This is not a war.

• Author: Ackerman, Bruce
• Position: Response to David Cole, Laurence H. Tribe and Patrick O. Gudridge, Yale Law Journal, vol. 113 p. 1753, 1801 (2004

I know that some people question if America is really in a war at all. They view terrorism more as a crime, a problem to be solved mainly with law enforcement and indictments. After the World Trade Center was first attacked in 1993, some of the guilty were indicted and tried and convicted and sent to prison. But the matter was not settled. The terrorists were still training and plotting in other nations and drawing up more ambitious plans. After the chaos and carnage of September the 11th, it is not enough to serve our enemies with legal papers. The terrorists and their supporters declared war on the United States, and war is what they got. [Applause.]

--President George W. Bush, State of the Union, January 20, 2004 (1)

The Cold War. The War on Poverty. The War on Crime. The War on Drugs. The War on Terrorism. Apparently, it isn't enough to call a high-priority initiative a High-Priority Initiative. If it's really important, only a wimp refuses to call it war, almost without regard to its relationship to the real thing.

There is something about the presidency that loves war-talk. (2) Even at its most metaphorical, martial rhetoric allows the President to invoke his special mystique as Commander in Chief, calling the public to sacrifice greatly for the good of the nation. Perhaps the clarion call to pseudo-war is just the thing the President needs to ram an initiative through a reluctant Congress. Perhaps it provides rhetorical cover for unilateral actions of questionable legality. We are not dealing with a constitutional novelty: Almost two centuries ago, Andrew Jackson was famously making 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. (3)

The Emergency Constitution aims to provide a new framework for controlling this presidential dynamic in its present boom cycle. (4) To be sure, the war on terrorism isn't as obvious a rhetorical stretch as the war on poverty. Classical wars traditionally involve a battle against sovereign states, and it may seem a small matter to expand the paradigm to cover struggles with terrorist groups. But appearances are misleading: An embrace of the "war on terrorism" can generate a dynamic that justifies the permanent and broad-scale destruction of fundamental rights. Or so I argued in my essay. (5)

While it is easy enough to condemn this tendency toward war-talk, the State of the Union suggests that more than moralizing will be required to check the presidential dynamic. Consider the artful way that the speech sets up a sharp dichotomy as the foundation for its martial conclusion. The only alternative to war, President Bush suggests, is to "view terrorism more as a crime, a problem to be solved mainly with law enforcement and indictments." (6) So far as he is concerned, September 11 demonstrated the futility of "serv[ing] our enemies with legal papers." (7) According to the President, that leaves us with a single remaining alternative: "The terrorists and their supporters declared war on the United States, and war is what they got." (8)

I want to prevent this rhetorical slide to war by creating a third framework that disrupts the President's false dichotomy: This is not a war, but a state of emergency. I build upon ideas and practices that are already in common use. The newscasts constantly report declarations of emergency by governors responding to natural disasters--and though this is less familiar to ordinary citizens, presidents regularly declare emergencies in response to foreign crises and terrorist threats. (9) My aim is to develop these well-established practices further and construct a new bulwark against the presidential war-dynamic. When the next terrorist strike occurs, we should not turn to our television sets to see the President of the United States heating up the war-talk to an even higher pitch. It would be far better to see him go before Congress and somberly request its support for a declaration of a limited state of emergency.

In their thoughtful essays, David Cole and the team of Laurence Tribe and Patrick Gudridge point to many problems and imponderables raised by my proposal (10)--and they are right to be skeptical. I have one or another response to one or another of their concerns, but all of us find ourselves in a dark place far removed from the happy land of conventional legal analysis, where all our answers are clear and our reasoning compelling. To their credit, my commentators don't suggest otherwise. They prefer to rely on courts as our one great bulwark against the presidential war-dynamic, but they are perfectly aware of the dangers involved. They simply prefer the devils they know to the devils they imagine--and who can doubt the attractions of this familiar conservatism?

