36 Case W. Res. J. Int'l L. 349 (2004)
In the first confusing days after the September 11, 2001, attacks on the United States, President George W. Bush declared a war on terror. Many of us heard this declaration as stirring rhetoric to rally the nation. We understood it as a declaration that the President would direct a strong response against those responsible. We had heard this sort of rhetoric before when the nation faced powerful challenges-from illegal drugs and chronic poverty. Many of us understood President Bush's declaration of war to refer once again to the determined, persistent struggle to overcome a social blight-this time terrorism. We did not understand it as the kind of war Franklin Delano Roosevelt declared after the attack at Pearl Harbor. Indeed, how could we have understood it any other way? When President Bush made his declaration, he did not even know who had carried out the attacks.
Our government's actions in the first weeks after September 11 lent further support to this initial understanding. We did not engage our military against known terrorists just anywhere. We waited until facts were known and then we waged a war of self-defense against Afghanistan, beginning October 7, 2001. It was not until November 2001, as the Administration's legal policies regarding detainees started to emerge that we began to detect the rhetoric of war on terror might not be mere rhetoric. Apparently, some Administration lawyers took the President's declaration as the basis to allow the United States to claim certain wartime rights and privileges even outside the conflict in Afghanistan.
Academic international lawyers were perhaps slow to take this in, but by 2003, scholarly articles began to emerge countering the Administration's claims to privileges in the absence of actual hostilities. The International Court of Justice (ICJ) in its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory has further undermined the possibility of declaring war against "terrorism" per se. By contrast, we find virtually no support from independent scholars or tribunals for the Bush Administration's case for global war.
This essay reviews the Administration's case, contrasting the scholarship and jurisprudence against global war. The essay's contribution is to point out that three years after the declaration of global war, the Bush Administration's case has virtually no support in the wider international legal community-the community beyond the Administration's own people. The claim of global war is a radical departure from mainstream legal analysis. Moreover, claiming global war is turning out to have negative unintended consequences, such as enhancing the status of terrorists on the international plane and creating a dangerous legal precedent that other states are following.
Mary E. O'Connell,
The Legal Case Against the Global War on Terror,
36 Case W. Res. J. Int'l L. 349 (2004).
Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/648