A Few Thoughts

Peggy and Peter, with slightly different emphases, both criticize me for focusing too narrowly on domestic legal policy. As Peggy puts it, by doing so, I “implicitly endorse the notion that the U.S. is unique in its experience of terrorism and the challenge of crafting laws to address it.” It’s a point worth addressing explicitly.

The United States is not the first country to have to reconcile strong antiterrorism steps with the rule of law. Far from it. Yet it is important not to understate or overlook the genuinely unique features of the emerging American confrontation with terrorism–features that make a multilateral approach both necessary and, at times, profoundly difficult, features that also necessitate to some degree the hybridization of law enforcement and military powers that we otherwise try to keep distinct.

To my knowledge, the United States is the first–and only–country ever to face and fight a significant and sustained terrorist threat based halfway around the world that is unreachable by traditional judicial or diplomatic means and that is truly international–in the sense of operating in many nations simultaneously. From the beginning, confronting Al Qaeda has required military operations in remote theaters of conflict, liason with governments all over the world, law enforcement and intelligence operations, and covert actions. Neither the British experience with the IRA nor the Israeli experience with any of that state’s many foes remotely approaches the extension and range the war on terror has required of us. Even before 9/11, for example, the United States had sent cruise missiles into two countries (Afghanistan and the Sudan) and had contemplated hiring tribal mercinaries in Afghanistan to kidnap (and maybe kill) Osama Bin Laden. This is not the same as Spain’s confrontation with ETA. And the fact that a pure law enforcement model might have been adequate against the Red Brigaids gets you only so far.

I draw two conclusions from this. The first is that Peggy and Peter are right; multilateralism is important. Operating internationally to the extent that we do requires cooperation from allies, and you can only get that if you’re willing to play ball with those allies. The other conclusion–and it is firmly in tension with the first–is that sometimes, we’re going to do things that other countries who confront more regional terrorist threats than we do don’t do and don’t like. The reason is simple: We have to, and they don’t. And that goes for our laws too. We have to have laws that regulate behaviors they don’t have to have laws regulating–because they are behaviors in which they don’t engage. You don’t need a detention statute for aliens captured abroad outside of the criminal context if you don’t capture aliens abroad outside of the criminal context. So while I agree that we need to work with multilateral institutions and develop international law as a tool for the tasks at hand, I think there will always be a measure of tension between American needs and those institutions and norms. I’m not sure there’s a way around that problem.

A brief word in response to Kevin’s post: I doubt that anyone has ever before been accused of neoconservativism for supporting international tribunals, as Kevin accuses me for my stray comment noting that international criminal tribunals offer flexibility that the Bill of Rights does not offer. For the record, I was thinking of the hearsay rule in both the Yugoslavia and Tanzania tribunals, which–if memory serves–is more lenient than the rules that govern the much-derided military commissions. My point was simply that to the extent flexibility on such matters is necessary–as I believe it is–international tribunals offer a less controversial way to achieve such flexibility than the ones we have pursued.