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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, drones

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Date posted: August 6, 2010 ; Last revised: June 10, 2011

Suggested Citation

O'Connell, Mary Ellen, The Choice of Law Against Terrorism (August 5, 2010). Journal of National Security Law and Policy, Vol. 4, p. 343, 2010; Notre Dame Legal Studies Paper No. 10-20. Available at SSRN: http://ssrn.com/abstract=1654049

Contact Information

Mary Ellen O'Connell (Contact Author)
Notre Dame Law School ( email )
P.O. Box 780
Notre Dame, IN 46556-0780
United States
574-631-7953 (Phone)

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