A War Without War

A Tiny Revolution has this interesting post. It points out that at the Senate Judiciary Committee last week, Alberto Gonzalez appeared to argue both (a) that Bush can ignore a statute because of his inherent authority as a wartime president, and that (b) "we are not at war," and hence, can avoid applying various restrictions and treaty obligations that are part of the laws of war. To paraphrase Robespierre, they want a war without a war. Now, one might say that this kind of legal confusion is an inevitable byproduct of a war against an abstract idea or mental state such as terror. But the curious war without a war paradox also expresses something essential about our developing constitutional regime of emergency powers: an existential logic of national survival extended to the most mundane threat, a normalization of emergency powers, a near-permanent state of international intervention and belligerent occupation that has not violated the Congressional war powers so much as rendered it archaic. After all, aside from the first Gulf War, the last time Congress unambiguously declared war was WWII. The truth is, we’ve been through many wars without being at war, and Gonzalez’s skewed logic reflects this disturbing fact.