By analyzing a comprehensive roster of terrorist groups that existed worldwide between 1968 and 2006, the authors found that most groups ended because of operations carried out by local police or intelligence agencies or because they negotiated a settlement with their governments. Military force was rarely the primary reason a terrorist group ended, and few groups within this time frame achieved victory.

These findings suggest that the U.S. approach to countering al Qa'ida has focused far too much on the use of military force. Instead, policing and intelligence should be the backbone of U.S. efforts.
. . . .

What does this mean for counterterrorism efforts against al Qa'ida? After September 11, 2001, U.S. strategy against al Qa'ida concentrated on the use of military force. Although the United States has employed nonmilitary instruments — cutting off terrorist financing or providing foreign assistance, for example — U.S. policymakers continue to refer to the strategy as a “war on terrorism.”

But military force has not undermined al Qa'ida. As of 2008, al Qa'ida has remained a strong and competent organization. Its goal is intact: to establish a pan-Islamic caliphate in the Middle East by uniting Muslims to fight infidels and overthrow West-friendly regimes. It continues to employ terrorism and has been involved in more terrorist attacks around the world in the years since September 11, 2001, than in prior years, though engaging in no successful attacks of a comparable magnitude to the attacks on New York and Washington.

Al Qa'ida's resilience should trigger a fundamental rethinking of U.S. strategy. Its goal of a pan-Islamic caliphate leaves little room for a negotiated political settlement with governments in the Middle East. A more effective U.S. approach would involve a two-front strategy:

• Make policing and intelligence the backbone of U.S. efforts. Al Qa'ida consists of a network of individuals who need to be tracked and arrested. This requires careful involvement of the Central Intelligence Agency and Federal Bureau of Investigation, as well as their cooperation with foreign police and intelligence agencies.
  
• Minimize the use of U.S. military force. In most operations against al Qa'ida, local military forces frequently have more legitimacy to operate and a better understanding of the operating environment than U.S. forces have. This means a light U.S. military footprint or none at all.
  

Key to this strategy is replacing the war-on-terrorism orientation with the kind of counterterrorism approach that is employed by most governments facing significant terrorist threats today. Calling the efforts a war on terrorism raises public expectations — both in the United States and elsewhere — that there is a battlefield solution. It also tends to legitimize the terrorists' view that they are conducting a jihad (holy war) against the United States and elevates them to the status of holy warriors. Terrorists should be perceived as criminals, not holy warriors.

This article has two purposes. The first is to identify the nature of the cross-subsidy with more precision, and the second is to explore the question of its possible justification or correction. It turns out that the cross-subsidy is a good deal more complex than it initially appears, and, as a result, a good deal less unfair. There is nonetheless a residual unfairness toward students that should be remedied. The remedy, however, does not involve reducing research costs or altering research to relate more closely to the curriculum, but rather lies in altering the curriculum to correspond more closely to existing faculty research.

the Langdellian curriculum has staggered on...despite ongoing criticism, like a figure, whether hero or villain, from an action movie who keeps fighting on after absorbing an inconceivable number of apparently mortal injuries. As a result, scholarship and teaching have increasingly diverged.

pinnacle or capstone, the peak experience toward which the first two years of the program are directed. In the case of law school, this means that the third year at a research oriented institution should engage the students in research. Each student should be enrolled in a course that is organized around, or at least inspired by, the research program of the faculty member who is teaching the course. They should carry out their own research program as part of their participation in this course. To begin with, this would bring students into contact with some contemporary developments in law and legal practice. While such courses would necessarily be limited to a relatively narrow subject, the student would at least be given a sense of current developments in the field. Second, and probably more important, courses of this sort would provide students with active learning opportunities. Rather than sitting in large lecture halls, or even around a seminar table, for one more year, students would be conceiving, organizing, and carrying out a sustained project under the supervision of the faculty member and within the ambit of the faculty member’s
own research agenda.

there is a vast range of other skills that a good lawyer must possess and that cannot be taught in a lecture format. Lawyers need to be able to gather facts, to organize large bodies of material, and to analyze this material in accordance with some theme or purpose. They need to be able to present the material, and their analysis of it, to their colleagues in an effective manner. They need to be able to critique a colleague’s work in a searching, rigorous manner, while remaining on good terms with that colleague. These are all skills that can be taught in a seminar format where students do a serious research project and present it in the class.

