The language of the "war on terror" reemerged, quietly and unobtrusively, during President Obama's speech to the nation on Sunday night. In the past seven years, the all-too-familiar terminology of a "war on terror" has receded from the public discourse, as the Obama administration has generally eschewed such rhetoric in favor of phraseology focused on particular terrorist groups, whether al Qaeda, al Qaeda in the Arabian Peninsula, the Islamic State in Iraq and Syria (ISIS) or others.
And yet, near the beginning of Obama's speech, there it was: "Our nation," the president said, “has been at war with terrorists since al Qaeda killed nearly 3,000 Americans on 9/11." "War with terrorists" may seem descriptively reasonable, but the sheer breadth and imprecision of the phrase raises significant legal and policy questions.
Stopping, managing and deterring terrorist violence is an absolute imperative. But that urgency does not mean that all terrorism is war. War, traditionally understood as armed conflict between two opposing forces, triggers the application of the law of war, a legal framework specific to armed conflict and fundamentally different from "peacetime" law. Counterterrorism tools generally include extensive criminal, financial and other efforts to frustrate, capture and prosecute terrorists outside the context of any use of military force. These essential tools are not military operations, however, and while they form a central part of the strategy to protect against terrorist violence, they are not part of a war in the military sense and remain part of the peacetime law enforcement paradigm.
The phrase "war with terrorists," however, suggests that any person who engages in or plans a terrorist attack is an enemy in a war, a vastly overbroad characterization with enormous legal consequences. A terrorist is an individual who targets innocent civilians for the purpose of advancing a particular cause. Such a person may engage in such activity alone or as part of a group, and a few terrorist groups — al Qaeda, ISIS and selected other groups — are engaged in armed conflict with the United States and its coalition partners.
The legal distinctions between war and other counterterrorism tools make this choice of language highly problematic. Two simple distinctions highlight the differences and why they matter.
First, during armed conflict, the law of war authorizes the use of force as a first resort against enemy fighters, in accordance with the obligations to distinguish between fighters and civilians and to minimize harm to civilians. The law of war also accepts some incidental civilian harm as a consequence of legitimate military operations. Law enforcement rules — the legal paradigm in peacetime — allow for the use of deadly force only as a last resort, an extremely limited set of circumstances, and do not contemplate collateral damage to innocent civilians at all.
Second, during armed conflict, the law of war authorizes the detention of enemy fighters without charge until the end of hostilities. Outside of war, domestic and international law require that any detention be based solely on an individualized determination in accordance with the rules of the criminal justice system, not on one's membership in an enemy or opposition group.
The differences between the two paradigms are stark: truly a matter of life or death. As a result, the dangers of applying law of war authorities to peacetime situations, and conflating war with counterterrorism, are evident.
For this reason, the "at war with terrorists" phrase in Sunday's speech harkens back uncomfortably to the term "war on terror" and should raise red flags, particularly at a time when concerns about terrorist attacks are on the rise.
Policymakers use the rhetoric of "war" to describe a major governmental or society effort to combat an evil that threatens society, national security or some other communal good. A "war on ... " is a rhetorical tool, a technique for resource mobilization and, above all, a method for coalescing authority to meet the challenge, whether the challenge is poverty, drugs or terrorism.
As a clarion call, a "war on drugs" or a "war on poverty" is powerful rhetoric and captures the public's imagination. But no one confuses a war on poverty with war in the sense of military operations, tanks, fighter jets, infantry patrols, civilian casualties, refugees and all the other incidents of war.
A "war on terror" or "war with terrorists," in contrast, is easily confused with war in its classic sense: Since 9/11 in particular, efforts to combat terrorism have involved military operations against designated terrorist groups.
And there's the catch: A rhetorical "war on terror" encompasses all of government and society's efforts to combat terrorism, from law enforcement to financial sanctions to immigration to military force. By using the word "war," however, it also — whether intentionally or unintentionally — obfuscates or even obliterates the distinction between war as military force with war as a rhetorical tool. Retaining this distinction is imperative, both for individual rights and protections and for the ability to respond effectively and lawfully to the threat and actual violence of terrorism.
Since 9/11, the United States has indeed been engaged in armed conflict with one or more terrorist groups. Some might think the difference between that statement and Obama's recent formulation of "at war with terrorists" is merely semantic, and perhaps the president's remark was simply an attempt to be concise and descriptive.
But subsuming all terrorists — including those acting alone, groups engaged in criminal activity but not armed conflict, and groups actually engaged in an armed conflict — into one indistinguishable mass nullifies the important legal distinctions between criminals and wartime enemies. It suggests, in effect, that any single person who seeks to use violence as a tool to advance a cause is a wartime enemy, susceptible to lethal targeting as a first resort and detention without charge — opening the door to a dangerous degradation of the rule of law.
In the current political climate and as fears of ISIS-inspired attacks intensify, a more nuanced discussion is essential. When rhetoric enables, facilitates or simply fails to prevent the conflation of wartime law and peacetime law, protections for individual rights diminish and the rule of law itself is in danger.
Blank is a clinical professor of law and director of the International Humanitarian Law Clinic at the Emory University School of Law.