Fighting Words

Oren Gross, University of Minnesota Law School, and Fionnuala D. Ni Aolain, University of Minnesota Law School & University of Ulster, Transitional Justice Institute, have published The Rhetoric of War: Words, Conflict and Categorization Post-9/11 in volume 24 of the Cornell Journal of Law and Public Policy (2014).  Here is the abstract. 

Words are a source of immense power. Using them we not only communicate with each other and express our thoughts, but shape thought itself. In turn, the framing of issues and outcomes significantly shapes choices — whether pertaining to private decisions or to public policy. At the same time, reliance on framing as a shortcut also means that whoever manages to control the framing of information would greatly influence, and could manipulate, the interpretation and meaning that recipients of that information are likely to attach to it.
The article addresses the language, rhetoric, status, and legality of “war” by examining the complexity of decision-making for policy-makers in the aftermath of the terrorist attacks of September 11, 2001. It does so by looking both inward, examining presidential war rhetoric in the United States, and outward, analyzing the experience of democratic states with the legal construct of “emergency” and “war” under the relevant international human rights treaties.
We critically examine the role of the President as a national choice architect and the nation’s chief rhetorician and his use of the power of the bully pulpit in the context of war rhetoric — including the War on Poverty, War on Drugs, and the War on Terror — as well in situations when the presidents have elected to steer clear of the war frame and adopted alternatives.

We also analyze the positioning of democratic states post 9/11, as they have adopted, adapted and rejected the language of war and emergency to respond to terrorist threats. In particular we note the growing trend among consolidated democracies to not invoke the established legal mechanisms dealing with emergencies under the relevant international treaties, opting instead to deal with perceived threats under the aegis of ordinary legislation without invoking the framing of “war” or “emergency.” We chart significant indeterminacy indicated by the contradictory usage of the terminology and legal status associated with emergency, derogation and war over time and examine what such varied claims by democratic states mean in the war-emergency-normalcy realm.

Thus, we argue that directing attention to the language and formalities of executive and state positioning is critical not only to understanding the political actions of states, but to engage with the form and substance defining the legal status of conflict and crisis.

Download the Article from SSRN at the link.