Sunday, September 17, 2006
Is terrorism crime, war, or a third thing?
As the right sidebar has advertised for the last week, I have been reading Judge Richard A. Posner's most recent book, Not a Suicide Pact: The Constitution in a Time of National Emergency
As with so many legal dichotomies, that of "crime" versus "war" does not fit an emergent reality, in this case that of global terrorism. It is an occupational hazard of lawyers to stall in their consideration of issues at a semantic level. Rather than ask whether modern terrorism is more like crime or more like war and therefore which bos it should be put in, one should ask why there are different legal regimes for crime and war and let the answer guide the design of a sensible regime for fighting terrorism. It is not war as such but the dangers created by war that explain and justify a curtailment of civil liberties in the waging of war. A similar curtailment may be justified by the dangers posed by terrorists avid to acquire weapons of mass destruction. The constitutionality of subjecting terrorist suspects to trial by military tribunal ought to depend not on whether the "war against terrorism" is really a war (and there is no "really," since one is speaking of definitions, and definitions are mutable) but rather on whether there is a strong enough national security interest in so proceeding to overcome the prudent reluctance to enlarge the wartime powers of the president and Congress by expanding the conventional definition of "war."
This is actually a liberating perspective, which the government might be wise to embrace. Instead of pretending that the Constitution makes the president a military dictator and trying to shoehorn the struggle against global terrorism into a box labeled "war" and debating over whom exactly Congress was declaring war on in the AUMF, the government would be pointing to facts that show that modern terrorism is so dangerous, and so unlike ordinary crime, that the ordinary processes of criminal justice must be modified. The terrorism problem is sui generis; so should be the solution to it.
It is a shame that all those from the President to John McCain to Nancy Pelosi to the pundits who are arguing this week over the appropriate legal response to terrorism will not have read Posner's short, veil-lifting book
before doing so.8 Comments:
By 
Unknown, at
Sun Sep 17, 12:47:00 PM:
Thanks, Tigerhawk. I may read the book.
IMO terrorism like piracy is a crime that is cannot be addressed by conventional law enforcement means because it has state sponsorship.
By TigerHawk, at
Sun Sep 17, 03:03:00 PM:
Well, Shochu John, that is the question, isn't it? Posner makes his case to distinguish terrorism from the "war on drugs" elsewhere in the book.
I think that we all agree that a few amateurish bombs going off, such as in London, Bali, or even Madrid, pose no "existential threat." Even these might, however, push us toward the sorts of restrictions that Europeans and Israelis have lived with for a long time.
The existential threat is from attacks that have the potential to kill people in the tens of thousands, and in the absence of a lucky hit those would require nuclear weapons. This assumption has, in fact, been the guiding light of the Bush administration's foreign policy since 9/11 -- that the serious threat of terrorism is from nuclear weapons, which require state sponsorship. Hence our aggressive (if perhaps ill-informed) "forward" strategy.
My trouble with the left -- to paint with a broad brush -- is that they are not comfortable with any preemption strategy. If applied domestically, they object that terrorism should be treated like crime -- investigations should follow the "crime," and that we should rely primarily on deterrance (which is, after all, our posture versus criminals). If applied internationally, the left requires not only that we be attacked by a state, but that we be able to prove as much, before we cut off a threat. Either way, the ultimate requirement of the left is that we suffer the attack before we take action (and if you deny this, look at the repeated attacks against us by al Qaeda during the '90s before we were willing to put boots on the ground against them). Because this position is politically unpopular, the left has to claim that terrorism is not such a big deal because it does not pose an "existential" threat. By that standard, neither did Germany and Japan during the 1940s.
By 
, at
Sun Sep 17, 03:34:00 PM:
Good point TH and let me add another.
Ordinary people will NOT tolerate Israeli-style actions for long. The "American Street" sees Muslims as a seething mass of terrorists, or terrorist apologists, who have one goal:
Convert the world and Americans to Islam.
or Kill them.
The reaction of the American Street to another 9/11 style attack will be:
1. The Government particularly the Press, Dems, McCain-ists, Graham etc. are more concerned with the opinion of folks at Davos, the UN etc than protecting ordinary people.
2. Ordinary people MUST therefore take steps to make themselves safe, namely purging Muslims from America. Local and Federal authorities will be powerless in the aftermath being unwilling to side with "America's enemies" which are now identified clearly as Muslims.
3. Strategic level nuclear responses will follow certainly a nuke strike on a US city; and probably a dirty bomb. Certainly no Mosque will be left standing, or Muslims allowed to stay in the US (regardless of citizenship).
Yes this is a war of civilization, precisely because Islam is both horrificly strong and weak. Strong in that it has bonds across ethnic and social lines, and has a unitary Islamic identity. Weak in that it cannot adapt to modernity and Muslims correctly identify America's very existence as a mortal threat to Islam. You can't have hanging teenage girls, stoning women to death, polygamy, death for apostates, poets, film-makers, writers, "convert or die" sentiments into action, "behead those who insult Islam," etc co-existing with America.
