Law of War: U.S. Government in a Dilemma of its Own Making

Law of War: U.S. Government in a Dilemma of its Own Making

One of the most complex issues related to the "Global War on Terror" that has confronted policy makers, military commanders, legal advisors, and even federal courts has been determining where the "battlefield" in this war starts and ends. This is not surprising. The characterization of the struggle against international terrorism as a "war" by the United States had the effect of forcing the proverbial square peg into the round hole. The law that had evolved up to Sept. 11, 2001 to regulate "war" had simply not addressed a military struggle between the armed forces of a nation-state and operatives of a non-state terrorist organization operating all over the globe.

This disparity between the law that regulates wars and the war the U.S. has embarked upon has produced a variety of legal dilemmas. Many of these are the product of an administration that clearly sought to exploit a lack of regulatory coverage to achieve its objectives by any means. This exploitation has manifested itself in controversies related to the designation and treatment of captured personnel, the trial and punishment by military commission of these detainees, and the legitimacy of "taking the fight" against terror targets to places like Pakistan and Somalia.

The legal uncertainty related to this "war" has also manifested itself in what must be considered a historically unprecedented degree of judicial oversight of wartime decisions. To date, these cases have produced a mixed bag of outcomes, sometimes favoring assertions of executive power but also rejecting the exploitation of the asserted "gap" in legal coverage.

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