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Jewish World Review June 12, 2002 / 2 Tamuz, 5762

Michael Kelly

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So, it's a war, after all | "The FBI is now telling the American people, 'You no longer have to do anything unlawful to get that knock on the door. You can be doing a perfectly legal activity like worshiping or talking in a chat room and they can spy on you anyway.' "

-- Laura Murphy, of the

American Civil Liberties Union,

as quoted in The Post May 30.

Murphy was referring specifically to new rules promulgated by the FBI that will give federal investigators far greater latitude than in the past to monitor -- oh, all right, spy upon -- private conversations in such venues as libraries, Internet sites and religious institutions. But her complaint may be taken beyond its specifics as a fair example of a rising chorus of worry and woe concerning the threat to civil liberties posed by the increasingly hard-nosed security measures being adopted by a nation at war.

We have not heard the last of Ms. Murphy on this subject. There is not much in life that is certain, but one thing we can be sure of is that the creation of a $37 billion, 22-agency, supercolossal Department of Homeland Security will not usher in a new era of civil liberties sensitivity, and that the ACLU will find this objectionable.

As traditional as the cries from the once-again-wounded hearts of once-again-outraged liberals is the governmental response in such circumstances: It isn't so. No liberties are at risk, or not much anyway. All safeguards are being taken. This administration stands second to none in its concern for the sacred rights of all Americans, etc.

The whole thing is ritual. When Attorney General John Ashcroft announced new regulations requiring the fingerprinting and photographing of foreign visitors from all nations deemed to harbor anti-American terrorism, Sen. Ted Kennedy was, of course, "deeply disappointed" in a plan that would "further stigmatize innocent Arab and Muslim visitors." White House press secretary Ari Fleischer was of course quick to assure that President Bush was acting "fully in accordance with protecting civil rights and civil liberties."

Would it be too much to ask that we cut this out? The United States is at war -- its first utterly unavoidable war since World War II and its first war since the Civil War in which the enemy has been able to significantly bring the conflict onto American soil. This war must be successfully prosecuted, and success in war pretty much always requires the violation of civil liberties.

As a generally liberties-minded friend notes, war in itself constitutes the grossest imaginable violation of liberties. In war, the state may choose to say to its citizens: We are exercising our collective right to deprive you of the most fundamental of your individual rights -- your liberty and quite possibly life (don't even mention your pursuit of happiness). We are taking you away, putting you in a uniform, subjecting you to a wholly dictatorial order -- and we are sending you off to very likely die. If you run away, we will ourselves shoot you.

The proper response to complaints such as those voiced by Murphy and Kennedy is: Yes, it is true, this action will indeed hurt or at least insult some innocent people, and we are sorry about that. And this action does represent an infringement of the rights and liberties enjoyed not just by Americans but by visitors to America, and we are sorry about that, too. But we must do everything we can to curtail the ability of the enemy to attack us. This is necessary.

Right now, there sits in a jail cell an American citizen named Abdullah al Muhajir, formerly Jose Padilla. He was arrested at O'Hare International Airport on a sealed warrant after arriving on a flight from Zurich May 8. He is accused, based on what is believed to be credible intelligence, of plotting to explode a radioactive bomb in the United States. He was seized as a material witness and has not been charged with a crime, apparently because the U.S. government does not think it possesses evidence sufficient to charge him. Instead, he is being held as "an enemy combatant," which means the U.S. military can keep him locked up for as long as it wants, with no jury trial. No one outside the government really knows what the evidence is against al Muhajir. The government didn't even reveal his arrest until a scheduled court hearing forced the revelation.

Now, that is what I call a violation of civil liberties. I am sorry about it, and I will be even sorrier in the unlikely event that al Muhajir is innocent and should not have been locked away. And I wouldn't have it any other way.

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Michael Kelly is the editor of National Journal. Send your comments to him by clicking here.

© 2002, Washington Post Co.