The War Power and Its Limits

On March 20, 2003, the day after President George W. Bush initiated the war against Iraq, the following exchange occurred between a reporter and White House Press Secretary Ari Fleischer: "QUESTIONER: Could you amplify a little bit on how the president is mobilizing the powers of his office for war? MR. FLEISCHER: I think if you were to put that question to the president, what he would tell you is, unfortunately, since September the llth of 2001, this has been a wartime presidency. The fact of the matter is that ... the war on terrorism began September 11th, with the attack on our country. And then the president has, unfortunately, been in the position of authorizing the use of force to protect our country in the actions against the Taliban and the al Qaeda. This (the war against Iraq) is a continuation in many ways of that effort, because at its core, the president's concern is protecting the American people from the Iraqi regime's possession of biological or chemical weapons, which they could pass on to terrorists, who, if they could, would use them against us in our country.... So, that is the president's approach to this" (Fleischer, 2003). Fleischer's description of President George W. Bush's approach to the war on terrorism is deadly accurate. In the past two years, the president has never tired of noting how his worldview changed after the terrorist attacks of September 1lth, and how that event galvanized his will in a single-minded and dramatic way. It prompted him to focus his presidency on the urgent and unparalleled need to protect the physical integrity of the nation from any future attacks. By characterizing the September 2001 attacks as "acts of war," where war had been declared upon the U.S. by Al Qaeda terrorists, he termed himself a "wartime president," and looked to the authority that flows to presidents during such periods (Von Drehle 2003, A22). In defining that war as a "continuing threat," he set in place a network of laws and policies of expansive scope and uncertain duration. Unlike previous wars that ended with a definitive peace agreement or treaty or surrender, the war against terrorism is not likely to correspond to such definable finality. Moreover, because, in large part, the broadest sweep of these policies applies domestically, there is a magnified concern for any appreciable lack of limits. Wartime is not kind to liberties, and restrictions on personal freedom for reasons of national security have a notorious reputation for overstaying their welcome, long past the termination of the crisis. When that termination itself is unclear, these risks to liberty become even greater. President Bush also never refrains from reminding his audiences that "It's a different kind of war. It's a war that is not measured by the destruction of tanks, or ships, or aircraft, because we're fighting a different kind of enemy. This is a war that is measured in terms of killers caught" (Republican Governors Association 2002). That mixture of metaphors--"war," on the one hand, "killers," on the other--speaks volumes to the duality of the way this effort has unfolded (Roth 2002). More than just the correct metaphor is at stake here, for there are very real distinctions as to how a government conducts itself, depending on whether it engages in a war under the jurisdiction of the military, or in criminal prosecutions within the judicial system. In fact, the Bush administration has pursued both in its efforts to uproot and eradicate international terrorism, and has fused the two into what might be termed the "militarization of law enforcement," with the "war" on terrorism furnishing the predicate for both military action abroad and aggressive prosecution of terrorist suspects at home. Introduction All presidents view their responsibility to protect their citizens and their nation from hostile attack as the most solemn duty of the office. Nothing matters more than this profound obligation. …