Cartoons, Decapitation, Computers And The Constitution

By Walter Moore - February 6, 2006

They riot over a cartoon, but watch televised beheadings the way we watch weather forecasts. That's who we're fighting. Under the circumstances, one can understand the President's desire to use every technological means available to prevent further attacks on our country.

Some argue, however, that the United States Constitution prohibits the President, in a time of war, from using NSA computers to sift through zillions of innocent telephone calls in a hunt for calls involving terrorists. The computers work like those change-sorting machines at the grocery store: you dump all telephone calls into them, and they sort the calls into different piles. The government then focuses on the "maybe trouble" stack of calls. Does the Constitution require the President to get a judge's permission for this process?

Let's start with the wording of the Constitution itself. The document doesn't specifically mention wiretaps or satellites or radio transmissions, because, of course, they weren't around back when. Wars, however, were around back then, and the Constitution does address war: Congress has the power to declare war, while "The President shall be commander in chief of the Army and Navy of the United States...." And, the Third Amendment states, "No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law." There's nothing stating that, "in time of war," the President needs to consult with the Judiciary at all regarding the conduct of the war.

Next, let's look at whether, historically, anyone in our country has ever believed the Constitution required judicial oversight of military campaigns, and in particular, the interception of enemy communications.

Western Union built its first transcontinental telegraph line in 1861. Did anyone ever claim that Lincoln needed a warrant to tap into Confederate telegrams? No.

When the United States entered World War I, did anyone claim President Wilson needed warrants to monitor radio transmissions in America? No. On the contrary, the federal government didn't just monitor radio transmissions back then. Rather, the government took over all radio stations and made it illegal for private citizens even to possess a transmitter.

In the days leading up to World War II, did anyone claim Roosevelt needed a warrant to monitor communications between Japan and its ambassadors? No. During the war itself, did Eisenhower have to explain to a judge why it would be helpful to try to monitor and decode German transmissions? Of course not.

Our history thus indicates that we as a nation have never deemed the Fourth Amendment to apply to a President's efforts, during war, to intercept enemy communications. Rather, the "practical construction" -- the understanding of the document as exhibited by our conduct as a nation -- is that the Commander in Chief has the power, under the Constitution, to monitor the airwaves during wartime to ensure the survival of our nation.

And here's something you might not know about the Fourth Amendment: when the Supreme Court first addressed the issue of whether police could conduct wiretaps without a warrant, the Supreme Court ruled that no warrant was needed. The Court reasoned that the wiretaps did not constitute a "search" or a "seizure," and therefore did not require a warrant. Only years later did the Court reverse its position.

In any event, even assuming police need a warrant for a wiretap in the course of a criminal prosecution, that does not mean the same standard applies to a President trying to intercept enemy communications during a war. Presidents do lots of things during a war that we would never let police and prosecutors do.

As for any Congressional statute purporting to require the President to seek a court's approval before eavesdropping during war, the President can legitimately argue that any such statute is itself unconstitutional. Insofar as the Constitution makes the President the Commander in Chief, Congress lacks the Constitutional authority to require the President to share that command with lawyers wearing black robes.

So the President can certainly argue that he has the Constitutional power to have NSA computers intercept all transmissions in order to find those involving terrorists. And if he does not, then we need to amend the Constitution immediately so he does.

If you have any doubts about that, just remember the riots over cartoons and the indifference to beheadings. Remember the stakes.