Se ha escrito mucho, muchísimo, sobre la inevitabilidad del Derecho. Pero me ha llamado la atención, en estos tiempos de flexibilización y de fuga del Derecho administrativo, leer sobre la de éste. Y nada menos que a cuenta de Al Qaeda. Como curiosidad, allá va el enlace a «The Untold Story of Al Qaeda’s Administrative Law Dilemmas», un trabajo de Mariano Florentino Cuéllar, publicado como Stanford Public Law Working Paper No. 990945 y disponible en el SSRN , que para estas cosas es una maravilla.
In the months and years following September 11, senior al Qaeda strategists and sympathizers disseminated a series of manuscripts revealing the terrorist network’s aims and its internal management dilemmas. This Article elucidates how policymakers can better evaluate changes in counter-terrorism laws and policies by scrutinizing the goals and internal organizational problems of terrorist entities. Conventional wisdom paints terrorist networks such as al Qaeda and state bureaucracies in advanced industrialized countries as starkly different. Al Qaeda and its allies are assumed to pose particularly severe dangers because they are flexible, adaptable, decentralized, and staffed by committed supporters with a common goal. By contrast, state bureaucracies in advanced industrialized nations are often described as suffering from plodding, rule-bound decision-making structures that hobble their response to our nimble adversary.
But a closer look at al Qaeda’s own strategic studies – read in light of social scientists’ emerging analyses of terrorist organizations – reveals a more complex picture. In it, the distinction between terrorist networks and bureaucratic agencies is less pronounced than commonly supposed. Both entities face pervasive problems involving the harnessing of expertise, the resolution of conflict among politically important players, reconciliation of competing goals, restraints on overzealous action, building public legitimacy, and monitoring subordinate activity. By scrutinizing terrorist networks as collective entities with conflicting goals facing elusive administrative problems, we can better understand three things: (1) that, in fact, terrorist networks have repeatedly sought to develop administrative procedures and law-like hierarchical arrangements to manage their problems; (2) that the efficacy of counter-terrorism strategies depends crucially on the extent to which they exacerbate (at a reasonable cost) rather than diminish these networks’ administrative problems; and (3) that legal arrangements characteristic of U.S. public law – particularly those governing the administrative decisions of bureaucratic institutions – are valuable in part because they help the nation avoid the same type of problem that terrorist entities are trying to solve in their own context.