And yet there are times when we best conserve our basic values through creative acts of reform. The big question is not whether we should displace courts entirely, but whether we can build a new emergency regime in which courts, presidents, and legislatures interact with one another in ways that are superior to traditional forms that put the overwhelming weight on judges.

My answer begins by emphasizing one large limitation of my commentators' court-centered approach: While judges may (or may not) defend individual rights, courts definitely won't constrain the larger dangers involved in the prevailing war-talk. Part I of this Response suggests how this rhetoric, if left unchecked, will increase the likelihood of unilateral presidential war-making. Part II explores the morality of my proposal and Part III addresses the complex matters of statecraft raised by my commentators. I conclude with some imponderables.

1. THE DANGERS OF WAR-TALK

   The constitutional text grants the power to Congress to "declare war," (11) creating an opening for judges to tell the President and Congress what a "war" is and when the consent of Congress is required. Yet, for all the recent discussion of an imperial judiciary, (12) nobody is expecting the Justices to intervene forcefully on the war question anytime soon. (13) This means that the court-centered tradition will permit future presidents to continue exploiting the false dichotomy elaborated by President Bush in his State of the Union.

   Under my emergency constitution, the President would be in a position to respond to the next terrorist strike with an address to the nation that would break with President Bush's recent State of the Union. Rather than speak of war, the President could invoke the more moderate--and more appropriate--notion of a state of emergency:

   My fellow Americans, as we grieve together at our terrible loss, you should know that your government will not be intimidated by this terrorist outrage, nor treat it as an occasion for business as usual. I am asking Congress to declare a temporary state of emergency that will enable us to take aggressive measures to prevent a second strike, and seek a speedy return to a normal life. Yet if my court-centered commentators have their way, this option will not be at the President's disposal. Instead, he will have only two choices. He can follow the example of President Bush and heat up the war-talk to fever pitch, or he can take the path proposed by Professors Tribe and Gudridge. Adapting their prose, I imagine them asking the President to say:

   It is bound to be quite a long time--even if all goes well with efforts at coalition-building among the principal targets of each new wave of global terrorism, and even if democratic nation-building proceeds more smoothly than anyone has grounds at the moment to predict--before we can feel any confidence that ... terrorist assault[s] ... will not recur in the foreseeable future. Such confidence seems unlikely to be warranted until we ... have ceased to inspire resentment, fear, and blinding rage on the part of too many individuals in too many places. Fanatically, even suicidally, anti-American and anti-Western ideology--in combination with the resources and aptitude for deploying the technology and theater of terror--will continue to provide at least the preconditions for more of the same.... [We should refuse] to sell off larger and larger chunks [of the liberties that make us] what we are in a transparently masked attempt to make those attacks go away. For, as we will hopefully never have to learn from firsthand experience, not even a locked-down police state is totally immune to such attacks; not even a regime of state terror is an ironclad guarantee against terror from outside the state. (14) Call this the strategy of legalistic tough-talk: While it has substantial merit, how likely is it that future presidents will actually take this path?

   Anything is possible, but all of us must keep one hard fact in mind. President Bush has already rejected the Tribe-Gudridge strategy, and he has already won in the court of public opinion. Thanks to the media's uncritical repetition of the President's rhetoric, (almost) everybody thinks it's obvious that we are in the middle of a "war on terrorism." Of course, many people disagree with the President's conduct of the "war," but leading opponents do not deny that we are fighting one. (15) It would take a lot of work for the next President to use his bully pulpit to try to persuade the American people otherwise. Professors Tribe and Gudridge refuse to recognize this painful fact. Indeed, they even suggest that, over time, the nation will be increasingly attracted to the strategy of legalistic tough-talk. (16)

   This is wishful thinking: In the absence of a new emergency framework, there is a very large risk that future presidents--Republicans and Democrats alike--will escalate war-talk in response to terrorist attacks. And over time, this rhetorical tendency will have real-world consequences. So long as the general public accepts the notion that America can make "war" on...