Counterterrorism in Court

by Deborah Pearlstein

Readers might be interested in this piece I’ve posted over at Foreign Policy with a co-author highlighting the virtues of the criminal courts as an essential tool in counterterrorism. Beyond the stats themselves – nearly 500 criminal cases related to international terrorism since 9/11, including 67 cases involving defendants captured overseas according to DOJ -I’d say the real significance of the piece is the co-author: Phil Carter, Obama’s first Deputy Assistant Secretary of Defense for Detainee Policy, who has faced the joys of trying to close Guantanamo firsthand. Here’s a snippet.

The debate about the role of military force in counterterrorism has crystallized recently with arguments for (and here in Foreign Policy, against) a revised, updated, and expanded Authorization for Use of Military Force, the law passed just days after 9/11 that provides the core legal basis for current U.S. counterterrorism operations. The case for a new AUMF builds from the premise that, while our foes may be changing, our need for military force to fight them is no different now than it was in the fall of 2001.

That is a flawed premise. As with the end of World War II or the end of the Cold War, we are at a historic inflection point. The war in Iraq is over, the war in Afghanistan is ending, and the United States and its allies have disrupted, dismantled, and degraded al Qaeda and many of its confederates. We now have a wealth of tools and capabilities to fight terrorism — tools that did not exist in 2001. The time has come for the United States to transition from its current war footing to a long-term, sustainable counterterrorism strategy. The Abu Ghaith, Harun, and Warsame cases, and the many like them, show we are ready.

http://opiniojuris.org/2013/03/25/counterterrorism-in-court/

2 Responses

  1. Great post, and I’m glad to see that you and Phil are writing together on this critical issue. Steve Vladeck and Jennifer Daskal had an excellent series of posts raising similar points on LawFare. I hope the points the four of you have made are being heard in Congress and the admiministration.

  2. I only wish as much thought and attention was devoted to the nature and causes of terrorism, especially non-State terrorism in the context of political struggles, for example: why do rational individuals (psychological evidence testifies to the predominantly ‘normal’ cognitive and rational orientation of these individuals) involved in groups resort to such tactics? What are the dominant motivational variables involved in the choice for terrorist acts? Why do these individuals and groups attempt to provide moral justification for their acts? What are the factors (beyond sheer State repression) responsible for “de-radicalization” of terrorist groups? How do we make these factors more salient and probable so actors find sufficient reason to abandon terrorist tactics (which need not necessarily mean a corresponding commitment to liberal democratic principles and practices, but it is certainly a worthwhile achievement nonetheless)? What does the history of terrorism teach us about such groups vis-à-vis their socio-economic and political (local, national, and global) environments? What does it mean to notice that one-time terrorists have later become “respected” statesman or political actors in democratic processes or would-be democratic societies? How do we cool the highly volatile and counter-productive passions that acts of terrorism stir among elites and members of the public alike (and lead to all manner of violations of due process and habeas corpus, among other legal and human rights violations)? Why is counter-terrorism conceived solely in legal and/or military terms (be it predominantly military or the ‘blended, post-war approach’ discussed in the article)? Why is “counterterrorism” primarily about and preoccupied with non-State actors and largely neglectful of state or state-sponsored terrorism, the latter causing immensely more deaths and harms than the former (which of course does not imply we need ignore or trivialize the former kind, only that we view it in proper perspective)?

    And while it should go without saying, asking and endeavoring to systematically and sincerely answer these and related questions (which would need to draw upon intellectual resources in a cross-disciplinary and collaborative fashion from moral philosophy, law, psychology, the social sciences…) of course in no way represents an attempt to morally or politically justify terrorism (setting aside for the moment a proper definition of same, although I’ve found C.A.J. Cody’s definition most useful if not persuasive).
     

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