2006-02-17 / Columnists

The Rockaway Irregular

by Stuart W. Mirsky


There I was, sitting at my computer, staring at a blank screen, stumped. I needed an issue for this week’s article and didn’t want it to be just the same old thing. And then the mailman came and dropped off my copy of The Wave. The very first letter to the editor had a missive from Wave reader Ira Feldman taking me to task for my recent defense of the Bush administration’s use of warrantless wiretaps as part of its effort to prevent future attacks on this country.

Said Feldman: “If this president can designate you a terrorist and throw you in jail, deny you a lawyer, never charge you with a crime, nor admit that he has even taken you from your home, send you off to a foreign prison, have your fingernails forcefully removed in the name of ‘legal coercion’ (torture), listen in on all your families’ frantic calls as they desperately try to find you, and finally, keep you in solitary for the rest of your life . . . (what) can (he) NOT do?”

I read the letter once and then again, noticing Feldman’s other comment: “Perhaps, Stu,” he wrote, “you would consider taking time from your busy schedule to reply to some basic questions; that is, of course, if you feel your writing is worthy of serious consideration and debate by your audience.” Here ended my writer’s block.

Feldman makes a number of claims that, on their face, look like the kind of thing no one can argue with.

It’s mom and apple pie.

Who wants the government snooping on us or torturing us or locking us away? Not Mr. Feldman.

And not me.

But the point is that Mr. Feldman’s assertions aren’t actually true, though they’re endlessly asserted by many these days.

Let’s look at some facts.

There certainly have been imprisonments of designated terrorists. Most are non-citizens but in a few cases, like that of Islamic convert Jose Padilla, some are U.S. citizens.

Does this mean that our government is now broadly and indiscriminately imprisoning American citizens alleged to be terrorists?

There’s absolutely no evidence of that. 

Padilla was accorded his rights by the courts and had the opportunity to contest the case against him. In light of a recent Supreme Court decision he’ll now have further opportunity in the courts. His rights have been protected.

Yes, there have been broad arrests of suspected illegal immigrants, since 9/11, and ongoing imprisonment of many while the government makes its case for their expulsion.

Sometimes this takes a long time. But illegal immigrants don’t have a basic right to be here. That’s why we call them “illegals” after all. They’re entitled to due process but, if they’re here illegally, why would the government release them, pending a decision, so they can disappear into the general population before they can be expelled?

What about allegations of fingernails being “forcefully removed”? Actually no one has asserted that has occurred though there is a raging about whether aggressive interrogation is appropriate for dealing with captured terrorist suspects and when that crosses the line.

Some have argued that loud music, shouting, prolonged standing, low ambient temperatures, culturally inappropriate sexual allusions, the presence of ferocious seeming dogs, etc., must all be off limits. Granted this is a difficult issue, but so is terrorism. As others have written, if a terrorist has information needed to head off a major terrorist attack that places many lives at risk, you have to be innovative.

Well, what about renditions, the shipping of terror suspects grabbed on the streets of foreign countries to third countries rather than back to the U.S. to allow those countries to pry information loose from them? First off, the idea of kidnapping people off the streets in an extra-legal fashion strikes all of us as wrong. And then there’s the question of remanding them to governments who are not as sensitive about the torture question as we are. How can that be justified? I think we have to admit that the Bush administration is acting extra-legally here (though in contravention of foreign, not U.S., law). But what choice do we have? Spying, and its related activities, is never legal by definition. Still we do it. It’s like war. The norms that govern it exist outside the legal framework of nations. If we desist our enemies won’t and 9/11 certainly proved we have some enemies worth worrying about.

This brings us to the latest bugaboo, the one that got Feldman’s ire up: domestic eavesdropping without a warrant. The argument is that the government violated the 1978 FISA law which permits domestic eavesdropping to be conducted only via  warrant obtained from the special FISA court. Congressional critics of the administration initially opposed this outright when it came to light. Now many of them are saying they’re not really opposed at all, they just want the law changed to permit it. What this has morphed into is a Constitutional question, i.e., who has the final say, Congress or the Executive?

The administration has made no secret of its belief that the Executive ceded too much of its Constitutional authority to Congress in the wake of Nixon’s disgrace and has been very clear in its desire to reverse that. More, the administration has obvious concerns about not publicly airing what’s going on for fear of alerting our enemies to those few details not yet spilled by the New York Times. A Congressional debate with all its attendant partisan posturing is not likely to ensure our secrets, such as they still are, remain secret.

So this is not a violation of law as so many of the administration’s opponents allege. It’s a dispute over whether the FISA law binds the President in this matter. The administration’s position is that the Constitution gives the President the inherent power to defend the U.S. as commander-in-chief and, since this is an overseas surveillance issue, which has historically been seen to fall into that category, the notion that FISA obtains is being challenged.

The administration argues that it’s infeasible to get warrants in such cases because time is of the essence and the process, even invoking the 72 hour grace period envisioned by FISA, is too onerous to enable timely and effective intelligence retrieval. This one’s got to be ironed out. We live in difficult times and technology today far exceeds what was available back in 1978, before the cell phone explosion.

On 9/11 we learned that nothing is beyond these people. But we can’t simply put up a sci-fi force field to make ourselves impervious to harm. We can’t lock the terrorists out or ensure that our nuclear and water treatment plants, our farms and markets, our ports and bridges are perfectly secure. It’s just not realistic. But we can actively pursue those out to hurt us and proactively monitor their communications; getting what information we can to stop them in their tracks. Mr. Feldman doesn’t seem to like this situation or the fact that the administration has been proactively doing what our government failed to do for years prior to 9/11. I may be wrong but I think he’d like it even less if someone took Rockaway out with a nuke the next time around. rockirreg@aol.com

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