Whose 'civil liberties,' Hmmm?

Posted: Nov 20, 2001 12:00 AM
The chair declares the floor open for nominations to the dubious title: No. 1 Obstacle to Fuller Appreciation of Civil Liberties. The chair hears the name of Prof. Alan Dershowitz of Harvard. Other nominations? The chair hears the name of Johnnie Cochran. The chair, observing some befuddled expressions, declares a brief recess for elucidation. To say it another way, aren't these hot shot lawyers, both of them, brassy proponents of exquisite protections for almost every accused murderer you can name? There's your problem. O.J.-ism in the criminal justice system, and tender sympathy for criminals, has run civil liberties -- a cornerstone of our free society -- into the ground. That's just one of the reasons President Bush is sure to have his way in the civil liberties "crisis" now percolating -- a crisis in which the anticipated "victims" are the pestilential riffraff who make up Al Qaeda and the Taliban. To rehash: the president has signed an order allowing military tribunals to try accused foreign terrorists. Vermont Sen. Pat Leahy, chairman of the Senate Judiciary Committee, is worried. The normally sensible Bill Safire of the New York Times sees "kangaroo courts" and "drumhead tribunals" in our immediate future. From a hard-core civil liberties perspective, it would seem the thing to do with any terrorists we capture or arrest is to read them their Miranda rights and loan them a quarter to call a lawyer; then we're to accord them all the protections of the American justice system, as distinguished from ... As distinguished from what? From the military tribunal system, as employed by George Washington, Abraham Lincoln and Franklin Roosevelt, and upheld specifically by the U.S. Supreme Court? Bush proposes no more than what we've done in the past without serious objection. He proposes indeed a lot less than Lincoln got away with from 1861 to 1865. It is objected that the rules of evidence aren't the same in military tribunals as in standard criminal proceedings. What of it? An act of war isn't the same as a 7-11 robbery. Nor is it the purpose of a military tribunal to try those entitled to claim constitutional protection, namely American citizens; the defendants will be exclusively, or almost so, foreign terrorists. It's clearly not their Constitution we are talking about. Now just as clearly, no civilized nation sets out to punish the innocent. The British, on entering Kabul in 1879 to avenge the murder of their country's envoy, rounded up a group of probable suspects and hanged the lot -- "a sign," one officer wrote, "throughout the length and breadth of Asia of the righteous fate that overtakes those who disgrace the law of nations." The Bush plan for military tribunals envisions nothing so rough and ready. In this odd age of ours, the hallowed concept of civil liberties has become foully perfumed: a consequence of 10,000 publicity-seeking criminal defense lawyers trying to wear down the legal system with a million quibbles. It's a great living for many. And courts do make mistakes: for which they should be, and usually are, called to account. Most Americans, however, likely understand that civil liberties, presented as a blanket protection for criminals, affronts any reasonable concept of liberty -- for instance, the liberty to go to work without being blown up. Most Americans, I suspect, would trust American military officers to hear out Osama bin Laden (if we capture rather than kill him) without prejudice or undue tenderness, either one. It would be more compassion than Osama seems to have shown thousands of Americans whose faces he had never seen: whom he may have sentenced to death with eyes as dry as the deserts of his homeland, and conscience no less parched.