My colleague Evelyn Farkas challenged me to provide a follow-on to my somewhat critical review of John Brennan’s speech outlining the Obama Administration’s counter-terrorism policy. 

My assessment of his speech stressed the continuities with the Bush Administration approach, but also took issue with his emphasis on “upstream” factors that supposedly contribute to radicalism.

I have a lot to say on this topic, so I’ll divide my response into two posts – one today on foreign policy measures and one tomorrow on domestic steps.

I think a sound and sustainable counter-terrorism policy for the United States has to begin by creating a structure to support our efforts.  The core problem we face is that the terrorism challenge – cutting as it does across military and criminal justice concerns – implicates the notion of sovereignty more fundamentally than any other foreign policy challenge in the world today.  Do states have an obligation to arrest individuals who are plotting attacks elsewhere?  What if they are not plotting attacks, but merely providing support?  What if the state lacks the capacity to do anything, what are the rights of the international community?

The first, and most important step, in dealing with this situation is constructing an international legal framework that clarifies these issues.  The framework I would like to see is obviously quite different from what might emerge after international discussions, but at least these should be our starting goals for the process:

• Terrorism has to be clearly defined as a “crime against humanity” and/or a “war crime.”
• We should continue to encourage states to draft laws that criminalize support for terrorism, but just as significantly we should promote a doctrine of universal jurisdiction for terrorism.  In short, anyone should be able to arrest and prosecute for the crime, even if their nationals and their territory were not targeted.
• Because many states will neither want to be responsible for prosecution nor incarceration nor (post-Gitmo, post-torture) will some be willing to extradite to the United States, we need to establish an international terrorism court and international terrorism prison system to hold, rehabilitate, and ultimately release those convicted of plotting or committing terrorist activities.
• In addition, states should be legally committed to controlling threats emanating from their territory, and the consequence of a failure to do so should give aggrieved parties a right to intervene.  In other words, making sovereignty contingent on actual control, though with explicit limits on what the intervention can seek to accomplish.  Counter-terrorism military interventions should not become a cover for neo-imperialist ambitions.

Second, we need to a much better job differentiating between Islamism and “jihadism.”  Brennan’s speech repeated the useful warning that we cannot make this issue a struggle against Islam.  But we remain ambivalent about Islamist movements.  Violent radicalism has been strongly associated with Islamist movements thwarted by authoritarian regimes.  It is precisely our support for those authoritarian regimes that makes us a target.

The “upstream” approach hopes to undermine Islamist movements by creating a model of “modernity” that better provides for people’s needs.  But it is a tremendously uncertain and indirect means of defusing threats against the United States.  A smarter approach is to acknowledge that while we may have tensions with potential Islamist regimes, we always support the concept of self-determination and condemn anti-democratic authoritarianism.  This has major implications for our relationships with countries like Egypt and Saudi Arabia.

Finally, we need to continue to work on our persistent surveillance capabilities.  This probably involves some expansion of national technical means to provide fuller coverage of any and all regions where threats might develop, but we also need to do a much better job penetrating terrorist organizations.  In truth, it is possible that we are already doing all we need to in this area, but because of legitimate secrecy issues, it is difficult to assess this from open sources.

In short, internationally, the key to a successful counter-terrorism strategy rests on clarifying the international law of the issue, successfully differentiating between Islamism and “jihadism,” and building a potent intelligence apparatus that can give us advanced warning of developing threat.  I’ll address the domestic steps we need to take tomorrow.

Dr. Bernard I. Finel, an Atlantic Council contributing editor, is a senior fellow at the American Security Project.  This article was originally published at ASP’s Flash Point blog.