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Jewish World Review Nov. 7, 2007 / 26 Mar-Cheshvan 5768 Badly needed: Straight thinking from Dems about powers federal government should be exercising to protect against terrorist attacks By Robert Robb http://www.JewishWorldReview.com | Al-Qaida exists. It has explicitly vowed to kill Americans, including civilians, whenever and wherever possible. Congress, for all legal intents and purposes, declared war against al-Qaida with its use of force resolution following the 9/11 attacks. From this reality flow certain conclusions regarding surveillance, detention and interrogation. In a war, you spy on the other side. However, in a war the Constitution is not suspended, which requires a court order to snoop in the United States. In 1978, Congress established a special court through the Foreign Intelligence Surveillance Act to provide such orders while preserving the secrecy necessary in foreign-intelligence operations. The appropriate demarcation would seem obvious. The president has the power, as commander-in-chief, to approve intelligence operations regarding al-Qaida outside the country. Inside the country, they require the approval of the FISA court. The Senate Intelligence Committee has passed a FISA reform that makes this sensible demarcation. Many Democrats, however, are kicking. They want court approval if the foreign target located outside the United States has a communication with someone within the United States. This is needlessly restrictive and not constitutionally required unless what is learned by targeting the foreign source causes an interest in a domestic figure. The communications of innocents are a necessary byproduct of any surveillance. The prospect shouldn't be used to curtail the president's authority to spy on al-Qaida. Part of the effort to protect the country against terrorist attacks is to capture and detain those who are part of the apparatuses that commit them. Democrats, however, want Guantanamo shut down and detainees subject to the American legal system. Some of the people we will want to detain will have committed provable criminal acts and the U.S. criminal justice system may be a useful tool for dealing with them. And under the Constitution, U.S. citizens have to be so treated. However, access to the American legal system shouldn't be required for foreign captives. This is a war, not a sting operation. Some foreign captives we will want simply to detain. There should be some sort of administrative review process, which the Bush administration was slow to set up. However, the elements of review should be whether they are part of al-Qaida's apparatuses and it is in U.S. security interests to detain them â€" not whether they have committed some specific, provable criminal act. If we are detaining some foreign captives, they need to be housed somewhere. Contrary to popular misconception, Guantanamo isn't some dungeon from which there is no escape. There are approximately 320 detainees currently at Guantanamo. Since 2002, over 450 detainees have been released from it. Some detainees will have information about current operations that pose an imminent risk to Americans. Reportedly, the CIA sometimes uses coercive interrogation techniques — sleep deprivation, stress positions and waterboarding (simulated drowning) — in an attempt to disgorge the information. According to CIA director Michael Hayden, fewer than 100 of what he calls “hardened terrorists” have been put through the CIA interrogation program and less than a third of them have been subjected to what he alludes to anodynely as "special methods of questioning." Public accounts indicate that waterboarding has been used on just three detainees. Yet, according to Hayden, about 70 percent of what is know about al-Qaida's operations and capabilities comes from the CIA interrogation program. Former CIA Director George Tenet credits it with most of the intelligence that permitted the prevention of planned attacks. This is a morally uncomfortable activity for a democracy and safeguards need to be in place to restrain its overuse. But do Democrats really want to forbid its use to obtain information about imminent threats? The Bush administration is largely to blame for the sorry state of the public discussion about the powers of the federal government regarding terrorism. It has asserted an unlimited and unreviewable power to snoop and detain wherever and whenever it deems appropriate. That's contrary to the Constitution and the American ethos of checks and balances. The Democrats, however, would serve the country better by not overreacting to the Bush administration's overreaching. Bush tries to sweep everything into the "war on terror," and the phrase is not a useful construct for the conduct of U.S. foreign policy. However, al-Qaida's war against the United States and its citizens is very real. And some of the instrumentalities of war need to be used to defend ourselves. Every weekday JewishWorldReview.com publishes what many in in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here. JWR contributor Robert Robb is a columnist for The Arizona Republic. Comment by clicking here. Robert Robb Archives © 2007, The Arizona Republic

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