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January 29, 2006

The "war on terror" isn't even a war

Where does the War on Terror rank amongst the other great wars of American history?

I think Ezra is making a serious framing error when he uses the foregoing question to introduce this excellent New York Times editorial by history professor Joseph Ellis.

Ellis is asking how grave a threat to national security terrorism is compared to other crises during which the government has evoked special powers:

My first question: where does Sept. 11 rank in the grand sweep of American history as a threat to national security? By my calculations it does not make the top tier of the list, which requires the threat to pose a serious challenge to the survival of the American republic.

Here is my version of the top tier: the War for Independence, where defeat meant no United States of America; the War of 1812, when the national capital was burned to the ground; the Civil War, which threatened the survival of the Union; World War II, which represented a totalitarian threat to democracy and capitalism; the cold war, most specifically the Cuban missile crisis of 1962, which made nuclear annihilation a distinct possibility.

Sept. 11 does not rise to that level of threat because, while it places lives and lifestyles at risk, it does not threaten the survival of the American republic, even though the terrorists would like us to believe so. [NYT]

I agree with Ellis's overall assessment: the threat of terrorist attacks isn't that big a deal compared to many of the other national security crises that the U.S. has endured during the course of its history.

However, the most important question is not the threat level, per se, but whether we are at war. If we are indeed at war, the state has a qualitatively different set of options, regardless the risks involved.

The Bush administration is trying to justify extraordinary expansion of executive power not only because terrorists might hurt us (like hurricanes, or bird flu), but because we are literally at war.

War powers aren't justified simply as a function of the threat posed by the enemy. A war fought for convenience, greed, or strategic gain is just as much a candidate for war powers as a war fought to defend against a threat to American citizens or their Republic. A war isn't just a cause, it's a project. War powers are tools for doing a job, irrespective of the reasons for embarking on the endeavor in the first place.

The fact is that we're not at war on terrorism, let alone against terror. Terrorism is a strategy. Actually, it's a normative assessment of a family of tactics. In the current climate "terrorism" refers to any political violence the speaker doesn't like.

We aren't at war with terrorism and we never have been. We were at war with Iraq, and now we're fighting the Iraqi insurgency.

Sure, we're engaged in a global struggle against terrorism by Islamic extremists. ("GSAVE" is much closer to the truth that "GWOT".) But we can't even declare war on Al Qaeda, though the use of force against them has been authorized. We can't declare war against Al Qaeda for the same reason that we can't declare war against Columbia drug cartel or the mafia. These groups, however nefarious, aren't states. If we were to destroy these organizations, new groups with the same mission would take their place.

War is a metaphor for any all-out struggle against a serious problem: poverty, cancer, drugs, terrorism... Sometimes we use military hardware and tactics to further that struggle. Sometimes we even fight real wars as part of our strategy.

The idea that the so-called war on terror justifies dramatic expansion of presidential power is extremely dangerous. Terrorism is never going to go away. If we accept that we are literally at war with terror, we are signing on to perpetual war for perpetual peace.

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One of the reasons why pro-war and anti-war folks have trouble communicating rationally is that the pro-war folks really do think we are at war, but they will not precisely define the entity with which we are warring. It's certainly not "terror," but closer to "radical Islam," although the word "radical" takes a variety of meanings. They believe we are engaged in a world-historical clash of civilizations, with the democratic West on one side and repressive Muslim world on the other. So they can justify invading Iraq by pointing out that we were attacked first. Drawing a distinction between a secular fascist state and a theocratic jihadist terror organization is, in their view, missing the forest for the trees -- they are all part of the enemy.

The Global War on Terror is a clear and present threat to the Constitution and thus the American republic. The terrorists are merely criminals and a police matter.

Well, that's just the point, it's not a war at all.

Or it shouldn't be seen as one.

Osama & al-Qaida are a bunch of stateless thugs to begin with.

Wars are, by definition, something that happens between states, and our whole approach to dealing with this would work much better if we looked at it as lawlessness, rather than a strategic perspective.

I know a lot of this comes down to the amazing incompetence of the Bush administration, but, since 9/11, we have prosecuted two, TWO, al-Qaida connected individuals (Padilla & Mousoui). Spain has prosecuted, on average, two per MONTH.

Spain.

Germany has recently rounded up 2 dozen.

