Ten years after 9/11

From apathy to outrage

| by Ruwantissa Abeyratne

(September 16, Ontario, Sri Lanka Guardian) 10 years have passed since the catastrophic events of 11 September 2001. Before then, we were apathetic to risks. After 9/11 we had no alternative but to change our thinking. None of us can get over the outrage we felt at the dastardly terrorist acts which killed nearly 3000 people that day. We felt an amalgam of concern, fear, and anger. We became motivated to take precautions. Overnight, we converted ourselves from being laid back and reactive to being pre-emptive and preventive so that we could make sure such things never happened to us again. Our pre-emption was to guard ourselves against any ac, which is imminent and potentially harmful to us. Our prevention was to shield us from an act, which is potentially harmful to us and is inevitable. We resorted to military action. We had a new limb of law we now call the law of outrage.

In this handout provided by the White House, U.S. President Barack Obama (L) enjoys a beer with Dakota Meyer on the patio outside of the Oval Office September 14, 2011 in Washington, DC. Obama will present Meyer with the Medal of Honor on September 15 during a ceremony at the White House. - Getty Images

Alan Dershowitz, Professor of Law at Harvard University, says in his book Preemption – A Sword that Cuts Both Way that there is a desperate need in the world for a coherent and widely accepted jurisprudence of preemption and prevention, in the context of both self-defence and defence of others.

Preemption and prevention are necessary elements in today’s political and military fabric, where legal legitimacy is ascribed to actions of States which act swiftly to avoid harm and protect its citizenry. This is often accomplished bypassing rigid dogma and entrenched rules based on the Precautionary Principle and on the maxim necessitat non habet legem (necessity has no law or rules). Another is Inter arma enim silent leges is a maxim attributed to Cicero, which translates as “In times of war, the laws are silent”. In the 21st century, this maxim, which was intended to address the growing mob violence and thuggery of Cicero’s time, has taken on a different and a more complex dimension, extending from the idealistic synergy between the executive and the judiciary in instances of civil strife, to the overall power, called “prerogative” or “discretion” of the sovereign, to act for the public good as the guardian of the rule of law.

Intrinsically linked to the practices of pre-emption and prevention is another dimension to the law of outrage and that is the punitive element. Referring to the Holocaust during World War II President Roosevelt said on October 7, 1942: “It is our intention that just and sure punishment shall be meted out to the ringleaders responsible for the organized murder of thousands of innocent persons in the commission of atrocities which have violated every tenet of the Christian faith”. The next year Roosevelt, Stalin and Churchill vowed, through the Moscow Declaration, to bring the perpetrators to justice. On 26 October 1943 the United Nations War Crimes Commission composed of 15 allied nations met for the first time in London. On March 24, 1944 President Roosevelt again issued the warning: “None who participate in these acts of savagery will go unpunished. All who share in the guilt shall share the punishment”. This last sentence was reiterated in a different way by Present George W. Bush in the aftermath of the events of 9/11: “Every nation has a choice to make. In this conflict, there is no neutral ground. If any government sponsors the outlaws and killers of innocence, they have become outlaws and murderers themselves. And they will take that lonely path at their own peril”.

These historic responses resonate the message that society must never live in fear. The statement in Parliament of Prime Minister David Cameron during the recent London riots, although made in the context of a much smaller scale of violence and terrorism, is both topical and relevant: “We will not allow a culture of fear to exist on our streets. And we will do whatever it takes to restore law and order and to rebuild our communities... anyone charged with violent disorder and other serious offences should expect to be remanded in custody not let back on the streets and anyone convicted should expect to go to jail”.

Immediately after the 9/11 attacks, Attorney General John Ashcroft stated that the foremost priority of the United States Justice Department was prevention. Prevention is based on the legal principle called “the Precautionary Principle”. This principle was called the most important idea of 2001 by the New York Times. The Precautionary Principle asserts that the absence of empirical or scientific evidence should not preclude States from taking action to prevent a harm before it occurs. It is a moral and political principle which stands for the fact that if an action or policy might cause severe or irreversible harm to the public, in the absence of a scientific consensus that harm would not ensue, the burden of proof falls on those who would advocate taking the action. This principle is most often applied in the context of the impact of human actions on the environment and human health where the consequences of actions may be unpredictable The evolution of the principle in international law began in the early 1980s although there is evidence that it was domestically popular in Europe in the 1930s in the German socio-legal tradition, centering on the concept of good household management. In German the concept is Vorsorgeprinzip, which translates into English as precaution principle. In today’s political context, the Precautionary Principle enjoys a wide, unprecedented recognition and it has become of such tremendous importance because in many cases, the scientific establishment of cause and effect is a difficult task sometimes approaching a fruitless investigation of infinite series of events.

For the Precautionary Principle to apply, States must take measures according to their capabilities and they must be cost effective. Also, threats that are responded to must be both serious and irreversible. The Precautionary Principle is usually applied through a structured approach to the analysis of risk, which comprises three elements: risk assessment; risk management; and risk communication and is particularly relevant to the management of risk. It usually applies when potentially dangerous effects from a particular process or phenomenon have been identified and scientific evaluation does not guarantee that the risk could be averted.

Abnormal times are considered by some political scientists to call for legal justification for a State to be uncontrolled. This theory justifies the sovereign, as guardian of the Constitution, to respond to dangers within the political and legal spectrum, on the basis of the sovereign’s exclusive capability of identifying the enemy and the threat it poses to the State. However, in common law States, this extremist view is blended harmoniously with the essential philosophy of the Rule of law, which is the foundation of civil liberty and order, and the underlying constitutional principle requiring government to be conducted according to law, thus making all public officers answerable for their acts in the ordinary courts. Common law jurisdictions such as Canada, the United States and the United Kingdom take pride in their long tradition of parliamentary democracy which effectively precludes arbitrary acts of the Executive in curbing civil liberties guaranteed by the law. This principle is embodied in the dissenting judgment of Lord Atkin in Liversidge v. Anderson (1942), to which courts pay frequent lip service, that :“amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace”. In 1998 Chief Justice Rehnquist o opined in his book All the Laws But One--Civil Liberties in Wartime : “It is neither desirable nor is it remotely likely that civil liberty will occupy as favored a position in wartime as it does in peacetime. But it is both desirable and likely that more careful attention will be paid by the courts to the basis for the government's claims of necessity as a basis for curtailing civil liberty…the laws will thus not be silent in time of war, but they will speak with a somewhat different voice”.

Of special relevance in this regard is the judicial examination by the United States Supreme Court of the imprisonment of an Arab-American immigrant, three months after the terrorist attacks of 9/11. Justice Scalia in the 2004 case of Hamdi v. Rumsfeld stated : “Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it”.

This is as it should be. Outrage is one thing. But the Rule of law must reign.

The writer is a Senior Legal Officer at the International Civil aviation Organization