I don’t understand how today’s conservatives can complain about judicial reliance on foreign law while using successful policies (i.e., conform to preferred neocon outcomes) as a rationale for changing U.S. policy. It’s hypocritical, at best, but it’s also flawed. Consider this from today’s Opinion Journal:
Britain’s successful pre-emption of an Islamicist plot to destroy up to 10 civilian airliners over the Atlantic Ocean proves that surveillance and other forms of information-gathering remain an essential weapon in prosecuting the war on terror. There was never any real doubt of this, of course. Al Qaeda’s preferred targets are civilians, and civilians have a right to be protected from such deliberate and calculated attacks. Denying the terrorists funding, striking at their bases and training camps, holding accountable governments that promote terror and harbor terrorists, and building democracy around the world are all necessary measures in winning the war. None of these, however, can substitute for anticipating and thwarting terror operations as the British have done. This requires the development and exploitation of intelligence.
In addition, the British police have certain extraordinary tools designed specifically to fight terrorism. …
- Secrecy. Similarly, there is a substantial body of opinion in the U.S. that seems to consider any governmental effort to act secretly, or to punish the disclosure of sensitive information, to be illegitimate. Thus, for example, Bush critics persistently attacked the president’s decision to intercept al Qaeda’s international electronic communications without a warrant in part because of its secrecy, even though the relevant members of Congress had been informed of the NSA’s program from the start. By contrast, there appears to be much less hostility in Britain toward government secrecy in general, and little or no tradition of “leaking” highly sensitive information as a regular part of bureaucratic infighting–perhaps because the perpetrators could far more easily be punished with criminal sanctions under the Official Secrets Act in the U.K. than under current U.S. law.
Anyone who believes that we can bury our head and pretend like no threat of terrorism exists does not deserve to be included in the debate. So, why are op-eds such as this arguing only against those people? It would be wiser, and more effective, to debate the merits of how best to achieve our safety within the context of our Constitution. Instead, the conservative discussion is “with us or against us”, where believing in checks on the abuse of power amounts to “against us”. This is stupid.
Consider the notion of secrecy, as presented in the excerpt. The primary objection of libertarians is not that the government must engage in intelligence gathering. As far as it is necessary to protect national security, it is a legitimate function of the government. However, the degree to which it is carried out, and under what exposure to public scrutiny, cannot be ignored. Intercepting electronic communications is an important, and potentially fruitful, endeavor. Assuming that without a warrant is fine since relevant members of Congress were informed is erroneous and anti-Constitution. We grant the power of warrants to the judiciary, not the legislature. Critics of the administration do not quibble for an elimination of power. Critics understand that unchecked power will result in abuse, assurances to the contrary notwithstanding.
We have tools in place already. If they’re insufficient, the administration should make that case to the Congress. It has not done that, ignoring existing rules out of convenience. Given its inability to follow existing requirements, the administration should not be granted the freedom to enact its policies without oversight. That is the chewy center of opposition to the administration’s (indefinite, undefined) war prosecution.
More thoughts on this at A Stitch in Haste, where Kip batted down last week’s silliness from the Wall Street Journal.