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Talk of 'war' is misleading and dangerous—A Commentary by Bruce Ackerman '67

The following op-ed originally appeared in the Philadelphia Inquirer on September 12, 2006.

Talk of 'war' is misleading and dangerous
By Bruce Ackerman '67

Donald Rumsfeld was right. Only a year ago, he urged President Bush to reject the "war on terror" as a misleading metaphor. But the president has ignored his secretary's advice, leaving it to the rest of us to heed Rumsfeld's warning.

Terror is merely a technique: the intentional attack on innocent civilians. But war isn't a technical matter: it is a life-and-death struggle against a particular enemy. We made war against Japan, not its kamikaze pilots.

Once we allow ourselves to declare war on a technique, we open up a dangerous path, authorizing the president to lash out at amorphous threats without the need to define them.

Paradoxically, it is only our inexcusable failure to capture Osama bin Laden that permits us to ignore the danger that expansive war talk poses to our freedoms. Bin Laden allows us to put a single face on the terrorist menace and pretend that he is at the head of a well-organized war machine like that of Hitler or even Saddam Hussein.

But he isn't. Terrorism isn't the product of overweening state power, but of the unregulated marketplace.

We are at a distinctive moment in modern history: The state is losing its monopoly over the means of mass destruction. Once this happens, it's almost impossible for government to suppress the lucrative trade completely. If the Middle East were transformed into an oasis of peace and democracy, other fringe groups would replace al-Qaeda in the marketplace for death. A tiny band of home-grown extremists blasted the Federal Building in Oklahoma City. Others will want to detonate suitcase A-bombs as they become available.

This is a very serious problem, but we make it worse by calling it war. War talk tilts the constitutional scales in favor of unilateral executive action, and against our tradition of checks and balances.

There is something about the presidency that loves pseudo-war. Almost two centuries ago, Andrew Jackson was already declaring war on the Bank of the United States, indulging in legally problematic uses of executive power to withdraw federal deposits from The Enemy, headed by the evil one, Nicholas Biddle.

But this time around, the stakes are especially high. Consider the case of Jose Padilla. A few months after Sept. 11, the president declared him an "enemy combatant," and locked him up in a military brig for three and half years. During all this time, Padilla was denied the right to challenge his detention before a military or civilian tribunal.

Yet he was an American citizen, and when he was detained at O'Hare airport, he looked like millions of others - wearing civilian clothes and without any dangerous weapons. Nevertheless, a federal court of appeals upheld the president's seizure as within his powers as commander-in-chief, and the Supreme Court refused to review this remarkable decision.

This gives the presidency a terrible precedent for the next Sept. 11. We all hope that this attack won't come for a long time. But the day after the next tragedy, the Padilla case will be invoked to support the president if he sweeps hundreds or thousands into military detention. After a year or two the Supreme Court may intervene on the side of freedom. But perhaps the vote will go 5-4 the wrong way.

It can't happen to me, we tell ourselves. Very few Americans have done anything to support the Islamo-fascists, whatever President Bush may mean by this dark term. But the next attack may be by home-grown terrorists. All of us are potential Jose Padillas, not a select few.

Led by Sen. Arlen Specter, Republicans in Congress have recently been challenging their commander-in-chief's extreme assertions of power. But their bark has been worse than their bite. Whoever wins in November, both parties must build a bipartisan coalition behind statutes that put powerful checks on recent excesses.

Terrorism is a grave threat, and it may well require recalibration of the balance between security and freedom. But this should be done through democratic deliberation and debate, not by presidential war-making against fellow citizens.

Sept. 11 changed many things, but James Madison's words are enduring: "Enlightened statesmen will not always be at the helm."

Bruce Ackerman (bruce.ackerman@yale.edu) is a professor of law and political science at Yale University and the author of  Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism.