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Don’t Call It War

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The problem with the war against terrorism may be ex­actly that: It’s being treated as a war.

That concern was expressed by several international law experts speaking on a panel in August during the ABA Annual Meeting in Chicago. The program, sponsored by the Section of Individual Rights and Responsibilities, assessed whether current strategies for fighting terrorism are compatible with civil liberties principles under U.S. and international law.

The Bush administration views the struggle against terrorism as a global war, said Suzanne Spaulding, a managing director at the Harbour Group in Washington, D.C., and a past chair of the ABA Standing Committee on Law and National Security. “This view has very strong legal implications,” she said. “It’s a very expansive view of the president’s commander-in-chief authority.” Typically during wartime, she noted, “the executive’s power is at its greatest, unreviewable by the courts and unencumbered by Congress.”

It is not surprising for a president to take that kind of stance in a war environment, Spaulding said, “but this is a war that could last beyond our lifetimes, and we have to consider the implications of that.”

Rhetoric of War

So far, suggested Spaulding and other speakers, the implications are cause for concern here and abroad.

The administration’s war footing has compromised the separation-of-powers principle in a way that “may be unprecedented in American history,” said Geoffrey R. Stone, a law professor at the University of Chicago. “I don’t use the definition of Gestapo-like activity lightly,” he said, but the U.S. government claim to the power to detain citizens suspected of terrorist activities with minimal due process “defines Gestapo-like activities.”

The rhetoric of war also feeds into the fears and paranoia of the public, which in turn tends to weaken opposition to measures that compromise legal principles, said Elisa Massimino, director of the Washington, D.C., office of Human Rights First (formerly the Lawyers Committee for Human Rights).

On the international front, compromising rule-of-law principles through policies on such issues as detention and torture undercuts support for U.S. efforts against terrorism, speakers said.

The U.S. government has addressed terrorism as a military matter, but it has given little thought to responding to its root causes in various regions, said M. Cherif Bassiouni, president of the International Human Rights Law Institute at DePaul University in Chicago. As a result, some U.S. policy actions may have a counterproductive effect of increasing popular support for terrorist causes in key flashpoint regions, said Bassiouni and other speakers.

“We ourselves have to show we are committed to the rule of law and the democracy in which we are so privileged to live,” said John Norton Moore, director of the Center for National Security Law at the University of Virginia School of Law in Charlottesville. Like Spaulding, he is a past chair of the Committee on Law and National Security.

Massimino said both the courts and some members of Congress have begun to assert that fighting terrorism “is not a blank check for executive powers.” These issues are likely to be debated more widely this fall as Congress considers whether to extend provisions of the USA Patriot Act. Many key elements in the act passed by Congress following the 2001 terrorist attacks contain sunset provisions, but the Bush administration supports making many of them permanent.

As the debate continues, said Yale Law School dean Harold Hongju Koh, the toughest question may be, “How do we fight a war against terrorism without changing who we are?”

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