Preventing the ultimate nightmare: Nuclear terrorism against the United States

References

• Nuclear‐Based Explosives Detection Systems is found in Office of Technology Assessment . July 1991 . Technology Against Terrorism: The Federal Effort , July , Washington, D.C. : U.S. Government Printing Office . OTA‐ISC‐481
   Google Scholar
• Waller , Douglas . 1996 . “Counterterrorism: Nuclear Ninjas,” . Time , 8 January : 36 – 40 . An account of the Mirage Gold exercise can be found in
   PubMedGoogle Scholar
• Beres , Louis René . 1990 . “Confronting Nuclear Terrorism,” . The Hastings International and Comparative Law Review , 14 ( 1 ) Fall : 129 – 154 .
   Google Scholar
• Beres , Louis René . 1994 . “The United States and Nuclear Terrorism in a Changing World: A Jurisprudential View,” . Dickinson Journal of International Law , 12 ( 2 ) Winter : 327 – 366 .
   Google Scholar
• Beres , Louis René . 1994 . “On International Law and Nuclear Terrorism,” . Georgia Journal of International and Comparative Law , 24 ( 1 ) : 1 – 36 .
   Google Scholar
• At the federal level, the following agencies are engaged in the counterterrorism research that would be crucial to these policy makers: Department of Defense; Department of Energy (EG&G Laboratories, Los Alamos National Laboratory, Sandia National Laboratories, Oak Ridge National Laboratory, Idaho National Engineering Laboratory); Department of Justice (Federal Bureau of Investigation, Immigration and Naturalization Service, National Institute of Justice); Department of State (Office of the Ambassador for Counterterrorism, Bureau of Diplomatic Security); Department of Transportation (Federal Aviation Administration, Transportation Systems Center); Department of the Treasury (Bureau of Alcohol, Tobacco and Firearms, U.S. Customs Service, U.S. Secret Service); Environmental Protection Agency; and the Interagency Intelligence Committee on Terrorism (Community Counterterrorism Board). See Technology Against Terrorism: The Federal Effort, op cit., p. 92.
   Google Scholar
• Beres , Louis René . 1995 . “The Meaning of Terrorism ‐ Jurisprudential and Definitional Clarifications,” . Vanderbilt Journal of Transnational Law , 28 ( 2 ) March : 239 – 249 . See, however, for policy‐oriented scholarship:
   Google Scholar
• Beres , Louis René . 1995 . “The Meaning of Terrorism for the Military Commander,” . Comparative Strategy: An International Journal , 14 ( 3 ) July‐September : 287 – 299 .
   Google Scholar
• To undertake acts of nuclear terror, insurgent groups would require access to nuclear weapons, nuclear power plants, or nuclear waste storage facilities. Should such groups seek to manufacture their own nuclear weapons, they would require both strategic special nuclear materials and the expertise to convert these materials into bombs or radiological weapons. Both requirements are now well within the range of certain terrorist organizations, especially after the breakup of the Soviet Union.
   Google Scholar
• It should be noted that such a strategy would be entirely consistent with the expectations of international law. From the standpoint of these particular expectations, any use of nuclear explosives or radiation by a terrorist group would represent a serious violation of the laws of war. These laws have now been brought to bear upon nonstate actors in world politics by Article 3, common to the four Geneva Conventions of 12 August 1949, and by the two protocols to the conventions. Protocol I makes the law concerning international conflicts applicable to conflicts fought for self‐determination against alien occupation and against colonialist and racist regimes. A product of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts that ended on 10 June 1977, the protocol brings irregular forces within the full scope of the law of armed conflict. Protocol II, also additional to the Geneva Conventions, concerns protection of victims of non‐international armed conflicts. Hence, this protocol applies to all armed conflicts that are not covered by Protocol I and that take place within the territory of a state between its armed forces and dissident armed forces.
   Google Scholar
• 1991 . Technology Against Terrorism: The Federal Effort . Congress of the United States, Office of Technology Assessment . July 1991 , Washington, D.C.. pp. 20 – 21 . U.S. Government Printing Office . OTA‐ISC‐481 9
   Google Scholar
• 1906 . Digest of International Law 409 – 414 . J. Moore Some of these strategies may include proactive measures, known in law as expressions of anticipatory self‐defense. Such measures would be rooted jurisprudentially in the 1837 Caroline incident, which concerned the unsuccessful rebellion in Upper Canada against British rule. Here, then‐U.S. Secretary of State Daniel Webster outlined a framework for self‐defense that did not require actual attack. Military response to a threat could be judged permissible so long as the danger posed was “instant, overwhelming, leaving no choice of means and no moment for deliberation. “ See 2
   Google Scholar
• This sort of decision is already current, concerning controversy over The Comprehensive Terrorism Prevention Act of 1995. See Calendar No. 102, 104th Congress, 1st Session, S. 735, U.S. Senate, April/May 1995.
