On the face of it, Mr. Bush’s extraordinary authorisation of warrantless NSA wiretaps is illegal. (Then again, many things Mr. Bush has done are illegal and there has been little attention paid to their illegality.) Viewed as a matter of strict construction, much of what the NSA does is illegal, but even by the pathetic standards of modern jurisprudence they have crossed the line. Under the Fourth Amendment, even warranted searches and seizures must have probable cause, which arguably the government might have in some of these cases. But warrantless searches such as Mr. Bush has authorised are obviously prohibited under the Fourth Amendment. As with the detention of Jose Padilla, Mr. Bush has claimed arbitrary “wartime” powers that he simply does not have, and has ignored due process then and now because, in both cases, I suspect he was worried that his actions might not seriously withstand the scrutiny of judicial review.
The Fourth Amendment obviously does not distinguish between searches done in the course of intelligence-gathering and those done in the course of gathering evidence for the prosecution of a crime–nothing derived from the powers vested in the officers of the United States can be used in such a way as to evade the clear, broad guarantees of the Bill of Rights. It is allowed that the Congress could, in time of rebellion or invasion, suspend habeas corpus (Art I., Sec. 9:2), but no such power has ever properly been granted to the executive, though some Presidents have wrongfully usurped such power. Every search requires a warrant. It really is that simple. If that is inconvenient or disturbing to defenders of the warfare state, if it seems antiquated or anachronistic to them to adhere to the rule of law, they should stop justifying end-runs around the Constitution and begin making proposals to amend the provisions of the law.
The defense that this warrantless intelligence-gathering forms a part of presidential war powers guaranteed under Article II’s designation of the President as “commander-in-chief” is, like most other defenses mounted by this administration, shabby and false. First of all, properly speaking as a matter of constitutional law, the joint resolution of Sept. 14, 2001 is not sufficient warrant for indefinitely authorising an ongoing military conflict (it is not the same as if Congress had issued a declaration of war) and the presidential war powers associated with it.
The article in today’s Wall Street Journal claiming that the resolution is the equivalent of a declaration of war is simply wrong, particular on the case law being cited (Bas v. Tingy especially). In Bas v. Tingy, as I understand it, resolutions of Congress are sufficient for authorising limited military engagements, such as occurred with the Quasi-War that prompted the case in question. Furthermore, Justice Washington in Bas v. Tingy distinguished between the “imperfect war” that arose between members of two nations (such as the so-called Quasi-War of 1798-1800) and the “perfect war” that would arise following a formal declaration of war. No one can pretend that “Enduring Freedom” or the war in Iraq is of such a limited, “imperfect” nature. Both are, as Iraq war supporters have endlessly reminded us, large-scale, general wars. Justice Chase wrote in Bas v. Tingy:
What, then, is the nature of the contest subsisting between America and France? In my judgment, it is a limited, partial, war. Congress has not declared war in general terms; but congress has authorised hostilities on the high seas by certain persons in certain cases. There is no authority given to commit hostilities on land; to capture unarmed French vessels, nor even to capture French armed vessels lying in a French port; and the authority is not given, indiscriminately, to every citizen of America, against every citizen of France; but only to citizens appointed by commissions, or exposed to immediate outrage and violence. So far it is, unquestionably, a partial war; but, nevertheless, it is a public war, on account of the public authority from which it emanates.
To cite this ruling in particular, as Mr. Turner does today, stemming from what was generally recognised as a limited war to justify a general principle that joint resolutions = declarations of war is simply wrong, and to give the impression that this equation is a settled precedent is misleading and possibly dishonest. With respect to general wars, joint resolutions are insufficient to authorise presidential war powers–the usurpation of several presidents in the last 55 years on this score cannot and must not be taken as serious precedents. Even taking the resolution of Sept. 14, 2001 as temporarily effective in authorising the President to take those actions he deemed necessary to retaliate against those responsible for the 9/11 attacks, it is impossible to grant that it carries the weight of a declaration of war and that it therefore properly invests the President with the role of commander-in-chief on an ongoing basis. The wartime powers he claims to have as being implicit to his office do not exist (as a matter of law, war powers are granted to him by the representatives of the people–the most ardent Federalists during ratification regarded this as one example of why the President under the Constitution was not in danger of becoming an autocrat). The war powers he claims on the grounds of the joint resolution of Sept. 14, 2001 are irrelevant here. The resolution states: “That the President is authorized 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, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” This is an authorisation of force for retaliatory purposes with the goal of eliminating the threat to the United States.
It does not take a great legal mind to see that this authorisation does not extend to the full range of war powers (such as intelligence-gathering) to which Mr. Bush might possibly be entitled if the Congress had bothered to declare war. For Mr. Bush, his entire case for the legality of his actions rests on the myth of inherent or implied powers.