This Is a Book About Terror and Terrorism

THINKING ABOUT TERRORISM: The Threat to Civil Liberties in a Time of National Emergency Michael E. Tigar thinkingaboutterror.odt, 7/9/2011, page 1 Dedication To my family Author’s Note Material in this book has previously appeared, although with major changes, in Law & the Rise of Capitalism (2d ed. 2000), Fighting Injustice (2002), and in lectures and speeches I have delivered to academic and bar audiences. I have been greatly assisted by Natalie Hirt, a law student at Duke, and by Jennifer Dodenhoff and Maria del Cerro, law students at Washington College of Law. Jane Tigar contributed ideas and sources on issues of executive power. The law libraries at Duke and WCL provided valuable assistance. In footnotes, I have tried to direct the reader to source materials on which I relied. In more than fifty years of writing and speaking on these topics, I cannot with confidence represent that I have acknowledged all the people and works that have influenced me. Many of the ideas here are based on being privileged to represent clients engaged in seeking social change; to them, a special thank you. thinkingaboutterror.odt, 7/9/2011, page 2 TABLE OF CONTENTS Dedication Author’s Note Foreword – Two Kinds of Terrorism PART ONE: STATE-SPONSORED TERRORISM AND ITS PERPETRATORS Defining Terrorism – History, Logic, France and Mark Twain How to Judge State-Sponsored Terror – Where to Stand and What to Do Judicial Proceedings – Letelier-Moffitt Judicial Proceedings – Pinochet, not Kissinger Judicial Proceedings – the French Cases Reconciliation, Amnesty, Truth – South Africa, Chile and Elsewhere International Criminal Tribunals – Jurisdiction, Procedure, Fairness, Limits From the Table of Free Voices: Terrorism, Liberty, Security, Profit PART TWO: GROUP AND INDIVIDUAL TERRORISM – NON-STATE ACTORS Defining Individual and Group Terrorism The Colonial Roots of Terrorism and the Fallacy of Nation-Building Revolutionary Violence, Civil War and Terrorism The People’s Mojahedin of Iran – Case Study of a Flawed Policy The Fourth Amendment, Privacy, and Social Danger Judge Richard Posner, Terrorism, and the Constitution Concluding Thoughts thinkingaboutterror.odt, 7/9/2011, page 3 Foreword – Two Kinds of Terrorism This is a book about terror and terrorism. I am a lawyer and law teacher, but I wrote this book for everyone concerned with the issues that these terms raise. What are terror and terrorism? How have we faced them, and how might we face them more effectively and more in harmony with constitutional history and tradition? How can we learn from the rest of the world’s reaction to terror and terrorism? I have titled the book “Thinking About Terror” because that is what we need to do. Of course, we should face the threat of terrorism, and take constructive action, but action without thought can only make the problem worse. Since September 11, 2001, political leaders, the media, and public figures have brought the words “terror” and “terrorism” into daily discourse. We live under warnings of different colors based on federal declarations of alleged degrees of danger of terrorist attack. There is debate whether laws, and the Constitution itself, must yield to new interpretations based on the threat or existence of terrorism. There is, we are told, a “war on terror.” This war has no well-defined enemy. The assertion that this war exists is not accompanied by a statement of what will constitute victory, or when that might occur. Because, as we shall see, terror and terrorism have existed at all periods of United States history, the war is by its own rather circular definition indefinite. In the name of combating terror and terrorists, the President authorizes searches and seizures without a judicial warrant. When a newspaper reveals these warrantless searches, the executive branch threatens the editors with prosecution. Some detention centers are so secret that even the Red Cross cannot perform its historic international duty of visiting captives to ensure they are being treated humanely. In these centers, captives are tortured. The level of violence in countries with large Muslim populations increases. Here in the United States, attitudes towards Muslims – and Middle Eastern and South Asian people generally – have hardened. Ethnic and religious slurs are commonplace in the media and in public discourse. Hardly anybody feels safer in the midst of this turmoil. The situation has become intolerable. Yet, the dangers we face – of all kinds – will not go away. In a series of essays in this book, I will analyze recent events, and place them in a historical context. The problems we face and the fears that bedevil us are not new. They are old in several important ways. The international problems we face are the same as those faced by every Western nation that has tried to impose its will on the Middle East. The politics of petroleum have dominated that process since World War I. The problems of