- The Washington Times - Tuesday, September 18, 2001

War summons extraordinary powers, and President George Bush and Congress have placed the nation on a war footing.

The power to wage war, as Chief Justice Charles Evans Hughes taught, is the power to wage war successfully.

Before Sept. 11, the nation's legal arsenal did not imagine the scale of villainy to which terrorists would stoop, just as Jews thought a Holocaust unimaginable before 1941. The life of the law, however, is experience, as Justice Oliver Wendell Holmes preached.

Accordingly, the nation should adapt its rule of law to the heightened scale of terrorist peril demonstrated last Tuesday. The Constitution is no suicide pact.

President Bush should revoke the executive order prohibition against assassinations by United States employees or agents when terrorists or their collaborators are targeted. Assassinations are no more legally or morally dubious than customary war measures that inescapably risk killing innocent noncombatants.

Indeed, Count Claus von Stauffenberg and his colleagues were acclaimed by the civilized world for their attempted assassination of Adolf Hitler in 1944. The vast majority still applaud President Harry Truman's accelerated termination of World War II through the atomic bombings of Hiroshima and Nagasaki. The savings in both American and Japanese lives because of Japan's swift surrender dwarfed the number of casualties.

In sum, an absolute ban on assassinations sponsored by the United States is no more warranted than would be an executive order absolutely banning the use of nuclear weapons.

President Bush should also lift the restraints on the use by the Central Intelligence Agency of human rights violators in our war against terrorism. During World War II, we forged an alliance with Josef Stalin despite his unrivaled orchestrated killings of tens of millions through domestic famines, massacres and show trials and dastardly wars against Finland and the Baltic States.

In the 1991 Persian Gulf war, we enlisted the collaboration of Syria despite its odious listing as a sponsor of terrorism. Why should there be any moral squeamishness about employing a lesser evil to combat a greater?

Congress should exempt covert actions to fight terrorism from the presidential reporting requirements to the congressional intelligence committees or congressional leadership mandated by 50 U.S. Code, section 413b. The history of congressional leaks is troublesome, and discourages foreign countries from cooperation with the United States.

In searching for co-conspirators or material witnesses in the Sept. 11 villainies, President Bush, with statutory approval by Congress, should authorize race or religious profiling. The undisputed evidence at present points to Arabs fanatically devoted to Islam as prime suspects, including Osama bin Laden (already indicted for allegedly masterminding the 1998 embassy bombings in Nairobi and Dar es Salaam). Common sense dictates that the FBI and sister law enforcement agencies target members of that group in questioning, stops and frisks, and obtaining arrest and search warrants.

That does not suggest all Arab Muslims are suspect, but simply more likely so than others. And at the investigatory stage, probabilities, not certainties, must be the lodestar of law enforcement efforts. Race or religion may also be pertinent to investigating future terrorism despite the inescapable risk that the presumption will prove erroneous, as in the Oklahoma City bombing perpetrated by Timothy McVeigh.

Congressional concurrence with President Bush on race or religious profiling to investigate terrorism is constitutionally significant. Revered standards of equal protection frown on such classifications, and their misuse to intern Japanese-Americans in concentration camps with no evidence of actual or planned sabotage during World War II counsels caution.

But caution should not occasion paralysis, and concentration camps for tens of thousands for several years is far more worrisome than investigatory stops, interrogations and even arrests. Congressional approval of race or religious profiling would diminish constitutional concerns. As Justice Robert Jackson explained in Youngstown Sheet & Tube vs. Sawyer (1951), the president's exercise of a specific war power has greatest claim to legitimacy when it has been specifically authorized by Congress.

Finally, Congress should make criminal high-level participation in any government that aids, shelters, or otherwise promotes terrorism, with no head-of-state exemption. The president would elaborate the earmarks of culpable participation on a country-by-country basis. Key Taliban leaders,who are sheltering indicted terrorist bin Laden, would be strong candidates for indictment under the proposed statute.

The proposed countermeasures to terrorism will not eliminate the evil.

But that is no excuse for inaction. Less terrorist harm is better than more, and greater punishments for terrorists is better than lesser.

The rule of law wavers between order and liberty. All liberty and no order is anarchy. All order and no liberty is the Gestapo. The fact of Sept. 11 tilts the rule of law in the United States in favor of more order and less liberty to prevent a second edition of a horror exceeding Pearl Harbor or Antietam and to apprehend the villains.

History teaches the risk of overreaction, for example, the Alien and Sedition Acts of 1798, the Espionage and Sedition Act prosecutions of World War I, Attorney General A. Mitchell Palmer's indiscriminate raids and deportations in its aftermath, and the Japanese-American disgrace of World War II.

But the United States has learned from these missteps. The risk of a reprise has dwindled. President Bush and Attorney General John Ashcroft, for instance, have warned against vigilante attacks or ostracism of Arab Muslims. A more muscular war against terrorism thus seems well worth the gamble.

Bruce Fein is general counsel for the Center for Law and Accountability, a public-interest law group headquartered in Virginia.

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