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New York City Law Review

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The criminal law paradigm is now, and has been from the beginning, the right one to apply to the fight against terrorism.

The decision whether to respond to the individuals who perpetrated 9/11 within a war or a criminal framework was from the first day a policy choice. If President Bush had been competently advised by the White House Counsel, Alberto Gonzales, he would have been told that there was a choice to be made and further told that either decision would subject his actions to legal restraints.

What actually happened, as far as I can see, is that Gonzales accepted Bush's assertion "we are at war" as though this were a description of objective empirical reality rather than a political determination. There almost certainly was not a well thought-out decision to choose between the war and criminal paradigms, each of which would involve benefits and burdens to the Executive Branch. Instead, Gonzales seemingly shared his boss's lay notion that "war" is shorthand for "the President can do whatever he damn pleases," and the word went forth from the White House that the government was to unleash all the forces at its command to liquidate enemies of the state.