The Counterterrorism Club By Thane Rosenbaum

The Wall Street Journal


The Counterterrorism Club
July 18, 2007;
Page A15

Last week, Germany, a relatively unscathed contestant in the game of radical Islamic roulette, publicly debated the antiterrorism proposals of its interior minister, Wolfgang Schäuble. The law under consideration would permit the government to engage in online searches of computers and to shoot down hijacked planes. Mr. Schäuble also recommended the indefinite detention of suspected terrorists and the assassination of terrorist leaders abroad.

With vivid memories of the Nazis and Stasi (the East German security police), Germans are questioning whether they are prepared to compromise civil liberties in light of the aborted attack last summer -- when two suitcase bombs failed to detonate on a German commuter train -- and the recently bungled terrorist strikes at Glasgow Airport and outside a London nightclub. In the background are memories of Madrid, Bali, Istanbul, London and, of course, 9/11, where terrorism was not interrupted.

Meanwhile, in France, President Nicolas Sarkozy reaffirmed his support for installing 1,000 closed-circuit surveillance cameras throughout Paris like those Britain already has in place. Australia, New Zealand, Canada and the U.K. have all implemented procedural and evidentiary exceptions, and modified their rules of law, in response to the special circumstances of terror in the modern world.

Welcome to the counterterrorism club.

More and more, liberal democracies, haunted by post-9/11 anxieties, are having their own Patriot Act moment. In March 2006, President Bush signed the USA Patriot Improvement and Reauthorization Act, deepening the resentment of many Americans who questioned the constitutionality of the original statute. Nonetheless, other nations have adopted similar unprecedented laws and, hearing the chorus of objections that have followed, are experiencing their own anguish over the perceived mortgaging of their constitutional freedoms.

Surely this was to be expected. Political and legal systems that promote civil liberties and due process work best with ordinary crimes such as murder, rape, robbery and embezzlement. In such instances, there is understandable outrage when the guilty go free, yet it is deemed the essential price of democracy.

But terrorists do not commit ordinary crimes. Given their secretive cellular structure, most terrorists do not engage in overt acts. To investigate them with the usual procedural safeguards in place and prosecute them without relaxing the standards of proof would be pointless. Moreover, not detaining them for a reasonable period of time is equally absurd. To do otherwise turns the Constitution into a license to kill.

In fact a special set of laws dealing specifically with the phenomenon of world terrorism is necessary and inevitable. How else can a democracy defend itself against those who seek to destroy democratic values and institutions, whose entire enterprise is dedicated to annihilating fundamental freedom?

The presumption seems to be that any dilution of democracy, regardless of circumstance, diminishes the capacity to remain democratic at all. Once the liberal bearings become contaminated, the progressive impulse withers like an atrophied muscle. This argument is no more convincing than those who oppose anti-assault weapon legislation on the fear that the removal of the most dangerous firearms from the streets necessarily leads to the disarmament of the entire nation.

The fact is, it's possible to be liberal, progressive, and still not stupid. It's good to be vigilant when it comes to safeguarding our Constitution, but it's crazy to think that this document, without some supplemental statutory assistance, will enable the government to protect our democracy -- not just as a philosophical principle, but as a state of fact.

It is simply not true that the Constitution is always applied consistently and without exception. Pedophiles, for instance, are clearly on the short end of constitutional justice in America, with their detentions lasting not only indefinitely but often infinitely. Few seem to mind. We prosecuted Nazis in Nuremberg knowing that the full sweep of constitutional protections would have resulted in no convictions -- an unbearable outcome -- and so we created new laws with relaxed standards.

Is terrorism any less of a special circumstance?

Yes, we have made mistakes in the past when we have applied our laws à la carte rather than holding fast to the prix-fixe menu of the Constitution. The internment of Japanese-Americans during World War II was a moral scandal, and the prosecution of communists, in many cases, was excessive. For this reason, all precautions must be undertaken to respect the presumptions of innocence and to ensure that citizens do not live in fear of the state. Isn't it also obvious that Japanese-Americans and even card-carrying communists never managed to bring down skyscrapers, set fire to the Pentagon and blow themselves up on roadsides, subways and pizza shops?

One distinctive feature of this war on terror is that it is being fought on two fronts. There is the menace of the phantom-like terrorist who isn't as easily identifiable as the common criminal and yet is far more dangerous. And there is the war with ourselves over maintaining our distinctive values in the face of persistent threats to our national security. Many liberals deny the reality of the first front. Many conservatives the second. Those who accept both realities understand that this is a war waged in anguish: not just because we must kill, but because our enemy is too lethal for our laws.

Without sacrificing what it means to live in a free society, we have been forced to create a different standard of justice for the terrorist. But we must remember that endorsing the principle of the Patriot Act is not the same thing as accepting all of its features, many of which could be greatly improved.

Our allies are beginning to realize all of this, and that's why it was inevitable that the USA Patriot Act would attract many international compatriots.

Mr. Rosenbaum, a novelist, essayist and law professor at Fordham, is the author of The Myth of Moral Justice (Harper Perennial, 2005).

URL for this article: