The War on the War on Terror Continues

Driven by its eagerness to discredit the Bush administration, the New York Times has misread a recent Justice Department report on alleged government abuse of terror suspects. More important, the paper’s front-page smear set off a chain reaction of imitation news articles across the country, parroting the Times’s error. Thus has the war on the war on terror been waged — with misrepresentation, group-think, and blinding bias.

The Times announced on July 21 that the Justice Department’s inspector general had “received 34 complaints of civil rights violations by department employees that it considered credible.” Lest the reader miss the significance of this purported scoop, reporter Philip Shenon editorialized: “The inspector general’s report . . . is likely to raise new concern among lawmakers about whether the Justice Department can police itself when its employees are accused of violating the rights of Muslim and Arab immigrants swept up in terrorism investigations under the [USA Patriot Act].” (The Patriot Act, passed in 2001 after the 9/11 attacks, attempts to improve the government’s intelligence and other terror-fighting capacities, as the current issue of City Journal explains.)

Set aside for a moment the weight that we should accord 34 allegations of civil-rights violations filed over a six-month period. The linchpin of the Times’s “exposé” is its statement that the inspector general “considered” those 34 complaints “credible.” This phrasing suggests that the inspector general had investigated the complaints and reached a factual judgment about their truth. But the office of the inspector general puts the matter differently. According to its July 17 report, the office received several hundred filings over the last six months that appeared to state a claim within its jurisdiction — that is, they concerned a Justice Department entity or official, and claimed a “Patriot Act” or “civil rights” violation. Upon closer analysis, however, the vast majority of those several hundred complaints, as written, proved unrelated to the Patriot Act — inquiring, for example, about pending immigration matters. That left 34 that, the report stated, ”raised credible Patriot Act violations on their face.”

The key phrase here is “on their face” — a lawyer’s term that means that a claim, as written, meets legal requirements of sufficiency. An employment discrimination suit, for example, that fails to allege that the defendant employed the plaintiff does not “on its face” state a job discrimination cause of action. Conversely, a discrimination claim may be “facially” valid — that is, it alleges all the elements of a discrimination case — but later be shown at trial to lack any factual basis.

The July 17 report drew no conclusions about the likely truth of those 34 facially valid complaints. Nor could it, for it has opened investigations into only six of them. Yet the nation’s press corps dutifully took the Times’s bait. ABUSE OF POST-9/11 DETAINEES DETAILED; 34 ‘CREDIBLE’ CASES IN FOLLOW-UP REPORT, trumpeted the Chicago Tribune the next day. REPORT OUTLINES RIGHTS VIOLATIONS IN SEPT. 11 ACT, announced USA Today. The Financial Times noted with barely concealed satisfaction that the “nearly three dozen credible complaints of abuses” were the “latest blow to the Justice Department.” The San Jose Mercury News echoed the New York Times’s prediction of backlash: “The 34 alleged ‘credible’ abuses [are] expected to intensify criticism of the Justice Department.” Only the Washington Post got the story right: “The Justice Department's inspector general is investigating six complaints from Muslims who have alleged that federal employees pursuing enforcement of the USA Patriot Act violated their civil rights or civil liberties,” read its lead. Not a word about “34 credible complaints.”

I spoke with the Inspector General’s spokesman, Paul Martin, on the day of the Times’s front-page exposé. Calls from reporters piggybacking on the Times’s article were pouring in. “What they should be doing is reading the report,” he lamented. “The New York Times didn’t get it quite right,” he said, noting that the Times did not speak with his office before publishing its story. “It overplayed what this is and isn’t. We have received 34 allegations which on their face cite a Justice Department employee and a section 1001-related abuse [the Patriot Act section empowering the Inspector General to investigate civil-rights violations]. That’s all it is.” But the Times “sets the agenda,” he observed, rightly anticipating the next day’s lemming swarm.

But enough of this legal nit-picking! one might object. Just because the Justice Department has yet to investigate all 34 of the Patriot Act complaints doesn’t mean that those complaints don’t show a real civil-rights problem, right?

