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Before we agree to curtailing our hobby (voluntarily or at the force of the government) due to the exigencies of wartime, let us first be certain those concessions are necessary and proper for the circumstances. In times of war, the executive branch is given great leeway in the methods it uses to carry out its two-fold wartime duty -- prosecuting the war and protecting the homefront. However, such deference can only be accorded when the United States is at war. When that exceptional wartime state is over, so is the exceptional deference to the executive granted under it. That railfans are being accosted by police for indulging in a legal endeavour from public thoroughfares is disturbing. More disturbing, however, is talk of background checks and certifications -- all executive encroachments justified by our supposed wartime situation. Let us be clear: WE ARE NOT AT WAR. This may sound strange from someone who watched the towers burn from his office window. But the United States, in fact, is not at war. We were attacked on 11 Sept., that is true. However, the Constitution specifically establishes a procedure through which this country can rightly be said to be at war. In fact, as originally contemplated, it was a glorious process requiring the assent of the two constituencies of this country -- the states (Before their direct election, senators were elected by the state legislatures and represented the states' interests) and the people (The House, being on a 2-year election cycle, remained very close to public opinion). Many would argue that this Constitutional "technicality" should be overlooked. Assuming we are at war (Congress be damned), we have a practical concern to consider: how will we know when the war is over and the temporary deference is to be revoked. There is no Berlin into which our troops can march to tell us the war is over. There is no Hirohito to sign a surrender instrument showing the cessation of hostilities. Is the war over when we've not been attacked for 5 years? -- 10 years? -- Whenever the President says? The framers understood that in wartime, governmental power would necessarily concentrate in the executive branch. They knew also that power is prone to abuse (hence the divisions of three "co-equal" branches). That is why they established a procedure for declaring war and layed it out explicitly in the Constitution. What does 200 year old parchment have to do with an SD-40? Actually, a lot. While there is no explicit right to take photographs of railroads, there is a right to free speech and another to be free from unreasonable search and seizure. This 4th Amendment guarantee, along with others, has been construed to offer a general privilege of privacy. That agents of the executive (law enforcement) should override these privileges and rights by seizing the railfan and interrogating him due to activity considered suspicious only because of the erroneous belief that we are in a time of war, should make every American -- railfan or not -- cringe. Each seizure (seizure does not always mean custodial arrest), each license plate run through the system, each incident report required to be filed due to the seizure, erodes our rights. It is alarming that while the executive is infringing on our rights and justifying it by means of the specious wartime exigencies argument, we should be debating willingly handing over more rights based on that same flawed premise. Railfanning is not un-American. Taking pictures is not threatening. Observing the comings and goings of trains, noting them, following them on radios and in cars is not aiding the terrorists. Why, then, should we consider restricting ourselves of anything? Why should we concede that law enforcement is right to hassle the railfan by voluntarily refraining from our lawful engagements? We must be on guard against those who would relieve us of rights without just cause as much as we must be on guard against those with box-cutters or dirty bombs. Further, we must be on guard against ourselves voluntarily surrendering hard-earned rights for hallucinations of wartime exception and illusory promises of security. If we concede our rights to undertake lawful activities without interference from law enforcement, bin Laden will have destroyed more of America than he ever could have dreamt. We must not let that happen. - MRT
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