Confusion reigns five years after September 11.
BY DANIEL HENNINGER
Friday, June 30, 2006 12:01 a.m. EDT
So we got the Hamdan Guantanamo detainee decision yesterday, the turmoil over revealing the Swift surveillance of terrorist financing a week ago, the FBI's capture in Florida of the would-be al Qaeda bombers of the Sears Tower before that, and oh yes, those 17 Muslims in Canada who wanted to invade Parliament and behead the prime minister. We seem to be thoroughly entangled just now in never-ending tensions over civil liberty concerns on one hand and manifest national security threats on the other. Nearly five years after September 11, it's a little stale to argue that this much confusion is just the way a vigorous democracy functions. Or not.
It was good to see that the FBI could catch a group like the Florida bombers. By coincidence about that time, the director of the FBI in New York, Mark Mershon, visited our offices. Mr. Mershon made it clear that the FBI will not monitor or surveil anyone, including Muslim extremists, without a "criminal predicate." Generally, probable cause is the gold standard for watching. Mr. Mershon said that if someone keeps his head down and nose clean in the U.S., he can function with a great deal of freedom. That's a rough but workable description of our system.
This traditional, all-American tradeoff between liberty and risk works OK in a country populated with standard criminal types; most eventually work their way up to a police database. But what about the world of Islamic fanaticism whose recruits, notably suicide bombers (or pilots) are nearly all first-timers? Does "our system" mandate that we allow an Islamic fifth column to fly beneath the radar of probable cause and into buildings? Do we have to settle for catching bottom-feeders like the Florida plotters while the smart boys, planning a smallpox attack in Detroit, stay below what they've read is the threshold for FBI curiosity or a FISA warrant?
Former FBI Director Louis Freeh in a conversation about this tension said, "I'm not sure I agree 100%" with the president or Attorney General Gonzales that we need additional legal authority. He thinks the array of existing tools is adequate, citing the use of conspiracy law against sophisticated organized crime groups. More pointedly he says, "Give me an example of things you can't do with available means."
Jim Woolsey, the former CIA director, agrees that American conspiracy law is a big tent and that "a balance needs to be struck." But he thinks it is a mistake to think about the terror threat in traditional, individual-liberty terms. "The tough case," he said "is what to do with groups that have as their explicit objective, as much of the Muslim Brotherhood does, an Islamic state governing North America? It's hard because it involves raising [security] questions around people who purport that these are their religious beliefs. Our constitutional structure has real problems with that."
Those difficulties notwithstanding, Mr. Woolsey thinks it would make sense to attempt a legislative carve-out of special, defined status for this threat, similar to what we did for communism during the Cold War. I agree. We are damaging ourselves now by conflating traditional individual-liberty concerns with the reality of a global, anti-American movement. Sen. Arlen Specter is the leading example of trying to plug ancient square pegs into this new round hole in our security.
To clarify the new threat, Mr. Woolsey analogizes the McCarran Act, "which made the commies' lives here miserable, if not illegal." That's an interesting idea. The American left will go screaming into the streets at the word "McCarran," but I'd urge anyone else to look at the law's description of the enemy; pull out "communist movement" and drop in "Islamic jihad" and the current threat achieves defined status.
The tension between the Bush administration and its critics has much to do with the fact that the government's surveillance programs are justified to fight a blob called "terrorism." The conceit is we're all supposed to mumble, sotto voce, that it's really Islamic terrorism; but for reasons of delicacy the government won't quite say that and won't make it official. That gives the administration's critics at least a basis for arguing that its surveillance claims are too broad. In this way the Taliban on Guantanamo reach the status of Everyman, even in the minds of Supreme Court justices. Why not a congressional act defining the threat? So what if it failed? The purpose would now be plain and even the New York Times could no longer pretend it can't distinguish between wiretaps on revolutionary Islamic fanatics and Patrick Henry's descendants.
It is possible to sharpen the focus of this matter further. The critics of the anti-terror surveillance programs such as the NSA's warrantless wiretaps give the impression that these efforts somehow violate principles laid down at the ratification of the Bill of Rights. The legal arguments, however, revolve around the requirements of Title III (establishing probable cause for electronic surveillance) and the FISA statute. Both laws, from the 1960s and '70s, in part were a reaction to government wiretapping of individuals involved in the civil-rights movement and anti-Vietnam War protests.
Many of those in the opposition on these surveillance issues--in Congress, the legal community and the press--are people whose personal and intellectual formation is rooted in the events of that era. This is the prism through which they transmute any political event; does it pass or fail the commandments carved in the '70s? But this is 2006, not 1974. Islamic jihad and al Qaeda are not the Montgomery marchers or Kent State, and our debate and laws should reflect that. Applying transaction analytics to telephone traffic is not the same as two cops with headphones in a hotel listening to the people in the next room.
Perhaps there's a silver lining. The public demonizing of Messrs. Bush, Cheney and Gonzales as ruthless tramplers of civil liberties is a throwback to the anti-LBJ, anti-Nixon style of Vietnam-era protests. This has been catastrophic for shaping public policy around this issue. But if the bad guys go slow because they think that George Bush and Dick Cheney are RoboCops willing to do what they gotta do track, trap and catch them, hey, maybe our crackpot "system" works after all.
Mr. Henninger is deputy editor of The Wall Street Journal's editorial page. His column appears Fridays in the Journal and on OpinionJournal.com.
opinionjournal.com |
