The grave new world of terrorism: a lawyer's view.

• Author: Nafziger, James A.R.

1. INTRODUCTION

   It is truly a pleasure and an honor for me to present the 2002 Myres McDougal Lecture. When I first ventured into the field of international law, several distinguished colleagues of ours were especially kind and helpful to me. Believe me, I needed all the help I could get as the first Fellow of the American Society of International Law! I will always be grateful to Ved Nanda, Harold Lasswell, and Myres McDougal, among a handful of professional mentors, for their advice and encouragement despite my tainted pastas a recent graduate of what was, for them--all of them good Yalies--the "other" New England law school.

   Policy-oriented studies, which the Lasswell-McDougal team pioneered at Yale, have been instrumental in the transformation of international law from prescription to process during the last hall century. One of these studies, Law and Minimum Public World Order, (1) which Professor McDougal co-authored, became a classic. From beginning to end, it still speaks to my topic today. The opening paragraph of the book, after noting the "high and still rising levels in tension and expectations of comprehensive violence," (2) emphasized "the urgent need for rational inquiry into the potentialities and limitations of our inherited principles for controlling violence between peoples and for the invention and establishment of more effective alternatives in principles and procedures." (3) So there you have it: Myres McDougal never minced either big words or big agendas--not to mention big books! The penultimate chapter of his 872-page treatise on minimum public order concludes exactly as many of us might conclude today: "the ideal represented by a permanent international criminal court with jurisdiction over war crimes remains a valid goal of world public order." (4) Myres McDougal was obviously a man of big vision.

   Let us now go back to the future from another source. In the summer of 2001, while Easterners breathlessly awaited shark attacks on Atlantic beaches and the entire country speculated on the next installment in the Gary Condit soap opera, at least one serious issue hit the front pages, namely, stem-cell research. After years of public debate about artificial fertilization and cloning, we began to wonder, was this the Brave New World? Were we ready? Maybe we weren't quite ready for the Social Predestination Room, the Organ Store or the Bottling Room of Huxley's novel. But the planetary motto for the Brave New World--"Community, Identity, Stability"--sounded okay to us. And Helmholtz Watson, the Emotional Engineer in the book, seemed to describe our world, too, when he cheerfully concluded that "[t]he world's stable now. People are happy, they get what they want...." (5) On the international level, weren't we also managing, in the tradition of the Brave New World, "to keep the world so orderly that it won't bother the United States" (6) in its national quest for invulnerability?

2. A GRAVE NEW WORLD OF TERRORISM

   The terrorist attacks of September 11, 2001 jolted us out of our complacency. We became profoundly aware of a Grave New World. And we became quickly aware that many people did not share our particular sense of well-being. For them-to quote Helmholtz Watson in the Huxley novel again--"Being contented has none of the glamour of a good fight against misfortune ... or a fatal overthrow by passion." (7) As if the Cultural Revolution in China, the brutal regime of Pol Pot in Cambodia, the nearly endless conflict in the Middle East and genocide in Africa had not haunted us enough in recent years, we found ourselves on September 11th face to face with the suicidal partners of yet another radical movement, this one already notorious, to quote the Brave New World, "by a campaign against the past; by the closing of museums, the blowing up of historical monuments ... by the suppression of all books published before [a certain date]." (8) In the background of the suicide bombings you could almost hear the Second Solidarity Hymn of the Brave New World: "Come, Greater Being, Social Friend, Annihilating Twelve-in-One! We long to die, for when we end, Our larger life has but begun." (9) We quickly realized that Community, Identity and Solidarity could mean very different things to different people. Then came the anthrax scare. And, again, it was back to the future of Helmholtz Watson. As he asked seventy years ago in the Brave New World: "What's the point of truth and beauty or knowledge ... when the anthrax bombs are popping all around you?" (10)

