Ready! Aim! Stop! Go to Court!: The Folly of Treating War Like a Criminal Investigation

Andrew C. McCarthy points out in National Review Online why a war is not a criminal investigation.

Demanding that the White House go before a federal judge for approval of every move made in war, such as detaining illegal combatants or listening in on phone calls between American citizens and terrorists, is a serious blunder.  McCarthy writes:

"We are either at war or we are not. If we are, the president of the United States, whom the Constitution makes the commander-in-chief of our military forces, is empowered to conduct the war — meaning he has unreviewable authority to employ all of the essential incidents of war fighting.

"Not some of them. All of them. Including eavesdropping on potential enemy communications. That eavesdropping — whether you wish to refer to it by the loaded "spying" or go more high-tech with "electronic surveillance" or "signals intelligence" — is as much an incident of warfare as choosing which targets to bomb, which hills to capture, and which enemies to detain.

"It was critical in the Civil War, when, by definition, it was done domestically — and without the slightest suggestion that federal courts should be involved. It was critical in World War II, when concerns about enemy infiltration were very real. And it is perhaps more critical today than during any war in our nation's history.

"Al Qaeda is an international terrorist network. We cannot defeat it by conquering territory. It has none. We cannot round up its citizens. Its allegiance is to an ideology that makes nationality irrelevant. To defeat it and defend ourselves, we can only acquire intelligence — intercept its communications and thwart its plans. Nothing else will do.

"Al Qaeda seeks above all else to strike the United States — yet again — domestically. Nothing — nothing — could be worse for our nation and for the civil liberties of all Americans than the terrorists' success in that regard. For those obvious reasons, no communications are more important to capture than those which cross our borders. Al Qaeda cannot accomplish its ne plus ultra, massive attacks against our domestic population centers, unless it communicates with people here. If someone from al Qaeda is using a phone to order a pizza, we want to know that — probable cause or not.

"Does this, as the naysayers' talking points insist, put the president above the law? Does it give him a blank check? The very asking of such questions betrays either a stubborn ignorance about our system or a shrewd agenda to accrete the power of other branches at the expense of the executive — and in defiance of the Framers' ingenious construct."

Think about it.  Is it really an improvement from a civil liberties standpoint to take the power to collect intelligence from the Commander in Chief of our Armed Forces and put that power in to the hands of attorneys and an unelected federal judge who has little knowledge of, and no ultimate responsibility for, the success of the overall war effort? 

It's a pretty sure way to lose the war.