Criminology Legal Perspectives on the US War on Terrorism
by
Jonathan Hafetz
  • LAST REVIEWED: 22 November 2019
  • 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.

Detention

Detention has been one of the most contested issues in the War on Terrorism. Greenberg 2009 and Margulies 2006 describe the origins of Guantánamo, where the executive branch sought to create a prison outside the law. Hafetz 2011 focuses on the role of habeas corpus in challenging enemy combatant detentions, while Rona 2007 critiques those detentions for their failure to comply with international human rights standards. Neuman 2009 describes the implications of the Guantánamo detainee habeas corpus cases for the extraterritorial application of constitutional protections. Chesney 2011 describes US military detentions in Iraq. Goodman 2009 describes the basis for and limits on the detention of terrorist fighters under international humanitarian law. Cole 2009 argues that the wartime detention of enemy combatants has precedents in historical practice but should be narrowly limited and subject to significant procedural safeguards. Pearlstein 2014 examines looming but unresolved questions surrounding the duration of the War on Terrorism and its impact on detentions at Guantánamo. Resnik 2010 argues that enemy combatant detentions are less exceptional than typically assumed and share important similarities with the treatment of immigrants and convicted prisoners.

Military Commissions

The use of military commissions after 9/11 is described in Bravin 2013. Glazier 2005 provides a historical overview, explaining that military commissions have been used sporadically in US history and were last used after the Second World War. Danelski 1996 remains an excellent account of the 1942 case involving a group of Nazi saboteurs that continues to serve as an important precedent for military commissions in the War on Terrorism. President Bush’s controversial November 2001 executive order reviving military commissions is described in Glazier 2003 and in Katyal and Tribe 2002. Ní Aoláin 2007 and Weiner 2007 offer perspectives on the Supreme Court’s 2006 in Hamdan v. Rumsfeld that invalidated the military commissions created by Bush’s November 2001 order. The subsequent legislation that authorized military commissions after Hamdan and that provides the current basis for commission prosecutions is examined in Vladeck 2015 and Margulies 2013.

Interrogations and Torture

Excellent overviews of the development of state-sanctioned torture during the Bush administration are provided in Mayer 2008 and Sands 2008. Greenberg and Dratel 2005, Danner 2004, and Jaffer and Singh 2009 provide government documents that paved the way for torture at Abu Ghraib, Bagram, Guantánamo, and secret CIA black sites. Kreimer 2003 discusses the legality of torture under the Constitution. Luban 2014 describes the threat posed by torture to the modern liberal state and the compromises between security and human rights. Scheppele 2005 challenges hypothetical justifications commonly used to justify torture. Kurnat 2008 and Slahi 2015 provide firsthand accounts of torture by the victims themselves.

Extraordinary Rendition

Satterthwaite 2007 and Fisher 2008 describe the emergence of the US extraordinary rendition program after 9/11. Weissbrodt and Bergquist 2006 and Sadat 2007 analyze extraordinary rendition under international human rights law. Frankopan 2008 examines rendition under the international humanitarian law. A defense of the president’s power to transfer suspects is provided in Yoo 2004. The participation of other countries, particularly in Europe, was essential for the rendition program, which included transferring suspects both to CIA-run secret prisons (or “black sites”) and to third countries for coercive interrogation. Fabbrini 2014 describes the leading challenge to European participation in the US rendition program in the European Court of Human Rights. Fabbrini 2011 offers a comparative analysis between the United States and Italy regarding the application of the state secrets privilege in litigation over renditions. A discussion of the consequences of extraordinary rendition under international criminal law is provided in Messineo 2009.

Targeted Killing

The United States’ increasing use of armed drones to engage in lethal strikes against terrorist suspects is detailed in Mazzetti 2013 and Scahill 2013. Shane 2015 examines the case of Anwar al-Awlaki, the US citizen and suspected terrorist whose killing by a US drone strike became a focal point in debates over targeted killing. O’Connell 2009 advocates limiting lethal drone strikes to areas of active hostilities. Chesney 2013 calls for the development of a new legal architecture that recognizes the reality presented by today’s terrorist threats and does not depend on traditional conceptions of a battlefield. Banks and Raven-Hansen 2003 discusses the legality of targeted killing under US law. Bethlehem 2012, Blank 2012, and Deeks 2012 examine the legality of targeted killings under international law. Blum and Heymann 2010 and Guiora 2012 examine various legal, moral, and strategic issues raised by targeted killings. Accountability for targeted killings is discussed in Alston 2011.

  • Alston, Philip. 2011. The CIA and targeted killings beyond borders. Harvard National Security Journal 2:283–446.

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    Describes the failure of accountability and oversight mechanisms for the use of lethal force by the CIA.

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  • Banks, William C., and Peter Raven-Hansen. 2003. Targeted killing and assassination: The U.S. legal framework. University of Richmond Law Review 37:667–749.

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    Discusses the circumstances under which the United States can engage in targeted killing under domestic law and distinguishes targeted killing from assassination.

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  • Bethlehem, Daniel. 2012. Self-defense against an imminent or actual armed attack by non-state actors. American Journal of International Law 106:771–777.

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    Sets forth principles intended to govern the use of force against non-state actors, including a state’s right of self-defense against an imminent or armed attack by a non-state actor.

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  • Blank, Laurie R. 2012. After “Top Gun”: How drone strikes impact the laws of aar. University of Pennsylvania Journal of International Law 33:675–717.

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    Examines the implications of lethal drone strikes for jus in bello principles of international humanitarian law, such as the principles of distinction and proportionality.