Wrong. Here are summaries of the cases — all facially valid complaints — that the inspector general recently closed after further investigation.

Straight Talk on Homeland Security

The backlash against the Bush administration’s War on Terror began on 9/11 and has not let up since. Left- and right-wing advocacy groups have likened the Bush administration to fascists, murderers, apartheid ideologues, and usurpers of basic liberties. Over 120 cities and towns have declared themselves “civil liberties safe zones”; and the press has amplified at top volume a recent report by the Justice Department’s inspector general denouncing the government’s handling of suspects after 9/11. Even the nation’s librarians are shredding documents to safeguard their patrons’ privacy and foil government investigations.

The advocates’ rhetoric is both false and dangerous. Lost in the blizzard of propaganda is any consciousness that 9/11 was an act of war against the U.S. by foreign enemies concealed within the nation’s borders. If the media and political elites keep telling the public that the campaign against those terrorist enemies is just a racist power grab, the most essential weapon against terror cells — intelligence from ordinary civilians — will be jeopardized. A drumbeat of ACLU propaganda could discourage a tip that might be vital in exposing an al-Qaida plot.

It is crucial, therefore, to demolish the extravagant lies about the anti-terror initiatives. Close scrutiny of the charges and the reality that they misrepresent shows that civil liberties are fully intact. The majority of legal changes after September 11 simply brought the law into the twenty-first century. In those cases where the government has expanded its powers — as is inevitable during a war — important judicial and statutory safeguards protect the rights of law-abiding citizens. And in the one hard case where a citizen’s rights appear to have been curtailed — the detention of a suspected American al-Qaida operative without access to an attorney — that detention is fully justified under the laws of war.

The anti-War on Terror worldview found full expression only hours after the World Trade Center fell, in a remarkable e-mail that spread like wildfire over the Internet that very day. Sent out by Harvard Law School research fellow John Perry Barlow, founder of the cyber-libertarian Electronic Freedom Foundation, the message read: “Control freaks will dine on this day for the rest of our lives. Within a few hours, we will see beginning the most vigorous efforts to end what remains of freedom in America… . I beg you to begin NOW to do whatever you can … to prevent the spasm of control mania from destroying the dreams that far more have died for over the last two hundred twenty-five years than died this morning. Don’t let the terrorists or (their natural allies) the fascists win. Remember that the goal of terrorism is to create increasingly paralytic totalitarianism in the government it attacks. Don’t give them the satisfaction… . And, please, let us try to forgive those who have committed these appalling crimes. If we hate them, we will become them.”

Barlow, a former lyricist for the Grateful Dead, epitomizes the rise of the sixties counterculture into today’s opinion elite, for whom no foreign enemy could ever pose as great a threat to freedom as the U.S. For Barlow, the problem isn’t the obvious evil of Islamic terrorism but the imputed evil of the American government — an inversion that would characterize the next two years of anti-administration jeremiads. In this spirit, critics would measure each legal change not against the threat it responded to, but in a vacuum. Their verdict: “increasingly paralytic totalitarianism.”

Right-wing libertarians soon joined forces with the Left. A few months after the Twin Towers fell, the Rutherford Institute, a Christian think tank concerned with religious liberty, added the final piece to the anti-administration argument: the 9/11 attacks were not war but, at most, a crime. Rutherford president John Whitehead denounced the Bush administration’s characterization of the terror strikes as “acts of war by foreign aggressors,” without however offering a single argument to support his view. Since that characterization has produced, in Whitehead’s view, growing “police statism” that is destroying Americans’ freedom, the characterization must be false.

In fact, of course, the 9/11 bombings were classic decapitation strikes, designed to take out America’s political and financial leadership. Had a state carried them out, no one could possibly deny that they were acts of war, as John Yoo and James Ho point out in a forthcoming Virginia Journal of International Law article. The aim of the 19 foreign terrorists and their backers was not criminal but ideological: to revenge U.S. policies in the Middle East with mass destruction.

