Terrorism, Individualism, Civil Liberties, and Libertarianism: A Perspective

(Can we still talk about a “Bill of Rights II”?)

E-commerce links for hardcopy of book containing this chapter (DADT 2002).

In my 1997 book Do Ask, Do Tell, I presented an optimistic future in which the firewall between government and the personal lives and expressions of citizens could be strengthened, possibly by augmenting the Bill of Rights. Much of my argument was based on expanding notions of personal responsibility. The libertarian notion of spontaneous order is that a gradually better-educated public will take an interest in understanding how different kinds of people think.

I also traced historically how, since the end of World War II, American (and, to a large extent, western European) society has become culturally individualistic. Younger people growing up in average economic circumstances now perceive futures in which they may define their own personal expressive agendas without the limitations of class or family—and discrimination—commonplace in the past. Ironically—and this is critical—this form of expressive individualism (as opposed to “survivalism,” “frontierism” or a Luddite attitude) depends upon the interdependencies within a civilization that can make its security vulnerable. These interdependencies work only in an open society governed democratically under the rule of law, in a non-secular fashion, without dependence on a particular theology. And this form of law depends on a reasonable separation of church and state.

Early in my last DADT chapter I posed the question, “Is it safe?” I was concerned with threats to freedom, all right. I had proposed a paradigm where individualism is authenticated when every person can account for his own acts. But freedom for our culture as a whole had global, collective threats. Even then I saw epidemics, global warming, asteroids and maybe even extraterrestrials (don’t expect them to be as gentle as gifted teenager Clark Kent—Clive Barker’s Pie‘oh’pah is more typical) as conceivable threats.

More seriously, and closer to terra, I suspected military threats from Iraq or Iran, North Korea, China, and a collapse of Russia back towards communism or super-nationalism. I knew about Osama bin Laden but saw him as only one of many threats, a minor one at that, and I was wrong there. But I was concerned about how one rebuilds a set of principles and firewalls to contain individual freedoms in view of the inevitable threats¾ moral and external¾that would some day come. Freedom could be taken away by external agents despite our best response, or it could be taken away in misguided attempts to protect ourselves. Either scenario was viewed as possible.

Now, as of September 11, 2001, we are at war. And war ultimately threatens the ability of law and an open society to co-exist.

The nature of this new asymmetric war is particularly chilling. The empowerment of the individual, of the small company, business or organization has its flip side. To some extent this observation depends upon a certain paradox: as just noted, expressive individualism works in an interconnected society, dependent on an elaborate, open—and vulnerable¾physical and informational infrastructure.

In an interconnected society, individuals may incur tremendous personal losses because of the failures of others (an observation that has underpinned the Luddite movement in the past, to the point of violence, as in the domestic Unabomber case). Individuals and persons working in small autonomous groups may do tremendous, almost apocalyptic, harm as well as innovative good. We leave portals open to an enemy that seems like the social studies equivalent of the HIV virus, a mechanism that feeds upon the very facilities that make society free, open, and productive.

Expressive freedom becomes meaningless in a society that doesn’t have reasonable stability and security—although this statement is itself subject to elaboration later. Collective self-defense against any major enemy is a prerequisite for freedom. So society as a whole has to learn the social, political and especially legal equivalent of “safer sex.” by psychological analogy to the gay male community’s challenge starting twenty years ago (and continuing today). Having written what I have over five years (with the follow-up in Our Fundamental Rights, Bill of Rights 2, and my hppub.com website), I need to provide some discussion of how to balance civil liberties with very serious concerns about public safety. Of course, it is textbook social studies to say that terrorism, as a political strategy, generally aims at forcing the government of the attacked society to repress its own citizens and curtail civil liberties. In some sense citizens therefore “share the suffering” and shed their “tainted fruits” regardless of their own individual best intentions. Terrorism is very much predicated on the idea that the world is a zero-sum game. It denies the importance of individual self-direction and conceives only of group or collective agendas, whether in terms of religion, nationality, or some other cultural idea.

America¾and for that matter, western Europe¾now faces a greater threat on the homeland that it has at any time since the Cuban Missile Crisis of 1962. I witnessed that historical episode at the age of nineteen from the uncertain shelter of a mental health ward in the National Institutes of Health. This near-Armageddon, which I could not have survived, became the subject of the New Line Cinema film 13 Days in 2000. More civilians were killed in the Sept. 11 attacks on our own soil than soldiers who died in any Civil War battle, and it is likely that the War on Terrorism will claim more American civilians than military. Enormous disruptions to our way of life are possible. Freedom and economic prosperity could be on hold for a generation. In the most extreme circumstances these disruptions could conceivably bring down the United States government itself.

SEPTEMBER 11, 2001

Yup, this day has that “before and after” quality invented by Randy Shilts when writing about the sudden onset of the AIDS epidemic in And the Band Played On.

I had dreamed intensely all night long, and got up around 7 AM Minneapolis (Central, one hour behind New York) time. I worked a bit on my domain while watching ABC “Good Morning America” and enjoyed Cheerios. I turned off the idiot box around 7:40 A.M. intending to walk a mere 1000 feet of Skyway to work. I did a little more maintenance on my computer and around 7:50 left the apartment.

I logged on to my work computer and took care of a couple of small production support problems. Around 8:25 a young woman with whom I normally do not work appeared in my cubicle. She announced that the World Trade Center had been hit by a large plane, and then clarified that both towers had been struck as if they were pedestrians. I tried to log onto Yahoo and CNN and found the Internet clogged. I rode downstairs to the operations center where there was a Jumbotron logged on to CNN and heard that the Pentagon had just been attacked. Even the president had thought that the first plane strike had been accidental but videos of the strike slow very clearly even from Manhattan street level a wide-body commercial jet that could not have crashed unintentionally into a skyscraper.

We were planning a workplace team outing on the Minnesota River that day—which we held anyway—but I quickly walked back to my apartment in the Churchill and tuned in to ABC. I saw Peter Jennings with the burning, enormous Twin Towers in the background. In maybe three more minutes I saw the South Tower simply disappear in a plume of smoke and ash, even before Jennings knew that it had collapsed.

I could not peek through the smoke to see the tower structure itself collapse from this view, but later videos on ABC would show the South Tower almost toppling (since it was struck rather lower) with the top thirty floors diving like a kid’s block into smoke before the whole building pancaked to the ground. The North Tower would implode in a perfect, almost aesthetic symmetry. The antenna tower plunged straight down as the debris cloud unpeeled off tentacles before forming a huge dust devil or tornado after the collapse was completed. Later amateur videos would capture the sounds just like enormous dumpsters closing. On the outing we had no further access to information until late afternoon, and we wondered how the hijackings could even have been possible.

In late October I would visit both Arlington, where I grew up, and New York. I would see the Pentagon devastation on the day of the Marine Corps marathon and spend two hours walking clockwise around the devastation in lower Manhattan. I would pass 100 Church Street, where in 1978 I had worked on a Medicaid project for Bradford, one of the most successful episodes in my whole I.T. career. This building was cordoned off but undamaged. Soon I would pass sidewalk vendors in masks and view the surreal, almost Strangelove destruction, which became increasingly visible from the south side as I approached Battery Park. Afterwards, my clothes and skin would stink with the odor of adsorbed hydrogen sulfide from the jet fuel fumes that still raged in the “bathtub.”

