Can We Have a Serious Debate About Terrorism Policies?

by Julian Ku

One of my favorite legal journalists Dahlia Lithwick has a very fairminded review in Slate of Judge Richard Posner’s recent book Not a Suicide Pact: The Constitution in a Time of National Emergency.

According to Lithwick, Posner’s book argues that, “broader government surveillance powers, computerized data-mining, zealous deterrence of media leaks, and even ‘coercive interrogation up to and including torture’ are all constitutionally permissible in dealing with an unprecedented new threat,” Despite these views, Lithwick applauds Posner for taking a hard-headed and realistic look at the costs versus benefits of such policies. She contrasts Posner with the Bush Administration operatives who make “cheap attacks on its critics or grandiose claims of unlimited wartime authority”.

I’m sure Lithwick is right that the Bush administration has made cheap attacks on its critics and made grandiose claims of executive authority. But will she also acknowledge that the critics of the Bush Administration have also made equally cheap attacks on the Administration and made its own grandiose claims about the uncontested supremacy of international law? In other words, will she admit that both sides are engaging in cheap, manipulative attacks for political gain on this issue, just as both sides also adhere to principled sincere opinions about the proper policy in the war on terrorism?

Along with Lithwick, I too hope we can “undertake the sort of measured, careful debate about this possibly never-ending war on terror—a debate that is long overdue.” But I would simply add that a careful debate takes two careful sides, and I’ve seen little evidence that the left is any more careful than the right in raising the seriousness and quality of this particular debate.

6 Responses

  1. I agree. But I also think the starting point has to be some kind of clear, objective, testable definition of what counts as a state of emergency. [BTW I think Bruce Ackerman’s latest book makes a good stab at the kind of debate you advocate]

  2. One quite tangible piece of evidence that ‘the left is…more careful than the right in raising the seriousness and quality of this particular debate’ is found in the volume edited by Mark Tushnet, The Constitution in Wartime: Beyond Alarmism and Complacency. Durham, NC: Duke University Press, 2005.

    And I rather believe that the good professors over at Balkinization have done an exemplary job of ‘raising the seriousness and quality of this particular debate’ as well. Not infrequently the posts at Crooked Timber are equally elevating, however much an occasional comment thread goes awry.

    I might cite yet more evidence of my disagreement on this score (from several periodicals I subscribe to, including the NYRB), but I rather suspect you would not share my assessment of the evidence, assuming, that is, you would allow it to count as evidence in the first place. Indeed, and with all due respect, I’m inclined to believe your criteria for seriousness and quality would, on close examination, turn out to be more than a little tendentious….

    One side can often claim the high ground, after all, they’ve earned it.

    I’m hoping the new national security law blog, National Security Advisors ( about which Professor Alford posted below, will likewise further contribute to reasoned discussion and debate about the ‘war on terrorism.’

  3. Fiona,

    Good to hear from you again!

    There’s an interesting review of Ackerman’s book, Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism, by David Cole in the New York Review of Books, Vol. 53, No. 12 (July 13, 2006). Cole, with James X. Dempsey, is the author of Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security. New York: The Free Press, 2002.

  4. I don’t buy this Julian.

    The administration’s grandiose claims are clear enough. For example:

    “In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President’s authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.”

    John Yoo, Memorandum Opinion for the Deputy Counsel to the President: “The President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them”, DOJ OLC (2001.09.25).

    That preposterous claim would justify absolutely anything.

    But where are the outrageous claims on the other side?

    I’ve claimed since mid-2002 that the President and the administration were committing war crimes by policy in violation of US and international law.

    That is mere a statement of FACT, a fact that can be proven on the evidence of the administration’s own official documents, three federal court opinions including one by the Supreme Court, and public confession by the President just this week in which he preposterously admitted to torturing people while denying that it was torture, admitted to unlawful detentions that he claims were perfectly legal ecause his utterly dishonest lawyers sucj as John Yoo and David Addington assured him that 1 + 1 = 0, etc, etc.

    There is nothing unclear or ambiguous about 18 USC 2441. The President of the United States is a war criminal in exactly the same sense that Adolf Hitler was a war criminal, and that is just a plain fact of the law. Therre is enough evidence to convict him and Cheney et al on a directed verdict.

    The only real question here is: when are YOU going to get real Julian?

    These poeple are CRIMINALS who have demonstrated their absolute contempt for the LAWS OF THE UNITED STATES. The most fundamental premise of the US Constitution is that there is no form of national suicide more certain than a government which operates outside the law.

    There isn’t any moral or political equivalemce here Julian: the Bush adminiutration and the Repbulican majority in the Congress are by far the most corrupt and criminal government that this nation has ever had. There isn’t any new and unprecedented threat here — anyone who makes such a claim is just flaunting their own ignorance of history. What is clear is the absolute incompetence, dishonesty, and corruption of the administration, the Republican Party, and especially the corrupt LAWYERS responsible for the endless stream of fraud and sophistry that they have used to subvert the rule of law and furhter their crimes.

