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The Myth of RightsThe Purposes and Limits of Constitutional Rights$
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Ashutosh Bhagwat

Print publication date: 2010

Print ISBN-13: 9780195377781

Published to Oxford Scholarship Online: May 2010

DOI: 10.1093/acprof:oso/9780195377781.001.0001

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Structural Rights and the War on Terror

Structural Rights and the War on Terror

(p.261) 11 Structural Rights and the War on Terror
The Myth of Rights


Oxford University Press

The eight long years of the second Bush Administration and the War on Terror that it prosecuted have generated an extraordinary number of complex and divisive questions of constitutional law. Notably, however, most of the constitutional disputes arising out of the War on Terror have not primarily implicated the main topic of this book, the Bill of Rights and the Fourteenth Amendment. Instead, they have tended to relate to topics such as the separation of powers, the scope of and limits on executive power, and the role of international law. This is not to say that the Bill of Rights is completely irrelevant to these disputes; in particular, the detention of enemy combatants clearly implicates the Due Process Clause of the Fifth Amendment, and the National Security Agency's (NSA) program of warrantless wiretapping potentially violates the Search and Seizure Clause of the Fourth Amendment. On the whole, however, the role of the Bill of Rights has certainly been peripheral in recent disputes, and even when clearly implicated, their application to these disputes has been far from clear. Why that is so, but why the insights we have developed up to this point nonetheless shed important light on the constitutionality of certain aspects of the War on Terror, is the subject of this chapter.

Keywords:   War on Terror, U.S. Constitution, constitutional rights, Bill of Rights, Bush Administration, Guantanamo Bay, presidential power

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