- The Washington Times - Monday, December 18, 2006

More than five years have elapsed since September 11, 2001.

Vastly more is now known about the international terrorist danger to the United States based on both experience and intelligence. That knowledge demonstrates that, at present, international terrorism is insufficiently menacing to the American people’s security to satisfy any sensible constitutional notion of war or armed conflict within the United States.

No additional terrorist plots in the nation have succeeded. Embryonic plans or conspiracies have been detected and prosecuted in civilian courts. Only three American citizens have been detained by President Bush as unlawful enemy combatants: one was deported to Saudi Arabia; and another is undergoing prosecution in a civilian court for allegedly providing material assistance to a foreign terrorist organization.

The number of alien unlawful enemy combatants detained at Guantanamo Bay runs into the hundreds, and virtually all were captured thousands of miles from American shores. Not a single alleged international terrorist has been prosecuted by a military commission for an alleged war crime. And Americans do not shy from domestic travel or shopping for fear of a terrorist attack.

Approximately 3,000 died from the September 11 abominations. But 20,000 are murdered annually in the United States. Their perpetrators are apprehended and prosecuted through customary law enforcement tools. The nation is not placed on a war footing to conduct military operations against suspected would-be murderers within the United States.

Last week, the Israeli Supreme Court in the case of the Public Committee against Torture in Israel v. The Government of Israel (Dec. 11), addressed whether the State of Israel was in a state of “armed conflict” with terrorism. Answering in the affirmative, the court elaborated recurring scenes of horror that have been conspicuously absent in the United States since September 11, 2001: “In February 2000, the second intifada began. A massive assault of terrorism was directed against the State of Israel, and against Israelis, merely because they are Israelis. This assault of terrorism differentiates neither between combatants and civilians, nor between women, men, and children. The terrorist attacks take place both in the territory of Judea, Samaria, and the Gaza Strip, and within the borders of the State of Israel. They are directed against civilian centers, shopping centers and markets, coffeehouses and restaurants. Over the last five years, thousands of acts of terrorism have been committed against Israel. In the attacks, more than 1,000 Israeli citizens have been killed. Thousands of Israeli citizens have been wounded. Thousands of Palestinians have been killed and wounded during this period as well…. In these terrorist attacks, the terrorist organizations use military means par excellence, whereas the common denominator of them all is their lethality and cruelty. Among those means are shooting attacks, suicide bombings, mortar fire, rocket fire, car bombs, et cetera.”

The severity of the terrorist danger to Israel is further underscored by its repeated successes despite Shin Bet, Mossad, and the Israeli Defense Force (IDF), the gold standard for thwarting international terrorism.

To conclude that the United States, like Israel, is also engaged in armed conflict with terrorism holds alarming legal implications. President Bush has insisted the entire world is a battlefield in clashing with al Qaeda because Osama bin Laden has pledged to kill Americans — whether civilian or combatant — anywhere they can be found.

But if the United States is a battlefield of the armed conflict, then the president would be correspondingly empowered to direct the nation’s security forces to kill suspected members of al Qaeda or sister terrorist organizations in the United States suspected of involvement in the planning, launching or execution of terrorist attacks.

Suspicion is neither proof beyond a reasonable doubt nor a preponderance of the evidence. It is not even probable cause. It is simply a nonfrivolous worry that an unlawful enemy combatant may be afoot, which accommodates many mistakes, as with Canadian-Syrian Maher Arar. Innocent civilians in the United States could be legally killed in targeting suspected al Qaeda combatants, for example, Jose Padilla, if an armed conflict with international terrorism here were deemed ongoing. In a parallel situation, Israeli security forces have killed approximately 150 civilians who were in proximity of targeted terrorists during the last five years. Hundreds of others have been wounded.

It is conceivable that international terrorism in the United States has been stifled since September 11 because of President Bush’s assertion of powers appropriate for armed conflicts within the nation, for example, the warrantless interceptions of phone conversations or e-mails of American citizens suspected of al Qaeda connections. But the president has not shouldered that burden of proof. No convincing evidence has been forthcoming to either Congress or the public establishing that — in light of what is known today — terrorism within U.S. boundaries can be thwarted and punished with reasonable safety to our people only if the entire nation is treated as engulfed in armed conflict.

To be sure, President Bush has not yet used lethal military force against suspected al Qaeda members in the U.S. But he is already enshrining in law a sweeping definition of armed conflict that will lie around like a loaded weapon ready for use by any incumbent who claims an urgent need, to paraphrase Supreme Court Justice Robert Jackson.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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