As Professor David Golove notes, it may or may not be too soon to write about the Supreme Court's “war on terror” cases as history. Journalism may be history's “first rough draft,” but Golove shows why respected scholars should get in on the act early. Typical of his work, although still sadly rare in legal scholarship, his essay reflects substantial research, reminding us of the nation's original and longstanding commitment to the laws of war and to the role of separation of powers in ensuring their application. Likewise typical, Golove puts the research he sets forth to innovative and provocative use, arguing that while the Supreme Court's recent terrorism jurisprudence may depart from settled precedent, it does so more faithfully to serve the Founding commitments.

Professor Golove's approach reflects an irony worth noting at the outset, not least because it has characterized many accounts of the Court's terrorism jurisprudence. This irony begins with the now commonplace observation that in fundamental ways the 9/11 attacks represent a distinct break with past experience. Golove acknowledges that the attack really did confront the United States with a new and terrible phenomenon. The scale of the threat made it too big for a criminal law framework. As Professor Bruce Ackerman has emphasized, where previously terrorists could at worst kill by the dozen, now thanks to technology, they threaten destruction on a scale once reserved for war. Yet for all the rhetoric to the contrary, neither can it be considered war in any conventional sense.