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This year marks the 15th anniversary of the end of the Cold War, measured by the 1989 fall of the Berlin Wall. That event, and the breakup of the Soviet Union that followed, ushered in a new period in our national security. As the Sept. 11, 2001, terrorist attacks now show, there was no lasting “peace dividend” as the result of being the winning superpower. To the contrary, the asymmetric threat of individual terrorists may be more costly to our society than traditional threats, judged by time, treasure, and talent. In the last two years, countless actions have been taken in response to the terrorist attacks: military campaigns, with a potentially long-term occupation; waves of new legislation, including the most significant reorganization of the executive branch in a century; and unprecedented use of criminal, immigration, and military laws to prevent and punish future terrorist acts. For lawyers concerned with homeland security, this raises a question: Where is the private bar in all of this activity? Of course lawyers have been active in critiquing the procedures used against the terrorists in federal court, in considering the liability issues caused by the terrorist attacks, and in helping individual victims. But I believe that private lawyers — both practitioners and academics — have not been active enough participants in the effort under way to create a new architecture of legal structures to protect both our security and our way of life. LAW AT THE CENTER Unlike in the Cold War, law is at the center of this new national security paradigm. Our future national security will be determined by law and implemented by lawyers, simply because the terrorist threat will be inside the United States, where domestic law and law enforcement are responsible for our security. No surprise, then, that the Department of Justice and the Federal Bureau of Investigation are leading players in the war on terrorism. For the same reason, our private sector, and the lawyers who represent it, will inevitably assume a new responsibility for protecting our national security. A fundamental realignment in roles and responsibilities is under way. And lawyers, the traditional architects of our governmental systems and their relationships within our society, must be involved in crafting the details of these changed relationships, as well as in developing the new legal tools to combat terrorists. As seen in the new Homeland Security Presidential Directive issued in December, which conveys new requirements to protect critical infrastructures and key resources, government attorneys will be the obvious epicenter of the tectonic shift already under way. But there will be an equally important role for private attorneys. In zealously representing the best interests of their clients, private lawyers will help craft the society in which those clients live and function. I offer below a few areas of law that are changing in response to homeland security, where the voices of private attorneys are especially needed. TO PUNISH OR TO PREVENT? The most obvious of the changes under way is the use of criminal law to prevent harm, rather than to punish those who cause it. Aggressive use of legal devices such as arrest warrants for material witnesses or electronic surveillance techniques under the standards of the Foreign Intelligence Surveillance Act — not to mention detention under our immigration laws or extra-law-enforcement efforts to detain others in military custody — dramatically alter the theoretical approach of our criminal law structure. In doing so, we undermine our traditional approach to protecting individual rights and freedoms in an effort to protect the nation as a whole. We are asking our criminal justice system to perform a job for which it was not designed. We have tolerated the resulting strain out of concern for our national security, and in the belief that the distortions in traditional criminal procedure represented by a series of high-profile cases will be temporary. The recent wave of heightened terrorist threats, however, strongly suggests that the United States is not confronting a short-term situation. The war against terrorism is likely to be a long-term affair. So the time has come to explore whether new systems for safeguarding our traditional rights and liberties in the context of protecting the nation against terrorism are possible — certainly it is clear that they are needed. Indeed, our experience to date shows that prosecuting individual terrorists may be impossible within the traditional limitations of our criminal justice system. It is also increasingly clear that the al Qaeda terrorists do not fit within traditional structures under the international law of war. These conclusions should move us to explore new approaches, sanctioned by Congress and discussed within the international community. Private attorneys representing defendants in criminal trials are perhaps better positioned than anyone else to see the strain that terrorists have placed on our criminal system. By adding their thoughts to the mix of possible alternative approaches to protecting our society from terrorists, criminal defense lawyers can help protect the system of criminal procedure rights that they cherish, while also providing protection for the country that provides those rights. THE NOT-SO-PRIVATE SECTOR Equally fundamental are changes in the role of the private sector created by the Homeland Security Act of 2002 and related legislation. This new body of law recognizes terrorists as flexible opportunists who will strike where protection is lowest and where the potential for disruption of the civilian population greatest. From the terrorists’ perspective, there is no more attractive target than the various interlocking fundamental systems on which the success of our economy rests: the power grid, and our telecommunications, transportation, and financial systems, which are so heavily interdependent on one another. As the August 2003 blackout demonstrates, a failure in one location can quickly cascade into a systemwide problem. Added to these critical infrastructure systems is the opportunity to convert unguarded private resources, whether airplanes or facilities in the chemical or biotech industry, into weapons of mass destruction. It is said that over 85 percent of our nation’s critical infrastructure systems are privately controlled. Most are at risk. The obvious result is that our national security can no longer be the sole responsibility of the national government. The private sector has a vital role to play. It must take responsibility for preserving our national security by protecting its own individual facilities and personnel. It will be the task of new laws and implementing regulations to prompt a change in behavior. Only a small fraction of those laws are now in place; private lawyers must take seriously their responsibility to offer their creativity and skill to lend their voices to those crafting the myriad rules still to be written. PERSUADING PEOPLE TO ACT The challenge of re-conceptualizing the private sector as a collection of assets, all requiring national-security-level protection, is significant. Yet defining this problem is only a first step. Because these systems are owned, operated, and controlled largely by the private sector, a solution to the problem requires persuading a vast array of private actors of their need to take seriously a new role in protecting the national security. Initial efforts by the Bush administration when it was elected avoided regulation and governmental subsidy in favor of encouraging private voluntary action in response to the potential liability of such an attack. These efforts, however, were only partially successful. In fact, it required the attacks of Sept. 11 and the Aug. 13 electric power grid blackout to convince a broader cross-section of our national leadership that action was required to improve the private sector’s motivation and ability to address these problems. The result has been a broad array of provisions dealing with the Freedom of Information Act, antitrust, and other concerns, all designed to make sure that in the future, private sector actors recognize and effectively implement their responsibility for ensuring national security goals. These efforts to achieve private sector security are a beginning, but more thought is needed on how best to secure private structures critical to our national security. The costs of such security will typically exceed the levels that individual private companies would normally shoulder, left to their own economic interests. The challenge is thus how to encourage an increasing part of the private sector to build into its operating assumptions a level of security beyond what its own economic interests dictate. How we motivate closing this gap between national and individual levels of security is a question of motivation. Our choice of regulation, subsidy, or other incentive will determine what part of the added costs are borne by private industry, the public, or both. MAKING SECURITY WORK Ensuring that such heightened security actually occurs is the next challenge. Who will bear responsibility for determining appropriate security standards and what tools will be put at their command to ensure compliance? The choices will include a wide range of options from a legislatively mandated regulatory framework to industry-controlled standard setting. The topics will be broad, from technical issues to questions touching on personnel security, questions that will surely involve not only the legislative and executive branches, but representatives of industry and labor as well. In all cases, significant participation in the design of such a security system will need effective participation by industry members and their lawyers. The inevitable conclusion from even this brief overview of the unprecedented legal demands of the new national security paradigm is that all parts of our legal system are likely to go through change. Private lawyers will have a vital role in the rethinking necessary to ensure that our obligation to protect the nation is structured so as to be both effective and consistent with our most fundamental legal values. Changes in the supporting structure of our society are something for experts, the lawyers who traditionally have served as its architects. Elizabeth Rindskopf Parker is the dean of McGeorge School of Law at the University of the Pacific in Sacramento, Calif. She formerly served as the general counsel of the Central Intelligence Agency and of the National Security Agency.

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