Legal Perspectives on the US War on Terrorism

by

Jonathan Hafetz

• LAST REVIEWED: 28 September 2016
• LAST MODIFIED: 28 September 2016
• DOI: 10.1093/obo/9780195396607-0207

Introduction

The US War on Terrorism describes important aspects of the United States’ approach to Al Qaeda and other terrorist groups after the attacks of 11 September 2001. President Bush first used the term on 20 September 2001. Over time, the War on Terrorism has become an umbrella term for a range of legal, military, and policy decisions. The War on Terrorism is partly rhetorical, signaling an intensified focus, much like the “war on crime” or “war on drugs” did in the past. But the War on Terrorism also has legal significance. It indicates a decision by the United States to treat the struggle against Al Qaeda and other terrorist groups partly as an armed conflict, rather than exclusively as a matter of criminal law enforcement. This conflict, moreover, was deemed to be global in scope. The War on Terrorism was initially associated with sweeping assertions of presidential power rooted in the president’s inherent authority under Article I of the Constitution. The War on Terrorism includes a number of facets, including the indefinite detention of suspected terrorists; the use of military commissions to try terrorism suspects for war crimes; torture and other cruel, inhuman, and degrading treatment; the targeted killing of terrorism suspects through drone strikes; and the expansion of government surveillance programs, including those affecting US citizens. Despite modifications over time through congressional action, judicial decisions, and changes in executive branch policy, important features of the War on Terrorism remain today.

General Overviews

Many books and articles address the War on Terrorism, although much of the relevant literature focuses on individual sub-topics. Goldsmith 2007 offers an inside account of the War on Terrorism during the Bush administration, while Klaidman 2012 and Savage 2015 provide an overview of the formulation of national security policy during the Obama administration. Murphy discusses the 2003 US invasion of Iraq, which President Bush linked to the War on Terrorism. Cole 2003 and Fiss 2015 describe how the War on Terrorism has impacted constitutional liberties. Cole, for example, compares responses by the Bush administration after 9/11 to prior overreactions by the US government during times of insecurity. Ackerman 2004 and Gross 2003 situate the War on Terrorism within broader theories of emergency powers. Huq 2009 questions the notion of national security exceptionalism and link judicial responses during the War on Terrorism to broader trends in public law. Wittes 2008 focuses on the importance of greater congressional involvement and the need to develop a new law of counterterrorism.

• Ackerman, Bruce. 2004. The emergency constitution. Yale Law Journal 113:1029–1091.

  DOI: 10.2307/4135710

  Explains why the significant and long-term nature of the threat posed by terrorism demands that liberal democracies, such as the United States, develop a new paradigm of emergency constitutionalism that recalibrates the balance between liberty and security.

• Cole, David. 2003. Enemy aliens: Double standards and constitutional freedoms in the war on terrorism. New York: New Press.

  Describes the problems associated with United States’ use of a double standard that curtails the rights of foreign nationals without requiring citizens to make the same sacrifices.

• Fiss, Owen. 2015. A war like no other: The Constitution in a time of terror. New York: New Press.

  Examines the erosion of fundamental constitutional liberties in the name of protecting national security and the failure of courts to hold the government accountable.

• Goldsmith, Jack. 2007. The terror presidency: Law and judgment inside the Bush administration. New York: Norton.

  An inside account of how the fear of another terrorist attack shaped the formulation of national security policy during the Bush administration.

• Gross, Oren. 2003. Chaos and rules: Should responses to violent crises always be constitutional? Yale Law Journal 112:1011–1134.

  DOI: 10.2307/3657515

  Explores how the War on Terrorism reflects a familiar pattern in which liberal democracies curtail individual rights in times of emergency and questions the effort to accommodate these practices within a constitutional rubric rather than acknowledging the need to circumvent the legal order.

• Huq, Aziz Z. 2009. Against national security exceptionalism. Supreme Court Review 2009.1: 225–273.

  DOI: 10.1086/653649

  Challenges the prevailing view that judicial responses to national security measures differ significantly from broader jurisprudential trends.

• Klaidman, Daniel. 2012. Kill or capture: The war on terror and the soul of the Obama presidency. New York: Houghton Mifflin Harcourt.

  Describes the evolution of the Obama administration’s counterterrorism policies and the internal debates within the administration on key national security issues.

• Murphy, Sean D. 2005. Assessing the legality of invading Iraq. Georgetown Law Journal 92:173–257.

  Critiques the legal theory provided by the United States to justify the invasion of Iraq and its lack of support under international law.

• Savage, Charlie. 2015. The power wars: Inside Obama’s post-9/11 presidency. New York: Little, Brown.

  Provides a detailed account of the formulation of national security policy during the Obama administration and the degree to which Obama achieved promised changes in this area.

• Wittes, Benjamin. 2008. Law and the long war: The future of justice in the age of terror. New York: Penguin.

  Makes the case for greater congressional involvement in developing a new law of counterterrorism, while critiquing theories that rely predominantly on either executive or judicial power.