Law Is Everywhere

By Fiss, Owen | The Yale Law Journal, November 2007 | Go to article overview

Law Is Everywhere


Fiss, Owen, The Yale Law Journal


TRIBUTE

The phrase "War on Terror" has no discrete legal content. It was politically inspired and used by the administration of George W. Bush to mobilize American society, much like the "War on Drugs" or the "War on Poverty." Yet the declaration of the "War on Terror" marks the beginning of a unique phase in American law that began on September 11, 200l, and continues to this day. Living through this period has made the lessons of Aharon Barak all the more urgent.

Aharon Barak was born in Lithuania in 1936. He was one of the few who miraculously survived the slaughter of Jews in that country during the Second World War--together with his mother, he hid in the walls of a neighbor's house. Barak moved to Israel after the war, became a professor of law at Hebrew University in 1968, and later served as Dean of the Law Faculty. From 1975 to 1978 he was the Attorney General of Israel, and in that capacity helped shape the Camp David peace accord between Egypt and Israel. Barak was appointed to the Israeli Supreme Court in 1978, became the president of the court in 1995, and retired from the court in September 2006. His rulings, particularly those involving issues of national security, have been heralded throughout the world and teach an important lesson--which we in the United States have yet to learn--on how to be faithful to the rule of law in the face of a terrorist threat.

I.

Although the War on Terror is not itself a war, during the six years since it began, the United States has launched three wars. One is in Iraq. Terrorism was not the basis of our decision to invade, but if anything, terrorism has become a consequence of the war and the occupation that inevitably followed. When the United States invaded Iraq in March 2003, the administration had no evidence that Saddam Hussein sponsored the terrorist attacks of September 11, 2001, nor has any been discovered since.

The second war--the invasion of Afghanistan in October 2001--had a direct and immediate connection to the events of September 11. The administration determined that al Qaeda was responsible for the attacks on that day, and furthermore that the Taliban regime then in control of Afghanistan had a special--indeed symbiotic--relationship with al Qaeda. Al Qaeda had helped bring the regime to power, and in return the Taliban had harbored and protected al Qaeda. When the Taliban refused to capture or turn over al Qaeda's leaders, the United States invaded the country.

The third war--the war against al Qaeda itself--is the most difficult for many of us to accept as a war, largely because al Qaeda is not a nation with discrete geographic boundaries. It is an international organization that operates in secret, but much like an enemy nation, has the declared aim of killing Americans en masse, regardless of where they are found--Kenya, Tanzania, New York, Washington, Kabul, or Baghdad. The purpose of these killings is not clear--the stated justifications have ranged from the presence of U.S. military bases in Saudi Arabia, to support for Israel, to the debased nature of American civilization. But it was not necessary to identify a clear purpose behind al Qaeda's actions or determine that it wishes to overthrow the government in order to treat it as belligerent.

One week after the September 11 attacks, Congress passed a resolution authorizing the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks." (1) It was this resolution that authorized the invasion of Afghanistan. That war has not eliminated the determination or ability of al Qaeda to attack Americans, at home or abroad, and as a result, the United States remains very much at war with al Qaeda. Indeed, it is this war against al Qaeda, more than the invasion and occupation of Iraq and the continuing American presence in Afghanistan, that gives continuing vitality to the War on Terror. …

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