- The Washington Times - Wednesday, May 27, 2009

OPINION/ANALYSIS:

“Better Red than Dead”: That was the effete refrain of liberals at the height of the Cold War. In other words, if the United States were required to choose, it should ape communist tyranny rather than accept mortal risks in defense of freedom. The United States rejected the liberal dogma; Soviet communism died in 1991.

At present, a variation of the “Better Red than Dead” debate confronts the United States: namely, “Better Safe than Free.” The argument is: An arguably greater risk of a terrorist attack makes it better to be safe under a secret, omnipotent government in which the president is the law than to enjoy the thrill and dignity of self-government, transparency, freedom and checks and balances.

The debate’s background is a post-Sept. 11 environment of permanent war with international terrorism with a planetwide battlefield that authorizes the U.S. to employ deadly military force and military law everywhere in the world - including in the U.S. itself. Former Vice President Dick Cheney’s speech Thursday at the American Enterprise Institute illuminates the debate. Its leitmotif was that after the hijackings and carnage on Sept. 11, the Bush administration had the task of doing anything the president saw fit to reduce U.S. exposure to a second attack: for example, vandalizing the Constitution, rather than obeying the required oath to defend and uphold the Constitution.

Thus, the Bush administration detained suspected enemy combatants - citizens and noncitizens alike - without accusation or charge at Guantanamo Bay. The Supreme Court, dominated by appointees of Republican presidents, held the practice unconstitutional.

The Bush administration established military commissions by executive order to try war-crimes suspects with secret evidence, thus combining judge, jury and prosecutor in a single branch. The Supreme Court held the commissions illegal.

The Bush administration prohibited enemy combatant detainees from challenging the legality of their detentions in federal courts. The Supreme Court held the prohibition unconstitutional.

The Bush administration conducted warrantless electronic surveillance against an indeterminate number of Americans on American soil in the Terrorist Surveillance Program (TSP), contravening the Foreign Intelligence Surveillance Act (FISA). Congress had amended FISA on numerous occasions to adapt to new communications technologies and to make adjustments for the heightened danger. The fact that the United States would be spying on suspected international terrorists or their aiders and abettors would not have been news to al Qaeda; its members generally hail from nations where spying is ubiquitous. They are indifferent as to whether they are spied on with or without judicial warrants, the same means of evasion are taken.

The TSP nevertheless was concealed from the American people to circumvent public scrutiny and accountability. The Bush administration employed every legal maneuver in the books to circumvent a judicial ruling on the legality of the TSP, for example, invoking the defenses of state secrets or lack of standing. Government by the consent of the governed, however, is a farce if the people do not know generally what their government is doing.

The U.S. treaty and criminal prohibitions against torture contains no exceptions. There is no “ticking time bomb” exception; there is no “high-value detainee” exception; there is no “urgent information” exception. Of course, such exceptions can be made part of the law if Congress amends the anti-torture law or the president revokes the torture treaty, but neither was done during the Bush administration.

America prosecuted waterboarding, i.e. simulated drowning, as torture after World War II, when the Japanese practiced it on U.S. captives, and Tom Ridge, a Republican former Homeland Security secretary, declared that waterboarding constitutes torture under U.S. laws. Yet neither the Bush nor Obama administrations have done anything to criminally investigate waterboarding as torture.

Current and former White House officials were instructed by President Bush to defy congressional subpoenas for testimony on the theory that presidential aides are constitutionally shielded from congressional oversight or scrutiny. A federal court judge appointed by Mr. Bush held the defiance unconstitutional.

In the process of seeking to make the U.S. absolutely safe, the Constitution and rule of law have been crippled.

It speaks volumes that Mr. Cheney’s AEI address never once mentioned the sole oath taken by the president, vice president and all other officers of the United States - a vow to support and defend the Constitution. Mr. Cheney speaks of “the strategic thinking behind our policies” and “defending the country” rather that defending the Constitution.

“Our job was to stop [a sequel attack],” and, “to make certain our nation never again faced such a [Sept. 11] day or horror,” Mr. Cheney said. However, while the best way to reduce to zero the probability of another 9/11 is to kill every person outside the U.S., no sane person supports that harrowing counterterrorism strategy.

The problem with the “Better Safe than Free” slogan is that it has no standard for line-drawing. Should the police be authorized to arrest or search any citizen on a hunch that the target might be a terrorist? Why not intercept every conversation and every e-mail of every American in the United States in the hope that communications will be captured with clues about the next would-be act of terrorism?

Mr. Cheney’s general counterterrorism theory is that if there is even a 1 percent chance of a national security danger, the president must treat the prospect as an absolute certainty and act accordingly. For instance, if there is a 1 percent chance that a citizen or noncitizen is guilty of a war crime, the U.S. government should treat the suspect as categorically guilty. Forget about proof beyond a reasonable doubt or even by a preponderance of the evidence.

Conservative statesman Edmund Burke admonished the British Empire as it soared at the end of the 18th century: “I dread our own power and our own ambition. I dread our being too much dreaded. It is ridiculous to say that we are not men, and that, as men, we shall never wish to aggrandize ourselves.”

The U.S. should heed that admonition in its quest for absolute safety.

• “The Armstrong Williams Show” is broadcast weeknights on XM Satellite’s Power 169 channel from 9 to 10 p.m.