Prosecutions in Great Britain are about on that pace.

Our whole approach to this has been wrong from the get-go. It's like trying to stop a patient from bleeding by hitting them repeatedly with a bat.

There's also larger issue at play here that I think is endemic to, and points out the almost steady decline of America as a viable world power.

60 years ago this country took on, and decisively defeated, not only the Empire of Japan, but the might of Nazi Germany, all the while keeping a production based economy humming along at a phenomenal rate as well as accomplishing tasks like developing the atomic bomb from scratch.

Now, we can't even dig a low rent thug out of a cave while preventing our own citizens from drowning in a storm we saw coming.

We were once a global colossus that would have flicked away something like al-Qaida the way Joe DiMaggio took care of a fat pitch.

Now we are feeble, both in mind and in body.

I think that the crux of the problem is that we don't really have an analytic category for struggles against non-state security threats on this scale, so people use "war" because it's the only category that, to them, seems to convey the gravity of the undertaking. Someone should invent a new word.

Sometimes, I really can't grasp what the wackos are thinking when they are declaring 'clash of civilizations.'

seriously now. The closest thing these people come to 'clash of anything' is shooting empty can or be a weekend warrior. I bet they scared shit when tossed into spanish Harlem at 11 pm alone. Nevrmind doing actual 'clash of civilization' in inner city of Cairo, Lagos or Islamabad where the 'real' clash of ideas are being done.

those are the places where modern state fails and religios anarchism starts.

Someody really should close down FoxNews, that channel is truely making those over caffeinated rednecks become delusional.

The “war on terror” is more than just a faux war, it is an attempt to change the form of government to a totalitarian state with and all powerful executive branch, where the President is above the law and the constitutionally mandated “checks and balances” of our government.

This what is behind the nomination of the Alito for the Supreme Court and why every American should contact their Senators to support a filibuster at:

http://www.savethecourt.org/site/c.mwK0JbNTJrF/b.849267/k.CC39/Home.htm

At first I watched a lot of the hearings and I was not that opposed to Alito. But then I heard that he was a staunch advocate or what is known as the “Unitary Executive” theory when I was answering one of the trolls who comes on to this site.

It states that the President is above the laws and congressional restrictions on our government and it was the legal opinions of John Yoo, another advocate of this theory that the President used to justify torture and wiretapping of US citizens.

This is David Cole’s, a constitutional law scholar of great repute:

“Few lawyers have had more influence on President Bush's legal policies in the "war on terror" than John Yoo. This is a remarkable feat, because Yoo was not a cabinet official, not a White House lawyer, and not even a senior officer within the Justice Department. He was merely a mid-level attorney in the Justice Department's Office of Legal Counsel with little supervisory authority and no power to enforce laws. Yet by all accounts, Yoo had a hand in virtually every major legal decision involving the US response to the attacks of September 11, and at every point, so far as we know, his advice was virtually always the same— the president can do whatever the president wants.

Yoo's most famous piece of advice was in an August 2002 memorandum stating that the president cannot constitutionally be barred from ordering torture in wartime—even though the United States has signed and ratified a treaty absolutely forbidding torture under all circumstances, and even though Congress has passed a law pursuant to that treaty, which without any exceptions prohibits torture. Yoo reasoned that because the Constitution makes the president the "Commander-in-Chief," no law can restrict the actions he may take in pursuit of war. On this reasoning, the president would be entitled by the Constitution to resort to genocide if he wished.”

http://www.nybooks.com/articles/18431?email

David Cole is a Constitutional law scholar and the article is worth a read and the petition is definitely worth signing. If you really want a free democratic republic to endure you should contact your senators tomorrow.

Twenty five words or less. That's it. Takes more? You lose.

How's about... bite me razor!

That's under 25 words no?

Flint.
Quaint, clever, original. But, not to the point.

"The idea that the so-called war on terror justifies dramatic expansion of presidential power is extremely dangerous. Terrorism is never going to go away. If we accept that we are literally at war with terror, we are signing on to perpetual war for perpetual peace."

That there is 100% correct...

This what is behind the nomination of the Alito for the Supreme Court and why every American should contact their Senators to support a filibuster

Alito's support of the Unitary Executive is a reason to oppose his nomination because it shows how extreme his views are. I'm not convinced that it's relevant to the illegal spying stuff.

