Laws, Outlaws, and Terrorists: Lessons from the War on Terrorism

  • Published

Laws, Outlaws, and Terrorists: Lessons from the War on Terrorism by Gabriella Blum and Philip B. Heymann. MIT Press, 2010, 247 pp.

Gabriella Blum, a former legal advisor to the Israel Defense Forces, and Philip B. Heymann, a former US deputy attorney general, reflect upon what they perceive to have been the Bush administration’s lack of regard for the rule of law in its counterterrorism policies. Both are now professors at Harvard Law School. From their writing, it is clear that both are fully immersed in the ethically and legally complex debates about the interaction between law and counterterrorism policy. As legal scholars and former practitioners they, not surprisingly, advocate that law, broadly construed “must play a crucial—if not a definitive role” in not only counterterrorism strategy, but also in meeting emerging twenty-first-century threats.

The authors critique what they perceive to have been a substantial divergence from the rule of law during the Bush administration. It is their contention that the administration consciously decided that neither peacetime domestic law, nor the law of war, were applicable to the war on terror. In their estimation, the end result was a “black hole where little of the law of war and none of the law of human rights or domestic law applied.” Indeed, they argue that “conducting a war on terrorism within a No-Law Zone was neither warranted nor useful.” The partisan nature of their argument is thus evident from the first pages of their work.

The authors are not naïve about the threats posed by terrorism; rather, they want to ensure that the war on terror is constrained and limited by legal norms. Indeed, they premise their argument on the notion that US security is bolstered by a commitment to liberal-democratic traditions. They persuasively contend that, in the long run, the challenges posed by international terrorism will require new domestic and international laws and are most concerned about the period of time prior to adoption of these new laws.

Blum and Heymann posit that there are currently two realms of law applicable in the war on terror—what they refer to as the law enforcement paradigm and the war paradigm. Each paradigm, according to the authors, has its own set of laws. They contend that the Bush administration conducted its counterterrorism policy in a realm where neither paradigm applied. In opposing what they perceive to be an abandonment of the rule of law, they posit that an effective counterterrorism strategy should begin with either the law enforcement paradigm or war paradigm, each of which has its “own internal logic of how to accommodate the interests of national security and human dignity.” They advocate that, in those cases when policymakers must depart from these two paradigms that they do not depart from the values underlying each.

In their most provocative chapter, the authors discuss the relationship between law and the targeted killing of terrorists. Those interested in the use of airpower in counterterrorist operations will find this chapter particularly salient. Blum and Heymann persuasively argue that targeted killing highlights the tension between treating terrorism as a crime or as an act of war. In their discussion of the moral issues surrounding targeted killing, they show their deep concern for collateral damage and validly raise the issue of how such operations could threaten US relationships with allies. Ultimately, they conclude that targeted killing should be an extraordinary measure used only when necessary.

The authors are clearly passionate about ensuring that legal norms are not discarded in the war on terror. Their study of the relationship between law and counterterrorism policy during the Bush administration, however, does not break substantially new ground. Indeed, many other legal scholars have criticized how the administration conducted its war on terror. Furthermore, the authors’ thesis would have been stronger had they not so overstated their case. While most impartial observers would acknowledge that the Bush administration had its share of missteps in its application (or nonapplication) of legal norms to its counterterrorism policies, it is hyperbole and belies the partisan nature of their argument to assert that the administration conducted these policies “within a No-Law Zone.” Some readers might also object to their contention that Washington’s policies have created fertile ground for terrorism.

Where the authors do succeed is in raising provocative questions that provide ample opportunities for debate. At a time when many legal academic works are inaccessible to non-lawyers, Blum and Heymann’s scholarship provides a comprehensive, jargon-free overview of the myriad legal debates over government power and the war on terror. For this reason, law students, graduate students, and those first learning about the legal ramifications of the war on terror would most benefit from reading Laws, Outlaws, and Terrorists. Those already immersed in national security law, however, would likely find little new material in this work.

Blum and Heymann provide a well-written and comprehensive overview of the complex legal questions raised by the war on terror. Their commitment to the rule of law is aptly demonstrated and is largely commendable. Their critique of the Bush administration’s conduct during the war on terror, however, is not particularly novel.

Jonathan Eric Lewis, JD

Washington, DC

"The views expressed are those of the author(s) and do not reflect the official policy or position of the US government or the Department of Defense."