Order and Liberty in a Time of Terror
By Dr. Marvin Zalman
(Excerpted from Criminal Procedure: Constitution and Society 5e by Marvin Zalman, Copyright 2007 Pearson Education, Inc. Upper Saddle River, NJ.)
Order versus Justice
Five years after the September 11, 2001 airplane hijackings and suicide -terror attacks on New York?s World Trade Center and the Pentagon by radical jihadists that took almost three thousand lives, the ?war on terror? has polarized the nation and has put the tension between order in liberty into sharp relief.
The immediate response to 9/11 was a military campaign authorized by Congress that wrested Afghanistan from Taliban control and suppressed the al Quaeda movement, which was responsible for 9/11 and earlier attacks like the 1993 World Trade Center bombing. This universally supported action, initially successful but possibly unraveling in 2006 as the Taliban are resurgent, was followed by two major campaigns, one domestic and the other foreign.
The domestic campaign involves defensive homeland security like increased airport security and a focus on terrorism investigation and prosecution. Indeed, training local law enforcement agencies and the creation of Local-Federal Anti-terror Partnerships has become an important element of contemporary criminal justice.1 The foreign campaign included the necessary Afghanistan war and the ill-conceived war in Iraq. Now in its fourth year, the Administration has admitted that Iraq was not formerly a sponsor of Islamist terrorism. The lack of plans for controlling the country after a swift but superficial military victory, led to unrest, continuing insurgency, and fears of civil war or the rise of a radical Islamist state.2 The controversy over the Iraq war is beyond the scope of this text, except insofar as the war has generated issues relevant to criminal procedure and important Supreme Court rulings on issues of liberty and justice.
The "Criminal Model"
It is useful to contrast the ?war model? and ?criminal model? metaphors as paradigms for government action in responding to terror threats. The ?criminal model? emerged painstakingly over centuries of English and American constitutional history. It is grounded due process concepts originating in Magna Carta?s (1215) ?law of the land? formula : ?No freeman shall be captured or imprisoned or disseised or outlawed or exiled or in any way destroyed, nor will we go against him or send against him, except by the lawful judgment of his peers by the law of the land."3 It is a model of constitutional balance and that limits state action only against those who have committed acts previously defined as crimes. It requires the criminal justice apparatus to act under law and apply constitutional guarantees like search warrants, the privilege against self-incrimination, and trial rights. The criminal model gives persons the liberty to act free of state spying or constraint until their acts arouse suspicion to believe they have violated the law. The chief goals of the criminal model are retribution for and deterrence of criminal behavior.
The "War Model"
When a country goes to war, this all changes. The goal of the ?war model? is prevention.4 Under this ?new ?paradigm of prevention? . . . prosecutors [have used] every tool at their disposal to investigate, observe and detain potential terrorists before they strike."5 In times of war civil liberties are curtailed. The press is more circumspect; military censorship is imposed; certain areas are off limits; freedom of movement is curtailed; intelligence agencies are given a freer hand to probe anyone?s secrets.
For more information about or to order a copy of Criminal Procedure: Constitution and Society 5e visit the Prentice Hall website.
(Excerpted from Criminal Procedure: Constitution and Society 5e by Marvin Zalman, Copyright 2007 Pearson Education, Inc. Upper Saddle River, NJ.)
Order versus Justice
Five years after the September 11, 2001 airplane hijackings and suicide -terror attacks on New York?s World Trade Center and the Pentagon by radical jihadists that took almost three thousand lives, the ?war on terror? has polarized the nation and has put the tension between order in liberty into sharp relief.
The immediate response to 9/11 was a military campaign authorized by Congress that wrested Afghanistan from Taliban control and suppressed the al Quaeda movement, which was responsible for 9/11 and earlier attacks like the 1993 World Trade Center bombing. This universally supported action, initially successful but possibly unraveling in 2006 as the Taliban are resurgent, was followed by two major campaigns, one domestic and the other foreign.
The domestic campaign involves defensive homeland security like increased airport security and a focus on terrorism investigation and prosecution. Indeed, training local law enforcement agencies and the creation of Local-Federal Anti-terror Partnerships has become an important element of contemporary criminal justice.1 The foreign campaign included the necessary Afghanistan war and the ill-conceived war in Iraq. Now in its fourth year, the Administration has admitted that Iraq was not formerly a sponsor of Islamist terrorism. The lack of plans for controlling the country after a swift but superficial military victory, led to unrest, continuing insurgency, and fears of civil war or the rise of a radical Islamist state.2 The controversy over the Iraq war is beyond the scope of this text, except insofar as the war has generated issues relevant to criminal procedure and important Supreme Court rulings on issues of liberty and justice.
Two models for Government Responses to terrorism
The "Criminal Model"
It is useful to contrast the ?war model? and ?criminal model? metaphors as paradigms for government action in responding to terror threats. The ?criminal model? emerged painstakingly over centuries of English and American constitutional history. It is grounded due process concepts originating in Magna Carta?s (1215) ?law of the land? formula : ?No freeman shall be captured or imprisoned or disseised or outlawed or exiled or in any way destroyed, nor will we go against him or send against him, except by the lawful judgment of his peers by the law of the land."3 It is a model of constitutional balance and that limits state action only against those who have committed acts previously defined as crimes. It requires the criminal justice apparatus to act under law and apply constitutional guarantees like search warrants, the privilege against self-incrimination, and trial rights. The criminal model gives persons the liberty to act free of state spying or constraint until their acts arouse suspicion to believe they have violated the law. The chief goals of the criminal model are retribution for and deterrence of criminal behavior.
The "War Model"
When a country goes to war, this all changes. The goal of the ?war model? is prevention.4 Under this ?new ?paradigm of prevention? . . . prosecutors [have used] every tool at their disposal to investigate, observe and detain potential terrorists before they strike."5 In times of war civil liberties are curtailed. The press is more circumspect; military censorship is imposed; certain areas are off limits; freedom of movement is curtailed; intelligence agencies are given a freer hand to probe anyone?s secrets.
For more information about or to order a copy of Criminal Procedure: Constitution and Society 5e visit the Prentice Hall website.
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