February 11, 2006

The Metaphor War

One of the recurrent pillars of the Bush administration's defense of its various infringements on constitutionally protected corners of American life is the theory of the so-called wartime presidency. Attorney General Alberto Gonzales cited this repeatedly in his recent congressional, uh, testimony. ("Testimony" is loose here: Gonzales refused to be placed under oath — gotta wonder why, don't you? or maybe you don't — and chairman Arlen Specter let him get away with it, over the thank-god objections of Russell Feingold, hereafter known as The Last Real Senator.)

This will be short and not all that sweet, because it's incredibly simple. Ladies and gentlemen, we are not at war. Officially speaking, that is. Legally speaking, that is. And in this context, legality is everything.

The constitution is abundantly clear on this: Congress — and only Congress — has the authority to declare war for the United States. The president cannot do it. The president can ask congress for a declaration of war, but he cannot produce one himself. Article I, Section 8 makes this plain. (It also makes plain Congress's prerogative to "make rules concerning capture on Land and Water," which leads me to wonder if maybe the administration's copy of the constitution left Section 8 out.)

Congress has not declared war. Congress has authorized the use of military force. But it has not declared war. Not on Afghanistan, not on Iraq. Until Congress declares it, the United States is not, officially, legally, at war.

And yet war is the talk of our lives. For more than four years — since 9/11, of course — we have felt as though, and talked as though, and in many cases acted as though, we are at war. American troops are deployed overseas (and redeployed, and redeployed again) for months at a time; they are fighting, they are wounded and dying. This is not imagination. There are well-organized entities who wish our citizenry harm. They have done our citizenry harm, and promise to do it again. In at least one case, they have declared war on us, as officially as they can. "Wartime" has entered common parlance as a way of describing the era we live in, especially among those of us in major urban concentrations: the coded alerts, the daily security shakedowns, the jolts of fear we feel in certain unavoidable circumstances: planes; subways; ferries; crowded streets near international icons. We think less in terms of whether than in terms of when. And in all likelihood we are right: we don't know what will happen, but the chances are grimly strong that something will — and that when it does it will be devastating.

War, in this context, is relevant to our contemporary understanding of ourselves. It is one of the dominant metaphors of our time, our state of mind. But it remains, in one sense, only that: a metaphor. It may be accurate; it may be defining; but it is still only that — legally. Which is to say that, legally, it has no standing.

So when the President, or the Vice President, or the Attorney General talk about the powers of a wartime president — and particularly when they talk about it in the context of justifying violations of existing US statutes, let alone Constitutional provisions — keep in mind that these words refer to nothing legally relevant. The President could, of course, ask Congress for a declaration of war, if he wished. I don't know why he hasn't. I can guess — I can imagine, for example, that it has something to do with his inability to persuade Congress (and the American people) that the stakes were high enough, the evidence confident enough, the provocation immediate and grave enough to justify such a profound course, at least in Iraq. But that's speculation. It carries no legal weight. What does carry legal weight is that he never did ask. And not having asked, he never received. And having never received, he is not entitled to claim any privileges or powers that might have accrued — might — if he had.

Remind your Congresspeople of this. Remind them that it makes no difference what the Attorney General says when the Constitution has already decided. Remind them that there is a reason the Constitution vests them with this authority, which is that the founders felt a nation such as ours should only be moved to war as a last resort, after vigorous and searching debate. Remind them that we never had that vigorous and searching debate. Remind them that it may well be time we did, but that in the meanwhile the President cannot claim a legal authority based on a state that does not legally exist.

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