An American Inquiry into Contemporary Terroist Accountability (2002)

We will not only deal with those who dare attack America; we will deal with those who harbor them and feed them and house them. President George W. Bush, September 15, 2001.(1) I. INTRODUCTION Prior to September 11, 2001, reality of large-scale terrorist destruction and casualties on home soil would have stunned even most forward-thinking American. Who would have believed that World Trade Center obliteration, previously imagined only in Hollywood or spy novels, would happen before our very eyes? Since terrorists slammed commercial jets into World Trade Center in New York City and into Pentagon, damages continue to mount. Over two thousand people remain missing.2 At least 2,800 are confirmed dead.3 Over eighty thousand people have lost their jobs in New York alone,4 and damages could be as much as $58 billion, the insurance industry's biggest loss ever.5 U.S. officials warn that there [remains] a significant risk of attack.6 Whether on American soil or abroad, terrorists must be pursued and held accountable for these damages. Legal experts scrambled to explain ramifications of terrorist attacks. The President and American people wanted immediate justice. However, faced with this new legal dilemma of countering catastrophic terrorist aftermath on home soil, which legal strategy will best serve justice? The question arises whether Congress and Executive have done enough or whether we should strive to assemble better legal solutions. The answer is that in addressing our terrorism crisis, Americans should not complacently resign themselves to accepting quick legal fixes without diligent analysis. Congress quickly enacted some victim relief measures including airline loan assistance 7 and victim compensation.8 Not satisfied, plaintiffs prepare to sue airlines,9 foreshadowing further societal injury without benefit of holding terrorists accountable for their deeds. As an alternative, could Americans hold bin Laden and al Qaeda accountable via civil suit and attachment of frozen assets? Legal alternatives must be analyzed immediately, before American Trial Lawyers Association's moratorium on litigation expires.10 The ideal solution to America's twenty-first century terrorist crisis would provide closure, prompt economic compensation, deterrence, and most importantly, would hold rogue actors responsible for their violations against humanity. This Essay argues that while civil mechanisms have their merits, nothing sends a more stinging message of deterrence; nothing achieves a higher sense of justice; and nothing more credibly announces to world that America and its allies will not tolerate terrorism than holding responsible terrorists criminally accountable at military trial. Military tribunals provide swift justice and diminish juror exposure to terrorist retaliation. Special master government aid, eliminating plaintiff-proof hurdles, promptly placates financial distress of victims' families. Together, these two solutions best serve Americans seeking healing, financial compensation, closure, deterrence, and justice. This Essay first examines growth of U.S. antiterrorism law and policy. It then analyzes strategic benefits of encouraging victims to pursue civil avenues against international criminal terrorist organizations rather than pursuing traditional defendants such as airlines and/or seeking government-- administered compensation. Civil recovery mechanisms, such as Victims of Trafficking and Violence Protection Act of 2000, are compared with restitution as a result of criminal prosecution. Next, U.S. Treasury Department's licensing requirements are studied. Finally, advantages of military tribunals-that hold terrorist actors accountable and are preferable to a strategic assassination approach-are analyzed. This Essay concludes by recognizing that we have not yet arrived at ideal solutions to execute our war on terrorism. …