How would the SCOTUS become involved in the first place? I believe there are several lawsuits alleging violations of rights. But even if SCOTUS rules the spying illegal, Bush can argue (as he essentially has) that his executive powers override questions of legality.

My understanding is that the ONLY legal remedy to presedential misdeeds is impeachment. This is actually proper--as presidential appointees, SCOTUS is not the approproate oversight body for the president.

However, should a CRIMINAL trial find it's way to SCOTUS regarding whether a certain former president committed the crime of ordering illegal spying, well, it might help to have a friendly face before you. (Remember they wanted Harriet Myers first).

My understanding is that the ONLY legal remedy to presedential misdeeds is impeachment. This is actually proper--as presidential appointees, SCOTUS is not the approproate oversight body for the president.

This is not accurate. SCOTUS tells the executive what to do all the time, and the number of times the executive has directly violated a court order is relatively low.

Oh, my. Well said. Linked you.

“Alito's support of the Unitary Executive is a reason to oppose his nomination because it shows how extreme his views are. I'm not convinced that it's relevant to the illegal spying stuff.

How would the SCOTUS become involved in the first place? I believe there are several lawsuits alleging violations of rights. But even if SCOTUS rules the spying illegal, Bush can argue (as he essentially has) that his executive powers override questions of legality.”
- Trystero

The “Keith” decision. The Supreme Court ruled that Nixon’s warrantless wiretapping domestically during his “cointelpro” episodes were “unconstitutional”, violated citizens Fourth Amendment protections against unreasonable search and seizure and were therefore… illegal.

The Supreme Court is the last word in interpretation of what the Constitution actually means and what is or is not legal. This was article II in the Impeachment charges against Nixon.

Keith decision
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=407&invol=297

Nixon’s Impeachement Articles
http://watergate.info/impeachment/impeachment-articles.shtml

The last part of your question is that the President’s executive powers are not “unlimited.” They must derive from the Constitution and must observe constitutionally derived laws and statues.

Again this is determined by the Supreme Court and the specific case that dealt with this was:
YOUNGSTOWN CO. v. SAWYER, 343 U.S. 579 (1952)
Where President Truman seized a steel mill during the Korean war and said that his Executive powers gave him the power to do it in accordance with Articles I & II. The Supreme Court said the extent of your powers must be derived from the Constitution and that ain’t in there and Congress had statutes on the books that he bypassed to do it.

In short the “Unitary Executive” theory says the President is all powerful in the same manner that a king is above the law. It violates the separation of powers and all the Checks and Balances in our system of government. John Yoo was the one who wrote the memo for the justice department that said essentially “if the President does it… its illegal”, which is the same thing Nixon said and it got him Impeached.


This is an excellent article that explains what the two men did and what happened to Nixon and why Bush should be impeached as well

He also mentions John Yoo as well...

George W. Bush as the New Richard M. Nixon: Both Wiretapped Illegally, and Impeachably;
Both Claimed That a President May Violate Congress' Laws to Protect National Security

By JOHN W. DEAN (former White House counsel to Nixon)


http://writ.news.findlaw.com/dean/20051230.html

Flint, I think we're mostly on the same page. I agree with you that the Unitary Executive theory is countered by precedent. But (part of) my point is supported by the fact that Nixon was going to be impeached. Therefore the remedy for an out-of-controll president is impeachment, not a SCOTUS decision. The cases you cite were used (as I understand from your comment) in support of impeachment, but I don't believe they're inherently necessary.

SCOTUS tells the executive what to do all the time, and the number of times the executive has directly violated a court order is relatively low.

But not zero, I guess. Here is what I fear: SCOTUS says "the wiretaps are illegal." Bush says "So? I have the authority to disregard laws." SCOTUS says "The constitution says you don't." Bush says "I disagree..." Under Unitary Executive theory, he may choose to ignore SCOTUS.

A constitutional crisis? Perhaps. But what remedy does SCOTUS have? Order Federal Marshals (who work for Gonzales) to arrest Bush? I think even the most friendly (to us) SCOTUS would refer the matter to congress.

Not zero, but close. The court has the power to issue an injunction (or an order instructing a lower court to issue an injunction - whatever the appropriate procedural action would be). Andrew Jackson famously ignored the court. There was thought that Nixon might ignore the court. But by and large, Presidents conform to the demands of binding injunctions nearly all the time. They may do so halfheartedly, and they may test the boundaries, but it would be a truly rare thing if Bush were to directly disobey the Supreme Court.

