What's going to truly kill more people, the strawman of supposed civil liberties infringements, or the small cells of terrorists who actually do infringe upon our civil liberties (that is, murder us)?

Bradford Berenson, former associate White House council, details the dangers of allowing theoretical dangers to trump real danger, in this case commenting upon the Fourth Circuit Court's decision to nullify the term "enemy combatant" in the Ali Saleh Kahlah Al-Marri case.

The Fourth Circuit panel held that, despite President Bush's formal, written determination that Mr. Marri is an enemy combatant waging war against the U.S., he is instead a "civilian" who can only be treated as an ordinary criminal. It did not question any of the facts put forward by the government about Mr. Marri. Instead, the court held that foreign terrorists on our soil are categorically beyond the reach of American military power.

What about the Supreme Court's decision in Hamdi v. Rumsfeld just three years ago, which accepted that we are at war and held that even U.S. citizens may be detained as enemy combatants? According to the Fourth Circuit decision, that case was different because Yaser Esam Hamdi was fighting for the Taliban, carrying a gun on a traditional battlefield. What about the World War II precedent in Ex Parte Quirin, where the Supreme Court unanimously upheld the power of the military to try U.S. citizen Nazi saboteurs who came onto our shores disguised as civilians to commit acts of terrorism? That, too, was different according to the court, because those terrorists were working for "the military arm of an enemy government."

According to the Fourth Circuit decision, unless you participate in actual combat against the U.S. on something that looks like a traditional battlefield, or are allied with the armed forces of a foreign government, you can't be an enemy combatant, and the U.S. military is powerless to act against you, at least on U.S. soil. A mere al Qaeda terrorist who is a member of a sleeper cell is like Timothy McVeigh or the Unabomber -- a civilian, rather than a soldier, and can only be treated as such by our government. Only the tools of criminal law enforcement are available.

... The implications of this ruling are dramatic. Under it, if Mohammed Atta had been apprehended on Sept. 10, 2001, the military could not have taken custody of him and interrogated him. And absent the ability to charge him with an ordinary crime under the U.S. Code, even the civilian authorities could not have held him for long. The only option would have been for the police to arrest him and give him a Miranda warning and a lawyer. No pressure could have been exerted to extract intelligence that might have prevented the next day's attacks, and he would have been free to alert his confederates who were still at large planning those attacks. And if the evidence against him had been obtained without a warrant, come from a confession not preceded by Miranda warnings, or come in the form of a hearsay intelligence file from a cooperating foreign intelligence service whose assistance had to be kept secret, there would have been no choice but to release him. Under the al-Marri decision, the U.S. homeland becomes a relative safe haven for foreign terrorists on the global battlefield -- an out-of-bounds where the military cannot incapacitate them.

The court's ukase that people like Atta are -- as a matter of law -- just a law-enforcement problem takes us a long way back toward pre-9/11 thinking. It ludicrously misconstrues the Authorization for the Use of Military Force (AUMF) passed by Congress just days after the towers collapsed, which plainly regarded the kinds of individuals who mounted the 9/11 attacks as presenting a military threat and committing acts of war against us.

The idea that the AUMF authorized the use of military force against the Taliban, who harbored al-Qaeda's leadership, but not the actual al-Qaeda terrorists who perpetrated the attacks, simply makes no sense. And the court's ruling ignores that al Qaeda clearly regards itself as making war on us, sending its holy warriors here not merely to transgress our laws but to attempt to destroy our nation and its global power. The 9/11 attacks were directed at the centers of American financial, military, and political might.

Labels: 9-11, al qaeda, civil liberties, guantanamo, intelligence, interrogation, straw man

Here's another warning from National Intelligence Director Mike McConnell, this time in a Washington Post op-ed.

Many Americans would be surprised at just what the current law requires. To state the facts plainly: In a significant number of cases, our intelligence agencies must obtain a court order to monitor the communications of foreigners suspected of terrorist activity who are physically located in foreign countries. We are in this situation because the law simply has not kept pace with technology.
A few weeks ago McConnell told Congress that US intelligence agencies were already hampered by recent knee-jerk restrictions placed on surveillance, which are needed to prevent another 9-11.

These restrictions, naturally, were created by the very Congressional leaders (some Republican but mostly Democrat) to whom McConnell was lecturing.

It's just as author Tom Clancy once said: "First we gutted the CIA, then we blamed it [for 9-11]." We haven't learned from our past failures. And in a few years these same Congressmen and women will be deriding the CIA and FBI for failed to stop a terror attack which they empowered.

Curiously, the Democrats look to Europe -- which itself hypocritically levies criticism upon "big brother" America -- even though French and UK intelligence agencies, for example, are far more empowered to conduct domestic surveillance than their US counterparts!

As Bret Stephens explained in February, "Warrantless wiretaps? Not a problem under French law, as long as the Interior Ministry approves. Court-issued search warrants based on probable cause? Not needed to conduct a search. Hearsay evidence? Admissible in court. Habeas corpus? Suspects can be held and questioned by authorities for up to 96 hours without judicial supervision or the notification of third parties. Profiling? French officials commonly boast of having a "spy in every mosque." A wall of separation between intelligence and law enforcement agencies? France's domestic and foreign intelligence bureaus work hand-in-glove. Bail? Authorities can detain suspects in "investigative" detentions for up to a year. Mr. Bruguiere once held 138 suspects on terrorism-related charges. The courts eventually cleared 51 of the suspects--some of whom had spent four years in preventive detention--at their 1998 trial."

Yet I don't hear the world's Rosie O'Donnells arguing that France is a human-rights violating autocracy...

Perhaps after the next skyscraper crumbles we will learn.

Labels: CIA, democrats, intelligence, straw man, surveillance, wiretap