Frank’s Case Book

While interviewed on Fox News Sunday by anchor Chris Wallace, former President Bill Clinton grew defensive about criticism of his efforts to apprehend or kill Osama Bin Laden before the September 11, 2001 attacks on the United States. He crowed about his aggressive pursuit of bin Laden saying,

“What did I do? What did I do? I worked hard to try to kill him. I authorized a finding for the CIA to kill him. We contracted with people to kill him. I got closer to killing him than anybody has gotten since.”

So we have a president of the United States not only admitting, but boasting, that he exercised arbitrary executive authority to direct the killing of a foreign national. Although clearly bin Laden was pursuing a war against the United States, Congress had declared no such war. As chief executive, Clinton was exercising his Constitutional authority as commander-in-chief, to protect citizens and interests of the United States. Clinton’s admission of the desire and order to assassinate bin Laden is interesting given that the Church Committee’s investigation of intelligence excesses in 1975 concluded that assassination was “incompatible with American principle, international order, and morality.” Of course, there is an exception in times of war, but at the time that Clinton was attempting to kill bin Laden, there was no state of war. The United States was planning to kill bin Laden because we believed he posed a threat and that it would be easier to kill than append him.

President Ford’s executive order 12,333 provided that “[n]o person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” Of course, this presidential order could have been superseded by Clinton. Nonetheless, in the Fox interview, Clinton admits he was aggressively and deliberately violating that executive order. There has been little objection by Democrats on the Left about this now common conclusion that assassinations ordered by the US president can be appropriate.

In retrospect, few would now question the legality of such a potential killing, and many fewer still would question its desirability. Perhaps such an assassination or series of assassinations of Islamic radicals would have prevented the deaths of 3,000 innocent people on September 11. Of course, it is ironic that had such an assassination(s) occurred, there would have been two possible outcomes: either the attacks of 9/11 would or would not have happened. If they had happened, the far-Left would have claimed that the attacks constituted a response to hostile US efforts to kill Islamic leaders. If the attacks of 9/11 had never happened, we would have never known what had been prevented. The assassinations could have still been criticized as yet another example of American international lawlessness. Indeed, anti-Clinton Conservatives would have likely criticized such actions as well.

The morality of a bin Laden assassination, despite any legal issues, rests on the principle that the innocent should be protected with the minimum violence possible. In the case of bin Laden, the application of such deadly force seems justified. We should capture him if we can, and kill him if we must. Can this same principle be applied to the use of torture or aggressive interrogation techniques short of torture?  We seem to have collectively agreed that an assassination that would prevent a terrorist attack is not only morally justified, but morally required. What about aggressive interrogation techniques?

If a president is confronted with high-level terrorists and must use aggressive interrogation techniques to save innocent American lives, to what extent is it morally justifiable? One the one hand, if we are too cavalier with the use of aggressive interrogation techniques we run the risk of unnecessary cruelty and its  morally deadening effect on those who act on our behalf. On the other hand, if we are too punctilious we trade moral posturing for the protection of innocent life.

One of the tenets of Just War theory is the principle of “proportionality.”  Proportionality, or the lack there of, has become the chief focus of criticism of Israeli actions in Lebanon. Russia and the European Union claim the Israel has escalated the fight to a “disproportionate act of war.”  Speaking for Italians, the Italian Foreign Minister Massimo D’Alema observed, “We have the impression that this is a disproportionate and dangerous reaction in view of the consequences it could have…”

Hezbollah in Lebanon started the conflict by launching missiles into northern Israel and capturing soldiers along the Lebanon-Israel border and has made military response difficult by the deliberate intermingling of combatants and civilians. Nonetheless, the disproportionality argument rests on the fact that Israel has taken more lives than Hezbollah, many of them civilian. This naive argument misunderstands proportionality in its entirety. Moreover, it implies a sweeping misinterpretation that reduces proportionality, in the end, to mere revenge.

If Hezbollah kills two Israeli civilians through a rocket attack, it is not a proportional response to kill two Lebanese civilians. That is vengeance and retribution. These are principles of action specifically prohibited as legitimate justifications for the use of force under Just War Theory.

Proportionality is a broader, more complex principle. It is not the simple math of tallying injuries to achieve a rough parity. By its nature, war involves death and destruction. The principle of proportionality requires that the good to be achieved exceeds the costs in lives and property and that the minimum force possible is used.

