Since 9-11 the American government has swiftly maneuvered to combat terrorists at home and abroad. Yale Law Professor Ruth Wedgwood assesses whether we've gone too far By RUTH WEDGWOOD

Posted Sunday, September 1, 2002; 3:38 p.m. EST
t was the Great Chicago Fire, the San Francisco earthquake, and Pearl Harbor rolled into one. On September 11, we gathered our families and held them close, grieving for the three thousand dead in the Trade Center and Pentagon attacks. We wrestled with the thought that al Qaeda might have weapons of mass destruction, escalating a deluded jihad to an unimaginable level of catastrophic harm.

In the year since, we have come to grips with some necessary changes. Congress voted to permit the pooling of investigative information between the FBI and CIA, breaking down old firewalls in order to monitor a global terror network that moves on- and off-shore in real time. We now understand that the multiple billions of dollars for intelligence and electronics have not been accompanied by the necessary language skills needed to translate intercepts from Arabic, Pashtun, and Farsi, without delay, so that we can thwart terrorist plans. And our European partners now more frankly acknowledge the dangers posed by Islamist militants, who have misused their hospitality as launch platforms. All democratic governments will need to reconcile self-restraint and practical capacity, to avoid becoming the weakest link in a chain of defense.

The allied air war in Afghanistan has gained valuable time for the West, disrupting al Qaeda's infrastructure. But we must also take our lesson from 1996. In that year, Bin Laden was tossed out of Sudan, after Khartoum got cold feet. Washington thought the change of venue would cripple his operations. Bin Laden alighted in Afghanistan, and six weeks later, blew up the Khobar Towers military barracks in Saudi Arabia, killing and wounding hundreds of American GI's. Jihadists and jet-travel terrorists are committed to a campaign rather than a country. They can scatter and regroup. And deterrence doesn't work against non-state actors who have nothing to lose.

Our methods of war-fighting must begin to look more like cloak and dagger intelligence work — worrying about recruitment patterns, safe houses, concealed identities, coincidental sightings, cryptic chatter on cell phones, and agents in place. They may pose sensitive questions under international law, including the law of armed conflict, as we wonder how to capture or control operatives found in foreign countries intimidated by al Qaeda. Nor will it be easy to run to ground any cell members who have come to the U.S.

A homeland war will continue to put pressure on our redolent sense of liberty. We worry about the terrorists and what they may do. But it is a valuable and ever-so-American habit to worry as well about protecting our liberties against unnecessary government intrusion. We are, after all, seeking to preserve a way of life, as well as our physical safety. This is so even while al Qaeda has been free to exploit the latitude of a liberal society, including free association and freedom of travel, limits on government scrutiny, and public indifference to religious faith and country of origin.

So far, the balance seems more or less on target. The Administration has not chosen the drastic means of prior wars. Despite some bluster and an occasional inability to explain itself, the Bush presidency's general philosophy has been to use traditional tools robustly, rather than seeking emergency legal powers. No one has proposed suspending habeas corpus or declaring martial law. No one has proposed suspending immigration, even though taxi drivers will tell you that regularizing status has become slow and hard. It may seem two-headed to seek a sense of normalcy amidst an ongoing alert, yet each of us is aware of living with a split-screen sensibility.

A few federal judges have surveyed the legal landscape with greater alarm, occasionally causing alarm in turn. The power to arrest material witnesses in grand jury investigations is recognized by common-law and by statute, in order to prevent a footloose witness from fleeing beyond the reach of the court. One skeptical federal judge in Manhattan has declared nonetheless that witnesses at the grand jury stage in al Qaeda investigations are not pertinent to "criminal proceedings." Common sense is likely to prevail on appeal; another district judge has already disagreed. And another federal judge in Washington, denouncing closed immigration hearings as "odious," has read the Kennedy-era Freedom of Information Act to require the Justice Department to publicly list the names of all aliens arrested in the wake of September 11 on immigration violations. She has supposed this poses no danger to the aliens or to government investigative methods because al Qaeda must already know their names. (How she knows what al Qaeda knows is less than clear.) The judge set a 15 day time limit to hear objections from aliens who have an acknowledged privacy interest in the matter of their names, yet many of them have returned to their home countries in the Middle East where federal court opinions do not widely circulate.

Other judges have approached the situation differently. Virginia federal judge Tim Ellis, presiding over the trial of John Walker Lindh, rejected the unsupported claim that Lindh should enjoy "combat immunity" for his military assistance to the Taliban. In the battlefield capture of Yasser Hamdi, a Saudi American transferred from Afghanistan to Guantanamo to a Norfolk Navy brig, the Fourth Circuit Court of Appeals has stayed an order to admit defense counsel to his military interrogation, permitting a closer look at the balance between the peacetime right to counsel and the established right of a military commander to question battlefield combatants. Perhaps the most delicate case so far concerns Jose Padilla, an American citizen who was canoodling with senior al Qaeda operative Abu Sabbayud, planning to carry out the explosion of a radiological "dirty bomb" on U.S. territory. Padilla has been detained as an enemy combatant, since the government faces the dilemma of having strong and corroborated intelligence about his plans, but no inside witness willing to testify.

The norms of proportionality, and necessity, as well as adequate bases for action, underlie both peacetime law and the law of armed conflict. But the workable sources of information in each situation will vary widely. And a peacetime balance assumes that criminals can be deterred. A terrorist network organizing jihad from abroad is a very different challenge.

Mary Lawton, a venerated Washington hand on issues of law enforcement and intelligence who advised a half dozen attorneys general over the years, believed that the life experience and vocation of most federal judges was so different from the rough and tumble world of war and intelligence that there were limits on what judges could be asked to understand.

The same is true for many of us. The challenge of the fight against al Qaeda is to work with sophistication and courage to get the right balance. We need to protect our society against grievous harm, while guarding our core values against erosion.

—Ruth Wedgwood is a professor of law at Yale and Johns Hopkins University, and a former federal prosecutor