Volume 35 Number 3 -- June 2002

TABLE OF CONTENTS

SYMPOSIUM

TERRORISM AND THE LAW

SYMPOSIUM INTRODUCTION: THE WAR OF SYMBOLS

by Victor Gold

DEMOCRACY IN THE WAR AGAINST TERRORISM—THE ISRAELI EXPERIENCE

by Emanuel Gross

At a time when terrorists are striking in both the United States and Israel, Professor Emanuel Gross examines the nature of terrorism. He discusses methods of interrogation used by different nations on suspected terrorists and argues that, at times, extreme interrogation methods may be morally justified in order to save the masses. Professor Gross questions whether terrorists should be afforded Prisoner of War status under the Geneva Convention and concludes they should not. Ultimately, the Article addresses the conflict that a democratic country faces in defending the peace and security of its people while simultaneously abiding by its laws. Professor Gross explores this conflict especially by looking at how Israel has lived with a constant threat of terrorism.

ESSAY: DETENTION, MATERIAL WITNESSES & THE WAR ON TERRORISM

by Laurie L. Levenson

In this Essay, Professor Laurie Levenson discusses the domino effect of relaxing the standards the criminal justice system uses when determining whom to incarcerate. Professor Levenson highlights the move into an era where preventative detention is the norm, rather than the exception. She analyzes the standards now in place for detaining a person in the name of security, and the dangers posed by shifting power from the courts to the Attorney General. Professor Levenson also critiques the increased use of material witness laws as a guise to hold persons who are suspected of criminal activity. Professor Levenson's Essay encourages a more forthright process – Either the government should charge those suspected of crimes or release them.

THE MORALITY OF TERRORISM

by Theodore P. Seto

Is terrorism moral? Upon close examination, the obvious answer to this question proves disquietingly unsatisfactory. In this Article, Professor Theodore P. Seto first attempts to define terrorism—a surprisingly difficult task. Second, Professor Seto explores three of the most widely accepted contemporary moral theories—consequentialism, deontology, and virtue ethics—and applies each to the problem. Each, he argues, fails in important ways. Third, Professor Seto outlines a new theory of ethics based on evolutionary and game theory, and applies that new theory to both terrorism and our responses to it. The new theory, he concludes, offers substantially greater insight into both the moral problems presented and the likely solutions to those problems.

REMEDIES FOR VICTIMS OF TERRORISM

by Georgene Vairo

How will the victims of the September 11 terrorist attacks be compensated? In this Article, after surveying traditional means of achieving compensation, Professor Georgene Vairo discusses the September 11th Victims Compensation Fund of 2001. Although she believes the Act has potential in providing an alternative solution to court litigation for the victims of September 11, she notes that the act is far from perfect as a practical matter and raises interesting constitutional problems. Professor Vairo explores several of the issues that should be considered prior to any congressional enactment of a tort-victim compensation fund. She argues that Congress generally ought not overstep its boundaries by enacting legislation that attempts to resolve mass torts. This is the role of the state and federal courts. She suggests that Congress lacks the duty and the competence to determine how personal in-jury cases should be resolved. However, in a limited range of cases, where the courts are unable as a practical matter to deal with complex civil litigation, Professor Vairo believes that congressional action may well be appropriate.

NOTE AND COMMENT

SACRIFICING BURMA TO SAVE FREE TRADE: THE BURMA FREEDOM ACT AND THE WORLD TRADE ORGANIZATION

by Adrienne S. Khorasanee

This Note was inspired by the proposed Burma Freedom Act, which seeks to impose trade sanctions against Burma, a country notorious for its human rights violations. The bill follows a similar Massachusetts law, which was declared unconstitutional. This Note explores the government’s motivation in adopting such legislation, as well as its constitutionality. It further examines the World Trade Organization’s stance on trade and its potential opposition to this Act. This Note promotes a broader, more encompassing humanitarian perspective when considering the United States’ role in the global market. It points to a realization that the world is full of agencies that support boycotts, and one agency that does not, but claims to have the final word—the WTO.

THE TAXATION OF CRIME VICTIM RESTITUTION: AN UNJUST PENALTY ON THE VICTIM

by Linda Trang

Although the Internal Revenue Code does not make mention of the tax-ability of crime victim restitution awards, section 104(a)(2) provides a gross income exclusion for “damages” received for personal physical injuries. In this Comment, Linda Trang analyzes whether crime victim restitution awards should fall under the section 104(a)(2) exclusionary provision. She focuses on what is meant by the term damages under the Code, whether it is to be construed broadly or narrowly, and whether crime victim restitution should be excludible under the statute despite its limited reference to damages. In light of the public policy for exclusion based on compassion for the victim, and prior Treasury rulings making section 104(a)(2) available to other recoveries in compensation, Trang argues that section 104(a)(2) should be read broadly and be amended to explicitly encompass not only damages but any recoveries based in compensation. She argues crime victim restitution should be excludible under the statute because it is not the same as simple restitution based upon unjust enrichment, but is more akin to compensatory damages since the recovery is measured by the plaintiff’s loss rather than by the defendant’s gain.