The calculus of proportionality cannot be reduced to entries in an accountant’s ledger. Lives are invaluable, but so are non-tangible goods like liberty, freedom, security, political equality, self-determination, and justice. How the loss of life and suffering balance other values is not a straightforward appraisal. Reasonable people of good will can reach different conclusions.

An assessment of the proportionality of the Israeli response perhaps will only be determined at the outcome of hostilities, whether a sustainable peace of some sort is achieved. Ironically, if Israel were to cease hostilities at this time with the Hezbollah war machine intact enough to keep northern Israel hostage, as seems to be the case, all the lives lost on both sides would have been in vain because little would have been achieved. The balance of good and evil would be weighted to the evil.

The only chance for true proportionality lies in Israel following the difficult route of persuing the disarmament of Hezbollah in southern Lebanon in a thoughtful and careful way. The Israelis have not yet achieved proportionality and prematurely ending their efforts would guarantee it will not soon be achieved.

The Left has the inconvenient habit of racing to the reflexive defense of anyone accused of working secretly against the United States. Perhaps best known is the case of Alger Hiss. Hiss was an urbane US State Department official accused of being a spy for the Communists. He was eventually convicted of perjury in 1950. For decades afterwards, where one stood on the innocence of Hiss was a reliable measure of where one stood on the political spectrum. The Right viewed Hiss as an example of the enchantment of some on the Left with Communism, while those on the Left saw Hiss as a person persecuted by excessive American fear of Communism. Since the end of the Cold War formerly classified documents have become available, particularly those of the Verona Project. The evidence of Hiss’s guilt from these documents is now dispositive to all but the intentionally intransigent.

Generations later, some on the Left have stumbled into the same trap with regard to Sami Al-Arian, the former computer science professor at the University of South Florida (USF). Al-Arian made the mistake of appearing on the O’Reilly Factor. Al-Arian did not fair very well under critical questioning by host Bill O’Reilly. Al-Arian could not adequately explain his association with people involved in terrorist organizations. Perhaps most damning were Al-Arian’s past public shouts of “Death to Israel.” Al-Arian pathetically excused such rhetoric as a metaphor for disagreement with Israeli policies. I am sure Al-Arian would not consider shouts of “Death to Al-Arian” made to enthusiastic cheering crowds as simply expressing disagreement with Al-Arian’s political positions. I am sure he would feel directly threatened.

In the immediate aftermath of the interview, Al-Arian was dismissed from USF. The ostensible reason was that Al-Arian had not explicitly made clear that he was speaking for himself and that his positions did not necessarily represent those of the USF. Apparently, for security reasons, Al-Arian was directly not to return to campus. By returning to campus, he gave the university administration yet another excuse to dismiss him.

Al-Arian’s defenders included the liberal Salon Magazine, the American Association of University Professors, and the American Civil Liberties Union, who portrayed the dismissal of a tenured professor for controversial remarks as a violation of Academic Freedom and, because the USF is a public institution, a violation of the First Amendment.

There is a legitimate point buried here. The reasons for dismissal were contrived and certainly would not have been applied to a more mainstream character. The question is whether Al-Arian was being dismissed for having controversial opinions or for the intimidating and threatening way in which they were expressed. Chants of “Death to Israel” are, to any reasonable person, inflammatory and not merely the expression of opinions within a community of scholars.

Conservatives should be a little apprehensive of embracing Al-Arian’s dismissal for clearly inflammatory remarks. Given the occupation of college campuses by the extreme Left Wing, it is not hard to imagine even mainstream Conservative thought being unfairly labeled as “hate speech.”

Recently at Ohio State University a librarian was charged with “sexual harassment.” Librarian Scott Savage was part of a committee deciding on books for freshman to read. He suggested The Marketing of Evil by David Kupelian, The Professors by David Horowitz, Eurabia: The Euro-Arab Axis by Bat Ye’or, and It Takes a Family by Senator Rick Santorum. Some professors described the books as hate literature to which tolerance should not be extended. At a university, where the widest possible latitude for the civil exchange of ideas ought to be allowed, the suggestion that certain books be read becomes a crime. Charges were dropped, but a chilling effect remains on any similarly-minded librarians.

The temptation to come to the defense of anyone being prosecuted by the Bush Justice Department was just a little too great for sober minds to prevail. Unfortunately, the defense of Al-Arian did not solely remain centered on free speech issues or the question academic of freedom. It is possible to defend the free speech of despicable people. But that was not enough here. Al-Arian was described as an innocent professor devoted to increasing the understanding between peoples, persecuted by anti-Islamic bigotry in the aftermath of September 11th. The Left let its view of Americans and the American government as mean spirited dolts overwhelm the common sense notion that one should wait until the entire case is adjudicated before running to the defense of someone they really do not know very well.

