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The New Protracted Conflict: The Roles of Law in the Fight Against Terrorism
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A law-based approach also seemed to offer the advantage of being a relatively straightforward and uncontroversial way to deal with both the terrorist acts that demanded an immediate response and those activities that created a longer- term terrorist threat. Relevant U.S. laws included garden-variety proscriptions of homicide, expansive definitions of criminal conspiracy, specialized federal legislation addressing terrorism, war crimes, and hijacking dating back to the 1970s and expanded after September 11, most notably to widen proscriptions on harboring anyone whom one knows or has reason to believe is an active terrorist, providing material support to terrorist organizations or engaging in conspiracies to commit terrorism.8

Activities and individuals outside the United States could be brought legally within the reach of the U.S. criminal justice process. American law enforcement, prosecutors and courts have long adopted a broad construction of U.S. statutes’ extraterritorial reach, particularly where Congress explicitly so provides, as it has in the case of antiterrorism legislation. Accepted doctrines of international law permit a state to enact laws punishing non-citizens’ overseas behavior where only part of a complex offense takes place in the state claiming jurisdiction. Other international legal principles may permit a state to prohibit and sanction actions threatening its security or harming its nationals, even though undertaken by foreigners abroad. Further, the intentional targeting of massive numbers of civilians in the September 11 attacks, the particular methods of destruction deployed, and the prior declaration by apparently responsible parties of a “war” against the United States all support the claim that this new strain of terrorism counts among the handful of offenses—including war crimes, crimes against humanity, piracy, hijacking, and sometimes international terrorism—that any state may reach and punish, without regard to where they occur.9 Moreover, international law arguably permits a state to enact and apply retroactively laws punishing such universally condemned crimes.10

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