Walking in Our Enemies Shoes: A Review of Mike German's Book "Thinking Like a Terrorist"

By Jeffrey Breinholt

It used to be that FBI agents rarely published their insights. With very few exceptions, the ghost of J. Edgar Hoover seemed to watch over their shoulders, even after they retired. Things have changed. In the last decade, we have seen memoirs by Buck Revell, I.C. Smith, Danny Coulsen, and Louis Freeh. It was against this backdrop that I ordered a copy of Mike German's Thinking Like a Terrorist: Insights of a Former FBI Undercover Agent (Potomac Books 2007).

I came at German's book with a certain amount of suspicion. I have been working in the Department of Justice's counterterrorism program for over a decade, and know most of the FBI agents involved in the area, at least by reputation. Until I saw Thinking Like a Terrorist, I had never heard of German. There was also the marketing enticement in the book's inside cover, which describes how the author left the Bureau "after blowing the whistle on the agency's mishandling of a terrorism case." I half expected this to be a volume that breathlessly recounted how a brilliant agent used his superior wits against a lethal adversary, only to be hung out to dry by his D.C.-based superiors.

Fortunately, Thinking Like a Terrorist did not confirm this skepticism, and I came away pleasantly surprised. It turns out I do not know everyone I should. Trained as a lawyer, German is a deep thinker, and his book is a serious work and a worthy contribution to counterterrorism literature, even for those who do not buy all of the his arguments.

There is a reason I never came across German - his counterterrorism work occurred exclusively in the field, mainly California, and targeted homegrown radicals. This experience drives his thesis: that FBI operations against international terrorists should not deviate from how it goes after domestic terrorist threats. Where the FBI relies too much on intelligence methods, it ignores traditional law enforcement tools, in which disruption actions must be justified by admissible evidence and the targets prosecuted only when their ideology leads to imminent violence. In German's world, as the FBI moves away from it law enforcement ethos, it sends the wrong message that the U.S. counterterrorism efforts are not limited by the rule of law, and this inadvertently legitimizes the terrorists.

While I do not subscribe entirely to German's thesis, he is absolutely right on a number of points. He accurately notes that effective American counterterrorism requires us to take the moral questions out of the equation, to avoid the temptation to classify terrorists as psychopaths, and to obviate the thorny issue of defining terrorism, something that has eluded the United Nations for years. He is also correct that arguments over where to draw the line between civil liberties and collective security in the United States have been going on non-stop since the days of COINTELPRO in the 1970s, and that we should find a way to create substantive crimes that allow us to reach further into the terrorist infrastructure and further back in time from their attempts to blow people up. As he notes:

Do we have to wait for assailants to actually strike us before we can fight back? Can we resist when they raise their clubs? How about when they threaten violence? And who gets to say what force is reasonable under the circumstances? If these questions aren't fairly resolved we might find ourselves slipping into the perpetual warfare state that Hobbes envisioned, where it’s every man for himself.

The single best insight German offers would, if further developed, go a long way towards solving the problem of defining terrorism and what is referred to as the "terrorist/freedom fighter" dilemma.

As German notes, the definitional problem seems intractable in international fora, since so many nations began as independence movements in which the victors threatened violence against the controlling governments in the name of national aspirations. Defining terrorism to include all revolutionary efforts means de-legitimizing the way certain countries historically came into existence.

To avoid this, German offers an interesting model in which the legitimacy of non-official violence is determined by level of relative fascism of the governmental system that the assailants oppose. It is based on country's attributes suggesting a free society, what German refers to as the "Government Accountability Scale." He lists a number of attributes of a non-fascist government (free and fair elections, freedom of press, legal protections of minorities) and states:

The more fascist features the government has, the more closely it would fall toward the fascist end of the scale; and the more features of a free government, the closer it would place toward the free government end of the scale. When a terrorist attack against a government occurs, rather than trying to evaluate the terrorist's argument that his violence was justifiable, we could just look where the victim government fits on the Government Accountability Scale.

This model would allow us to label political violence as beyond the norms of international law, even if it treated the same types of attack as not, depending on their locus and their motivation. Fascist states would have less reason to complain when their populace raises weapons against prevailing authorities, and they may be forced take corrective action to make political violence less legitimate. This idea is the most valuable observation of Thinking Like A Terrorist, even if German does not answer the question of how “legitimate” political violence resulting in some official capitulation will not inevitably empower terrorists elsewhere. German does not take this model further. For this, hopefully we can rely on others, or for him to write more.

German is, in my opinion, also correct on an important point that drives his thesis: contrary to popular belief, the FBI's failure to connect the dots before 9/11 was not because it was too law enforcement oriented. If anything, the Bureau relied too extensively on intelligence collection and counterintelligence, which involve sources and methods that are more difficult to disclose even when justified by the promise of a righteous criminal prosecution. This tendency, which was apparent and frustrating to counterterrorism prosecutors like me before 9/11, was exacerbated by perverse institutional incentives that developed over time and made the FBI unable to disclose to prosecutors intelligence on U.S.-based terrorist supporters who may ultimately be susceptible to surveillance under the Foreign Intelligence Surveillance Act (FISA).

