Bruce Ackerman, This is Not a War, 113 YALE L.J. 1871 (2004).
There is something about the presidency that loves war-talk. The only alternative to war, President Bush suggests, is to "view terrorism more as a
crime, a problem to be solved mainly with law enforcement and
indictments." So far as he is concerned, September 11 demonstrated the
futility of "serv[ing] our enemies with legal papers." I want to prevent this rhetorical slide to war by creating a third
framework that disrupts the President’s false dichotomy: This is not a war,
but a state of emergency.
In their thoughtful essays, David Cole and the team of Laurence Tribe
and Patrick Gudridge point to many problems and imponderables raised by
my proposal--and they are right to be skeptical. They prefer to rely on
courts as our one great bulwark against the presidential war-dynamic, but
they are perfectly aware of the dangers involved. They simply prefer the devils they know to the devils they imagine--and who can doubt the
attractions of this familiar conservatism?
And yet there are times when we best conserve our basic values
through creative acts of reform. The big question is not whether we should
displace courts entirely, but whether we can build a new emergency regime
in which courts, presidents, and legislatures interact with one another in
ways that are superior to traditional forms that put the overwhelming
weight on judges. My answer begins by emphasizing one large limitation of my
commentators’ court--centered approach: While judges may (or may not)
defend individual rights, courts definitely won’t constrain the larger dangers
involved in the prevailing war-talk.