I think it’s worth noting the implications of believing that the President has the inherent authority to trump legal requirements during wartime, and then applying this claim to the unendable “war on terror,” whether this manifests itself in indifference to or active support for effectively superconstitutional presidential powers. If this argument is correct, then it’s not just the Fourth Amendment that’s affected; presumably the president’s authority to work within the “war paradigm” transcends other constitutional limits as well. And as we know from WWII, the Supreme Court argued that this included the Fourteenth Amendment as well:
It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.
It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers — and we deem it unjustifiable to call them concentration camps, with all the ugly connotations that term implies — we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this time of war in our military leaders — as inevitably it must — determined that they should have the power to do just this.
You can recognize in Black’s reasoning here every element of the arguments used by apologists for the illegal wiretaps. The executive should be accorded great deference; Congressional delegations of authority should be interpreted as broadly as possible; and even explicit constitutional provisions don’t really apply to presidential actions in wartime because the war changes the nature of the actions in a fundamental way. Except that there’s one difference: the legal arguments in favor of the internment are stronger. The internment at least took place during a clear-cut military conflict of immense scale between nation-states, rather than an operation of inherently indeterminate length against an ever-changing array of stateless organizations that contains elements of both armed conflict and ordinary police action. And Congress actually did grant the relevant authority in the internment case (although, of course, irrelevant to me, since Congress cannot confer on the President the power to violate the Constitution, although a grant of authority can legitimately compel greater deference to the executive on more ambiguous questions.) If you accept the view of Posner, Goldstein et al., then Korematsu was right. And, therefore, the president has the right to strip a class of people of their property and force them to relocate to camps based solely on their race with no individualized suspicion and scant evidence of a genuine military threat, as long as there’s a war on. And, as Rob and Katherine point out, since unlike WWII a war on a method has no formal endpoint, this would mark a radical and permanent change in our constitutional structure on extraordinarily shaky grounds.
And, of course, my claim that this chain of reasoning ends logically in justifying Korematsu isn’t merely hypothetical, starting of course with Malkin, whose extraordinarily shoddy book was enough to cause Glenn Reynolds to reconsider his purported opposition to the internment. And this logic has–in a sense, to his credit, at least as far as intellectual inetgrity is concerned–been embraced by Posner himself:
This commenter takes issues with a statement that I once made to the effect that I thought the Supreme Court had made the correct decision in the Korematsu case, when it refused to invalidate an army order, approved by President Roosevelt (and by Earl Warren, who at the time was the governor of California), removing persons of Japanese extraction from the west coast in 1942, shortly after Pearl Harbor. In hindsight, it is apparent that the order was erroneous–that the Japanese-Americans did not pose a threat to the nation and that the order was influenced by racism. But the wisdom of hindsight is treacherous. In March of 1942 when the order was issued, just three months after Pearl Harbor, there was not only fear that Japan would attack the continental United States, but also a need to demonstrate resoluteness in a war for which the nation was not prepared.
So let’s be clear about what the logic of this Schmittian position is: in wartime, the President can trump the 14th Amendment rights of American citizens, despite extensive evidence of racism and little evidence of military necessity, merely to “demonstrate resoluteness.” And we’re in a war now, and there’s no conceivable way of ending the war. This is where Bush’s apologists want to take us. I don’t know about you, but I’m not coming along. I prefer to fight to protect constitutional governance from the terrorists rather than capitulating pre-emptively.