How does the war against terrorism being battled today affect the laws of war of the United States? In Terrorism, the Laws of War, and the Constitution (Hoover Institution Press, 2005), edited by Hoover fellow Peter Berkowitz, the strain the war on terrorism has placed on the rule of law is examined by different experts.
Our modern laws of war are a part of the law of nations that emerged during the seventeenth and eighteenth centuries and developed in accordance with the evolving practices of modern nation-states. The main difficulty today is that the laws of war were developed with a particular conception of war in mind—involving states with incentives to engage in reciprocal restraint—that does not apply to the conflict with our new adversaries, who control no territory, defend no settled population, hide among and target civilian populations, and seek to acquire and use weapons of mass destruction.
Since 2004 three enemy combatant cases, Padilla, Hamdi, and Rasul, have made their way to the United States Supreme Court. These cases represent the leading edge of U.S. efforts to devise legal rules, consistent with American constitutional principles and the laws of war, for waging the global war on terror. As the distinguished contributors to this volume demonstrate, these court cases raise crucial questions about the balance between national security and civil liberties in wartime. Spanning the spectrum of informed legal opinion, the essays gathered here show that debating the enemy combatant cases is indispensable to meeting the legal challenges to come in the long war that lies ahead.
Contributors include Mark Tushnet, Carmack Waterhouse Professor of Constitutional Law at the Georgetown University Law Center; Patricia M. Wald, former chief judge of the U.S. Court of Appeals for the D.C. Circuit; Seth Waxman, former solicitor general of the United States and now a partner at a law firm; Ruth Wedgwood, Edward Burling Professor of International Law and Diplomacy at Johns Hopkins University; Benjamin Wittes, Washington Post editorial page staff; and John Yoo, former general counsel of the U.S. Senate Judiciary Committee.
Peter Berkowitz, Hoover research fellow, teaches at George Mason University School of Law. He is cofounder and director of the Israel Program on Constitutional Government and served as a senior consultant to the President's Council on Bioethics.
Terrorism, the Laws of War, and the Constitution
Edited by Peter Berkowitz
ISBN: 0-8179-4622-5 $15.00, paperback
ca. 200 pages May 2005