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 a new 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. Milligan, an Indiana man charged with aiding the Confederacy, had been violated when he was tried by a military tribunal instead of a civil court. Such shortcuts are not permitted, the justices declared, "where the courts are open, and in the proper and unobstructed exercise of their jurisdiction."
Milligan, living in a state threatened by invasion, was accused of secretly assisting the enemy in a war on U.S. soil that imperiled the Union?s very existence. The vindication of his rights in these circumstances speaks volumes about the need to be wary of arbitrary power, especially during times when the public is least likely to resist it. "The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with its shield of protection all classes of men, at all times, and under all circumstances," the Court declared. It noted that the Framers "foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law."
If the Civil War did not trump the Constitution, it?s hard to see why the war on terrorism should. That does not mean there is no room for debate about how to fight terrorism. But the debate should not be based on the assumption that constitutional constraints are a luxury we can no longer afford. Nor should it be limited to the question of what the Constitution permits. The debate is also about what works, and at what cost. It may be perfectly constitutional to put a national ID in every pocket and a surveillance camera on every corner, but that does not mean those are good ideas.
In any case, the war-vs.-peace paradigm clarifies little. The real issue is not whether we?re at war but whether terrorism is so different from other crimes that special rules should apply. If terrorism is different, it?s because of the damage it does, not because it?s carried out by foreign belligerents. Homegrown terrorists like Timothy McVeigh pose the same sort of threat, although the president would be hard-pressed to put them in a brig as enemy combatants.
One could argue that we should be more willing to risk imprisoning the innocent in cases involving terrorism because the potential cost of freeing the guilty is especially high. The principle here, which suggests that murder suspects should get less due process than people accused of shoplifting, is questionable. But such a position is more honest than the line offered by many conservatives, who argue that it?s outrageous to be concerned about "the rights of terrorists" when American lives are at stake. This formulation assumes the guilt of anyone who falls under government suspicion.
If you're innocent, in other words, you needn?t worry about giving the government more power to fight terrorism. I must be guilty.