- The Washington Times - Tuesday, December 18, 2001

The massive terrorist attacks of September 11 brought home to the United States its vulnerability. Protecting our security has become a critical challenge. So has protecting our freedom.

People who seek to do the first often sacrifice the second.

So it has been in the war on terrorism. Perhaps the greatest tragedy is where liberty is traded for safety, yet no one ends up more secure. For instance, many of the new rules involving airline travel do nothing to prevent terrorism.

At least they are mere inconveniences, as opposed to assaults on fundamental liberties. More serious are issues involving wiretaps, searches, detentions and trials. Establishing a fair criminal justice system involves the core of a free society.

The principal threat comes not from men of ill will, though they exist in the United States. It comes from men of zeal officials ready to treat everyone as a suspect, obliged to prove his or her innocence of any number of imagined offenses.

The most critical issue is how to try those involved in the September 11 attacks directly and with Osama bin Laden's al Qaeda network more generally. For the former, drumhead justice and a firing squad actually, a much more painful, extended execution would seem appropriate. Save the firing squad for the latter group.

But the problem is determining who is involved, and to what degree. The guilt of bin Laden now seems self-evident, but that of many others is not.

It is particularly important to reject the tempting circularity: They are terrorists, so they don't deserve legal protections. Yes, but how do we know they are terrorists? We must prove, not assume, it.

For American citizens, as well as long-time residents in the United States people integrated into American society that proof should be made in a traditional criminal court.

One-time Supreme Court nominee Robert Bork has called for military tribunals for Americans lest terrorists go free, but this argument could be applied to any prosecution of any criminal defendant, from drug dealer to mobster, that relies on sensitive evidence.

The United States is threatened, but not under siege; the courts are open. The nation best protects its liberty and demonstrates its stability by proceeding with business as usual.

Where it has departed from this standard in the past it has done so needlessly. Although the civilian courts were operating, military tribunals dispensed dubious justice throughout the Civil War, including hurriedly convicting those charged in the assassination of Abraham Lincoln.

The United States need not, however, be so gentle with apparent terrorists captured in war overseas. Participation in al Qaeda and associated groups effectively shifts the burden of proof. It is fair to presume the complicity of such people otherwise the United States would not be bombing al Qaeda strongholds and attempting to kill al Qaeda members.

Should U.S. forces be unfortunate enough to actually find some al Qaeda members alive, there would be no need to ship them back to the United States to be defended by Alan Dershowitz, Johnnie Cochran or some other celebrity lawyer. In a state of war against an overseas foe (yet another reason Congress should have formally declared war), the normal process of criminal investigation and prosecution is unrealistic.

Still, punishment cannot be wholly arbitrary by a nation with such a long-standing commitment to the rule of law. Yet an international, Nuremberg-like court would be a poor solution.

Even today, a half century later, Nuremberg leaves an uneasy feeling. The Nazis in the docket were monsters deserving of death, but creating new international crimes ex post facto to be enforced by the victors hardly met the definition of justice.

Better is President Bush's proposal for military tribunals. In the case of al Qaeda, the United States should unashamedly form American panels to try terrorists under U.S. law for the killing of U.S. citizens. No pious pronouncements about international opinion.

But the tribunals should be authorized and organized by congressional legislation, not presidential decree, especially one as broad as that issued by Mr. Bush. Congress should strictly limit who can be brought before the panels and for what.

A sunset provision should restrict the tribunals' duration; renewal would require a new congressional vote. And legislators should declare a formal state of war with the ousted Taliban government and al Qaeda terrorist network.

Other countries should similarly deal with their own terrorists. Terrorism is an international problem, but remains highly rooted in the political struggles of individual nations such as India, Indonesia, Israel and Sri Lanka.

The war on terrorism is a real war, in contrast to such metaphorical monstrosities as the "war on drugs." Real wars require that we balance liberty with security; but balance carefully we must, lest we sacrifice so much of the former that we lose sight of what we are fighting for.

Doug Bandow is a senior fellow at the Cato Institute and a nationally syndicated columnist.

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