Wednesday, November 21, 2001

There’s a fight on the right about civil liberties, and it looks like it’s going to be fun.

The conservative movement has always been less homogenous than its detractors have been willing to concede. There are literally dozens of different schools of thought on the right that are, in principle, at war with each other.

Perhaps the most significant ideological fault line running through the right is the one that divides those who see the state as their primary enemy and those who see the Left as the most dangerous threat.

Of course, this isn’t a perfect distinction. Since the government is the tool of choice for the left, these two broad conservative factions often see their political priorities the same way. Whether you think handing out condoms in grade schools or subsidizing artists to dunk Jesus in a jar of urine is a bad idea on the merits, or if you think the state simply doesn’t have the authority to do it, being anti-state or anti-left is often a distinction without a practical difference.

But the one time we can be sure this fault line will be exposed is during a war. Wars tend to split the American right straight down the middle, if not on the big questions of whether a war is worth fighting at all, then certainly on the smaller issues of how to fight it.

The current debate over military tribunals is just the latest example in this long historic debate. President Bush recently announced that he reserves the right to prosecute suspected terrorists, captured here or abroad, in military tribunals.

These tribunals are significantly less mindful of individual liberties than U.S. military courts martial. The president and the secretary of Defense will determine who gets tried in these proceedings and under what circumstances. Defendants will not be able to appeal the tribunals’ decisions, and it appears that they could receive a death sentence when even a simple majority of the jury deems it justified.

Safire’s not alone, of course. Wes Pruden, the conservative editor in chief of The Washington Times has also come forward, with only slightly more restraint, to denounce military tribunals as inimical to our civil liberties. He writes: “There’s nothing about this, or the plans for this, that does not insult centuries of American law and justice, and the ancient canons of Anglo-Saxon common law from which American law and justice proceed.”

Meanwhile, The Wall Street Journal, conservative law professors, former staffers in Republican administrations and a handful of conservative columnists have come out in vociferous support of military tribunals.

Personally, I think this is an easy call. Remember: No one is suggesting the grossly unconstitutional step of prosecuting American citizens in military tribunals. Bush wants tribunals only for people taken prisoner in Afghanistan, primarily Osama bin Laden, or aliens in our country caught in the act of committing terrorism. A civilian trial for bin Laden, even critics of the Bush decision concede, could be a political, intelligence and moral disaster.

The Geneva Convention and Uniform Code of Military Justice allow for the shooting of spies during times of war. If members of al-Qaida — who enter our country disguised as civilians only to attack civilian targets — aren’t spies in the strictest sense, it’s only because they are worse than spies, not better. Wartime spies and war criminals get military tribunals; why should al-Qaida’s terrorists get better treatment?

What’s most interesting, though, about this debate among the right is that both sides accuse their opponents of being hysterical or irrational. I do think, for example, that Safire’s argument is so rife with hyperbole and exaggeration that he could stand a slap in the face just to calm him down. But he, in turn, accuses the attorney general of being “panic-stricken.” And Pruden writes that Bush’s decision was made in a climate of “hysteria and fear.”

Meanwhile, tribunal proponents trust the government to a certain extent — after all, if the president wanted to abuse his power he wouldn’t need tribunals to do it. But we trust the American people even more. They will tolerate a lot from a government forced to fight a new kind of war, but conservatives should trust that they will not tolerate being dragged down a slippery slope to tyranny.

You can write to Jonah Goldberg in care of this newspaper or by e-mail at

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