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On Sept. 11, while Americans were reeling from the horror of the attacks, President George W. Bush announced a fundamental new doctrine. From now on, he said, the United States will no longer distinguish between terrorists and those who harbor them. Both will feel American anger, both will face justice for the most significant foreign attack on the continental United States since the War of 1812. The new “Bush doctrine” straddles two classic legal paradigms — law enforcement and war — and presages the emergence of a third approach to fighting transnational terrorism. The policies and practices of that approach will not be developed overnight. In the meantime, viewing the Sept. 11 attacks chiefly through the prism of war — as the administration and Congress have chosen to do — resolves some questions but raises many others. In the past, the international community, including the United States, viewed terrorism as primarily a problem of law enforcement. The governing principle was that sovereign states are themselves liable for injurious activities carried out by individuals located within their territory. When a manufacturing plant spewed noxious fumes into the air, for example, the government of that country was held accountable for damage to neighboring countries. A failure to curb such activities gave the aggrieved state the right to indemnification, and possibly to imposition of economic sanctions, but not to self-help. Only the territorial sovereign was empowered to conduct law enforcement activities within its own territory. Now the United States has announced its intent to pursue not only wrongdoers within other states, but the states that fail to bring the wrongdoing to a halt. Thus, the United States will regard the pertinent misdeeds not simply as crimes, but — as President Bush characterized the Sept. 11 attacks — as acts of war. Congress has confirmed the new willingness to conflate the two paradigms. On Sept. 14, it enacted legislation that, for the first time in American history, explicitly authorized use of force not simply against states but against persons. Individuals hitherto had been regarded as subject to the workings of criminal justice systems, not military systems. Now terrorists will be dealt with by soldiers as well as by police. The impulse to move from the paradigm of law enforcement to the paradigm of war is understandable. The United States has already tried the law enforcement approach. For years, the United States treated terrorists like cross-border polluters. Complaints were made to host governments, but the states themselves were not attacked. When the governments proved recalcitrant, the United States slogged through multiyear legal processes — which often ended up hurting everyone but the wrongdoers. Ten years went by before the bombers of Pan Am Flight 103 were brought to trial. Sanctions imposed by the United Nations Security Council for Afghanistan’s refusal to extradite Osama bin Laden made life harder for Afghanistan’s long-suffering civilians, but had little perceptible effect on its rulers. Swift and sure justice — since time immemorial the sine qua non of meaningful deterrence — was not a hallmark of the law enforcement approach. The shortsightedness of relying upon that paradigm alone was demonstrated all too conclusively on Sept. 11. SELF-DEFENSE REDEFINED? As the French have suggested, however, shifting to the war paradigm raises as many questions as it answers — internationally as well as domestically. On an international level, the U.N. Charter permits use of force only in response to an armed attack. The policy judgment behind this bright line is that permitting states to respond with armed force to speculative or remote threats would be a formula for instability. The aim of the United Nations is to curb interstate violence, not to promote it. Is the United States now willing, the U.N. Charter notwithstanding, to embrace an announced policy of anticipatory self-defense? Second, the international laws of war prohibit targeting civilians under any circumstances. Yet as the United States learned painfully in Vietnam, distinguishing civilians from combatants can be very difficult — particularly when ground troops must root out the enemy in areas populated by its supporters. The Sept. 14 legislation permits the use of force against persons who “aided” or “harbored” the “organizations or persons” behind the Sept. 11 attacks. Is this intended to authorize use of force against civilians? If so, would the United States again contemplate free-fire zones of the sort that were established in Vietnam — areas in which every living person was presumed to be a member of the enemy’s military, and thus a legitimate target? Who, indeed, is a “civilian” in such a conflict? Third, the ban on assassinations set forth in Executive Order No. 12,333 is under review. Whether this order is repealed now is largely irrelevant, since under last-in-time principles a subsequent, inconsistent order given by the president would supersede it. Nonetheless, the question arises whether the United States is willing to target specific civilian leaders detached from the military chain of command in states that have provided safe havens to