The United States of America is fighting a war against terrorists of global reach. The enemy is not a single political regime or person or religion or ideology. The enemy is terrorism—premeditated, politically motivated violence perpetrated against innocents.
—The National Security Strategy of the United States, September 2002
When historians reflect on the Bush administration’s legacy, the “war on terror” will almost certainly be its most important feature. That “war,” declared by the President shortly after the terrorist attacks of September 11, 2001, has defined the administration in its relations both to the rest of the world and to its own people at home. In the name of the “war on terror,” the administration has invaded and occupied two countries, implemented a single-minded and often unilateral foreign policy, asserted unprecedented executive power, and sought to justify a host of human rights violations, from disappearances to torture.
The “war on terror” has received extensive criticism. Our European allies maintain that waging war against terrorists—much less against “terror” itself—is a category mistake; terrorism should be treated as a law enforcement matter. Declaring war elevates criminals into warriors, thereby playing into the terrorists’ desire for renown. In the United States, many accept the use of military force as a response to the al-Qaeda attacks but reject the notion that this is a global war on all forms of terrorism, or on all terrorist organizations of global reach. Terrorism, it is said, is not an enemy, but a tactic, and one that will be with us forever, so declaring war on terror commits us to an unending and unwinnable war.
Many others insist that the war against al-Qaeda, centered in Afghanistan and the northwest tribal areas of Pakistan, must be distinguished from the Iraq war, launched not in self- defense in response to an armed attack but for asserted “preventive” purposes, to stop Saddam Hussein before he gave (what turned out to be nonexistent) weapons of mass destruction to terrorists to use against us. Finally, many have argued that any military response must conform to the laws of war and the Geneva Conventions, which from the outset the administration dismissed as quaint and obsolete.
In Terror and Consent, Philip Bobbitt, a distinguished law professor at Columbia Law School and former national security official in the Carter, George H.W. Bush, and Clinton administrations, takes on the daunting task of salvaging the war on terror. No apologist for George W. Bush, Bobbitt justly castigates the current administration for treating international law as an inconvenient obstacle to be thrust aside in the pursuit of parochial interests. And he deserves much credit for moving beyond crude rhetorical appeals to fear and attempting to construct a comprehensive intellectual justification for a war that has often seemed more an unthinking reflex than a considered policy response. But in theory, Bobbitt supports much of what the administration has done, including ousting Saddam Hussein from Iraq, coercive interrogation of terror suspects, warrantless spying by the National Security …