The Real Difference Between the Parties

Claims and Counterclaims

By DAVID B. RIVKIN JR. and LEE A. CASEYWALL

STREET JOURNAL ONLINE Commentary
October 5, 2006; Page A20

Tocqueville's trenchant observation, that sooner or later all political issues in America are "resolved" into legal questions, has certainly withstood the test of time. Our policy disputes are regularly fought out on "legal" or "constitutional" grounds, both in and out of the courts, and nowhere is this more evident than in the debates over the war against al Qaeda.

The national "dialogue" over how the U.S. should respond to the threat of radical Islam is replete with claims and counterclaims about whether the Bush administration has violated the law by holding captured jihadist prisoners without trial, by intercepting al Qaeda communications without judicial warrants, by subjecting detainees to stressful interrogations, and so forth. In fact, almost all of this clamor arises from a basic dispute over whether the U.S. is -- or should be considered -- at war with al Qaeda and its allies, or whether it should address the threat of transnational terrorism as a law-enforcement matter -- as most of its
European allies have done.

There is little doubt that the Democratic Party leadership, and no small portion of the rank-and-file, find the president's rhetoric of war distasteful -- and more than a little embarrassing -- and reject the underlying notion that the U.S. is, or could be, engaged in a legally cognizable armed conflict with al Qaeda and other jihadists. Nowhere was this better displayed than in Bill Clinton's recent meltdown during his interview with Chris Wallace of Fox News. Mr. Clinton protested (rather too much) that he really had been committed to killing Osama bin Laden, and insisted that he did his best to accomplish this goal.

That may well be true. But then as now, Mr. Clinton views the relevant policy choices through a law-enforcement prism. Granting the former president's ardent desire to see off bin Laden, his administration was mired for years in arguments over whether, consistent with a Cold War executive order forbidding "assassinations," the CIA could kill bin Laden, or whether U.S. agents would instead have to attempt a practically impossible capture -- i.e., an arrest.

Paralyzing concerns were also expressed by Clinton administration officials that any attempt to kill bin Laden might cause civilian casualties, even though wartime collateral damage is permissible, provided it is not disproportionate to the military advantage being gained. This rejection of the laws-of-war model continued even after bin Laden proved his belligerent intentions in a series of attacks on American citizens and U.S. military assets overseas.

In the aftermath of 9/11 -- and despite the fact that congressional Democrats joined Republicans in passing an "authorization for the use of military force" against those responsible for the attacks -- most continued to operate in a "law enforcement" mode. Democratic critics of the Bush administration have opposed virtually every measure the president has taken to guard against new attacks on American soil, including the USA Patriot Act, the National Security Agency's warrantless electronic surveillance program, data mining, access to international banking data, and the use of traditional military commissions to try and punish captured terrorists. During the 2004 presidential campaign, John Kerry made clear his belief that al Qaeda was a law-enforcement problem.

The Democratic message was, and remains, that the peacetime balance of individual rights and community interests is sufficient to meet the threat -- along with additional passive, and uncontroversial, defenses such as hardening cockpit doors and giving more monies to first responders. There have, of course, been notable exceptions to this rule -- such as Sen. Joe Lieberman -- but his steadfast support for both the war on terror in Afghanistan and in Iraq cost him the Democratic nomination for re-election to his seat.

By contrast, President Bush immediately recognized that al Qaeda, and the larger jihadist movement it represents, is not simply a new and especially violent street gang or drug cartel that could be handled by more and better policing. Only the government's full complement of war powers would be sufficient to meet the immediate threat to American lives and interests, and to take the fight to the enemy. He sought and obtained Congress's express authorization for military action, and has not looked back. For his pains, the president has been ruthlessly vilified by his political opponents and maligned as everything from the idiot tool of big-oil interests (and his own vice president), to a devious crypto-autocrat determined to transform the presidency into some kind of late Roman emperorship.

The president's critics, and especially those in Congress now running for re-election, should honestly admit that their differences are, by and large, matters of policy which can and should be debated as such. The question is not whether the president has broken the law, whether domestic or international, but which legal paradigm -- war or law enforcement -- makes the most sense in meeting the threat.

Those who believe that captured al Qaeda operatives should be treated as ordinary criminal defendants (rather than unlawful enemy combatants), entitled to all of rights enjoyed by civilians in the federal and state courts, should stop pretending that this result is compelled by the Geneva Conventions or the U.S. Constitution. Instead, they should acknowledge making a policy choice that advantages jihadists beyond the legally required level, explain why they believe this to be right and just, and how they think it will checkmate al Qaeda.

In particular, they must answer key questions, such as how a law enforcement system designed to punish and deter, rather than prevent, criminal conduct can hope to discover and pre-empt future suicide attacks before they take place -- especially after 50 years during which progressives have demanded, and achieved, increasingly greater protections for criminal defendants.

Since the Democrats are certainly not suggesting our criminal justice system return to the pre-Warren Court's days, the pros and cons of the law-enforcement model need to be laid out explicitly, and with particulars, before the American people.

Similarly, supporters of the law-enforcement model must explain on what legal basis
American forces could attack al Qaeda bases overseas, and any "criminal suspects" who may be present at those sites, if the U.S. is not engaged in a war. It was, of course, that very dilemma that prevented President Clinton from killing Osama bin Laden when he may well have had the opportunity.

Sadly, the Democratic voices in Congress, like Talleyrand's Bourbons, have learned nothing. They continue to attack President Bush's policies at every turn and have never answered these questions. They rightly fear that the American people will not agree that jihadists, who recognize no law but their own religious convictions, should be granted the due-process rights of ordinary citizens accused of criminal conduct, or that our own civilian population must accept greater risk of attack to vindicate a vision of personal privacy and individual autonomy that may be laudable in peacetime, but which no state could preserve during war -- and hope to win.

Messrs. Rivkin and Casey, lawyers in Washington, served in the Department of Justice under Presidents Reagan and George H.W. Bush.