A Point of Clarification

I will address later this morning the raft of issues raised by Deborah’s and Marty’s posts. I want, however, to briefly clarify a point that has become a little bit muddy as to my view of whether America is really at war. Several posts seem to take it as a given that I am arguing for a war model in the current conflict. Yet notwithstanding the book’s title and its reference to the “long war,” I actually argue against overreliance on the war model–and specifically against reliance on the war model as a long-term basis for strong counterterrorism actions. The final paragraph of the book describes the conflict as “a long war, a war that isn’t quite a war but isn’t quite anything else either, a war we have still not compellingly defined and may never fully define and yet will need to regulate and prosecute anyway.” Elsewhere, I describe it as “something that goes beyond war altogether” and describe in some detail the costs of relying on the war model–which was, in my judgment, inevitable as a short-term response to the immediate crisis of 9/11.

In brief, I believe the war on terror is, in some sense, a war and certainly draws on the legal traditions surrounding warfare. But a core argument in the book is that we should treat terrorism as a sui generis area of its own–different from war, different from law enforcement, yet drawing pervasively on both of those traditions. And I specifically reject the notion that the primary body of law governing it should be the laws of war.