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The New Protracted Conflict: The Roles of Law in the Fight Against Terrorism
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Many observers saw a still broader set of problems than those intrinsic to either a military or prosecutorial approach. The emergence of so many divergent means to a relatively clear end revealed a troubling ambivalence in grappling with the choice between a war paradigm and a criminal justice paradigm in responding to the terrorism threat.1 For those who favored a war model, judicial methods implied pointless self-restraint or dangerous unilateral disarmament.2 Those of the prosecutorial school saw an opportunity to vindicate American or civilized values in a second Nuremberg, resisting the temptation to pursue military victory without great regard for justice and proof.3 In the apparent muddling of the two models in U.S. policy thinking, some saw the war paradigm “infecting” the justice paradigm, legitimating an erosion of liberties that could sweep more broadly than the current dangers might warrant.4

This conventional wisdom is roughly half right in two respects. First, the initial phases of what promises to be a protracted fight against terrorism have been marked by the absence of a firm adoption of either “war” or “justice” as the defining model. This lack of a clear choice poses real risks. Genuine confusion over the basic paradigm can produce costly incoherence in more discrete policies and tactics.5 Intentional uncertainty in the overarching vision invites suspicions of opportunism and attempts to avoid accountability by picking and choosing the model that best suits the aims of the moment. But it is wrong to suggest that the choice between military and legal models for fighting terrorism is dichotomous. Each in its own way is seriously unsatisfactory. Also, the two are not as antithetical as they are typically portrayed. There is much law in the prosecution of the war, and much that looks like war in the pursuit of law-based solutions.

The conventional wisdom is right in worrying that the blurring of legal and military frameworks may have corrosive effects on civil liberties that outweigh its potential contributions in defeating terrorism. But the conventional wisdom is often cast in overly broad terms, failing to note features of the war against terrorism that make the threat to liberties both particularly alarming and more easily defended than many critics contend. Moreover, the focus on civil liberties in the debate over law and terrorism has mistakenly emphasized the impact on the United States’ domestic legal order. It has slighted a second and ultimately more difficult dimension of the “internal law question.” In pursuing the prosecution of terrorists and their enablers and the longer-term goals of eradicating the refuges, training camps, breeding grounds, and sleeper cells of terrorism, much will depend on the laws and legal institutions of countries other than the United States. An approach to the battle against terrorism that includes a significant legal element will have to concern itself with the legal systems in countries as diverse as Germany, Pakistan, and postwar Afghanistan.

 
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