New Priorities
Needing a public defender.

November 27, 2001 2:35 p.m.

here is a brand of turmoil out there that one can reasonably call "op-ed turmoil." By this is meant that the people who are upset are the critical class of Americans. This class has a lower threshold of pain than just plain Americans. If there is a civil-rights whiff in the air, the leaves of civil rectitude will rustle. There is reason to be grateful for the sensibilities of those who object to any government enlargement (except through higher taxes), but there comes a point when the non-clamorous public has to be given a voice, so to speak, by a public defender.

A public defender is what President Bush et al. need right now in the matter of the national effort to heighten the national security, post September 11.

The general rule — the paradigm — says that all people are to be treated the same under the law, that all are to be informed of their (alleged) transgression, given habeas corpus and the right to counsel, to confront their accusers, to a speedy trial, and to exoneration unless unanimously found guilty.

The approach under the direction of President Bush does everything from sweeping away the protocols to holding some of them equivocally and putting some in abeyance. But an effort to judge reasonably what the administration is trying to do requires that we face the question before the people, which is, Have we sufficiently looked after internal security in an age of warfare the curtain raiser of which was the events of September 11? It pays to remind ourselves that it was only by chance heroism that Airliner #3 landed in one corner of the Pentagon, and Airliner #4 in Pennsylvania, the probable targets of both having been the White House, and the Capitol.

President Nixon, we know, liked to write down, on the yellow legal pad, sitting in his lonely office in the west wing of the White House, the postulates of policy questions he faced and their deductions. Here is how he might have put it down:

1. We don't know who they are.

a. No, but they are probably Middle Eastern. And you can tell Middle Easterners when you look at them.

2. They don't abide by rules. We abide by rules.

a. The question is, What rules should we change?

b. Some of the rules we change are, like, obvious. We don't want buggers coming into the country if we can find out they've had any connection with al Qaeda or other outfits doing terror or advocating it. So: more interrogation of people seeking visas from that part of the world.

3. Rules. We must act on suspicion, not proof. If we suspect a guy, we detain him. Toss him out of the country.

a. Might have to go to Congress on this. Perhaps executive authority is sufficient. Check with the A.G.

4. The FBI and the CIA have to pool their knowledge and that means high-intensity security for their work.

a. It also means we don't float our sources at any trials...

— Trials will be different from the kind of thing I did after law school. If this is war, and I say it is war, then we'll have different tribunals. Courts martial, something like that. Get our legal people to work that out.

...No. No way we can let information out at one hearing or "trial" that could expose a unique source in Baghdad or Islamabad or wherever.

5. Special difficulties. In trials, like the one against the 1993 World Trade Center terrorists, we were able to show publicly that they did it or were accomplices. It's going to be tougher with the new process. The carpers will keep wanting to know whether Joe Mohammed was really guilty, and we can't — prove that he was. Or even that he might have been. Tough situation.

New York Times, Nov. 25:

At the FBI's prodding, in mid-October, the immigration service refused entry at Kennedy International Airport in New York to a Jordanian who is an official of the Palestine Liberation Organization, law enforcement officials said. They said the man was on his way from Cairo to Los Angeles to do something that suddenly seemed a little worrisome: he was planning to attend flight school. He was put back on a plane to Cairo.