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12.30.09

To Hell With Privacy

Americans who are obsessed with rights are making our country less secure. Richard Miniter on how they got in the way of preventing the attempted bombing of Flight 253.

The underpants bomber teaches us that there are two kinds of Americans: those who'd rather be right and those who'd rather be alive.

The passengers were decidedly in the second camp. People of all nationalities leaped over seats to pummel the burning would-be mass murderer. They didn't stop to ask whether he was a smoker with a nervous nic-fit or worry themselves with the cultural sensitivities of a man with a flaming derriere. They saw their duty and they did it. If they thought about it all, they figured they could sort out the bureaucratic niceties and put everything in the right boxes once the plane had safely landed in one of the murder capitals of the United States.

The devilish thing about terrorism is that it too often pits the sanctity of certain civil rights against the lives of the innocent many.

But those passengers are ordinary people whose opinions only matter during elections and in the heat of a crisis. Most of the time our security is in the warm little mitts of No. 2 pencil oval-fillers. They have the walnut-sized brains of a Tyrannosaurus rex who can't let go of the tiny good caught in their massive jaws and therefore can't seize upon the bigger, more important one. They are obsessed with rights—privacy rights, rights of the accused, right to a trial and so on. These rights are, undisputedly, good things. But exercising any of these rights means that individuals have to be, ahem, alive. The devilish thing about terrorism is that it too often pits the sanctity of certain civil rights against the lives of the innocent many. When this happens, the rights-obsessed tyrannosaurs either shut down completely like a computer in a 1960s Star Trek episode that can't abide a contradiction or, manfully assert—contra the Supreme Court—that yes, the Constitution is a suicide pact. It is better, they tell us, that we risk the lives of the public than we shrink the rights of the accused.

Venetia Thompson: My Classmate, the Plane Bomber

Gerald Posner: The Terrorists’ Secret Weapon

Michael Chertoff: Letting Out Guard Down
Let's trace the underpants bomber case, noting that at each step along the way the rights-obsessed got in the way of the life-saving instincts of ordinary people... until the very end.

A Yemen Embassy spokesman confirmed to me that Umar Farouk Abdulmutallab made two trips to the desert republic, where he went to study Arabic in a known al Qaeda sanctuary. This was reported to American intelligence. So why did a U.S. consular officer grant the young man a U.S. visa? Well, I was told, it wouldn't be fair to single someone out just for visiting suspicious places. Who knows, he could be a budding journalist? In other words, U.S. embassy officials treat entry into the United States on a less exclusive basis than a garden party—to do any differently wouldn't be right or fair.

What about that dodgy cleric who was tied to the 9/11 bomber, the Ft. Hood shooter and now the underpants bomber? Helpfully, he's fled to Yemen, where that nation's intelligence service can freely wiretap him. If he returned to the United States, getting a warrant for his cellphone and email accounts would be very difficult. It would violate his right to privacy and require that the FBI show probable cause that the cleric is committing a crime. Inspiring young men to kill scores of Americans is not a crime; it is free speech.

And let's consider those wiretaps a little more closely. When 9/11 mastermind Khalid Sheikh Mohammed was captured in 2003, there were two cellphones and a laptop with him. Those cellphones showed hundreds of calls to and from the United States in the nine months after the 9/11 attacks. Who was talking to KSM in the United States? Getting a warrant for those phone numbers proved difficult. After all, to get a FISA judge to grant a warrant, you at least need to know the name of the person you want to wiretap. But to know the name of the person using these phones (which are often pay phones, disposable cellphones, or phones in immigrant group houses) one must first listen in. A perfect catch-22.

Or consider student visas, which the 9/11 attackers and the underpants bomber proved adept at getting. The hundreds of thousands of foreign students who come to the United States every year to study are not tracked once they arrive. No one verifies that they are actually attending classes at the school listed on their visa applications. Why? Universities earn a lot of money from these students and rights activists fume that foreign students shouldn't be treated any differently from their American counterparts.

