Those following this week's high-stakes
congressional debate on anti-terrorism legislation witnessed the
clash of two profoundly different value systems. Unlike most such
encounters, the outcome of this debate could determine whether we
live or die. As Senate Armed Services Chairman John Warner (R.-Va.)
said, "What we do … will impact how we conduct the war on
terror for as long as it lasts."
As Sen. John Kerry (D.-Mass.) acknowledged during his presidential campaign, our struggle against Osama bin Laden and his suicidal strain of Islamofascism is "occasionally military" in nature, but for the most part we were "primarily" conducting "an intelligence and law-enforcement operation." President Bush, of course, has embraced the opposite approach: "Dealing with al Qaeda is not simply a matter of law enforcement," but "requires defending the country against an enemy that declared war against the United States."
The recent debate has forced the two national parties to clarify their stand on this central question.
The overwhelming majority of congressional Democrats, it's now clear, favor the law-enforcement approach. They pepper their floor speeches with legal jargon ("hearsay," "search warrants," rules of evidence," and "habeas corpus") and their agenda consists of: extending the full panoply of constitutional due process protections to enemy combatants facing trial for war crimes, including granting them full access to sensitive intelligence information; limiting the ability of our military to collect intelligence through electronic surveillance of phone calls involving suspected terrorists or monitoring potentially significant financial transactions; and threatening the flow of actionable intelligence generated after the application of some very tough interrogation techniques used on some very evil terrorists.
Republicans, in contrast, have rallied behind Sen. John Cornyn's (R.-Tex.) proposition that "these are enemies of the United States captured on the battlefield" and "not individuals who have been arrested for committing crimes." Because they are not American citizens, he argues, they are not entitled to the constitutional protections extended to American citizens.
As a result, Republicans would allow the terrorist interrogation and electronic surveillance programs to go forward and make it easier for prosecutors to try terrorists for war crimes. They seek to bar detainees from, as House Judiciary Chairman James Sensenbrenner (R.-Wis.) explained, "subvert[ing] our judicial process or disrupt[ing] the war on terror with unnecessary or frivolous lawsuits." And they want to eliminate legal obstacles that could frustrate interrogations that yield crucial intelligence leads that, in the words of the Department of Justice, "are critical to preventing further terrorist attacks on the United States."
These two visions have been clashing, with the two parties so profoundly divided one suspects the ramifications will be felt on Election Day. The Military Commissions Act, which incorporates the tough-minded provisions insisted on by the president, allows the CIA's interrogation program to continue. It passed the House by the comfortable margin of 253 to 168. While Republicans embraced it overwhelmingly, 219 to 7, Democrats opposed it by a 5-to-1 margin -- 160 for and 34 opposed. The yawning gap between the two parties was perhaps best captured by the harsh words from normally gentlemanly House Speaker Dennis Hastert. The Democrats' approach, he said, would "coddle … the same terrorists who plan to harm innocent Americans."
In the Senate, Democrats placed themselves in an awkward position when they hitched a ride on the bus driven by three leading Republicans on the Armed Services Committee -- Senators Warner, John McCain (R.-Ariz.) and Lindsey Graham (R.-S.C.). Initially it was fun. As Minority Leader Harry Reid (D.-Nev.) admitted, his colleagues were content to sit "on the sidelines watching the [Republican] catfights" and repeatedly laud the national security credentials of the three renegade Republicans. But then the White House initiated an unexpected flurry of negotiations that lured Warner, McCain and Graham off their bus and united Republicans behind an acceptable compromise. With action imminent and no plan of their own, Democrats decided to grab the wheel and drive it off the same national security cliff that has bedeviled them in the last two elections.
The result was a momentous Sept. 27 vote on the Democratic substitute (the discarded Warner/McCain/Graham proposal) offered by the senior Democrat on the Armed Services Committee, Sen. Carl Levin (D.-Mich.). On a nearly party-line vote, 41 Democrats opened themselves to the charge that they would rather give legal rights to jihadists than wage war against them. Fifty-two Republicans joined together to defeat Levin's plan.
The campaign ads are easy to envision. Picture images of Osama Bin Laden and other menacing-looking terrorists accompanied by a narrator posing the question House Majority Leader John Boehner (R.-Ohio) asked on the House floor: "Will my Democrat friends … give the president the tools he needs to continue to stop terrorist attacks before they happen, or will they vote to force him to fight the terrorists with one arm tied behind his back?"
Mike Franc, who has held a number of positions on Capitol Hill, is vice president of Government Relations at The Heritage Foundation.
First appeared in Human Events Online