I would also walk around the Capitol area and see the police line tapes around House and Senate office buildings from the anthrax scare. The Supreme Court building was being evacuated as I passed it.

My aunt would tell me that Flight 93 had almost crashed while turning back east, quite low to the ground and almost at treetop level, three miles from the little town of Kipton, Ohio where I had spent my summers as a boy. This fact had not yet come out in the media, which had left the impression that the turn, before the passengers overtook the hijackers and crashed the plane in the Allegheny strip-mines of southern Pennsylvania, had occurred southeast of Cleveland.

Radio talk show host Rush Limbaugh would proclaim, “I don’t care why these terrorists did it. They are nothing but thugs. I just want them brought to justice.”

But for our own good, we need to understand why they did it. Insurance executives, particularly, have told the press that they thought that American politicians were as shocked as they were that attacks on this scale and with this kind of conspiratorial character (out of the spy novel genre) were even conceivable “in real life” in the American homeland. As my father told me when I was being thrown out of William and Mary in 1961 for telling the Dean of Men that I was gay, “We have to worry about what everybody thinks,” even when we’re morally right. Indeed we do.

The stock markets were closed for the rest of that terrible week and there were predictions of economic chaos. In the ensuing months the markets would recover (then flounder again in corporate scandals) even as layoffs rose sharply. The attacks may have shocked the markets into conceptualizing specific ways to recover, such as through infrastructure investment in security, air traffic control and defense, but some of this behavior is the normal way a business cycle works after a period of over-capacity. Though still employed as a salaried professional I got a taste of how the perception of my own marketability may have fallen when on Sept. 13 I received a call from a headhunter looking for commercial telemarketers!

POLITICAL CAUSES

We’ll get into the psychology and religion shortly but it may be possible to explain much about the attacks in terms of more conventional politics. Actually, the world has seen guerilla, tribal, and terrorist warfare before—consider how World War I was launched.

The 9-11 attacks could be seen as an attempt by Osama bin Laden and his Nightbreed minions to force the United States to attack the Islamic world, and start a populist uprising among a huge population of poor, disadvantaged young Muslim men. The outrage would topple the royal family of Saudi Arabia so—guess who—gets to take over Saudi and the rest of the Islamic world. Perhaps Osama was throwing a temper tantrum because back in 1990 the Saudi family invited the United States to defend it from Iraq instead of its inviting bin Laden. By that view, this is mostly an intra-Islam conflict.

Ironically, falling oil prices in the late 80s could have made the Saudi royal family more vulnerable to fundamentalist and cleric Islamic dissidents. Even the Israel-Palestine conflict is a bit of a side show, as is bin Laden’s claims about Americans killing Iraqi children. Actually Saddam Hussein is not particularly friendly to religious fundamentalism, and as of this writing the administration has denied direct evidence that he participated in the attacks, although he probably participated in money laundering operations, clandestine contacts and fomenting unrest among younger Saudi men.

We find that Saudi Arabia is not such a dependable friend.[1] The kingdom paid off blood money to religious clerics of Wahhabism and funded extremist schools in Afghanistan and Pakistan while the western world remains dependent on Saudi oil. Ultimately a shutoff of their oil, maybe much more prolonged than in 1973-1974, becomes a threat. We leave the rest of the world the impression that we will prop up any authoritarian regime that placates our gas-guzzling addiction.

The United States helped put the Taliban into power in Afghanistan after Osama bin Laden helped turn back Russia, which left Afghanistan in 1989. The Clinton administration unwisely courted the Taliban because oil interests wanted to build an oil pipeline through Afghanistan. In its opposition to Communism, our own military advisors would locally ratify the more extremist Islamic idea that Allah pre-ordains one’s assigned station in life, and most unfairly.

It is ironic that the Northern Alliance, seen now as an ally and liberating force, has had close ties to Communism. In fact, it too has been guilty of atrocities. In 1996 when the Taliban took over, the Taliban were seen as a law-and-order force, albeit one with extremist Islamic principles that would soon run amok. A permanent government in Afghanistan must represent all the ethnicities (and definitely include women). It is interesting to read the analysis of Afghan immigrant Tamim Ansary, “the email heard around the world,” from Sept. 14, 2001.[2]

The recent tragedies in Israel and the West Bank (as of April 2002) show that some radicals will use any means¾including relentless suicide attacks¾to enforce a collective political goal. The peoples in the Middle East seem deeply rooted in collective tribal and religious identities, and yet the shame that they fight reaches deepest psychological levels.[3] CNN has reported about a Saudi Telethon where people from Saudi Arabia donate money, perhaps sacrificially, for Palestinians. At this point is was not clear whether any of this money was intended to compensate the families of martyrs. But the media has also reported that underground life insurance operations in the Middle East, particularly Iraq, have subsidized martyrdom.

On June 21, 2002, ABC’s “20-20” with John Miller and Barbara Walters presented a bizarre story that suggested that members of Israeli intelligence photographed the striking and falling of the towers from the parking lot of a New Jersey high rise apartment building. This news story raises the troubling question that Israel might have experienced some bizarre political motive to draw the United States further into Mideast conflict. In late 2001, in fact, Barbara Walters had presented an interview with actor (producer and screenwriter) Matt Damon who related that the incident occurred on his first morning living in his new home in New York City. His story emphasized that absolutely anyone, no matter how famous or successful, could have become a victim of the tragedy.

Terrorism is sometimes described as the ultimate weapon of the weak, at least those without collectively provided advanced militaries. A terrorist fights with his untrimmed fingernails rather than his fists.

RELIGIOUS ARGUMENTS

Osama bin Laden’s meandering religious arguments are really interesting. He considers Americans to be soiled, tainted softies, an easier enemy than the Russians. Along these lines, the Taliban has implemented views of gender roles and of the responsibilities of masculinity so draconian as to shock even most social conservatives—to the point of denying that any traditional idea of “family” can confer individuality regardless of station in life.

Perhaps our policy with Israel is motivated by the political influence of a powerful religious minority, and not by “lifestyle”. Perhaps we say this even as we looked the other way while Israel violated the property rights (as a libertarian would understand them) of individual Palestinians going back to the time of Balfour. In 1948 Israel enacted legal expropriation of property and collectivization when less than 10% of the land was under Jewish control (Ahmad, discussed shortly[4]), and Israel increased this practice in the 1960s with the West Bank settlements. But why is it religious heresy for American troops (infidels, including, heaven forbid, female soldiers) to be stationed in the same country as Mecca? And, well, to bring up the Crusades—does something that happened 800 years ago have to be avenged now?

This gets closer to the argument, made by Andrew Sullivan, by Rolling Stone, and other progressive writers and publications that we ought to take the issues surrounding religious ideology much more seriously. Christianity at its best supports individualism, even among socially conservative branches (such as Mormonism, Southern Baptists, John Ashcroft’s Assembly of God, and often enough Roman Catholicism). In these sects, individualism is mediated through the socializing influence of the traditional family and acceptance of divine prayer and direction. Judaism does this as well, but with much of Islam the importance of ritual (sometimes to the point of attending to matters like body hair) and a communal faith seems much more central to its teachings. Hence, consorting with unbelievers (infidels) or even allowing them to live in your part of the world could be seen as defiant to Allah.