    They are liars, they are criminals, and they are a greater danger to this nation than all the terrorists in the world combined.


  5. Thomas Paine lives!

  6. My own modest attempt to raise the seriousness and quality of the debate consists in compiling a small bibliography whereby one can begin to get a handle on ‘terrorism.’

    Contemporary Terrorism: Ethical, Psychological, Political & Legal Issues–A Selected Bibliography

    Ali, Tariq, Christopher Hitchens, Anatol Lieven, Onora O’Neill and Jacqueline Rose (Andrew O’Hagan, moderator). ‘The War on Terrorism: Is There an Alternative?’ London Review of Books, May 15th, 2002 (transcript of debate that took place in Logan Hall,

    Institute of Education, London on 15 May 2002).

    Boroumand, Ladan and Roya Boroumand. ‘Terror, Islam, and Democracy,’ Journal of Democracy, Vol. 13, No. 2, April 2002, pp. 5-20.

    Brooks, Rosa Ehrenreich, ‘War Everywhere: Human Rights, National Security, and the Law of Armed Conflict in the Age of Terrorism,’ University of Pennsylvania Law Review, Vol. 153, 2004. Available at SSRN: or DOI: 10.2139/ssrn.573321

    Cole, David and James X. Dempsey. Terrorism and the Constitution. New York: The New Press, 2002.

    Dworkin, Ronald. ‘Terror & the Attack on Civil Liberties,’ The New York Review of Books, Vol. 50, No. 17, November 6, 2003.

    Gambetta, Diego. ‘Reason and Terror: Has 9/11 Made it Hard to Think Straight?’ Boston Review, April/May 2004. Available:

    Gerges, Fawaz. The Far Enemy: Why Jihad Went Global. New York, NY: Cambridge University Press, 2005.

    Glass, Charles. ‘Cyber-Jihad,’ London Review of Books, Vol. 28, No. 5, March 9th, 2006. Available:

    Hassan, Riaz. ‘Suicide Attacks: Life as a Weapon,’ International Institute for the Study of Islam in the Modern World (ISIM) Newsletter 14, June 2004: 8-9.

    Higgins, Rosalyn and Maurice Flory, eds. Terrorism and International Law. London: Routledge, 1997.

    Honderich, Ted. Terrorism for Humanity: Inquiries in Political Philosophy. London: Pluto Press, revised ed., 2002.

    Honderich, Ted. After the Terror. Edinburgh: Edinburgh University Press, 2003.

    Khan, L. Ali. ‘A Legal Theory of International Terrorism,’ 19 Connecticut Law Review, 945 (1987).

    Khan, L. Ali. A Theory of International Terrorism: Understanding Islamic Militancy. Leiden: Martinus Nijhoff, 2006.

    Khashan, Hilal. ‘Collective Palestinian Frustration and Suicide Bombings,’ Third World Quarterly, Vol. 24, No. 6, 2003: 1049-1067.

    Kretzmer, David. ‘Targeted Killings of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defense?,’ The European Journal of International Law, Vol. 16, No. 2, 2005: 171-212.

    Moghadam, Assaf. The Roots of Terrorism. New York: Chelsea House Publ., 2006.

    O’Connell, Mary Ellen. ‘When is a War Not a War? The Myth of the Global War on Terror, ’ILSA Journal of International &Comparative Law, 2005, Vol. 12, No. 2: 1-5.

    Saul, Ben. ‘Two Justifications for Terrorism: A Moral Legal Response,’ Foreign Policy in Focus (FPIF) Report, January 10th, 2006. Available:

    Saul, Ben. Defining ‘Terrorism’ in International Law. Oxford, UK: Oxford University Press, 2006.

    Seigman, Henry. ‘Is ‘Moral Equivalency’ Really So Wrong?’ Los Angeles Times, June 18, 2006.

    Soto, Theodore P. ‘The Morality of Terrorism,’ Loyola of Los Angeles Law Review, Vol. 35, No. 3, June 2002: 12271263. Available: or

    DOI: 10.2139/ssrn.341600

    Tushnet, Mark, ed. The Constitution in Wartime: Beyond Alarmism and Complacency. Durham, NC: Duke University Press, 2005.

    Victoroff, Jeff. ‘The Mind of the Terrorist: A Review and Critique of Psychological Approaches,’ Journal of Conflict Resolution, February 2005, Vol. 49, No. 1: 3-42.

    Volkan, Vamik. Bloodlines: From Ethnic Pride to Ethnic Terrorism. Boulder, CO: Westview Press, 1998.

    Wilkins, Burleigh Taylor. Terrorism and Collective Responsibility. London: Routledge, 1992.

    Online Resources:

    The American Society of International Law (ASIL), Resources on Terrorism:

    Eminent Jurists Panel: Terrorism, Counter-Terrorism, and Human Rights (An Initiative of the International Commission of Jurists):

    JURIST: Terrorism Law &Policy:

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