The Choice of Law Against Terrorism

Authors

Mary Ellen O'Connell, Notre Dame Law SchoolFollow

Document Type

Article

Publication Date

2010

Publication Information

4 J. Nat'l Sec. L. & Pol'y 343 (2010)

Abstract

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.

Comments

Reprinted with permission of Journal of National Security Law & Policy.

Recommended Citation

Mary E. O'Connell, The Choice of Law Against Terrorism, 4 J. Nat'l Sec. L. & Pol'y 343 (2010).
Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/749