Security, Civil Rights and New Laws - 7 December 2001

I have not flown since the fateful 11th - not, I hope, from cowardice, but because of the lamentable frailty that comes to a man going 3,000 miles to mark - please, no celebrations - to mark his birthday when he no longer cares to go on counting the numbers. Well, much beyond 90.

So there's the early telephone call for a wheelchair, which I detest - makes you look like an old man - and the follow-up calls to be sure they've got aboard the oxygen - two litres per minute - just in case. The extra waiting is dull but, of course, necessary.

Anyway we made it in comfort and I sat there watching the people pass up the aisle, marvelling, as usual, at the variety of people's shapes and sizes and ideas of what is just right to wear on a long-distance journey.

This time I especially noticed - why? - the blacks and the Hispanics, and then there glided through the divide a tall, swarthy man with a strange towel of a head-dress, long beard, dark eyes, graceful, long, loping stride.

And a voice inside me said: "If you'd been an inspector at the security check-in gate, would you have paid careful attention to this bearded man?"

And a voice within replied: "I certainly would."

Now I know the laws and the new laws and how scrupulously 99.9% of the time they're being followed, but in the real situation instinct overleaps legal niceties.

And just now there's a far-reaching outcry among dark skinned people against what they call "racial profiling" at airports. The police everywhere are accused of it.

I see no solution to this. It's not a problem but a human situation and will be there forever.

Last time I touched on, or rather exploded over, a presidential order that has caused a small but very vocal protest across the political spectrum.

It was the president's order, without consulting Congress, to provide for the detention of suspected terrorists and their trial before military tribunals.

The very phrase "military tribunals" took fire in many minds as a flaming threat to the civil rights of the detained.

And my last sentence was the resonant "At the moment it seems inconceivable that the president can legally sustain his executive order to deny non-citizens a jury trial and commit them to secret military trials."

Note the emotional word "secret" - all military trials are secret - and "commit them" - the president said in a phrase little quoted that the classic military tribunal would be used as little as possible.

Well during the past week I've been looking into the history of a president's emergency powers, into international tribunals, most of all into a law, a whole body of law, I doubt one American in a thousand has ever heard of - namely the law of war, which has been developed, refined and codified by many nations down the centuries with careful provisions for the humane keeping of captured enemies - spies, agents - but also rules for the suspension of their civilian rights for the duration of the war.

It has led to a drastic change of mind.

Looking back over the outbreak of past European wars and the way ordinary people reacted I find it hard to hear - as you always do in America - that almost instant protest that certain "rights" of yours, of mine, are being trampled on.

The Constitution, by the way, exists to enumerate and protect the rights of the individual. Nowhere does it require any duty of the citizen to the state.

Why do Americans, then, so smartly spring to attention and shout "You're violating my civil rights" whenever in a declared emergency a president delivers an executive order, even when his power to do that is specified in the Constitution?

It's a reflex prompted by a popular assumption - not even taught in schools because it's taken for granted - that the Constitution is the sole source of absolute law.

Didn't all the brilliant pamphlets written to urge the states to ratify the Constitution say "This Constitution will be equal to any emergency?"

And didn't Article 2 plainly lay down that the president shall take care that the laws be faithfully executed? They did and it did.

And there are very grave and reverend lawyers who even today maintain it is so and that most, if not all, presidential, that is to say executive, orders are suspect.

Why then is there such a vast library of federal laws - over 500 at present count - of acts passed to legalise the need for an action, for a law that the Constitution is dumb about?

Because in practice, that is to say in life, it turns out that those wise and far-seeing men who wrote the Constitution in 1787 were not psychic enough to anticipate the civil war or Pearl Harbour or the shattering of the two trade towers.

Anyway this expansion of personal leadership in time of war is inevitable.

Whenever I've been asked to play that engaging game of making a list of presidents in order of "greatness" I always exclude mention of Lincoln and Franklin Roosevelt - as I should of Churchill if it was about national leaders.

Because these three men could enjoy the privilege of abandoning many democratic usages. They became, they had to become, dictators - and two of them, at least, were, thank the Lord, benevolent dictators.

Lincoln was tougher than either of the other two and was more harshly criticised, indeed well-hated, for the powers outside the Constitution he assumed within weeks of the outbreak in 1860 of the Civil War.

Without waiting for Congress he declared war, which he had no right to do - only Congress can declare war - and although the House alone can appropriate money for the conduct of the war, Lincoln immediately ordered the provision of the monies for weapons and other military equipment.

He imposed a naval blockade - not his privilege.

He threw scores of newspaper men in jail as threats to the safety of the Union army or in general to the conduct of the war.

The unholiest of his acts, which is condemned to this day, was his immediate suspension of habeas corpus - a sacred right of citizenship in all free societies, the right of any arrested person to be brought to court, to have the legality of his arrest called in question.

To this day Lincoln's suspension of habeas corpus - and now I suppose president Bush's promise of it - will be talked and cited as a presidential sin against the Constitution, second only to Andrew Jackson's order to throw the Indians out of Florida after the Supreme Court declared their right to stay on their ancient lands.

"Forget the Supreme Court," cried old soldier Andy. "Get them Indians out."

The outraged reaction by some people on the left, the middle, the right, to the president's order springs from a fundamental misconception - that the shattering of the towers and the Pentagon were criminal acts.

They were not. They were acts of war, so declared within days by the United Nations and entitling the United States, under the UN Charter, to recruit its allies and respond with force.

So why, some lawyers ask, did Congress not declare war, which is solely its privilege?

Well, no other clause of the Constitution has been so completely ignored in modern times.

The last time Congress declared war was December 9th - anyway only a day or two after Pearl Harbour - 60 years ago, against - hold it - Italy.

By the law of war a captured or surrendered combatant or non-combatant assistant may be detained for the rest of the war.

He has no right - can you believe it? - no right to a lawyer or a trial or bail.

There are, among others, two acts of war that justify a specially severe response - a deliberate attack on civilians, and doing deliberate harm to civilians in pursuit of another war aim.

So many of the laws of war, not to mention the United States code as it applies to national emergencies, abundantly justify military tribunals - indeed, in many cases, prescribe them as the only proper treatment of enemies or suspected enemies.

For the rest, the Congress and the Department of Justice should together devise rules that guarantee humane protection during all detentions.

The suggested legal alternatives have been ad hoc international trials and/or jury trials.

Well first, international trials prohibit a great range of evidence but also publish for everybody, including the enemy, a great amount of useful strategical, tactical and political information.

Also they work at a turtle's pace. So far the Yugoslav tribunal has laboured over only 30 defendants in eight years.

So how about a jury trial for 800-1,000 detainees?

Well the trial of, say, Bin Laden alone would take - oh - two, three years.

And suppose he was then found guilty and sentenced to death? Not to worry, plenty of time for his appeals - two at least before the final plea to the Supreme Court.

The average interval between a sentence of death in this country and its carrying out is 21 years! - by which time the several thousand agents of Bin Laden could have sprouted a new generation of dedicated suicide bombers who would indeed not be needed for the final solution since possibly two thirds of the American and European populations would be dead or dying from a germ, a nuclear bomb, whatever.

The survivors, however, could proudly gasp: "We fought to the end for our Constitutional right to a fair and speedy trial."

The first aim of war is not civil rights but survival.

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