Judicial Audacity, Well-Founded

By Richard Cohen
Tuesday, July 4, 2006

A minority of the U.S. Supreme Court seems not to have been living in America for the past several years. The three -- Antonin Scalia, Clarence Thomas and Samuel Alito -- not only dissented from the majority's opinion that George W. Bush had confused himself with a monarch in establishing military tribunals at Guantanamo Bay, they also accused the other justices of "audacity" in second-guessing the president. Have these eminent jurists never heard of weapons of mass destruction?

If ever there was a president who begged to be second-guessed, it is the one we unaccountably now have. History will record him as the president who responded to a terrorist attack launched from Afghanistan by also going to war against Iraq. It will remember him as the one who insisted this be done so as to rid that foul nation of chemical, biological and atomic weapons, of which, when the smoke had cleared and the country was conquered, none could be found. It does not take audacity to second-guess Bush. It takes prudence.

It was Thomas, for once, who had the more interesting language. "We are not engaged in a traditional battle with a nation-state," he said of terrorism, "but with a worldwide, hydra-headed enemy, who lurks in the shadows conspiring to reproduce the atrocities of Sept. 11, 2001." The prose is purple. The point, though, is well worth debating.

Don't get me wrong. It's not that I doubt that there are some pretty bad people lurking in the shadows Thomas mentioned. The events of Sept. 11, not to mention the previous bombing of the World Trade Center and attacks elsewhere in the world, proved that bad guys exist, and they can be lethal.

But we have to be careful here. After all, the reason some in the Bush administration (and elsewhere) were so convinced that Saddam Hussein possessed WMD is that he once possessed WMD. If the weapons could not be found, it was because they were being cleverly and diabolically hidden -- not because they no longer existed. And when United Nations inspectors returned from Iraq with empty hands, they were vilified as fools and dismissed with contempt by such clear thinkers as Dick Cheney. The proof that Hussein had weapons of mass destruction was the very fact that he would not turn them over.

Can something similar be happening with the threat of domestic terrorism? After all, some of the same reasoning is being employed. If you want to know why the president must take extreme action, must encroach on this or that civil liberty, it's because of terrorism. And the proof of the success of his approach is that since Sept. 11 there have been no terrorist attacks in the United States. Can it be an accident? No. What you can't see, what you don't know, is proof of what you have been told.

Maybe so. But it ought to occur to even conservative Supreme Court justices that an administration that exaggerated the case for one kind of war may be exaggerating the case for another. This is not, as some of my meanie friends on the left insist, proof of lying. It may be instead an overdose of ideology or, in some cases, an infusion of bracing religious belief -- a conviction so strong that no evidence is needed and no dissent tolerated. The fight against evil banishes the blues. It is a fine reason to get up in the morning.

July 4th prompts me again to read the Declaration of Independence. It remains a startling, wise document, a reminder that our civil liberties were a consequence of tyranny. Once lost, they might not be reclaimed. An administration that asserts a nearly monarchal right to tap phones or jail terrorism suspects without regard to national or international law ought to at least show us the enemy that is at the gates. But the Bush administration cannot do that -- maybe the enemy is there, maybe he's not. Maybe he's been just temporarily stymied or maybe he's done for and all he can do now is lie, wounded and weak, in a cave somewhere on the Afghanistan-Pakistan border. There he stays, watching us chase our tail in Iraq.

In Europe, the attacks of Sept. 11 were often viewed not as an act of war but as a massive criminal act -- and the U.S. response, particularly the war in Iraq, was seen as an overreaction. Whatever the case, a hitherto compliant Congress ought to pick up on the Supreme Court's suggestion that it tell the president how detainees should be handled -- and go even farther, taking a hard look at whether an unrestrained war on terrorism, like the war in Iraq, is an exaggerated reaction to an exaggerated threat. For Congress, "audacity" is very much in order.


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