A liberal communitarian paradigm for counterterrorism.

AuthorEtzioni, Amitai

This paper argues that the current normative and legal paradigms that shape the United States' response to security threats posed by acts of transnational terrorism are misapplied In the international arena, we should downplay states' right to sovereignty in favor of a paradigm that requires nation states not only to protect select common goods including the responsibility to protect (R2P), but also to observe a new duty, namely, not to harbor or support terrorists. With regard to those alleged terrorists who are captured the current paradigm that treats them as criminals should be replaced with one that treats them as a distinct class of defendants, entitled to their own rights and procedures--just as we deal differently with ex-cons, sex offenders, and many other classes of offenders. Finally, those terrorists faced in armed conflicts should be expected to abide by the rule of distinction and, if they violate it, they should bear part of the onus for the resulting collateral damage.

The paradigms most often employed in conceptualizing and legitimating counterterrorism campaigns--the paradigms of war among nations and of law enforcement--are ill-suited to meet new realities. (1) The considerable policy mistakes, misjudgments, and above all, morally flawed positions that are caused by the misapplication of these concepts, point to a need for a distinct normative and legal paradigm for dealing with transnational terrorism. This Article focuses on the normative assumptions of such a paradigm, which have clear legal parallels. Further, this Article seeks to develop this distinct paradigm by situating it in ongoing transnational moral dialogues on the just and effective ways to combat terrorism. (2) This distinct paradigm would benefit if it were consolidated into a new Geneva Convention in the future.

  1. INTRODUCTION II. RIGHTS AND RESPONSIBILITIES OF NATIONS A. A Stressed Paradigm 1. Respect for Borders: "Declared Theaters of War" 2. Misapplied Rules of War B. Toward a New Paradigm 1. Defining Down Sovereignty 2. Sovereignty as Conditional 3. A Third Responsibility III. TERRORISTS AS ABUSIVE CITIZENS: CAPTURED AND NOT KILLED A. The Misapplication of the Civil Society Paradigm 1. Prosecution Instead of Prevention 2. Criminal Procedures: Damaging and Undeserved 3. Distinct Rights for a Distinct Class B. Toward a New Paradigm 1. National Security Board IV. NORMS AND RULES FOR ARMED CONFLICTS WITH TERRORISTS A. The Main Onus of Responsibility for Collateral Damage 1. No Moral Equivalency and Just War Principle B. Boots Off the Ground 1. Working with Local Forces 2. The Use of Special Forces 3. Drones: Major Advantages 4. Review and Oversight C. Armed Conflict Zones and Evacuation Opportunities V. CONCLUSION I. INTRODUCTION

    The dialogue surrounding the principles that guide the treatment of terrorists is hardly new, although its focus has shifted over the years. In the 1970s, much attention was paid to the ways Britain dealt with terrorists in wake of "the troubles" in Northern Ireland and to the new antiterrorism laws the mother of democracy enacted in response. In the 1980s, considerable attention was paid to the ways Israel dealt with terrorists. In the aftermath of the 2001 attacks on the United States homeland, attention has shifted from terrorists who limit their activities to their nation and "lone wolf" terrorists, such as Timothy McVeigh, to a focus on transnational terrorists and their networks.

    The transnational moral dialogue about the issue lost some of its intensity in the decade after 9/11 as terrorist acts in the West were infrequent and often failed, and those that succeeded did not cause massive casualties. In many other parts of the world, however, terrorists continue to pose a major threat. The risk that terrorists will acquire weapons of mass destruction (WMDs) continues to constitute a major security threat. There have been at least six serious terrorist attempts to penetrate storages of nuclear arms in Pakistan alone. (3) Moreover, states continue to wage counterterrorism campaigns across national borders, most notably by the use of drones, special forces, and intensified surveillance. This Article discusses the ways these transnational campaigns ought to be framed in order to bolster their legitimacy without curtailing their effectiveness. It suggests that a much stronger case can be made for these campaigns by drawing on normative paradigms that break away from the traditional framework of viewing terrorists either as criminals or as soldiers.

