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New W&L Course Explores Terror Laws in a Post 9/11 World

Terrorism was not born on 9/11 or in Oklahoma City. It is, in fact, an ancient concept. But what is new about terrorism, says Washington and Lee law professor Erik Luna, is the development of a distinctive legal regime and heightened enforcement efforts in the decade since the Sept. 11 attacks.

It is this legal framework, including such well-known provisions as the Patriot Act, that Luna focuses on in his new course at W&L, the Law of Terrorism.  Both rapidly evolving and controversial, few areas of law are so ripe for inquiry Luna argues.

“9/11 unsettled people’s understanding of global terrorism and their expectations of government in responding to potential threats,” says Luna. “The resulting policies and practices – from ethnic profiling and domestic spying to enhanced interrogation and indefinite detention of suspects – all challenge core American values and principles. For instance, how much deference can be accorded to the executive branch in the so-called ‘war on terror’ without undermining the constitutional system of checks and balances?  And how much liberty and privacy are we willing to sacrifice in service of counter-terrorism efforts?”

During the course, students will explore government powers available to prevent terror attacks and the limits of those powers. They will also examine the full process of investigation, apprehension, prosecution and punishment of individuals believed to be terrorists and extraterritorial enforcement of American law when dealing with incidents of terrorism abroad.

To address these issues, says Luna, students have to grapple with important concepts.

“Colloquial understandings of ‘terrorism’ tend to overlook the underlying complexity and long-standing difficulty in reaching a meaningful, consensus definition,” says Luna. “Other terms get tossed around in public discourse without a full appreciation of the legal consequences. The detention facility in Guantanamo Bay stands as a testament to the dispositive nature of the phrase ‘unlawful combatant.'”

Of course, much of the discussion of responses to terrorism occurs in a global context, and Luna makes sure that his students understand how other nations deal with domestic and international terrorism.

“The U.S. is hardly alone in its anxiety over terrorism,” says Luna. “Nations around the world have developed their own laws and processes for suspected terrorists, and some of these countries have been dealing with the phenomenon of terrorism for decades and in the face of greater threats to domestic security. There is much we can learn by comparing approaches.”

And at the very least, Luna thinks the 10- year anniversary of 9/11 is a time to reflect on the efficacy of the laws and policies we have implemented to prevent another attack. For example, in an article titled “The Bin Laden Exception,” Luna scrutinizes the Transportation Security Administration (TSA), part of a trillion dollar expansion of counter-terrorism spending over the last decade. Risk assessment experts have concluded that the likelihood of dying in an airplane hijacked by terrorists is far less than dying in a hunting accident or even drowning in a bathtub. Luna wonders then, if the fiscal cost, to say nothing of the loss of privacy and liberty, is worth it.

“Obviously, 9/11 is the single worst event of my generation, raising many of the concerns the greatest generation faced in the wake of Pearl Harbor,” says Luna. “But some perspective is required here. Al Qaeda is a genuine, international menace, but the danger it presents is incomparable to the threat posed by the Axis powers in World War II. Today, we should be asking ourselves whether the costs of the past decade, both fiscal and constitutional, were actually justified by the risk of terrorism.  Our form of government is not a suicide pact, for sure, but people who sacrifice liberty on promises of safety often end up with neither.”

Luna acknowledges that the law of terrorism is a moving target, and often unwieldy as is touches on so many fields. But he believes that makes it a great vehicle to teach students because it will force them to draw together all of their knowledge in addressing an unprecedented development in the law.

“With this course as part of their legal training, our students can play an important role in the evolving law of terrorism, as attorneys, advisors, lawmakers, and even judges, as many of our alumni become.”

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