Does Terrorism Violate the Law of War?
Space does not permit a full discussion of either Quirin’s doctrinal application to the current controversy over Bush’s proposed tribunals, or the historical lessons of the case. A few salient points stand out, however – and these points alone counsel that we proceed with caution before assuming Quirin settles the question of the constitutionality of the Bush Administration military tribunals. First, as a doctrinal matter, Quirin does no more than authorize a President to establish military tribunals to hear cases involving violations of the law of war by persons made eligible by the law of war. It is far from clear that foreign terrorists generally, or even Osama Bin Laden himself, would fit within this classification. Although I do not pretend to be an expert in the field, it is my understanding that the law of war is not a code of conduct for individuals or even organizations not acting under the authority of an recognized government. Rather, it is a code binding nation states and t
