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by Jacques deLisle

In the immediate aftermath of September 11, the Bush administration and political leaders from both parties proclaimed a “war on terrorism” in response to what they characterized as acts of war directed against the American homeland. At the same time, they declared that the United States was determined to “bring to justice” those responsible for the September 11 attacks, as well as members and accomplices of the wider international network of terror directed against the United States and American interests.

In the weeks after September 11, the war on terrorism came to include military operations in Afghanistan and contemplation of pursuing a similar course on additional fronts. Talk in Washington turned to possible U.S.-led moves against Iraq or, less likely, North Korea, Somalia, Sudan, Syria, Yemen, or perhaps Libya, Iran, or other states that harbored or supported terrorists or developed weapons of mass destruction that—absent trustworthy safeguards—could take terrorism to devastating new levels. The United States urged less recalcitrant governments to take immediate forceful steps against terrorist groups and supporters in their own territories (along the lines of the December 2001 attack on Al Qaeda elements in Yemen), and used various means to encourage a wide spectrum of friendlier governments in the region and beyond to support the war on terrorism. The measures taken and considered have generated predictable arguments about their political feasibility, normative acceptability, and likely consequences.

Meanwhile, the prospective means for meting out justice evolved as well. Congressional legislation, presidential orders, and other executive branch actions introduced significant substantive and procedural changes in the laws that could be used in the fight against terrorism. Controversy quickly grew up around the possible spectrum of methods for dealing with the individual targets of American action. Sharp disputes arose over the legality, morality, and wisdom of U.S. forces seeking out identified individuals, trial by American military tribunals, prosecution before a special international court or criminal proceedings in the civilian judicial organs of the United States or other states with jurisdiction.

Similarly contentious were ancillary issues of procedures for investigation and prosecution that departed from the process used for ordinary criminal suspects under U.S. law but that still accorded a good deal more than the rough justice of bombing and ground combat. Questions also emerged over what law or combination of laws would apply: the laws of the United States (both already-existing and later-enacted), the laws of other countries, or the handful of international legal principles, including those developed at multilateral trials born of earlier international and internal wars.

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