War

[Volokh, Eugene]

    I much appreciate Cornell's call for greater precision, but let's say
that it is satisfied:  Let's assume that the Administration makes clear that
we are at war with al-Qaeda and certain other named groups.  These groups
are "making war" on us in the sense that they are foreign entities who are
trying to kill Americans in order to change the behavior of the American
government, and we will therefore fight back by making war on them.  They
are in this respect no different from, say, the government of Germany during
World War I, or whoever we were fighting when we were fighting the Barbary
Pirates (as one might gather from this, my knowledge of that episode is
sketchy!); they may not be affiliated with any government, at least now that
the Taliban is not in power, but they are still making war on us, and we
have to make war on them.

    Doubtless these are imperfectly defined organizations, and for some
people it may not be clear whether they are actually members of al Qaeda;
but it was also doubtless unclear as to some people whether they were in
fact soldiers in the Wehrmacht, and indeed many spies and saboteurs tried
very hard to make it seem like they were not soldiers in the Wehrmacht, even
if in fact they were.

    War on terrorism thus becomes war on named terrorist groups.  Would
there be a problem with that?  My sense, incidentally, is that this is in
fact how this war is being waged within the American military and judicial
system.  The "war on terrorism" is the name for a somewhat broader
phenomenon, which is the attempt to mobilize an international campaign to
fight various terrorist groups "of international reach," if I correctly
recall the phrase from the President's speech, including those that are not
actually attacking the U.S.  To my knowledge, Hamdi, Padilla, and the others
are detained as part of the more specific war on certain international
entities, specifically al Qaeda and the Taliban, and not the "war on
terrorism" more broadly.

    Eugene

Cornell Clayton writes:

The point is that terrorism is not an enemy at all, its a tactic.  Its a
label that can be applied to many different types of acts and used for any
number of purposes.  Its even less definable than "authoritarianism."   What
if a future administration declared a war of authoritarianism, against
nations and groups (including domestic groups) that supported authoritarian
causes?

There are no doubt real threats to the U.S. posed by nations and groups that
practice terrorist tactics, but if we really think the rules of war should
apply to them shouldn't we be forced to identify specifically who they are?

CWC




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