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"War Is Handy Politics for Bush"--An Op-Ed by Prof. Bruce Ackerman

(This essay was first published in the February 3, 2002, edition of the Los Angeles Times. To read another essay by Professor Ackerman about civil liberties after September 11, follow the link at the bottom of this page.)

War Is Handy Politics for Bush

By Bruce Ackerman, Sterling Professor of Law and Political Science

We have won the war in Afghanistan, but President Bush refuses to declare victory. Why he won't is not a mystery. Congress has not authorized a global war against all rogue states, and once the president recognizes that the Afghan war is over, his larger ambitions lack adequate legal foundation.

Inflated war talk is a defining characteristic of the modern presidency; recall the war against poverty, the war against crime, the war against drugs. Martial rhetoric is a response to our system of separated powers. Congress notoriously checks and balances and eviscerates most presidential initiatives. But by calling something a war, the commander in chief might get the House of Representatives and Senate to defer to him in the way it does when a real war is going on.

War talk is particularly tempting just after a real war, if only a small one, has ended. It allows the president to maintain extraordinary wartime powers and to wrap his wartime popularity around programs that are linked to real war only metaphorically.

Terrorism will be a recurring problem of the 21st century. Technology allows small bands of zealots to wreak havoc. Despite our best efforts, tragedies on the scale of Sept. 11 will happen again. But mindless talk of war only prevents clear thinking about the problem, confusing the domestic and international aspects of our situation. For all we know, the next terrorist attack will come from a band of American extremists, as in Oklahoma City and maybe in the case of anthrax. Suppose that some group gases the subways of San Francisco or poisons Chicago's water supply. Is the president's "war against terrorism" appropriate against domestic extremists?

More than four months after Sept. 11, Atty. Gen. John Ashcroft refuses to reveal the names of all of the more than 1,100 suspected terrorists he has swept into detention. Are U.S. citizens to be subject to such secret detention? Bush has asserted his power as commander in chief to short-circuit the civilian courts and try foreign terrorists by military tribunals. Will he attempt a similar power play if the next battle against terrorism turns out to be on the home front? If so, one hopes that Americans will resist this invasion of each citizen's fundamental rights to due process.

Our collective perspicacity will be tested sooner on the international front. In his State of the Union address, Bush explicitly targeted Iran, Iraq and North Korea as potential enemies. But Congress has not given him carte blanche to extend the Afghan war to these other targets. Its joint resolution falls far short of the classic declaration of war. It simply allows him "to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided terrorist attacks that occurred on Sept. 11."

Since the resolution restricts itself to Sept. 11, the administration has tried to find evidence of rogue states' involvement in these particular attacks. But this effort has been unsuccessful. The State of the Union declaration looks like a trial balloon. If Bush's continuing war talk is accepted at face value, perhaps the public will allow him to begin a new war against Iraq or Iran without returning for another authorization from Congress.

We confront serious foreign policy choices. But once again, the fog of war talk is obscuring them. The last war is over. Before embarking on a new one, the president must persuade Congress that the war is worthwhile and that he has devised appropriate exit strategies in case of misadventure.

Before Sept. 11, Bush promised repeatedly to do just this. But now that he has discovered the political power of the "war on terrorism," it will be up to the American people to insist that he keep his promises.

Bruce Ackerman is a professor of law and political science at Yale and a fellow at the Center for Advanced Study in the Behavioral Sciences in Palo Alto.