With the detention of Jose Padilla (aka Abdullah al‐Mujahir), the Bush administration has made an extraordinary assertion of power. It is sweeping and unnerving. The administration contends that, by merely designating a person as an “enemy combatant,” the government can hold him in prison without according him a trial. Indeed, the government does not have to charge him with any criminal offense, much less present evidence of an offense. That is true even if the person in question is an American citizen and is apprehended on American soil.
Civil libertarians are justifiably alarmed at such an ominous shadow over the constitutional rights of all Americans. But there is another aspect that has received less attention even though it is equally alarming. It is a truism that civil liberties have suffered in most of America’s wars. But in all of those earlier episodes there was a certainty that the conflict would end someday. A peace treaty would be signed, or the enemy country would either surrender or be conquered. In other words, America would someday return to normal and civil liberties would be restored and repaired.
The war against terrorism is different. Because the struggle is against a shadowy network of adversaries rather than a nation state, it is virtually impossible even to speculate when it might end. President Bush’s initial comment that it might last “a year or two” was long ago consigned to the discard pile.
Indeed, it is not clear how victory itself would be defined. Even if the war is confined to combating al‐Qaeda, there is no way to confirm at any point that the organization’s operatives have been neutralized. The concept of victory becomes more elusive if the goal is the eradication of all terrorism from the planet, as administration officials have sometimes hinted. That is a guaranteed blueprint for perpetual war.
Nor would the mere prolonged absence of attacks on American targets be definitive evidence of victory. How long a period of quiescence would be enough? A year? Five years? Ten years? The reality is that no president would want to risk proclaiming victory in the war on terrorism only to have another terrorist attack occur on his watch. The political consequences of such a gaffe would be dire indeed. (For similar reasons, the color‐coded warning system adopted by the Office of Homeland Security will likely never go below yellow). The safe political course would be always to emphasize the need for continuing struggle and vigilance.
In short, America is now waging a permanent war. That reality makes civil liberties considerations even more important than in previous conflicts. Whatever constitutional rights are taken from us (or that we choose to relinquish) will not be restored after a few years. In all likelihood, they will be gone forever.
We therefore need to ask whether we want to give not only the current president but also his unknown successors in the decades to come the awesome power that President Bush has claimed. It is chilling to realize that the president is insisting that all he must do is invoke the magical incantation “enemy combatant” and an American citizen can be stripped of his most fundamental constitutional rights without any meaningful scrutiny by the judicial branch. A place where that is possible is not the America we have known. It is not an America that we should want to know.