Chem/Bio Weapons Control

Improving National Security Under Law

Today's threats of catastrophic terrorism and proliferation of weapons of mass destruction pose some of the greatest challenges to the rule of law in the United States. Choices about what policies should be adopted or reformed must be made even as crucial questions remain only partially answerable: How realistic is the possibility of catastrophic terrorism? How easy is it to make a weapon of mass destruction that actually works? Why would any person or group want to kill hundreds, thousands, or tens of thousands of innocent victims?

These questions do not have empirical answers. Assessing risk is difficult because these are low probability threats, but the consequences of an actual attack could be unimaginably devastating. In this context, four points can be offered without serious contradiction.

First, technical obstacles to catastrophic terrorism and WMD proliferation will decline with time. The capabilities for producing lethal devices will spread, enabling small groups of malevolent actors to make a catastrophic weapon and to use it to devastating effect. Whatever the risks might be today, they will be greater tomorrow.

Second, after a catastrophic attack, legal issues such as protecting civil liberties and constitutional rights may likely be ignored, at least temporarily. Thus, the costs of a catastrophic event must be measured not only in loss of life and property but also in the probable disruption and constriction of due process of law.

Third, the costs of a disorganized response to a catastrophic event, in money and in jeopardy to our civil liberties, are likely to exceed overwhelmingly the costs of preventing an event or, if necessary, of executing a well-planned effort to mitigate and remedy the harm done. America will be well-served by careful legal planning in advance, therefore, with due appreciation of emerging threats, consideration of prevention options, and recognition of the imperative that responses must be respectful of the rule of law.

Fourth, lawyers have a crucial role to clarify and strengthen the legal rules pertaining to preventing catastrophic terrorism and proliferation, and, if prevention fails, responding to an attack. By joining the planning process, lawyers can help harmonize the pursuit of security with the preservation of civil liberties.

Inquiry should therefore focus on five issues:

  • (1) Which parts of government can exercise how much authority, and what limits apply to that authority?
  • (2) What should be the military's role in responding to terrorist events?
  • (3) What regulatory controls of materials and technologies are useful for denying access to catastrophic weapons capabilities?
  • (4) How can the international community cooperatively address catastrophic threats? and
  • (5) How might the private sector cooperate in pursuit of national security, and what protective boundaries should be established for individual privacy and property rights?

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