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The New Protracted Conflict: The Roles of Law in the Fight Against Terrorism
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Potentially satisfactory fora for implementing a criminal justice paradigm included ordinary American courts for prosecuting those caught within the United States, extradited by cooperative foreign powers, or captured by U.S. or allied forces.11 Indeed, the problems that have often frustrated reliance on extradition might be expected to be less serious in the present context. The usual political reluctance to extradite might be lessened by the reluctance to appear to be harboring terrorists, the growing appreciation among many states that they too faced terrorist threats, the broadly recognized international legal obligation to extradite those charged with war crimes and crimes against humanity, and the complete collapse of the government in Afghanistan, the state where some of the most wanted suspects resided. And, for those brought before U.S. judicial institutions by less orthodox means, it is clearly (if controversially) settled in American law that U.S. courts will allow prosecutions of aliens despite serious irregularities in how they were brought before the court.12

If necessary in order to secure other states’ support or enhance the process’s legitimacy, an international tribunal looked to some like a viable option, given the increasingly robust international notion of individual responsibility for international crimes, the ongoing war crimes proceedings in the former Yugoslavia and elsewhere, the nascent international criminal court, and the Nuremberg precedent.13 On the other hand, for those less sanguine about using domestic (much less international) courts, more summary processes might be acceptable and could be squared with the law paradigm. That view was part of the idea behind President Bush’s executive order proclaiming the authority to establish special military tribunals to conduct “full and fair” trials of foreign nationals for terrorist activities and his purporting to derive that power from specific congressional authorization, the constitution and laws of the United States, and general principles of international law, including a state’s right to take steps necessary for its own security.14

Yet, for all its appeal, the law paradigm has failed to become the dominant model for the United States’ fight against terrorism, and for good reason. At its best, the criminal justice paradigm is inadequate in important ways. Existing laws and new ones that the United States or others might adopt will not reach many of the targets that American leaders have identified in the war on terrorism. Protracted alien detentions, arrests and prosecutions for abetting, funding, and conspiring as well as actively participating in terrorist activities, expanded powers to freeze or seize assets, and toughened immigration rules are poor tools for reaching diffuse networks of support for terrorists or members of quiescent terrorist cells that have yet to do or even plan any specific act. In an international legal order that zealously protects states and state powers, reaching state or government actors through legal means is notoriously difficult, except in cases of the most extreme behavior, which can ground individual criminal responsibility or make lawful a resort to the military option. While these features of the legalist approach may not pose problems in going after the Taliban, they become significant as the U.S.-led war on terrorism comes to target more subtle but still dangerous varieties of state involvement with terrorism, such as harboring, indirect financing, or simply failing to crack down.

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