Magazine article The American Prospect

States of Emergency

Magazine article The American Prospect

States of Emergency

Article excerpt

Is there constitutional substance to the "war on terror"? The rhetoric of war has paid political dividends for President Bush, but that does not make it a compelling legal concept. The classic war is between sovereign states. The conflicts with Afghanistan and Iraq were wars; the struggle against al-Qaeda is not. And in contrast to classical wars, the war on terrorism will never end. So if we choose to call this a war, we will never return to a legal world in which individual rights are respected as a matter of course.

The Supreme Court has emphasized this point. In a recent decision, Justice Sandra Day O'Connor upheld the power of the president to detain Yaser Esam Hamdi as an enemy combatant as long as "United States troops are still involved in active combat in Afghanistan," and not for a never-ending war on terrorism. Such a step, she cautioned, would require a reconsideration of existing principles.

This won't stop presidents from pressing the matter. Almost two centuries ago, Andrew Jackson was making war on the Bank of the United States. More recently, presidents have waged wars on drugs, crime, and poverty. Even at its most metaphorical, martial rhetoric gives presidents a chance to invoke their mystique as commander in chief.

Nevertheless, expansive presidential claims shouldn't be dismissed out of hand. In one respect, the al-Qaeda threat really is different from other criminal conspiracies. Mafiosi are generally content to allow government officials to flaunt their symbols of legitimacy so long as gangsters control the underworld. But the point of a terrorist bomb is to challenge government. It can cause widespread panic as citizens feel the foundations of public order crumbling beneath their feet.

The only way for government to meet this challenge is to do everything plausible to prevent a second strike. This is why the president's war talk resonates so broadly: The 9-11 attacks are indeed similar to Pearl Harbor in their challenge to American sovereignty, and they do require an extraordinary response.

But instead of permitting a never-ending war on terrorism, we should develop a different tradition of our law. …

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