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Laws, Outlaws, and Terrorists

Laws, Outlaws, and Terrorists: Lessons from the War on Terrorism

Gabriella Blum
Philip B. Heymann
Copyright Date: 2010
Published by: MIT Press
Pages: 256
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  • Book Info
    Laws, Outlaws, and Terrorists
    Book Description:

    In an age of global terrorism, can the pursuit of security be reconciled with liberal democratic values and legal principles? During its "global war on terrorism," the Bush administration argued that the United States was in a new kind of conflict, one in which peacetime domestic law was irrelevant and international law inapplicable. From 2001 to 2009, the United States thus waged war on terrorism in a "no-law zone."In Laws, Outlaws, and Terrorists, Gabriella Blum and Philip Heymann reject the argument that traditional American values embodied in domestic and international law can be ignored in any sustainable effort to keep the United States safe from terrorism. They demonstrate that the costs are great and the benefits slight from separating security and the rule of law. They call for reasoned judgment instead of a wholesale abandonment of American values. They also argue that being open to negotiations and seeking to win the moral support of the communities from which the terrorists emerge are noncoercive strategies that must be included in any future efforts to reduce terrorism.

    eISBN: 978-0-262-28920-7
    Subjects: Political Science

Table of Contents

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  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Preface
    (pp. vii-x)
  4. Introduction: The War on Terrorism—Lessons from the Past Nine Years
    (pp. xi-xxii)

    InA Man for All Seasons, playwright Robert Bolt depicts an imaginary, yet entirely plausible dialogue between Sir Thomas More, the Renaissance humanist who refused to succumb to a direct order from King Henry VIII, and More’s son-in-law, William Roper, who warns More against Richard Rich. Rich was the solicitor general who would later give false testimony against More, leading to the latter’s conviction and execution. “Arrest him,” pleads Roper. “For what?” asks More, forever a lawyer. “That man’s bad,” a courtier intervenes. “There is no law against that,” says More. A frustrated Roper then protests that if the laws...

  5. I On Law and Terrorism

    • [I Introduction]
      (pp. 1-6)

      In peacetime, there is no stronger commitment among democratic citizens than to the rule of law, even—perhaps especially—as it serves to limit the authority of those who govern. The commitment to law applies most rigorously to citizens and activities within the state, but it is also powerful as an international force regulating relationships among nations and across borders. In wartime, by contrast, citizens’ highest commitment is to protect the nation and its independence, territory, and powers. Terrorism exists in the uncertain realm between peace and war, dividing us between our deep commitments to law and to security. The...

    • 1 The Complicated Relationship between Counterterrorism and Legality
      (pp. 7-26)

      Steps that appear useful for fighting terrorism will sometimes be constrained, either unauthorized or forbidden by domestic law. There are generally very good reasons for such constraints, just as there may be very good reasons for wanting to bypass a constraint to take particular steps to counter the threat of terrorism. The reason for imposing these legal constraints may be moral; the law is often a distillation of, and a way of emphasizing the importance of, certain values central to human dignity. It may be political, reflecting historic American fears or suspicions of executive power that go far to explain...

    • 2 International Law, the President, and the War on Terrorism
      (pp. 27-46)

      In the 2005 National Defense Strategy (NDS), under the heading “Our Vulnerabilities,” the Bush administration made the following assessment of the dangers we face: “Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism.” The bizarre grouping of law, diplomacy, and terrorism articulated the prevalent thinking at that point, which was that the national interest required the use of overwhelming force. Further, the NDS implied that the constraints on the use of overwhelming force, whether in the war on terrorism, Afghanistan, or Iraq...

    • 3 The Role of Government Lawyers in Counterterrorism
      (pp. 47-62)

      Most of the very basic issues about the role of the government lawyer, particularly in dealing with matters that affect national security, were raised famously and dramatically when President Bush decided to conduct electronic surveillance in violation of the Foreign Intelligence Surveillance Act (FISA). Accordingly, that set of events, which dates from 2001, provides a useful framework for reviewing the impact on lawyers of the complicated relationship of law to national security concerns—a subject discussed two centuries earlier by the Founding Fathers, particularly Jefferson and Hamilton. Consider the following generally accepted version of events, drawn largely from the detailed...

