The War on Terror - War or metaphor?

(Compiler's note: This one is a "must read." So check out the original article for "the rest of the story." rca)

Prof. Jefferey F. Addicott*

I. INTRODUCTION

In remarks given in November of 2007, President George W. Bush, reminded the Congress that the United States of America remained in a state of war – the so-called War on Terror: “We are at war – and we cannot win this war by wishing it away or pretending that it does not exist.”[1] Considering the fact that President Bush never wavered in this view, his remarks came as no surprise. Nevertheless, even seven years after the al-Qa’eda terror attacks of September 11, 2001, there are many who still refuse to accept the premise that the United States is in a state of war. For them, the term “War on Terror” has nothing to do with a real international armed conflict; it is merely a metaphor, similar to the Johnson era “war on poverty” or the Reagan era, “war on drugs.”

According to their reasoning, since there is no “war,” terrorists should be dealt with in the same manner as they were prior to September 11, 2001, by the domestic criminal process.

Undoubtedly, the friction between those who believe that the War on Terror is a real war and should be fought under the international law of war verses those who do not has created deep fissures in the legal community and, by extension, in society as a whole. While individual citizens of every vocation in life are certainly entitled to their personal opinions on the matter, what ultimately resonates in a representative democracy is what the government asserts. In short, does the executive, legislative, and judicial branch of the United States government view the War on Terror as a real war? In other words, if one accepts the premise that the United States is in a state of war, then various actions taken by the government, e.g., the use of military commissions, targeted killings, and detention facilities is perfectly legitimate. On the other hand, if one does not accept the premise that the War on Terror is a real war, then a very strong case can be made in a number of arenas of interest that the United States has engaged in activities that clearly violate both domestic and international law. ....

Consequences of approaching the matter from a law of war perspective include not only a plethora of policy and legal challenges, many not yet fully appreciated, but also confusion from the general population. Unfortunately, this state of confusion often emanates from the government itself, particularly when it sends mixed signals in terms of where it chooses to prosecute al-Qa’eda terrorists. If al-Qa’eda terrorists are unlawful enemy combatants and the United States is at war, then all should be treated as such and tired (sic) by military commissions and not by domestic federal courts, e.g., Richard Reid and Zacarias Moussaoui.