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New Yale Scholarship: This is Not a War
Posted by James Grimmelmann on Friday, August 13 @ 00:40:00 EDT Scholarship
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.

 
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