I didn't always think this question was important. Back in 2001-2002, the "war" talk seemed to me to be basically a way of reaffirming how seriously America and its allies were taking the conflict. Anyway, there clearly was a need to make war against the Taliban to deprive al Qaeda of its state sponsor. Those who argued that we needed to deal with bin Laden and his minions as criminals struck me as partly right, but not sufficiently serious about the scope of the conflict. It was only after the Axis-of-Evil speech and the Bush administration position on the extra-legal status of Guantanamo bay that I realized that the war/crime distinction was an important one after all.
In general, those with state power tend to want to deny the status of war opponent to those without it. The British state called the Provos criminals; the Provos were the ones who insisted they were warriors. The official of the regime referring to revolutionaries as "bandits" is a figure of cliché.
There are obvious strategic reasons for this. A criminal is just an anti-social menace. An enemy army, on the other hand, is presumptively legitimate. You can make a treaty with an enemy army, but only a plea bargain with a criminal.
So there was something slightly odd about the Bush administration's immediate preference for a "war" model. You would think that the status quo superpower would be highly reluctant to dignify a ragtag group of murderous religious fanatics with the distinction previously held by the mighty USSR. After all, the West at the time was very reluctant to promote the Bolsheviks from a group of bandits and adventurers temporarily in control of Petrograd to a state enemy.
There seem to have been two rationales for this choice. The first arises out of the common law criminal justice system, as augmented by the Warren court. There would be some understandable reluctance to let
Another appealing idea was to mobilize the people -- something democracies tend to do in those wars that are not mere colonial skirmishes. Operationally, Afghanistan and Iraq *have* been colonial skirmishes, and the idea of mobilizing the population conflicted with the greater imperative of keeping the economy on track. The result was a system of passive mobilization -- orange alerts, etc. I wouldn't go so far as to say that this was always a purely political fraud. But there was a contradiction at the heart of it. In reality, Islamic terrorism (without nuclear weapons) is a relatively minor problem -- the risk cannot be eliminated altogether, but when a small portion of the resources at the command of the American state are mobilized against it, the point of diminishing returns is quickly reached. The cost of genuine mobilization would be staggering, and the benefits small.
But even though the rational response was pretty limited, something had to be done that was commensurate with the shock of the original attack.
The program seized upon -- social revolution of the Islamic world from without and from above -- could be considered big enough, since even the resources of the United States cannot possibly accomplish it. It seems odd in two ways:
First, because it is hard to understand why the status quo power wants to make radical transformations. I have no answer to this dilemma, although it does seem that, in general in human history, 'revolutions from above' are more common than those from below. If you have power, you want to accomplish things with it.
Second, the objectives of the revolution were contradictory: simultaneously to make the Islamic world more bourgeois while making the West less so. It was not just a matter of making the Islamic world "democratic" (a word that is less about a system of majority rule and more about a civilization of risk-minimization and economic growth).
Those who called for this revolution wanted to bring some of the hard, masculine virtues they saw in the attackers to the people (especially, the men) that were the products of democracy. From Fukuyama, we learn that they really feared the "last man", the final, perfect product of the risk society. They wanted to toughen him up. But they wanted to do it by selling him on perfect security and by somehow transforming the Muslim fanatic into the post-modern consumer.
So where are we now? No one really still believes that the revolution-from-above will work. America, as a world power, will soon have to turn its attention to how it minimizes its losses. The forward momentum of liberalism from 1989 will be slowed, maybe reversed. On the other hand, Islamism has no prospect of being itself a world power, the way that Communism did. The technology of mass death gets cheaper, better and more accessible every year. I suspect that nuclear non-proliferation is dead, and will be accepted as such by everybody by 2010. The logic of war becoming more dangerous but less likely will probably continue until the unlikely happens.
The best we can do is plug away, case by case, at building legal institutions. And criticizing the ones we've got, of course.