From the Publisher

CHOICE Outstanding Academic Title for 2004 and Bronze Award Winner for Political Science in the 2003 ForeWord Magazine Book of the Year Awards

On September 11, 2001, the United States began to consider the terrorist threat in a new light. Terrorism was no longer something that happened in other countries on other continents but became a pressing domestic concern for the US government and American citizens. The nation suddenly faced a protracted struggle.

In Terrorism, Freedom, and Security, Philip Heymann continues the discussion of responses to terrorism that he began in his widely read Terrorism and America. He argues that diplomacy, intelligence, and international law should play a larger role than military action in our counterterrorism policy; instead of waging "war" against terrorism, the United States needs a broader range of policies. Heymann believes that many of the policies adopted since September 11—including trials before military tribunals, secret detentions, and the subcontracting of interrogation to countries where torture is routine—are at odds with American political and legal traditions and create disturbing precedents. Americans should not be expected to accept apparently indefinite infringements on civil liberties and the abandonment of such constitutional principles as separation of powers and the rule of law. Heymann believes that the United States can guard against the continuing threat of terrorism while keeping its traditional democratic values in place.

Publishers Weekly

Former U.S. deputy attorney general Heymann (Terrorism and America), now a professor at Harvard Law School, contends that war is the wrong approach to terrorism, calling instead for a revitalized intelligence apparatus to assess and neutralize threats before they occur. But, he argues, such a system must have firmly established limits to prevent its unwarranted use against American citizens. While supporting the battle against the Taliban, Heymann is less enthusiastic about subsequent policy decisions by the Bush administration, accusing it of ignoring the long-term consequences of actions that run counter to democratic principles and erode America's moral authority in the international community. The legal and political analysis is sound though dry and academic, suited more for policy experts than general readers. (Oct.) Copyright 2003 Reed Business Information.

Foreign Affairs

In the debate over how far governments should go to combat terrorism, Heymann is squarely with those who warn that instituting severe measures that undermine democracy plays into the terrorists' hands. He makes the case against declaring "war on terrorism" because such a designation does not distinguish between different types and overemphasizes military responses. Moreover, suspending civil liberties, ignoring international institutions, and looking for quick military fixes all strike Heymann as contrary to good values and good sense. He argues instead for a focus on intelligence collection, law enforcement, and international cooperation. This book is a judicious and systematic guide to the various policy options at each stage of counterterrorism, from prevention (a priority, in Heymann's view) to consequence management; however, its prescriptions (particularly those on the international front) are too brief given the complexity of the situation they are meant to address.

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Terrorism, Freedom, and Security

The MIT Press

Chapter One

In 1998, I wrote a book explaining terrorism as we knew it then. In a new preface for a reprinting in 2000, I emphasized the already growing fears that nuclear and biological weapons of mass destruction would be used by terrorists. Understanding the threat to America of terrorism after September 11, 2001 requires understanding what the situation was before that date and what changed with that attack and with ensuing wars in Afghanistan and Iraq.

Terrorism as We Knew It before September 11

Perhaps the most important point for any student of terrorism to recognize before September 11 was that, for reasons not totally understood, a little bit of terrorism goes a long way. Even small-scale terrorism possesses an almost magical ability to produce fear, anxiety, anger, and a demand for vigorous action in a sizeable portion of a country's population. A handful of terrorists led Canadian Prime Minister Pierre Trudeau to declare a state of emergency in Quebec province. Belgium responded powerfully to a similar concern flowing from an equally small group. The Red Army Faction, which preoccupied Germany for more than two decades, rarely had more than a few active members. Even the Provisional IRA at its most active in Northern Ireland involved only hundreds, not thousands, of armed opponents of the British government.

These small groups were able to reshape the domestic and foreign agendas of great governments even though the level of harm they threatened was very low and their means, with few exceptions, conventional. For more than 100 years, starting in the late nineteenth century, terrorists restricted themselves to assassinations, hostage-taking (which now includes hijacking of planes), and setting off relatively conventional bombs. The lesson for governments was to do what was necessary to protect citizens against a danger that was far less threatening than war or depression while guarding democratic liberties against the anger and fear that terrorism produced.

Before September 11, the United States was dealing with a terrorist problem that, with what then seemed to be two remarkable exceptions-the bombing of the World Trade Center in 1993 and the bombing in 1995 of the Alfred P. Murrah Federal Building in Oklahoma City-posed minimal risks at home. The harm to U.S. citizens abroad from much more troublesome international terrorism was also very small. The danger to our embassies manifested by the attacks in Kenya and Tanzania in 1998 was serious but did not create intense fear and anxiety at home, although we were already seeing the hands of Osama bin Laden and his Al Qaeda organization behind them. The result, as FBI and CIA testimony before the Congressional Intelligence Committees after September 11 has confirmed, was that there was relatively little concern about prevention of attacks in the United States.

