Your fall 2004 article “Law in a Time of Terror” discusses in all seriousness the so-called “war on terror.” In it, four professors consider whether the “laws of war” (or “rules on warfare”) apply. But it is not a war, and as Professor Philip Heymann says in the next article, “it’s not wise to think of it as a war.” Nor is it “on terror,” nor “on terrorism,” nor even “on terrorists.” It is on certain terrorists, and that’s all.
The U.S. would do best to deal with these terrorists as the British have dealt with IRA terrorists and the Israelis deal with Palestinian terrorists, i.e., with police work, informants and military strikes that fall well short of war. In addition, we need comprehensive international cooperation because, like the Mafia and some drug cartels, Al Qaeda works outside the laws of nations. Even if they nuke Times Square or the Capitol, they will remain what they are, a gang of fanatically violent criminals who should be dealt with as such.
But instead, President Bush has declared a “war on terror” and used this amorphous misnomer to wage a real war on Afghanistan before diplomatic and military strike options were exhausted; to wage a falsely hyped war of aggression on Iraq, killing and maiming uncounted thousands; to fabricate a rationale for torture that is illegal (not to mention barbaric) of prisoners of war or people suspected of violent crimes; to trample legal and human rights; deplete our military and treasury; build enormous anti-U.S. animosity; scare the public; leave bin Laden at large and win re-election.
Words matter, and Bush’s beguiling confection “war on terror” has mattered a lot. The flimflam may have hoodwinked 51 percent of the voters, but why the Harvard Law Bulletin?