Since the attacks of September 11, 2001, the United States government has pursued a series of energetic policies designed to protect America from the threat of Islamist terror networks. Some of these policies are intensely controversial. Critics in other countries protest that the United States has acted in defiance of international law. Some of this criticism has been embraced by domestic opponents of the Bush administration, particularly those in American law schools. Professor Jeremy Waldron, for example, offered a version of such criticism during the 2005 Federalist Society Student Symposium and in earlier writings, illustrating the larger pattern of criticism.

The purpose of this article is not to mount a defense of any particular American policy of recent years. Instead, this article challenges the critics’ underlying premise that international law has the same sort of claim on our government as domestic law and that war measures abroad can accordingly be judged in the same terms as police abuses at home. . . .

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Jeremy A. Rabkin is a member of AEI's Council of Academic Advisers.