Contrary to the popular slogan, the September 11 attacks did not change everything. They did, however, transform how Americans, and especially American officials, think about both war and executive power. The resulting “War on Terror” has been under way for a dozen years.
In a traditional war, whether formally declared or unofficially fought, the battlefield is defined, the conflict is time-limited, and the opposing sides are obvious. Not so in the “War on Terror.” At times, this new hybrid looks like traditional war; at others, like law enforcement. What rules apply?
The issue ended up in federal court in August 2010 when Nasser al-Awlaki sought a preliminary injunction to prevent the Obama administration from assassinating his son, Anwar al-Awlaki. The judge dismissed the lawsuit on procedural grounds and al-Awlaki fils later was killed by a Predator drone (as was his teenage son).
These issues have taken on special importance since the new war appears to be permanent, with the entire earth, including the American homeland, the battlefield. True, Washington was forced to end its involvement in Iraq, and American participation in the Afghanistan war appears to be coming to a welcome end. But elsewhere, especially in Pakistan and Yemen, war by other means has become routine.
The tactic du jour is targeted killing—assassination—even...