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  • Blum, Gabriella, and Philip Heymann. 2010. Law and policy of targeted killing. Harvard National Security Journal 1:145–170.

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    Discusses the legal, moral, and strategic implications of targeted killing, and compares US and Israeli experiences in this area.

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  • Chesney, Robert M. 2013. Beyond the battlefield, beyond Al Qaeda: The destabilizing legal architecture of counterterrorism. Michigan Law Review 112:163–222.

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    Contends that the shifting nature of global terrorist threats requires a new legal architecture that allows for greater flexibility in the use of force abroad, including in remote areas, and that does not rely on traditional conceptions of battlefields or armed conflict.

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  • Deeks, Ashley S. 2012. “Unwilling or Unable”: Toward a normative framework for extraterritorial self-defense. Virginia Journal of International Law 52:483–549.

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    Examines when it is appropriate for one state to use force against non-state actors operating in the territory of another state based on that state’s unwillingness or inability to address the threat.

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  • Guiora, Amos N. 2012. Targeted killing: When proportionality gets all out of proportion. Case Western Reserve Journal of International Law 45:235–254.

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    Explains why targeted killing, while lawful, must be subjected to rigorous standards, procedures, and guidelines.

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  • Mazzetti, Mark. 2013. The way of the knife: The CIA, a secret army, and a war at the ends of the earth. New York: Penguin.

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    Charts the CIA’s increasing involvement in paramilitary operations and the growing reliance by the United States on drone strikes as part of its counterterrorism policy.

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  • O’Connell, Mary Ellen. 2009. Combatants and the combat zone. Richmond Law Review 43:845–864.

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    Argues for the maintenance of strict prohibitions against the use of armed force, including drone strikes, outside areas of active hostilities.

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  • Scahill, Jeremy. 2013. Dirty wars: The world is a battlefield. New York: Nation.

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    An account of America’s initiation of secret war making across the globe and its increasing reliance on targeted killing as a counterterrorism strategy.

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  • Shane, Scott. 2015. Objective Troy: A terrorist, a president, and the rise of the drone. New York: Tim Duggan.

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    Examines the case of Anwar al-Awlaki, the US-born radical cleric whose death by a drone strike became a catalyst in the legal and political debate over targeted killing.

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Surveillance

The scope of US government surveillance expanded significantly after 9/11. The erosion of statutory and constitutional protections caused by new forms of electronic surveillance and bulk data collection is described in Donohue 2014. Richards 2013 describes some implications of this increasing surveillance for conceptions of privacy. Kerr 2004 explains why legislators, not courts, are best positioned to address challenges posed by new technologies. An examination of the array of legal rules and regulations that govern the intelligence community is discussed in Schlanger 2015. Secrecy surrounding surveillance laws and the implications for the Constitution is examined in Kitrosser 2007. Daskal 2015 examines the Constitution’s application to foreign nationals outside the United States whose private communications are swept up by NSA surveillance. Milanovic 2014 assesses global surveillance programs based on international human rights law. Reidenberg 2014 and Bignam and Resta 2015 compare US and European approaches to data surveillance laws and privacy. Kahn 2012 describes other forms of government surveillance, such as the use of watchlists.

Counter-Radicalization and Policing

A growing literature examines the various counter-radicalization programs undertaken as part of the War on Terrorism. Akbar 2013 describes the increasing number of programs countering extremism and radicalization that focus on monitoring and influencing Muslim communities within the United States. Cherney and Hartley 2015 examines concerns raised by law enforcement’s efforts to engage Muslim communities in Western jurisdictions. Waxman 2012 discusses the federalism dimensions of domestic counterterrorism policies. A focus on community policing and its impact is provided in Aziz 2014 and Tyler, et al. 2010. Rascoff 2012 explains how emerging US counter-radicalization programs draw heavily on British examples and highlights the constitutional concerns raised by programs that seek to shape religious ideology. Huq 2010 explains how North American and European governments represent Muslims, Arabs, and South Asians in an attempt to map how individuals decide to commit acts of terrorism. Walker 2007 and Walker and Rehman 2012 discuss UK approaches to counter-radicalization. Vidino and Brandon 2012 describes counter-radicalization measures in Europe.

Terrorism and Crime

LaFree and Dugan 2004 compares crime and terrorism based on the application of conceptual and methodological approaches used in criminology. Horgan 2005 examines the factors that motivate individuals to become terrorists. Mills, et al. 2015 examines the relationship between terrorism and hate crime. Kluch and Vaux 2016 charts patterns in terrorist activity since the 1970s. An examination of terrorist involvement in drug trafficking is provided in Asal, et al. 2015. Teets and Chenoweth 2015 examines the links between terrorism and corruption. Hamm 2007 discusses the utility of using conventional criminal investigative methods to address terrorism, while LaFree and Hendrickson 2007 examines the role of criminologists in fighting terrorism. Gonzalez, et al. 2014 examines the role of women in domestic terrorism. Shields, et al. 2015 describes the increasing number of terrorism prosecutions and convictions in the United States.

First Amendment Freedoms

Bhagwat 2014 describes the impact of the War on Terrorism on the right to freedom of association under the First Amendment. The relationship between terrorism and online speech is examined in Margulies 2004 and Morrison 2011. Cole 2003 draws parallels between the use of anti-terrorist material support laws and the targeting of unpopular individuals and groups during the Cold War. Stone 2007 and Vladeck 2007 examine the protections afforded to the press and journalists in connection with the acquisition and publication of classified information pertaining to national security. Papandrea 2014 examines constitutional protections for whistleblowers who leak information to promote public debate, while Pozen 2013 describes the way in which leaks are often used to advance executive branch interests.

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