The War On Terror is Based on Legal Novelties

[SoDesuKa]

Before the War on Terror there were various metaphorical "wars" - on poverty, on drugs, on illiteracy . . . Bush came along and created the concept of a war on terror as an actual war. September 11th, we were told, was the terrorists' declaration of war against us, and the War On Terror was a necessary response.

But terrorist gangs have no standing to declare war any more than they can sign treaties or negotiate fishing rights. Only a state can declare war. The "war" on non-state actors like Al Qaeda is metaphorical, not literal.

The term enemy combatants is also without modern precedent. The Bush administration, unhappy with having to acknowledge terrorists' constitutional rights the same as ordinary criminals, also sought to avoid recognizing detainees' rights as prisoners of war. So they created a third category, one with neither the rights of criminals nor those of soldiers. It's a novelty that will eventually be tested as the designation is applied to American citizens.

Osama bin Laden would have been regarded as a criminal if either the Bush or Obama administrations had not relied on the spurious notion that September 11th was a declaration of war. Because it was only a spectacular crime not a legitimate casus belli, bin Laden retained all the rights of other accused persons.

Substituting legal novelties in place of established precedent shows contempt for legal tradition. It was not a surprise to see the Bush administration launch assaults on settled law. But it is surprising that the successor administration headed by a former law professor is continuing down the same path. We expected better from Professor Obama than to act like the bumpkin who preceded him.