David Friedman, in “When Is a War Not a War?,” writes:

The problem is that the “War on Terror” is at least in part a metaphor. It is in some ways more like the War on Drugs or the War on Poverty, a project given emotional force by analogizing it to a military conflict, than it is like WW II or the Korean War.

Suppose the President declared a War on Crime–as, for all I know, some President at some point has. Is he then entitled to arrest people he claims are criminals and hold them without trial for an indefinite period of time–as prisoners of war?

The analogy is not perfect. The attack on the World Trade Center was more like an act of war than it was like a bank robbery. But it was less like an act of war than the Pearl Harbor attack was, not only because the targets were not primarily military but because the attackers were not agents of a hostile state. The War on Terror is not as metaphorical as the War on Drugs. But it fits the pattern of war as usually and literally understood poorly enough to make a policy of taking people prisoners and holding them without trial until the war is over at best problematical.

Friedman tries to equate war-fighting and crime-fighting by relying on the surface similarity between the phrases “war on terror” and “war on crime.” But a war on crime, if such there were such a thing, would exercise an entirely separate and distinct aspect of the president’s constitutional authority than does the War on Terror. The president cannot, under the rubric of a war on crime, “arrest people he claims are criminals and hold them without trial for an indefinite period of time–as prisoners of war.” A president might well announce a war on crime,” but it would not be a war (in the constitutional sense), it would an exercise of executive authority conducted by the non-military apparatus of government within constitutional bounds, that is, respecting Amendments I, II, IV, V, VI, and VIII of the Bill of Rights. The Framers of the Constitution understood the difference between war and crime (even if Friedman does not), and did a very nice job of distinguishing them in the Constitution.

The War on Terror is a real war, given that its components (e.g., operations in Afghanistan and Iraq, clandestine operations elsewhere overseas) are conducted under authority granted by Congress (i.e., the functional equivalent of a declaration of war). The president, as long as he acts under that authority — and as long as the U.S. Supreme Court sides with his interpretation of that authority — is conducting a war, not fighting crime.

The president’s authority to conduct the various components of the War on Terror was granted as a result of the attack on the World Trade Center. Friedman is playing word games when he suggests that that attack “was less like an act of war than the attack on Pearl Harbor, not only because the targets were not primarily military but because the attackers were not agents of a hostile state.” Since when do attacks on civilians not count as acts of war? (The dropping of A-bombs on Hiroshima and Nagasaki, for example were ultimate acts of war, aimed at forcing Japan’s surrender.) Since when do anarcho-libertarians (as is Friedman) view acts by non-state entities as somehow lacking authority because they were not explicitly authorized by a state (as far as we know). Is cold-blooded murder somehow less of a crime if it is committed by an anarchist gypsy, as opposed to a fascist functionary, for example?

Friedman seems dismayed by the prospect of enemy combatants being held indefinitely because there might be no end to the War on Terror. But why the dismay, if they are enemies? Friedman would answer: Because they have not been tried and found to be enemies. Friedman (along with his fellow anarchos and the anti-war Left) argues from one erroneous premise (the War on Terror isn’t really a war) to another (therefore, it must be an exercise in criminal justice), in order to reach a desired conclusion (prisoners in the War on Terror are entitled to the protections of the Bill of Rights). This they do, even though those prisoners are enemies who would spit on the Bill of Rights.

What to do about those enemy combatants who might be held indefinitely? My take: If military necessity dictates indefinite detention, so be it. The alternative? Take no prisoners.

War and justice are two different things, as the Framers wisely understood, and as Friedman — and his fellow anarchos and their brethren on the Left — cannot seem to understand. Wars are fought to protect the rights of U.S. citizens, not to strengthen our enemies in their quest to harm U.S. citizens and their legitimate economic interests.

We do not live in “one world.” And even if everyone in the world were endowed with equal rights (a concept that I reject), no one would be entitled to attack what we in the U.S. enjoy. To rephrase what I wrote here,

the sovereignty of the United States is inseparable from the benefits afforded Americans by the U.S. Constitution, most notably the enjoyment of civil liberties, the blessings of more-or-less free markets and free trade, and the protections of a common defense. To cede sovereignty — by allowing other nations a say in our laws or by treating our enemies as equals under the Constitution — is to risk the loss of the benefits we derive from the Constitution. That is why we must always be cautious in our commitments to international organizations and laws, and resist the temptation to treat enemies as if they were entitled to the very benefits they would deny us.

“War” is not “justice”; “nationalism” is not a dirty word.