Because we're "at war"
Much of the debate currently raging about George Bush's wiretapping excesses comes quickly around to the point that our nation is "at war." During "wartime," it is argued, the President has powers that he doesn't have when there is no "war" going on.
In the mindset of the last two millennia, these arguments have strong logical appeal, and lots of precedent. But given that a whole new brand of "warfare" has now been invented and executed repeatedly against our country, I'm wondering if the old "war emergency" logic is worth relying on.
Specifically, if we are to sacrifice civil liberties now, because it's "wartime," we have a right to know when, if ever, the "war" will be considered over. The President's constant references to a "war on terror" (a word he can hardly pronounce), and lately, to "victory" in that "war," beg the question of when "victory" will be achieved.
Will it be when angry Muslims no longer desire and plan to attack American civilians with suicide bombs on U.S. soil? Is that going to be our final "victory"?
If so, then let's face it, folks, we will be "at war" forever.
A different approach to the same issue is to ask, "war" against whom? Iraq? We've already stopped fighting the government of Iraq. Indeed, now we're fully supportive of that government. Against the rebels in Iraq? Can we be "at war" with those rebelling against another country? I suppose so. But when will our "victory" against that group come? Two years after the recent Iraqi elections? Two years after the last car bombing in Iraq? Five? Ten? Will we be forever "at war" until Iraq is permanently "in peace"?
Or is our "war" being waged against terrorists generally -- unnamed individuals and groups scattered throughout the globe, including on our own soil? Can we be "at war" with people whom we cannot even name?
Only Congress has the power to declare "war." Perhaps it's time for Congress to think about rescinding whatever declaration of "war" currently exists, if only for the purpose of salvaging the last bits of our privacy from a national government run amok. At the very least, Congress ought to consider setting some criteria for determining when the "war" will eventually be declared over, and the violations of people's privacy rights will cease.
In the meantime, the rest of us had better educate ourselves on the scope of, and justification for, the warrantless eavesdropping. There are some truly frightening propositions being floated out there right now by supporters of the intrusions. For example, two major apologists for allowing the Bush folks to monitor your e-mail and phone calls without a warrant made these arguments in the Times yesterday:
In an effort to control counterintelligence activities in the United States during the cold war, the surveillance act established a special court, known as the FISA court, with authority to issue wiretapping warrants. Instead of having to show that it has "probable cause" to believe criminal activity is taking place (which is required to obtain a warrant in an ordinary investigation), the government can get a warrant from the FISA court when there is probable cause to believe the target of surveillance is a foreign power or its agent.Amazing, and chilling. FISA court procedures can be disregarded whenever the administration decides they are inconvenient, or simply bad policy. And if you turn out to be guilty of treason, you don't have any privacy rights -- therefore, no one has those rights if what the government is looking for is their conducting treasonous activities.
Although the administration could have sought such warrants, it chose not to for good reasons. The procedures under the surveillance act are streamlined, but nevertheless involve a number of bureaucratic steps. Furthermore, the FISA court is not a rubber stamp and may well decline to issue warrants even when wartime necessity compels surveillance. More to the point, the surveillance act was designed for the intricate "spy versus spy" world of the cold war, where move and countermove could be counted in days and hours, rather than minutes and seconds. It was not drafted to deal with the collection of intelligence involving the enemy's military operations in wartime, when information must be put to immediate use.
Indeed, it is highly doubtful whether individuals involved in a conflict have any "reasonable expectation of privacy" in their communications, which is the touchstone of protection under both the Fourth Amendment and the surveillance act itself - any more than a tank commander has a reasonable expectation of privacy in his communications with his commanders on the battlefield. The same goes for noncombatants swept up in the hostilities.
Can we expect the Supreme Court to cut through this fog and protect us against the eternal "wartime"? I'm looking at the roster: Scalia, Thomas, Roberts, Alito... Never mind.
In their attack on our freedoms, the terrorists appear to have won. Of course, in the administration's view, we're all potential terrorists. Maybe that makes us all winners.