Christianity and Judaism did inculcate the Greek Socratic tradition of individual truth-seeking that could augment a personalized faith. (The infidel argument from bin Laden reminds me of the military’s idea that the mere presence of open gays in the ranks destroys unit cohesion.) Hence, the so-called jihad (if this term is acceptable) must become inevitable. (I speak in the subjunctive. The word “jihad” has been interpreted to mean a spiritual discipline, as with the well-known case of a Harvard University commencement speaker, as well as a militant misapplication of religious doctrine to gain or expand political control by force.[5])

The December 2001 American Enterprise contains contributions by Karina Rollins, Hillel Fradkin, and David Wurser that present the view of Islam as a publicly celebrated, imperialist religion, that will jump on apparent moral weaknesses of competing infidel societies that it believes it should subjugate, where political control through warrior-like behavior is part of the faith process. On the other hand, Niall Ferguson, writing in the New York Time Magazine, Dec. 2, 2001 places religious terrorism and war in the context of “fragmentation of multicultural polity.” He conjoined this with globalization of terrorism, a second energy crisis, and “formalization of American imperialism.” I tend towards more to this second view. It strikes me as curious that radical Muslim mullahs will state publicly and in a rather bald-faced manner that they aim to establish the superiority of their religion for its own sake. It is also interesting how radical Islam denies democracy as anti-Allah, whereas Judeo-Christian tradition promotes that democracy confers freedom for the individual to follow his own path of faith,

In fact, when addressing the Libertarian Party of Minnesota in April 2002, Dr. Imad-ad-Dean Ahmad characterized the history of Islam as one that started with a surprisingly libertarian view of the law, based on supply-side economics. Progressive Islamlic culture became corrupted over centuries by first social benevolence and then statism, and then presented a rather paradoxical view of church, state, and democracy in Islamic philosophy.[6] Islam had built a rather tolerant and progressive society, after all, in Spain during the first millennium.

On the other hand, there are numerous passages in the Koran, that taken out of context, would seem as vehement as the commandments in Leviticus in Judeo-Christian tradition.[7] A more balanced view of Islam may be available from books like The Complete Idiot’s Guide to Understanding Islam,[8] which emphasizes the idea that hatred in the Islamic world is motivated in large part by Western aggression (such as taking land way from Palestinians) rather than religious ideology.

Indeed, libertarian commentators often emphasize that Islamic rage (their young men being “pissed”) is the direct result of our interventions overseas in their largely religious affairs, rather than any aggressive intentions concern our own Western lifestyles. But for a significant portion of Islam, there seems to be an outlook that Islam must either conquer the known civilized world and convert it to Allah, or else sequester itself as if it were on another planet, safely light years away even from electronic influences.

There is an interesting observation that the Buddha statutes, archeological treasures a millennium before Mohammed, became “miners’ canaries” when the Taliban destroyed them in 2000.

PSYCHOLOGICAL ARGUMENTS

Osama bin Laden’s videotaped speech from the Jalalabad Caves on Oct. 7 (the day Bush ordered the bombing to commence) was broadcast worldwide. Its hatred, fervor and threats were chilling. It was if an alien intelligence had barged into our networks to sentence us to the Tribulations, even if his argument sound silly when looked at “rationally.” Osama bin Laden has always struck me as a supernatural villain right out of Dean Koontz (not Tom Clancy or Clive Cussler).

And there is the suicide issue. We learn that in Palestine, Hamas approaches young men and bribes them to do suicide attacks by promising to pay off their families. Young men are supposed to be fungible, aren’t they? (Read George Gilder.[9]) In this county, we have ourselves in the past conscripted those who would become cannon fodder.

So we learn that suicide in war against infidels is supposed to guarantee the young warrior an eternity in heaven. Okay, I can believe that this would appeal to the masses of disadvantaged young Muslim men, especially those educated in the madrassahs. But how do you explain Mohammed Atta, who lived the jet-set life for several years in Germany, Spain and the U.S. before flying a plane into the North Tower?

He grew up in relative privilege, almost to the point of spoilage. Psychiatrists say that he definitely knew what he was doing and understood right and wrong. Compared to domestic terrorists like Timothy McVeigh, Atta showed little psychiatric instability. Yes, there are reports of his religious devotion, especially when a graduate student in architecture in Germany. But in the end his behavior sounds like an exercise in nihilism, in sociopathy, of quitting when you’re ahead, in suicide intended to make you famous and prevent your growing old in obscurity.

To me, he sounds not so different from Timothy McVeigh. It also seems to me that the kamikaze suicide attacks represent a culmination of increasingly bizarre cruelty and violence in a variety of hate-related crimes (the torture murder of Matthew Shepard, then Columbine) that occurred in the previous ten years in our own culture. Almost any act had again become thinkable.

The idea that the suicide hijackings could have been so cunningly pulled off by a platoon of nineteen men sounds shocking enough. Yet there are other reports of the behaviors of these men that sound shockingly arrogant, casual—the flight school (Atta almost got kicked out), the crop duster business attempts. ABC News reported that Atta apparently tried to get a loan for a crop duster business and that dispersal of chemical or biological weapons was probably his first choice. The interview with the government employee in Florida with whom Atta spoke was quite chilling. He first refused to speak to her because she was a woman. But he then spilled to her his cynical attitude towards American cities and landmarks.

Forensic psychologists described clinically the behavior of Osama bin Laden and his co-conspirators as that of people carrying out “overvalued ideas.” Similar observations have been made about the Unabomber, Jack Kervorkian, and Timothy McVeigh #1. An associated concept is that of the narcissistic personality, an exaggerated and unjustified sense of self-importance bordering on sociopathy. The perpetrator know what he is doing and that it is wrong and criminal but believes the expression of his idea and his own recalculation of “morality” against that of society¾particularly of the legal system¾and even of the harm done to others (“collateral damage”) justifies his behavior.

The perpetrator believes himself to be state-like. The imprint of the overvalued idea contributes to narcissism, so even a religious conviction—in a setting where religious faith is normally cherished—becomes overvalued if it leads to total disregard and insensitivity to others. The idea that one goes to heaven by killing other non-combatants for Allah is an example. Only law enforcement or military force can deter such individuals; normal ideas of therapy do not apply because the individual is not clinically ill in a normal clinical sense. Lesser variations of this behavior would involve doing something for a cause that the actor believes is likely to be viewed as wrong but during which the person does not directly harm others, steal, or commit actual violations of the law.

Moral teaching often involves balancing the hungers of the individual personality with meeting the real needs of others in manners not always chosen. Sexual morality seems to revolve around the idea that an individual gives up some independence (particularly as tied to experience through sexual excitement) in order to become tied to the requirements of family role and lineage or to meet one’s religious calling. But religious fanaticism itself can become just as self-serving, a way to avoid family commitments to others or wield power over others. For insecure males fanatical religious ideology, which provides a motivational ideal as well as a group-identity point, can become as pleasurable as sexual pursuits. Marriage and family can easily become a hiding place from personal responsibility.