Thankfully, this state of affairs was altered by the PATRIOT Act and the subsequent decision by Foreign Surveillance Review Court that finally eliminated the intelligence/police wall that had existed since July 1995. Prior to these changes, FBI counterterrorism investigations generally did not involve prosecutors trained to look for good cases. The result was almost like official voyeurism: monitoring forever, without a clear action in mind.

Because German cut his teeth on domestic terrorists - those homegrown radicals who were not taking orders from foreign handlers - he naturally thinks that the FBI can effectively combat the international brand of terrorist purely through law enforcement tools which do not depend on monitoring communications suggestive of their ideology. For him, the FBI could focus solely on international terrorists when they reach a point of threatened violence, something that many people (including me) find too perilous. This would make an assessment of their ideology, which he claims is too fraught with constitutional risk, irrelevant.

Here, German may overlook the real reason the FBI handles international terrorism cases differently from domestic terrorists that were his prey. It is not merely a bureaucratic habit. Rather, it involves having authority to conduct more expedient electronic surveillance on U.S.-based agents of foreign powers. This broader authority has to do with Executive Branch power in national security and foreign affairs, which generally does not exist when the targets are domestic individuals and entities. The disparity is codified in the distinction between the requisite showing to obtain FISA surveillance authority versus wiretaps in the course of purely criminal investigations. Where FISA information is lawfully collected, the government may use it in criminal prosecutions, assuming it is willing to bite the bullet and declassify the fact of the FISA and the resulting intelligence. Plenty of criminal cases since 9/11 have been made with FISA intercepts.

Does this type of surveillance result in collection of intelligence dealing with the targets' ideology? Sure it does. Is that so bad? Hardly. Ideology, after all, is a valuable predictor of violence, and a factor in choosing counterterrorism actions to thwart it. We would be remiss not to go up to the constitutional limits of our surveillance authority.

This is the main area where I disagree with German: if our surveillance powers are broader when targeted at U.S.-based individuals who are taking orders from abroad, we should not relinquish that authority for the sake of being perceived as nice guys by our enemies. I also am not convinced that the FBI's efforts to attack ideologically-inspired violence necessarily results in disparate treatment, something German argues with liberal reference to David Cunningham's Something Happening Here: The New Left, The Klan, and FBI Counterintelligence (University of California Press 2004). I read that book when it first came out, and remain amazed by its fallacious claim that the FBI in the 1960s systematically targeted leftists groups more aggressively than the Ku Klux Klan.

I have some other minor disagreements with Thinking Like a Terrorist, which do not take away from my overall favorable impression of it. I am not convinced by German's claim that the creation of the crime of "providing material support" - the single most effective counterterrorism law enforcement tool in American history, and a tidy way of accomplishing much of what he advocates in the book - has led to the radicalization of Muslims, nor that the USA PATRIOT Act information-sharing rules permitted the government to use secret evidence contrary to the rule of law. With the latter, German may have fallen into a common trap, made frequently by civil libertarians. To be clear, in the U.S., secret intelligence must be declassified for the government to use as evidence, which is to say that there is no such thing as a secret trial, despite what some accused terrorist financiers have occasionally argued.

Though he describes his undercover work that led the conviction of several white supremacists, German's description is not overheated or dripping with braggadocio, a common failing of memoirs by former cops, especially those who work with ghost writers. German is not in that category. His narrative voice is measured, and his war stories are designed illustrate the larger themes of the book. In the end, despite these disagreements, I found German convincing more often than not. He is correct on the things that matter.

For example, he is dead on that crafty legislation and good lawyering can take ideology out of the equation for the jury. He notes that, to effectively reach an ideologue planning to commit a bombing,

[The legislature] might strengthen laws restricting access to bomb-making materials perhaps or increase penalties for sending explosives through the mail. Those efforts would be fine because they focus on the criminal conduct and not the political motivation behind the conduct.

This valuable realization underlies some of the great historical examples of prosecuting terrorists for non-terrorist crimes, like my favorite case in which an ex-Green Beret named Eugene Tafoya was successfully prosecuted in the 1980s for failing to report the assassination fees he earned from Mohammar Ghadaffi on his federal tax returns. Good lawyers will find a way to make intelligence actionable, including creating crimes that we know are precursors to violent operations, and which are fed by an intelligence stream about which we may already be privy.

German qualifies as a good lawyer. Despite his enthusiasm for a more limited counterterrorism apparatus in which the United States would voluntarily relinquish some of its surveillance powers that have been constitutionally upheld, Thinking Like a Terrorist is a valuable book for ongoing discussions about how the United States can more effectively attack terrorism while maintaining our proud legal traditions. I hope Mike keeps at it.

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