The rule of law. An essential component of the financial war against organized crime and terrorism in the Americas
| DOI | https://doi.org/10.1108/13590790710828145 |
| Date | 16 October 2007 |
| Published date | 16 October 2007 |
| Pages | 405-437 |
| Author | Fletcher N. Baldwin,Theresa A. DiPerna |
| Subject Matter | Accounting & finance |
The rule of law
An essential component of the financial war
against organized crime and terrorism
in the Americas
Fletcher N. Baldwin Jr
The Centre for International Financial Crimes Studies,
Levin College of Law,
Holland Law Center, University of Florida, Gainesville, Florida, USA and
University of London, London, UK, and
Theresa A. DiPerna
The Centre for International, Financial Crimes Studies,
Levin College of Law,
Holland Law Center, University of Florida, Gainesville, Florida, USA
Abstract
Purpose – This paper aims to explore complexities of compliance with international and customary
law when faced with terrorist threats. The paper’s thesis asserts that terrorism cannot be successfully
repelled unless the legitimacy of international and domestic law is adhered to by states out of a sense
of reciprocal obligation in accordance with the principle of pacta sunt servanda (pacts shall be
respected).
Design/methodology/approach – This paper examines US pronouncements in order to assess
strategic validity.
Findings – While the Middle East, particularly Iraq, has been the focus of the US “War on terrorism,”
the paper suggests two questions: what has been the US response to terrorist threats in the Americas?
Have US national security priorities post-9/11 been unnecessarily diverted from the Americas where
much needed support is promised but lacking, and instead have resources been concentrated far
beyond domestic and international norms?
Originality/value – The paper examines the US national security priorities, concluding that they
have been unproductively diverted from the Americas to the Middle East in general and Iraq in
particular. The US fixation upon Middle East “regime-change”, while neglecting to recognize the
dangerous nexus and presence of organized crime and terrorist organizations in the Americas, is
illustrative of how the present administration has diverted its post.
Keywords Terrorism, Laws,Crimes, United States of America
Paper type Research paper
Introduction
The world is his who can see through its pretension. What deafness, what stone-blind custom,
what overgrown error you behold, is there only by sufferance – by your sufferance. See it to
be a lie, and you have already dealt it its mortal blow (Emerson, 1831).
This paper is both reconsideration and an expansion of on of the writer’s earlier
analysis of the rule of law post 9/11. The analysis focused and focuses upon the USA
Patriot Act and similar legislation and directives adopted in the European Union and
The current issue and full text archive of this journal is available at
www.emeraldinsight.com/1359-0790.htm
The rule of law
405
Journal of Financial Crime
Vol. 14 No. 4, 2007
pp. 405-437
qEmerald Group Publishing Limited
1359-0790
DOI 10.1108/13590790710828145
the Americas (Baldwin, 2003, 2004, 2005). This paper addresses the issue whether
nations are adhering to international and customary law, when faced with realistic
terrorist threats or are they merely acting unilaterally outside of these legal constructs
with complete impunity. It is the thesis of this paper that terrorism cannot be
successfully repelled unless the legitimacy of international and domestic law is
understood and adhered to by states out of a sense of reciprocal obligation in
accordance with the principle of pacta sunt servanda (pacts shall be respected).
The Middle East in general and Iraq in particular, has been the focus of the USA
“war on terror.” But what has been the response of the USA to the terrorist threat in the
Americas? Have the post 9/11 US national security priorities been diverted from the
Americas, where much needed support is lacking and instead focused upon
extraordinary complexities far beyond domestic and international norms? If both
assumptions prove correct, there can be nothing but tragic consequences for the
domestic and international rules of law, unless, the present course is reversed. As Paine
(1895) warned:
An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret,
and to misapply even the best of laws. He that would make his own liberty secure must guard
even his enemy from oppression; for if he violates this duty he establishes a precedent that
will reach to himself.
The next section of this paper examines the erosion of the rule of law vis-a
`-vis the US
derogation from both international law and democratic constitutional principles in its
pursuit of “defending freedom” within the context of its unilateralist approach to the
“war on terror.”
