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Negotiating with Terrorists

Mediators often become evangelists for negotiated resolution of conflict, believing mediation or other forms of diplomacy to be superior to all other forms of conflict resolution in all circumstances, and with the potential of solving all problems. We should probably be more humble. We should understand that some conflicts cannot be resolved at all, and some can only be resolved by other means.

President Obama, who most of the time stands for making every effort to achieve consensus, and who even won the Nobel Peace Prize(!), reminded us of that with his announcement that he had ordered, and the military had carried out, the killing of Osama Bin Laden. In this case, we were dealing with a character viewed as so outside the norms of civilized society that it would not even have been appropriate to use any sort of legal proceeding against him. We did not face the dilemma of many parties involved in a dispute, of whether to litigate or negotiate. We apparently never even had the intention of bringing Osama Bin Laden before a court. Attorney General Holder told Congress last year: “The reality is that we will be reading Miranda rights to the corpse of Osama bin Laden. He will never appear in an American courtroom.” Being unwilling to bring him to court, we certainly had no intention of legitimizing his demands by entering into any sort of negotiations with him.

I happened to have just started reading Robert Mnookin‘s book Bargaining with the Devil, which opens with a debate over whether just after September 1, 2001, the US should have entered into negotiations with the Taliban, as the Taliban requested. Even though Mnookin is a well-known mediator and advocate of diplomatic solutions to conflict, his answer was “no” in that situation. The time for negotiation was past, in his view, and action was required. Based on the information available at the time, it was morally justifiable to invade Afghanistan if the Taliban government did not accede to our demands. Interestingly, years later our government, and the Afghan government, now seem to have a more receptive attitude toward the possibility of negotiating with Taliban elements, than they did ten years ago. And while we will never negotiate with Bin Laden, we might very well sit down with more respectable people who sympathize with some of his concerns.

Bruce Willis also reminds us, in this clip from the movie The Fifth Element, that there are many styles of negotiation:

Mediation is not a panacea. It is not appropriate to solve all problems. Neither is the traditional justice system. Neither is war. But all methods have their places, alone or in combination. There is a time, as the Bible says, to every purpose under heaven.


Joe Markowitz

Joseph C. Markowitz has over 30 years of experience as a business trial lawyer.  He has represented clients ranging from individuals and small businesses to Fortune 500 corporations.  He started practicing with a boutique litigation firm in New York City, then was a partner in a large international firm both… MORE >

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