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Fordham International Law Journal






This essay, originally prepared for a symposium on Guantanamo and international law, provides an brief overview of the elements that a comprehensive US counterterrorism should encompass. This overview is set against the question of how the US, as the world's superpower, ought to address its international law obligations. The essay then sets that question against the still-further question of what it means to be the superpower in a world that some believe is gradually evolving into a multipolar world, but which is currently a world of a conjoined US-international global system of security.

The essay defends the concept of counterterrorism as strategically best understood as war and rejects the concept of counterterrorism as mere law enforcement. Yet it also rejects the Bush administration's view that the war on terror is at all times and places a war in the legal sense of international humanitarian law. It points out that the most important strategic activities of counterterrorism - and its legal regulation - today lie in matters that are neither law enforcement nor actual war - in intelligence gathering, surveillance, detention, interrogation, and the use of force in abduction and targeted killing outside the scope of either criminal arrest or war in the strict legal sense. Those are the areas where policy ought in fact to be debated, including its legal and human rights aspects; these are the matters in which there are vast lacunae in law and policy.

The essay speaks against au courant liberal realism, arguing that not only is it morally wrong, but that its current version disingenously seeks to have its cake and eat it too - to apply hard realism to United States policy, but then salving its idealist conscience by appealing to the international community to act in idealist ways that it knows it cannot and will not. Finally, the essay warns against the post-Bush administration return to early-Clinton era meek multilateralism that, while apparently conciliatory and cooperative with allies and others on many issues, is simply cover for political passivity.



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