Virtual Movement Archive

Three years ago, as terrorists took down the World Trade Center towers, they had an impact as well on American politics. They united a nation behind what had been a disputed presidency. Tragedy sealed what the 2000 election had not accomplished. Seizing this moment, the resulting “war on terror” became the defining theme of the Bush presidency.

President Bush soon announced that the nation was in a “new kind of war.” Adopting the frame of “wartime” has had important consequences. War is often thought of as an exceptional state in American law and politics. Wartime is a time when, regrettably it is thought, the usual rules do not apply. In times of war, the saying goes, law is silent. We might debate the degree to which law really is, or should be, silent during wartime, but there is often an underlying consensus: that wartime is different, is exceptional, and that wartime is preceded and followed by periods of normality.

Throughout the twentieth century, however, the U.S. engaged regularly in overseas military conflicts, large and small. The line between “wartime” and “peacetime” is no longer a declaration of war. It is instead an act of interpretation.

Cast as acts of war, the September 11 attacks seemed to call for both a military response, and for loosening of the constraints of constitutional limits on executive power. Because of the wartime context, the Administration claimed sole power to define the lawful scope of its own action, at home and abroad. The President defined a new role for the use of American military power. Peace at home would be protected through the preemptive use of American arms in other nations. And while evidence does not support the idea that Sadam Hussein’s regime supported the Al Queda terrorists, the President doggedly defined Iraq within the scope of this new war. How and where to use the nation’s war powers was the president’s decision alone, not to be meddled with by the United Nations. At home, the war would be fought with new tools of surveillance and detention. The response to concerns about the impact on civil liberties was that the usual rules could not apply, for the nation was at war.

The U.S. Supreme Court placed a break on the president’s power to define the boundaries of his own authority. As Justice Sandra Day O’Connor put it, "a state of war is not a blank check for the president.” The Court asserted its authority to review executive action, whether within the territorial United States, or in the ambiguous zone of Guantanamo. Yet even as the Supreme Court placed limits on wartime executive power, the Court worked within the conventional framework, assuming that the nation was in an exceptional state of wartime, when the usual rules would not apply. In doing so, the Court ceded to the President the most important of all war-related powers: the power of interpretation. Even though the President can no longer claim that this new kind of war leaves him without legal restraints, there no longer seems room to question the starting point – the very idea that the “war on terrorism” is a “war” requiring expanded executive power.

In November, American voters face a responsibility of tremendous global importance. An electoral victory for President Bush would keep in his hands the troublesome tendency to find “war” in global conflicts, and would ratify his unilateral role in determining the occasions for expansion of his own power.

Mary L. Dudziak is a professor of law at the University of Southern California. Her books include September 11 in History: A Watershed Moment?