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Balancing national security and civil liberty is difficult at any time; it is especially complex in time of war. A foremost protector of free speech, Oliver Wendell Holmes, reminded us that “the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Some critics of John Ashcroft have been shouting fire so regularly that one might expect the general public to reflect panic or alarm over questions of civil liberty. As usual, the people are wiser than such critics concede. While cherishing personal freedom, Americans recognize that the limits of freedom are different when a nation is under attack. From 9/11 onward, overwhelming majorities of American citizens have expressed their approval in polls for expanded surveillance of terrorist groups under suspicion, the closer monitoring of financial records, and the expanded use of cameras or other high-tech means of identification. The attorney general nevertheless continues to be highlighted for particular criticism. Take, for example, his defense of the president’s determination to treat Yaser Esam Hamdi and Jose Padilla as unlawful combatants. The gravamen of the criticism is not that these individuals do not fit the definition to a tee; it is that we could not possibly trust the attorney general in these instances, since one fine day he might just apply the same treatment to any one of us. Without a doubt, according all persons, especially American citizens, due process — including access to counsel and a fair understanding of any charges brought against them — is an appropriate concern. Yet its weight is surely reduced when it is raised on behalf of individuals like Hamdi, captured on a battlefield. Caught in this country, Padilla is a slightly tougher case, though not by much, given his “dirty bomb” networking. Habeas corpus has been invoked, and the 4th Circuit has instructed the trial judge to take a reasonable but deferential and confidential look at the facts. One reasonably expects that the attorney general’s handling of those who flout both the laws of war and peace will ultimately be sustained. If anything, the Justice Department’s treatment of Zacarias Moussaoui has erred too greatly on the side of civil liberty. His actions — receiving money from known terrorist sources, pursuing flight training, and the like — both tie him to Sept. 11 and make him as good a candidate for unlawful combatant status as the others being held in military brigs or in Cuba. And Moussaoui’s “regular criminal trial,” so often touted as capable of handling terrorist cases, has proven in its pretrial gymnastics to be wholly unsuited to its criminal justice function — notwithstanding the best efforts of U.S. District Judge Leonie Brinkema. Discerning what is criminal and what is foreign intelligence is admittedly harder today. In the late 1970s, Congress created the Foreign Intelligence Surveillance Court to keep the tracking of foreign agents (including American citizens who take on this role) reasonably separate from criminal probes and prosecutions. Now that we better understand that terrorism is both an act of war and a crime, that bright line is far less bright — a fact expressly conceded when Congress enacted the USA Patriot Act last September. At the moment, there is an intramural dispute over the extent of flexibility granted by Congress. The attorney general issued guidelines, which the Foreign Intelligence Surveillance Court largely but not entirely accepted (a fact that was not well-conveyed by the blaring Washington Post headline of Aug. 23, 2002: “Secret Court Rebuffs Ashcroft”). The attorney general interprets the new authority as permitting extensive sharing of information between intelligence officers and agents of the Federal Bureau of Investigation, or different sets of agents, in investigations that have both criminal and intelligence interests and that involve espionage or international terrorism. The attorney general thought it important to allow FBI intelligence officials to “initiate, continue, or expand” such searches — all with the Foreign Intelligence Surveillance Court’s approval, of course. The judges think the new law only allows “consultation and coordination.” That’s an honest difference of opinion which a higher court will likely settle. It’s hardly the unchecked trammeling of civil liberty, however. Also, the attorney general has been challenged for inviting those who fit the commonsense template — by age, travel habits, nature of immigration entry, etc. — to come forward. The logical questioning of those who have traveled to and from the part of the world that has it in for us is not racial profiling. He has been further assailed for arresting many on immigration and identity theft violations. “Penny ante and unduly intrusive,” goes the refrain; or “Where is the connection to Sept. 11?” Perhaps it’s in Detroit where a federal grand jury has just handed up an indictment against five radical Muslim men accused of operating “as a covert underground support unit for terrorist attacks, responsible for procuring false passports, Social Security numbers, and other documents.” Some worked in airline kitchens with unrestricted access to planes. Others possessed video surveillance of Disneyland, the MGM Grand Hotel and other American landmarks. Another Muslim man, James Ujaama, was indicted in Seattle for supplying “training, facilities, computer services, safe houses, and personnel” to al-Qaida as part of a conspiracy. A few days before the indictment, Ujaama was being held up as the poster boy for the abuse of the material witness statute. Indictments, of course, are not convictions. Yet maybe those who readily second-guess the attorney general might give greater thought to whether the larger interest of national security might not be better served by placing such people in military custody, rather than in a federal jail. Of course, I am certain that would be depicted as an even more serious violation of civil liberty — unless, that is, this really is a war. For reasons not entirely plain or often fair, John Ashcroft bears the burden of our anger. I suspect the anger we direct at the attorney general reflects the anxiety of the time and our deep resentment that the placidity of a life we once knew, and may never know again, has been stolen. We would be just fine — thank you — not having to contemplate another terrorist attack. In this, the attorney general is the proverbial messenger bearing news we would, as a nation, rather not deal with — but must. Douglas W. Kmiec is the dean and St. Thomas More Professor of Law at the Catholic University of America Columbus School of Law, and a distinguished senior policy fellow at Pepperdine University.

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