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This week the family of federal district court Judge Joan Lefkow was tragically murdered. That same day, a brave judge in the trial of Saddam Hussein was also assassinated. While the killers of the Iraqi judge were dubbed “insurgents,” the killers of the federal judge were called “domestic terrorists.”

I am generally leery of the state's use in criminal prosecutions of special classes based on an underlying general intent of “hate” or “terror,” rather than (or in addition to) a specific mens rea. I am not sure this can be done in a uniform and consistent way so as to provide real notice. The potential for abuse is also scary. For example, is there any doubt that many fundamentalist right-to-lifers – even non-violent ones – are potentially terrorists in the eyes of an AG like Janet Reno? John Ashcroft's DOJ supposedly pushed local law enforcement agencies to monitor anti-war groups under the rubric of fighting terrorism.

Leaving aside the virtues and vices of anti-terrorist and hate-crime legislation, I think the label terrorism is appropriate for those who kill judges – be it a federal district court, or a special crimes-against-humanity tribunal. Scholars and commentators frequently argue that litigation is a crowning achievement of civilization, as it represents an abandonment of dispute resolution through force and violence, and the embrace of resolution through principle and reason. I think there is something to this argument.

In some regards, modern litigation is still an exercise of coercion. It may be directed by principle and reason, but it is ultimately done with the backdrop of the state's monopoly on force. If you don't believe me, just go ahead and suffer a default judgment next time you get sued and see what happens when you resist the local sheriff's effort to seize your property. It may sound utopian, but I personally think a true and complete triumph of persuasion over force in the context of dispute resolution requires a non-state judiciary and the voluntary concession of personal jurisdiction. Before you dismiss this, see Rothbard's For a New Liberty.

So although there is room for improvement, I strongly agree that the rule of law and the litigation of disputes are dramatic achievements in the story of civilization. The attackers of Judge Lefkow's family are rumored to have ties to white supremacist groups. They affected the murders not only for retribution, but presumably because of an unwillingness to tolerate and be subjected to a system and order that they view as corrupt and illegitimate. They are in effect not only rejecting the notion of pursuing their ends through democratic and judicial means, but are embracing revolutionary tactics of violence and murder. The same can be said of the Iraqi insurgents who killed the judge presiding over Saddam's trial. They view the entire insurgency as a continuation of the War, and are rejecting the legitimacy of the new order. Both groups have political and perhaps religious ends in mind. They in fact have a very large dispute to resolve. They not only are seeking to resolve the dispute by force, but they are also targeting the very mechanisms and aspects of the system that allow for non-violent (or in Rothbardian terms, less-violent) resolution to occur. Such tactics are worthy of a heightened degree of moral condemnation and culpability. We can justifiably feel an added measure of danger and contempt for those who employ such a strategy. How that added measure of fear and danger works itself out in the law is another matter…but socially and culturally, I have no problem calling these murders terrorists. The same goes for Timothy McVeigh, and the same goes for the leftist-revolutionaries of the last century.

I will end with a question: What about entire Nation-states that choose to achieve their political (and maybe religious) ends through the force of War, even while there are non-violent solutions and mechanisms still available? I am not talking about truly defensive military actions. But what about “preventative” Wars?

There are certain global mechanisms of non-violent dispute resolution. We often think of the UN and “international law.” These institutions, though important, are arguably overrated and ineffective. Perhaps the most powerful global mechanism for peaceful dispute resolution is global trade. In deed, market forces and aggressive military action are fundamentally incongruent. (Which is why many think it duplicitous of those on the right to glorify the “free-market” and simultaneously worship the US Military, which is really the Mother-of-all socialist programs.) Anyone who tells you that War is good for the economy needs to be taught about Bastiat's Broken Window. Corporate interests, who often get a bad name for soliciting military intervention, very often loathe the instability and destruction of War when and where they are sufficiently vested.

Because it is at the level of the Nation-State, is the New Right's Paradigm of Preventative War an ideological assault on the global mechanisms of non-violence, or just violations of those laws and norms? In other words, is it terrorism or just plain-old aggression?

March 5, 2005