Were these attacks really an attack by one country against another, or more of one culture against individuals who practice another? It’s both. Osama bin Laden had pretty much hijacked Afghanistan as a state for his own. His military force (based on Al Qaeda¾also spelled Al Qaida¾ “The Base”) is a loose confederation of semi-autonomous cells that combines individualistic autonomy with collective goals. His method of organizing seems bizarre in modern history but may have been practiced at various points in the past.

This hits at us in a more personal way, even if our concept of an enemy (like the word “Charlie” used to identify a guerilla enemy in Army Basic) is that of a collective entity. In his mind, the American government, the corporate state and citizens who enjoy its tainted fruits are one in the same. (We see that kind of thinking from the radical left.) But in the barest psychological terms, fundamentalist Islam seems to be defending a culture of exaggerated patriarchy where otherwise insecure men remain in control of their families and even harems.

Our idea of contagious freedom very much threatens that control. Even George Gilder would agree. Jonathan Rauch points out that leftist egalitarian nihilism and presumably rightist hierarchic religious extremism make temporary bedfellows in their common desire to attack the smugness of western individualism and even democratic capitalism[10].

Another way to look at this is to say that western openness and its tendency to broadcast its cultural pluralism will, in the minds of some people, threaten the very idea of using religious faith—especially when practiced as a public ritual—as the ultimate umpire of moral issues and as a brake against the individual competitiveness that implies that some people must accept “failure” on their own.[11] Western cultural openness, in this view, pokes fingers into the eyes of those of faith.

In the Spring of 2002, The Weekly Standard presented some more pointed interpretations. David Brooks would describe a social phenomenon of collective sweet lemons and sour grapes (I forget which term applies) as “bourgeoisophobia”¾a self-righteous smug hatred of seemingly superficial, sometimes narcissistic commercial success comparable to the hatred of sissies or geeks by bullies,[12] and Dinesh D’Souza would characterize a religious tradeoff between virtue (and submission to Allah¾religious authority) and freedom (with democracy, as well as acceptance of competition and failure) from the viewpoint of radical Islam.[13] Remember not all of Islam is ideologically so focused.

To me, the rage seen by some religious fundamentalists (and not just Muslims) seems to indicate a fear of psychological emasculation or loss of old-fashioned masculinity among men who depend upon control of their women and lineage for their sense of self worth. The “do ask, do tell” philosophy of gays’ coming out (as in the military) and fighting for rights to be open corresponds to America’s openness about its complicated culture (which is both materialistic and spiritual) and its tendency to boast (through movies, music and the Internet, even with sites like mine) in parts of the world unprepared to benefit easily from it.

On December 9, 2001, major news sources reported that a videotape exists in which Osama bin Laden is commenting on the September 11 attacks as they occur, and that bin Laden had not expected the Twin Towers of the World Trade Center to collapse to the ground, but only to the point of impact. On December 13, 2001 the tape was shown. It betrays a sadistic delight in the mayhem and in the fact that many of the Al Qaeda foot soldiers on the hijackings did not know that these were to be suicide missions.

It is not clear that the video was intended to be published and it would not be suitable for excerpted inclusion in a commercial documentary film (say, one built upon the experiences of various journalists). Again, it is very difficult for me to believe that this kind of psychopathology could be associated with any legitimate experience of religious faith, that it could be fundamental to Islam; it seems more to be fundamentally evil, as Laura Schlessinger of D. Scott Peck (“People of the Lie”) would construe it.

Many commentators would offer particularly succinct statements as to what makes the terrorists tick, either from a “mean streak” (a phrase my own father liked to use) or essentially political motives. Salman Rushdie writes, “The fundamentalist believes that we believe in nothing. In his worldview, he has his absolute certainties, while we are sunk in sybaritic indulgences.” Indeed, there are people, bound to creationism, who believe that teaching evolution undermines our ability to believe; some people perceive faith as necessarily and morally connected to narrow-mindedness and an unwillingness to receive more points of view.

Blaine and Robert Trump write, “Terrorist groups and rogue nations wish to defeat those different from themselves, those who hold different beliefs and are tolerant of others. Terrorists believe that the end justifies the means – any means.” Indeed, terrorists deny any possibility of peaceful coexistence.

Bill Moyers writes, “But their real goal is to get inside our heads, our psyche, and to deprive us – the survivors—of peace of mind, of trust, of faith; they aim to prevent us from believing again in a world of mercy, justice, and love, or working to bring that better world to pass.” Shashi Tharoor writes, “On September 11, 2001, the 21^st Century was born… The terrorists failed to see their victims that way; they saw only objects, dispensable pawns in their drive for destruction.”[14]

Yet Noam Chomsky, in a little booklet “9/11”[15] would offer a quite leftist interpretation half blaming global capitalism as well as previous American aggression, which he sees as having been reversed with shocking effect Mainland American had not been attacked by a foreign power since the War of 1812.

Our own president characterized the psychopathology by saying, “They hate those who are not like them.” It’s interesting to hear our own conservative right speak out against forced conformism.

ASSESSING THE THREATS

Please understand that what follows is a hypothetical, conjectural discussion. It is not a prediction. I do not at this time have secret or specific knowledge of threats. But I am worried. There is much that should be done to further defend again homeland threats (as was outlined in detail in a fall 2001 Newsweek). But it is also essential to eliminate all major operating cells overseas and evict from power all regimes that support them. There is really no choice about this. The administration is right about this.

Captured Al Qadea training manuals have underscored the determination of the enemy to enforce its views with asymmetric warfare and with an incredible amount of personal discipline required of members, including absolute secrecy and willingness to die as a religious martyr. One interesting point for an author and self-publisher like me is that the manuals are largely hand-written and were not efficiently printed, even though the organization obviously had the means to publish the manuals with economic efficiency. Lessons in the training camps often contained much oral memorization, and the lack of duplication was part of the secrecy plan.

On June 3, 2000, the Arab newspaper Al-Hayat quoted Sulaiman Abu Gaith as saying that more massive attacks on Americans and Jews were coming soon, and that they would exceed September 11. But the website (alneda.com) did not work. ABC News (using Associated Press reports) and “Good Morning America” made this a leading story that morning. Abu Gaith is a former Kuwaiti citizen who became associated with Al Qaeda.

Explosives

It is the evil determination of these terrorists and the vehemence of their compulsive destructiveness, when viewed psychologically, that forces us to assess the likelihood of future large-scale attacks and what would happen to our society if they were to occur.

To put things bluntly, the most grave threat is the nuclear one. This threat must be put into perspective. According to credible reports from Russian security advisors in the mid 1990s, over eighty Russian “suitcase nukes” (small nuclear weapons with heavy hydrogen detonation devices) are unaccounted for. Twenty-four more could be stolen from a volatile Pakistan. A suitcase nuke would vaporize an area the size of a baseball field and severely damage several square miles as well as permanently contaminate a much larger area downwind.

According to one report from the Center for Defense Information, over eighty of these weapons could be unaccounted for from stocks in Russia (they may be of varying size). Through the black market they could certainly fall into the wrong hands and someday be smuggled into the United States.[16] But it is likely that none of these devices could be detonated, as the tritium cores would have aged (although some military intelligence people tell me privately that terrorists could design crude replacements for these cores).[17]

A more likely plausible scenario would be the launching of “dirty bombs,” conventional truck bombs laced with radioactive materials like uranium compounds, plutonium, or, perhaps more easily, materials related to medical use like cesium. On Dec. 3, 2001, the government admitted that Al Qaeda may be closer to developing dirty bombs than had been thought, and that they could have them in the United States, Saudi Arabia, or Europe.