How dangerous a situation is depends not only on how bad it is currently-and we were enjoying a prolonged period of safety at home-but also on how likely the situation is to get worse. We saw no particular reason to fear a radical increase in terrorism. Terrorism could threaten us in any one of the following four ways, none of which seemed likely: (1) we could anticipate a higher probability of the type of relatively small attacks against American interests, largely abroad, that we experienced in the 1980s; but these had gone down in the 1990s. (2) More seriously, we could anticipate a sustained campaign of bombings such as those France and Britain had experienced in the 1980s and 1990s. Nothing promised that. (3) We had seen a handful of spectacular terrorist events involving conventional explosives used as powerful car or truck bombs. True, there was the World Trade Center bombing of 1993, and the bombing of the Murrah Building in Oklahoma City, but most attacks were overseas. There were the attacks on the American embassies in Africa and on the Khobar Towers barracks in Saudi Arabia, two large attacks in Lebanon, and more, but these seemed to show that it was easier, and thus more tempting, for terrorists to attack American forces and diplomats abroad than ordinary citizens at home. (4) Finally, we were beginning to worry about weapons of mass destruction, particularly nuclear and biological devices, but nothing like that had been seen with the sole exception of the limited Aum Shinrikyo sarin gas attacks in Japan.

Our attention was focused on how to deal with hostage takers and how to retaliate after a terrorist event. Thus there was little attention paid to prevention, particularly at home. As a result, the September 11 terrorists were hardly challenged in their use of easily hijacked airliners as humanly guided missiles to attack targets that were both symbolic and important.

Prior to September 11, it was possible to describe, with some precision, what options the United States had in dealing with the two most familiar forms of attack by terrorists: hostage taking or deadly attacks against people and property. Terrorists were likely to hijack or take hostages in other forms because of the immense publicity associated with the prolonged detention of, and prolonged danger to, U.S. citizens. Since the object of terrorism is, overwhelmingly, to use the magically exaggerated fear, anger, and anxiety that even a few terrorists can create as a megaphone to speak to audiences that would not otherwise hear or listen, hostage taking had great publicity advantages. The options for a state whose hostages were taken were either to try to rescue them with a sudden military-like assault, or to make concessions to the demands of the terrorists. Otherwise there was nothing to do but stall.

If instead the terrorists had killed a state's citizens or destroyed its property, the remedies took the form of retaliation designed, much like criminal punishment, not only to deter future attacks but also to reassure the public of the targeted nation that they were not helpless and that their leaders were not indifferent. If the United States could satisfy itself and its allies that the attacks were state-sponsored, it could rely on the international law of self-defense to justify a short retaliatory military response, as we did in Libya, Iraq, Sudan, and Afghanistan; or it could attempt to establish diplomatic, economic, or travel sanctions, which required the cooperation of at least the major economies, or secure a UN Security Council resolution like the one that imposed sanctions on Libya after the bombing of Pan Am Flight 103.

If we could not attribute the attack to a state, we could attempt to respond against the individual terrorists or their organization. If the terrorists had fled to another state, that would require extradition as well as assistance in gathering evidence abroad. These forms of cooperation were often not forthcoming from states that either sympathized with the terrorists or feared that the terrorists, who had not bothered them before, would retaliate against them for extraditing someone belonging to one of their organizations. Without the formalities of extradition, a sanctuary state could agree to our arresting someone there. Pakistan did that in the case of Ramsi Yousef, the leader of the 1993 bombing of the World Trade Center. As an alternative, the United States could try to capture the terrorists abroad without the cooperation of a foreign government, a step forbidden by international law and the law of the state where the terrorists were seeking sanctuary. Israel had done this in the case of Adolf Eichmann; we, in the case of the Mexican killers of American DEA agent Enrique Camarena-Salazar.

What Changed on September 11, 2001

What changed on September 11, 2001? First, the ruthlessness and devastation of the attacks convinced us that terrorists targeting the United States would in fact use weapons of mass destruction, including nuclear and biological weapons, if they could obtain and deliver them. Iraq had seemed a likely source. Second, the careful planning and professional execution with which the September 11 attacks were carried out; the attribution of the attacks to an organization, Al Qaeda, which may have trained more than 10,000 would-be terrorists; and the location of that large organization within a context of radical Islamism that may motivate millions-these together created a form and scale of threat totally different from that posed by the handful of largely untrained terrorist operatives we had seen in the past. Moreover, what we could conclude from the September 11 attacks alone cast new light on-had to be reconsidered in the light of-the successful embassy bombings and the near success of the 1993 attack on the World Trade Center.

