In recent months, Congress has raised concerns over the president’s use of warrantless wiretaps and his approval of a proposed take-over of major U.S. sea ports by a United Arab Emirates-owned company. In the case of warrantless wiretaps, the president is criticized for the excessive use of power. In the case of his permissive handling of the ports deal, the president is criticized for the failure to use power.
The president’s critics never seem to be satisfied, yet they never identify a principle that should guide his use of power: Should his powers to protect our security be open-ended, or should they be restricted? If restricted, restricted by what principle? This question needs to be answered to settle any of the ongoing post-9/11 debates about the proper use of the homeland security department, the Patriot Act, immigration restrictions, border security, airport security, cockpit security, intelligence reform, etc.
Furthermore, while it is important to define the president’s proper powers concerning domestic security, it is even more important to realize that domestic security measures are not our best means of securing our freedom against foreign terrorists. What is needed is a foreign policy that aggressively pursues them and their state-sponsors.
In practice, the strategy of securing our freedom with domestic security has led to an unprecedented growth in the state’s policing powers. The president enjoys the freedom to grant warrantless wiretaps, to use secret military tribunals with lower standards of proof to try suspects of his own choosing, to indefinitely detain immigrants, and to limit intelligence briefings to Congress by exercising greater secrecy. With the recent renewal of the Patriot Act, law enforcement agencies will continue to enjoy the freedom to conduct espionage with impunity and to conduct secret, essentially warrantless records searches, physical searches, and many other things.
The president often justifies his powers by citing the Congressional authorization given to him on September 18th, 2001 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.” Furthermore, the Patriot Act authorizes the FBI to engage in certain investigative activities provided that they are “for purposes of protecting against terrorism.”
Many have raised concerns over the threat these new law-enforcement powers pose to the very freedom they are intended to secure. Some of these concerns are not legitimate, but some are. The legitimate concerns demonstrate that, in the long-run, no amount of police-state power will prove adequate for preserving our freedom.
Some fear that these police-state powers unjustifiably infringe on our civil liberties. Posing as defenders of freedom, these critics confound civil liberties with fundamental rights, demanding that civil liberties be preserved at all cost. But civil liberties are derivatives of fundamental rights–they are not fundamental themselves.
Take trial by jury as an example. The principle underlying trial by jury is procedural: because man has a fundamental right to life and liberty, the state cannot punish him for a crime until objective evidence of his crime has been identified. This is because under normal, peacetime circumstances, trial by jury improves the chances that a suspect’s fate will be reviewed by at least one objective observer. Under normal circumstances, high standards of evidence are required because it is worse to punish an innocent man than to fail to punish a guilty one.
In order for the state to be able to implement these procedures, it must have the time to find people who are able to be jurists, the time to collect high levels of evidence, the time to present every shred of relevant evidence in trial, etc. In a time of war, however, such extensive procedures become a threat to the freedom they are meant to uphold in a time of peace. When the loss of a single second of time could result in the loss of many lives, governmental actions must be expedited, for the sake of protecting the fundamental rights to life and liberty that civil rights are designed to protect. This same consideration justified warrantless searches and wiretaps, secret trials, and any number of emergency powers–provided that these powers are temporary and their purpose is clearly defined.
But are the president’s current powers temporary or delimited to a clearly defined purpose? The answer is “no,” and it is here that critics of the president raise a legitimate concern.
The president’s powers allegedly deriving from the September 18th, 2001 resolution exist “in order to prevent any future acts of international terrorism against the United States.” It does not specify which terrorists must be stopped or how many of them must be stopped until their threat has been removed with satisfaction. In essence, it leaves open the possibility of an open-ended, ongoing “War on Terrorism,” motivated by little more than the potential for attacks. Without a clear objective, the “War on Terrorism” will become permanent and the president’s emergency powers will become dictatorial.
Of more pressing concern, however, is that any genuine threat these new police-state powers pose to our freedom pales in comparison to the danger of relying on such powers for the preservation of our freedom from foreign threats.
Consider what the guaranteed long-term success of such a policy requires. In a world where there are major foreign governments such as those of Iran, Syria, and Saudi Arabia, supporting those who are plotting to circumvent these measures (to say nothing of Iran’s attempt to acquire nuclear weapons), America is simply too big and too free for police-state powers to prevent every possible attack. The state would have to have everyone wiretapped, check every single container that enters our ports, detain every single person at our borders, have cameras on every street corner, etc. The continuance of this policy, while foreign threats are allowed to exist, will most certainly fail to prevent all future attacks.
In order to end the threat of future attacks and to delimit the life and scope of new police-state powers, we must therefore demand a war declaration, not further open-ended law-enforcement measures. Rather than worrying about how and when we place individual terrorists on trial, Congress must place regimes who support terrorists “on trial,” declare them to be enemies of the United States, and demand their unconditional surrender as the objective of war. At this point the proceedings would be a mere formality: we are already in a de facto state of war with multiple regimes, so Congress has the duty to make it a speedy trial.
If we declare war, some emergency domestic security measures will be required. But we will have no legitimate reason to fear them, as long as they do not violate fundamental rights and as long as we know when the emergency will come to an end. Congressional critics of the president should realize that our Constitution gives them the power to rein in the president through a war declaration. Thus, if we are to protect our liberty from an unlimited, ever-encroaching police-state–and from foreign enemies who would impose their own police state on us–nothing short of a clear, confident declaration of war will suffice.
Felipe Sediles is a Ph.D. student in aerospace engineering at Syracuse University.