    First, a few lines about key concepts and their relationships. "Terrorists" are here defined as individuals who seek to drive fear into a population through acts of violence in order to advance their goals in a sub rosa manner. Title 18, section 2331 of the U.S. Code defines terrorism as activities that:

    1. [I]nvolve violent acts or acts dangerous to human life that are a violation of criminal laws ... b) appear to be intended--(i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and c) occur primarily outside the territorial jurisdiction of the United States. (4)

    This definition seems quite clear although there is always room to ask for more specificity, if this is required, one should employ the criteria often used in legal deliberations--what a reasonable person would consider a terrorist act. The establishment of an authority charged with discerning the judgment of reasonable people is given further consideration below. While this Article follows the definition above, it deals only with those terrorists who strike countries other than their own, that is, only with acts of transnational terrorism. (5)

    "Normative paradigm" refers to a set of values that indicates what conduct is morally appropriate and differentiates right from wrong. References to normative paradigms raise the question: whose values? A simple answer is: whoever holds them and finds them compelling. (6) Normative paradigms contain both an intellectual element, in the sense that they include moral reasons for holding whatever positions are prescribed, and an affective element that makes those who subscribe to these paradigms emotionally engaged in their support. Unlike codes of law, normative paradigms are informal. They are rarely embraced by all, and are held in varying degrees of intensity by those who subscribe to them.

    The relationship between normative paradigms and codes of law is exceedingly complex and is touched upon here only insofar as such an examination is needed for the following discussion. Some scholars hold that changes in the law can lead to changes in normative paradigms. For instance, an executive order to desegregate the U.S. military in 1948 is said to have preceded a shift in the normative rules governing the relationship between whites and blacks in the U.S. South. (7) Others hold that normative changes lead to changes in the law; for example, changes in the ways young U.S. citizens view homosexuality is seen as leading to the legalization of same-sex marriage. (8) This Article assumes that a third position better captures the historical evidence: that in most circumstances normative and legal developments require movement on both "legs"; that while one kind of development can move ahead of the other, if the two elements move apart a great deal, they endanger the stability of the body of thought and the beliefs at issue. We shall see shortly that the normative paradigms currently applied to terrorists--that we ought to view them either as soldiers (the liberal international order paradigm) or as criminals (the civil society paradigm)--are particularly stressed, suggesting the need for a different normative approach. Given that more than a decade has passed since the 2001 attacks on the U.S. homeland, a period in which both Republican and Democratic administrations have shaped the fight against global terrorism, the time is ripe to review which positions withstood the test of time and political changes and which failed. (9) The time has come to consolidate and institutionalize a new paradigm, if the evidence shows--as the Article argues---one is sorely needed. (10)

    There are understandable reasons why once mutually-reinforcing normative paradigms and codes of law are well-ensconced; they resist breakdown even after the reality changes significantly. Thomas Kuhn pointed out that even scientific paradigms resist change, even though the essence of the scientific methodology is openness to new evidence (11) Paradigms are frequently sustained even as more and more facts cast them in doubt (so called "stubborn facts"), until the paradigm can no longer hold and the dam breaks, opening the way for a new paradigm to replace it.

    The reason for such persistence is that to form a normative paradigm (and a symbiotic legal code) requires great effort and investment. Decades of moral dialogue, consensus building, legislation, court cases, and public education slowly build such a paradigm. Millions of people come to believe in it, weave it into their worldview and political preferences, and even intertwine it with their personal identities. Hence the strain of dissonance between the paradigm and reality may be high before one can expect a paradigm to break down and it be replaced with a new one. This Article suggests that, when possible, a more gradual transition is to be preferred, and seeks to contribute toward that end.

    The discussion focuses on the normative part of the dynamic. That is, although I fully recognize that we must move on both "legs" to proceed, currently the prevailing normative paradigms are particularly lagging behind the new international reality and hence warrant special attention. Also, I focus on the normative rather than the legal because I have no legal training and...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT