The Consequences of a "War" Paradigm for Counterterrorism: What Impact on Basic Rights and Values?

Policy makers have used the rhetoric of "war"throughout the past century to describe a majorgovernmental or societal effort to combat an evil thatthreatens society, national security or other communal good. It is both a rhetorical tool and a resourcemobilization, and above all a coalescing of authority tomeet the challenge, whether poverty, drugs or-mostrecently-terrorism. Soon after 9/11 made al Qaeda ahousehold word, the Bush Administration characterizedU.S. efforts to defeat al Qaeda as the "War on Terror."Here, however, the terminology of "war" goes far beyondrhetoric, resource re-allocation and centralizing ofauthority. When it goes hand-in-hand with domestic andtransnational counterterrorism operations and majormilitary operations, this "war" rhetoric also hassignificant consequences for the protection and content ofbasic rights and values.This Essay examines the implications of the rhetoric of"war"when combined with actual military operations andcounterterrorism operations.

If focuses on the interactionbetween the "war"rhetoric and the framework of the law ofarmed conflict. The 'War on Terror" rhetoric hasfacilitated and encouraged the growth of authority withoutthe corresponding spread of obligation. Drone strikes,indefinite detention, prosecution of crimes like conspiracyand material support for terrorism in militarycommissions-these practices and others raise significantquestions about the application of domestic andinternational law to counterterrorism operations, the long-term impact on executive authority, and the role ofnational security as a "trump card."