The Choice of Law Against Terrorism
Mary Ellen O'Connell
Notre Dame Law School
August 5, 2010
Journal of National Security Law and Policy, Vol. 4, p. 343, 2010
Notre Dame Legal Studies Paper No. 10-20
The Obama administration has continued to apply the wartime paradigm first developed by the Bush administration after 9/11 to respond to terrorism. In cases of trials before military commissions, indefinite detention, and targeted killing, the U.S. has continued to claim wartime privileges even with respect to persons and situations far from any battlefield. This article argues that both administrations have made a basic error in the choice of law. Wartime privileges may be claimed when armed conflict conditions prevail as defined by international law. These privileges are not triggered by declarations or policy preferences.
Number of Pages in PDF File: 27
Keywords: armed conflict, terrorism, global war on terror, targeted killing, military commissions, detention, dronesAccepted Paper Series
Date posted: August 6, 2010 ; Last revised: June 10, 2011
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