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Terrorism, the Laws of War, and the Constitution: Debating the Enemy Combatant Cases

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Publication Date: June 2005

Publisher(s): Hoover Institution on War, Revolution, and Peace

Author(s): Peter Berkowitz; Ruth Wedgwood; Benjamin Wittes; John Yoo

Topic: Law and ethics (Constitutional law)
Law and ethics (Military and martial law)

Keywords: National security; Civil liberties; Enemy combatants; September 11

Type: Book

Coverage: United States

Abstract:

The modern laws of war that emerged in the seventeenth and eighteenth centuries were developed with a particular concept of war in mind--one that does not apply to the conflict with our current adversaries. With the September 11 attacks the United States found itself engaged in a new kind of war, with new dilemmas that needed new rules. Terrorism, the Laws of War, and the Constitution examines three significant enemy combatant cases--Padilla, Hamdi, and Rasul--that represent the leading edge of U.S. efforts to devise legal rules, consistent with American constitutional principles, for waging the global war on terror.

The volume's distinguished contributors analyze the crucial questions these cases raise about the balance between national security and civil liberties in wartime, discuss critical separation of powers issues, and call upon the courts, the political branches, and the country to reexamine the complicated connections between the Constitution and international law. Spanning the spectrum of informed legal opinion, the essays gathered here show that debating the enemy combatant cases is indispensable to meeting the legal challenges to come in the long war that lies ahead. Although they may disagree as to the details, the contributors are in full agreement that fortifying the rule of law at home is both a demand of justice and a national security imperative.