  6. II On Coercion

    • [II Introduction]
      (pp. 63-68)

      There are at least three major dimensions to our national goals for counterterrorism. We want to preserve an adequate and high level of security for the American people and allies. We want to preserve as many as possible of the traditions that are deeply valued by the American people and identified with our constitutional tradition. And we want to justify and maintain our position as a leader among free and democratic states—one accepted for the quality of its leadership, not for its economic or military power alone.

      The Bush administration, from the earliest days after September 11, 2001, developed...

    • 4 Targeted Killing
      (pp. 69-92)

      Imagine that the U.S. intelligence services obtain reliable information that a known individual is plotting a terrorist attack against the United States. The individual is outside the United States, in a country where law and order are weak and unreliable. U.S. officials can request that country arrest the individual, but they fear that by the time the individual is located, arrested, and extradited the terror plot would be too advanced, or would already have taken place. It is also doubtful that the host government is either able or willing to perform the arrest. Moreover, even if it did arrest the...

    • 5 Detention outside the Combat Zone
      (pp. 93-106)

      We have argued that, in facing international challenges more dangerous than crime and yet less fearsome than more traditional war, three steps are required to reconcile security, liberty, and legitimacy. First, assess what if any departures from normal practices are actually needed for our safety. Then consider whether the possible changes still respect the fundamental principles, if not the letter, of the law of crime or war. Finally, choose the new rules that minimize the change in substance and scope of existing law, whether of peace or war, and make sure that such change remains as loyal as possible to...

    • 6 Interrogation
      (pp. 107-130)

      The Bush administration tried to keep secret three sets of facts about our policies on interrogation: (1) the very high level of officials participating in the decisions leading to the use of specific highly coercive techniques of interrogation; (2) the legal opinions of the Office of Legal Counsel (OLC) that authorized such coercive techniques, sometimes in frighteningly bureaucratic detail; and (3) the actual practices of the CIA and Department of Defense as each pursued intelligence through interrogations. The efforts at secrecy failed. Leaks to the press, followed by several good books by reporters, revealed the names and responsibilities of officials...

  7. III Beyond Coercion

    • [III Introduction]
      (pp. 131-134)

      In his first State of the Union address after the attacks of 9/11, President Bush famously resuscitated the “good vs. evil” World War II paradigm, complemented by the “you’re either with us—or against us” challenge to the world. Evil was to be eradicated by force, by declaring a “war on terrorism.” And in that war, there could be no compromise over values, no negotiation with the enemy, and no accommodation of competing ideologies.

      The administration was careful to make some crude distinctions; upon the invasion of Afghanistan, American leaders reiterated that their feud was not with the Afghan people,...

    • 7 Negotiating with Terrorists
      (pp. 135-160)

      Numerous democratic countries around the world, including the United States, have a stated policy of never negotiating with terrorists. However, it is perhaps a policy almost as often honored in the breach as in the observance. Britain negotiated with the Irish Republican Army (IRA), Israel has negotiated with the Palestine Liberation Organization (PLO) and other Palestinian factions, Colombia has negotiated with various domestic rebel groups, and Spain has negotiated with the Basque ETA (Euskadi Ta Askatasuna [Homeland and Freedom]). Even the United States under President Reagan provided TOC missiles to Iran to win the release of hostages held by Hezbollah....

    • 8 The Case for Sustained Efforts to Reduce Moral Support for Terrorism
      (pp. 161-186)

      Over the past nine years, the United States has broadened its strategy for combating Al-Qaeda and other groups targeting civilians from the United States or its allies. During the early years after September 11, 2001, periodic strategy statements from the president, the Department of Defense, and the Joint Chiefs of Staff focused on targeting a somewhat organized group of terrorists making war on the United States. Having no desire to bargain with them, the government’s strategy was to incapacitate them by detention or killing. According to its architects, that strategy required new forms of intelligence gathering, including new types of...

  8. Conclusion: After the Next Attack
    (pp. 187-194)

    The likely prospect of another terrorist attack within our borders, whatever its size and dangers, presents final problems for us to address. Throughout this book we have argued for balance and reason as methods of government in a world in which terrorist attacks come in all guises and sizes, can never be completely prevented, and will continue to be a real threat for decades to come. By “balance” we mean that we must reconcile our concerns for our security with our concerns for a bundle of other values: our civil liberties, the human rights of others, historically accepted limits on...

  9. Notes
    (pp. 195-208)
  10. Index
    (pp. 209-226)
  11. Belfer Center for Science and International Affairs
    (pp. 227-228)
  12. Back Matter
    (pp. 229-231)