INTRODUCTION :: September 11, 2001 was a wake up call. Many of us, however, are still asking ourselves exactly what we woke up to and how it should define our domestic and foreign policy.
Appreciating the exceptional nature of the threat, the government has embarked on an aggressive campaign to contain and defeat the international terrorist conspiracy. At home, this strategy is reflected in the prevention paradigm. Abroad, this strategy manifests itself as the doctrine of preemption.
The twin manifestations of this preventive strategy in domestic and foreign policy have attracted many comments-some nuanced, most critical, and a few apocalyptic. Despite their variety and predominantly negative approaches, these commentaries generally adopt the premise that what happened on that day was so unprecedented and unimaginable that it rocked our world-and that world would change forever.
In some ways this premise is correct. We were awakened from our democratic innocence-or what a law professor from a perspective much different from mine called our “puerile arrogance” and realized that there are people out there who not only reject our institutions, ideals, and values, but also find them so offensive that they would give up their lives to take the lives of innocents and upend all that we hold dear.
Some reject the notion that September 11 was special, and they see political conspiracy lurking in the shadow of September 11 exceptionalism. Accusing the Bush Administration of engaging in a “plot against history,” historian Marilyn Young concludes that “its ruthless cunning . . . is demonstrated everywhere.” Hyperventilating rhetoric aside-and it is rhetoric, because I do not think that a respected scholar could actually believe this ludicrous charge-I do think that September 11 exceptionalism can be taken too far. September 11 was an event, not a justification in and of itself. It presents a challenge for scholars and policymakers to discover its meaning and draw from it lessons for the twenty-first century.
As Mary Dudziak poses the intellectual project, “This use of the idea of change to justify new policies requires that we examine critically whether this justification rests on a firm foundation, whether the idea of transformation holds up under closer scrutiny, and whether any changes are of the sort that would justify these new government policies.” I turn to this task in this lecture.
The attacks of September 11, and the composition of its perpetrators, should make one lesson crystal clear: nation-states no longer possess a monopoly on warfare or war-like violence. Nineteen individuals, with several hundred thousand dollars, inflicted more damage and took more lives in one day than even the mightiest of armies-and, I should add, they did so against the nation that is currently the most powerful on earth. That there are people who would wish such damage on us is neither new nor surprising. What is surprising, however, is that they have both the will and the means to do so-that they were able to do that which no enemy nation has ever been willing or able to do in the history of our country.
There were signposts leading to this lesson of September 11. For many years, individual terrorists and terrorist organizations have sought and articulated their desire to obtain state-like force. Timothy McVeigh illustrated the ease of mass violence in even our own country. In that sense, the breach on September 11 of nation-states’ monopoly on force is not a watershed. Rather, it only marked a turn, in a most dramatic and catastrophic manner. Just as the twentieth century, dominated by wars among nation-states, gave way to the twenty-first, September 11 threatened the replacement of the world order with an era of disorder.
In this new era, the Age of Terror, the threat to national and global security comes not only, or even primarily, from individual nation-states. Rather, the threat is posed collectively to nation-states by stateless terrorists who believe fervently in their cause, but who owe no allegiance to any particular place or polity.
This phenomenon of ideology unmoored from geography, coupled with the means to inflict mass destruction, poses a pervasive and asymmetric threat to the international order: pervasive because the international terrorist movement is not really a movement at all; it is a loose network of shared objectives and ideals. The threat is asymmetric because the new warriors exploit the vulnerabilities of liberal democracies in order to inflict terror on the masses. They engender fear by undermining the stability of consequence. Acting without the tethers of a geographic base or the restraint of a national polity, the enemy is faceless and, in this way, impregnable.
This central lesson of September 11, that nation-states no longer have a monopoly on the motives and means of war, has significant implications in a whole host of areas of law, policy, and international relations.
My comments here will focus on the fundamentals: examining how terrorism threatens not only American freedom or Western democracies, but also the entire world order. That order is predicated on the nation-state as the organizing unit of sovereignty-a predication that is being challenged by organizations and individuals who operate statelessly, employing terrorism as a means to advance their ideological ends.
I will first examine the development of the sovereign nation-state as the basic unit of political organization and the way transnational terrorism threatens the international order predicated upon such sovereignty. I will follow this outside-in analysis with an inside-out look at how patriotism-or to put it more bluntly, nationalism-contributes to the maintenance of sovereignty and international order. I will conclude with some thoughts on where all of this may lead us and, as important, where a recommitment to national sovereignty and dedication to national ideals should not lead us.
March 2015, Vol. 67, No. 2
Albert W. Alschuler, Limiting Political Contributions After McCutcheon, Citizens United, and SpeechNow
Alafair S. Burke, Consent Searches and Fourth Amendment Reasonableness
Jeffrey A. Lefstin, Inventive Application: A History
Onnig H. Dombalagian, Principles for Publicness
Kristen M. Blankley, Impact Preemption: A New Theory of Federal Arbitration Act Preemption
Alan Devlin, Antitrust Limits on Targeted Patent Aggregation