|
I need to address this concept that we are in a "war" with al Queda. That's a nice catch phrase, and it serves to emphasize that this is a desperate struggle, but there are few if any similarities to the way "war" has been understood throughout the history of mankind, and as that term is used in our Constitution.
There is no conventional battlefield, there are no uniformed soldiers, there is no central command structure. Declaring "war" on Islamic terrorism (the struggle is not confined to al Queda) is similar to declaring "war" on Puerto Rican separatists, or South American drug lords, or Mexican smugglers. It may highlight our seriousness, but it means nothing in terms of conventional warfare.
So my first point is that while we may be in an epic struggle with radical Islam, equating telephone calls between Pakistani Americans and their relatives overseas with communications between tank commanders on a battlefield is just not accurate. We know the guy in the tank is the enemy. We know he is not an American citizen. And we know that his communications have the overarching goal of defeating America.
When we tap that American's phone call overseas, we know none of those things.
When we intercept that tank commander's radio communications, that action does not implicate the Constitution in any fashion. When we tap that American's phone line without a warrant, no matter what your point of view on this, you have to admit that it has Constitutional implications.
So that’s the first point. Just saying we are at "war" means nothing in this context. If it did, the president could declare "war" on any number of domestic threats, abolishing our freedom in the process.
|