Trials By Fire: Counterterrorism and the Law

Introduction

In the decade following the attacks of 11 September 2001, the United States has attempted to better combat the threat of terrorism through two general mechanisms -- by unleashing its fearsome military and intelligence might upon foreign and domestic enemies; and by building upon preexisting legal infrastructure to account for the new menace to the country. Yet many critical questions remain: What is a 'terrorist?' Does Cicero's claim that, "In times of war, the laws fall silent" apply to this new sort of amorphous conflict? What is the appropriate balance between implementing the counterterrorism mission and maintaining an open society? How can we safeguard our liberty while minimizing our chances for another attack? What do the laws say what we can or cannot do in the pursuit of our enemies? And what are these laws worth if they do not protect citizenry from danger?

The primary purpose of Trials By Fire is to help policymakers, legislators, and the general public gain a better understanding of the complex nexus between counterterrorism efforts and the law. Given the controversial nature of the topic, we have tried to present these issues in a nonpartisan manner in order to allow the reader to make an informed decision on the subject without delving into the legal minutiae.

We also authored this book to provide students of national security policy with a foundation on counterterrorism law. This work certainly does not supplant the volumes of learned books and intricately analyzed law journal chapters that have been published in this area over the last several years; rather, we encourage our students to use this as a 'jumping off point' for deeper research.

Despite their most concerted efforts, terrorists will not cause the systemic collapse of American civilization. As such, this publication is ultimately not about them. Rather, it is about us and whether we as a people and as a nation can craft appropriate, legitimate mechanisms to safeguard our society from external danger without compromising too many of our core national values along the way. Terrorists may be able to inflict deaths and destruction upon innocents in this country and abroad, but it is more important that the American public and its political class make the choices to keep this nation intact in the 21st century.

Policymakers, legislators and jurists have made and will continue to make -- in the harsh light of hindsight -- ill-advised choices. Despite the best intentions and efforts of hundreds of thousands of soldiers, case officers, analysts and cops, terrorists will attempt to strike the country and its citizenry again, and may occasionally succeed. Nevertheless, it will be through our laws and our system of government that we will find, if not a permanent safe harbor against danger, at least the most American means to safeguard our nation and our people.

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