Beware of executive alarms

The international terrorism danger to the United States falls decisively short of war. The gruesome deaths inflicted by September 11, 2001, and sister terrorism incidents in Bali, Madrid, Casablanca and London over the last six years are dwarfed by about 100,000 murders in the United States alone during that period. Neither President Bush nor Vice President Dick Cheney however, has declared “war” against murder and supplanted customary civilian courts with military commissions to try accused murderers with secret evidence and coerced confessions.

To aggrandize executive power, the Bush-Cheney duumvirate has inflated the international terrorism danger light years beyond the vastly greater risk of murder. They and their executive branch myrmidons maintain Osama bin Laden is militarily indistinguishable from V.I. Lenin, Leon Trotsky, Josef Stalin, Adolf Hitler, Emperor Hirohito and Benito Mussolini combined; that a Caliphate will replace the White House unless instruments of war are unleashed against international terrorism, for instance, suspending the Great Writ of habeas corpus; detaining American citizens indefinitely as enemy combatants based on secret evidence; torture; unchecked spying on Americans in contravention of the Foreign Intelligence Surveillance Act; kidnappings and secret prisons abroad; concealing information from Congress under the banner of state secrets; and, declaring every square inch of the United States an active battlefield where military tactics and military law can be imposed at the discretion of the president. Moreover, President Bush ensures that war with international terrorism will be perpetual by embracing a utopian definition of victory: when the Milky Way is purged of any creature that might dream of threatening an American with terrorism.

The “slam dunk” evidence bugled by the Bush-Cheney war chorus is unconvincing. It is said al Qaeda’s ambition is the destruction of Western civilization. A danger calculus, however, includes both intent and capability. A malevolent mullah overheard praying that the United States will drown from a biblical-like flood should not place the nation on a war footing.

To be sure, al Qaeda’s capability justifies vigilance. The abominations of September 11 killed about 3,000. Al Qaeda’s international network is authentic, although patchy and erratically coordinated. Its access to money or arms, however, is diminutive compared with state sponsors of terrorism with which the United States is not at war: Iran, North Korea, Syria, Cuba and Sudan.

No American on American soil been murdered or maimed by al Qaeda in more than six years, while terrorism conspiracies have been uncovered or punished through customary law enforcement tactics in their pre-embryonic stages, for example, the Lackawanna Six or the conspiracy conviction of Jose Padilla.

Neither Mr. Bush nor Mr. Cheney has demonstrated that war measures against international terrorists have foiled or deterred beyond what would have been achieved by treating them all as criminals, not warriors. They simply hymn, “Trust us instead of checks and balances as your saviors; our war measures are succeeding but we must keep the successes secret to protect sources and methods.” But if Messrs. Bush or Cheney had success stories to narrate, they would have been declassified long ago and leaked to the media. Remember Mr. Bush’s unilateral declassification of information about Iraq’s weapons of mass destruction to discredit Ambassador Joseph Wilson and Valerie Plame.

James Madison, father of the Constitution and president of the United States in the War of 1812, warned against the incentive of the executive to manufacture alarums. He lectured: “War is in fact the true nurse of executive aggrandizement. In war, a physical force is to be created; and it is the executive will, which is to direct it. In war, the public treasuries are to be unlocked; and it is the executive hand which is to dispense them. In war, the honors and emoluments of office are to be multiplied; and it the executive patronage under which they are to be enjoyed; and it is the executive brow they are to encircle. The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honorable or venal love of fame, are all in conspiracy against the desire and duty of peace.”

Madison was not arguing for pacifism, but for public, congressional and judicial skepticism over a president’s national security claims. Skepticism was warranted not because of superior access to foreign intelligence or experts, but because of the president’s irresistible temptation to misrepresent the facts to justify expanding his own powers. Thus, Rep. Abraham Lincoln introduced “spot resolutions” in 1846 demanding that President James K. Polk identify with precision the spot where a drop of American blood had been shed because of alleged Mexican aggression. Lincoln elaborated: “Let him answer fully, fairly and candidly. Let him answer with facts and not with arguments. Let him attempt no evasion, no equivocation.”

If President Bush’s war against international terrorism is not confronted with corresponding skepticism, the nation will have crossed the Rubicon into an endless war; a condition that Madison lamented would be the end of freedom.

Bruce Fein is a constitutional lawyer at Bruce Fein & Associates and chairman of the American Freedom Agenda.