The Forever War: How Long Can an Emergency Last?
Sullum, Jacob, Reason
Since 9/11, anyone who has questioned a proposed extension of government power or contraction of individual liberty has had to deal with an intimidating three-word rejoinder: "We're at war."
Among other things, "we're at war" has been offered as a justification for trying noncitizens before military tribunals, holding citizens in military custody without charging them, eavesdropping on attorney-client conversations, conducting secret searches, obtaining e-mail information and library records without a warrant, relaxing restrictions on FBI surveillance of religious and political activity, setting up a nationwide network of civilian informers, installing police cameras in public places, allowing the armed forces to play a more prominent role in law enforcement, establishing a national ID card, conscripting young people into "national service," and repealing President Bush's tax cuts.
Despite its rhetorical effectiveness, "we're at war" does not quite do justice to the situation in which we find ourselves. Even if it did, the claim would not give the government carte blanche to dispense with civil liberties. Although it promises moral clarity, the language of war obscures the issues at stake in the debate about how a free society should respond to terrorism.
In terms of massive, indiscriminate destructiveness, the attacks on the World Trade Center and the Pentagon certainly resembled war. Likewise, U.S. forces fought what looked like a war in Afghanistan, with planes bombing targets, organized groups of men shooting at each other, and civilians suffering "collateral damage." But after the Taliban were defeated and anew government was installed, this literal phase of the war on terrorism seemed to be petering out.
What was Left looked Less like World War II, and more like the war on drugs: an intermittently violent campaign against an amorphous enemy that can never be decisively vanquished. Bush did not declare war on Al Qaeda or the Taliban; he declared war on terrorism, which will be with us in one form or another for the foreseeable future. Unlike drug use, of course, terrorism is inherently criminal, a kind of aggression that no civilized society can tolerate. But the open-ended nature of the struggle against it means that the war on terrorism, unlike conventional wars, cannot be viewed as a passing emergency.
That fact has important implications for the debate about how much liberty we should give up so the government can fight terrorism more effectively. Since there's no way of knowing when the war is over--no territory to occupy, no surrender to accept--any sacrifices we make are likely to be permanent. This uncertainty can fundamentally change the nature of the measures we are being urged to accept. For example, the president has claimed the authority to unilaterally declare citizens "enemy combatants" and lock them up until the "cessation of hostilities." In a war without end, such detention amounts to a life sentence.
Even in finite wars, courts rightly have insisted on traditional standards of due process when feasible. In a landmark 1866 case, the U.S. Supreme Court held that the constitutional rights of Lamdin P. …