Self-Defense - From the Wild West to 9/11: Who, What, When

Abstract

You can't say that civilization don't advance, for in every war they kill you in a new way. (Will Rogers, New York Times, December 23, 1929)

As the attacks of 9/11 demonstrate, traditional state v. state war is largely a relic. How then does a nation-state defend itself - preemptively - against an unseen enemy? Existing international law - the Caroline Doctrine, UN Charter Article 51, Security Council Resolutions 1368 and 1373 - do not provide sufficiently clear guidelines regarding when a state may take preemptive or anticipatory action against a non-state actor. This article proposes rearticulating the law to allow a state to act earlier provided sufficient intelligence is available. By examining international, criminal and constitutional law, and making an analogy to the Wild West, this article proposes a process-based strict-scrutiny approach to self-defense. Under this approach, the executive will have to convince a FISA court, based on intelligence that meets a relevance and reliability standard according to the American criminal law paradigm, that preemptive action is appropriate. This process leads to a check on the power of the executive by placing a judicial check on preemptive action, consequently establishing objective legal criteria for operational counterterrorism.

Keywords: self-defense, wild-west, counterterrorism, legalizing counterterrorism, checks and balances, FISA, criminal law, constitutional law, international law, intelligence information, operational counterterrorism, preemptive self-defense, anticipatory self-defense, counterterrorism strategy