A Liberal Communitarian Paradigm for Counterterrorism
42 Pages Posted: 15 Nov 2013
Date Written: November 13, 2013
This paper argues that the current normative and legal paradigms that shape the Unived States' response to security threats posed by acts of transnational terrorism are misapplied. In the international arena, we should downplay states' right to sovereignty in favor of a paradigm that requires nation states not only to protect select common goods including the responsibility to protect (R2P), but also to observe a new duty, namely, not to harbor or support terrorists. With regard to those alleged terrorists who are captured, the current paradigm that treats them as criminals should be replaced with one that treats them as a distinct class of defendants, entitled to their own rights and procedures -- just as we deal differently with ex-cons, sex offenders, and many other classes of offenders. Finally, those terrorists faced in armed conflicts should be expected to abide by the rule of distinction and, if they violate it, they should bear part of the onus for the resulting collateral damage. The paradigms most often employed in conceptualizing and legitimating counterterrorism campaigns -- the paradigms of war among nations and of law enforcement -- are ill-suited to meet new realities. The considerable policy mistakes, misjudgments, and above all, morally flawed positions that are caused by the misapplication of these concepts, point to a need for a distinct normative and legal paradigm for dealing with transnational terrorism. This Article focuses on the normative assumptions of such a paradigm, which have clear legal parallels. Further, this Article seeks to develop this distinct paradigm by situating it in ongoing transnational moral dialogues on the just and effective ways to combat terrorism. This distinct paradigm would benefit if it were consolidated into a new Geneva Convention in the future.
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