Recognizing that the World Trade Center and Pentagon attacks were acts of war entails certain consequences. First, the campaign against al-Qaida and other Islamic terror organizations is really war, not a metaphor, like the “war on drugs.” Second, it is a war unlike any the U.S. has ever fought. The enemy, mostly but not exclusively foreign, is hidden on American soil in the civilian population, with the intention of slaughtering as many innocent noncombatants as possible. The use of military force abroad, while necessary, is by no means sufficient: domestic counterterrorism efforts by the FBI and other domestic law enforcement agencies are at least as essential to defeating the enemy.

When these agencies are operating against Islamic terrorists, they are operating in an unprecedented war mode — but most of the rules that govern them were designed for crime fighting. The tension between the Justice Department’s and FBI’s traditional roles as law enforcement agencies and their new roles as terror warriors lies at the heart of the battle over the Bush administration’s post-9/11 homeland-security policies: critics refuse to recognize the reality of the war and thus won’t accept the need for expanded powers to prosecute it.

Most of the changes in the law that the Justice Department sought after 9/11 concern the department’s ability to gather intelligence on terror strikes before they happen — its key responsibility in the terror war. Yet the libertarian lobby will not allow the department to budge from the crime paradigm, refusing to admit that surveillance and evidence-gathering rules designed to protect the rights of suspected car thieves and bank robbers may need modification when the goal is preventing a suitcase bomb from taking out JFK. But of course the libertarians rarely acknowledge that suitcase bombs and the like are central to this debate.

Ironically, none of the changes instituted by Attorney General Ashcroft comes anywhere near what the government could ask for in wartime, such as the suspension of habeas corpus, as Lincoln ordered during the Civil War. The changes preserve intact the entire criminal procedural framework governing normal FBI and police actions, and merely tinker around the edges. But the left and right civil libertarians are having none of it.

The charges they have brought against the War on Terror have been so numerous, impugning every single administration action since 9/11, that it would take hundreds of pages to refute them all. But the following analysis of only the main charges will amply illustrate the range of duplicitous strategies that the anti-government forces deploy.

Strategy #1: Hide the Judge. Jan O’Rourke, a librarian in Bucks County, Pennsylvania, is preparing for the inevitable post-9/11 assault: She is destroying all records of her patrons’ book and Internet use and is advising other Bucks County libraries to do the same. The object of her fear? The U.S. government. O’Rourke is convinced that federal spooks will soon knock on her door to spy on her law-abiding clients’ reading habits. So, like thousands of librarians across the country, she is making sure that when that knock comes, she will have nothing to show. “If we don’t have the information, then they can’t get it,” she explains.

O’Rourke is suffering from Patriot Act hysteria, a malady approaching epidemic levels. The USA-PATRIOT Act, which President Bush signed in October 2001, is a complex measure to boost the federal government’s ability to detect and prevent terrorism. Its most important provision relaxed a judge-made rule that, especially after Clinton administration strengthening, had prevented intelligence and law enforcement officials from sharing information and collaborating on terror investigations (see “Why the FBI Didn’t Stop 9/11,” Autumn 2002). But the act made many other needed changes too: updating surveillance law to take into account new communications technology, for instance, enhancing the Treasury Department’s ability to disrupt terrorist financing networks, and modestly increasing the attorney general’s power to detain and deport suspected terrorist aliens.

From the moment the administration proposed the legislation, defenders of the status quo started ringing the tyranny alarm. When the law passed, the Electronic Privacy Information Center depicted a tombstone on its website, captioned: “The Fourth Amendment: 1789–2001.” The Washington Post denounced the bill as “panicky.” And the ever touchy American Library Association decided that a particular provision of the Patriot Act — section 215 — was a “present danger to the constitutional rights and privacy of library users,” though the section says not a word about libraries.

-snip-

(Heather Mac Donald in the City Journal, Summer 2003)
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