201 The propensity to declare war against ideas and social ills is over half a century oldand arguably started with the "Cold War" against the spread of communism. In hisfarewell 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-embracingstruggle-this conflict between those who love freedom and those who would lead theworld back into slavery and darkness." The President's Farewell Address to theAmerican People, 1952-1953, in Bruce Ackerman, Response: This is Not a War, 113YALE L.J. 1871, 1872 at n.2 (2004). Ackerman also cites presidential speeches from the1960s (declaring the "unconditional war on poverty") and the 1980s (declaring war ondrugs and organized crime, respectively). Id.None of the "enemies" in these "wars" show any sign of conceding. David Frum wrylyobserved 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 debaclesbeside which the military history of Italy begins to look impressive." David Frum, TheTory 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 wasspeaking of World War I), David Kopel and Paul M. Blackman observe that "[t]he drugwar has been the health of the military state, and may in the long run be the death of theConstitution." David Kopel & Paul M. Blackman, Can Soldiers Be Peace Officers? TheWaco Disaster and the Militarization of American Law Enforcement, 30 AKRON L. REV.619, 656 (1997).
Virginia Journal of Social Policy & the LawFollowing September 11, a new front was opened and the war(s)intensified.20 5War now infuses all aspects of American society, both internationaland domestic. Internationally, the "Global War on Terror" informsevery aspect of American foreign policy-even though it is a waragainst no known enemy and has no foreseeable end. It follows that ifthe United States continues on its present course, it will remain on a warfooting with most of the world indefinitely.Not only do these "concept wars" involve no defined enemy, theyalso do not involve the laws of war. The body of rules that govern duringwartime is known as 'Yus in bello" and differs markedly from the lawsthat govern a democracy during peacetime.206 The state of war involvesits own normative structure and rules.2°7 As Fletcher observes, thepeacetime legal system where citizens enjoy many rights against thestate and few reciprocal duties is replaced with a war regime wherecitizens, like soldiers, have many duties and few rights.20 8The United States currently seeks to have it both ways. It hasassumed a permanent war footing but does not treat the purported enemyas a wartime foe. For example, captured prisoners in Guantanamo Bayand elsewhere are "unlawful combatants" lacking the rights afforded205 The