   1. Root Causes

      What causes terrorism as a whole to pop all around us? Each of us would probably come up with a different list of the root causes, but we might agree on at least a few of the following: illiteracy and under-education; rampant population growth; widening disparities in wealth among peoples and states; deprivations of fundamental freedoms and human rights; a sensed loss of power as a result of modernization and secularization of traditional values; the mass displacement of persons and populations, denials of self-determination; political disenfranchisement; religious intolerance and militance; (11) de-privatization of religion to shape a new public order; (12) and the lack of a sustaining civic culture in so-called failed or politically disrupted states. Disruption breeds destruction. (13) Perhaps most important, however, is a shared sense of historic injustice that excites a relentless paranoia toward the outside world. One commentator has identified three elements of this shared sense: a widespread resentment of authoritarian rule, an overbearing foreign presence, and unequal income distribution. (14)

      These sources of terrorism have become effective in today's world because of such phenomena as arms proliferation and trafficking, advances in electronic technology, and banking secrecy. The terrible instruments of violence are also apparent: they include a vast arsenal of weapons, from explosive shoes to cyber-sabotage to hijacked aircraft to weapons of mass destruction-biological, chemical, or nuclear.

      In this lecture I was asked to set the stage for today's discussion of legal issues and responses in the aftermath of September 11th. Ultimately, we will be concerned about preferred processes of world order, in the language of Myres McDougal, for addressing acts of terrorism in a Grave New World. Most of you are, no doubt, familiar with the salient issues and responses to them. (15) You may even be suffering from September 11th fatigue. You will appreciate that the so-called world of terrorism is not really new at all though it has seemed disturbingly immediate to Americans since September 11th. You will also appreciate that acts of terrorism are not necessarily international. They are often confined to national territory or are mixed, domestic and international. Finally, you will appreciate that the September 11th suicide bombings were extraordinary, indeed, and let us hope, unique. Given the diversity of contexts in which acts of terrorism occur, it is therefore unwise to generalize too much on the basis of our recent experience. Despite all of these disclaimers, however, the aftermath of September 11th provides a very good context for discussions today of terrorism.

   2. Responses

      1. Homeland Security

         Considering, first, our homeland security, we can sense a state of national alert even without the color-coded warnings borrowed from Smokey the Bear to advise the public on the degree of danger from terrorism. (16) The war on terrorism is not quite reminiscent of Rosie the Riveter in the vanguard of the home front during the Second World War, but it is not business as usual, either. I want to highlight two developments in particular: the recent expansion of the federal government's investigative and prosecutorial powers and the reexamination of immigration procedures.

         In enacting the USA PATRIOT Act of 2001, (17) the United States Congress sought to strengthen federal law enforcement. (18) The Act is comprehensive. It imposes, first, new record-keeping and reporting measures on financial institutions including banks, investment companies, commodity-pool operators and commodity-trading advisers. The measures are intended to discourage and detect money-laundering by relying on Suspicious Activity Reports, which are filed by banks and other financial institutions with a federal governmental agency know as the Financial Crimes Enforcement Network. The Act also provides for greater information-sharing among federal intelligence and criminal justice officials; enables a special intelligence court to authorize the collection by law enforcement authorities of data from roving wiretaps; enlarges the availability of information from grand jury investigations; restricts access to biological and chemical agents and criminalizes their possession for other than peaceful purposes; relaxes roles for gaining access to electronic communications and student records by subpoena; provides for limited detention of certified terrorists; and facilitates governmental eavesdropping and so-called "sneak and peek" searches of private premises. The USA PATRIOT Act also authorizes indefinite detention of certain aliens in renewable six-month increments.

         These initiatives raise serious issues of civil liberties. We should all be concerned about any substantial erosion of our individual privacy, freedom of expression or freedom of association, whatever the tradeoffs for national security. Since September 11th people in this country have experienced new threats to their civil liberties, such as the selective interrogation of non-citizens regardless of the existence of any reasonable suspicion, the detention of non-citizens without disclosure of their names or details of their detention and for indefinite periods of time, (19) airport profiling, cultural insensitivities in security patdowns, plans for the installation of public surveillance cameras on Main Street, DNA...