Saturday, July 5, 2008

Obama, patriotism, and terrorism

By Robert Robb | Barack Obama doesn't want his patriotism questioned.

Liberals believe that their patriotism is being unfairly maligned all the time. There is some justification for this. There are those on the right who openly equate liberalism with treason.

However, there is more going on here than that. Liberals don't only object to direct attacks on their patriotism, which are objectionable.

Liberals also tend to regard any criticism of their positions on national security issues as an attack on their patriotism. Here what is objectionable is their attempt to hide behind patriotism to shield themselves from such criticism.

The liberal logic goes something like this: Protecting the country is patriotic. Criticizing my national security positions is saying that I won't protect the country. Therefore, it is an attack on my patriotism.

When Republicans raise national security issues, Democrats accuse them of trying to use scare tactics to divide the country and impugn the patriotism of those who disagree.

The implication of the liberal position is that national security issues should not be discussed in political campaigns.

That's nuts. Elections are where policy choices are made. And there are no more important policy choices than about how to best protect the country.

Moreover, the threat of international terrorism is scary. And, although neither Obama nor John McCain is offering it, the country needs a new consensus about how best to protect it against terrorist attacks.

A new book by the Brookings Institution's Benjamin Wittes, Law and the Long War, offers a useful start on such a new consensus.

Wittes' basic contention is that protecting this country against international terrorism doesn't fit comfortably within the framework of either war or criminal justice.

Congress in essence declared war against al-Qaida after 9/11. And some of the effort to protect the country against terrorism involves military action.

The effort also depends heavily on the use of law enforcement tools to detect, disrupt and incapacitate terrorists. But terrorists are a national security threat in a way that a burglar is not.

Wittes believes that the country needs new laws in the areas of surveillance, interrogation and detention to fit the unique nature of terrorism and its threat.

These would be created by Congress and not rely on the inherent war powers of the president. As Wittes points out, extraordinary presidential authority during wartime is acceptable in part because of the assumption that the authority will be wielded for a relatively defined and short period of time. The fight against terrorism, however, is less defined and without an obvious conclusion. In such circumstances, the American tradition of checks and balances needs to come more into play.

So, Wittes would grant to the government greater authority to protect the country against terrorist attacks than exists in criminal law. But with checks and balances that don't exist in the prosecution of a war.

Institutional reform is also needed. As Richard Posner has pointed out, in his book Uncertain Shield and other writings, the post 9/11 reforms were badly botched.

A bureaucratically sluggish Department of Homeland Security was created. For intelligence agencies, reform added a new layer of bureaucracy at the top and confused reporting relationships throughout.

Worst, domestic intelligence was left primarily with the FBI, rather than put in a separate agency devoted exclusively to that function. We need a first-rate crime-solving capability in the federal government. And we need a first-rate domestic intelligence capability to protect the country against terrorist attack.

As Posner observes, it defies everything we know about both the tasks involved and organizational theory to believe that the same federal agency can be both. Moreover, a separate organization would help ensure that the additional authority Wittes advocates to protect the country against terrorism doesn't leak into other areas.

The best time to forge this new consensus was after 9/11. Not doing so is the Bush administration's greatest failure. Instead, the Bush administration asserted unchecked authority that contravened the nation's traditions and laws.

The next president is likely to have a honeymoon of some sort, in which there will be some deference given to his policies. This is shaping up as a domestic policy election, so the temptation will be to use this political capital for the issues that win the election. And that's understandable.

However, there might also be an opportunity for the new president to attempt to forge a new consensus on protecting the country against terrorism.

Not doing so wouldn't be unpatriotic. But doing so would serve, and might immeasurably better protect, the country.

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