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The news from Iraq today features a video of a terrorist murdering a man believed to be a kidnapped American civilian. The victim was trying to help rebuild that country. His cold-blooded execution is a reminder of what our Islamofascist enemies have in mind for all of us, non-Islamist Muslims and non-Muslims alike.

Perhaps the murder was committed by putting a bullet into our countryman’s head, rather than removing it, in deference to the recently disclosed injunction from an al Qaeda leader to one of his franchisees in Iraq that beheadings have proven counterproductive to the cause.

The question now occurs: Will the image of a man’s brains being blown out prove less discomfiting to American viewers than that of a decapitation? Or will they be shaken from their growing complacency by this latest reminder of what we are up against? Will this episode provide vital context for them, and their leaders, at a time when many are indulging in increasing paroxysms about the steps President Bush and his administration have taken to protect us against such enemies?

Surveilling Possible Enemies at Home

The latest example is the swivet produced by the New York Times’ publication on Friday of an article disclosing that the National Security Agency had been monitoring the international calls and e-mails of certain unnamed people in this country without warrants. The newspaper had sat on the leak of this highly classified program for a year, then calculatedly released it on the day the Senate was scheduled to vote on the reenactment of the Patriot Act.

The reaction was predictable: Critics of the Act seized upon this revelation to denounce the Bush Administration as Big Brother, evidently viewing it as a more serious threat to American citizens and the rule of law than the enemies we need the Patriot Act to defeat. As a result, critical parts of that legislation – including provisions allowing information-sharing between intelligence and law enforcement agencies that have been recognized post-9/11 to be vital to our security – may be allowed to lapse at year’s end.

Lost in the brouhaha has been a highly relevant fact. The numbers and e-accounts that were monitored in this manner were discovered in places like the hard-drives and phone books of captured al Qaeda operatives. This possible connection to terrorists may or may not have been sufficient "probable cause" to obtain orders for wiretaps, even from the secret Foreign Intelligence Surveillance Act (FISA) courts.

Yet, the common sense brought to bear on such questions by most Americans – although not necessarily civil libertarians (especially those of the far Left and far Right) and Democrats angling for partisan advantage – argues for doing just as the President has done: Undertake this sort of selective monitoring in order to protect us against murderous enemies bent on our destruction, some of whom may be operating in this country. They may even be, as was true of the London bombers last July, legally present and, in some cases, citizens. Conferring Constitutional Rights on Terrorists?

Common sense seems to be in no less peril with respect to another frenzy of the moment – the posturing about our national attitude towards torture. The President, Secretary of State and others have made clear that American policy eschews the use of torture. We are, however, about to have adopted an amendment by Senator John McCain, that precludes as well any activity involving terror suspects that can be construed as "cruel, inhuman and degrading" treatment.

The implications of the McCain amendment, which President Bush was obliged to endorse last week, could also prove to be highly detrimental to the war effort. Andrew McCarthy, a former federal prosecutor who successfully tried terrorism cases prior to 9/11, warns in a powerful essay distributed by National Review Online that:

  • McCain borrows the term cruel, inhuman, or degrading treatment or punishment (CID) from the 1984 United Nations Convention Against Torture and Cruel, Inhuman, and Degrading Treatment or Punishment (UNCAT). When the Senate ratified UNCAT in 1994, it enacted a significant reservation: the CID terms were limited to what was already covered under U.S. law by three Bill of Rights provisions: the Fifth, Eighth and Fourteenth amendments to the Constitution.
  • This caveat reduced CID to a virtual nullity. The Bill of Rights does not apply to non-Americans situated outside U.S. territory. Under current law, UNCAT’s CID terms are thus unavailing to alien enemy combatants captured and held in foreign countries during wartime. Such captives may not be tortured, but CID poses no legal obstacle to aggressive tactics that fall short of torture. Tactics that yield intelligence which saves the lives of American citizens and soldiers.

Mr. McCarthy warns that the effect of the McCain amendment, however, could be to supplant this sensible attitude with one that affords terrorist suspects the protections of our Bill of Rights, including the privilege against self-incrimination:

If that is the case, then al Qaeda terrorists captured on overseas battlefields in the war on terror would have to be given Miranda rights before they could be interrogated. Forget about water-boarding. They would actually have to be advised that they are under no obligation to speak to interrogators, that if they do speak their statements can be used against them as evidence in court, and that they are entitled to have a lawyer – paid for by the American people – present and assisting them at all times during questioning."

The Bottom Line

In the Civil War, Abraham Lincoln infuriated civil libertarians by suspending for the duration the touchstone right of habeas corpus. It appears that in this War for the Free World, we are about to suspend common sense – at least until the next, possibly catastrophic attack demonstrates anew what the latest terrorist murder in Iraq showed all-too-graphically: We will enjoy no civil liberties if we are destroyed.


Frank Gaffney, Jr.
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