Truth in Consequences: The Legal Architecture of the War on Terror
Mark R. Shulman
affiliation not provided to SSRN
July 2, 2009
American Journal of International Law, Forthcoming
This essay reviews two timely and powerful works which effectively frame the legal and political debates about contemporary counter-terrorism strategy, particularly in the United States. Read together, they also raise the most essential questions about the nature of the threats to peace and security. Benjamin Wittes has written the energetic and thought provoking 'Law and the Long War.' And a Panel of Eminent Jurists of the International Commission of Jurists has produced a substantial and hard-hitting report that assesses the damage done to the international legal system in pursuit of the so-called 'War on Terror.' Like Wittes, the Panel focuses on the effectiveness of legal architecture for responding to the threats posed by transnational terrorist networks. However, while Wittes argues that the Bush Administration’s policies failed mostly for domestic political reasons, the Panel concludes, with some relief, that they were bound to fail, based as they were on a misguided belief that the scale and scope of the terrorist threat was unprecedented and demanded significant deviations from the rule of law system upon which states have long relied for their security. For the Panel, the conduct of a 'War on Terror' itself constitutes one of the gravest threats ever posed to the international legal system.
Keywords: War on Terror, Benjamin Wittes, Eminent Jurists Panel, Torture, Preventive Detention, National Security, Guantanamo
Date posted: July 2, 2009