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The New Protracted Conflict: The Roles of Law in the Fight Against Terrorism
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A criminal law model for fighting terrorism is obviously appealing. The idea of bringing the perpetrators to justice has resonated for many Americans in their outrage over the September 11 attacks. The prosecutorial approach promised a degree of moral satisfaction in a country where professional and popular conceptions of criminal punishment accord a large role to retribution (in comparison to the goals of deterrence, disablement, or rehabilitation that have greater prominence in many other Western countries’ approaches). Trial and conviction also seem to offer a special form of vindication for American victims and values because of the aura of political neutrality and fair process that—especially in the United States’ uniquely legalist political culture— surrounds scrupulous court proceedings, notwithstanding the many recognized flaws that can beset judicial processes in politically charged settings. Casting terrorist groups as a law enforcement problem has the additional attraction of assimilating the tasks at hand to the familiar and oftensuccessful campaigns against organized crime groups, with which Al Qaeda and similar entities share many practices and characteristics. Regarding them as outlaw organizations akin to the Mafia offers the further satisfaction of denying them the respect inevitably if grudgingly extended to even the most loathed enemy state in a war. The war paradigm’s approach (reflected in the international law of war) of letting go the enemy’s foot-soldiers and many of its leaders at the cessation of hostilities and its ethos of setting aside even recent conflicts when security interests so dictate are features that seem unappealing with respect to the Taliban, and more so for Al Qaeda and other terrorist groups.6 The depth of the law paradigm’s appeal was strikingly reflected— albeit with a divine, nearly apocalyptic gloss—in an early name for the war against terrorism: Operation Infinite Justice. (This was quickly renamed Operation Enduring Freedom when the possible offense to Muslims of the earlier name was realized.)7

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