nearly 3,000 Americans. Much of American national security law has been developed since then—and it continues to be refined and interpreted by Congress and the courts.

In previous wars, like World War II, we could identify a definite end—usually, the signing of an armistice or a peace treaty. But we don’t know when this terrorism war will end. Tung Yin

“Before 9/11, national security law was largely oriented toward the Cold War,” says Yin. “A lot of it was about foreign relations, nuclear disarmament—even space law.”

At that time, law schools weren’t interested in national security law. In 2000, a friend of Yin’s attended the national employment conference for aspiring law professors in Washington, D.C., and listed his major interest as national security law. Faculty recruiters told him, “That’s the stuff of Tom Clancy novels; it’s not real law.”

But when Yin attended the same employment conference in fall 2001, just one month after 9/11, he encountered a changed landscape. He says the law schools in attendance were “keenly interested” in terrorism and national security law as an area of research.

Yin, whose scholarship spans legal issues arising in both domestic and international terrorism, says one of the reasons terrorism raises more questions than traditional warfare is that legal conventions like the laws of war may not apply. “Terrorism differs from other types of violence in that the goal is to intimidate or coerce a civilian population or the government into acting or not acting,” he explains. “Terrorism also targets civilians, or noncombatants, which is something not allowed by the rules of war.”

One area of Yin’s research focuses on the detention of prisoners at Guantanamo Detention Center in Cuba. “How do we know the people we’ve caught are really bad guys as defined by Congress?” he asks. “The armed conflict with Al Qaeda and the Taliban isn’t like World War II. These guys aren’t wearing German uniforms. It’s hard to distinguish between who’s a civilian and who’s a combatant.”

He points out that, early on, the United States offered bounties of $5,000 to $15,000 for each captured Taliban member. “A lot of people we thought were members of Al Qaeda or the Taliban turned out to be neither. They were likely rounded up and handed over to us because of the bounty we were offering.”

Additional legal questions surround how long governments can detain prisoners and if and when they should be released. “In previous wars, like World War II, we could identify a definite end—usually, the signing of an armistice or a peace treaty. But we don’t know when this terrorism war will end. People have been captured, but how will we know when they should be released? If they haven’t been convicted of a crime, what kinds of hearings should we have to determine if we still have grounds for holding them?”

Misconceptions Abound

A problem with creating effective national security laws and policies is that the public has a lot of misconceptions about terrorism and may, therefore, support bad policies or oppose good ones. It’s one of the reasons Yin writes a blog.

Yin says many Americans believe that terrorists are largely poor and uneducated. Neither is necessarily true. “People think terrorists come from conditions of poverty that drive them to terrorism. But consider the 9/11 leadership. Osama bin Laden came from a wealthy family. Ayman al Zawahiri, the number two in command, trained as a medical doctor. Mohammed Atta, one of the lead 9/11 hijackers, was educated as an engineer in Germany. Khalid Sheikh Mohammed, the mastermind behind the plan, also studied engineering. Knowing this should inform our foreign policy approach to terrorism—the causes of terrorism are far more complex than poverty and lack of education. The ‘foot soldiers’ are, in fact, often poor and uneducated, but they are not nearly as dangerous as their leaders.”

Many people also believe in the existence of a profile that should help us identify terrorists. “In 50 years of studying terrorism, researchers have concluded there’s nothing that can pinpoint terrorists reliably,” says Yin. “They’re not psychopathic or sociopathic. They’re not crazy. Some of them are politically or religiously motivated, but we can’t assemble an accurate profile to identify people who are terrorists.”

Knowing what we know now, we might look back and say the balance between national security interests and individual freedoms was tilted too much against security. But if we change that, we may encounter too many abuses. This is all part of the trial and error involved in national security law.Tung Yin

Finally, as part of that imagined profile, many Americans believe all terrorists are Muslim. “People will say, ‘I understand that not all Muslims are terrorists, but all terrorists are Muslim.’ Or, ‘Who’s ever heard of a non-Muslim suicide bomber?’ As it turns out, there are both Muslim and non-Muslim terrorists and suicide bombers,” says Yin. “Research shows that suicide bombings tend to arise under certain conditions which are not necessarily limited to predominantly Islamic countries.”

Hollywood’s depiction of terrorists and legal issues surrounding terrorism and national security doesn’t help either. It’s why Yin uses popular TV shows like 24 and movies like True Lies, Navy Seals, and the Executive Decision to make the issues more accessible to his students. As he and his students consider the implausible (though highly entertaining) scenarios depicted on screen, they also explore legal and moral problems in national security law.

“Before 9/11, Hollywood portrayed Arab terrorists as bumbling and incompetent; now they’re portrayed as ruthless and highly skilled,” says Yin. “But Hollywood never gives viewers a sense of why these terrorists might be doing what they’re doing. It’s just ‘kill Americans,’ and that’s problematic.”

Finding Balance

National security law is a rapidly evolving field, a fact that presents its own challenges. Yin says civil libertarians and others, including people in the Clinton Justice Department, had legitimate concerns that instruments like Foreign Intelligence Surveillance Act (FISA) warrants could be used too easily to spy on U.S. citizens. So “walls” were erected between various government intelligence agencies and law enforcement groups, preventing them from sharing information.

“Before 9/11, when it came to questions of foreign surveillance, the balance was tilted against security,” Yin says. “In the summer of 2001, CIA officers were tracking Khalid al-Midhar, one of the 9/11 hijackers, as well as one of his compatriots.

They passed that information onto the FBI, but the intelligence side of the FBI felt the divide between different branches of law enforcement prevented them from sharing the information. The 9/11 Commission concluded this was a critical intelligence-sharing failure. The U.S.A. Patriot Act amended the FISA statute and lowered the wall.”

Laws like the Patriot Act and new technologies like electronic surveillance of e-mails and cell phone usage put a new spin on old First Amendment questions. “If you know the government may be spying on you and it inhibits what you’re willing to speak about or what you decide to research, then freedom of expression is still lost—regardless of the form of that expression.”

Yin notes that former President George W. Bush used a “brilliant piece of rhetoric” when he addressed these freedom of expression concerns by stating, “If Al Qaeda is calling you, we want to know why.” That was Bush’s defense of the National Security Agency’s warrantless electronic surveillance of U.S. persons’ telephone calls.

That’s too simplistic, says Yin. “When you unravel it, the question is not whether we suspect a person of getting a call from Al Qaeda. It’s whether the government is monitoring millions of conversations and engaging in data mining to figure out which ones to listen to.”

Whether current national security statutes strike the right balance between ensuring national security and protecting individual freedom is still an open question. “Knowing what we know now, we might look back and say the balance between national security interests and individual freedoms was tilted too much against security,” observes Yin. “But if we change that, we may encounter too many abuses. This is all part of the trial and error involved in national security law. It’s complex work.”

About Tung Yin

Hometown: Los Angeles.

Family: Wife, Amy; two sons, ages 6 and 3.

Education: BS 1988 California Institute of Technology. M.J. 1992 University of California at Berkeley. JD 1995 University of California at Berkeley (Boalt Hall).

Professional Background: Previously served on the faculty of the University of Iowa College of Law from 2002 to 2009. Practiced law from 1998 to 2002 with Munger Tolles & Olson in Los Angeles, where he represented clients in white collar criminal defense and employment discrimination matters.

Teaching Areas: Federal criminal law, criminal procedure, and national security law.

The Yin Blog: Described as “Law, politics, pop culture, sports, and a touch of Oregon.”

Award-winning freelance writer Bobbie Hasselbring writes frequently for the Chronicle.

Photography by Robert Reynolds