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November|December 2005

PIRATICAL

DOUGLAS R. BURGESS JR.'S ARTICLE ("The Dread Pirate Bin Laden," July | August 2005) is indicative of a radical lobby toward the gross liberalization of international criminal law. Burgess argues that universal jurisdiction—the right to try anyone, in any court, anywhere for certain uniquely heinous crimes—may be applied in both spirit and law to the crime of terrorism. Put another way, he says, all terrorists may be tried by anyone, at any time, for being just that: a terrorist. His claim is grounded in the argument that terrorists are the enemies of all because, he says, they have "declared war against civilization." But, of course, this simply is not true.

Terrorism is the application of force in order to effectuate desired policy ends. These policies come from particular individuals or states. As a result, possible targets are narrowed to something way short of the civilized world. (It seems inconceivable to imagine the Tamil Tigers launching a surprise attack on Canada, for instance.) Pirates were prosecuted universally because they really were enemies to all. Their end was criminal enterprise, not political change. Their violence was applied to anyone from whom they could plunder booty.

Matthew R. McNabb
Washington, D.C.

BRAVO FOR DOUGLAS R. BURGESS JR. for showing us a path out of the fire and suggesting a framework for dealing with terrorists. Only Mr. Burgess's polite willingness to allow that there is a meaningful difference between pecuniary rewards and the pursuit of power distracts from his excellent analysis. The distinction between wealth and power is one of degree rather than kind. Given his evidence, eliminating this unneeded nuance makes his argument even stronger.

Jonathan Feinstein
New York, N.Y.

BENCH TIME

I WRITE TO BE CLEAR THAT I DISAGREE with the editorial decision to link the essay I wrote, "So Long: Changing the Judicial Pension System Could Keep Judges from Staying on the Bench for Too Many Years," with the line "Getting Deadwood Off the Bench" that ran on the cover of your July | August 2005 issue.

Given life tenure, no mandatory age for retirement, and current federal pension statutes, I argued that life-tenured judges have incentives to stay on the bench, thereby exercising the power of judgment for too many years. My concern is not that such judges are infirm, old, or incompetent. Indeed, rather than "deadwood," many are creative individuals who could continue to make important contributions off the bench while others could take their turn as judges, determining the application and meaning of federal law. In my view, in a democracy, individuals—however vibrant—ought not hold the power of judgment for the very long length of time (often 24 years) that has now become common.

Judith Resnik
New Haven, Conn.



BORIS BITTKER, WHO DIED IN SEPTEMBER AT 88, was a revered scholar and teacher. As a Sterling Professor at Yale Law School, he was preeminent as a tax scholar but also did a lot of other deeply respected work. The last article that he published was an essay in which he explained how states can fund religious education without crossing the line between church and state. It was flattering that he chose to publish it in Legal Affairs, because this magazine grew out of an idea that he had. At the magazine's offices, a second-floor balcony serves as the bleachers for a home-run derby park, and it was named in his honor when we launched. Our effort to engage readers about what Boris called "the link between law and actual life" has been inspired by his vision, his independence, and his humanity.

Letters to the editor should include your name, address, and telephone number and can be sent to letters@legalaffairs.org or Legal Affairs, 254 Elm Street, New Haven, CT 06511. We are unable to publish all letters and may edit letters for length and clarity.

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