terrorists. Domestically, the issues are equally profound. The Sept. 14 legislation sets forth no geographic limit; it empowers the president to “use force” at home as well as overseas. But what does it mean to “use force” against “persons” located within the United States? Does the president now have the power to arrest or detain a person without probable cause, solely on the basis of a subjective belief that the person somehow “aided” terrorists? What standard of proof is required? Is this intended to be an exception to existing requirements for judicially issued warrants? Will this hastily written law eclipse 14th Amendment prohibitions against ethnicity-based discrimination — as Congress and the president did during World War II in the case of Japanese-Americans? None of these questions has a clear answer because no hearings were held; the legislation was drafted behind closed doors with no chance for public scrutiny or comment. Perhaps the new law will not lie about (as Justice Robert Jackson characterized the opinion upholding Japanese-American detention in Korematsu v. United States) “like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” But history counsels us to be at least minimally aware of the risks that war entails. Internationally, improvident use of force could trigger worldwide tit-for-tat violence, replicating the downward retaliatory cycle that burdens the Middle East and enveloping the planet in a new dark age of global spite and retribution. (Substituting “crusade” for “war” — as President Bush briefly did — only heightens that risk, given the term’s unfortunate historical connotations in the Islamic world.) Domestically, terrorism could come to play the divisive role that communism once did in our political discourse, with taunts of “soft on terrorism” taking the place of serious discussion in an atmosphere of heightened fear and lessened freedom. FIGHTING FOR CIVILIZATION Grave as these risks are, however, they pale next to the risks of underreacting to the events of Sept. 11. Continuing to adhere exclusively to the failed law enforcement model would create an even more dangerous world, one in which terrorism’s victims grow in number because civilization’s defenders are cowed into inaction by the very humanity that they seek to protect. While its vocabulary is not altogether apt, the notion of war offers a better paradigm for most of the sorts of activities that must be pursued. We will, for example, need allies, whose bases, intelligence, and other assets will be essential to waging an effective anti-terrorist campaign. We will need to carry out air strikes to destroy command and control mechanisms. We probably will need to invade and, at least temporarily, occupy enemy territory, not simply to apprehend suspects but to destroy training camps, protect friends, and appropriate assets such as oil fields from which terrorist organizations derive funds. In some instances, replacement of a host government may be necessary (though an administration official has acknowledged misspeaking in an earlier suggestion that some “states” might have to be eliminated). Gradually, a new counterterrorist paradigm will take shape, one that draws upon the rhetoric and elements of both crime and war. Its elements will flow, to paraphrase Justice Oliver Wendell Holmes, not from logic but from experience — old as well as new. Apposite principles may be resurrected, for example, from the ancient law of piracy, under which it was long settled that persons engaged in piratical operations were entitled to the protection of no nation and could be punished by any nation able to capture them. The newer law of war crimes, too, contains obvious analogues, though many of its rules apply to states and state actors, rather than to private persons. The process of devising the new approach will doubtless be ad hoc and improvisational. Failures will occur –because evildoers can never be completely eliminated and because they thrive on a far lower success rate than do the forces of civilization arrayed against them. Mistakes will be made — and will be all the more difficult to admit in a frenzied and frightened time. Revisions will be needed — and will be all the more difficult to make if the courts again sit on the sidelines, where they invariably have been in past national security emergencies. After all the fits and starts, however, the new Bush doctrine will not be judged by the unavoidably messy and inexact process from which it emerges. It will not be judged by whether the world has been rid of evil: The nation will never again enjoy that pre-Sept. 11 sense of invulnerability. Nor will it be judged by whether the American ambit of civil and political liberty has in every minute respect been preserved: When danger increases, freedom inevitably decreases. The test, in the end, will be whether the safety and well-being of the American people have in the aggregate been strengthened or weakened. “The greatest dangers to liberty,” Justice Louis Brandeis wrote, “lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” If the Bush doctrine is to enhance rather than undermine the nation’s security, its ultimate meaning must be forged with balance and understanding, not zeal.

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