The purpose of the Bill of Rights is to make a fundamental and clear statement about the rights of man. They are fundamental because all Congressional acts are subservient to them and clear because, unlike the complex legal code, the basic rights were intended to be known by all.
Having lived through war, the Founders recognized that during war, it is necessary to suspend the normal function of law, as “law” is a concept that is only possible in civil society. But they also recognized the danger of allowing any exception that would lead to the violation of rights. So, they provided strict limits: the President is the Commander in Chief, but he may only act with the consent of Congress, and that consent expires after two years. Furthermore, Congress has the power to issue letters of Marque and Reprisal, which authorizes specific individuals to attack specific groups and bring them to admiralty courts. In both cases, enemies were to be explicitly identified by Congress and enjoyed the protection of the rules of war.
We may argue about how practical these principles are and how earnestly they were followed from the start, but it is worth considering how they are routinely violated in the so-called “war on terror” going on today:
There is no war: “Terror” is an emotion, not a group of people. Therefore, no actual “war” and no actual “victory” (which requires clearly identified parties) is possible. This makes a congressional declaration of war impossible. While Congress makes occasional statements in support of the executive office, they are Constitutionally meaningless.
There is no enemy: The Constitution provides for Letters of Marque and Reprisal in cases where a war is not possible or desirable. But there is no enemy in the “war on terror.” “Al Qaeda” is a quasi-mythical entity which has more existence as an entity in the minds of those who hate/fear and/or admire it than as a physical organization of material command and support. Most of its “followers” are non-violent. Many more advocate violence (not admirable but not an act of war) than practice it. Many of those killed as “terrorists” have only some vague emotional bond with its ideology, others none at all. Certainly there is no physical network in which all such persons can be proven to be involved.
Killings are extra-judicial:
The executive branch has created a new class of enemy: the “unlawful combatant.” This person is exempt from both civil protections as well as the rules of war. (By the way, the purpose of so-called “rules of war” is not to protect the enemy, as in any conflict at least one party is by definition willing to violate rights. Their purpose is enable peaceful coexistence possible afterward. By contrast, the historical purpose of disregarding the laws of war is to dehumanize the enemy and thus make post-conflict peaceful coexistence impossible.)
No one is off-limits: in a war, combatants and non-combatants are clearly defined, and non-combatants are off-limits. While this is never perfectly practiced, at least the enemy and the conflict are clearly identified and so are violations can be exposed. But by identifying an emotion as the enemy, no end to the conflict is possible, and no one is off-limits.
For example, the U.S. government has no problem killing its own citizens without any judicial process for advocating violence outside of the country. That is a crime within U.S. territory, but not an act of war when conducted abroad, so it violates both the legal rights of U.S. citizens and the sovereignty of other nations.
Most “terrorists” tried in the U.S. since 9/11 were actually recruited and provided with their targets and plots by the FBI. They are not guilty of plotting any attack, as the government did that for them, but of the emotion of hate and/or the desire to spread fear in the public. In fact it is the U.S. government that terrorizes the public by finding peaceful but angry people and training them to be terrorists – and then prosecuting them for the same crime.
Guilt is tautological: While the “war on terror” is nominally against “terrorism,” it is actually defined not in terms of any particular action, but by the potential emotion created in the (hypothetical) victim. The final result is that anyone may be imprisoned or assassinated for the sole reason that something they thing did scared someone. Until there is a fundamental change to human nature, no end is possible for such a conflict.
Why was Anwar al-Awlaki (and his 16-year old son) killed? Because he is a terrorist. How do we know that? Because he is dead. If he were not guilty, he would not have been assassinated. No legal proof is needed because this is a military decision, and military decisions are outside the realm of civil law. Why is killing unarmed U.S. citizens for their violent rhetoric a military matter? Because we’re in a “war on terror” and fear is now an act of war.
There is no victory: One of the worst aspects of the “war on terror” is the impossibility of victory. How can we possibly defeat a basic human emotion? When every single Muslim is converted to Christianity or killed? But the war has already been extended beyond those fighting for ideological reasons — much of the “anti-terrorist” activity within the U.S. is actually in pursuit of the drug war (a conflict with a similar history). And just like the drug war, when the enemy is a mental state, no victory is ever possible.
The ultimate purpose of making an emotion the enemy is to take the rules of military action (which are properly outside the realm of civil law) out of the limited context of war and allow them to be applied to anyone. Thus is justified endless war, unchecked expansion of the power and size of the state, and a total end round around Constitutional checks on the State’s power to violate individual rights.