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Publication Date

2012

Abstract

Policy makers have used the rhetoric of "war"
throughout the past century to describe a major
governmental or societal effort to combat an evil that
threatens society, national security or other communal

good. It is both a rhetorical tool and a resource
mobilization, and above all a coalescing of authority to
meet the challenge, whether poverty, drugs or-most
recently-terrorism. Soon after 9/11 made al Qaeda a
household word, the Bush Administration characterized
U.S. efforts to defeat al Qaeda as the "War on Terror."
Here, however, the terminology of "war" goes far beyond
rhetoric, resource re-allocation and centralizing of
authority. When it goes hand-in-hand with domestic and
transnational counterterrorism operations and major
military operations, this "war" rhetoric also has
significant consequences for the protection and content of
basic rights and values.
This Essay examines the implications of the rhetoric of
"war"when combined with actual military operations and
counterterrorism operations. If focuses on the interaction
between the "war"rhetoric and the framework of the law of
armed conflict. The 'War on Terror" rhetoric has
facilitated and encouraged the growth of authority without
the corresponding spread of obligation. Drone strikes,
indefinite detention, prosecution of crimes like conspiracy
and material support for terrorism in military
commissions-these practices and others raise significant
questions about the application of domestic and
international law to counterterrorism operations, the long-
term impact on executive authority, and the role of
national security as a "trump card."

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