When members of the Al Qaeda terrorist organization attacked the World Trade Center and the Pentagon with hijacked commercial aircraft on September 11, it was the first time since a young America fought pitched battles with British troops during the War of 1812 that aggressors from abroad had engaged targets on contiguous American soft. In short order, the coordinated attack by terrorists became a watershed event in U.S. history, as it led to substantial changes in the fabric of our nation's life. Since September 11, America has been on a war footing, with armed soldiers standing guard at our nation's airports, enhanced security at nuclear power plants and other vulnerable locations, and military jets flying combat air patrols in order to intercept and shoot down hijacked commercial aircraft. The legal climate has also been affected by the events of September 11. Congress has passed, and the President has signed, anti-terrorism legislation (1) that expands police surveillance powers. Additionally, the President has announced that suspected terrorists who are not U.S. citizens may be tried in special military tribunals lacking many of the due process standards of American criminal courts. (2)
The events of September 11 have forced Americans to rethink the way we operate when it comes to dealing with violence within our borders. As our nation has moved quickly to reassess and sometimes reform the ways we have traditionally thought about and dealt with the specter of violent acts, attention has been focused on a set of incidents that government leaders have defined as the most likely or most disruptive to our way of life (such as airline hijackings and attacks on nuclear facilities). (3) Consideration of the current situation, however, suggests that those tasked with planning for and dealing with terrorist violence have overlooked one obvious potential threat: attacks by well-trained terrorist cells armed with military arms and ordnance on Americans who have congregated in public spaces such as schools, shopping malls, churches, and sports arenas.
Currently local police officers have the exclusive charge to respond to and handle any attacks of this sort within the rubric of state and federal statutes that forbid assault, murder, the possession of specific sorts of weapons, etc. A cursory look at law enforcement capabilities to protect innocents should a group of terrorists conduct a military-style assault, however, indicates that the police might be quickly overmatched. In this Article we first show why the police may not be capable of effectively dealing with assaults by terrorist cells on groups of American citizens. Second, we argue that our nation needs to develop contingency plans that would allow the U.S. military to take direct action against terrorists under certain conditions. Third, we identify some possible socio-legal consequences of the gap in our current capabilities to respond to military-style terrorist assaults.
The first step in this process is to briefly review the history of such attacks in the Middle East and other parts of the Islamic world and explain why we believe that military-style terrorist attacks should be considered a realistic threat in present-day America. We next discuss current police response capabilities to such attacks, explain how they have developed over the last few decades in response to specific instances of mass criminal violence committed by U.S. citizens, and identify the limitations of law enforcement's ability to respond to military-style terrorist attacks. We then explain how the military could, at least theoretically, fill the void in our nation's current antiterrorist response capabilities, specify the conditions under which we believe U.S. military should be used, and discuss the legal and social ramifications of U.S. military action on U.S. soil. We conclude with an analysis of how the American public may respond to such threats with a return to an "unorganized militia" and a traditional interpretation of the Second Amendment. …