Harold Hongju Koh

Sin

ce September 11, our government has responded with considerable discretion abroad and troubling indiscretion at home. The targeting and effectiveness of the Administration's military and diplomatic strategy stand in striking contrast to the overbreadth of its dragnet approach to domestic law enforcement. That dragnet now sweeps in detentions and interviews of thousands of Middle Eastern origin, monitoring of privileged conversations between lawyers and clients, a "military order" authorizing secret trials of noncitizens on American soil, and the ironically named "USA PATRIOT Act," which sanctions novel invasions of privacy in the name of counterterrorism.

INTERACTIVE GRAPHICS Map: Hunting Osama Map: Nukes Pipeline Interactive: Taliban P.O.W. Revolt More Graphics Tora Bora Nukes Pipeline Taliban Revolt Last Bastions Women & Islam No Refuge Taliban on the Run Afghan Caves Mood of the Nation Mazar-I-Sharif Terrorist Timeline Al-Qaeda Suspects Flu/Anthrax Sharing Secrets Al-Qaeda's World Ground War 11.4.01 Bush Team Grades Bioterror Threats War in Winter Workplace Safety Afghan Targets Anthrax Pathogen A Ground War An Uneasy Ally Targets Hit Search & Destroy Firepower & Food Frozen Assets Safety Guide Mideast Leaders Agents of Death Afghanistan Military Buildup Terrorist Cells Our Weapons Deadly Paths Twin Terrors   CNN.com Latest news: War Against Terror RECENT COVER STORY Closing In Dec. 24, 2001 Past Issues Taliban Last Days Dec. 17, 2001 ----------------- Lifting the Veil Dec. 3, 2001 ----------------- Hunt for bin Laden Nov. 26, 2001 ----------------- Thanksgiving 2001 Nov. 19, 2001 ----------------- Inside Al-Qaeda Nov. 12, 2001 ----------------- Defender In Chief Nov. 5, 2001 ----------------- Going In Oct. 29, 2001 ----------------- The Fear   Factor Oct. 22, 2001 ----------------- Facing   the Fury Oct. 15, 2001 ----------------- How Real   Is the Threat? Oct. 8, 2001 ----------------- Life on the   Home Front Oct. 1, 2001 ----------------- One Nation,   Indivisible Sept. 24, 2001 ----------------- Day of Infamy Sept. 14, 2001   PHOTO ESSAYS Kabul Unveiled Taliban on the Run More Photos >>> MORE STORIES Where's OBL: Letter from Tora Bora Anthrax: Where the Investigation Stands TIME/CNN POLL: Americans Standing By Bush's War More Stories >>>

Taken alone, each innovation rejects past practices, but without meaningful consultation with Congress or proof that those practices actually helped cause the September 11 disaster. Taken together, these initiatives reject three principles by which the United States has balanced national security and civil liberties since World War II.

First, we have struggled to separate domestic law enforcement from foreign intelligence, to keep our government from spying on us and to guarantee the constitutional rights of the accused. Second, we have granted lawfully admitted aliens civil rights comparable to citizens' (excepting, of course, the right to vote), rejecting the notion that foreign-born Americans or immigrants have only second-class rights. Third, we have acknowledged the executive branch's lead on national security matters, while insisting that its actions be subject to congressional oversight and judicial review. In a constitutional democracy, we reason, our President is not our king. When he takes drastic action that affects all of our lives, as he must in crises, our system of checks and balances requires him to consult and persuade elected and appointed officials who do not work for him.

These three features of our postwar legal landscape have helped make the United States the world's leading democracy. Too many other countries have shadowy "Ministries of the Interior," which spy upon and detain citizens in the name of homeland security. Almost alone among nations, we treat diversity as a national asset, inviting the foreign born to participate in our community without treating them as a political underclass. Unlike many states, we reject the secret rule of individuals, instead recognizing that officials of all three branches should conduct their acts openly, and under the rule of law. That is why, for example, our State Department objects vigorously when foreign states try American citizens in military courts, as Fujimori's Peru did in trying Lori Berenson for terrorism-related crimes.

Of course, we now live in different and scary times. Everyone wants vigorous law enforcement and effective security measures. But new crises demand steady solutions. Forsaking our values undermines our moral leadership abroad just when we need it most. Military commissions are not courts-martial, in which the military justice codes apply and defendant's rights are rigorously protected. Instead, secret trials create the impression of kangaroo courts, hiding the very facts and principles we now need to announce to the world. Our State Department daily challenges trials in military courts as human rights violations in Burma, Colombia, Egypt, and Turkey. Why should we be surprised when our European allies refuse to extradite captured terrorist suspects to military justice here? When the Chinese or Russians try Uighur or Chechen Muslims as terrorists in military courts, our diplomats protest vigorously and the world condemns those tribunals as anti-Muslim. How can we object if they treat our secret military tribunals the same way?

More fundamentally, these panicky actions threaten our national confidence when it is already shaken by horrific attacks and daily scares. Now is the time to reaffirm, not abandon, the legal institutions and principles that have served us for so long. We need not conduct overbroad detentions and withhold names, at a time when the public unanimously supports aggressive law enforcement, and judges and magistrates would grant any reasonable warrant. We should not target foreign-born citizens and lawful residents for discriminatory investigations and detentions at a time that we most need national unity and foreign support. As precedent for military trials, the Administration cites the 1942 execution of Nazi saboteurs, an embarrassing truncation of due process rendered by a Supreme Court that two years later disastrously condoned the forced internment of Japanese-Americans. But why try suspects in secret military courts unauthorized by Congress when our federal courts have fairly and openly tried and convicted Al Qaeda members for bombing the World Trade Center and the U.S. embassies in Tanzania and Kenya?

Under intense public pressure, the Attorney General and his lawyers seem finally to be moderating their position: threatening less and revealing more. They would be wise to continue. Every morning, America's schoolchildren pledge allegiance to "liberty and justice for all," not just for some. The terrorists wanted to subvert our system and take our freedoms, but we should not give them our help.

Harold Hongju Koh teaches at Yale Law School