National security law in the post-9-11 world: a survey of recent legal materials.

• Author: Becker, John D.
• Position: Bibliography

NATIONAL SECURITY LAW IN THE POST-9-11 WORLD: A SURVEY OF RECENT LEGAL MATERIALS

PHILIP BOBBITT, THE SHIELD OF ACHILLES: WAR, PEACE AND THE COURSE OF HISTORY, Alfred A. Knopf, New York (2002).

STEPHEN DYCUS, ARTHUR L. BERNEY, WILLIAM C. BANKS, AND PETER RAVEN-HANSEN, NATIONAL SECURITY LAW, (3rd ed. 2002), Aspen Law & Business, New York, (2002).

THOMAS M. FRANCK AND MICHAEL J. GLENNON, FOREIGN RELATIONS AND NATIONAL SECURITY LAW: CASES MATERIALS, AND SIMULATIONS, (2nd ed. 2002), New York (2002).

It has become something of a cliche to say that the events of September 11, 2001 changed the world, at least in terms of how Americans view the world. One of the more notable areas of change has been in law, particularly in national security law. Changes occur almost weekly in this area of the law as U.S. courts consider issues ranging from the status of tort claims by survivors and relatives of victims of the World Trade Center and Pentagon bombings to claims about the legal status of Afghan war detainees in Guantanamo Bay, Cuba to the striking down of legal barriers between domestics and foreign intelligence collection means in the recording of terrorist communications.

Even changes in the law, however, do not occur in a vacuum. They occur in a specific context. And in this case, the context is broader than the events of 9-11. The broad context is inclusive of elements such as international relations, strategy, and law.

One good survey of this broader context is found in the new, well-received work by Philip Bobbitt, entitled The Shield of Achilles: War, Peace, and the Course of History. Bobbitt's work in broad strokes is about the modern state how it came into being, how it was developed, and in what directions can it be expected to change. Bobbitt's position includes looking at recent changes in the state through the lenses of both military strategy and constitutional law. His conclusion is that the relationship between strategy and the legal order has shaped and transformed the modern state and the society composed of states, resulting in the emergence of a new state--the market state.

Bobbitt's text is broken into two books--Book One titled "State of War" which focuses on history and the future of war and Book Two is called "States of Peace," which discusses history and the future of international society. In turn, each book is broken into three parts; each part with a general thesis is set forth as an overture to the narrative argument that is then provided. The argument can be set forth as follows:

Book I--Part I: "The Long War of the Nation-State," argues that the (global) war that began in 1914 (with the beginning of World War 1) did not end until 1990 (with the demise of the Cold War). (1) Rather than a traditional war, it was an epochal war not unlike the Greek Peloponnesian War. (2) Epochal wars put the constitutional basis of the participants into play and do not truly end until the underlying constitutional questions are resolved. Thus, the Long War was fought to determine which alternative--communism, fascism, or parliamentarianism-would replace the imperial constitutional orders of the nineteenth century.

Book I--Part II: "A Brief History of the Modern State and the Constitutional Order, "asserts that epochal wars have brought about profound changes in the constitutional order of states through a process of innovation and mimicry. (3) In order to survive, some states are innovative in their constitutional reforms while other states copy those innovations when they prove decisive in resolving the epochal conflict of an era.

Book I--Part III: "The Historic Consequences of the Long War" argues that the Long War of the twentieth century was another such epochal war and that it has brought about the emergence of another form of the state, the market-state. Focusing on one of the first market-states, the United States, Bobbitt looks at possible changes--both constitutionally and strategically--as the new constitutional order comes to maturity. (4)

Book II--Part I: "The Society of Nations," deals with the states in which we currently live. It traces the origins of this society to the abortive peace following World War I and the American attempt to superimpose the U.S. Constitution model on the society of states. (5) The argument continues by bringing the plan forward to the collapse of Bosnia in the 1990's and concludes that the society of nation-states is rapidly collapsing. (6) The difference between Bobbitt's claims and other similar claims (7) lies in his conclusion that the dying and regeneration of constitutional orders are a periodic part of the history of the modern state.

Book II--Part II: "A Brief History of the Society of States and the International Order," examines the historic conflicts that have shaped...