It's Congress's War, Too

IDEA LAB: IT'S CONGRESS'S WAR, TOO, New York Times Magazine, September 3, 2006

4 Pages Posted: 4 Sep 2006 Last revised: 2 Dec 2008

See all articles by Kenneth Anderson

Kenneth Anderson

American University - Washington College of Law


Regardless of whether one believes that the war on terror should be an aggressive, forward-based, offensive war as the Bush administration does, or instead something not conceived as a war at all, as many Democrats do, it is long since time for Congress to take steps to legislate US counterterrorism policy. Only the people's representatives - the legislature - have the democratic legitimacy to establish long term counterterrorism policy. What would comprehensive counterterrorism policy look like? The issues that matter most are not technocratic ones of institutional design, important as those are - but instead values issues, America's values in the struggle against jihadist terror. They include surveillance, detention and rendition, interrogation and torture, classification of information, and the establishment of special terrorism courts. The Bush administration should mark well that what lives by executive discretion dies by executive discretion, and if the war on terror is as important as it thinks it is, it should be willing to institutionalize it through legislation.

Keywords: terror, war on terror, September 11, surveillance, FISA, interrogation, Guantanamo, torture, detention, laws of war, classified information, terrorism courts

JEL Classification: K10, K33

Suggested Citation

Anderson, Kenneth, It's Congress's War, Too. Available at SSRN:

Kenneth Anderson (Contact Author)

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

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