- The Washington Times - Tuesday, December 4, 2001

Notwithstanding a torrent of criticism in what amounts to the first major divide in elite opinion since September 11, a large majority of Americans supports the Bush administration's plans to subject certain non-U.S. citizens linked to terrorism to trial before military commissions, rather than in the U.S. court system or before international tribunals. Likewise, there is little public discontent so far over the hundreds of persons detained on visa and other violations since the attacks, persons whom law-enforcement authorities say they are unable to clear of connections to aspiring terror networks operating in the United States.

I think there are two things going on here. First, undeniably, the administration, by its conduct since September 11, has earned a vast store of public trust. Second, though, people are afraid and want their security improved. And who after September 11 can say they are wrong to be afraid?

It seems clear that the American people have a pretty good idea of the stakes in the war on terror for starters, that this is war, and that wartime calls for measures that would be unnecessary or worse in peacetime. Americans seem willing to grant the administration wide latitude in conducting a war that has many fronts.

But public opinion may in fact provide the administration more discretion than Mr. Bush and company should be willing to use. This is historically true of the relationship between public support for law-enforcement efforts and support for civil liberties. It will be up to Mr. Bush, Attorney General John Ashcroft, legal advisers to Defense Secretary Donald Rumsfeld, and the secretary himself, and all other federal officials concerned with these issues, to conduct themselves in a way that fully justifies the public support they receive. This means winning the war, but it also means facing up to the inevitable after-the-fact scrutiny into how the war was won. Hindsight, especially from the comfortable position of victory, can be an especially harsh judge.

Now, about the critics. I have no doubt that most are sincere in their concerns about civil liberties, concerns I fully share. But some seem to me to be truly misguided about what the Constitution, international law, and U.S. law require. And in any case, there is an immense amount of bad faith in the conduct of the argument against the administration.

First of all, the question of whether the administration has acted appropriately needs to be distinguished from the question of whether it has acted lawlessly, and many critics can't be bothered with this distinction.

It is entirely unreasonable to claim that what the administration has done lacks legal justification; on the contrary, the Bush team has found ample constitutional and legal authority for the actions it has taken and the actions it proposes. Critics often speak as if what they think the Constitution and law should require are what the Constitution and law do require. Regardless of how they couch their criticism, what they are really doing is not opposing the contraction or suspension of civil liberties. Their position is neither more nor less than that civil liberties should now be expanded dramatically.

The implications of the idea that the U.S. Constitution affords the same protection to "unlawful combatants" in foreign countries as it does to U.S. citizens at home are revolutionary. Those who base their criticism of the administration on this notion really ought to come clean about what they are proposing. Too few have bothered to make clear that their objections are grounded not in existing law but in their policy preferences for changing the law.

A second, and worse, element of bad faith is the high and mighty denunciation of how these procedures will be applied. Heard anything like the following on your favorite cable show lately? On George W. Bush's say-so, tens of thousands of green card-holding legal U.S. residents could be hauled off in secret before military judges who can convict them and sentence them to death on any standard of evidence the judges choose to apply, without revealing to them the evidence against them or allowing them to confront their accusers, all without possibility of review by the courts.

Please. If anything remotely like this takes place, I will be first on the barricades. It's absurd and mendacious to infer from the order Bush has approved a wholesale abrogation of procedural protections. These hypotheticals are grotesque, and the people propounding them ought to know better. The procedures for implementing the order are now being written; critics shouldn't act as if the order on its face inevitably calls forth the results they describe in their fevered agitation. A more honest approach would be to lay out some markers for those drafting the implementation procedures.

What lies ahead does indeed call for a high level of scrutiny. Too many people, though, seem to have concluded that the time for scrutiny is over and that they can get back to their primary business of denouncing the Bush administration, an activity that was rudely (if, thankfully, briefly) interrupted September 11.

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