Finally, there are those who want to close Gitmo and give every inmate a proper civilian trial. Never mind that each and every one of them is legally entitled to be released on the rock-solid ground that they were denied their constitutional right to a speedy trial. Next, the accused have a right to confront the witnesses and evidence against them—forcing the government to either reveal what it knows about al Qaeda and the suspects or exclude the evidence and lose the case. In other words, the government either gives an intelligence windfall to its sworn enemy or release trained and experienced terrorists. This is how the rights-obsessed turn the Constitution into a suicide pact.

The rights-obsessed forget three big things. First, that the weight of any particular individual right is constantly shifting to maintain a rough balance with other, often conflicting, rights. For a long time, it was illegal in many states for a speaker to urge a large crowd to take violent action. Thus, the public right to safety trumped the individual's right to free speech. In a landmark 1969 case, the U.S. Supreme Court found that state laws unduly restricted the rights of union organizers and student demonstrators, and sharply limited the rights of states to prosecute people urging violent action. After all, who should go to jail for a clumsy metaphor or a hot tempered remark? Now that that precedent is being cited in defense of jihadists, the high court might get the chance to redress the balance in light of new circumstances. If the court does, it hardly means that the Bill of Rights has been thrown in the dumpster. It's simply how the American political process works.

Second, the rights crowd has no sense of proportion. Saving 300 lives is well worth a few punches thrown in anger or tapping the telephones of those who phone the No. 3 man in al Qaeda.

Third, they forget that any good thing taken too far becomes its opposite, as Polybius teaches us. So, an excessive focus on the process protections afforded in the U.S. Constitution can become, not a shield for the innocent, but a weapon for the guilty. And there is an element of moral vanity here, where the more the public is put at risk, the more the rights activist feels justified. He becomes more sure he is the lone voice of reason trapped in the room with 11 angry jurors.

This death-wish variety of moral preening runs throughout American history. Take two examples, one from the aftermath of World War I and the other from the eve of America's entry into World War II.

"Gentleman don't read each other's mail," President Hoover's Secretary of State Henry Stimson remarked, just as he closed the government's "black chamber" that decoded other government's secret messages in 1929. Very high-minded of him. As a result, the U.S. government was blind as Hitler came to power and the Japanese army brutally swept into China.

Secretary of State Cordell Hull's stunned response still reverberates through history. After several strategic delays, the Japanese ambassador met with Hull at 2:20 p.m., on December 7, 1941, to present him with the infamous "message of 14 parts," that amounted to a declaration of war. "I must say that in all my conversations with you [the Japanese ambassador] during the last nine months I have never uttered one word of untruth. This is borne out absolutely by the record. In all my 50 years of public service, I have never seen a document that was more crowded with infamous falsehoods and distortions—infamous falsehoods and distortions on a scale so huge that I never imagined until today that any government on this planet was capable of uttering them."

Bear in mind, as Hull is voicing his outrage at the Japanese ambassador, the roar of Japanese warplanes had been heard over Hawaii for more than an hour. On the ground, more than 2,000 lay dead or dying.

Yet pay attention to Hull's moral preening. I played fair and you did not. He lived in a world of gentleman's rules and could not imagine the minds of men who consciously chose to live outside of that gracious world. Indeed, he couldn't conceive that his Marquess of Queensbury rules might be seen as an easily exploited weakness.

For much of 1941, he hoped that sweet reason and difference-splitting would avert a showdown with Japan. But historians now know (and many Americans knew then) that the Japanese were dealing in bad faith. Training for the Pearl Harbor attacks began in the spring of 1941. Final approval for the surprise attack was given in October 1941. Vice Admiral Chuichi Nagumo's fleet steamed for Hawaii in November 1941. Japan's fleet was launched while its ambassador was negotiating with Secretary Hull in Washington, D.C. Intercepted and decoded messages between Tokyo and Japan's U.S. ambassador show that the diplomats were instructed to stall for time and that Japan considered the negotiations to be pointless. Negotiations were simply a way to distract the Americans while the Japanese fleet positioned itself for attack.

We never learn.

Richard Miniter has written two New York Times bestsellers on terrorism, Losing bin Laden and Shadow War, and is writing a biography of 9/11 mastermind Khalid Shaikh Mohammed. He is a former editorial-page writer and columnist for The Wall Street Journal Europe and editorial page editor of the Washington Times.