I finished reading Bruce Ackerman's Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism. My notes are here. The book argues for abandoning war a response to large scale terrorist attacks, and instead declaring an adjusted State of Emergency (SEM). The SEM would permit large scale violations of civil rights, but only for short periods of time on the order of 6 weeks. Congress would have to reauthorize the SEM, with escalating super majorities required to continue it.
Ackerman is correct to discard war as a paradigm, President Bush has spared no effort in demonstrating it's flaws. But Ackerman then adopts a "domestic police action" as the paradigmatic response. That paradigm acknowledges that we face a threat, but not a threat to our survival as a nation. It permits extraordinary powers of detention, but only for a short time until the immediate threat has passed.
The problem is that such an action is temporary, whether it's weeks or months the SEM ends and everything goes back to normal. How reasonable is it to expect terrorists to abandon a proven technique, especially when they see American politicians saying "no problem." Whatever rules or laws are put in place to prevent terrorism have to be permanent in order to be effective.
Ackerman dodges this by assuming attacks will be infrequent, but I think that's overly optimistic. How long would it take for another hijacking if we began allowing box cutters on airplanes and took locks off the cockpit doors? Fine you say, we'll make those rules permanent but everything else like surveillance will be temporary. But if we can afford to make a rule temporary, then it must not be preventing attacks so we don't need it at all.
Ackerman jumped on a big problem, and I give him credit for the attempt. A lot more useful then gazing at Jack Bauer's navel.