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Jewish World Review Dec. 4, 2001 / 19 Kislev 5762

Morton Kondracke

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In view of threat, most Ashcroft steps are justified


http://www.NewsAndOpinion.com -- IMAGINE what those now criticizing the Bush administration for trampling on civil liberties will say if Islamic terrorists stage new attacks in America, possibly employing weapons of mass destruction.

You know full well that The New York Times, Members of Congress and columnists will howl that Attorney General John Ashcroft, FBI Director Robert Mueller, Homeland Security Director Tom Ridge and President Bush are "Keystone Kops" who failed to protect the country.

Viewed from the angle of what could happen - and what it takes to prevent entirely imaginable catastrophes - the administration's limits on civil liberties don't seem draconian at all.

Of all the measures instituted thus far - detention of some 1,200 foreigners, plans to question 5,000 recent Middle Eastern arrivals, authorization of military trials for alleged terrorists, and plans to intercept some lawyer-client communications - I can think of only one that definitely deserves reconsideration.

That is the provision in Bush's recent executive order denying any civilian judicial review for persons who could be arrested, tried, convicted and sentenced to execution by his military tribunals - entirely in secret.

The order evidently was written to cover Osama bin Laden and other al Qaeda and Taliban leaders captured abroad, but as it stands it could cover even legal resident aliens within the United States.

There are plenty of reasons why terrorist suspects shouldn't be given ordinary public trials. The evidence required to make criminal cases could well tip off other terrorists about intelligence sources or other important facts.

In fact, this happened in the trial of the 1993 World Trade Center bombers, where it was revealed that the National Security Agency was intercepting bin Laden's satellite telephone calls. They abruptly ceased.

Testimony about the structural details of the twin towers also may have led designers of the Sept. 11 attacks to settle on fully fueled airliners as their weapon of choice.

So some alternative trial mechanism needs to be used for terrorist suspects. No international proceeding will do because its rules of evidence likely would be similar to those in U.S. civilian trials.

But at the end of a U.S. military trial, there ought to be a right of review by U.S. civilian appellate courts - possibly the U.S. Court of Military Appeals and, certainly, the U.S. Supreme Court - to forestall some gross miscarriage of justice.

Other measures undertaken by the Bush administration seem entirely defensible if understood as efforts to prevent future terrorism and not simply to punish past crime.

And more terrorism remains entirely possible, even though bin Laden may be on the run in Afghanistan. Documents discovered in al Qaeda hideouts show the group was working with chemical and biological agents and was seeking material to build an atomic weapon.

Moreover, The New York Times carried a chilling interview last Saturday with France's chief anti-terrorism judge, Jean-Louis Bruguiére, who said, "There are many autonomous cells in Europe and North America we do not know about.

"They do not need orders from Osama bin Laden to carry out the jihad. They finance their own operations with credit card fraud and theft. The threat, even with Osama bin Laden gone, is very high."

He called attention to a group known as Takfiris, Islamic terrorists who are "so integrated into Western society, even eating pork, drinking and wearing Western clothes as a cover, that they are almost impossible to discover beforehand."

In view of the threat, it seems entirely appropriate that the government should do all it can to arrest, question, detain and deport individuals it has reason to think may be linked to terrorist cells.

With about 600 persons in custody (mostly Middle Easterners in the United States on temporary visas), the Bush administration is miles short of Franklin D. Roosevelt's 1942 internment of 110,000 Japanese-Americans, the specter Ashcroft's critics often raise.

Former top officials at the FBI have raised legitimate questions as to whether Ashcroft should have tried to infiltrate and monitor terrorist cells to prevent new attacks rather than round up suspects.

His response probably would be that he intended to sow confusion among potential terrorists and that, in any event, he had few leads after Sept. 11 about where a "second act" by al Qaeda might come from.

The effectiveness of Ashcroft's methods are an appropriate subject for Congressional hearings now primarily concerned with whether he is trampling on civil liberties.

If the administration is open to other criticism, it is that it has acted by executive fiat, failing to consult Congress before it imposed new policies and refusing to respond to inquiries afterward.

On Tuesday, however, Ashcroft indicated that he'd gotten the message that he needed both to give the public some accounting of his activities and to submit to oversight from the House and Senate Judiciary Committees.

When the Attorney General testifies before the Senate this week, though, he has a good argument to use: Imagine what restrictions on civil liberties the public will demand if al Qaeda succeeds in using a chemical, biological or nuclear device. Ashcroft's critics ought to think about that.



JWR contributor Morton Kondracke is executive editor of Roll Call, the newspaper of Capitol Hill. Send your comments by clicking here.

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