Some of these, even with small detonations, could contaminate an area, enough to prevent rescue operations and cleanup. An area of some square miles (for example, around the White House or the Capitol) would be unusable commercially or residentially for decades or even centuries. Exposed people would be condemned to premature deaths from leukemias, lymphomas and lung cancers.[18] Dirty bombs are colloquially called “weapons of mass disruption,” and many commentators claim that the actual health risks will be much less than what the media speculates. But the economic and ultimate long-term personal impact is so great that they should be regarded as weapons of mass destruction.[19] Terrorists could conceivably start a series of explosions, perhaps one per day or week, until political demands on the United States (like withdrawal from Saudi Arabia) were met. Supermarket tabloids (ironically the first targets of the anthrax attacks in October) love to warn that terrorists will attack and attack again whatever we do. (And, as films like The Sum of All Fears and Bad Company point out, other groups outside the Muslim world, such as neo-Nazis or various ethnic nationalists, might be capable of such nefarious intentions.)

However, it seems most unlikely given current evidence that many terrorists could have access to such weapons.[20] They would be extremely difficult for individuals or small cells to manipulate covertly without detection by law enforcement or without killing themselves. Most of the terrorists are of the “foot soldier” variety. Even so, to play devil’s advocate, journalist Peter Bergen warned on MSNBC on November 30, 2001 that cells could be poised to deliver dirty weapons in a major event at the time that Osama bin Laden is captured or killed, a possibility that could lead the government to keep his death a secret and may help explain the government’s aggressive use of “voluntary” roundup and interrogation.

A major piece in Time (3/11/2002)[21] relates an apparently unreliable report of a major Al Qaeda plot to smuggle a 10-kiloton nuclear device into New York City and suggests that future plots could be impossible to stop if terrorists are really determined. To their credit, the Customs Service and other law enforcement agencies are rapidly improving technology to detect routinely all kinds of dangerous cargo. The Time article also says that a coastal city could be destroyed by a liquefied natural gas explosion just off shore and questions whether current airline security technology could detect all hidden explosives.

On April 10, 2002, former Prime (Israel) Minister Benjamin Netanyahu warned the U.S. Senate that, just as the case with repeated Palestinian one-person suicide bombing attacks in Israel, suicide street-level bombings in public spaces, malls, theaters, or on subways, trains or busses could occur within the United States. He speculated that they could be coupled with weapons of mass destruction. Possibly random sniper attacks in the autumn of 2002 could be related to terrorist cells.

On April 22, 2002, a top Al Qaeda in military custody named Abu Zubaydah (the reporters did not say whether this was at Guantanomo, Cuba) taunted investigators with claims that the terrorist group is indeed very close to being able to build a dirty bomb and smuggle it into the United States. However, he may have been bragging to incite panic or to get more lenient treatment.[22] In June 2003 the government reported the military detention of American citizen Abdullah Al Muhajir (born Jose Padilla) who apparently was plotting to build a small dirty bomb and explode it in Washington, D.C. (this is discussed later). Reader’s Digest published a fictitious but convincing scenario of how a dirty plutonium bomb could be planted in a large city by a terrorist (after smuggling materials from Russia) and how law enforcement would respond.[23]

Even purely conventional weapons could create havoc if used in subways or commuter trains. Even now security metal inspections are done for the Chunnel train between London and Paris/Brussels, and Americans face the difficult task of deciding whether we need to beef up detection on trains in our country. The worst thing about all of these explosives threats is that they can be launched covertly on the ground. They do not require planes or large platoon-sized teams.

A week before the Sept 11 attacks, Popular Science came out with an article claiming that inexpensive E-bombs (electromagnetic pulse) and flux compression generator bombs could be built by terrorists very cheaply. The claim was made that the whole country could be set back two hundred years by one blast. I sent an email about this to ABC Nightline, and a couple days later ABC posted a more temperate write-up on the issue. Ground “FCG” bombs (depicted at Las Vegas in the 2001 film Oceans 11) could not damage large areas, and data centers and communications centers could protect themselves with Faraday cages.

A more serious threat could be a high-altitude FCG explosion from a plane (or perhaps a small nuclear explosion). This observation means that it is imperative that airlines (or the federal government) begin screening all checked luggage as soon as possible (in advance of the November 19, 2002 deadline), even with decompression tests. Airlines will face other sudden challenges, such as the need to examine shoes (in light of an incident over the Atlantic in December) and the opportunity to use heat-sensing devices or pupilometrics as lie detection when asking security questions.

The difficulty of designing convincing defenses to all of these threats (along the lines or libertarianism) would, in my mind, I feel, justified the Bush administration’s idea that overseas terrorist cells must be eliminated, along with the foreign regimes (like the Taliban and arguably Iraq) that support them. The administration’s claim that terrorism is “non deterable” rings true. Of grave importance is tracking down nuclear (and, as below, biological and chemical) weapons anywhere in the world (as outlined in a recent Economist issue). And they will give considerable justification to domestic surveillance measures intended to detect and remove the cells.

We simply must not allow such attacks to happen. If they did, with major areas of the country uninhabitable or unusable, we really would loose our civil liberties as we know them (imagine the first day of national martial law). Libertarians have suggested that withdrawal from the Middle East should be done to remove the incentive terrorists have to make these threats.[24] But imagine an Osama bin Laden ruling Saudi Arabia (even assuming that we become independent of Arab oil) with access to nukes. Why would he not pursue his jihad, his compulsion now to convert the planet to Islam? Would such a regime be so irrational as to destroy the oil fields in some pretense of piety?

These possibilities are so horrifying that President George W. Bush now has enlarged his doctrine to stop not only those regimes that harbor terrorists or allow them to function but also those countries attempting to acquire weapons of mass destruction.[25] Along the lines of this argument, the debate over preemptively removing Saddam Hussein from power seems to be motivated more by the idea that Saddam, once he acquires nuclear weapons, will be able to attack and blackmail his neighbors than by any evidence of his direct involvement in 9-11, although it is likely that he was quite involved in money laundering and, as discussed below, some journalists believe that he could already be implicated in our anthrax attacks with his history of chemical attacks against his own people, the Kurds. He has financially supported suicide attacks in Israel and probably foments social unrest within Saudi Arabia.

The attacks would, in at least one case to date, inspire tragic copycat behavior, when teenager Charles Bishop flew a light plane into a bank building in Tampa, Florida.

Bio-Terrorism

So far the country has experienced five deaths from anthrax. The pattern of anthrax by mail had not been predicted, but it might give clues to the terrorist motives.

In 1999, in fact, ABC’s “Nightline” had rehearsed a scenario where terrorists release anthrax in a city subway system, and, given the unpreparedness of the public health system, 50000 deaths and total ruination of the city happen within a week. ABC would repeat an abbreviated version of this scenario on Friday, Oct. 5. I would get into a rather bizarre discussion of this right afterwards at a local gay bar in Minneapolis.

