Jewish World Review Nov. 19, 2002 / 14 Kislev, 5763

Mona Charen

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The war over the war |
It will be interesting to see how the debate over civil liberties and the war on terror plays out now that the electorate has given President Bush such a vote of confidence. Since Sept. 11, the left has pitched fits about military commissions, alleged attorney-client privilege infringements, telephone taps, surveillance of suspected terrorists, fingerprinting and photographing of some foreign visitors, and particularly round-ups of visa violators. Each of these measures has been met with loud objections from liberals who are convinced that the Bush administration is on the verge of creating a police state.

Others see the world differently. Instead of an out-of-control government behemoth spying on you and me in complete disregard for civil liberties, they see our domestic and foreign intelligence services as defanged watchdogs, powerless to detect or stop terrorism after decades of liberal "reforms."

No one, least of all a conservative concerned about government power, should take civil liberties protection lightly. But the liberal reforms of the past generation have gone way beyond protecting the privacy rights of American citizens -- they've protected the ability of international terrorists to function in this country virtually unimpeded. Everyone now knows that FBI agent Colleen Rowley pleaded with her superiors for permission to inspect the computer of Zacharias Moussaoui, only to be told that she lacked "probable cause." If investigators had searched that laptop, they would have found the name and phone number of one the ringleaders of the Sept. 11 plot.

This bit of recent history is raised to imply that the FBI screwed up in August 2001. Yet when the suggestion is made that perhaps the "probable cause" standard be brought down a notch, say to "reasonable suspicion," the civil-liberties types go ballistic. When the Justice Department interviewed several thousand men from Arab nations, The New York Times decried the "vast roundup" and the American Civil Liberties Union shrilled that this "dragnet approach ... is likely to magnify concerns of racial and ethnic profiling. In fact, as Professor Robert Turner of the University of Virginia Law School relates, interviewees were treated politely and asked, among other things, whether they had encountered any acts of bigotry.

Before Sept. 11, and thanks to a process of emasculization stretching back to the Church committee hearings of the 1970s, the FBI and CIA were forbidden to share information. Even within the FBI, thanks to "the wall" inaugurated under Attorney General Janet Reno, a counter-terrorism agent examining a terror cell in Buffalo could not walk down the hall and chat with a criminal investigator who was looking into money laundering by the same people. The FBI was forbidden to conduct general Internet searches, or to visit public places open to all.

Seventy-five percent of the American people told the Gallup organization that the Bush administration has not gone too far in restricting civil liberties. Fifty percent thought they'd gone far enough, but 25 thought they should have been tougher. Only 11 percent thought the administration had gone too far.

What liberals are now urging is that suspected terrorists, here or abroad, be accorded the full panoply of rights we give to ordinary criminal defendants. But this judicializes war. President Bill Clinton adhered to this model and accordingly turned down an opportunity to capture bin Laden because he feared we might not have proper evidence for a criminal indictment.

But the war powers of the presidency, long respected by the courts, permit special action in the case of war. Even before Sept. 11, bin Laden had declared war on the United States and was clearly ineligible for a criminal trial. He was morally and legally an enemy combatant. Similarly, though, President Bush has not taken any action since Sept. 11 that was not also approved overwhelmingly by the Congress.

But the key point is this: If we err on the side of civil liberties instead of on the side of security, hundreds of thousands or millions of Americans could die. If we err on the side of security, many people will be inconvenienced and a few individuals may be wrongly imprisoned for some time. In which direction would you lean?

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© 2001, Creators Syndicate