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The United States faces three enduring terrorism-related threats. First, there is the realistic prospect of additional attacks in the United States including attacks using weapons of mass destruction (“WMD”). Second, in responding to this threat, we may undermine the freedoms that enrich our lives, the tolerance that marks our society, and the democratic values that define our government. Third, if we are too focused on terrorism, we risk losing sight of this century’s other certain threats as well as the capacity to respond to them, including the state proliferation of nuclear weapons, nation-state rivalry, pandemic disease, oil dependency, and environmental degradation.

The United States should respond to these threats using all available and appropriate security tools, on offense and in defense. Law is one of the essential security tools. Law provides substantive authority to act. Law can also provide and embed an effective process of preview and review to test proposals and validate actions, ensuring that they are both lawful and effective. However, the United States has been slow, or perhaps unwilling, to adopt a legal architecture that maximizes each of these legal benefits. Instead, the political branches have generally adopted an incremental approach, or relied on the President’s authority as Commander in Chief to define the law.

This paper describes four principles that should inform the design of a lasting legal architecture to counterterrorism: First, the architecture should reflect an understanding of the strategic value of law in substance, process, and policy. Second, the architecture should reflect the threats it is intended to address, including the potential catastrophic nature of the physical threat, which distinguishes this form of terrorism from that of the past. Third, with limited exception, the law should avoid absolutes—in the authority asserted; in the authority prohibited; or, in bureaucratic design. Finally, the architecture should be lasting, which means among other things that it should be “constitutionally inclusive” in design. A lasting and inclusive architecture will improve security—by maximizing the Executive’s authority to act, sustaining support for tools and policies, and improving the opportunity and efficacy to appraise U.S. actions.

Publication Citation

2 Advance J. ACS Issue Groups 21-35 (2008)