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
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
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?