- The Washington Times - Tuesday, December 4, 2001

President George Bush's cluster of law enforcement and intelligence initiatives to fight global terrorism has evoked shrill, uninformed, and counterfactual criticism in the usual suspect quarters.
Marching under a civil liberties banner, the detractors have variously alleged that the Bush administration and Congress are gratuitously sacrificing our sacred liberty at the altar of an autocratic or Prussianlike state; that we are countering evil with evil; and, that we are losing the war with Taliban, Osama bin Laden's al Qaeda terrorist network, and co-terrorist villains by duplicating their villainies. To paraphrase a slogan born in Vietnam, we claim to be saving freedom by its destruction.
But "overreaction" seems a more apt description of these indictments than of the government's counterterrorism responses to September 11. The citizen right to be free from clear and present terrorism dangers is every bit as much a civil liberty as the individual right against government overreaching.
It is said that Attorney General John Ashcroft is holding incommunicado and denying access to attorneys and family hundreds detained as material witnesses or suspects of criminal or immigration law violations. The grave charge is thoroughly discredited by facts. The attorney general has publicly and hotly denied the allegation; not a single case of such government abuse has been identified by his accusers; and, not a single lawsuit making such a charge has been filed despite battalions of talented lawyers thirsting for the opportunity.
Something sinister is said to be lurking behind the Justice Department's declination of a marquee-like listing of the detainees and the reasons for their detentions. But the listings could unfairly blacken the reputations of persons later exonerated; provide Osama bin Laden with a potential road map of the government's investigative leads; and, expose the detainees to retaliation either by al Qaeda fanatics or their equally fanatical opposites the former fearing cooperation with the government and the latter wrathful of aliens generally. Indeed, possible retaliation on the heels of publicity is what has aroused self-crowned civil libertarians to denounce so-called "Megan's laws" that disclose to the community the names and addresses of convicted sexual offenders.
Mr. Ashcroft has been denounced for embracing racial profiling and Gestapo tactics. The proffered corroboration is the directive that 5,000 youthful Arab Muslim immigrants originating in countries notorious for harboring or sponsoring terrorists be approached by the FBI and other law enforcement officials to elicit voluntary information relevant to our anti-terrorism war.
But neither government threats nor coercion nor detention is involved in the questioning. All may decline to answer or cooperate with impunity.
The selection of Arab Muslims in contrast to other immigrant groups as strong candidates for counterterrorism information pivots not on odious race or religious stereotyping. It turns on what is known about the 19 hijackers guilty of the September 11 war crimes and their Osama bin Laden, al Qaeda, and Taliban sponsors; and, the characteristics of state sponsors of terrorism in the Middle East: Iran, Iraq, Syria, and the Sudan. The nations are Muslim or Arab and have been complicit in assisting Islamic terrorists targeting United States citizens and soldiers in the past. With such knowledge of our enemy's earmarks, the Justice Department would have been justly satirized and derided if it had selected immigrants from the Vatican or Hungary as targets for noncoercive questioning.
Ponder this analogy. Suppose a rape victim identifies the culprit as white. Officers are thus instructed to place only whites on their suspect list. Is that invidious race profiling or a sensible weeding out from all theoretical perpetrators a narrower category that the uncontested evidence demonstrates contains the guilty? And with limited investigative resources and who would covet a KGB or Gestapo agent on every doorstep or street corner the government must resort to rough-and-ready hunches during the initial phases of an investigation.
Well-intentioned shrieking has been occasioned by President Bush's authorization for military commissions to try aliens implicated in terrorism war crimes or in harboring such suspects. The customary soundtrack features such grim adjectives as "frightening," "abominable," or "unconstitutional."
The authorization has been likened to the 1798 Alien and Sedition Acts prohibiting criticism of the government and our infamous World War II concentration camps for citizens and resident aliens of Japanese ancestry.
We should ape the civilian model for the trial of terrorists, it is urged, as was done in convicting some of the guilty for plotting or perpetrating villainy against the World Trade Center and other New York City landmarks in 1993 and for the 1998 Embassy bombings in Kenya and Tanzania.
A civilian model, however, seems deficient in comparison to a military commission where aliens during wartime suspected of terrorism war crimes are on trial. The former occasionally convicts the innocent, as highlighted by post-conviction DNA testing and otherwise. Further, civilian procedures intentionally tilt the rules in favor of counterfactual acquittals because of our moral abhorrence of punishing an innocent citizen.
President Bush's military commissions might also convict innocent aliens, but that risk is similarly hazarded with civilian trials sporting jurors seared by September 11. What juror would vote to acquit bin Laden?
History also deserves consultation. Where is the evidence that military commissions are probable engines of injustice like the Spanish Inquisition?
Does anyone maintain that the Nazi saboteurs and Japanese Gen. Tomoyuki Yamashita found guilty by military commissions that were sustained by the Supreme Court in Ex parte Quirin (1942) and In re Yamashita (1946) were innocent?
Indeed, military commissions may be superior to civilian tribunals as finders of fact. They may rely on secret intelligence sources and methods that would be inadmissible or withheld in an open civilian proceeding because thought more important to the national security than convicting a few individuals. In the atomic spy trials of Julius and Ethel Rosenberg, for example, conclusive evidence of guilt was withheld from the jury by the government to conceal our "Venona" files from the Soviet Union showing our cracking of its World War II codes.
Finally, President Bush has renounced any attempt to shield his anti-terrorism initiatives from constitutional testing in the United States Supreme Court. If he has usurped, that esteemed, independent and impartial tribunal will arrest the constitutional transgressions.
Unschooled criticism of government, of course, is better for our democracy than would be docility. But informed and astringent critiques would be better yet.

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