NONe of this matters anyway. What matters is that Motrher Sheehan is in Venezuela with heroic leader Hugo Chavez!!! Mother Sheehan has announced that she may run against Dianne Feinstein for the U.S. Senate!!! Why not President in 2008??? Oh, wait, that belongs to Sen. Clinton. My bad :)
Anyway, we must ALL support Mother Sheehan NOW! Send your contributions to her campaign fund, NOW!!!

: Trystero

The Judiciary is the weakest of the three branches of government by design. They don't control the army as the President does. They don't control the purse strings of the laws as congress does. SCOTUS is a there to render impartial judgement.

Bush can not ignore their ruling and be considered to be acting legally as President or Commander and Chief. Then it falls to Congress to remove him through the impeachment process.

The funny thing about despots though... they do like to maintain the aura of legitimacy at all costs. Even Hitler did in Germany after the “Reichstag fire emergency” and he eventually disbanded their Supreme Court and set up his own tribunals. They don’t like to appear to be military juntas even when that is exactly what they have become.

Flint--

You're correct. If the president violates a court order, the only remedy is impeachment. It didn't happen when Jackson defied the court, and public opinion would probably determine whether or not Bush stayed in office, if he were to defy the court. I'd be willing to bet he wouldn't violate a direct court order, though.

What we're seeing in the GWOT is precisely what Orwell predicted in "1984." Perpetual war, contrived in order to strengthen the police powers of the government. The worst part is, half of the country is all for it.

Bush has also violated an Federal Court order from 1976 that requires the IRS to reveal how it is enforcing their tax audits.

A Federal lawsuit has been filed to force his compliance as of two weeks ago.

This was part of Article II on Nixon's impeachment. Nixon began having audits of his political enemies which is illegal usage of the tax laws.

Time Magazine

1/24-26 11/29-12/1
Approve 41 41
Disapprove 55 53


ABC/WaPo

This was posted at Dkos in response to Chris Matthews on air claim that Bush's number are improving in the polls.

The source is:

http://www.pollingreport.com/BushJob1.htm

Time Magazine

1/23-26 1/5-8
Approve 42 46
Disapprove 56 52


Fox News

1/24-25 1/10-11
Approve 41 42
Disapprove 51 49


Cook Political Report

1/22-25 12/8-11
Approve 47 50
Disapprove 42 55


LA Times/Bloomberg

1/22-25 1/15-17
Approve 43 54
Disapprove 50 47


CBS/NYT

1/20-25 1/5-8
Approve 42 41
Disapprove 51 52


CNN/Gallup/USA Today

1/20-22 1/9-12
Approve 43 43
Disapprove 54 53


Hotline Poll

1/12-15 12/12-13
Approve 46 50
Disapprove 53 47


So, six out of the last eight polls have shown Bush heading lower. At best, Bush is treading water. So this nonsense about Bush's approval ratings going up is just that, nonsense.

Sorry about the sloppy editing in the last post

gordo...

Your comments are spot on about perpetual warefare and there's no doubt that this is why he created the "preemptive strike" doctrine. Afghanistan's war folded too soon for Cheney and Rumsfeld's liking.

This is a quote from Hitler's right hand man, Hermann Goering, explaining at his war crimes trial how easily he and his fellow Nazis hijacked Germany's democratic government.

"The people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country."

Flint--

You may remember Lindsay Graham asking Alito, "Do you think that the attacks of Sept. 11, 2001 were an act of war?"

Graham went on to walk Alito through the theme that our nation has been at war since 9/11, and Bush has had extraordinary war powers since that time. In other words, Graham and Alito (who agreed) believe that we have been in a state of what Graham calls "undeclared war" since 9/11, and Bush retains war powers regardless of the situation in Afghanistan, Iraq, or anywhere else.

Of course, in reality the people will not accept this doctrine for long if we're not actually fighting a ground war, which might be why the PNAC crowd is now pushing for war in Iran. Fortunately, cooler heads seem to have prevailed for the moment in the State Department, and they seem to be taking steps to avoid war, which is sending the neocons into a purple rage: http://www.nysun.com/article/26606

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