Six years after the terrorist attacks of Sept. 11, 2001, much of the legal system’s role in the war on terror remains unresolved.
Should the courts take a backseat to the executive branch, as they have historically done during wartime? Or, in this new kind of conflict—with no hope of a discernible, state-sanctioned end—should the courts hold the executive branch as accountable as they would in peacetime?
Neither view seems likely to win out. Rather, we seem to be stumbling toward a third way: building, bit by bit, a new paradigm of the law of terror—defining the limits of executive power, civil liberties, defendants’ rights and the independence of the judiciary with a system that borrows from the law of both wartime and peacetime.