Frank Gaffney

            Lost in the brouhaha has been a highly relevant fact. The numbers and e-accounts that were monitored in this manner were discovered in places like the hard-drives and phone books of captured al Qaeda operatives. This possible connection to terrorists may or may not have been sufficient “probable cause” to obtain orders for wiretaps, even from the secret Foreign Intelligence Surveillance Act (FISA) courts. 

            Yet, the common sense brought to bear on such questions by most Americans – although not necessarily civil libertarians (especially those of the far Left and far Right) and Democrats angling for partisan advantage – argues for doing just as the President has done: Undertake this sort of selective monitoring in order to protect us against murderous enemies bent on our destruction, some of whom may be operating in this country.  They may even be, as was true of the London bombers last July, legally present and, in some cases, citizens.

            Common sense seems to be in no less peril with respect to another frenzy of the moment – the posturing about our national attitude towards torture.  The President, Secretary of State and others have made clear that American policy eschews the use of torture.  We are, however, about to have adopted an amendment by Senator John McCain, that precludes as well any activity involving terror suspects that can be construed as “cruel, inhuman and degrading” treatment.

            The implications of the McCain amendment, which President Bush was obliged to endorse last week, could also prove to be highly detrimental to the war effort. Andrew McCarthy, a former federal prosecutor who successfully tried terrorism cases prior to 9/11, warns in a powerful essay that:

McCain borrows the term cruel, inhuman, or degrading treatment or punishment (CID) from the 1984 United Nations Convention Against Torture and Cruel, Inhuman, and Degrading Treatment or Punishment (UNCAT). When the Senate ratified UNCAT in 1994, it enacted a significant reservation: the CID terms were limited to what was already covered under U.S. law by three Bill of Rights provisions: the Fifth, Eighth and Fourteenth amendments to the Constitution.

…This caveat reduced CID to a virtual nullity. The Bill of Rights does not apply to non-Americans situated outside U.S. territory. Under current law, UNCAT’s CID terms are thus unavailing to alien enemy combatants captured and held in foreign countries during wartime. Such captives may not be tortured, but CID poses no legal obstacle to aggressive tactics that fall short of torture. Tactics that yield intelligence which saves the lives of American citizens and soldiers.

            Mr. McCarthy warns that the effect of the McCain amendment, however, could be to supplant this sensible attitude with one that affords terrorist suspects the protections of our Bill of Rights, including the privilege against self-incrimination:

If that is the case, then al Qaeda terrorists captured on overseas battlefields in the war on terror would have to be given Miranda rights before they could be interrogated. Forget about water-boarding. They would actually have to be advised that they are under no obligation to speak to interrogators, that if they do speak their statements can be used against them as evidence in court, and that they are entitled to have a lawyer — paid for by the American people — present and assisting them at all times during questioning.

            In the Civil War, Abraham Lincoln infuriated civil libertarians by suspending for the duration the touchstone right of habeas corpus.  It appears that in this War for the Free World, we are about to suspend common sense – at least until the next, possibly catastrophic attack demonstrates anew what the latest terrorist murder in Iraq showed all-too-graphically:  We will enjoy no civil liberties if we are destroyed.

Frank Gaffney

Frank Gaffney Jr. is the founder and president of the Center for Security Policy and author of War Footing: 10 Steps America Must Take to Prevail in the War for the Free World .
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