INTRODUCTION :: “Nations and peoples can lose their heads.”
On September 11, 2001, three hijacked jet airliners deliberately were crashed into buildings in New York City and Washington, D.C. A fourth aircraft, apparently intended for the same purpose, crashed into a field in Pennsylvania. The lives of approximately three thousand persons were snuffed out in a matter of barely over an hour, and another two thousand families suffered direct physical and psychological injuries. The Pentagon, a building that houses the United States Department of Defense, was significantly damaged. The World Trade Center towers, the tallest structures in the City of New York, the emblems of the commercial and financial primacy of that City-if not of the United States-were destroyed completely. These were the acts, we have since learned, of a group known as al Qaeda, a nongovernmental body headed by Osama bin Laden, which, at least at the time of these events, sought as its primary objective to expel the United States military from Saudi Arabia, bin Laden’s country of birth. But this information was not available to the general public on September 11. Rather, in the dark as to the identities of the perpetrators and their motivations, the proverbial “man in the street” could only wonder and otherwise respond to the images of the collisions of these symbols of America’s technological prowess by resorting to his primordial instincts: disbelief, awe, shock, and surprise. And beyond these, there was a very important social response: the extension and expression of empathy. Fear and the desire for revenge took a little longer to become generalized.
More than three years removed from September 11, it may be difficult to recall the universal empathy that these tragic events generated. The immediate reaction of people across the United States and in much of the world was to demonstrate their solidarity with the victims. In gestures that give meaning to the human collectivity as a social one, friends, neighbors, and strangers alike by words, acts, and deeds made the sufferings of New Yorkers, Washingtonians, and the American people theirs. But while ordinary individuals may be content to react to tragedy by sending e-mails, making donations to relief funds, driving across the country to volunteer in aid centers, and condemning the evil of terror, their political leaders cannot resign themselves to dealing simply with the post hoc effects of terrorism. They not only must punish wrongdoers, but also must prevent future wrongful acts, or at least give the impression that they are doing so.
And so, within an hour of the first aircraft crashing into the World Trade Center and within ten minutes after the President of the United States was informed of the crash into the Pentagon, he reportedly said to his Vice President: “‘Sounds like we have a minor war going on here . . . . We’re at war . . . somebody’s going to pay.’” This became a persistent theme of the United States government’s response to the events of September 11. But, of course, “war”-whether metaphorical or real-was by no means the sole available response to terror. Indeed, prior to August 20, 1998, when President Clinton ordered the launching of Tomahawk missiles against targets in Afghanistan and Sudan in retaliation for the bombing of United States embassies in Kenya and Tanzania, the standard governmental response to terrorism had been rhetorical and legal. The former approach held fast to the standard refrain “we do not negotiate with terrorists,” while the latter saw the adoption of numerous international instruments aimed at suppressing particular types of terrorist acts as well as the massive expansion in municipal law of the concept of protective extraterritorial jurisdiction to encompass the seizure of alleged terrorists both on the high seas and in foreign countries. The terror attacks of September 11, however, not only elicited a militaristic declaration of “war” against terrorism, but also fundamentally altered both the rhetorical and legal approaches. It is within this convention of an altered landscape that Professor Viet Dinh’s Dunwody Lecture should be examined.
Accepting September 11 as an exceptional event, Dinh nonetheless sees it as emblematic of an emerging new order (or, perhaps more accurately, of a disorder). September 11, he says, represents an order in which “[n]ation-states no longer possess a monopoly on warfare or war-like violence” but must share that hitherto quintessential attribute of statehood with “terrorists who believe fervently in their cause, but who owe no allegiance to any particular place or polity.” The attack on September 11 was a challenge not only to the United States, but also to the entire international system of states. Furthermore, the challenge to the system, far from being at its peripheries, goes to its very heart: who may legitimately employ force, in what manner, and for what purposes? Professor Dinh’s answers to these questions are simultaneously sober and daring. The old “Westphalian” order of an international society based on a community of states must be defended against the modern barbarians, the terrorists. This is to be done, he contends, by the resuscitation-and indeed elevation-of that most pilloried of attributes of the nation-state: “patriotism” (or “nationalism”). In one of those brilliant paradoxes that only truly agile minds can follow, Dinh argues that the embrace of patriotism, rather than being viewed as promoting the frequently decried tendency towards unilateralism and parochialism, should be seen as providing encouragement for cooperative multilateralism.
Thus, Professor Dinh’s take on September 11 is less descriptive than it is normative. His view is rooted in the apparent belief that the terrorism of September 11 represents a fundamental development in international relations, and the response to it must flow not only from the government-whether in the militarized or criminalization formats-but also through popular arousal and a call to arms. It is around these normative underpinnings of Dinh’s article that I shall weave this response.
I shall structure the response as follows: First, I shall take a closer look at the ways in which September 11 is indeed an exceptional occurrence. Second, I shall reflect on the nature of contemporary terrorism. Third, I shall inquire into the extent to which terrorism is in fact a challenge to both the idea and the practical existence of the nation-state. Finally, I shall explain why nationalism and the nation-state, whatever their merits and whatever values they may share (and I believe strongly in the continuing vitality of the nation-state), should not be defended as bulwarks against “international terrorism.” Neither is.
April 2014, Vol. 66, No. 2
Sergio J. Campos, Class Actions and Justiciability
Andrew Guthrie Ferguson, Constitutional Culpability: Questioning the New Exclusionary Rules
Alberto R. Gonzales & Amy L. Moore, No Right at All: Putting Consular Notification in its Rightful Place After Medellin
Kevin J. Lynch, The Lock-in Effect of Preliminary Injunctions
Anne R. Traum, Using Outcomes to Reframe Guilty Plea Adjudication
Stephen E. Ludovici, Rule 60(b)(4): When the Courts of Limited Jurisdiction Yield to Finality