Knight Rider re-runs ALONE (yes I am totally serious) destroy the culture of Islam. Michael Knight treats women with respect, doesn't call them "whores" and has a TALKING CAR!!! Islam by contrast has mud, dirt, and poverty.
The only Muslims who do not hate and wish to destroy the West are those too poor and thus isolated from the world to even be aware of America.
By Dawnfire82, at
Sun Sep 17, 04:17:00 PM:
Yeah, treating terrorism like regular crime works. Osama Bin Laden was indicted on November 4th, 1998. Unfortunately, nobody would extradite him to face justice in the US.
http://usinfo.state.gov/is/Archive_Index/Bin_Laden_Atef_Indicted_in_U.S._Federal_Court_for_African_Bombings.html
Oh well, better luck next time, right? After all, he's just a petty criminal.
If a nation state did what Al Qaeda did on 9/11, we would have declared war. War. Why should we treat terrorists any differently?
"Being terrorized into giving up our constitutional rights is letting them win."
What Contitutional rights have you given up, exactly? You've conspicuously failed to provide a list.
By , at
Sun Sep 17, 04:40:00 PM:
Conservatives in the EdmundBurke-JohnAdams-RussellKirk line would generally prefer to apply old patterns of Law than to craft new ones out of whole cloth.
But maybe there *is* an old pattern that we could adapt:
http://www.legalaffairs.org/issues/July-August-2005/feature_burgess_julaug05.msp
The Dread Pirate Bin Laden: How thinking of terrorists as pirates can help win the war on terror.
By , at
Sun Sep 17, 05:04:00 PM:
I think we need to come up with some new terms to describe the protaganists in this debate.
Not all liberals agree with the current dem policy and not all conservatives agree with the administrations policy.
By Lanky_Bastard, at
Mon Sep 18, 12:34:00 AM:
There's no reason to even debate these analogies unless you plan to rationalize removing a few liberties. Terrorism is what it is, and what we call it only changes us. I think we've changed too much already. We've come a long way from the founder's "Give me liberty or give me death." These days we beg the government to protect us from gel-bras on airplanes.
Yes, we need the government to secure nuclear materials and chemical and biological reagents. No, we don't need them to argue before the Supreme Court that a US citizen isn't eligible for Habeus Corpus. We need them to infiltrate enemy organizations that want to hurt us, but it's still prudent to require a warrant (from the secret court that approves over 99.9% of them) for domestic wire-taps. The government should be using both carrots and sticks to bring international pressure against terrorism, but the waterboarding and hypothermia chambers are not the kind of sticks that America believes in.
This is the land of the free and the home of the brave. Terrorism is testing us on both counts.
By Cardinalpark, at
Mon Sep 18, 09:35:00 AM:
SJ - your argument is spectacularly offensive. One cannot equate a single act which kills thousands which can only be entitled an "attack", from random events which lead to daily loss of life -- accidents. The argument you make is simply nonsensical. Among a sovereign state's first priorities if it is to engender sufficient confidence in its citizens is to provide for security -- or as our constitution reads, "the national defense." That's the social contract. It is simply not acceptable for our government to tolerate without aggressive action the risk of another mass attack like 9/11. Nor is it acceptable, by the way, for a municipal government to allow murder rates to soar without significantly increasing its attention to police activity. That's the deal. Quaint libertarianism be damned.
As to whether piracy or terrorism is an act of war, let me assert what may seem obvious. It depends. 9/11 was an act of war. It was an attack on our territory which exceeded any such attack ever on our soil. The Iranian kid at UNC who drove his SUV into a bunch of people committed a crime. It was not an act of war.
It sort of goes with the pornography standard of you know it when you see it.
Of course the citizenry will willingly accept some curtailment of civil liberties in order to effectively reduce the risk of another significant act of war like 9/11. Today, the citizenry is unlikely to support internment of muslims for instance, but has apparent consensus around things like the SWIFT program, or eavesdropping on suspected AQ calls into the country.
Purist libertarians will philosophically object to any government intervention of any sort -- but that is of course absurdly impractical when one relies on government to provide for the national defense and your country is being attacked. So while I repsect a practical libertarian position on a number of policiies, I find it lacking when it comes to these issues.
To suggest that a mass casualty attack on your country is not an existential threat is to be at once supremely arrogant and shortsighted. Governments that fail to protect their citizens don't last long -- much less forever. Nothing is history has lasted forever, and something had to erode it. Greece, Rome, Egypt, Persia, The Holy Roman Empire, Spain, Britain, the Third Reich, the Soviet Union - they were all mighty powers which fell. So to suggest that the US isn't susceptible to its own combination of external assault and internal decadence represents willful ignorance of history.
