9/11 as "piracy" --To the shores of Tripoli

[Michael Froomkin - U.Miami School of Law]

Well, as to the first point I was explicitly taking issue: AQ is not, I
suggest, an entity capable of declaring war as the Constitution
understands, and as we should understand, the term.  Better to see AQ as
pirates, or if you prefer, criminals.

As for the Barbary pirates, I confess to having forgotten what little I
know, but were they not very state-like...based in Tripoli?

Lots of things threaten us which are not "war".  Suppose, for example, the
next nut to terrorize DC has a giant bomb rather than a sniper rifle.  Is
that person at "war" with us? (I'd say, "no, not in any useful sense of
the term.  That is a criminal.")  Suppose he has two bombs, and issues a
declaration of "war" after using one of them? (I'd still say no.)

Obviously there can be hard cases (remember the Maine) when a terrorist
act is (thought to be/said to be) due to a foreign state.

Having said all that, I'll accept that were it the case our government
said it was at war with AQ rather than "terrorism" generally, I'd feel
less bad about the legal situation, although even there the vagueness of
what constitutes an end-state would disturb me.

On Wed, 30 Oct 2002, Stephen Bragaw wrote:

> Two quick problems with this view:  under the Geneva Convention, if
> memory serves correctly, all it takes is one side to declare the war for
> the state of war to exist.  As AQ declared war on the United States six
> years ago, this would raise a significant problem.  The second of course
> is the analogy to piracy:  we fought a very successful war against
> piracy (hence the role of the "shores of tripoli" in the Marine Corps
> anthem).  Yet at no point then were the Barbary Pirates in danger of
> burning Washington and murdering thousands of noncombatant civilians.
>
> Michael Froomkin - U.Miami School of Law wrote:
>
> >Eugene makes an argument ('we are at war') that, as a descriptive matter,
> >is sure to weigh heavily with government officials in all three branches.
> >But one of the reasons we have a constitution is to check the passions of
> >the moment.
> >
> >What troubles me as a constitutional matter is that as far as
> >I can tell, this so-called "war" is going to be permanent, isn't it?  And
> >thus there's no end in sight for any 'temporary' measure proposed to
> >enhance our security.
> >
> >Whether it's a constitutional (or real) "war" matters.  I agree, like I
> >think most people, with the general proposition that in times of "war" we
> >allow (should allow) restrictions on liberty that we don't allow in
> >"peacetime". One of the things that characterizes 'war' as the term is
> >used in the constitution, and as I'd argue it should be used, is that it
> >there exist a set of conditions which, when they occur, we more or less
> >know the war is over (e.g. military victory, a peace treaty), although i
> >recognize the existence of caselaw dealing with the difficult question of
> >exactly when a war ends.
> >
> >In the case of 9/11, I think we're not at war in constitutional terms for
> >many reasons, including the lack of a state opponent.  As serious and
> >horrible as the attacks were, I think they are best characterized
> >constitutionally (and morally) as "piracy", which is something akin to the
> >17th century form of terrorism.
> >
> >The critical difference is that piracy we always have with us, but it
> >doesn't justify a radical and permanent shift away from our traditional
> >liberties.  And I'm not sure that it justifies a temporary one either.
> >
> >(Muddying the waters, I'll admit, is my hunch that our security has not in
> >fact been enhanced much by the large majority of measures promoted as
> >post-9/11 security enhancements.  I suppose I might feel better about
> >something that was very much more clearly means-end rational rather than
> >looking desperate and opportunistic.  But then, due process is always
> >contextual...)
> >
> >
> >On Tue, 29 Oct 2002, Volokh, Eugene wrote:
> >
> >>        Now I fully agree that constitutional rights apply even in war time;
> >>but at the same time, the war might have something to do with how the rights
> >>should be understood, and with which doctrines -- such as the traditional
> >>acceptance of the military detaining many sorts of enemy combatants -- apply
> >>in place of more conventional peace-time doctrines.
> >>
> >>        And it must surely affect, I think, what one sees as the big picture
> >>once all the supposed "dots" are connected.
> >>
> >>        Eugene
> >>
> >
> >--
> >                Please visit http://www.icannwatch.org
> >A. Michael Froomkin   |    Professor of Law    |   froomkin at law.tm
> >U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
> >+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
> >                        -->It's hot here.<--
> >
>
>

--
                Please visit http://www.icannwatch.org
A. Michael Froomkin   |    Professor of Law    |   froomkin at law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
                        -->It's hot here.<--