Tanya M. Acker
During a recent panel discussion about trials for terror suspects I pointed out that the American criminal justice system has managed the prosecution of terrorists before – Ramzi Yousef, Timothy McVeigh, Richard Reid, to name a few – and that I thought our Constitution is up to the challenge (notwithstanding all of those dastardly rights it often affords the accused).
My counterpart on the right responded: “I don’t think a majority of the American public give a fig about the rights of a radical Islamic extremist.” When I maintained that I thought they “cared about the Constitution,” my counterpart suggested that they instead “care[d] about their lives and their family’s lives.”
Now this is a very curious assessment of the situation. One the one hand, we have terrorists and our allegedly terrorist-protecting Constitution. On the other, we have our family, friends and all that we hold dear. Since the terrorists obviously must lose and since most of us have only two hands, there is obviously no way to win this fight without dispensing with the protections afforded by that weak-kneed, pansy document conceived and drafted by our Founding Fathers.
Call me Jack Bauer-bashing naïve, but I have this thing about false choices. I don’t like making them and I don’t think the rest of us should either.
False choices usually result in bad decisions. Having so limited our options, we then run the risk of creating new, far sweeping rules whose unintended consequences are more than we bargained for – consequences that become all the more pronounced when questions of law and justice are involved.
I’ve practiced constitutional law. I have worked in the federal court system and the United States Department of Justice. Having made those rounds, I can say with absolute certainty that there is no Constitution Fairy who determines in advance which portions of our governing document should be applied to the “radical Islamic extremists” and which should be applied to those that some of us may find “less” threatening. Instead, what usually happens is that once some decide to ignore our values when it comes to fighting Islamic extremists (some of whom are born in the U.S.A.), others may decide that the rights of the anti-government militia sympathizers are next.
Then, when the next right-wing radio host advocates shooting federal officers (as some radio hosts have done), and the next ratings-mad TV spin doctor implies its time to take up arms against government agents before they storm your property and steal your guns (as some TV types have implied), certain enterprising souls might suggest that an attack on a federal building like that which took place in Nevada yesterday (in which a U.S. marshal was wounded and another guard killed) was but a precursor to another Timothy McVeigh- inspired tragedy. Certain other enterprising souls might then suggest that we shouldn’t “give a fig” about the rights of “radical, anti-government domestic terrorists.”
And since we’re (eventually) closing Guantanamo, where would we send them?
The reaction to the attempted Christmas attack by Umar Farouk AbdulMutallab is but another reminder that we can no longer cede our national security conversation to people who think that the Constitution only applies to people who look – and pray – like them. And the fact that I think so doesn’t mean that I “don’t take terror seriously” or that I “don’t believe in fighting a war on terror” or that I “want the terrorists to win” or any other such nonsense.
Rather, I am simply tired of being lectured on the subject by partisans of those who refused to implement the recommendations of the 9/11 commission, or who decided to cut New York’s terror funding because they thought there were no landmarks there worth protecting, or who advocated ceding control of certain U.S. ports to a company in Dubai but who still opposed overseas screening of incoming cargo containers. While our system has, by and large, worked to prevent a number of attempted attacks, when it fails its failure is miserably ugly; so instead of parsing through Secretary Napolitano’s careless choice of words in search of the next “gotcha” moment, our time might be better spent examining how we stay one step ahead of those with nefarious purposes.
Stopping someone like AbdulMutallab – who has no luggage, buys a one-way plane ticket in cash, and whose father already has alerted authorities about his extremism – is obviously only one part of that process. We are ill-served, however, by suggestions that the next logical step is simply to dispense with our constitutional values. Indeed, somewhere between completely dropping the ball on security and completely eviscerating our constitutional tradition might lie a few other options.
We could, for instance, continue to reconsider the manner in which we engage with failing states and repressive regimes; as the 9/11 Commission observed, “[o]ne of the lessons of the long Cold War was that short-term gains in cooperating with the most repressive and brutal governments were too often outweighed by long-term setbacks for America’s stature and interests.”
The Commission also recommended that Congress and the TSA give “priority attention to improving the ability of screening checkpoints to detect explosives on passengers”; we’ve spent so much time talking about how airport body scan devices may show all of our “naughty bits,” however, that we’ve touched very little upon whether they even would have prevented a successful attack by AbdulMutallab or someone employing a similar strategy. There is also the issue of overseas inspections of incoming cargo; I understand that it may be expensive and technologically inexact, but in an age where many of us have talking phones that can either spit out recipes or make dinner reservations, it would seem that figuring this out is solidly within our grasp.
I would also respectfully submit that there is a big difference between “profiling” based on activity (which makes complete sense) and “profiling” based on race or religion. Should AbdulMutallab’s father – who prized international morality and security over family loyalty – really be painted with the same brush as his son? I should think not.
As others have said more eloquently than I, these are among the most important issues facing us as Americans today. None of this is easy (except perhaps for stopping someone at the airport who has no luggage and who buys a one-way ticket in cash – and whose father says “I think my son is a terrorist.”). Fighting terrorism, however, is not simply about hysterically beating our chests and looking for excuses to burn the rulebook. When we do, we usually just end up burning the house down and destroying precisely what it is we were trying to protect.
Follow Tanya Acker on Twitter @tanyaacker