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Jewish World Review Dec. 5, 2001 / 21 Kislev, 5762

Michael Kelly

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Leahy's in a snit about military courts - but why? -- SEN. PATRICK J. LEAHY, who enjoys a good snit as well as the next member of Congress, is piqued because President Bush did not seek his counsel before issuing the order allowing suspected terrorists who are not U.S. citizens to be tried by military tribunals. Leahy found out what the administration was proposing in the newspapers, as if he were some citizen or something. Oh, the ignominy.

"There's been no consulting," Leahy sulked last week. "These things just get announced: George Washington got a British spy once by doing this, so thank goodness we've got recent precedents." This little sneer is wonderfully instructive, and not just for what it says about the senator's self-centeredness and shallowness.

In mocking the Bush administration for citing precedents for its limited transgressions against civil liberties in war, Leahy seeks to point up the absurdity of the administration's claim to extraordinary recourses. He succeeds only in pointing up the irresponsibility of his own position.

For precedence is the point of the whole thing. Or, rather, lack of precedence. Any intellectually honest contemplation of the situation we are dealing with here must begin with the obvious: The United States has never faced a threat like this. It has faced graver threats, but never one of this nature -- and that unprecedented nature is such as to demand unprecedented curtailing of liberties.

To remind the senator, the unprecedented threat is this: Al Qaeda, a global terrorist organization, has declared war on the United States and is waging that war not through conventional battlefield means but through attacks on American institutions and people wherever they exist. We have ample reason (Sept. 11) to know that this organization can inflict massive punishment inside America. At war with this enemy, we appear close to destroying its leadership; but thousands of trained followers are still planted in cells around the world.

Since the suicide bombers of Sept. 11 were able to legally enter and live in America for many months, we have to assume that there are additional al Qaeda terrorists also hidden in America. Going by track record, we have to assume that these terrorists are well financed, well trained, self-sufficient and equipped with specific targeting plans that require no triggering orders. We have no idea who these people are, or what their plans are, or when they will attack again. We have no intelligence penetration of al Qaeda, and because of its purposely fragmented structure, we cannot crack the organization's secrecy through conventional spying, such as eavesdropping on messages between headquarters and the field. We know that it takes only a few al Qaeda terrorists, in our country, to strike past our inadequate internal defenses and inflict great casualties.

In other wars the nation had to deal with spies, saboteurs and enemy sympathizers at home. But the current situation is truly novel. This time, we are not dealing with a fifth column at home that may help enemy armies abroad or in their defined battles against our armies. We are dealing with elements of the enemy army here, on a battlefield that is the nation.

Facing this unheard-of threat, a government that did not engage in the immediate and widespread detention of foreign suspects here, and did not aggressively question anyone who might help in the hunt for hidden terrorists here, would be guilty of an impeachable failure to defend and protect the nation.

Likewise, with the use of military tribunals. The New York Times, in a page-length editorial, writes of Bush's order: "The order's breadth is astonishing, allowing for the indefinite detention and trial of any non-citizen the president deems to be a member of al Qaeda, or to be involved in international terrorism of any type, or to be harboring terrorists." This is exactly wrong. What is astonishing is the nature of the threat to this country; the Bush administration's response to this threat is, in context, not only reasonable but required. What would be astonishing (not to mention criminally negligent) would be for the government to treat the issue as critics such as Leahy and the Times seem to wish, as just another chapter in the old liberties-vs.-law-and-order debates.

We are not talking about rounding up the usual suspects. We are talking about rounding up soldiers of an enemy army before they have a chance to strike again on their chosen battlefield -- here, in America, against us all. To ignore this context is to make no argument at all.

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

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