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Stanford Report, September 26, 2001

International law scholars debate criminal, military pursuit of terrorists

BY MEREDITH ALEXANDER

How should the United States respond to acts of terror committed on its soil? Should we treat terrorists as criminals and pursue them in our courts, or is this an issue of national security that should be resolved by military action?

In light of the terrorist attacks of Sept. 11 and the thorny questions they raise, Stanford international law scholars gathered at a forum last week to offer their perspectives. The forum, held at the Law School Sept. 20, attracted a crowd of around 150 people.

Professor Thomas Heller, foreground, and, left to right, Professor John Barton, SPILS director Jonathan Greenberg, Assistant Professor Mariano-Florentino Cuellar and Research Director for Rule of Law Project Erik Jensen provide input during a panel discussion on anti-terrorism policy at the Law School Thursday, Sept. 20. Photo: L.A. Cicero

Chairing the panel discussion was Jonathan Greenberg, academic director of the Stanford Program in International Legal Studies, which awards law degrees to international students. Panelists were Erik Jensen, research director for the Program in International Law, Business and Policy and co-director for the Rule of Law Project, and several professors from the law school: John Barton, Thomas Heller and Mariano-Florentino Cuellar.

"There are two paradigms for dealing with acts of terrorism," Greenberg explained. On the one hand, there is the perspective of criminal justice, which pursues terrorists as criminals to be tried in courts under the rules of due process, and on the other hand, there is the perspective of national security. In the latter, he said, leaders consider a potential military response, where armed forces go after terrorists and, perhaps, governments that harbor them.

The Bush administration is already gearing up for military action, Greenberg acknowledged. But using force could create more problems, he said. Even if military attacks are successful, he continued, "assuming we topple these regimes, will we govern Afghanistan, Iraq, Lebanon?"

Jensen, who once lived in Pakistan, blamed "myopia in U.S. foreign policy" for indirectly feeding the terrorist violence. He traced Afghani hatred of the United States to its citizens' sense of abandonment after their war with the Russians ended in 1989. The United States had supported the combat, but withdrew funding after the fighting was over.

He added that Pakistan shared many of Afghanistan's resentments -- and its religious fundamentalist movement. "Pakistan has faced growing Talibanization," he said. "There's a strong sense of anti-U.S. sentiment."

Jensen also argued that the U.S. government has not always distanced itself from the Taliban: In 1995, he said, the United States was trying to negotiate with that group for an oil pipeline through the region.

According to Jensen, the best response to the terrorism would include forgiving debts in the region (Pakistan is currently $38 billion in debt), providing grants of aid, developing stronger intelligence in the area (possibly tapping into Pakistani intelligence, which has deep knowledge about Afghanistan), and creating a new "Manhattan project" within the CIA to attack terrorism.

Barton, the George E. Osborne Professor of Law and an expert in international law, drew a distinction between evidence collected under due process, with judicial review -- using warrants, with reasonable cause -- and the types of evidence collected by intelligence officials, through surveillance or other means. Can you use intelligence data in a U.S. court of law? he asked. It's a question without a clear answer.

Pursuing military action against terrorists abroad also raised concerns for Barton, who said that he feared that an attack by the United States could lead to "a war of the rest of the world against certain Muslim countries."

Whatever means the United States finds to justify its response, he added, will probably be applied to other types of non-state interventions -- such as the "war on drugs" against trafficking rings.

Heller, the Lewis Talbot and Nadine Hearn Shelton Professor of International Legal Studies, said that criminal law could be applied to specific terrorists, while the law of war could be applied to states that help them.

He then offered thoughts about "how we should feel" about the attacks. His own feelings about the United States, he acknowledged, are complicated.

"This is an incredibly imperfect country," he said. "We can go through the mistakes and line them up. God knows a lot of us, including myself, have spent our lives doing that."

Yet it is this freedom to criticize the country that, in a sense, makes it worth defending. American tolerance and commitment to pluralism, he said, seemed to be at the root of what angers some terrorists. "I have a feeling that we have been attacked for what is good about us, rather than our imperfections," he commented.

But responding to terror is not going to be easy. "Part of the trouble with dealing with non-democratic states is that they make deals with those who are the greatest threat to them," Heller warned.

Cuellar, an assistant professor new to the Law School this fall, has expertise in both international criminal law and national security. He made a case for looking at the terrorism through a criminal law lens. "Our national security is at stake," he said, but he cautioned that "we should not lose patience with the criminal justice model."

Cuellar explored the impact that counter-terrorist legal measures could have on immigrants in the United States. Currently, "the Justice Department has the right to hold [immigrant] people for 'a reasonable period of time,'" he said. Yet no one has defined how long a reasonable period is.

"Many immigrants face deportation," he said, based on "classified information that the immigrant never has the right to see."

Later, in response to a question from the audience, Barton summed up the panel's misgivings about all approaches to fighting terrorism.

"I'm not sure there is an endgame," he said. "The war on terrorism is like the war on crime. It will always be with us."