Measures to fight terrorism neither benign, draconian

Homefront critics of the Bush administration's antiterrorism tactics haven't fared much better than the Taliban warriors in Afghanistan, but at least they are not having to hide in caves. Although the president's opponents have lost nearly all of the major battles, the debate over the balance between security and civil liberties has been a healthy one for our democracy, and it has had some positive results. The antiterrorism bill that Congress sent to President Bush was significantly better than the administration's original version. And the indictment of Zacarias Moussaoui on terrorism conspiracy charges last week suggests that military tribunals will be used sparingly, if at all.

This debate will continue, as it should, and so will the hyperventilating in some quarters. Law school professors, editorialists and such groups as the American Civil Liberties Union and People for the American Way joined a few conservative libertarians in leading the charge against some of the administration's most controversial antiterrorism policies. To listen to some overwrought critics, you would think the president and Attorney General John Ashcroft had shredded the Bill of Rights and turned America into a police state.

That's not to say the administration hasn't gone too far in some areas, or that there are not legitimate concerns about the tradeoff between security and civil liberties. But some critics have been debating the issue in a vacuum, as if 9-11 never happened. Moreover, they have exaggerated the threat to civil liberties of some of the more reasonable antiterrorism actions and have opposed nearly every security measure that Congress passed by overwhelming bipartisan majorities. It's no wonder they have failed to garner much public support or persuade their usual allies on Capitol Hill to join the battle.

Most people understand something that the civil liberties lobby doesn't seem to have fully grasped -- that we are waging a war against terrorism, not going after the Mafia. Given a choice between hysterical opposition and uncritical support of the president, most Americans have chosen the latter. Many say they have no problem with bringing terrorists before military tribunals or with the government's listening in on conversations between terrorist suspects and their lawyers. They think authorities should be able to detain noncitizens indefinitely without releasing their names or the charges, and they see nothing wrong with interrogating 5,000 Arab and Muslim students studying at U.S. universities.

For that matter, some polls have found, a majority of Americans say they stand ready to sacrifice some of their own rights in the war on terrorism, even accepting government monitoring of their mail and phone calls. A nation willing to give up some of its own freedoms is not going to have a lot of sympathy for noncitizens swept up in the 9-11 investigation.

Andrew Kohut, a nonpartisan pollster, was quoted the other day as saying: "People just don't want terrorists to take advantage of a legal system that already bends over backwards too much for defendants. People know what the fine print says. But this comes from the gut."

Politicians can read the polls, which may explain why the Senate Judiciary Committee was more lamb than lion when a defiant John Ashcroft appeared at a recent hearing to defend the administration's antiterrorism policies. Instead of being responsive to the committee's questions, the attorney general suggested that anyone expressing concern about civil liberties was a terrorist dupe, and he mocked concerns over the president's plan to convene military tribunals in some cases. Ashcroft asked: "When we come to those responsible for this (the Sept. 11 attacks) . . . are we supposed to read them their Miranda rights, hire a flamboyant defense lawyer, bring them back to the United States to create a new cable network of Osama TV?"

That hearing may have been the last gasp of congressional oversight in this matter. With elections coming up next fall, Democrats are terrified of saying anything that could be used to portray them as soft on terrorism. That probably explains why no one on the committee made a serious attempt to question Ashcroft's legal authority to eavesdrop on lawyer-client conversations, or probe his views about the limits of his expanded law-enforcement powers. The president and his attorney general keep assuring us that they will use their new powers sparingly and that American citizens have nothing to fear unless they are caught aiding and abetting terrorists. But our liberty cannot rely on the good intentions and self-restraint of any president. That's why we have the Bill of Rights.

Maybe everyone should just take a deep breath and get a grip on themselves. The fact is, what the administration has done so far is neither as draconian as its critics charge nor as benign as it defenders suggest. Some of the measures, such as modernizing government surveillance to keep pace with technology, make sense.

The detention of hundreds of foreigners for questioning is less disturbing than Ashcroft's refusal to release their names or any information about them. He also refuses to respond to charges that many of the detainees have been mistreated and denied legal counsel. Without that information, how can we determine whether the detentions are reasonable or justified?

The issue that has provoked the fiercest debate is the president's executive order creating military tribunals to try foreign terrorist suspects. Critics of the president's order have denounced the tribunals as "kangaroo courts" and worse. Most people can accept the limited use of military tribunals to try Osama bin Laden and his top lieutenants as part of the military campaign in Afghanistan. The problem, however, is the disturbingly broad language of the president's executive order.

It's hard to know to what extent the tribunals will offend the American concept of justice until the final rules are written.

The Economist magazine reported last week that Patricia Wald, a retired federal judge and a former member of the Yugoslav war-crimes tribunal, holds the view that a war against terror is not something ordinary domestic or international law is designed to deal with. The magazine said: "Al-Qaida's acts are not ordinary crimes. They are undeclared acts of war -- and not a war between sovereign states, such as other tribunals have had to deal with. So there is a prima facie case for saying that the current civil system cannot deal effectively with mega-terrorism."

The real question, the Economist said, is not whether such tribunals should exist, but what rules they should follow?

Under the president's order, the military could hold trials in secret, choose counsel for the defendants and impose the death penalty by a two-thirds vote. There would be no right of appeal. In recent days, administration officials have suggested that the president understands the need to clarify and tighten the rules that will govern the tribunals. Michael Chertoff, an assistant attorney general, recently told the Senate Judiciary Committee that rules will be drawn up to guarantee "a full and and fair trial." Meanwhile, White House counsel Alberto Gonzales says the tribunals will be used only for al-Qaida terrorists captured on the battlefield, although that is not what the presidential order says.

The fact that the Justice Department decided to try Zacarias Moussaoui in federal court should allay some of the concerns civil libertarians have expressed about military tribunals. But guess what? On Capitol Hill, some Democrats, including Sen. Joe Lieberman of Connecticut, questioned the administration decision to prosecute Moussaoui in civilian court. They think he is a perfect candidate for a military tribunal.

John W. Dean III, a Watergate figure in the Nixon White House, recently told the Philadelphia Inquirer the administration could have headed off much of the criticism had it asked Congress to sign off on military tribunals (it's hard to imagine Congress saying no given public opinion). He also faulted the White House for not doing a better job of explaining the details of the order.

"The president would be on a stronger footing if they had explained what they are doing, and it would eliminate 300 law professors, who are assuming the worst case, from getting together" to oppose tribunals, Dean said.

I hope the guardians of civil liberties maintain their vigilance and continue to speak out. No one should question their patriotism. Many of their concerns are valid; others are exaggerated. You don't have to be that old to remember the government's abuse of its law enforcement powers under J. Edgar Hoover and Richard Nixon. So let's keep asking questions and demanding accountability. Let's also recognize that not everything the Bush administration is doing to fight terrorism is bad. And above all, let's not forget what happened on Sept. 11.

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