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Jewish World Review Dec. 4, 2001 / 19 Kislev, 5762

Robert W. Tracinski

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Consumer Reports

War powers without war -- THERE has been much talk recently about using lawsuits or congressional hearings to challenge the expansion of presidential power since Sept. 11. Immediate congressional action on this issue is crucially important -- not to revoke these powers, which are mostly justified, but to take the one action necessary to ensure that they will be limited and temporary.

The keystone of the administration's new powers is its policy of using military tribunals to try captured Taliban and al Qaeda fighters, as well as non-citizens in America who are suspected of terrorist activity. These military tribunals will lack many of the procedures of a normal criminal court, requiring a lower standard of proof and relying on secret evidence to avoid revealing intelligence sources. The president will have sole discretion to determine which suspects are tried in these special tribunals.

The administration has also acquired the power to detain immigrants indefinitely. It has exercised much greater secrecy and sought to limit intelligence briefings to Congress. And, in a possible reversal of long-standing rules, the Pentagon is seeking to create a "homeland command" to coordinate military actions within our own borders.

There is a good argument in favor of all of these measures. They are all necessary and appropriate in time of war. The commander in chief must have the authority to act decisively. Greater secrecy is needed to save the lives of soldiers and to protect vital intelligence sources. War is not a legal proceeding, and the protections afforded to our own citizens in our own courts should not apply to the enemy and his agents in time of war. The only legal procedure necessary to execute a captured Taliban leader, for example, is to establish his identity and then put him before a firing squad.

All of these expanded government powers are justified as special emergency measures during wartime. But that is precisely the problem. The nation is not at war -- not officially.

President Bush has refused to ask for a declaration of war, and Congress has allowed him to prosecute the war without declaring it. The result: the chief executive is busy acquiring extraordinary wartime powers -- while the nation is officially at peace.

Part of the purpose of a declaration of war is to recognize the existence of a temporary national emergency. Its purpose is to define the terms under which the government may take on temporary emergency powers -- and thereby ensure that those powers will in fact be temporary. The power of government always tends to expand during wartime, sometimes legitimately, sometimes not; during World War II, for example, FDR imposed a de facto economic dictatorship. But this wartime expansion of government is always mitigated by the fact that it is explicitly temporary, that it is justified only "for the duration." When the war is over, the president's extraordinary powers are revoked -- and the people can then demand that government be limited once again to its ordinary powers.

The adoption of such measures when the country is not officially, legally at war, is much more dangerous. Without a declaration of war, they are not temporary emergency measures, but a permanent change in the powers of government.

Even more ominous is the argument the administration uses to justify its imposition of military tribunals and arbitrary detention of immigrants. These actions are not violations of the Constitution, they argue, because the Constitution applies only to U.S. citizens. This is an expression of a legal philosophy, widely accepted on both the left and the right, which holds that we do not possess our rights by our nature as human beings -- that rights are instead granted to us by a social consensus. In this view, if the Constitution is silent about a given person's rights, then he has no rights -- and the government may dispose of him as it wishes. This philosophy, more than anything else, threatens to take these quasi-wartime alterations of our civil liberties and make them into permanent fixtures of peacetime American government.

There are many reasons why we should demand that Congress declare war, including the need to give our war policy a more definite shape, naming the specific enemies to be attacked. Just as important, a declaration of war would ensure that the extraordinary powers exercised by the chief executive will be granted only for the duration. A declaration of war is our best guarantee that we will be able to restrain government and reclaim our full legal rights when the war is over.

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