Warrants and War

The debate over NSA wiretaps of Al Quaida operatives continues apace. Democrats are huffing and puffing over it, and the president continues to enjoy widespread support for his program as he sticks to his guns. And as these things go, the president will almost certainly win this debate on a practical level.

But I want to return to a fundamental problem with all this — and it affects a number of issues, from our treatment of prisoners at Gitmo to intelligence gathering like this. The reason the president is enjoying broad support is that there is general understanding that in time of war, the same conditions are not operative when dealing with hostiles as in time of peace. In the Second World War, if we cracked some German codes and were listening in, and somebody then realized that one of the participants in the conversation was an American citizen, would we then have to go get a warrant? Of course not.

And in time of peace, if the cops suspect that George Smith is knocking over convenience stories on the weekends, and they have a pretty good idea that he is in fact the one, do they have the right to just go and listen in on his cell phone conversations without a warrant? Of course not.

So it matters what the status is, what condition we are in. So are we at war? In terms of the scale of the conflict, we most certainly are. But judicially and legally we are not at war. The scale of conflict (in Iraq and elsewhere) would certainly justify war, but we are not at war. The reason we are not at war is because Congress has not declared one, and Congress is the only entity that can declare war.

The president has not sought such a declaration, and Congress has not given it. This means that we do not have the right to summon up the prerogatives of a nation at war. It might be replied that it’s a new world, and that entities like Al Quaida are not nation/states and we cannot just declare war on a para-national organization. To this, two responses. The first is that this argument does not apply to Iraq, which was a nation-state. Why didn’t we declare war there? And the second response is that if we can identify an organization to the extent that we can fight a war with them, then surely we can identify the same organization by declaring that war.

The states of war and peace are two different states. We cannot enjoy the privileges of both simultaneously. If we are at war, then go to war. If we are not at war, then get a warrant.

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