SEPTEMBER 11, 2001: A TURNING POINT IN INTERNATIONAL AND DOMESTIC LAW?

by Paul Eden and Thérèse O’Donnell (eds). Ardsley, New York: Transnational International Publishers, 2004. 880pp. Hardcover $145.00/£116.99. ISBN: 1-57105-326-3.

Reviewed by Priscilla H.M. Zotti, Department of Political Science, United States Naval Academy. Email: zotti [at] usna.edu .

pp.421-422

On March 21st and 22nd of 2003, a two-day international conference took place at the University of Sussex, England addressing the legal and international concerns as a result of the events of September 11, 2001. The work product of the conference, titled just as the resulting text, is a comprehensive set of readings which includes papers presented at the conference, commissioned pieces, and some previously published works.

It is interesting to note that the conference was held during the first 24 hours of OIF (Operation Iraqi Freedom) and the resulting book was written 1000 days after the attacks on September 11th. One could ask whether the authors have the benefit and advantage of hindsight. Is the analysis given too soon, without information being fully digested? That being said, the book poses a central question: What contributions can law make in a post-9/11 world? Did the 9/11 attacks constitute a defining moment in the post-Cold War world, and have the legal reactions created a new paradigm?

The book is divided into seven main categories: 911 as a turning point, the use of force and its legitimacy in response to terrorism, the concept of terrorism and global response, military tribunals and international human rights laws, European and Japanese responses to 911, domestic responses and questions of refugees, asylum seekers, and international law in light of September 11th. The volume contains twenty five chapters in all. Rather than discuss each one, I have selected those that struck me as compelling. En toto, the volume offers readers a broad perspective from which to view the legal implications in both domestic and international law after September 11, 2001.

One author described the search for a definition of terrorism in international law “almost as difficult as the quest for the Holy Grail.” The struggle to define terrorism in contemporary international law creates an international crisis of response since there is no agreed upon definition of what constitutes terrorism. Does the term “terrorism” have any specific legal meaning? Certainly this problem compounds the legitimate reactions of multinational conventions to cooperate, since different countries define and criminalize terrorist behavior in a variety of ways.

The section of the book on military tribunals and international human rights law is interesting for the legal wrestling that takes place in dealing with prisoners of war and enemy combatants. Through the use of presidential orders, military tribunals, and the Geneva Convention, each writer struggles with the legal tools [*422] that best safeguard human rights while punishing terrorist acts. Ruth Wedgwood in her piece, “Al Qaeda, Military Commissions and American Self-Defense,” concludes that military tribunals are necessary to cope with prosecuting Al Qaeda and are not inconsistent with international law. Other writers take to task the role of presidential orders as a legal tool of detention, particularly focusing on the most well known detention facility, Guantanamo Bay, Cuba. There is some analysis of the Supreme Court detention decisions, RASUL, HAMDI, and PADILLA. In addition, one very interesting contribution focuses on the nine detainees holding citizenship in the United Kingdom. The author considers the legality of Bush’s detainment under presidential orders and the response of the British government, an ally in the war on terror.

Many of the authors in this collection argue the significance of 9/11 as a catalyst for change that would not have otherwise occurred. The reaction in the European Union included reforms of better communication and information sharing between national authorities as well as the advent of the European Arrest Warrant. Japan experienced a similarly intense pro-US reaction which also included dramatic legal amendments to portions of their Constitution. Changes by the United Nations Security Council may have materialized as a reaction to and in the aftermath of 9/11.

Was there a general shift in law between the benchmarks of liberty and security? Is 9/11 a turning point in the use of legal tools to combat terrorism or has the international community gone past the “tipping” point in defining the terms of terrorism in its zeal to respond? This collection of essays encourages the reader to consider this question carefully. While the book may have been published too soon after the events of 9/11 to be thorough or reflective, its value lies in chronicling the immediate response of domestic and international lawmakers who saw law as an avenue to address terrorism. That is the primary contribution of this work: illustrating the infancy of the law as a tool to fight the “new” war on terror. The reader may be left frustrated since there is no conclusion one way or another about the legal watershed of September 11th. As the final paragraph of the book ponders, did the world legal order change post-9/11 or remain the same? The answer: “Definitely Maybe.”

CASE REFERENCES:

HAMDI v. RUMSFELD, 124 S.CT. 2633 (2004).

RASUL v. BUSH, 542 US 466 (2004).

RUMSFELD v. PADILLA, 124 S.CT. 2711 (2004).

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© Copyright 2006 by the author, Priscilla H.M. Zotti.