While the ability to detain eliminates many of the problems associated with criminal prosecution, open-ended detention is not an acceptable way to conform our historic commitments to liberty to the exigencies of this different kind of conflict. Under the military detention model, the President may detain enemy combatants without trying them in the criminal justice system. This is an awesome power and, as such, must be properly circumscribed. Detainees are not afforded the full protections of the Bill of Rights or the Federal Rules of Criminal Procedure, and the executive’s actions are not subject to the accountability that is inherent in the criminal justice system. To turn every crime that might be tenuously linked to terrorism into a military matter would breach this country’s most fundamental values.

[T]the person must (1) be a member of (2) an organization or nation against whom Congress has declared war or authorized the use of military force, and (3) knowingly plans or engages in conduct that harms or aims to harm persons or property for the purpose of furthering the military goals of the enemy nation or organization.

If the first two criteria address who in modern warfare is the enemy, the third criterion addresses who is the combatant. Historically, this distinction has separated those with military aims from those who do not present a threat to opposing forces. Though yesterday’s soldier has been replaced, at least in part, by those who eschew the conventions of lawful warfare, the purpose underlying this distinction remains unchanged. In light of today’s realities, a "combatant" is a person who knowingly plans or engages in conduct that harms or aims to harm persons or property for the purpose of furthering the military goals of an enemy nation or organization. Like the first two criteria, this requirement closely tracks the relevant traditional law of war rules.

Under this criterion, those who use military-like force against American soldiers or civilians obviously qualify as combatants. Similarly, members of an enemy sleeper terrorist cell that have taken steps, even if preliminary in nature, toward an act of destruction are also considered combatants. Conversely, persons traditionally considered civilians, such as members of the enemy organization who do not possess hostile or military designs, are non-combatants and may not be detained by the military. This includes persons who would clearly be non-combatants, such as a "physician who treated a member of al Qaeda," because they intend no harm to persons or property. Such persons would not be subject to military detention.

52. There appears to be a striking inconsistency in the Government’s approach to this matter. As noted above, it has relied on assurances by the US Government that it does not use torture. However, it is evident that, in the case of water-boarding and perhaps other techniques, what the UK considers to be torture is viewed as a legal interrogation technique by the US Administration. With the divergence in definitions, it is difficult to see how the UK can rely on US assurances that it does not torture. As Amnesty International argues, “what the USA considers torture does not match international law”.86 Human Rights Watch adds that “President Bush’s statements on torture need to be considered in the light of the memoranda from his legal advisers that re-defined torture so narrowly as to make the prohibition virtually meaningless.”87

53. We conclude that the Foreign Secretary’s view that water-boarding is an instrument of torture is to be welcomed. However, given the recent practice of water-boarding by the US, there are serious implications arising from the Foreign Secretary’s stated position. We conclude that, given the clear differences in definition, the UK can no longer rely on US assurances that it does not use torture, and we recommend that the Government does not rely on such assurances in the future. We also recommend that the Government should immediately carry out an exhaustive analysis of current US interrogation techniques on the basis of such information as is publicly available or which can be supplied by the US. We further recommend that, once its analysis is completed, the Government should inform this Committee and Parliament as to its view on whether there are any other interrogation techniques that may be approved for use by the US Administration which it considers to constitute torture.

This essay, written for a symposium in honor of Jerome Barron, asks what media access means in the age of the Internet. Twentieth century debates about media access presupposed a relatively small group of private media owners who tightly controlled access and who combined content delivery with content production. Today a central element of many telecommunications business models is providing widespread access to content delivery systems and encouraging mass participation in content production. That is because many business models increasingly depend on attracting user-generated content.

In 1967, Jerome Barron argued that First Amendment doctrines created by courts could help secure media access and promote public participation in mass media. Although First Amendment *values* remain important in shaping public policy and technological design, the First Amendment itself, at least as interpreted by courts, will do relatively little to promote these goals.

When people debate whether the First Amendment guarantees positive rights enforceable by courts, or rights of access to private media, they have probably already assumed a particular kind of media ecology, and taken existing business models and technology as a given. This is a mistake. Technology policy is prior to these rights questions. It is not prior logically or jurisprudentially, but practically. If the system of mass communications is designed correctly, better media access is already built into the system and into the existing models of business competition. The Internet by itself does not guarantee effective media access. It has to be built in a certain way: to facilitate openness and participation. Judges are not particularly good at this task.

The basic problem of media access is not constitutional in the legal sense, i.e., what the U.S. Constitution demands or forbids. Rather, it is "constitutional" in a technological and social sense: what kinds of technologies, business models, social formations, and user practices constitute the media ecology. To promote media access today, we must look beyond the boundaries of judicially created First Amendment rights; we must look instead to issues of technological design and to law's role in shaping and regulating technologies, business models, and end-user practices.