On Oct 10, authorities (led by U.N. inspector Richard Spertzel) reported that the Daschale letter contained professionally milled anthrax dust, more dangerous than the anthrax recovered from a letter received by Tom Brokaw a week before. It sounded like a terrorist playing games with us and planning the big one. So I angrily emailed ABC news and asked Koppel about the Oct. 5 broadcast. The next night Koppel interviewed HHS secretary Tommy Thompson and, referring to angry viewer concerns (like mine) over his earlier broadcast, reviewed the possibility of a mega-threat. Thompson tried to reassure the public that the public health service was now ready.

The evidence so far is that the incubation period for anthrax is much longer than had been expected, and that even inhalation anthrax (milder forms are gastrointestinal and cutaneous) is much more treatable than had been expected. Of course, we are not absolutely sure of the long-term prognosis for exposed people after they finish antibiotics. It also appears that elderly people are much more susceptible to smaller inhalations of spores. In time, the same observation may be found to apply to persons with reduced immune systems, such as those who are HIV-positive. This, along with mail cross-contamination, may explain some of the bizarre outlier cases encountered so far.

Authorities differ on whether finely milled anthrax potions could be made by domestic Unabomber-style terrorists. Preparation is supposed to be technically difficult and achievable only by governments. Because of reports of a meeting by Mohammed Atta with an Iraqi intelligence agent in 1999, there is considerable suspicion that the anthrax preparations could have been smuggled from Iraq. If so, this raises the grave possibility that Saddam Hussein is trying to wage covert asymmetric war with biological weapons. This would necessitate his removal from power after all.

Former congressman “B-1” Bob Dornan (no friend of my community) warned that Hussein would eventually try to mount huge casualties on the United States if allowed to stay in power. There are detractors from this view, however, such as former U.N. weapons inspector Scott Ritter who made the film In Shifting Sands (2001). The very recent stories about Mohammed Atta’s interest in obtaining funds for crop dusters reinforce the idea that anthrax or other biological or chemical weapons were available to him from overseas, especially Iraq.

But The New York Times, on Nov. 21, 2001, reported about a book by anti-government activist Timothy W. Tobiason on how to make anthrax and other biological and chemical weapons. Although its directions are reportedly inaccurate and crude, the book suggests that it may be conceivable that a homegrown terrorist (an individual sociopath like the Unabomber) could achieve such a production. The press has reported a USDA facility at the University of Iowa where a deadly preparation has existed since the 1950s (as it has at other universities) and this facility is easily viewed to the west of I-35, 30 miles north of Des Moines. Just before Christmas, the FBI reported that the anthrax could have come from a top-secret site in Nevada or in Ohio, and that a particular domestic scientist was under investigation.[26]

If a terrorist had expected to cause mass casualties with anthrax, it seems that he has run out of time. Even a subway attack would likely be observed by police, resulting in shutdown (maybe an immediate arrest) and there would be much more time for preventative treatment than had been expected. Still, it would be prudent for American metro systems to start putting in hardened plastic suicide panels like those in London and Paris to prevent materials from being thrown onto tracks in front of trains.

While addressing a convention of the Libertarian Party of Minnesota in April 2002, state representative Richard Mulder, M.D. (Republican, also a family physician) suggested that a substantial number of domestic research professionals probably have access to anthrax and the technical capability to mill it into a lethal weaponized form. This claim contradicts major media reports, and wind would quickly disperse almost any conceivable outdoor release of an agent.

Another medical professional here told me, however, that manufacture was extremely difficult indeed and that most likely the perpetrators had simply run out of their supply and could not replace it. In April 2002 David Tell provided a detailed examination of the anthrax investigation to date, and again keeps alive the strong possibility that the anthrax really did come from Iraq or Russia.[27]

I had a conversation in, of all places, the Saloon (a Minneapolis gay night club) with Minneapolis mayor Sharon Sayles Belton. She indicated that the biggest fears from public health officials now were smallpox and plague. One could add botulism toxin to this list, since this substance is by weight one of the deadliest known. But in two months the public health system has made considerable progress in rapidly building up vaccine re-stocks to use in the event of even one smallpox case. Even now, unless there were a large number of index cases in a short time, it should be possible to isolate the victims and vaccinate large numbers of contacts.

Laurie Garrett provided a sobering discussion of bio-terrorism in the December 2001 issue of Vanity Fair. Other possible agents include botulism, and the Marburg and Ebola viruses. In 1978 Stephen King wrote a novel, The Stand, where a government experiment accidentally creates a “superflu” virus that kills 99% of the world’s population. As of this writing, there is no clear-cut way a sexually transmitted disease like HIV could be weaponized to produce rapid casualties, although in the 1980s some people actually suspected that HIV resulted from bio-engineering aimed at gay men and other groups.

There have been close to a hundred arrests for anthrax “hoaxes,” including those where persons have placed harmless powders in mail pieces, or even posted jokes on their own properties in connection with Halloween. The simple act of assembling a mail piece could conceivably pose a risk for accidentally creating the appearance of a hoax. This seems almost Kafla-esque, but in time of war sometimes extreme penalties are necessary, just as laws regarding jokes at airports must be enforced rigorously.

I do not have any specific knowledge of secret or unapproved treatments for biological, chemical or nuclear agents.

TARGETING

As already noted, many observers feel that the Al Qaeda attacks were directed more at the United States government or large visible corporations as retaliation for American foreign policy. Others feel that the attacks are directed against American lifestyle values that encourage a tainted self-expression and differentiation outside of religion (and these values are connected to democracy, which radical Islam may view as idolatrous).

At the same time an authoritarian, static religious hierarchy would prevent infidels from hiding behind secular institutions (even marriage) and having things that they do not deserve. Recent FBI reports suggest that terrorists could target ordinary Americans in lifestyle-related places: public spaces, theaters, subways, hotels, apartment residences, and shopping malls. One advantage for terrorists might be the relative lack of security in most such spaces and the possibility that a low-tech attack could cause enormous disruptions.

Already theaters in some metropolitan areas have banned backpacks and containers, and some public concerts (like ‘Nsync) were conducting entry security before 9-11. Apartment property managers now generally check passports and visas or ID’s from rental applicants carefully, and Hotels generally require passports from foreign tourists. If terrorists were able to undermine the confidence that ordinary Americans (and Europeans, Canadians, etc.) can carry out their own lives (and retain their own “secular” personal motivations), the economy and government would, in their view, become undermined. But this is already being tried in Israel big time.

In mid May, 2002, major press sources (including Time and Newsweek) ran detailed stories as to whether the Bush administration had not come clean about what it may have known before 9-11-2001, or whether it had failed to connect the dots. The CIA and FBI had a variety of leads, some of which pointed to more conventional terrorism (taking hostages for political negotiation) and others which frankly suggested suicide attacks and ramming planes into buildings. If you combine their intelligence with what various journalists had known since the late 1990s, there is little question that we should have foreseen this kind of attack. The government does not seem sanguine that future attacks can be prevented.

