Seeker Blog

In the essay Bin Laden as Patrick Henry? Daniel Henninger tries to understand the reasoning of those who disbelieve there is an Islamic terrorist threat. For those still questioning the danger please see We haven’t absorbed the lessons.

So we got the Hamdan Guantanamo detainee decision yesterday, the turmoil over revealing the Swift surveillance of terrorist financing a week ago, the FBI’s capture in Florida of the would-be al Qaeda bombers of the Sears Tower before that, and oh yes, those 17 Muslims in Canada who wanted to invade Parliament and behead the prime minister. We seem to be thoroughly entangled just now in never-ending tensions over civil liberty concerns on one hand and manifest national security threats on the other. Nearly five years after September 11, it’s a little stale to argue that this much confusion is just the way a vigorous democracy functions. Or not.

It was good to see that the FBI could catch a group like the Florida bombers. By coincidence about that time, the director of the FBI in New York, Mark Mershon, visited our offices. Mr. Mershon made it clear that the FBI will not monitor or surveil anyone, including Muslim extremists, without a “criminal predicate.” Generally, probable cause is the gold standard for watching. Mr. Mershon said that if someone keeps his head down and nose clean in the U.S., he can function with a great deal of freedom. That’s a rough but workable description of our system.

This traditional, all-American tradeoff between liberty and risk works OK in a country populated with standard criminal types; most eventually work their way up to a police database. But what about the world of Islamic fanaticism whose recruits, notably suicide bombers (or pilots) are nearly all first-timers? Does “our system” mandate that we allow an Islamic fifth column to fly beneath the radar of probable cause and into buildings? Do we have to settle for catching bottom-feeders like the Florida plotters while the smart boys, planning a smallpox attack in Detroit, stay below what they’ve read is the threshold for FBI curiosity or a FISA warrant?

[…]

It is possible to sharpen the focus of this matter further. The critics of the anti-terror surveillance programs such as the NSA’s warrantless wiretaps give the impression that these efforts somehow violate principles laid down at the ratification of the Bill of Rights. The legal arguments, however, revolve around the requirements of Title III (establishing probable cause for electronic surveillance) and the FISA statute. Both laws, from the 1960s and ’70s, in part were a reaction to government wiretapping of individuals involved in the civil-rights movement and anti-Vietnam War protests.

Many of those in the opposition on these surveillance issues–in Congress, the legal community and the press–are people whose personal and intellectual formation is rooted in the events of that era. This is the prism through which they transmute any political event; does it pass or fail the commandments carved in the ’70s? But this is 2006, not 1974. Islamic jihad and al Qaeda are not the Montgomery marchers or Kent State, and our debate and laws should reflect that. Applying transaction analytics to telephone traffic is not the same as two cops with headphones in a hotel listening to the people in the next room.

Perhaps there’s a silver lining. The public demonizing of Messrs. Bush, Cheney and Gonzales as ruthless tramplers of civil liberties is a throwback to the anti-LBJ, anti-Nixon style of Vietnam-era protests. This has been catastrophic for shaping public policy around this issue. But if the bad guys go slow because they think that George Bush and Dick Cheney are RoboCops willing to do what they gotta do track, trap and catch them, hey, maybe our crackpot “system” works after all.

See also This is a columnist in a serious publication? for a truly awful Newsweek example.