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Jewish World Review Dec. 26, 2001 / 11 Teves, 5762

Doug Bandow

Doug Bandow
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Preserving freedom in an unfree world -- THE massive terrorist attacks of Sept. 11 brought home to America its vulnerability.

Protecting our security has become a critical challenge. So has protecting our freedom.

People who seek to do the first often sacrifice the second. So it has been in the war on terrorism.

Perhaps the greatest tragedy is where liberty is traded for safety, yet no one ends up more secure. For instance, many of the new rules involving airline travel do nothing to prevent terrorism.

At least they are mere inconveniences, as opposed to assaults on fundamental liberties.

More serious are issues involving wiretaps, searches, detentions and trials. Establishing a fair criminal justice system involves the core of a free society.

The principal threat comes not from men of ill will, though they exist in America. It comes from men of zeal. Officials ready to treat everyone as a suspect, obliged to prove his or her innocence of any number of imagined offenses.

The most critical issue is how to try those involved in the Sept. 11 attacks directly and with Osama bin Laden's al-Qaeda network more generally. For the former, drumhead justice and a firing squad -- actually, a much more painful, extended execution -- would seem appropriate. Save the firing squad for the latter group.

But the problem is determining who is involved, and to what degree. The guilt of bin Laden now seems self-evident, but that of many others is not.

It is particularly important to reject the tempting circularity: they are terrorists, so they don't deserve legal protections. Yes, but how do we know they are terrorists? We must prove, not assume, it.

For American citizens, as well as long-time residents in the United States -- people integrated into American society -- that proof should be made in a traditional criminal court. One-time Supreme Court nominee Robert Bork has called for military tribunals for Americans, lest terrorists "go free," but this argument could be applied to any prosecution of any criminal defendant, from drug dealer to mobster, that relies on sensitive evidence.

The United States is threatened, but not under siege; the courts are open. America best protects its liberty and demonstrates its stability by proceeding with business as usual.

Where it has departed from this standard in the past, it has done so needlessly. Although the civilian courts were operating, military tribunals dispensed dubious justice throughout the Civil War, including hurriedly convicting those charged in the assassination of President Abraham Lincoln.

America need not, however, be so gentle with apparent terrorists captured in war overseas. Participation in al-Qaeda and associated groups effectively shifts the burden of proof. It is fair to presume the complicity of such people -- otherwise America would not be bombing al-Qaeda strongholds and attempting to kill al-Qaeda members.

Should U.S. forces be unfortunate enough to actually find some al-Qaeda members alive, there would be no need to ship them back to the United States to be defended by Alan Dershowitz, Johnnie Cochran or some other celebrity lawyer. In a state of war against an overseas foe (yet another reason Congress should have formally declared war), the normal process of criminal investigation and prosecution is unrealistic.

Still, punishment cannot be wholly arbitrary by a nation with such a long-standing commitment to the rule of law. Yet an international, Nuremberg-like court would be a poor solution.

Even today, a half century later, Nuremberg leaves an uneasy feeling. The Nazis in the docket were monsters deserving of death, but creating new international crimes ex post facto to be enforced by the victors hardly met the definition of justice.

Better is President George W. Bush's proposal for military tribunals. In the case of al-Qaeda, the United States should unashamedly form American panels to try terrorists under American law for the killing of American citizens. No pious pronouncements about international opinion.

But the tribunals should be authorized and organized by congressional legislation, not presidential decree, especially one as broad as that issued by President Bush. Congress should strictly limit who can be brought before the panels and for what.

A sunset provision should restrict the tribunals' duration; renewal would require a new congressional vote. And legislators should declare a formal state of war with the ousted Taliban government and al-Qaeda terrorist network.

Other countries should similarly deal with their own terrorists. Terrorism is an international problem, but remains highly rooted in the political struggles of individual nations such as India, Indonesia, Israel, and Sri Lanka.

The war on terrorism is really a war, in contrast to such metaphorical monstrosities as the "war on drugs." Real wars require that we balance liberty with security. But balance carefully we must, lest we sacrifice so much of the former that we lose sight of what we are fighting for.

JWR contributor Doug Bandow is a senior fellow at the Cato Institute. Comment by clicking here.


12/17/01: Dealing with terrorism's aftermath
12/10/01: Emerging friendships?
12/04/01: Uncle Sam: Insurer of last resort
11/28/01: Expanding the circle of trade
11/20/01: Free to be stupid
11/13/01: The meaning of compassion
11/07/01: Patriotic scoundrels
10/30/01: The coming postal raid
10/16/01: First, do no harm
10/12/01: Good news from a suffering land
10/04/01: Defending whom?
09/25/01: The wrong solution to the wrong problem
09/21/01: The price of terrorism
08/28/01: Uncle Sam's retirement scam
08/21/01: Canberra's quaint naivete
08/14/01: Uncle Sam's false fuel economy
08/08/01: The Clinton administration in drag
07/31/01: The high cost of government
07/24/01: Kill the campaign reform illusion
07/17/01: Do as I say, not as I do
07/11/01: Lawyers at play
07/05/01: Western blundering, Macedonian disaster
06/26/01: How best to honor Bill Clinton?
06/19/01: A maturing Europe?
06/15/01: Tell Beijing to mind its own business
06/06/01: Ukraine's boiling cauldron
05/31/01: Protecting privacy from Uncle Sam
05/22/01: America's Balkan quagmire
05/09/01: The Taiwanese flash point
05/01/01: Globalization serves the world's poor
04/24/01: Who's cheating whom?
04/10/01: The NCAA scam
04/03/01: Balkan stupidities
03/27/01: McCain doesn't want a 'risk for our country'
03/20/01: Dubious Korean alliances
03/06/01: Coercive patriotism
02/27/01: Bombing without end
02/20/01: A dose of misplaced outrage
02/13/01: Psst: Tax cuts for taxpayers. Pass-it-on
02/06/01: Bridging the unbridgeable gap
01/23/01: Left-wing demagoguery
01/16/01: The drug war problem
01/10/01: Politics and trade
01/03/01: Hope for liberty?
12/27/00: The debris of war
12/19/00: What's the rule of law for?
12/15/00: Ending silicone breast implant saga
12/05/00: Election may yield victor, but there are no winners
11/21/00: A Bush presidential mandate?
11/07/00: Exprienced Gore? Yeah, right
11/01/00: Interventionist follies
10/17/00: America's brightening prospects in Ukraine
10/11/00: GOP budget scandals
10/03/00: How a pharmaceutical 'crisis' was created
09/27/00: Clinton's empathy has helped nobody
09/13/00: AlGore's risky budget policies
09/05/00: Military readiness and Korean commitments
08/29/00: Let sleeping hypocrites lie
08/21/00: Targeting a journalistic pariah
08/15/00: European garrison for Kosovo?
08/08/00: Journalistic cleansing at the Boston Globe
08/04/00: Junk science on trial
06/22/00: Eternal vigilance is the price of liberty
06/15/00: The end of U.N. peacekeeping
06/07/00: The Clinton regulatory miasma
06/01/00: Administration stupidity, congressional cowardice
05/25/00: The silence of the international community
05/18/00: Protecting the next generation

05/11/00: Freer trade with China will advance human rights

05/04/00: How not to save the Constitution

04/28/00: American tripwire in Korea long ago disappeared: Why are we still involved?

04/18/00: Clinton administration believes the IRS is too gentle, wants more auditors

© 2000, Copley News Service