Al-Arian was acquitted on 8 of 17 charges for helping a known terrorist organization. There was a deadlock on the remaining charges. The much ballyhooed vindication was short-lived. Al-Arian has just pleaded guilty to “conspiracy to make or receive contributions of funds for the benefit of Palestinian Islamic Jihad.” Islamic Jihad is a designated terrorist organization. There is no longer a question of fact. Al-Arian was using the United States, his position at USF, and gullible Leftists to provide material support to Islamic terrorist organizations. Those who supported Al-Arian as a put upon innocent have once again allowed their instinctive reaction to assume the worst of Americans to corner themselves into the uncomfortable position along side a convicted criminal.

Last week the New York Times reported that President George W. Bush had directed the National Security Agency (NSA) to intercept communications between suspected Al Qaeda members and people in the United States. NSA has long intercepted solely foreign communications. Indeed, such intercepts are a major source of intelligence. Until the practice was revealed in court proceedings, the NSA gained valuable intelligence from Osama Bin Laden’s satellite phone communications.

Wiretapping or other surveillance of electronic communications within the United States usually falls within the purview of the Federal Bureau of Investigation (FBI) in its capacity for domestic law enforcement. In a domestic law enforcement case, such “searches” are generally authorized by a warrant issue by a judge upon presentation of probable cause.

In cases of gathering foreign intelligence, the law and practice become more complex. Whether one approves of the searches ordered by the president or not, there is a fairly long judicial trail permitting such searches under the “commander-in-chief” provisions of the Constitution. At the very least wide latitude is granted and the limits of such latitude have not been clearly circumscribed.

The Courts have consistently explicitly allowed electronic surveillance in national security cases. Indeed, in United State v. Buck in 1977, the Ninth Circuit Court concluded that “[f]oreign security wiretaps are a recognized exception to the general warrant requirement.” Summarizing the history of the jurisprudence on the matter in 2002, the United States Foreign Intelligence Surveillance Court of Review [page 48] concluded that “…court[s] to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information… We take for granted that the President does have that authority and, assuming that is so, [the Foreign Intelligence Surveillance Act] could not encroach on the President’s constitutional power.”

Bush is not the first modern president to claim and exercise such inherent authority even on those engaged in foreign intelligence on US soil. President Jimmy Carter used this authority in the prosecution of Truong Dinh Hung, a person prosecuted for spying on behalf of the Socialist Republic of Vietnam. Evidence against convicted spy Aldrich Ames under President Bill Clinton was also acquired by a warrantless search. Indeed, Clinton’s former Deputy Attorney General Jamie Gorelick argued that the “Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes.”

Ultimately, the debate about such warrantless searches revolves around the broadness of two Constitutional provisions. Article II of the US Constitution invests the prerogatives of the Commander-in-Chief of the Armed Forces. Gathering intelligence in the fulfillment of this responsibility (not for general law enforcement) is a presumptive power of the President. On the other hand, the Fourth Amendment to the Constitution prohibits “unreasonable” searches.

This friction between these provisions mirrors an ongoing tension between different governing philosophies at odds since the ratification of the Constitution: the Hamiltonian and Jeffersonian views.

Alexander Hamilton a chief apologist for the Constitution, in the Federalist Papers, strongly argued for a strong central government and a strong executive in particular. As Hamilton explained, “Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks…” Of those opposed to the ratification of the US Constitution, many cited the power granted the president as too sweeping. Hamilton certainly would have been comfortable with Bush’s exercise of executive authority.

By contrast, Thomas Jefferson (at least while not serving as President) would have argued against such authority. Jefferson deeply distrusted government, any government, and would have believed that procedural impediments should always tie executive authority.

The irony is that a largely free and democratic republic would have never survived over two centuries but for the Hamiltonian bow to the practical exigencies of government. It was Hamilton who first argued that there were “implied” powers inherent in the federal government. On the other hand, the Jeffersonian ideal of limited government continues to provide important salutary rhetorical constraints on the growth of government power.

The current debate is yet another extension of the Hamilton and Jeffersonian dialogue begun two centuries ago. However, lest we get too carried away with the current debate, it should be remembered that the three largest erosions of individual liberty in the last few years have been the extension of eminent domain powers, limits on freedom of speech implicit in campaign finance reform, and the prohibition of protests around abortion clinics.