Like Something From Another Age

Counterterrorism activity in the United States is not a wholly new phenomenon, as there have been elements of it in the Palmer raids following World War I, in the creation of the Central Intelligence Agency, and Ronald Reagan making it a major priority during the first month of his presidency. But, the origin point for the current campaign against terrorism is probably November 13, 2001, when President George W. Bush signed a military order concerning the “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.” The Secretary of Defense was given the authority to designate the appropriate detention location.

Detainees brought to trial were to be tried and sentenced by a military commission. No members of the commission need be lawyers, nor would the ordinary rules of military law prevail, nor the laws of war. As stated in the order, “It is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States District courts.” Thus, suspected terrorists could be imprisoned without charges, denied knowledge of the evidence against them, and, if tried, sentenced by courts following no previously established rules.

Although President Bush may be seen as reverting back to another, darker age, he actually reversed a historical process by which the nations of the West came to distinguish themselves from the the rest of the world by conducting war under the rule of law and the law of evidence. Or, as Jill Lepore puts it: “Nobody, not even a king, could imprison someone without cause. Torture wasn’t a form of jurisprudence; torture was a species of obscenity. War could not be justified by mere appeal to God, and waged by any means, but must be justified by law, and waged with restraint. War, like crime and punishmment, was to be ruled not by God, not by men, but by law.” [1]

The uniqueness of George W. Bush’s action in the War on Terrorism is further expressed by Jen Bravin, the Wall Street Journal’s Supreme Court correspondent, in “The Terror Courts: Rough Justice at Guantanamo Bay.” Bravin wrote: “The Bush administration invisioned creating for the first time a permanent legal structure under the president’s sole command.” [2]

Except for some restrictions based on Supreme Court rulings, President Barack Obama has basically followed the anti-terrorism prescriptions of President Bush, with the main exceptions being giving more rights to detainees through the 2009 amendments to the Military Commissions Act of 2006, providing periodic reviews for those indefinitely detained, and drawing up “kill lists” which might include U.S. citizens.


[1] Jill Lepore, “The Dark Ages,” The New Yorker, March 18, 2013.

[2] Ibid.

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