Torts and Terror: Rethinking Deterrence Models and Catastrophic Terrorist Attack

Abstract

Given the complexities inherent in conventional counterproliferation strategies, there is some value in rethinking models of deterrence in the world after 9/11. New threats require new methods of deterrence. The traditional theory of deterrence, and its application, has atrophied since the demise of the Soviet nuclear threat. The idea that deterrence is dead has moved beyond the academy to become fairly accepted political orthodoxy. At the same time, international law scholars generally have walked away from the idea of deterrence, which is predicated on the threat of retaliation, as prohibited by Article 2, Paragraphs 3 and 4, of the U.N. Charter. These views are important because they drive not only how we look at deterrence (and what we signal to our adversaries), but also how we address other issues such as preemptive war and missile defense. One important caveat is that motivation of retaliation must be calibrated based on deterrence of future acts rather than punishment for previous acts. If deterrence does not work or cannot work, then we are more likely to find preemptive war and missile defense attractive responses to catastrophic terrorist attack.

Keywords: deterrence, nuclear terrorism, torts, strategic, WMD, nuclear, Al Qaeda, terrorist, bomb