Roger Hertog Program on Law and National Security
The autumn of our anguish has passed, and we are still confused about how to describe the use of military force in Afghanistan. We are torn between using the language of justice and the language of war. Is this an attack by private individuals, a case of a single terrorist writ large? If the mass killings of September 11 are the crimes of individuals-Islamic fundamentalist versions of Timothy McVeigh-then we can think about arresting them and bringing them to "justice." The mantra of the Bush team, "bringing justice to them and them to justice," has seeped through the media and become part of the standard discourse of people thinking and writing about the war.
Yes, the war. What else should we call the military response to one of the most serious attacks ever executed on the soil of the United States? From its initial pronouncements, the White House has found it easy to invoke the rhetoric of armed aggression and collective self-defense. This has been a war in anyone's book except perhaps in the minds of traditional international lawyers who claim that you cannot fight a war against a nonstate organization.1
George P. Fletcher,
On Justice and War: Contradictions in the Proposed Military Tribunals,
Harv. J. L. & Pub. Pol'y
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1057