Is Turnabout Fair Play With Al Qaeda?

Abstract

The End of Reciprocity: Terror, Torture, and the Law of War. By Osiel Mark. Cambridge: Cambridge University Press, 2009. 667 pp., $45.00 paperback (ISBN-13: 978-0-521-73014-3). In its ongoing armed conflict with Al Qaeda, should the US government employ indefinite detention without trial, coercive interrogation/torture and/or targeted killing? In the last nine years, a veritable cottage publishing industry has developed around these issues (e.g., Levinson 2004; Posner 2006; Guiora 2008; Plaw 2008), raising the question of whether there is anything new to say of real import. In his book, The End of Reciprocity: Terror, Torture and the Law of War , the University of Iowa's Mark Osiel puts any such doubts to rest, offering a wide-ranging analysis that is both novel and compelling. Osiel argues, contrary to conventional wisdom, that there is a compelling case both for the legality and for the morality of these controversial practices (despite the Bush administration's failure to articulate it), but in the case of indefinite detention and coercive interrogation/torture there are more important public policy considerations that militate against their use. The normative question at the heart of the book is “whether humanitarian law should operate reciprocally”—that is, should it permit one “to behave toward another as one perceives the other behaving toward oneself” (p. 17). For example, should Al Qaeda's flagrant crimes against the United States justify Washington in responding with the indefinite detention, interrogation/torture, and/or targeting of its leaders (p. 4)? In the first part of the book Osiel forcefully argues that the principle of reciprocity continues to occupy a central place in humanitarian law, especially in light of state practice and the customary law that it shapes (pp. 68–110). The implication, he suggests, “is to undermine the …