American anti-terrorism laws are insufficient to address the next wave of global terrorism. When President Bush declared that the United States had begun a “war on terror,” the entire government began to reorient itself to tackle America’s newest “generational challenge.” The Department of Justice (DOJ) joined this massive effort, declaring in a new Strategic Plan that its focus was not simply to prosecute terrorists for crimes, but to “[p]revent, disrupt, and defeat terrorist operations before they occur.” Despite its constant talk of reorientation, however, DOJ has been limited in its ability to creatively address the war on terror for one simple reason: many of the relevant federal criminal statutes are poorly constructed. Prior to September 1994, there were no federal criminal prohibitions that specifically punished material support for terrorism. Prosecutors had to rely instead on generic federal crimes, such as murder and money laundering, or on a variety of statutes condemning specific acts of terrorism, such as air piracy or hostage taking. After the 1993 terrorist bombing of the World Trade Center, this situation rapidly changed. Legislators hastily drafted a number of statutes and amendments that sought to address the domestic terrorist threat. Acting in response to public demand for quick, decisive action, Congress generally maximized the scope of anti-terror prohibitions while overriding any legal obstacles to quick prosecution that were presented by the judiciary.
Category: Teaching National Security Law
Litigating National Security Cases in the Aftermath of 9/11
The treacherous terrorist attacks against the United States on September 11, 2001, and the aftershocks that are still being felt years later, have had a profound effect on the legal landscape in the United States. In 9/11’s immediate aftermath, Congress, in a rare and fleeting moment of bipartisanship, gave the President far-reaching authority to combat terrorism.
Symposium: Lawyers’ Roles and the War on Terror Foreword: Risk, Deliberation, and Professional Responsibility
If, as de Tocqueville observed, everything in America eventually becomes the province of lawyers, it should not be surprising that the conduct of lawyers has become a salient aspect of the war on terror. While terrorists typically express contempt for the rule of law, lawyers in a democracy should know better. Unfortunately, crises sometimes push lawyers from their traditional roles as advocates and counselors into less auspicious roles as enablers of overreaching. The legal response to the attacks of September 11 has highlighted the ethical pressures imposed on lawyers in crisis situations. The contributors to this symposium focus on two important subjects: (1) the ethical issues triggered by the recommendations of government lawyers on treatment of detainees (the so-called “torture memos”), and (2) the debate over the ethics of the government’s placement of restrictions on civilian defense lawyers representing alleged terrorists in government-dominated fora such as military commissions. The torture memos represent a conflict between the lawyer’s role as advocate for a client’s position and the attorney’s role as advisor offering an accurate account of the law as it exists. Symposium contributors argue that lawyers in the Office of Legal Counsel of the Department of Justice are advisors charged with the latter role. They argue further that these attorneys failed in that obligation.