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The American claim of a legal and moral right to use force against terrorists and their sponsors constrains—for good or ill—the United States’ ability to press for restraint by other nations that suffer terrorist attacks, most notably Israel and most recently India. Embracing the law model could risk conferring greater legitimacy to calls for prosecution—perhaps as war criminals—of American troops or leaders for actions in military or paramilitary operations in Afghanistan or elsewhere.

Still, the legal paradigm has played an important role in U.S. conceptions of the war against terrorism, in part because it has not been as inconsistent with a war model as is often thought. Much that some may find legally and morally unseemly is fully consistent with a prosecutorial model. The formal legal changes to address the specific circumstances of the immediate war on terrorism are part of this pattern, including the much-discussed military tribunals, exceptional secrecy to protect sources of intelligence, indefinite detention of aliens suspected of terrorist activities and involvement with terrorism, authority to listen to conversations between federal detainees and their lawyers, increased power to conduct surveillance and to gain access to information, dragnet questioning (with formal consent) on the basis of little more than national origin, toughened immigration rules and enforcement efforts, and substantive criminal proscriptions that cast a wider net for providers of material, organizational, and even some forms of moral support to terrorists. While such measures may be objectionable and even ill advised, they are not a thorough rejection of the law paradigm but an effort to make a legal model work under the extraordinary and dangerous conditions of a proclaimed (though legally undeclared) war.

Moreover, less exceptional features of a criminal law approach applied in the fight against terrorists include much that is not for the purist or the squeamish. Bringing suspects and evidence before tribunals sometimes requires questionable means. Success in finding, capturing, and prosecuting defendants routinely entails dealing with highly odious and criminal characters, enlisting their cooperation, rewarding them, and promising them immunity. It should hardly be surprising that such ordinary practices of police and district attorneys have analogs in intelligence operatives’ dealings with terrorist elements or in the United States’ overlooking the sins of now-useful cooperative governments in the region. These are indeed features of a law paradigm that retains coherence, some prospect of efficacy and broad appeal precisely because it thus partakes of some of the moral ambiguity and political realism that are more obviously and more often associated with its supposed polar opposite, the war paradigm.

The War Paradigm and the Roles of Law and Civil Liberties at Home and Legality Abroad

Jacques deLisle is a professor of law at the University of Pennsylvania Law School and a senior fellow at the Foreign Policy Research Institute. In June he will speak on the topic of this paper as a panelist at the Penn Law European Society gathering in Berlin, Germany.

This article may be read in its entirety in Orbis, Vol. 46 No. 2 (2002), a publication of the Foreign Policy Research Institute (www.fpri.org/orbis).


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