Fear and the Regulatory Model of Counterterrorism
Posner, Eric A., Harvard Journal of Law & Public Policy
In the aftermath of the terrorist attacks of September 11, two models of government response dominated public discussion. One model vests the criminal justice system with the authority to combat terrorism. The FBI and local authorities track down the terrorists; lawyers prosecute and defend them in courts; judges and juries try them; prisons await them. If terrorists or their associates reside abroad, American officials apply for extradition under existing treaties. Another model vests the military with the authority to combat terrorism. While the military pursues terrorists overseas, local officials exercise emergency powers to detain, search, and interrogate. The government does not so much punish the terrorists as disrupt their networks, harass their supporters, and defeat them on the field of battle. Authorities may use propaganda and censorship, and may abrogate civil liberties to a limited extent.
A third model of government response to terrorism has received less attention. This model views terrorist threats as risks to public health and safety, risks that call for a bureaucratic response. Unlike the military and law enforcement models, the third model the regulatory model, focuses on the need for long-term reform of regulatory agencies, such as OSHA, EPA, and FDA.
Regulatory agencies have jurisdiction over countless activities vulnerable to, or related to, terrorist attacks, and they have increased their counterterrorist regulatory activity dramatically in the months since September 11. OSHA has issued guidelines for the handling of mail that potentially contains anthrax spores. (1) FAA is evaluating new security standards for airports. (2) Bank regulators have cracked down on financial institutions used by terrorists to launder money. (3) EPA and DOE have reappraised the security needs of utilities, factories, and shipping companies that handle hazardous materials. (4) FDA and CDC have taken a new look at the supplies of antibiotics and vaccines. (5)
Much regulatory activity, however, predates September 11. A recent GAO report describes earlier preparations undertaken by government agencies, focusing on coordination among federal agencies and with state and local agencies, and the development of response teams designed to contain an attack involving weapons of mass destruction. (6) GAO has paid less attention to more humdrum regulatory efforts to make workplaces, buildings, bridges, tunnels, dumps, and other locations more secure against terrorist attack, although the security of computer networks and air travel has received scrutiny.
The regulatory model, then, is not an innovation; it describes a longstanding element of the government's response to the threat of terrorism. It thus deserves more public and academic attention than it has received. (7) This Article examines the regulatory model, with special attention paid to the ways this model illuminates the problem of fear and mass panic provoked by terrorist attacks. I will emphasize the difference between using regulation to minimize risks that people fear, and using regulation to reduce fear. Both are difficult, but the latter is more ambitious and offers the most hope for undermining the use of terror to achieve political objectives.
I. PRELIMINARIES: TERRORISM AND TERROR
[T]errorism [is] a distinctive mode of unconventional psychological warfare aimed ultimately at bringing about a climate of fear and collapse in an incumbent regime or target group. (8)
The regulatory model invites one to draw analogies between terrorism and other sources of risk. Manufacturing processes pose risks to workers; OHSA obliges employers to take health and safety precautions. Factory pollution creates health risks for nearby residents; EPA obliges factories to install scrubbers or clean up spills. If these analogies hold, then agencies should recognize that terrorism poses similar risks to the health and safety of American citizens. …