The fight against terrorism is not a war

Lee Casey, a veteran of the Reagan and first Bush Justice departments, is quoted in the WSJ (Terror War Legal Edifice Weakens) as saying the next president, whether a Republican or a Democrat, will be hard-pressed to relinquish the executive powers Mr. Bush has fought so hard to assert. "I don't think the next president will have much of a choice, whatever his or her instincts may be," Mr. Casey told the Journal. "You are either engaged in an armed conflict," where a country can use military force against its enemies, "or the laws of war don't apply."

But the laws of war don't apply to the effort to counter the scourge of terrorism. Many of us who have opposed as mistaken the "war on terror" in general -- in some cases since 9/12 -- and the invasion of Iraq in particular argue that "war" was never a useful organizing metaphor for combating terrorism. In the wake of 9/11, it would have been far more effective to treat Al-Qaeda and their ilk as international criminals instead of buying into their self-glorification as warriors. Had we spent our $billions arming and training the world's police departments instead of destabilizing great swatches of the Middle East and Southeast Asia, we'd not only be more secure, but we would have a lot more friends in the international community.

And we would not have unloosed the pernicious notion of preemptive war (if ever there was a policy guaranteed to come back to haunt us, that's it).

Undoing the mistakes of the Bush administration is obviously a herculean undertaking. But if s/he does nothing else, the next president must begin by ratcheting down the war rhetoric as a first step toward implementing a more effective policy against terrorism. If we are ever going to hunt down, disarm, prosecute, punish and neutralize the criminals who engage in terrorist activities, we need to be able to think more clearly about who they are -- murderers, extortionists, gangsters, lunatics -- and what tools -- intelligence, deterrence, incarceration -- will be most effective against them.

The Founders anticipated that there would be presidents who would overreach, who would attempt to wrest the powers of government away from legislators, but they never dreamed there would be legislatures as docious as the last several congresses. We still lack congressional leaders, especially in the Senate, with the spine to defend legislative prerogatives, but at least there is a growing perception, especially in the House, about the need to restore historical Constitutional restraints on the executive and to redress the balance of power between the branches.

The reason I worry about Hillary Clinton's candidacy is that she accepts the primacy of the executive as a given. Obviously, in a race between Sen. Clinton and Gingrich or some Thompson or other, there will be no alternative but to go all out for the Democrat. But we need to recognize that, should she win, she may be a disappointment to progressives because of her reluctance "to relinquish the executive powers Mr. Bush has fought so hard to assert."