The first implication of these changes was that our estimation of the size of the danger we faced from terrorism, whether measured by the people attacking us or by the weapons they might use, was suddenly increased by several orders of magnitude. The implication of this was that we had to start taking the problems of prevention and consequence-management vastly more seriously-more seriously, indeed, than the problems of hostage-taking and retaliation that had been our focus before.

Broadly, prevention had two or three aspects: keeping the terrorist events from happening; dealing with the consequences effectively if they did happen; and restoring national confidence thereafter. The first, which took on far greater urgency after September 11, also suddenly looked more difficult because we were dealing with suicide bombers, whose effectiveness was being demonstrated daily in Israel. They had a distinct tactical advantage. Among the half-dozen or so challenges for terrorists designing a successful attack, one had been eliminated: the necessity of planning for the terrorists' escape.

Our ideas about how order was to be imposed on the world's politics also changed on September 11. Until the end of the twentieth century, the relevant set of legal arrangements-the morally binding and somewhat enforceable rules-could be described as a complex network of powers and responsibilities. Most law dealing with terrorism was left to the decision of specific states. Some was created by mutual agreement among sovereign states through bilateral treaties (such as the extradition agreements between the United States and scores of nations) or by multilateral conventions (such as the United Nations Charter or the airplane sabotage convention). Subject to veto, the Security Council could direct states to take (or refrain from) actions where necessary to secure or maintain peace. For example, it imposed sanctions on Libya as a result of the attack on Pan Am Flight 103 over Lockerbie.

What states could do in the name of fighting terrorism was limited in another way. States could and did agree to protect certain fundamental human rights of their own citizens or citizens of other states. By the start of the twenty-first century, many nations, but not including the United States, had even agreed to accept and cooperate with the jurisdiction of an International Criminal Court that could, at the behest of its first prosecutor, Luis Moreno Ocampo, enforce a few of the most basic of these rights against officials and other individuals throughout the world. On less basic matters, an individual state could hold another state responsible for the fair treatment of its citizens when residing as aliens abroad. Aside from these relatively minor restrictions, each state was responsible for the peaceful and useful relations among people within its borders.

While a state could enforce its own laws against terrorism by citizens or aliens-individuals or organizations-within its territory, subject only to its obligations by treaty or tradition to respect human rights and also to protect, in specified ways, citizens of other countries, it could not regulate or prohibit actions abroad except those by its own citizens or those actions directed at consequences within the state or threatening the nation itself. (One further but narrow power allowed every state to punish violations of a very few "universal" norms respecting behavior no state could handle alone or tolerate being left unhandled.) Theoretically State X might order its citizens in State Y to do something State Y prohibited for anyone within its borders, but that possible conflict arose very rarely if ever.

Thus, whether the actions involved states, groups, or individuals, it was decently clear who had the power to regulate their relationships. There were no sizeable gaps-no significant areas of dispute about whose or what law controlled whether a governmental or non-governmental organization or an individual was free to take action A. And the understanding about who could enforce the rules setting any applicable limits for permissible actions was almost equally clear. A state could take military action against another state only in self-defense and pending Security Council response. Other forms of sanction -economic or diplomatic-were only restricted by specific agreements (such as trade agreements). No state could enforce its laws by sending its police into any other state without consent of the host country.

September 11 revealed a gap in this web of legal regimes for states, groups, and individuals that had been intended to deal comprehensively with war, crime, and the rights of non-citizens. Al Qaeda was a sizeable non-governmental organization, operating from a number of states against the people and government of the United States, thereby creating a threat to the lives, physical security, and economic welfare of U.S. citizens and residents. It posed an ongoing danger of attack and harm much larger than that of any purely criminal group, yet it generally operated without ongoing support of a hostile state (thus not making applicable even an extended notion of the power of self-defense against a hostile state). Its activities could be prohibited as crimes against the United States under the rules allowing each state to protect itself against crimes targeting that state. But it planned, trained, and frequently operated beyond the area where we can enforce our laws by sending in police, leaving us to rely on schemes of international cooperation never designed to bear the strain of a systematic set of attacks on our country.

Its first attack relied on visitors from other countries, a category whose relatively free entry into and life within the United States had hitherto been welcomed. Welcoming alien visitors had not posed any comparable danger in peacetime, although "enemy aliens" had traditionally experienced severe controls in time of war between the United States and the state of their citizenships.

Continues...

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Excerpted from Terrorism, Freedom, and Security by Philip B. Heymann Copyright © 2003 by Philip B. Heymann. Excerpted by permission.
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