   Google Scholar
• According to Article 53 of the Vienna Convention of the law of Treaties: “A peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” See Vienna Convention on the Law of Treaties, 22 May 1969, Art. 53, U.N. Conference on the Law of Treaties, First and Second Sessions, 26 March ‐ 24 May 1968; and 9 April ‐ 22 May 1969. U.N. Doc. A/CONF., 39/27, at 289 (1969) reprinted in 8 I.L.M. 679 (1969).
   Google Scholar
• The earliest expression of Nullum crimen sine poena can be found in the Code of Hammurabi (c. 1728–1686 B.C.), the Laws of Eshnunna (c. 2000 B.c.), the even‐earlier Code of Ur Nammu (c. 2100 B.c.) and of course, the Lex Talionis or law of exact retaliation, presented in three separate passages of the Jewish Torah, or Biblical Pentateuch. At Nuremberg, the words used by the Court, “So far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished,” represented an emphatic contemporary reaffirmation of Nullum crimen sine poena.
   Google Scholar
• The generic imperative to punish crimes was reaffirmed at Principle I of the Nuremberg Principles (1946): “Any person who commits an act which constitute a crime under international law is responsible therefore and liable to punishment.” This obligation applies especially to crimes of terrorism.
   Google Scholar
• Such patterns, under the direction of international law, are enforceable in the domestic courts of individual states. In this connection, the United States has already reserved the right to enforce international law within its own courts. See U.S. Constitution, Art. 1, Sec. 8. Here, acknowledging the decentralized/Westphalian system of international law, the Constitution confers upon Congress the power “to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.”
   Google Scholar
• In principle, such unified opposition flows, inter alia, from the expectations of international law. Under the Supremacy Clause (Art. 6) of the United States Constitution, these expectations form part of the law of the United States. This incorporation is reaffirmed and broadened by various U.S. Supreme Court decisions. See: The Paquete Habana, 175 U.S. 677, 700 (1900). See also: Tel‐Oren v. Libyan Arab Republic, 726 F. 2d 774, 781, 788 (D.C. Cir., 1984) (per curiam) (Edwards, J . concurring) (dismissing the action, but making several references to domestic jurisdiction over extraterritorial offenses) (cert, denied, 470, U.S. 1003 (1985); Von Dardel v. U.S.S.R., 623 F. Supp, 246, 254 (D. D.C, 1985) (stating that the “concept of extraordinary judicial jurisdiction over acts in violation of significant international standards has also been embodied in the principle of ‘universal violations of international law.’").
   Google Scholar
• There exists, of course, a counterterrorism regime in international law, but this regime is decidedly unpromising for reasons of Realpolitik. For those who might be interested in the authoritative sources of criminalization under international law, see: European Convention on the Suppression of Terrorism, done at Strasbourg, 10 November 1976. Entered into force, 4 August 1978. Europ, T.S. No. 90, reprinted in 15 I.L.M. 1272 (1976).
   Google Scholar
• According to the Egyptian daily, Al‐Aharam (9/20/95), PLO and Hamas have concluded a number of understandings. Similarly, Yediot Achronot, an Israeli newspaper, reports (10/10/95) that PLO and Hamas are currently engaged in a variety of inter‐Palestinian confidence building measures.
   Google Scholar
• Gazit , Shlomo . 1995 . “The Security and Future of Israel: An Exchange,” . Midstream , June/July : 15 Consider, for example, a recent statement by Jamal Abdel Hamid Yussef, explaining operations of the Izzedine al‐Qassam Brigades, military wing of Hamas, Gaza: “Our suicide operations are a message...that our people love death. Our goal is to die for the sake of God, and if we live we want to humiliate Jews and trample on their necks.” (Cited in published debate between Professor Louis René Beres and Maj. Gen. (IDF/ Ret.)
   Google Scholar
• 1989 . Dept. of State Bulletin , March : 9 Public authorities must also seek to prevent terrorist escalation to other “higher‐order” forms of violence using chemical and/or biological weapons. Just as the prospect of nuclear terrorism is linked to the spread of nuclear weapons and technology among states, so is the risk of chemical/biological terrorism linked, inter alia, to the spread of CBW weapons and technology among states. There already exists a regime of international treaties, declarations and agreements designed to control chemical and biological weapons. See Declaration on the Prohibition of Chemical Weapons, Jan. 11, 1989,
   Google Scholar
• 17 June 1925 . Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare 17 June , 281.L.M. 1020 (adopted by the Conference on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction 10 April 1972, 26 U.S.T. 583, 111 I.L.M. 310 (entered into force 26 March 1975); and
   Google Scholar
• Over time, a government's lack of power to control terrorism can rob it of authority. This is because the very essence of any government's authority lies in its assurance of protection for the citizenry. “The obligation of subjects to the sovereign,” says Thomas Hobbes in Chapter XXI of Leviathan, "is understood to last as long, and no longer, than the power lasteth by which he is able to protect them.” The political philosophers Bodin and Leibniz expressed very similar views. Where government can no longer provide security, it can no longer expect obedience.
   Google Scholar