LESSONS ENCOUNTERED

9/11 and After: Legal Issues, Lessons, and Irregular Conflict
White House, September 2002), 9, available at .
The use of the term preemptive was unfortunate and seemed to mark a
break with the historical U.S. position that the international law of self-defense included
a right of anticipatory self-defense, as had been established by Daniel Webster in 1841
and adhered to by every administration since then. The documents establishing this
interpretation of international law are in the Caroline file, available at . As Professor Yoram Dinstein, formerly twice the
Stockton Professor of International Law at the Naval War College, frequently argues, if the
2002 National Security Strategy had used the word interceptive, it would have preempted
problems. The National Security Strategy is a political, not a legal, document.
38
UNPA.
39
UN Charter Article 51, which reads:
Nothing in the present Charter shall impair the inherent right of individual or collective
self-defence if an armed attack occurs against a Member of the United Nations, until the
Security Council has taken measures necessary to maintain international peace and security.
Measures taken by Members in exercise of this right of self-defence shall be immediately
reported to the Security Council and shall not in any way affect the authority and responsibility
of the Security Council under the present Charter to take at any time such action as it
deems necessary to maintain or restore international peace and security.
On the controversies over the meaning of “armed attack,” see Yoram Dinstein, War,
Aggression, and Self-Defence, 5 th ed. (Cambridge: Cambridge University Press, 2011),
196–277; Nicholas Rostow, “International Law and the Use of Force: A Plea for Realism,”
Yale Journal of International Law 34, no. 2 (Summer 2009), 549.
40
See Dinstein, Conduct, throughout; Myres S. McDougal and Florentino P. Feliciano,
Law and Minimum World Public Order: The Legal Regulation of International Coercion
(New Haven: Yale University Press, 1961).
41
U.S. courts, administrations, and the Department of Defense use the term unlawful
combatant. As a matter of law, there is no such person. One either is a combatant or a
noncombatant. If one is a combatant, one may, as a matter of law, engage in activities that
otherwise would constitute murder. If one is a noncombatant, one may not engage in such
conduct without incurring risk of prosecution. Fighter would be a more neutral term than
unlawful combatant and would make the distinction clear. The Obama administration
uses the term unprivileged belligerent, which approximates the same idea. See Ex Parte
Quirin, 317 U.S. 1 (1942); Dinstein, Conduct, 33. Rather than insist on usage that readers
may find unfamiliar, we adopt the common parlance of lawful and unlawful combatants to
distinguish between combatants, who enjoy the privilege of killing as a matter of international
and domestic law, and noncombatants, who do not enjoy such privilege and are not
entitled, as a matter of law, to prisoner of war status on capture.
42
The Third Geneva Convention in effect contains a roadmap for treating detainees.
43
George W. Bush, “Address to a Joint Session of Congress and the American People,”
385