Justice in a Time of War

Wednesday, January 30, 2002

Aftermath: National Security after September 11

and members of my family collectively carried New York City police department badges for more than 150 years. Despite that, I opposed giving the FBI and federal government additional authority after the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma. But the attacks of September 11 were acts of war by foreign enemies of our country. President Bush’s decision that foreign terrorists accused of slaughtering innocent Americans should be judged by military tribunals in certain cases is appropriate. Foreign terrorists are actually soldiers without uniforms. It is disingenuous to argue that military tribunals are inherently unjust when Americans who serve in our armed forces are subject to such tribunals if accused of crimes. Why should noncitizens accused of terrorism have more rights than Americans who serve our country in the armed forces?

Further, it is grotesque to imagine Osama bin Laden going through an eight-year-long federal criminal trial with a bevy of TV lawyers representing him. It is similarly strained to dispute the practice of eavesdropping on lawyers suspected of being part of terrorist networks when the government has for years been tapping the phones of lawyers suspected of being part of illegal drug and organized-crime rings. And what is wrong with FBI agents asking questions of aliens, when federal agents routinely question American citizens on a wide variety of suspected criminal activities and have even convicted potential federal appointees, such as Henry Cisneros, for lying during a background investigation? Nor is it unreasonable to detain aliens for up to seven days if they are suspected of crimes. Other democracies are far more stringent with visitors than we are.

On the other hand, Congress is quite right to question Attorney General John Ashcroft on details of the new measures adopted in the name of antiterrorism. Immediately after the October 2001 passage of the antiterrorism act, he approved a federal raid on a medical marijuana facility in Los Angeles that was operating under a law overwhelmingly approved by California voters. Following the raid, Ashcroft sent U.S. Drug Enforcement Administration agents in pursuit of Oregon physicians who prescribed medicine to assist terminally ill patients in committing suicide, as approved by the voters of that state. It is hard to reconcile this kind of powerful coercion with President Bush’s contentions that the prevention of terrorism requires trusting the government with considerably increased authority.

If we are crippled by terrorism, there will be no need to discuss the nuances of the balance between government authority and individual rights. We will not have rights. Even a descendant of a long line of cops who saw it as their duty to protect civil rights is reluctantly willing to temporarily allow the federal government certain additional authority because my country is at war.