This distinction is critical because law enforcement is unavoidably backward-looking. Courts are designed to punish people only after they do something wrong. Wartime national security is about preventing terrible things — like devastating attacks that kill thousands of people — from happening in the first place.
We are at war. Destroying two skyscrapers and part of our military headquarters are not just criminal acts. Killing 2,973 people in a planned attack is not just a criminal act. These are acts of war perpetrated by foreign enemy combatants. While law enforcement is to maintain harmony within our culture, war is to protect our culture from being eradicated.
Those who don’t want our government to have such powers think rights bestowed to U.S. citizens by their Constitution and civil laws also should be extended to enemy combatants. The irony that these combatants want to destroy us because of our Constitution and civil laws is given no weight.
Those who favor the government having this power believe that America is something special, and that our Bill of Rights is designed to protect Americans’ rights in a special way. Thus, those who seek to destroy our form of government through military action must be deterred with military action.
Americans must treat all human beings with respect. Our traditions and our laws recognize the dignity of the human person and the universality of basic human rights. But as a general matter, our civil and political rights apply differently in a foreign context. And some of those rights are conferred as a matter of policy and of statute, not because of a command of the Constitution. However, the separation of powers is in the Constitution for a reason, and all necessary safeguards must be in place to protect the Constitutional rights of American citizens.
Government power over us is limited because “We the People” are sovereign over our government. But that is not true for every person on the planet. The Constitution is written by “We the People of the United States,” not the people of the whole world.
Therefore the Constitution secures various rights to our citizens as a check over our own government so that we can live free and safe in America. Some of those rights are applied differently to foreigners overseas.
The foremost job of the president of America is to protect Americans. His most important responsibility is as commander-in-chief, vested with executive authority to use our military and other resources to defend the American homeland, protect our national security interests, and safeguard the lives of all Americans.
Justice Jackson once famously said years ago that the Bill of Rights is not a suicide pact. Denying our government the wartime power needed to track our terrorist enemies because of the Fourth Amendment would make it just that. America deserves better.