Edited by Federico Fabbrini and Vicki C. Jackson
Chapter 15: Unraveling the law of war
Ten years ago, in Hamdi, Justice O’Connor wrote that the Court’s understanding of the law of war might “unravel.” “Unraveling,” it turns out, is not precisely the right word. But the thesis of this chapter is that the law of war has indeed – already – substantially evolved as it has encountered the war, or conflict, with terrorism. In this clash of ideologies and arms, the United States and other nations confront an adversary different in many respects from the uniformed soldiers who were the enemy in past wars. It is possible to argue that these differences are so important that in fact we are simply not in war or armed conflict, but I will reject that argument, and will argue instead that our understanding of what armed conflict is should adapt to the character of the use of force today. At the same time, I will maintain that it is impossible to ignore the differences between past and present conflicts, and that the process of fighting justly in wars of this new character calls on courts to play roles much broader than they may historically have played in the United States (US). In short, I will argue that the constitutional war power of the US now extends to conflicts substantially different from many of the wars we have recognized in the past, and that the constitutional authority of courts in these conflicts is and should also now be substantially different.
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