How Civilized Men Might Live

Over on The Volokh Conspiracy, an attorney for the recently ruled-on Al-Marri weighs in on the nature of terrorism and security:

Whether one trusts or distrusts President Bush and the manner in which he has prosecuted "The War on Terror," the powers he has asserted to himself (to the Executive Branch) -- the power to detain an individual lawfully present insde the United States based solely upon a Presidential edict and the triple hearsay declaration of a Pentagon bureaucrat -- could easily be abused by him or a future resident of the White House. Of course, while anything is possible, it is fair to say that to date no terrorist has obtained (much less detonated) a nuclear weapon anywhere in the world, whereas elected leaders routinely abuse power; such is the history of man. I do not think of myself as an alarmist, but I am alarmed that educated people can characterize as "bizarre" the possibility that government powers could be abused. Indeed, it was in response to such abuses that the Bill of Rights was amended to the Constitution in the first instance.

[...] I should add that I am the "Mark Berman" who is identified as al-Marri's "Next Friend" in the caption of the Fourth Circuit case, and have represented him since he was a run-of-the-mill criminal defendant, charged in the Southern District of New York with credit card fraud and possessing of constitutional rights. My views are those of an advocate. As a personal aside, however, I have spent the past year "commuting" back and forth from Israel where my family has been living. Israel, of course, is a very small country that lives not only with the threat of terrorism and war on its home soil, but actual terrorism and war on its home soil almost every day. It is surrounded not by giant friends and allies like Canada and Mexico but by hostile neighbors in Lebanon, Syria, Gaza, and the West Bank. All of its borders (including those with Jordan and Egypt) are porous. Until it built a security/border wall and fences, Israel's Palestinian neighbors would successfully send their youth to blow themselves up in Tel Aviv cafes, Netanya hotels, and Jerusalem buses. Rockets launched from Gaza fall on Sderot and surrounding areas daily, almost two years after the last Israeli left. Plus, there is the growing threat of complete nuclear annihilation by Iran. All to say that Israelis have a lot to be afraid of in actuality, and not only hypothetically.

[...] Yet, one does not often see or hear the sense of panic and fear mongering that has become charcteristic of American discourse regarding terrorism and its suppression (by politicians and the media, and which is implicit in the hypo which started this discussion). Israel is not a country that has a Constitution or a Bill of Rights like ours, yet, even here, fully justified fear of future terrorist attacks has not led to a police-state system inside of Israel in which people can be detained indefinitely without charge simply because the Prime Minister says so. The police are free to act aggressively to protect the population, but there is still a legal process with recourse to the courts; whether that process should be more robust or applied more even-handedly can be debated, but the point is that the decision to idefinitely detain an individual is not left to executive say-so alone, which is the authority President Bush has asserted under our Constitution.