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August 18, 2006

Who's Amending the Constitution?

As the standard internet cliché-proviso goes, I am not a lawyer. Nor have I read the recent decision of Federal Judge Anna Diggs Taylor striking down the Bush administration's policy of warrantless overseas wiretapping. But I suspect the same is true of Cox and Forkum, who seem to disagree with this decision. (Via Gus Van Horn.)

What exactly is this objection here? The implication of the Cox and Forkum cartoon is that the U.S. Constitution doesn't protect the rights of foreign citizens, and since these wiretaps are placed only on overseas calls, constitutional privacy protections should not cover them.

Wait a second, though. Last time I checked, it took two parties to make a phone call. Obviously there's a domestic party involved here, too, and unless the NSA has a way of screening domestic callers for their citizenship status, it is highly possible that there are U.S. citizens involved in this equation.

What's more, is it really the case that only U.S. citizens should be afforded the protection of constitutional rights? We certainly don't deem it permissible to restrict the freedom of speech of foreign tourists who visit our shores. What is the difference with this case?

Of course, a very good argument can be made that there is an important difference between the right to liberty and the right to be free from search and seizure. The former is a fundamental individual right, whereas the latter is a derivative, procedural right (sometimes called a "civil right"). Limiting or restricting derivative rights can be justified if it is for the sake of protecting fundamental ones. If terrorists are trying to kill us, and we need to perform eavesdropping or baggage searches in order to catch them, then it's justified to do this, by reference to our right to life.

But here's the catch: in order to be justified, violations of derivative procedural rights need to be, well, done in accordance with a justifiable procedure. The big important meta-procedure in our country is something called the Constitution. The President, for example, has the potential to violate procedural rights using his executive powers. So the Constitution defines the limits of these powers, including his powers to violate procedural rights.

This applies to the question of warrantless wiretapping. The putative justification for this policy is that we are at war with a foreign enemy, so intelligence needed to combat that enemy must be obtained. And true enough, the President is the Commander in Chief of the military, so it is his task to execute tactics needed to achieve military ends. But, it is Congress that has the power to declare war, and define the limits of President's war powers. So the President may invoke his war powers to limit procedural rights only if given the proper authority by Congress.

As every Objectivist ought to know, one of the basic flaws of the current "War on Terror" is that there has been no official declaration of war against an enemy nation-state. There was an ambiguous resolution after 9/11 authorizing the president to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001." But this statement lacks one important element: the identification of those nations, and thereby the statement of any objective criteria for victory in the war.

As long as the President continues to fight this war without a war declaration, his powers are dangerously undefined and unlimited. I believe that warrantless wiretaps would be completely justifiable in the context of a declared war, or in some other finite, declared emergency in which habeas corpus has been suspended. But that is not the case now.

For this reason, I find it heartening that the President's runaway powers are being challenged by the judicial branch. I see no argument for the constitutionality of warrantless wiretapping, particularly given the fact that it is in direct violation of the Foreign Intelligence Surveillance Act (FISA), which gives the President specific powers to engage in foreign surveillance, but only with the permission of special emergency judges.

I hope that the judiciary strikes down even more of the President's "temporary" emergency powers. Permitting him to use them not only threatens our liberties, but reinforces the standard leftist view that this war needs to be won through police powers, rather than the military. As domestic support for expanded police powers dries up, perhaps the administration will come to see that their only recourse will be to take the fight to our real enemies abroad (Iran, Syria, Saudi Arabia).

By the way, this position has already been summarized by a very nice article by Felipe Sediles in the campus Objectivist paper, The Undercurrent. Worth following, The Undercurrent.

UPDATE (8/18/06): Thinking about it more, I realize that the Cox & Forkum cartoon doesn't imply anything about foreign citizens, just about foreign terrorists. They're not suggesting anything about rights afforded to non-terrorist citizens, and obviously they're correct to imply terrorists have no rights. But my overall point stands. It is appropriate to challenge unjustified powers of the Bush administration, not on the grounds of the rights of terrorists (who is doing that?) but on the grounds of our own rights.

UPDATE (8/19/06): Trey Givens seems to agree with me. Good for him.

Posted by admin at August 18, 2006 09:30 AM

Comments

Posted by: John Stark at August 18, 2006 07:54 PM

Posted by: Rachel M. Garrett at August 27, 2006 06:37 PM

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