By Alan Nathan © 2005 Washington Times

Clearly Americans are great fighters. Just look at the efficiency we apply to kicking our own backsides. Whether deciding how long we should give enemies the benefit of the doubt before attacking them, or weighing civil liberties against the security measures necessary to protect those rights, political battles at home will soon call for ringside doctors and a spit bucket.

For example, the issue of imminent threat still haunts the legitimacy of war argument in Iraq. Michigan Democratic Sen. Carl Levin, House Minority Leader Nancy Pelosi and Democratic National Committee Chairman Howard Dean insist that President Bush mischaracterized the Iraqi threat as imminent through the manipulation of intelligence. There is no record of the administration having done so and both the Robb-Silberman and September 11 Commissions found no evidence of such prevarication.

However, these points are relevant only to exposing the vapidity of their charge. What’s really paramount is the questionable validity of imminent threat as the assumed standard for war because such a prerequisite has already proven antiquated, misguided and dangerous to our nation’s population. On September 11 “imminence” came and went undetected.

This standard is fundamentally flawed because it’s at the mercy of an often-unattainable determination. If such a frequently out-of-reach criterion must be achieved before action is justified, then by consequence we’re consenting to be hit first before acting.

What happens when we’re locked into those periodic dynamics of competing interests wherein reality leaves us having to choose the lesser of two evils: either prematurely attack the enemy, or allow the enemy to attack us right on time. The wiser standard for war should be something more flexible granting us the option to err on the side of caution — caution that favors our citizens before the enemy’s.

Delaware Democratic Sen. Joe Biden has argued that better intelligence would reveal an “imminent threat” more effectively, thus removing the need for pre-emptive strikes. Agreed. But we should rely on this only after our intelligence community can read threats on a par with our enemy’s ability to write them. Until then, we should side with the odds that serve us instead of those who are after us.

This begs another question: What credible latitude was truly granted to Mr. Bush when he, without warrants, ordered the National Security Agency to implement the surveillance of terrorist suspects over phones, e-mails and faxes? In Article II, Section II of the Constitution it says that, “The President shall be Commander in Chief of the Army and Navy of the United States, and of the militia of the several States.”

All military personnel under the president take an oath upon joining to, “support and defend the Constitution of the United States against all enemies, foreign and domestic.” Given that during time of war the military can perform searches and surveillance operations without warrants, why is it that their commander in chief can’t do the same just because the enemy fluctuates between foreign and domestic? These are the very two enemy categories that our military is sworn to fight and their boss is no less obligated.

If the Civil War were fought today under such constraints, the Democrats would be without one of their most vital constituencies.

The White House says that it kept congressional intelligence committee leaders abreast of these activities in accordance with The National Security Act, Section 502. While acknowledging these contacts with Congress, California Democrat Sen. Dianne Feinstein said that the exception, “has become increasingly used just to notify a very few people. There are 535 Members of the Senate and the House of Representatives of the United States. If the President of the United States is not going to follow the law and he simply alerts eight Members, that doesn’t mean he doesn’t violate a law.”

Sounds to me like the committee leaders had an option to share the intelligence on these secret activities with their colleagues. In light of the New York Times report on it, there doesn’t seem to have been a shortage of “sharing.”

Finally, the outrage over violated civil liberties seems especially histrionic. The Foreign Intelligence Surveillance Act does allow for these activities to bypass normal Fourth Amendment protections against unreasonable searches. However, the condition for this is that any criminal activity discovered outside the scope of national security cannot be given to a domestic prosecutor because that would constitute evidence garnered without the conventional warrant normally required — hence no real infringement of civil liberties.

The only privilege denied is the right to secretly plot the demise of fellow Americans.
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