INTRODUCTION :: “Terrorism is a global menace which clearly calls for global action. Individual actions by Member States, whether aimed at State or non-state actors, cannot in themselves provide a solution. We must meet this threat together.”
“Major Strasser has been shot. Round up the usual suspects.”
-Captain Louis Renault, Prefect of Police, Casablanca (1942).
Professor Viet Dinh, this year’s Dunwody lecturer, was a major drafter of and architectural influence upon the USA PATRIOT Act. The USA PATRIOT Act was rushed through Congress in the aftermath of September 11, 2001 and a national security crisis. The Act itself is as voluminous as it is complex. It has been widely conceded that the Act was not critically read by key members of the legislative branch prior to its passage into law. This was because these members enacted the legislation under conditions of crisis in reliance on the good faith and integrity of the executive branch. The Act reflects not so much the restraints of the balance of power, but deference to the competence and integrity of the executive branch in exceptional circumstances. The Act, it is conceded, contains far-reaching restrictions on the liberties of American citizens as well as the human rights of aliens. A central concern from the point of view of national security under the Act is the ability to detain and interrogate for as long as possible those whom the administration believes may be terrorists, terrorist sympathizers, or dupes with inadvertent terrorist links.
The tools to achieve these objectives, among others, are reflected in the power to detain individuals without the supervision of independent appraisal. In short, a cornerstone of the USA PATRIOT Act is the power to detain in terms that may seem arbitrary and capricious without some form of further review and supervision. The problem with preventative or investigatory detention is that it may be subject to abuse without independent review of the grounds for detention. Preventative detention is a method that may be abused by government, and represents precisely the problem that the United States Constitution was meant to control and regulate: namely, that the freedom of the individual is protected by the rule of law from arbitrary or capricious action by governmental authority. In international human rights and in comparative constitutional law, the principle is well established that emergency measures enacted under conditions of crisis must nonetheless be measures that are reconcilable with the culture of a democratic society based on the rule of law.
Professor Dinh’s article, Nationalism in the Age of Terror, provides an indirect scholarly justification for the far-reaching powers of the USA PATRIOT Act. The title of his article, it should be noted, is not Patriotism in the Age of Terror, but Nationalism in the Age of Terror. In recent history, diverse appeals to nationalism as an ideological symbol of solidarity have often been directed at the preemption or cooptation of the symbols of patriotism and loyalty. Extreme examples include Joseph Stalin’s characterization of the war against Nazi Germany as the “great patriotic war” of the Russian people. Hitler’s cooptation of the symbols of nationalist Germany included the ethnic and ideological purging of undesirable Germans. Ethnically, those Germans not considered part of the Herrenvolk, such as the Jews and the Romani, were basically candidates for extermination. Germans whose ethnic pedigree was acceptable could nonetheless be repressed and persecuted because they were liberals, socialists, communists, and political nonconformists. The German concentration camps existed for them. For the ethnic undesirables, there were the death camps. Joseph Stalin’s camps seemed to roll labor exploitation, slavery, and death into a single institutional form: the gulag.
Such, then, are some of the egregious excesses of nationalism, pure or adulterated. Moreover, many forms of right-wing authoritarianism in Latin America and South Africa seemed to carry the notion that salvaging the nation, and therefore national identity, was mandated by some version of Christian ideology. In South Africa, the ideological justification of Afrikaner nationalism was “Christian Nationalism.” South African opinion leaders explained that this form of nationalism was similar to Italian Fascism and German National Socialism. We take up these cautionary remarks not because we believe that national identity is by itself an intrinsically good or bad thing. The central question about national identity is what values are included in it, to embrace it as a defensible moral basis for demanding solidarity, patriotism, and more.
American national identity is inextricably tied to the fundamental moral principles that led to the formulation and development of the American Constitution and the rule-of-law culture that it represents. A salient question concerning United States foreign policy has been the extent to which fundamental moral precepts borne of our constitutional experience should not be reflected in our construction of foreign relations law, national security law, and international law, including international human rights law. An expectation held by many thoughtful observers of the international scene is that a state with the immense power of the United States must be seen to be the exemplar of its values in the international community, and that its commitment to the international rule of law must be as firm and consistent as its commitment to its own constitutional values.
Not everyone agrees with this. Many Americans believe that the United States must be exempted from the moral foundations of the international rule of law. Many of them believe that, at times, our own Constitution is an impediment to securing the vital national interest of our state and, therefore, that many of its precepts may be set aside when they are inconvenient. The war against terrorism in the aftermath of September 11 has thus posed profound questions about national identity, the rule of law, and the appropriate role for the United States in the world community.
Part II of this Commentary begins by exploring the ostensible underpinnings of Dinh’s article by examining his understanding of nationalism. Part III explains why crony nationalism is not the best defense against global terrorism. Part IV then analyzes some significant United States foreign policy undertakings that have arguably negatively affected United States national security. Finally, in Part V we conclude by gleaning lessons from problematic aspects of United States foreign policy.
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