Who should deal with foreign terrorists on U.S. soil? Socio-legal consequences of September 11 and the ongoing threat of terrorist attacks in America.

• Author: Klinger, David A.

1. INTRODUCTION

   When members of the Al Qaeda terrorist organization attacked the World Trade Center and the Pentagon with hijacked commercial aircraft on September 11, it was the first time since a young America fought pitched battles with British troops during the War of 1812 that aggressors from abroad had engaged targets on contiguous American soft. In short order, the coordinated attack by terrorists became a watershed event in U.S. history, as it led to substantial changes in the fabric of our nation's life. Since September 11, America has been on a war footing, with armed soldiers standing guard at our nation's airports, enhanced security at nuclear power plants and other vulnerable locations, and military jets flying combat air patrols in order to intercept and shoot down hijacked commercial aircraft. The legal climate has also been affected by the events of September 11. Congress has passed, and the President has signed, anti-terrorism legislation (1) that expands police surveillance powers. Additionally, the President has announced that suspected terrorists who are not U.S. citizens may be tried in special military tribunals lacking many of the due process standards of American criminal courts. (2)

   The events of September 11 have forced Americans to rethink the way we operate when it comes to dealing with violence within our borders. As our nation has moved quickly to reassess and sometimes reform the ways we have traditionally thought about and dealt with the specter of violent acts, attention has been focused on a set of incidents that government leaders have defined as the most likely or most disruptive to our way of life (such as airline hijackings and attacks on nuclear facilities). (3) Consideration of the current situation, however, suggests that those tasked with planning for and dealing with terrorist violence have overlooked one obvious potential threat: attacks by well-trained terrorist cells armed with military arms and ordnance on Americans who have congregated in public spaces such as schools, shopping malls, churches, and sports arenas.

   Currently local police officers have the exclusive charge to respond to and handle any attacks of this sort within the rubric of state and federal statutes that forbid assault, murder, the possession of specific sorts of weapons, etc. A cursory look at law enforcement capabilities to protect innocents should a group of terrorists conduct a military-style assault, however, indicates that the police might be quickly overmatched. In this Article we first show why the police may not be capable of effectively dealing with assaults by terrorist cells on groups of American citizens. Second, we argue that our nation needs to develop contingency plans that would allow the U.S. military to take direct action against terrorists under certain conditions. Third, we identify some possible socio-legal consequences of the gap in our current capabilities to respond to military-style terrorist assaults.

   The first step in this process is to briefly review the history of such attacks in the Middle East and other parts of the Islamic world and explain why we believe that military-style terrorist attacks should be considered a realistic threat in present-day America. We next discuss current police response capabilities to such attacks, explain how they have developed over the last few decades in response to specific instances of mass criminal violence committed by U.S. citizens, and identify the limitations of law enforcement's ability to respond to military-style terrorist attacks. We then explain how the military could, at least theoretically, fill the void in our nation's current antiterrorist response capabilities, specify the conditions under which we believe U.S. military should be used, and discuss the legal and social ramifications of U.S. military action on U.S. soil. We conclude with an analysis of how the American public may respond to such threats with a return to an "unorganized militia" and a traditional interpretation of the Second Amendment.

2. THE THREAT OF MILITARY-STYLE ATTACKS

   We are concerned about the possibility of military-style assaults in the U.S. because they are a standard terrorist tactic overseas. Perhaps the most notable military-type terrorist assault occurred in 1981, when some Egyptian soldiers with ties to an Islamic fundamentalist group assassinated President Anwar Sadat with automatic weapons fire and hand grenades as he was reviewing troops during a parade celebrating Egypt's 1973 war with Israel. (4) Egypt was also home to another notable military-style terrorist attack in 1997, when a group of Islamic fundamentalists associated with Sheik Omar Abdul Rahman, now imprisoned in the United States for his role in the 1993 World Trade Center bombing, used automatic weapons and knives to kill fifty-eight foreign tourists and four Egyptians at the Temple of Hatshepsut in Luxor. (5) (Among the major effects of this attack was its devastating impact on Egypt's tourism industry and the ongoing expense of posting armed security guards to reassure tourists and prevent a reoccurrence.) (6)

