President Bush has lately asserted that he has the right to wiretap American citizens without a court order. His argument is based on the premise that the United States is at war, and therefore he has the authority granted under wartime to stretch the Constitution beyond its customary bounds.
One one hand, I don't have a moral problem with tapping the phone of some prospective terrorist. On the other hand the rules requiring judicial review came about to prevent abuses of power. While Rush Limbaugh, Pat Robertson and legions of NRA members may not the agree, the Democratic Party is not a traitorous or terrorist institution. Yet when I was a teenager a conservative American President took steps to wiretap and bug Democratic Party headquarters for the purpose of gaining an advantage in in upcoming election. Whenever someone says there is no danger from this act it would be wise to remind them a precedent exists for a President wiretapping for partisan political reasons. And said precedent occurred only 30 years ago.
So there is reason to be concerned about the Presidents decision to seek unreviewed wiretaps. And if we were at war.he might be justified in stretching the Constitution. But we're not.
As Bill Clinton might have said, "I feel your surprise." It seems absurd to argue that we are not at war when American soldiers are fighting and dying in both Afghanistan and Iraq. Certainly the United States is involved in a de facto war in both countries. But President Bush isn't making a practical argument, he's making a legal argument. The simple fact is that the under the Constitution America is not legally at war. Article 1, section 8 of the Constitutions explicitly states that the power to declare war rests exclusively with Congress. President Bush deliberately chose not to seek a declaration of war against Afghanistan even though Congress would have granted him one in a heartbeat. The legal authorization for the war in Iraq came from an authorization to use force in a confrontation with Saddam Hussein to try and force him to get rid of Weapons of Mass Destruction later events proved he did not have.
An authorization to use force in a confrontantion is not the same as a declaration of war, particularly when granted under false pretenses. To assert endless extra-legal authority based on a war that was never legally declared is not supportable. If the President needed such powers to conduct the so-called 'War on Terror' then heeded to take the legal steps required to grant such powers. He chose not to. Therefore he cannot legally claim such powers.