201 The propensity to declare war against ideas and social ills is over half a

201 the propensity to declare war against ideas and

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201 The propensity to declare war against ideas and social ills is over half a century old and arguably started with the "Cold War" against the spread of communism. In his farewell address to the nation in 1953, President Truman, speaking of the Cold War, said "I have had hardly a day in office that has not been dominated by this all-embracing struggle-this conflict between those who love freedom and those who would lead the world back into slavery and darkness." The President's Farewell Address to the American People, 1952-1953, in Bruce Ackerman, Response: This is Not a War, 113 YALE L.J. 1871, 1872 at n.2 (2004). Ackerman also cites presidential speeches from the 1960s (declaring the "unconditional war on poverty") and the 1980s (declaring war on drugs and organized crime, respectively). Id. None of the "enemies" in these "wars" show any sign of conceding. David Frum wryly observed that the late Daniel Patrick Moynihan "was an officer in the War on Poverty, the War on Drugs, the War on Crime [and] the War on Cancer ... a series of debacles beside which the military history of Italy begins to look impressive." David Frum, The Tory From New York, AM. SPECTATOR, Nov. 1996, at 74. 202 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104- 132, 110 Stat. 1214. 2o3 See, e.g.,18 U.S.C. § 355(9)(c) (1995); Ark. Code Ann. § 5-4-501(d)(1) (2005); Cal. Penal Code § 999e (Deering 2005). 204 Following Randolph Bourne, who observed that war is the health of the state (he was speaking of World War I), David Kopel and Paul M. Blackman observe that "[t]he drug war has been the health of the military state, and may in the long run be the death of the Constitution." David Kopel & Paul M. Blackman, Can Soldiers Be Peace Officers? The Waco Disaster and the Militarization of American Law Enforcement, 30 AKRON L. REV. 619, 656 (1997).
Virginia Journal of Social Policy & the Law Following September 11, a new front was opened and the war(s) intensified. 20 5 War now infuses all aspects of American society, both international and domestic. Internationally, the "Global War on Terror" informs every aspect of American foreign policy-even though it is a war against no known enemy and has no foreseeable end. It follows that if the United States continues on its present course, it will remain on a war footing with most of the world indefinitely. Not only do these "concept wars" involve no defined enemy, they also do not involve the laws of war. The body of rules that govern during wartime is known as 'Yus in bello" and differs markedly from the laws that govern a democracy during peacetime. 20 6 The state of war involves its own normative structure and rules. 2 ° 7 As Fletcher observes, the peacetime legal system where citizens enjoy many rights against the state and few reciprocal duties is replaced with a war regime where citizens, like soldiers, have many duties and few rights.2 0 8 The United States currently seeks to have it both ways. It has assumed a permanent war footing but does not treat the purported enemy as a wartime foe. For example, captured prisoners in Guantanamo Bay and elsewhere are "unlawful combatants" lacking the rights afforded 205 The

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