   Two more recent examples of the military assault tactic occurred immediately after the September 11 attacks. One was in October 2001, when Islamic militants armed with assault rifles killed a Muslim security guard and fifteen worshipers attending. Christian services at a church in Bahawalpur, Pakistan. (7) The other was in November 2001, when a Palestinian terrorist opened fire on an Israeli school bus, (8) an event that was on the leading edge of increased terrorist attacks in the Holy Land as Israel and the Palestinian Authority teetered toward full-scale war during the winter of 2001-2002.

   Given the events of September 11 and the calls of Osama bin Laden and others (9) for jihad in the U.S., it would be foolish to believe that terrorists trained to conduct the military-style attacks that have periodically plagued other nations would not be willing to employ such tactics within our borders. An organized attack by trained terrorists at a school, sporting event, religious service, or any of the many other sorts of activities where Americans typically congregate would have a severe impact on our nation's daily life and sense of security. Sending children to school, attending athletic activities, or even going to church or synagogue services might no longer be considered safe by American citizens. The very nature of the American way of life could be changed in an instant.

   The impact of a single such event is potentially far greater than the events of September 11. Securing our limited number of airports with National Guard soldiers is feasible, and most Americans can get by without flying on commercial airplanes. Securing every shopping mall and every school in America, by contrast, would be vastly more difficult than securing our airports. Moreover, if Americans quit shopping, or if they quit sending their children to school, the effect on our economy and our way of life could be more devastating and far reaching than that of the September 11 attacks.

3. THE AMERICAN ANALOGUE: "ACTIVE SHOOTERS"

   Although our nation has so far avoided attacks by foreign terrorists of the sort described above, our recent past is replete with analogous events: cases in which Americans have executed well-planned attacks on large numbers of their fellow citizens at school, at work, and at play. The first of these events to capture the nation's attention occurred on August 1, 1966, when Charles Whitman, a former Marine who had murdered both his mother and his wife the night before, took two rifles and a shotgun to the observation deck near the top of the 300-foot Texas Tower on the campus of the University of Texas at Austin. At 11:50 A.M., Whitman began to shoot people indiscriminately on the campus plaza below. Before he was fatally struck by a police shotgun blast more than an hour later, Whitman had killed or wounded more than forty people. (10)

   Whitman's murderous assault from the Texas Tower revealed some critical weaknesses in American law enforcement's capacity to respond to violent incidents and led to some notable changes in police practices. From the time the first phone call reporting the rampage came in to the Austin police switchboard moments after the shooting started, until Whitman was killed, all of the assets of the Austin Police Department were devoted to dealing with the incident. (11) Because this concentration of effort left the rest of the city essentially devoid of police service, many in law enforcement realized that they needed to develop the means to respond to sniping and similar incidents without draining the rest of the community of law enforcement coverage. The fact that Whitman was able to hold police at bay and continue his rampage for more than an hour led to a reassessment of law enforcement capabilities to resolve ongoing shooting incidents in a timely fashion. (12)

   One consequence of the reviews that followed Whitman's rampage was that many law enforcement agencies decided that the best way to mount efficient and effective responses to such incidents was to develop specially trained and equipped units that could rapidly resolve such situations without paralyzing police capacity to respond to other needs. These units came to be generally known as SWAT (Special Weapons and Tactics) teams. Since the late 1960s these units have proliferated so widely that today nearly all large law enforcement agencies in the U.S. have some sort of SWAT team. (13)

   Over the years, SWAT teams have been called upon to deal with many sorts of special threats, including hostage crises and situations with barricaded criminals who refuse to be arrested. Significantly, the notion that SWAT teams would rush into a crisis quickly gave way to a different sort of police doctrine. As SWAT teams...