Terrorism is as much a part of life today as the Super Bowl. While it is not likely that many will suffer physical harm from an act of terrorism, it is most likely that you will suffer from fear and apprehension in regard to a possible terrorist incident. How many have already thought, “Maybe the family shouldn’t fly on vacation this year?” How many have called a friend in law enforcement and said, “This may be silly, but is it safe to go to (pick a place)?” How many times do you feel somewhat frustrated, and even vulnerable, as you wait in the security check line at the airport or, increasingly, to enter a building? Those who resort to intimidation through acts of terrorism have already succeeded in implanting into the national psyche their message of fear. The use of random and often brutal violence in pursuit of a political objective is a cheap and easy tool. It makes no difference whether the act comes from a sophisticated international group with a sweeping political agenda, or from a deranged individual whose cause seems to many to be irrational. In either case, terrorists use violence and destruction to instill a climate of fear and intimidation. As a serious and increasing concern, the phenomenon presents us with not only security challenges, but it constitutes a new area of legal endeavor.

Background

The world of terrorism today is truly international. It affects U.S. citizens and U.S. companies as increasing globalization takes them abroad. Attacks which impact on U.S. interests come from every direction, ranging from an organized and well-financed Islamic group headed by Osama bin Laden, to huge explosions caused by Irish terrorists in the U.K, to a grenade thrown into a crowd in Africa. We often view terrorism as a foreign problem, and indeed this has been true. Acts of terrorism have been and are much more common outside our boundaries, but the impact is no different wherever the target is located or whomever is the target. A destroyed office building or damaged embassy abroad can have the same impact as a similar incident inside the U.S.

While much of the concern and awareness seems to center on acts abroad, there is clearly a growing domestic concern. In the last 10 years, there have been numerous acts of terrorism within the U.S. The perpetrators have included such groups as anti-abortion activists, pro-animal groups, various so-called “militia groups,” Islamic fundamentalists, and advocates of independence for Puerto Rico. The causes are almost equally from the political right and the political left, and some from what could be described as in the middle of the political spectrum. The common factors are the use of violence, the destruction of property, injury and death. People are sometimes direct targets, but often innocent bystanders are hurt or killed; property is an increasingly popular target. Considering the trend, building and company owners are being challenged to provide a secure and safe work environment, which adequately addresses the possibility of terrorism.

Security Issues

While the incident at the World Trade Center in New York was an attack planned by an organized international group with a high level of sophistication, the incident in Oklahoma City was perpetrated by a few disaffected people with virtually no resources. The vulnerability, however, was similar; each incident occurred in a building despite established security programs. However, few companies have any degree of real preparation; and the vulnerability of most U.S. companies and buildings to such an act is staggering. Whether the measures implemented include the collection of intelligence to gauge the possibility of terrorist activities, a program to guard against the placing of a bomb, or employee evaluation programs to help guard against a violent employee, most companies are poorly prepared and vulnerable not only to violence but to legal action by victims.

The need to be aware of the challenge of terrorism goes without saying, but formal awareness programs are increasingly requested and implemented. These often consist of a professional evaluation of the workplace and the implementation of specific training programs. To say to the employee, “Be alert!” is no longer sufficient and does not meet any sort of safety standard. In addition to employee briefings and programs, there is a growing demand for and emphasis upon professional site evaluations and surveys, coupled with the implementation of procedures and physical measures, which enhance security and minimize the potential for a successful terrorist act.

Examples of buildings as terrorist targets are common – the U.S. Embassies in Dar es Salaam and in Nairobi in 1998, other U.S. embassy targets throughout the Middle East from 1979 to the present, and U.S. military installations in Saudi Arabia. It is frightening that the incidence of such terrorism came to U.S. soil with the bombing of the World Trade Center in New York City, perpetrated by similar political thought as the attacks in Africa and the Middle East. Many may have found it more frightening still that we are breeding our own brand of terrorists, such as those who perpetrated the bombing of the Federal Building in Oklahoma City.

Building security in general must address a number of issues. Is the building capable of withstanding physical stress, such as that inflicted by nature (tornados, earthquake or excessive weight loads)? Is it capable of providing security to its occupants from unexpected and unwelcome intrusion (unauthorized visitors, armed or unarmed; thieves or rapists looking for the right opportunity)? Does it provide a work climate that is generally conducive to work, meaning a sense of security as well as actual security? Appropriate security measures have to fit within a sliding scale to accommodate competing needs for acceptable security and passable efficiency. In fact, a building that is wholly secure is likely to be perfectly inefficient; and a building that is wholly efficient is probably totally insecure. A careful balancing of needs is required to make certain that employees do not spend hours crossing security barriers, and to ensure that not just any visitor is allowed to pass freely in and out of any area. It might also be remembered that, where there is death or destruction, the security plan has failed.

Legal Implications

The complexity of the legal terrain has been further complicated with terrorist incidents, where the identity and personal responsibility of the perpetrators are often obscured by the existence of the larger group or some nebulous political agenda. Legal action against a perpetrator of violence, whether terrorist or common thug, has commonly been restricted to the criminal justice system. In many cases, the victim has been nameless and faceless while publicity and even fame are bestowed on the criminal. Think of what faces come to mind in recalling the bombings at the World Trade Center and Oklahoma City. With confusion by many average citizens over the realm of the courts, and the standards that they apply, many innocent victims have been left with a sense that the small measure of justice that they have received is all that they are due. In many cases, this might mean an award for financial losses to be reimbursed by the criminal, but which generally are poorly, if ever, enforced. Justice has typically meant complicated sentencing guidelines and procedures, which have often allowed criminals to be released early despite the pleas of victims and the families of victims.