Particularly galling, apparently, is the way the FBI shelved (and perhaps manipulated) the memo from Minneapolis FBI agent Coleen Rowley in August 2001 regarding the handling of Zacarias Moussaoui.[28] Then Newsweek would report on the failure of the CIA to properly pass on information about future hijackers attending a terrorits’ meeting in Malaysia in early 2001.[29] On May 29, 2002 the FBI announced a large reorganization and administrative rules changes that would allow FBI agents to attend and monitor public spaces and public Internet sites (including mine). Of course, a writer who self-publishes should welcome anyone (including law enforcement) to read his publicly available work. In early June President Bush asked Congress to help him create a cabinet department for Homeland Security (parallel to Treasury, Justice and Defense).

The ensuring debate emphasized that the FBI may have had the raw data that it needed, but it lacked the analytical and information technology methods to relate tips.

CIVIL LIBERTIES, GOVERNMENT, AND NATIONAL SECURITY

There is no question that government is going to be much more involved in homeland national security than we had ever expected, and libertarians will not be comfortable with this. Already, federal laws have been passed that require most airport security scanners to become federal employees (without the usual civil service protections). Billions will be spent on various national defense and cyber security projects, and in sanitizing and protecting the mail. Government will become much more visible as an employer (both of military, civilian civil service and contractors), and background investigations and security clearances will become much more important as employment issues.

Training and compensating passenger security screening people as professionals is certainly a welcome and necessary step (to be paid for by passengers), but this measure raises a subtle issue about background checks. The requirements that screeners (and other airport employees with access to secure areas) be citizens and perhaps pass rather invasive questioning may become controversial.

There will be passenger concerns about invasion of privacy, particularly with pat-down body searches (where there are now, in early 2002, scattered complaints of abuses) as well as see-through technology. The government will allow passengers to be screened by employees with the same gender, but what about passengers (hopefully few) who might expect reassurance that a screener is not gay? This raises questions reminiscent of the military gay ban in suddenly important civilian security jobs (although these concerns have been visited before in areas like medicine and patient examinations).

Government is also involved in bailouts of industries disproportionately affected by terrorism, especially airlines and insurance industries. These settlements may have been designed to limit the airlines’ exposure to litigation, especially in that one can claim that the government was really the terrorists’ intended target and that government shared heavily in the failure to prevent the attacks with proper coordination of intelligence. Businesses have taken the (questionable) position that the attacks were primarily aimed at government and that therefore government should indemnify businesses and citizens against the tremendous losses.

Libertarians have debated whether the tort system would be adequate to handle the liability issues that stem from the attacks. Insurance coverage for the enormous damage done by terrorists probably will not be available without government backing. The attacks seem counter to the idea of urban culture and high-density living and working, so important to an open, pluralistic culture. Negligence tort law will have to evolve in areas like determining what kinds of risks businesses and governments can anticipate.

Immigration is an obvious target among libertarian “political quiz” positions. Government will enforce immigration law much more vigorously, and persons of Middle-Eastern origin will be unfairly singled out.

But the biggest problems regard government actions that jeopardize the privacy, due process, and free speech of ordinary citizens. The proper balance in these matters, especially in regard to the Constitution and Bill of Rights, must be examined closely. Furthermore, the sensible expectations of both businesses and of individuals in this changed world of asymmetric war must be elucidated.

In October 2001 Congress passed the USA Patriot Act with little debate. The act’s full name is The Uniting and Strengthening of America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001. In this act, law enforcement was given new powers and means for surveillance (with techniques like pen registers) of telephone calls, emails, and web surfing with greatly reduced judicial supervision. There is at least a slight risk (the “Daniel Ellsburg problem”) that even the physical residences and offices (including computer hard drives) of ordinary citizens could be searched (and damaged) with less court supervision then in the past, when terrorism—with a rather expansive definition to include most asymmetric violent threats and even computer crime—is suspected.

Electronic Frontier Foundation has produced a thorough and critical analysis of this law at its web site [30]; there are genuine constitutional questions about possible abrogations of the 4^th and 5^th Amendments in the legislation. More important may be the practical questions. Most ordinary Americans, even those like me who are politically or vocally active in a civil and responsible manner probably won’t be compromised right now. But the slope is indeed slippery.

In the beginning, those targeted are likely to be mostly those of Middle Eastern origin, mostly non-citizens, and they will sometimes be arrested for trivial law violations. Down the road you have a scenario where persons suspected of unproven terrorist associations are picked up and held for, say, marijuana possession.

It is a well-known law enforcement principle, effectively practiced in New York by Giuliani) that you prevent big crimes (violence and burglary) by cracking down on the little ones, (graffiti, vandalism, speeding, minor drug offenses, soliciting prostitution). Police statistics in many cities support this idea. But applied to terrorism the dangerous implications are clear. What if down the road gays become politically vulnerable, and spreading a fatal sexually transmitted disease is equated to terrorism?

There has even been a controversy over seeking checkout records from public libraries of weapons-related books, at least in Florida. State laws generally protect the confidentiality of records of what public library patrons check out. It does seem that most public libraries would not carry books that they knew gave very explicit directions on how to deploy or build weapons of mass destruction. Most responsible publishers or web operators will not supply such information (I do not). The American Booksellers Foundation for Free Expression (ABFFE) and more recently the American Library Association report that the government can even demand that libraries and booksellers provide the names of persons who have borrowed purchased books on certain kinds of weapons.[31]

The government maintains that, under the Patriot Act, it will only seek such records (or comparable internet records from ISP) concerning individuals for whom there is a limited probable cause of suspicion for involvement in terrorist conspiracy. Libraries, booksellers and ISP’s are required to keep such lists secret. Some of this disclosure attempt reminds one of the “know your customer” requirements in banking, but in the intellectual property world such requirements would have a chilling effect on speech.

Surveillance issues continue to mount. There are scattered reports of individuals being investigated by the FBI or Secret Service for possessing literature or posters extremely disparaging to the president.[32] In July 2002 the government announced that it wanted to expand its volunteer TIPS program to enlist various workers (even postal workers) who often enter homes and businesses or deliver items as possible informants, and this obviously raises genuine Fourth Amendment and probably cause issues; many individuals receive items like ads for weapons because of indirect marketing association.

It may be acceptable (although maybe only after a constitutional amendment) to reduce the standard for probable cause specifically for terrorist offenses alone. Terrorism would be defined as the intentional infliction of injury or loss of life upon non-combatants within the United States or allied countries as a political or social protest. By this principle, information gathered by pen-registers or by Carnivore (without normal juridical oversight) could not be used for drug prosecutions or even for something like child pornography¾only for terrorism.

Conservatives maintain that terrorist motives increase the justification for the death penalty (and sometimes military tribunals) in violent crimes. If so, hate crime sentencing could logically be looked at for increased penalties, even though conservatives and libertarians have resisted hate crimes laws on the theory that they make a criminal sentence dependent upon the victim rather than the act itself

Despite the claims of the 2002 movie Collateral Damage, there seemed at first to be little connection between the drug cartels and terrorists. Some news accounts credit the Taliban with cracking down on opium growing while they were in power, but others have accused them of taking advantage of the trade. However in time connections are likely to be shown. In November 2002 the attorney general announced several indictments for drugs for big-time weapons deals. But then you have a situation where drug laws, by creating an enormous profit incentive, set up a situation where terrorists could build alliances and cover. Drug laws could actually be seen as counter to the best interests of national security. Drug enforcement resources could be spent specifically on detecting weapons of mass destruction.

