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:
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