One of the reasons I blog is that the act of writing helps me clarify my thinking on certain issues. I have written a number of times about my concerns over the "war powers" this administration is taking upon itself. Arnold Kling's article in TCS Daily helped me clarify a better framework for thinking about my issues. I can now put my concerns in two categories:
- The administration is going too far in using the war as an excuse to circumvent a number of Constitutional protections, from habeas corpus to search and seizure. This does not mean that I am necessarily against all new activities, but they need to be initiated within our Constitutional framework. Take surveillance activities. Its not unreasonable to think that terrorism demands new surveillance tools. But the principle we have always followed for surveillance is that Congress authorizes the power and the judiciary gets some type of review of the targets and methods. Bush seems to have become impatient with separation of powers to the point that he does not even try to engage the other arms of the government, instead using the war to claim a fiat power. (It should be noted that even when the separation of powers is respected, as with the Patriot Act, mistakes are made and we can go too far. However, at least we can debate it and there are Congressmen we can hold accountable).
- The second category of problem I have is with the open-ended nature of the war. Calling this the "War on Terror" is only marginally more precise and limiting than saying we are fighting the "War against Bad Stuff." If one asks, "Who are we fighting", the administration answers "Whoever the President says we are fighting against". If one asks "When is it over" the administration either answers "Whenever the President says it is" or else, probably more honestly, they say "not for a long, long time."
In terms of civil liberties, the second point may be the most problematic. Most citizens will grant the President some special war powers (as in fact the Constitution does), though we can argue whether the current administration has gone too far in defining these powers for themselves. But if you combine this with letting the administration define exactly who the enemy is and how long the war lasts, it makes for a combination deadly to civil liberties.
Take the example of detention of enemy combatants. Administration supporters argue that we have always been authorized to hold enemy combatants until the end of the war, as we did in WWII. And so we did. We were at war with Germany, so we detained German soldiers we captured until the end of the war. Note that these are definitions that everyone at the time could agree on -- ie everyone knew what a German soldier was and everyone knew that "end of the war" meant when we marched into Berlin. Few German detainees were held for much more than a year. By the way, it is interesting to note that even in WWII, we abused this notion. The administration defined "enemy combatant" as "anyone in the US of Japanese descent", so that we ended up interning innocent American citizens for years, much to our shame today.
However, in the current "war", an enemy combatant is anyone the administration says is an enemy combatant (at least in their theory) and "for the duration" means as long as the administration cares to hold them, up to and including "forever."
Conservatives wish to argue that the "War on Terror" is a new kind of war and demands new tools to fight it, which they use to justify all kinds of secret searches and detainments. Fine, but then it also needs new types of civil liberties checks. Coming back to our detention example, in WWII it was not really necessary to have some kind of judicial review on the question of whether a captured German soldier was an enemy combatant; the uniform was a pretty good giveaway. However, such a review is necessary today, since the enemy combatants languishing at Gitmo (many of who I am willing to believe are bad guys) don't have any identifying uniforms or paperwork.
If I read him right, Kling is saying something similar: Some security activities that were traditionally not allowed may be necessary, but for every civil liberties give-back there needs to be a countervailing new control or check on government activity:
On the whole, Posner makes a persuasive case for tilting the judicial
balance in favor of reasonable efforts to promote security rather than
strict-constructionist civil libertarianism. However, I believe that
what we need to do is re-build our civil libertarian fortresses, not
simply retreat from them. That is why I favor much stronger accountability for agencies engaged in surveillance. It is why I am proposing here a formal process for naming our enemies.