And let us again consider weapons and screening. Many of the new airport security measures will make little difference. The simple fact is that had pilots been allowed to arm themselves (even just with stun guns), had air sky marshals been on every flight, and had cockpit doors been reinforced and locked before September 11, these kinds of attacks simply could not have happened, although in time other kinds of attacks probably would have. (Some accounts report that pilots were drawn out of the cockpits to come to the aid of flight attendants.) Even among passengers the capacity for self-defense has gained new public respect. Todd Beamer and gay rugby player and body builder Mark Bingham, by attacking the hijackers, helped prevent the last plane from making it to Washington and crashing into the Capitol. Otherwise the Air Force would have had to shoot the plane down, leading to another horrible spectacle. Barron’s has called for the posting of two armed air marshals on every domestic flight (not just those using Reagan National in Washington) as an economic necessity.[33] In July 2002 Congress was still debating arming pilots. Not even Israel does this.

European airport security has long been much tighter than American security, to the point that I had to be body-searched in Amsterdam because of a metal plate in my hip. Yet there is little sense of intrusion or inconvenience at the major European airports where better security has become efficient. No, we probably don’t need the profiling and intensive interviews of Israeli airport security. But one wonders how we got to the point that box cutters and knives could be carried on board airplanes when discos and rock concerts screen attendees for all weapons.

Would a national-ID system or international system with a biometric base make travel and entry to sensitive areas safer? It might reduce identity theft but it might also lead us to confuse identification with trustworthiness.[34]

In November, President Bush would add controversy by ordering that the United States have the capacity to try foreign terrorists with military tribunals. These military judicial procedures offer reduced due process, less protection of habeas corpus, information for defendants, attorney-client privilege, unanimous verdicts, standard of proof beyond a reasonable doubt, lack of right of appeal, dependence upon the Uniform Code of Military Justice (UCMJ), and the like (and the protections of the accused may even be less than usual in the U.S. military, such as the right to know full details of the charges).

Originally, this measure could not apply to non-citizens. I think that it should not apply to citizens fighting in foreign armies whether as mercenaries or because of personal ideology. Citizens should always have the full protection of the procedures of the normal criminal justice system. However, as noted above, on June 10, 2002 the government announced that it was holding a US citizen Abdullah Al Muhajir (born Jose Padilla) in military custody as an unlawful combatant. Investigation showed that he had allegedly been communicating with Al Qaeda in Pakistan. This “coronary bypass” of normal civilian procedural due process is argued to be constitutional according to the powers given Congress (Article I, Section 8) and the Executive to conduct war, maintain the armed forces and militia. (It appears that U.S. citizens who are deemed as unlawful combatants might be held during an armed conflict without charge, although it appears questionable that they can actually be tried under the UCMJ by military tribunals unless they are actually in the uniformed armed forces of another country or have formally lost citizenship.) Some scholars point out that only Congress has this power, however, and that the President has overstepped his bounds in issuing this order on his own.

Of course, one has to accept the idea that the war against terrorism, conducted on the home front, is still war in the domestic legal sense. It is difficult to argue with the need to keep judicial proceedings related to supposed terrorist plots secret as part of further intelligence operations, or even to protect juries or trials from becoming terrorist targets. Again, you have to define foreign terrorism as war and foreign terrorists as combatants.

Even more disturbing is the detention of up to 5000 foreign nationals without charge. (Is this, “do what you have to do but don’t tell me?”) Remember the mistakes of the past, too, the internment of the Japanese Nisei during World War II.

Civil libertarians like Julian Epstein have already pointed out that existing laws such as FISA (Foreign Intelligence Surveillance Act) provide a mechanism to conduct constitutionally fair trials with proper protections for the accused as well as protection of intelligence. Epstein also points out (on CNN) that although Bush’s order originally (until Padilla) applied only to non-citizens, the Supreme Court has previously said that this kind of order is possible even for citizens who behave as foreign combatants (despite constitutional procedural due process [Amendments 5, 6, and 14] provisions), and a future president could possibly enact such a measure against citizens as a “drug exception to the Bill of Rights.” What then about public health?

In December 2001 the Bush administration narrowed the order to guarantee that unanimous verdicts are still required for the death penalty and that most other procedural safeguards, other than rules regarding hearsay evidence, would be followed in the tribunals. But it also has held at least one citizen (Padilla) as an unlawful combatant without charge.

The New York Times has presented analysis that divides the most serious constitutional problems into three areas: (1) Secrecy in the courts, especially with respect to immigration violations; (2) the detention of material witnesses for a long time before any criminal charges; (3) the indefinite length of some detentions (of at least two United States citizens) as unlawful combatants, with compromised legal representation, with a ruling by the Fourth Circuit affirming the commander in chief’s right to detain combatants who take up arms against the United States.[35]

The trial—which will be a conventional civilian trial with due respect for classified information procedures-¾of Zacarias Moussaoui may provide an object lesson in the standard of evidence needed to hold someone. Moussaoui, recall, was arrested in August 2001 in Minnesota on immigration violations after suspicious behavior at a flight school. As noted in the Rowley memo, the FBI, three weeks before the attacks, did not find legal probable cause to look at his computer hard drive.

Hindsight here must be painful. No amateur would have interest just in steering a jetliner unless he had intended to bring one down upon a target; that’s common sense. The government already knew a lot about Osama bin Laden from his attacks in Africa and Yemen, and the World Trade Center had been attacked in a clumsy way in February 1993 (ironically about the same time that the military gay ban debate erupted in the new Clinton administration) by someone with distant ties to bin Laden.

Furthermore, a number of journalists such as Sebastian Junger (US) and Peter Berger (Britain) had traveled to Afghanistan and other trouble spots to study terrorists and especially Osama bin Laden, other Al Qaeda leaders and the Taliban, including the war against it by the Northern Alliance. Junger and Bergen have often discussed the strategic importance of Massoud, assassinated Sept. 9, 2001, in helping bring down the Soviet Union. The work of these journalists suggests a developing privately held but well published concern that “organized terrorism” would take truly sinister turns. Ted Koppel had long aired broadcasts on bioterrorism. It was not asking too much for the government to consider all of this together and realize that the Moussaoui arrest in August amounted to a national emergency. How many of us private citizens with moderate levels of political involvement might have gotten bizarre emails, which we deleted as junk without reading them, that might have been disguised attempts by plotters to find out if their plans were leaking? I recall two such emails.

The charges against American John Walker Lindh have produced controversy. Many Americans resent the way that he seemed to thumb his nose at the freedom with which he was apparently raised. In one brief interview, Walker indicated he had been speaking mostly Arabic for months before his discovery and that most Muslims seek martyrdom (not objectively true). Some people wanted to charge him with treason, but this criminal conviction (usually reserved for defected agents like Aldrich Ames in 1994) requires, according to the Constitution, direct testimony by two witnesses of overt acts or confession in open court.

Attorney General Ashcroft filed serious charges calling for life without parole, and Ashcroft talks as if Walker made deliberate choices to fight with an enemy of America. However, it sounds unlikely that Walker could have grasped the consequences of what he was doing when he moved about in Yemen and Pakistan to follow what he saw as a demanding spiritual practice. His case will raise serious conceptual questions ranging from freedom to worship to the meaning of loyalty. (In July 2002 Lindh pleaded guilty