Compared with a law-and-order response to 9/11, President Bush's prosecution of the war on terrorism by executive fiat is the weaker of the two.
A legal response would have been nurtured by the law. In turn, it would have built into the system of law a bulwark against terrorism that would endure beyond any presidency and that would have inherent legitimacy here and abroad. Such a bulwark would have benefited from the slow but relentless accumulation of wisdom that is a hallmark of our legal system.
Bush's war by fiat, or dictatorial war, is not nurtured by the law, but constantly threatened by it. It has already been slapped down by the courts in more than one place. Those components which have not been abandoned because of too much legal scrutiny, are in danger of being wholly dismantled by it at any time. If we have a new president in 2008 who is not attached to the policy, we are likely to see its total collapse. If the new president remains attached to the policy we will still see it erode towards utter uselessness.
Because Bush's policy is illegal in many parts, because it scorns legal responses to terrorism, it has not nurtured growth in the law towards fighting terrorism. The opposite is true. Suspects that emerge from Bush's system are all but impossible to prosecute because of illegal detentions, lack of a chain of evidence, insufficient evidence, evidence tainted by torture, withholding of evidence for security reasons, partly to protect sources but also partly to protect the system from legal danger, and years wasted while the cases go cold.
Bush's reflexive secrecy, along with the dictatorial nature of the policy, stunt the accumulation of wisdom. Very few people have enough knowledge of the policies to offer constructive criticism. Since Bush has full control over it, his system will only benefit from what little wisdom comes its way if Bush manages to absorb it.