Academic journal article Harvard Journal of Law & Public Policy

Beware the Trumpets of War

Academic journal article Harvard Journal of Law & Public Policy

Beware the Trumpets of War

Article excerpt

True conservatives should be wary of passion. Edmund Burke, after all, penned his classic conservative manifesto (1) amid the social and political wreckage of the French Revolution. He saw public passion unleashed as never before, and he deplored what he saw. Recently, however, in an article explaining why suspected terrorists should be tried before military tribunals rather than in the federal courts of the United States, Professor Kenneth Anderson appealed to the passions of war--war not against global criminals, but against "an enemy." (2) Enemies, unlike criminals, are out to destroy us. They must be fought and crushed, not pursued and punished.

At a time when the harvest from the Al Qaeda caves yields memoranda on how to position truck bombs and oaths of loyalty to a life of killing infidels, the language of "enemy" does not ring untrue. (3) Far from it. Ironically, however, it is also the language of our enemies. It is the language that refers to America as the "great Satan," as the "infidel." It paints a people as a faceless mass--as the men and women inside the World Trade Center, the Pentagon, and even the planes they flew must have seemed to the hijackers. It dignifies Al Qaeda members as soldiers in a holy war, precisely as they wish to see themselves. Using the language of enemy is thus an error that allows Al Qaeda to frame the terms of their attack and our response.

Even more troubling is Anderson's central claim that the distinction between criminal and enemy is "a great moral gap"--one that only military tribunals can fill. (4) Only with military tribunals can the President determine "who is not merely a criminal, but a criminal who is also an enemy," because "this person has committed aggression against the United States...." (5) Anderson's insistence on this distinction, and on the emotional and political freight that the concept of enemy carries, is deeply flawed. It points us in the wrong direction legally, politically, and morally.

Legally, Anderson would turn back the clock on one of the most important legal developments over the past half-century--the individualization of international law. Politically, Anderson's distinction invites the world to take sides. Morally, it betrays our deep commitment to the rule of law as part of our national identity, by substituting vengeance for punishment. In this brief Response I will take each point in turn. Before turning to these arguments, however, I will answer Anderson's challenge to my own work--mindful that if brevity is the soul of wit, it is equally the heart of repartee.


Anderson devotes a substantial section of his article to characterizing and rebutting my arguments in favor of having an international tribunal in addition to federal courts as the appropriate fora to try terrorists. He ultimately dismisses my arguments and those put forward by other scholars and commentators chiefly as a way of clearing the ground for his own claims regarding the virtues of military tribunals. In the meantime, however, he often invents the arguments to which he wishes to respond.

First, Anderson acknowledges with but a single word that "liberal internationalists," as he calls them, argue for an integrated criminal justice system including both the national courts of the United States and other countries and an international tribunal. (Indeed, in my own work I even have recognized a limited role for military tribunals as part of this system.) (6) Anderson writes: "Liberal internationalists conclude that the appropriate forum for trying accused terrorists ought to be some form of international tribunal, convened under the authority of some international body, rather than simply the national courts of the United States" (7) He then proceeds to address only the argument for an international tribunal, claiming that these same liberal internationalists view "`national' [as] synonymous with `parochial' and, indeed, practically synonymous with `illegitimate. …

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