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The New Protracted Conflict: The Roles of Law in the Fight Against Terrorism
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Legal cooperation from other states in capturing or rendering up suspects will not always be forthcoming, especially in cases where the United States will seek to prosecute actions short of the calculated mass killing of civilians, offer evidence that is less than incontrovertible and overwhelming, or pursue an agenda that is suspected of being overly political. Even in cases that are easy on the merits, requests for extradition will fall on deaf ears in governments with politics or powerful constituencies sympathetic to the terrorists’ agenda, as well as in some European states that object to the U.S. insistence on an option to impose the death penalty or to use military tribunals.

Securing convictions of those brought before tribunals is hardly a certainty. Despite the successful prosecution in the first World Trade Center terrorist attack in 1993 and the truck bombings of U.S. embassies in East Africa in 1998, and the quick federal indictment of one co-conspirator in connection with September 11, recent misadventures in American criminal justice—most famously in the O. J. Simpson and Rodney King cases— understandably give pause to some who contemplate the prospect of turning vital aspects of the fight against terrorism over to juries. Talk of closed proceedings and anonymous juries, expansion of police powers to gather evidence, and authorization of military courts with relaxed rules of evidence, limited rights to appeal, and conviction based on a two-thirds vote all indicate worries about the sufficiency of ordinary judicial processes.

International tribunals have failed to win American support. The dominant American view remains that any such institution is likely to be overwhelmed and slow (even more so than American courts), compromised by political pressure to be too soft on terrorists or too tough on the United States, and unwilling to impose sufficiently severe sanctions (most notably capital punishment). Such concerns led to the United States’ frosty relations over the last twenty years with the International Court of Justice, the International Criminal Court, and other similar bodies.

 
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