But if some commentators viewed law enforcement as the "obviously" correct legal paradigm for addressing 9/11 and subsequent terrorist threats, many others insisted with equal certainty on the correctness of the opposite proposition. "There is little disagreement ... that if the September 11 attacks had been launched by another nation, an armed conflict under international law would exist," argued Justice Department lawyers John Yoo and James Ho in 2001. This "should qualify the attacks as an act of war."
The Obama administration's legal analysis is similar. As former White House counterterrorism advisor (and current CIA director) John Brennan put it in 2011, "[W]e are at war with al Qaeda. In an indisputable act of aggression, al Qaeda attacked our nation and killed nearly 3,000 innocent people." President Obama has repeated the same sentiment, leaving little room for doubt: "Under domestic law, and international law, the United States is at war with al Qaeda, the Taliban, and their associated forces."
Back to the duck-rabbit
Return to the duck-rabbit, which achieved scholarly immortality through its inclusion in the posthumous publication of Wittgenstein's Philosophical Investigations. It is a mistake, Wittgenstein argued, to imagine that words are straightforward representations of some fixed external reality; rather, language itself is inseparable from context. Thus, as Wittgenstein put it, "The picture [of the duck-rabbit] might have been shewn me, and I never have seen anything but a rabbit in it.... [But imagine now] I see two pictures, with the duck-rabbit surrounded by rabbits in one, by ducks in the other."
When the duck-rabbit is surrounded by other images that appear to "clearly" and unambiguously represent rabbits, engaged in typically rabbit-like activities, one would never think to see the duck-rabbit as anything but a quickly sketched rabbit. But when the duck-rabbit is surrounded by images that are "clearly" of ducks, engaged in duck-like activities, one would be equally unlikely to perceive the duck-rabbit as anything other than a duck.
Looking back and forth between a picture in which the duck-rabbit is surrounded by rabbits and a picture in which it is surrounded by ducks, wrote Wittgenstein, one would "not notice that [the original duck-rabbit image is] the same" in each. But "[d]oes it follow from this that I see something different in the two cases?"
Like Wittgenstein's duck-rabbit, the 9/11 attacks can be seen as crime or as war -- and, as with Wittgenstein's duck-rabbit, it would be a mistake to insist that one vision is somehow "truer" than another, and equally mistaken to insist that there is a "right" and "wrong" legal paradigm by which to make sense of the 9/11 attacks.
Why it matters
Of course, saying that there is neither a "right" nor "wrong" way to understand terrorism doesn't mean that the choice of paradigms is inconsequential. After all, the choice of "duck" versus "rabbit" is hardly inconsequential, if one is a hunter -- or, for that matter, if one is a rabbit, or a duck. (If it's duck-hunting season but not rabbit-hunting season, ducks are fair game but rabbits are immune from violence; if it's rabbit-hunting season but not duck-hunting season, the opposite is true. The lawfulness of the hunter's shot depends on whether we view the duck-rabbit as duck or as rabbit. For the duck-rabbit, survival itself is at stake.)