Philip B. Heymann

Dealing with Terrorism: An Overview

the world has changed dramatically since September 11, 2001. Americans no longer feel secure, although they cannot measure the extent of the danger. Being less secure means, irresistibly, that the United States has to take steps, costly in any of a variety of ways, to help reestablish safety. What are the possibilities for stopping groups, organized largely abroad, from undertaking sustained campaigns in the United States of lethal terrorism? That—and not the more traditional problem of occasional, low-level terrorism—is the subject of this article. The list of options depends on the human, anancial, moral, and political resources the United States is prepared to invest in its capacities for prevention, consequence management, deterrence, and retaliation. This in turn depends on whether the United States should anticipate a sustained terrorist campaign— either by Osama bin Laden or by others inspired by his success—and to what

Policing the conflict in South Africa

An analysis of policing in South Africa, bringing together the conflicting views of representatives of the major parties involved: the African National Congress, the Pan Africanist Congress, the Inkatha Freedom Party and the South African police.

The Federal Role in Dealing with Violent Street Crime: Principles, Questions, and Cautions

Long-established principles of federalism have limited federal action against violent crime. An important question is whether those principles ought now to be relaxed. We distinguish two roles for the federal government: direct operations and financial assistance. Regarding direct operations, the natural division of labor among federal, state, and local enforcement agencies should be maintained, and federal enforcement agencies should be diverted to the fight against street crime only on an emergency, backup basis and only while the emergency exists. Regarding financial assistance, traditional principles of federalism that favor local decisions over national decisions should apply unless some important federal interest—such as the protection of individual rights; the encouragement of innovation and learning; or the protection of one state against the actions of others—is engaged. If such an interest is engaged, that interest ought to be reflected in federal restrictions on how the money can be used. When we apply these principles to recent federal legislation, we conclude that the nations interest in experimenting with the potential of community policing justifies a federal categorical grant program, while the effort to encourage states to stiffen their sentencing requirements does not.

Pursuing justice, respecting the law

ConclusionIn the 1980s, despite the rise of terrorist attacks worldwide, the international community failed to respond cooperatively. When U.S. citizens were the focus of attacks, even friendly countries had little incentive to risk the safety of their citizens or the tenets of their foreign policy to prosecute terrorists. In response, the United States passed statutes providing for extraterritorial jurisdiction over acts committed abroad against U.S. citizens and then engaged in a series of dramatic seizures to enforce these measures. Unfortunately, these abductions were generally not defensible under international law and, in any event, could not be used when a terrorist was located within the territory of a major friendly country. In large part unexpectedly, however, the statutes have rendered such extraordinary measures unnecessary while still remedying what was a visible failure of international criminal cooperation.Even without threatening international abductions, the United States can use the Hostage Taking Act and the Terrorist Prosecution Act to demand extradition and to undertake independent investigations of violations of federal laws. These efforts put pressure on governments that have custody over terrorists. The international and the diplomatic consequences of neither extraditing nor prosecuting have proven sufficient to encourage U.S. allies to prosecute terrorists themselves. Surprisingly, therefore, the statutes have turned out to be effective because they encourage prosecutions of terrorists abroad, thereby remedying a failure in international cooperation and helping to ensure a consistent, strong, international response to acts of terrorism despite the continued inability of the United States to obtain custody of those attacking its citizens.

A missed opportunity

ConclusionBy focusing on the narrow question of the proper contractual interpretation of the extradition treaty, the Court missed the crux of theAlvarez-Machain case. The weakness in the decision, therefore, is not that the Court adopted the wrong contractual interpretation but rather that it failed frankly to address the real issue. Determining the appropriate role of the Court in formulating an international order in the post-cold war era is a difficult and complex problem. It raises delicate questions of foreign policy, separation of powers, and institutional competence. There are no easy answers. But the problem is not one that will—or should—go away. The issue must be debated in the courts, as well as in the political and academic arenas. By failing to confront this issue openly, the Supreme Court lost a valuable opportunity to start the debate and to begin to define the Courts role in forging the new world order.