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1. See, e.g., George P. Fletcher, “We Must Choose: Justice or War?” Washington Post, Oct. 6, 2001,; “This Evidence Would Not Convict in Court, but it Does Justify a Limited War,” Independent, Oct. 5, 2001.

2. See, e.g. Charles Krauthammer, “To War, Not to Court,” Washington Post, Sept. 12, 2001, p. A29; Harvey Sicherman, “Bleak New World,” FPRI E-note, Sept. 13, 2001.

3. See, e.g., Burt Neuborne, “Tribunals Without the Military,” New York Times, Dec. 16, 2001, section 4, p. 13. For a critique of such arguments, see Jack Goldsmith and Bernard Meltzer, “Swift Justice for bin Laden,” Financial Times, Nov. 7, 2001.

4. See, e.g., Anthony Lewis, “Right and Wrong,” New York Times, Nov. 24, 2001; James D. Zirin, “Will U.S. Civil Liberties be Another Victim?” Times (London), Dec. 4, 2001; Clarence Page, “Selling Our Judicial System Short,” Chicago Tribune, Dec. 2, 2001, p. 21.

5. One concrete example in the opening months is the U.S. administration’s uncertainty whether those captured in Afghanistan or elsewhere were to be regarded as prisoners of war or as “unlawful combatants.” See William Glaberson, “Critics’ Attack on Tribunals Turns to Law Among Nations,” New York Times, Dec. 26, 2001.

6. See, e.g., Nicholas Kristoff, “Let Mullah Omar Get Away,” New York Times, Dec. 26, 2001, and the highly critical readers’ letters it prompted.

7. Arundhati Roy, “The Algebra of Infinite Justice, Guardian, Sept. 29, 2001.

8. See, e.g., Act for the Prevention and Punishment of Crimes Against Internationally Protected Persons, 94 P.L. 467, 90 Stat. 1997 (1976); 1984 Act to Combat International Terrorism, 98 P.L. 533, 98 Stat. 2706 (1984); and Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA Patriot Act) of 2001,” 107 P.L. 56, 115 Stat. 272 (2001).

9. In international law, these several bases for jurisdiction are generally referred to as territorial, protective, passive personality, and universal. The Statute of the International Criminal Court defines a crime against humanity, a core basis of universal jurisdiction, as including murderous acts “when committed as part of a widespread or systematic attack directed against a civilian population.” Some have argued that bin Laden’s late 1990’s declaration of a “war” against the United States subjects his organization’s actions to the laws of war, which define attacks on noncombatants as a war crime—another standard basis for universal jurisdiction. The contours of universal jurisdiction are unsettled and the subject of much debate. For an account of one recent attempt at a systematic formulation, known as “The Princeton Principles of Universal Jurisdiction,” see Laura Secor, “Justice Without Borders,” New York Times, Dec. 9, 2001.

10. Examples of acceptance of this principle include Israel’s prosecution of Adolf Eichmann and the United States’ willingness to extradite John Demjanjuk.

11. See Harold Hongju Koh, “We Have the Right Courts for bin Laden,” New York Times, Nov. 23, 2001.

12. See, e.g., U.S. v. Alvarez-Machain, 504 U.S. 655 (1992), allowing prosecution even if the foreign defendant’s abduction to the U.S. was “shocking” and “in violation of general international law principles”). International law arguably accepts the same principle. When Israeli agents abducted Adolf Eichmann from Argentina to stand trial in Jerusalem, the kidnapping was acknowledged to be in violation of international law but the prosecution was not.

13. See Anne-Marie Slaughter, “Al Qaeda Should be Tried Before the World,” New York Times, Nov. 17, 2001.

14. “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” Executive Order of Nov. 13, 2001, available at www.whitehouse.gov/news/releases; Jan Ting, “In War, What Happens to Civil Liberties?” Philadelphia Inquirer, Nov. 1, 2001.

15. See e.g. Marjorie Miller, “The bin Laden Tape: Many Watch, but Opinions Mostly Unchanged,” Los Angeles Times, Dec. 15, 2001; Susan Sachs, “Look at bin Laden Is Unlikely to Change the Minds of Arabs Hostile to U.S.” New York Times, Dec. 14, 2001; Fawaz A. Gerges, “A Time of Reckoning,” New York Times, Oct. 8, 2001.

16. Patrick E. Tyler and Jane Perlez, “World Leaders List Conditions on Cooperation,” New York Times, Sept. 19, 2001, p. Al; John F. Burns, “Taliban Refuse Quick Decision Over bin Laden,” New York Times, Sept. 18, 2001.

 

 
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