War on Terror

By Ruti Teitel, the Ernst C. Stiefel Professor of Comparative Law at New York Law School and Visiting Professor at London School of Economics. The following an excerpt from her new book, Humanity's Law, reprinted with permission from Oxford University Press, Inc. 

We are living in a time of destabilizing political and legal changes. Often, it seems difficult to know whether we are at war or at peace; to determine what sort of conflict is at stake in a given situation; and, relatedly, to decide how best to address the conflict and to protect the persons, peoples, and/or states that it threatens. While both the end of polarized relations and the advent of globalization have their appeal, the renewed engagement has frequently seemed to mean that we see the possibility of intervention, but that hope is too often thwarted. Yet the closer we look, the more one can see that this situation has too frequently been viewed from a twentieth-century, state-centered perspective. Recently, there have been profound changes in the nature of interstate relations and conflict — all of which have pointed in the direction of the paradigm shift toward humanity law and, to some extent, away from interstate international law, that is identified here.

After I finished my first book Transitional Justice, which explored legal and political responses to the transitions characterizing the end of the twentieth century, it became apparent that — despite lurches toward liberal democratic peace — conflict and violence not only were here to stay, but in some regard were ever more conspicuous, at least insofar as they were having a vivid impact on civilians. Indeed, it seemed that it was precisely during fragile transitions — that is, moments of weakness — that states were at their most vulnerable.

By Stephen I. Vladeck, a law professor and associate dean for scholarship at American University Washington College of Law.

Typically, when Congress buries critical substantive policy initiatives in massive spending bills, the question is whether anyone — the media, in particular — will take heed. But with regard to the detainee provisions nestled into a subtitle of the Senate Armed Services Committee’s version of the National Defense Authorization Act (NDAA), garnering public attention has surprisingly not been the issue. Instead, thanks to a very public series of disagreements between Senate Majority Leader Harry Reid and Senators Carl Levin and John McCain (respectively the Chair and Ranking Member of the Committee), the jig is up on keeping these provisions under the radar — as manifested, to take two of many examples, in editorials in this Sunday’s Washington Post and last Sunday’s New York Times.

There’s a lot going on in the NDAA, but the provisions animating much of the current debate would do three separate things:

1. Define with at least some specificity the scope of the government’s power to detain terrorism suspects without trial;

2. Mandate the military detention of certain non-citizen terrorism suspects (and thereby bar their prosecution in civilian federal courts); and

3. Make permanent what have thus far been temporary spending restrictions barring the President from using certain funds to transfer detainees from Guantánamo to the United States for continuing long-term detention.

A lot of the opprobrium directed at the NDAA — including in Sunday’s Post editorial — has been focused on the latter two provisions, and for good reason. In this post, though, I want to explain why the first provision is no less (and perhaps even more) significant, and why the Post’s endorsement thereof is so alarmingly short-sighted.