IT IS NO secret that the War on Terror's prosecution has revealed fundamental differences between the United States and Europe over how to meet the challenges of global terrorism and jihadi Islamism. After the September 11 attacks, the United States chose a military response and considers itself to be engaged in a legally cognizable armed conflict to which the laws and customs of war apply. That view, although occasionally questioned by American politicians like Senator John Kerry (D-MA) during his unsuccessful 2004 presidential campaign, is supported by most Americans and is not likely to change regardless of who moves into the White House on January 20, 2009. This public sentiment aside, the nature of the American civilian legal system, which features many procedural and substantive protections that make it difficult to prosecute wartime combatants, especially those captured overseas, as well as the need to prevent rather than simply to punish terrorist attacks, effectively requires adoption of a war-fighting over a law-enforcement approach to transnational terror.
