The Lichfield Group

This article appeared in the September 6, 2006 issue of the Washington Times.

The Bush administration wrongly insists that the post-9/11 United States conflict with international terrorism is indistinguishable from World War II. Premised on that false analogy, President Bush has claimed Commander in Chief authority to violate the spirit if not the letter of the Constitution in detaining individuals, gathering foreign intelligence, frustrating congressional oversight, and creating military tribunals. But the last five years has taught that international terrorism lies somewhere between war and peace. It threatens neither national sovereignty nor the survival of the free world. Countermeasures should reflect that understanding. Checks and balances and individual rights should not be gratuitously compromised by hyper-inflated fears.

Before the American Legion National Convention on August 31, 2006, President Bush equated fighting terrorists in Iraq and elsewhere with combating Nazi Germany and Japan in World War II. He maintained, for example, that the “fighting [of terrorists in Iraq] can be as fierce as it was at Omaha Beach or Guadalcanal. And victory is as important as it was in those earlier battles.” He further maintained that terrorists are “successors to Fascists, to Nazis, to Communists, and other totalitarians of the 20th century.”

On August 29, 2006 before the Convention, Secretary of Defense Donald Rumsfeld similarly evoked World War II to justify the Bush administration’s claim to full wartime powers. The secretary elaborated: “[I]n the decades before World War II, a great many argued that the fascist threat was exaggerated or that it was someone else’s problem… There was a strange innocence about the world…I recount that history because once again we face similar challenges in efforts to confront the rising threat of a new type of fascism.”

Al Qaeda, Hezbollah, Taliban, and sister international terrorist organizations are despicable. They celebrate violence, religious bigotry, and subjugation of women. They are more than a garden variety law enforcement problem, but contrary to Bush and Rumsfeld, they are neither Hitler nor Hirohito. International terrorists do not threaten to replace the United States government with a theocracy. They no not threaten conquest or occupation. Their semi-crazed ideology has no hope of attracting the mainstream. Secretary of State Condoleezza has thus characterized the terrorists in Iraq as “a small number of extremists.” The ordinary American today does not feel the sense of wartime urgency as Americans did in fighting Germany and Japan in World War II. The likelihood of a fatal car or aircraft accident seems an equal or greater worry.

International terrorism, however, is more than Al Capone operating under a fanatical Islamic banner. No tactic is too squalid. No place is too sacred. No man, woman, or child is free from a terrorist threat. And the prospect of criminal punishment does not deter. Accordingly, law enforcement tools should be supplemented to thwart international terrorism, but short of customary wartime emergency powers.

Strict airport screening of passengers is appropriate, but not special military tribunals for the trial of war crimes. Enemy combatants should be detained, but not without due process safeguards to prevent error. The Foreign Intelligence Surveillance Act (FISA), as amended six times since 9/11, should be employed to collect intelligence against suspected terrorists. But the National Security Agency should not be flouting FISA through warrantless electronic surveillance of Americans on American soil based on the President’s say-so alone. The President should protect intelligence sources and methods, but he should not collect intelligence in a manner unaccountable to the law and totally unknown to Congress or the American people. Congress should know at least or more about the Bush administration’s intelligence programs as it knew about the Manhattan Project in World War II.

President Bush’s exaggerated characterization of international terrorism must be repudiated to prevent special wartime powers from becoming permanent fixtures. Speaking to the Convention, Bush described the conflict as “the decisive ideological struggle of the 21st century. On the one side are those who believe in the values of freedom and moderation—the right of all people to speak, and worship, and live in liberty. And on the other side are those driven by the values of tyranny and extremism—the right of a self-appointed few to impose their fanatical views on all the rest…[T]his war will end in the defeat of the terrorists and the totalitarians, and a victory for the cause of freedom and liberty.”

But mankind has never witnessed a time free of tyrants or extremists. There will always be some vile organizations or individuals to defeat or overcome. A war to make freedom’s banner fly everywhere will never end. Indeed, Bush seemed to concede the point before the Convention: “We’re now approaching the fifth anniversary of the day this war reached our shores. As the horror of that morning grows more distant, there is a tendency to believe that the threat is receding and that this war is coming to a close. That feeling is natural and comforting—and wrong.” Bush offered nothing new in fighting international terrorism that would provide hope that on the tenth or twentieth or thirtieth anniversary of 9/11 a President might announce that the conflict had ended.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.