February 2003 Volume 4, Number 2
Richard Horowitz is an attorney whose practice areas include corporate, security, and international matters. Mr. Horowitz holds a private investigator’s license and served in the Israel Defense Forces with the rank of Captain. He is a national media commentator on terrorism, competitive intelligence and trade secret law, and money laundering and has spoken about such matters at conferences around the world. In addition, Mr. Horowitz has published articles on competitive intelligence and the Economic Espionage Act, money laundering, intelligence, and terrorism. Mr. Horowitz also wrote the recently published entry on the Patriot Act for the Encyclopedia of Terrorism. Mr. Horowitz served as security consultant for a public relations event held for Bosnia under the auspices of the President of the United Nations General Assembly in 1993 and has prepared educational material for the United States Department of Defense.
Richard Horowitz’s Remarks
After September 11, for obvious reasons, terrorism has become an increasingly popular topic for discussion. The intricacies and details of these discussions are becoming more developed and specific. For example, this Roundtable is on Negotiating with Terrorists and Non‑State Actors, and its focus is on terrorism.
I would like to focus on a point which has been touched upon by most of the speakers, which is we must understand what it is we are dealing with in order to either possibly negotiate with terrorists or realize that negotiations would either be improper or counterproductive.
I strongly disagree with three things that I often hear. All three of them have been stated by the other commentators. First, that it is important to have a definition of terrorism. I think more important than the definition of terrorism is to understand terrorism through its characteristics. The definition is important, for example, for government agencies that have to work with a particular definition in order to trigger a statute. In order to understand what terrorism is however, a definition can be a constraint on developing this understanding.
Secondly, the notion that the objective of terrorism is to create fear is only partially true. In my opinion, with respect to Osama Bin Laden’s constituency, this assumption is incorrect. Bin Laden’s primary objective is not to create fear. Fear, in their minds, I believe is a worthwhile secondary objective, but their primary objective is to fulfill Allah’s will as they understand it. Creating fear makes Allah happier. The more fear they manage to instill in the West, the better they think Allah feels about them.
The third notion is that terrorists act out of desperation. Now it is true that desperate people may do crazy things. However, it doesn’t follow that anything done that seems crazy is done out of desperation.
I would like to focus on the difference in mentalities - the way we and Bin Laden’s constituency view things which can lead us to a discussion of whether negotiating with Bin Laden and other terrorist groups is worthwhile or possibly counterproductive.
I would start by arguing there is no terrorist group that perceives itself to be the aggressor. Instead, these groups feel they are fighting a defensive war. Every group knows - in its mind - it is fighting a defensive war because it has to defend themselves against the “real aggressor.” Bin Laden’s constituency, in their minds, is fighting a defensive war. The West declared war on them a long time ago, and, in their minds, they are fighting a thousand year war. They are fighting a defensive war that we started and we are clueless about what it is that we are doing. We have no clue that when we promote democracy, freedom, and liberty, what we are doing is declaring war on them because, in their minds, the world is not suppose to be democratic and free. In accordance with their ideology, the world is supposed to run according to the way Allah wants it to be run. Hence, by promoting democracy and liberty, we are declaring war on the way they believe their God, who created the world, wants the world to run. What they are doing by fighting back is just that – they are protecting the world against the war that we started, that we declared on them.
There is a book that was published several months ago written by Michael Mandelbaum; its sub-title is “Peace, Democracy and Free Markets in the Twenty First Century.  ” The book jacket talks about, for example, three ideas that dominate the world today. One of them is “democracy as the optimum way to organize political life,” the other two being peace and free markets. The book jacket continues: “While not practiced everywhere, they have – for the first time in history – no serious rivals.” Now, the actual title of this book is “The Ideas That Conquered The World.” So these ideas “conquered the world.” We are not sharing the world with people who have different views, rather we “conquer the world” with these ideas. If you look at The New York Times book review, on “The Ideas That Conquered The World” - the review’s introduction reads “Only freedom has a real future, Michael Mandelbaum argues.”
Now freedom is not the way that Allah wants the world to be run. That is precisely why, under the Taliban, people were not permitted to laugh or whistle in the streets. The Taliban had “morals police” walking the streets and whipping people who were laughing. If a woman’s veil fell down in the street, she would get whipped. Why were these people, who laughed or whistled in the streets, punished? Because if a person is that happy, then he or she is not thinking of Allah as much. The Taliban would not allow their people to be free because doing so does not encourage people to think of Allah. The Taliban would whip people to make sure that they were concentrating on what they were supposed to concentrate on - Allah.
