- The Washington Times - Wednesday, September 26, 2001

In 1996, Gen. Alexander Lebed, former Yeltsin national security adviser and candidate for president of Russia, came to the United States to warn us that Russia had lost more than a dozen nuclear suitcase bombs. Each of those bombs, the size of a pineapple and weighing 100 pounds, if detonated would utterly obliterate an area four miles square. To this day the CIA has been unable either to prove or disprove Gen. Lebed's assertion. At the time, Sen. Richard Lugar a highly respected member of the Senate Intelligence and Foreign Relations Committees publicly said that he took the claim seriously.

In the last week in high European journalistic and government circles, a rumor has circulated that Osama bin Laden's organization may be in possession of some sort of nuclear material. Of course, rumors are often false.

The New York Times has reported in the last week that in the event of a smallpox or anthrax attack, the available vaccines are woefully inadequate to protect most of our population, and will be for months or years.

I recount these somber contingent facts by way of introducing the question of whether our current constellation of civil liberties unnecessarily restricts our government's ability to protect us from death by the hundreds of thousands or millions in the coming months.

I write as, until two weeks ago, a crypto-anarcho-Libertarian advocate of maximum civil liberties. I have always feared government intrusion far more than I have feared the price of living with maximum freedom. But the price has just gone up. Now, every congressman, senator and citizen must discard everything they thought they believed about civil liberties. We all have a moral obligation to think for ourselves and act for the common good.

On April 27, 1861, another American had occasion to think anew. Prior to the Civil War, Abraham Lincoln had always held a Libertarian view of civil liberties. But on that day, fearful that Union troops marching from Philadelphia to Washington might face insurrection in Maryland, he issued to Gen. Scott his first suspension of the writ of habeas corpus: "If … you find it necessary to suspend the writ of Habeas Corpus for the public safety, you, personally, or through an officer in command at the point where resistance occurs, are authorized to suspend the writ."

He acted pursuant to Article 1, Section 9, Paragraph 2 of the Constitution, which reads in full: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it …" The Constitution was and is silent on whether the president or Congress possesses that power. Lincoln asserted his authority, and Congress subsequently enacted supporting legislation.

As a result, thousands of American citizens were arrested and incarcerated indefinitely without benefit of due process. Not only dangerous actions, but seditious words were sufficient grounds for such arrests. The Union was preserved and the use of the writ was then returned to the people.

Was Lincoln's action necessary to preserve the Union? We will never know. But at a time of unlimited danger, Old Abe didn't hesitate to take unlimited power.

This week Congress has been holding hearings on President Bush's request for legislation that marginally increases the government's authority to surveil and detain terrorist suspects. Even these modest presidential requests have been met with bipartisan congressional hesitation. And yet the only protection the American public has from a possible genocidal conflagration is our government's ability to detect and defeat the enemy's plans before they are acted on. Such a benefit is well worth the cost of a temporary suspension of our civil liberties.

The danger to our liberties does not lie in their temporary, legal suspension, but in the persistence of such a suspension beyond the time needed to defeat the enemy. Congress should promptly pass two bills. The first would suspend the writ of habeas corpus for any detention relating, at our government's sole discretion, to possible terrorist intents. The second bill should construe the Fourth Amendment protection from unreasonable searches and seizures to mean that any search or seizure is reasonable in our government's efforts to prevent terrorism.

These government powers should be plenary in scope, but limited in time. Such legislation should be sunset after one year. It would then take an affirmative act of Congress and the president to re-enact them. If the public and the Congress judge that the president has not abused his granted powers for the first year, they may wish to re-enact for one more year such powers if the danger persists.

By limiting the time of such powers, such a law would strongly motivate the president and his subordinates not to abuse them. We are currently trusting Mr. Bush with our collective lives. I, for one, readily trust him with my liberty also.

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