One of the things I most liked about the president's speech last night was to see him come closer to a definition of the enemy we are fighting:

Since the horror of 9/11, we have learned a great deal about the enemy. We have learned that they are evil and kill without mercy _ but not without purpose. We have learned that they form a global network of extremists who are driven by a perverted vision of Islam _ a totalitarian ideology that hates freedom, rejects tolerance and despises all dissent. And we have learned that their goal is to build a radical Islamic empire where women are prisoners in their homes, men are beaten for missing prayer meetings, and terrorists have a safe haven to plan and launch attacks on America and other civilized nations. The war against this enemy is more than a military conflict. It is the decisive ideological struggle of the 21st century, and the calling of our generation.

This not a war against terror any more than World War II was a war against kamikazes.

We are at war with jihadists motivated by a violent ideology based on an extremist interpretation of the Islamic faith. This enemy is decentralized and geographically dispersed around the world. Its organizations range from a fully functioning state such as Iran to small groups of individuals in American cities.

We made war against Japan, not its kamikaze pilots.

Once we allow ourselves to declare war on a technique, we open up a dangerous path, authorizing the president to lash out at amorphous threats without the need to define them.

Paradoxically, it is only our inexcusable failure to capture Osama bin Laden that permits us to ignore the danger that expansive war talk poses to our freedoms. Bin Laden allows us to put a single face on the terrorist menace and pretend that he is at the head of a well-organized war machine like that of Hitler or even Saddam Hussein.

But he isn't. Terrorism isn't the product of overweening state power, but of the unregulated marketplace.

Actually, he's complaining about the trade in weapons of mass destruction:

We are at a distinctive moment in modern history: The state is losing its monopoly over the means of mass destruction. Once this happens, it's almost impossible for government to suppress the lucrative trade completely. If the Middle East were transformed into an oasis of peace and democracy, other fringe groups would replace al-Qaeda in the marketplace for death. A tiny band of home-grown extremists blasted the Federal Building in Oklahoma City. Others will want to detonate suitcase A-bombs as they become available.

This is a very serious problem, but we make it worse by calling it war. War talk tilts the constitutional scales in favor of unilateral executive action, and against our tradition of checks and balances.

What would he call the jihadists with an A-bomb? Criminals?

I'm afraid so. That's what Ackerman calls jihadist Jose Padilla, and he warns that Padilla plus the Japanese internment precedent makes us all "potential Jose Padillas":

...a federal court of appeals upheld the president's seizure [of Padilla] as within his powers as commander-in-chief, and the Supreme Court refused to review this remarkable decision.

This gives the presidency a terrible precedent for the next Sept. 11. We all hope that this attack won't come for a long time. But the day after the next tragedy, the Padilla case will be invoked to support the president if he sweeps hundreds or thousands into military detention. After a year or two the Supreme Court may intervene on the side of freedom. But perhaps the vote will go 5-4 the wrong way.

It can't happen to me, we tell ourselves. Very few Americans have done anything to support the Islamo-fascists, whatever President Bush may mean by this dark term. But the next attack may be by home-grown terrorists. All of us are potential Jose Padillas, not a select few.

However, this does illustrate the difficulty of using the legal system to grapple with what is clearly war. Al Qaida declared war on the United States, and so have its affiliated and not-officially affiliated jihadists. Animal rights and anti-abortion groups have declared war on clinics, labs, companies, and maybe a few Wal-Mart-type industries, but that is not analogous to jihad. Right now I think the most worrisome question is how to keep open-ended definitions from creeping into what should be questions of common sense.

Let me give another example. Regular readers who know me might think I was being facetious when I said "I hope that's not a call for UN gun control" in the context of Professor Ackerman's discussion of weapons of mass destruction. They're right but wrong! As is so often the case, my facetiousness is someone else's substance. Mantra, even. From IANSA (the United Nations-gun-grab-treaty group which made headlines over the summer)

Small arms are weapons of mass destruction, killing hundreds of thousands of people around the world each year. That’s far higher than the casualty count from conventional weapons of war like tanks, bomber jets or warships.

These lethal weapons are relatively cheap, highly portable, easily concealable, long lasting, and so easy to operate that a child as young as eight years old can carry and use them. These characteristics make small arms particularly susceptible to illicit trafficking. They are often sold illegally in exchange for hard currency or goods such as diamonds, drugs, or other contraband. Estimates of the black market trade in small arms range from US$2-10 billion a year. (Emphasis added.)

This is not to say that there aren't home grown jihadists, and that they are not at war with the United States and sworn to its destruction. But just as monkey thieves are not jihadists, there is plenty of room for mischief making when terrorism becomes a political grab bag. Hell, I could imagine even crimes with zero political connections being lumped in; SWAT teams are now used for routine drug law enforcement, and war-on-terrorism rhetoric is routinely employed. (Not only are small arms WMDs, but as we all know, Philadelphia is Beirut.)

If the enemy isn't clearly defined, the definition can become the enemy.