Thursday, September 6, 2007

More on Counterterrorist Law

Instapundit reviews The Terror Presidency: Law and Judgment Inside the Bush Administration. Which leads me to attempt to clarify yesterday's post.

We currently have bodies of criminal law and bodies of law governing state-to-state warfare. Counterterrorism fits into neither of these categories. I suspect an entirely new branch of law is required to deal with the emerging threats to global civilization from non-state actors. These laws need to be preemptive in nature and transnationally executed. They need to protect and make whole the innocent, but they also must acknowledge that existential threats must be dealt with, even when criminality hasn't yet technically occurred.

The last six years have proven how difficult it is to straddle the criminality/warfare divide. The furor surrounding the Bush Administration's actions is healthy but it's ultimately misdirected. The argument has been oscillating wildly between criminal approaches and military approaches, when the proper argument is "none of the above."

I know this sounds horrible. It flies in the face of 400 years of an evolving view of criminal law that places the rights of the accused on an equal basis with the prerogatives of the state. But the sad fact is that this is the first time in history where a small number of stateless individuals can threaten the security of a state. The situation will likely worsen with time--technology is not our friend here. Evolving a social consensus on how to deal with this problem is essential.

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