Congress recognized the international impact of terrorism with the passage of 18 U.S.C. § 2332, Acts of Terrorism Transcending U.S. Boundaries. With this legislation, U.S. citizens and U.S. interests gain a measure of protection from violent acts of terrorism, as the U.S. says simply that no such act will go unpunished. Already there have been successful prosecutions under this statute; and it has allowed terrorists to be hunted down around the world and returned to face justice in U.S. courts. Civil remedies have also been made possible under U.S. statutes. One such judgment was recently handed down in a U.S. federal court when the Government of Iran was found to have complicity in, and thus responsibility for, the tragic death of a U.S. citizen, Alisa Flatow, at the hands of Iranian-backed terrorists in Israel (see Anne-Marie Lund Kagy, Suing A State Sponsor of Terrorism: Specialization and Teamwork, V6, n1, page 3).

While the Congressional legislation is a positive step, many legal issues remain unresolved. Terrorist incidents that were once unique and mind-boggling have become so common as to steel the community to take action and to demand redress. The hurdles that the victims of terrorism face include the need for the development of a standard of care in an area that has so recently developed that there appears to be no functioning standard of care. And, as to victims’ rights, there is a wholly separate area being carved out that relates to the location of victims, often within buildings that are targeted for reasons that have only a peripheral connection to the victims themselves, such as the children in day care facilities in the Alfred P. Murrah Federal Building in Oklahoma City. Equally difficult is building a sound legal case against terrorists due to the long and painstaking evidence-gathering process that often involves coordination among multiple investigative agencies and multiple countries.

Reconstruction of a terrorist attack site, particularly where there is a building targeted, may call for assistance from many sources. Did the builder, construction company and work crew perform their work to appropriate standards of care? Did the architect provide for extra fortifications that would withstand attack by man and by nature? Was a security plan developed and properly, actively implemented? Was the plan drafted by someone with reasonable credentials, possibly with a law enforcement background, or by someone who had little background or experience in security issues? Did the plan provide for high visibility of security personnel; did it provide for controlled entry of personnel, of mail and packages, of all deliveries? Was a properly trained and supervised security detail used on a coordinated basis? What was the likelihood of any incident occurring, based on the history of the community and elements of the community? What might be learned from the building plans themselves, and the sanctions evident from official governmental approval of the plans and the building process?

The bombing of the World Trade Center (“WTC”) on February 26, 1993, shortly after noon, in a mixed-used complex that held roughly 50,000 people was the terrorist incident that caught the attention of the American public as to the threat. The bomb used contained roughly 1,200 pounds of explosives, making it one of the largest known, home-made explosive devices ever detonated in the U.S. When it exploded, it created a hole 150 feet across and more than five stories deep. It exploded in the vicinity of a hotel in the WTC complex, close to a mass transit rail depot. The explosion destroyed hundreds of cars and other vehicles, and shut down the exhaust system in the WTC complex.

The investigation into the World Trade Center bombing was thorough, immediate and fully coordinated among an array of law enforcement and government agencies. Care was taken first to remove the victims and to stabilize the building structure. Roughly 2,000 people were called in to sift through a reported 4,000 tons of debris, and to assist in recreating the cause of the disaster. Cautious, deliberate investigators were eventually able to recover about 40 per cent of the vehicle that contained the explosive device used. Identification of the vehicle used led to persons associated with the vehicle, and other persons who shared interests and activities with the initial suspects. Investigation of the scene lasted for a month, but within days of the explosion, suspects were being identified and pursued and incontrovertible evidence developed.

This was an investigation focused on criminal activity, and the criminals responsible were apprehended and brought to justice, with pursuit of some over the course of years until they were finally captured. The civil remedies are not so neat or so certain. Was the loss of life in this case (six known victims) minimized by security measures already in place? Was there more that could have been done to further eliminate the risks of an attack on such a prominent structure? Is there any way at all to fully prepare for the unexpected?

Terrorist attacks seem to have reached the point where nothing more can shock us. Until the next attack. Will the next attack be within the Halls of Congress? Except that has already occurred, most recently with the death of two law enforcement officers on Capitol Hill in confrontations with a lone gunman with no obvious agenda.

Failure to expect the unexpected will happen. Society simply has to make the commitment to learn from its mistakes. A motivated terrorist, committed to the mission at any cost, is essentially unstoppable. He may be deterred for a time; he may be discouraged by the security measures at one target and move to another target. But he will strike, unless he is apprehended before he can accomplish his mission, whether his target is a person, group of persons, a building or persons associated with a building.

Terrorists mean to frighten and to paralyze the world. Their aim is not only to publicize their political agenda or self-aggrandizement, but to convince the public that random violence can strike at any time, at any place. Reasonable counter measures need to be implemented to combat the likelihood of terrorist attacks, but they can’t be expected to completely eliminate the incidence. We cannot buckle under to such intimidation. And civilization cannot allow itself to be reduced to “huddled masses yearning to be free” in their own homes.

Harry “Skip” Brandon has a far-reaching background in U.S. and international investigative activities and wide experience in working with foreign governments and businesses. He is a former Deputy Assistant Director of the FBI with responsibility for the National Security and Counter Terrorism programs, having served 23 years with the FBI, and as a combat veteran. Gene M. Smith has extensive experience in economic and political analysis and wide-ranging background pursuing investigations around the world on behalf of governments and industry. She is a former prosecutor and trial attorney and Foreign Service Officer who served in Latin America. Brandon and Smith are principals of Smith Brandon International, Inc., a Washington, D.C.-based consulting firm engaged in international risk management. They can be reached at 1155 15th Street N. W, Suite 1002, Washington, D.C. 20005. Phone: (202) 887- 9363, Fax: (202) 887-1395, E-Mail: Smithbran@aol.com.