Our system is different; let’s bring in some legal aspects to this. In the first year of law school, we all learn that there is no duty to rescue. So we all remember the hypothetical, you are on the beach enjoying yourself, you see a family next to you and their kid who is making noise walks towards the ocean. You think to yourself this is wonderful, he will walk into the ocean and be swept away and I will have my peace and quiet, and you do not notify the family. Cause of action? No. Let’s switch to trade secret law. Under trade secret law, you see that a competitor accidentally drops something from his briefcase which turns out to be confidential documents. If you pick them up and look at them, can you use that information? General principle, yes. Why? Because the document’s trade secret protection is lost due to the lack of reasonable precautions on the part of the trade secret holder. Now, what if your competitor is walking down the street and gets hits by a bus; his brief case flies open, and you see some documents on the street that are confidential. Can you pick them up and use them? Do they lose their trade secret protection? No. Why not? Because you are on notice that the fact that these documents are now in the street is not because of the trade secret holder’s lack of reasonable precautions. So you put the two together and what do you have? You see a competitor walking down the street and gets hit by a bus, he is lying in the street dying, and his confidential documents are also now in the street. He asks you to call an ambulance, otherwise he is going to die. Your response is, “I never liked you anyway, I am more interested in your documents.” You pick up his documents and he does not survive. Now, what legal trouble are you in right now? Put the two together, the case against you would be for misappropriating his trade secrets. The fact that you failed to save his life - no cause of action because there is no duty to rescue in our legal system.
My point is that Bin Laden understands this about our society. He may have been living in a cave in Afghanistan but he is not a caveman. He understands these principals, he understands that in our society, under that scenario I just described, there is a legal case for picking up the documents but not for not helping the man.
Take it another step. Who won the war in the Gulf in 1991? Iraq. Everybody knows that, and Bin Laden’s constituency and a lot of Iraqis are walking around, not believing the arrogance that we actually think that we won the war in the Gulf. They had their proof twelve years ago, but the proof today is that if we won the Gulf War, why is it that we need Iraq’s permission to inspect? We won the war and we need their permission? Of course Iraq won the war. Why do they think they won the war? First of all, who acted like victors in the war? Iraq did. What do you do when you win a war? You destroy and mutilate. That’s what the victors do, and who did that? Iraq - when they destroyed the oil fields. By doing so, they were showing that they were victorious.
What did we do? Americans thought that Iraq signed some form of document declaring the end of hostility. What do the Iraqis know we did? Saddam Hussein did not “sign” a document. All Hussein had to do was wave his hand and the armies of thirty nations fled the region. That is what happened. Iraq acted like the victor while the U.S. fled the region, and, in the minds of many Iraqis, they won the war. The proof today is that we need their permission to investigate and to inspect. So now, put it together, we have declared war on Iraq and Bin Laden by promoting democracy and freedom. We lost the war in the Gulf, they won the war. Here we declared war on them and this is not the war of economic interests nor of political ideologies, this war is far more significant. Bin Laden’s constituency is more convinced that they are right because they know they have God on their side. We have declared war on them and then we are telling them to listen, we are giving you the opportunity to negotiate with us because after all, peace, according to our way of life, is better than war. Yet war, to Bin Laden’s constituency, is their way of fulfilling Allah’s will to protect the world he created from our corrupt influences.
In their minds, the idea that we actually think that we want to promote the idea of negotiating with them, in my view, is just another example of the dishonorable way that we, in the West, conduct our affairs. Here, we are declaring war against them, and we at the same time are perverting and corrupting the world that Allah created. In our society, women can dress however they want, and we promote this, along with liberty and democracy. The hypothetical with the man being hit by the bus - they understand where our priorities lie. To them, this is an affront to the world that Allah created and they are fighting back in a defensive war to make sure that what we are promoting as the only alternative to the world, which is democracy, freedom, and liberty, is not going to be successful. I think that is a fundamentally important aspect of this issue.
These issues should be included in the decision-making process about negotiating with non-state actors. Of those commentators in favor of negotiations, ADR, and adjudication, their discussion does not remotely hint at an understanding of this dynamic or any dynamic similar to it.
 Michael Mandelbaum, The Ideas That Conquered the World: Peace, Democracy and Free Markets in the 21st Century (2002)
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