War Powers in the War on Terror

RealClearPolitics carries an excellent challenge, by Jonathan Rauch at the Atlantic, to President Bush's use of emergency powers:

"The question history will ask is whether Bush's presidency was as bad as Richard Nixon's or only as bad as Jimmy Carter's ... If the country seriously intends to prevent terrorism, then spying at home, detaining terror suspects, and conducting tough interrogations are practices that the government will need to engage in for many years to come. Instead of making proper legal provisions for those practices, Bush has run the war against jihadism out of his back pocket, as a permanent state of emergency. He engages in legal ad-hockery and trickery, treats Congress as a nuisance rather than a partner, and circumvents outmoded laws and treaties when he should be creating new ones. Of all Bush's failings, his refusal to build durable underpinnings for what promises to be a long struggle is the most surprising, the most gratuitous, and potentially the most damaging, both to the sustainability of the antiterrorism effort and to the constitutional order. "

The idea of using war powers in a war that is open ended has to be concerning. A large part of the sensible case for the defence of Guantanamo and changes in intelligence gathering is that this is not a normal war with normal opposition, hence the inapplicability of Geneva and other war time legality. That must also imply that it will require different legal treatment in terms of war powers.

Refusing to grant Geneva protections to those captured in Afghanistan is not a piece of legal trickery. Geneva protections are reciprocal and conditional rights that are given to those who abide by the rules of war. Armies must be organised, wear uniforms to distinguish them from the civilian population etc. In return for these behaviours, which decrease the civilian cost of war, they are granted quite generous rights in the event of being captured.

Equally, there is no need for the trial of prisoners of war. They will be returned at the end of the conflict. With an open ended war such an arrangement is clearly a recipe for indefinite imprisonment. Were the Geneva protections applied to those in Guantanamo it would not bring them closer to release or trial. As such, the proper solution is some new arrangement. Guantanamo is a questionable arrangement as it does not properly put a timeframe on detention but it is confronting a genuine question.

Here lies the comparison to the war powers. Emergency powers for the President in war time are granted on the understanding that wars have definite points of beginning and end. If these are not in place then such powers are simply an indefinite extension of executive power which they were not intended to constitute.

As such, Guantanamo is a flawed solution to the need for new arrangements to deal with a new kind of war. By contrast, the changing nature of war has simply been ignored in the Bush administration's approach to the use of war powers.