Roger Hertog Program on Law and National Security
Wars are acts of State, and therefore there has never been a "war on terror." Of course states have fought terrorism, in many guises, for centuries. But a war on terror had to await the development of states – including virtual states like al Qaeda's global ummah – whose constitutional order was not confined to a particular territory or national group and for whom terror could therefore be a permanent state of international affairs, either sought in order to prevent persons within a state's control from resisting oppression by accessing global, empowering resources and networks, or suffered because other states wished to press such a condition on us and because our global vulnerabilities could not be detached from our prosperity and freedom.
Professor's Levinson's warning must therefore prepare us not only for the aftermaths of an attack by al Qaeda, but also for attacks mounted by twenty-first century terrorism of which al Qaeda is only a herald. Just as terrorists in earlier centuries mimicked the states they were struggling against, so terrorists in the twenty-first century will copy the decentralized, devolved, outsourcing and privatized market-state of the twenty-first century, instead of modeling their activities after those of the national liberation groups of the twentieth century that fought nation-states.
Philip C. Bobbitt,
Waging War against Terror: An Essay for Sandy Levinson,
Ga. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2230