Loss of Freedom Ahead?
What it’ll take.

November 30, 2001 1:35 p.m.

here are two fires raging in the matter of President Bush and his proposed tribunals. One is historical/theoretical, the second, ideological.

The Constitution ordains that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion of the public safety may require it."

Question #1, Are we facing a rebellion or invasion?

Question #2, Who decides?

And, #3, the decision having been made, who then redesigns, for the duration, that which, using shorthand, the Constitution simply calls "habeas corpus"?

The activity of September 11 and what it implies — continued terrorist acts on a worldwide scale — can be classified as an "invasion" without cavil, and an immediate response to an invasion is properly undertaken by the commander in chief.

Now it can at this point be argued that an invasion calls forth a declaration of war, and this is the prerogative of Congress. But this formalism (it is, increasingly, just that) shouldn't be thought critical. On September 11, a mutant form of warfare evolved. Responses to it are necessarily improvised. Al Qaeda is not a "government," and traditional declarations of war against it are somehow awkward, on the order of calling the fire department when you learn of the distress of a ship at sea. A comprehensive response to this innovative war against us is required of the commander in chief. Congress acknowledged the need to improvise in times of national challenge when in 1973 it passed the War Powers Act, specifying that the president should have freedom of action for 60 days against a perceived enemy. Moreover, post-Hiroshima, declarations of war are out of style. Presidents Truman, Johnson, and Nixon didn't declare war against North Korea or North Vietnam. We found other ways of doing it, so-called graduated responses.

But after we acknowledge that September 11 initiated the equivalent of an invasion and proceed to suspend habeas corpus, who is to design the new protocols? Bush has taken the initiative, but we are left without any empirical knowledge of how exactly prosecutions are to be brought about. What we have are flat contradictions about what is contemplated, and here divisions tend to be ideological. The clerks want to file protests, the soldiers, to go to war. Time magazine's Josh Tyrangiel charges that the proceedings can be secret, hearsay used as evidence, the defendant left without a right to challenge evidence nor the right to hear it; left without the lawyer of his choice in a proceeding in which guilt need not be proved beyond a reasonable doubt, the verdict need not be unanimous, executions can be authorized, appeals denied.

Alberto Gonzales, counsel to the president, writes in the New York Times that military-tribunal trials will not be secret, except when classified information needs protection, that contemplated trials will be "full and fair," defendants will know the charges against them and will be represented by qualified counsel and allowed to present a defense.

Now the thing of it is, we don't know — and we won't accumulate this knowledge without experience — just what it is that we need to effect in order to enhance national security. Most people know that a search for justice can mean that you bring in ten people even knowing that only one of them is guilty. With "due process," you find the guilty party and let the others go. In existing circumstances, you can't act on the absolute presumption of innocence, because negative findings on the matter of guilt don't add up to positive findings that the detained are harmless. We note that proposed arrangements are to be used only on non-U.S. citizens. That citizens have superior privileges (and duties) neither surprises, nor offends.

Suppose that Congress asserted a right, under the Constitution (Article I), to prescribe the conduct of justice in this war? Probably Congress would authorize everything that Mr. Bush contemplates, with here and there an accommodation. What really gums things up is hysterical formulations. "My job is to defend the Constitution from its enemies," Mr. Bill Goodman of New York's Center for Constitutional Rights advises us, "[whose] main enemies right now are the Justice Department and the White House." That finding is not only wrong, it is dumb. We hear from Alan Dershowitz and from Bill Press that what we are fighting for is such things as standards of guilt and innocence enshrined in current practice of law; which is foolish. What we are fighting for is to frustrate al Qaeda's designs on American lives.

We should always give solicitous attention to liberty, but what we are struggling to do right now is to discover how fifteen steel-willed enemies of the United States succeeded in destroying the two largest buildings in New York and one part of the Pentagon, missing out only on two other probable targets, the White House and the Capitol. To find the hidden enemy will require Yankee ingenuity, and a couple of days off for the American Civil Liberties Union.