Wednesday — February 18, 2004

Winning the war while losing our balance

Commentary by ADAM TANOUS

---

President Bush will forever be associated with the attacks of Sept. 11, 2001. His presidency, whether one term or two, will be defined by a theme of national security. And certainly the nation now seems more secure than it did in the first days following the terrorist attacks.

A secure and lawful nation is, however, inextricably linked to civil liberties. The two exist in a sort of symbiotic tension—each is a necessary condition for the other. That’s why the current flap over President Bush’s service in the National Guard is a civics lesson in irrelevance. People are trying to get at his national security credentials by examining a questionable five-month period of National Guard service more than 30 years ago, long before he was leading this nation. A more valid criticism of his national security credentials has to do with the way in which he has veered around civil liberties in the pursuit of law and order.

Our entire history is an optimistic yet endless fumbling toward greater freedom. But freedom is more than some abstract quantity associated with a democratic nation. A free society means nothing until it is extrapolated down to the level of the individual living in that society. The degree to which we live by and enjoy civil liberties within an organized society is a truer measure of our success than is our ability to destroy criminal elements in or around us. It is also a true measure of a president.

Any police state can rid itself of threats and bad elements. The question is, can a free society do it? Can President Bush do it? Can he find that balance between the power of government and the individual?

I admire the president’s conviction when it comes to his sense of right and wrong, but I do think that such rigid conviction is, in a perverse way, limiting his vision and understanding of complex problems—specifically the balance between a lawful society and individual freedoms. The Bush administration has consistently opted to tip the balance away from the latter.

Most recently, the Justice Department subpoenaed six hospitals for medical records of patients who had what some call "partial-birth abortions." Attorney General John Ashcroft has said that the subpoenas are necessary in order to defend a new law prohibiting the medical procedure also known as "intact dilation and extraction." A group of doctors has challenged the law in court, arguing that it prevents them from doing medically necessary abortions. But the Bush administration wants to examine the cases to determine for themselves what exactly is "medically necessary." To do that they want to sift through hundreds of patients’ medical records over the course of the last three years.

Individual rights, like privacy or due process, should never be compromised unless there is some extraordinarily compelling reason. Defending an abortion law that was controversial in the first place is not a compelling reason.

Many argue that national security is one of those compelling reasons. In the abstract I would agree, but the gerrymandering around civil liberties in the name of national security has become self-defeating.

The CAPPS II system, coming this summer, is the administration’s effort to ferret out security risks on commercial airlines. Every passenger’s name, address and phone number will be fed into a computer, then run through huge consumer databases maintained by the LexisNexis Group and the Acxiom Corporation. That cross-referenced information is then checked against military and terrorist intelligence. A passenger will then be assigned a designation: regular screening, extra screening or apprehend. Every single piece of electronic information about a person will be analyzed and processed, then sent zinging from computer to computer.

The privacy concerns associated with the computer age are not that computers can store large amounts of personal data. The great concern has always been that someday, which seems to be upon us, large computer systems could share and integrate information about people. It’s the communication between systems that threatens privacy.

Still worse is what is taking place at the Guantánamo Bay naval base in Cuba. While the number of prisoners held at the naval base at Guantánamo Bay, Cuba, is relatively small—just under 700—the issues continue to get bigger.

It is no accident, nor an ill-thought plan, that all of the prisoners in the war on terror are on a 45-square mile patch of Caribbean coastline. Like the war on terror, the base at Guantánamo Bay and the rules that govern it fall into a nebulous zone of sovereignty.

Curiously enough, Cuba fought alongside the U.S. in the Spanish-American War of 1898. When the Spanish were kicked off the tiny island, the American forces just stayed. In 1903, Cuba agreed to lease the land to us, in perpetuity.

So, while we control the base, it is not technically U.S. soil. Do our laws of criminal justice apply there? Maybe, maybe not. What’s more, those brought there have been labeled "unlawful combatants," not prisoners of war, which would afford them some internationally-recognized rights. Even prisoners of war are allowed a hearing of their individual cases.

The end result is that people can be held at Guantánamo Bay without charges, without access to counsel and for an unspecified time. Some have been held for two years now. To make matters worse, no one is allowed to even know the names of who is in there. Perhaps the primary purpose of our enumerated rights is to provide a foil to the prosecutorial arm of the justice system. The tension between the two provides a means to truth. The adversarial nature of those forces is intentional—they work against each other simply with the aim of finding justice for any given situation.

As serious and threatening as this war on terror is, we can’t just win it by destroying or locking up all the bad guys. We also have to preserve the belief that the system will muddle its way towards truth.

The Idaho Mountain Express is distributed free to residents and guests throughout the Sun Valley, Idaho resort area community. Subscribers to the Idaho Mountain Express will read these stories and others in this week's issue.