Presidential invasion of personal liberty, justified by claims that only in this way can some danger be averted or overcome, have been part of American legal and constitutional history at least since the early 1800s. The attack of September 11, 2001 was a predictable result of past events that must be studied to be understood. On the international front, wars in Iraq and Afghanistan – and armed conflict elsewhere in the Muslim world – have provoked increased violence. Michael Scheuer, a former CIA official, has chronicled some results of these conflicts. The perceived injustice of American occupation has fueled recruiting for Muslim extremist groups. Committed young people welcome the opportunity to learn the fighting trade in combat against the most sophisticated army in the world.1 And, it must be remembered, twenty years ago the United States was arming and training Islamist fighters to resist the USSR in Afghanistan. Among those fighters were the people who now work closely with thinkingaboutterror.odt, 7/9/2011, page 4 Osama bin Laden. In his 1982 State of the Union address, President Reagan proclaimed that “we support the mujahadeen.” I have worked in the fields of domestic and international human rights, and on the legal limits of executive and congressional power, for forty years. Lawyers, by virtue of their training and socially-determined position, are in charge of remembering. Some lawyers remember past events in order that they can be repeated. This is sometimes called precedent, which Jonathan Swift said, “is a maxim among ... lawyers, that whatever hath been done before, may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice and the general reason of mankind.” There is another and better way of remembering. Lawyers in this century have remembered the horrors of aggressive war, war crimes, crimes against humanity, genocide and torture, in order to express and apply norms that punish those who commit such acts and, one may hope, restrain those who would commit them. When lawyers “remember” in this way, they are listening to the voices and stories of people who have been oppressed, and using their learning and skill to fashion, apply and support remedies and preventive measures. There are many examples of courageous lawyer conduct, but among the most evocative as I write these words in 2006 is the conduct of military lawyers faced with the reality of unlawful detention and torture at United States military facilities in the period beginning with the conflict in Afghanistan and continuing during the Iraq conflict. Military lawyers are commissioned officers. They wear a uniform. They have taken an oath to support and defend the Constitution. They know as well as anybody what warfare means. Yet a number of them spoke out, first against the Department of Defense proposals to violate or circumvent provisions of the Geneva Conventions and customary international law, and then against proposals to deny detainees any semblance of a fair trial. In this book, I draw on historical parallels to the present time. If we can see how problems like the one we face today were addressed, well or not so well, we will perhaps understand better what to do now. In analyzing past events, there is nothing that can harm us in the present moment. Liberated from our fears, we can better see how to address issues. I do insist on certain themes. First, executive power must never be unchecked. The power to order military action, or to infringe on personal rights to privacy, liberty and security, is not confided to one branch of government. This is a fundamental understanding of the American constitutional system. It is a lesson about governance that has been painfully learned the world over. Second, the United States is part of the international community. In that community, there are rules of conduct. A decision to “go it alone” in violation of basic international standards brings – sooner or later – bad consequences. The United States cannot long continue policies that the rest of the international community opposes. That, however, is simply a selfish reason for acting or not acting. The rules of conduct developed in the past six or seven decades deal fundamentally with the desire, shared by almost all the world’s people, for human rights and economic and social justice. Torture, killing of civilians in aggressive war, support for state-sponsored terrorism, arbitrary detention, and denial of fair procedures bring the state that practices them into disrepute. These practices fuel anger and bring supporters to the banners of those engaged in thinkingaboutterror.odt, 7/9/2011, page 5 terrorist acts. They invite others to commit similar acts. When Israel launched full-scale attacks on Lebanon as a consequence of the acts of the Islamist group Hezbollah, hundreds of civilians were killed. The killings were the product of air raids, accompanied by the use of deadly cluster bombs.

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