Followed by the section, that discusses how these unilateralist-doctrinal approaches
that are fixated on “regime-change” in the Middle East are geostrategically
counter-productive in combating global terrorism. The nexus of organized crime and
the presence of terrorist organizations in the Americas are illustrative of how the USA
has diverted its post 9/11 national security priorities and resources from regional
terrorist threats.
The final section concludes that democratic principles, human rights, the rule of
law, and combatting terrorism are not mutually exclusive. To the contrary, democratic
principles, human rights, and the rule of law are all elements essential to winning the
“war on terror.”
The rule of law
The alien was to be protected not because he was a member of one’s family, clan, or religious
community, but because he was a human being. In the alien, therefore, man discovered the
idea of humanity[1].
By its actions at a meeting to celebrate the rule of law on 9/11, the Organization of
American States (OAS) acknowledged that one of the many collateral victims of the
September 11, 2001 terrorist attack could be the rule of law. The consequence
was the June 3, 2002, Inter American Convention on Terrorism. The convention
reaffirms the rule of law and rejects the rule by law. What does it all mean?
We learn in law school that the rule of law is representation coupled with the
nuances of relationships, customs, opinions, beliefs, and rules. In order for the rule of
law to serve a legitimate function within society, it must reflect that society’s
JFC
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406
perceptions and beliefs in tandem with society’s willingness to acquiesce to it. If the
rule of law is to be accepted as legitimate and representative, it must in turn lend itself
to the will of the people, including its advocacy for change, overthrow, or rebellion.
Both formal and informal obligations and agreements within a democracy facilitate
order through expectations. The expectations are necessary in order that the society
organize itself in a predictable, peaceful, and secure fashion (Fuller, 1968; Walter, 1969;
Bergen, 2001; Nabulsi, 1999).
We further learn in law school that international agreements serve a similar
function. International agreements establish procedures and rules intended to facilitate
peace and security among states. For the most part, international laws deal directly
with state entities. However, international laws may, and often do, have a direct and
indirect effect upon individuals, groups, and cross-border transnational governm ental
exchanges that operate within and between states (Fuller, 1968; Walter, 1969; Bergen,
2001; Nabulsi, 1999; Hoge and Rose, 2001; Jacquard, 2002; Kennedy, 2005)[2].
Terrorism by its very nature disrupts international peace and security through
premeditated, political violence (Walter, 1969; Bergen, 2001). The September 11 atta cks
on the Pentagon and the World Trade Center disrupted not only the global economy
(Hoge and Rose, 2001; Jacquard, 2002), but also the global rule of law. The attacks
spawned and facilitated widespread fear, panic, and economic dislocation (Guanar atna,
2002; Brisard and Dasquir, 2002). As interpreted, the United Nations Security
Resolution 1373 rejects one of the objectives of the terrorists, which was to create a
state of global anarchy by means of influencing the conduct of governments through
intimidation and coercion. It follows logically, therefore, that adhering to the rule of law
is the antitheses of the terrorist objective, a rule by law. Unfortunately, current US
policies in the “war on terror” in general, including non-judicially approved wiretaps
upon US citizens, tends to subvert the rule of law and the democratic principles flowing
there from (Etzioni, 2004; Pincus, 2006).
While nation states recognize that law is a necessary and important component of
social control, such social control is to be employed with the understanding that its
legitimacy is intricately linked with the concept of governance. Therefore, on balance,
one would ask: how does the doctrine of proportionality operate within the context of
laws designed to destabilize organized terrorist activities? Terrorists intend to
accomplish social and economic disintegration by disrupting lawful control and
muting the notion of governance. As the United Nations Security Council Resolution
1373 noted, a nation state has the legitimate right of self-defense when threatened by
acts of terrorism since such acts can lead to the destabilization and eventual collapse of
legitimate governance. With this in mind, in what manner can the rule of law become
the collateral victim?
It is conceded that one of the primary duties of any government is to ensure the
survival of its legitimate governing regime and the physical safety of its citizens. An
equally important duty is to preserve democracy and civil liberties and to fulfill
obligations mandated under national constitutions, as well as international and
humanitarian conventions. The late US Chief Justice Earl Warren eloquently
illustrated this delicate balancing of national security interests and democratic
principles in his majority opinion in United States v. Robel[3]:
This concept of “national defense” cannot be deemed an end in itself, justifying any exercise
...of power designed to promote such a goal. Implicit in the term “national defense” is the
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