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It's time to talk
Steven C. Welsh
CDI Research Analyst
Aug. 30, 2005
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[first appeared in the Forth Worth Star-Telegram, Aug. 30, 2005]
Global Beat Syndicate
WASHINGTON - The John G. Roberts Jr. nomination is a historic turning point,
not simply because it is the first to the Supreme Court during this
administration or the first in 11 years. It is the first high court nomination
since the terrorist attacks of Sept. 11, 2001.
The Senate should take care to make national security a top priority in the
confirmation process.
The world has changed, and boundaries have blurred. Terrorists occupy a murky
realm as both psychopathic criminals and private perpetrators of acts of war.
The domestic legal system and its affiliates are more intertwined with
national security than ever before, whether it is civilian courts seeking
oversight of military activities or the local cop on the beat forming one of the
first lines of defense in a global conflict.
The senators and Roberts are called to share their visions of how the legal
system can act in concert with all branches and levels of government to help
defend the nation, as part of a way of life unified by respect for rule of law.
Rule of law, after all, helps form the bedrock of America's strength and
prosperity, our identity as a democratic superpower, which -- with all our
capabilities and frailties -- has been called by history and global society to
serve as leader of the Free World.
If there must be innovative new tools for addressing new threats, how can we
best ground them in the old legal foundations upon which the nation itself has
been built?
Facing the need to do more than simply apply justice retroactively to past
events, but rather to pro-actively deter and prevent future attacks, how can we
arrest and prosecute terrorism suspects and their backers in a way that is
effective and fair, bolstering national security while also honoring the
Constitution?
And how can proactive security measures such as searches of even the most
innocuous baggage be made to dovetail with democracy and limited government?
When fighting terrorism's nonlethal but crucial ancillary activities, such as
funding for terrorists; the brainwashing of followers; and travel,
telecommunications and logistics, how can the legal system best enhance national
security while fostering the rule of law?
What are the lawful parameters of executive, legislative and judicial power
in the national security arena, including military operations and associated
activities?
What role does international law -- including treaties -- play in addressing
the rights of actual or alleged enemies?
For that matter, what role should the Constitution and the civilian judiciary
play when it comes to placing limits on military operations, including
interrogations?
If the Constitution is a source of power and funding for the government, to
what extent does it also "follow" the government and impose lim-its and
responsibilities on governmental actions wherever they might occur?
Our government, including the judiciary, needs to demonstrate to the entire
world, friend and foe, that we are united and ready to act -- and, above all,
that America is still America. Of national security it used to be said,
"Politics stops at the waters' edge." Care should be taken that partisan
wrangling not create a quagmire in the confirmation process or undermine the
spirit of statesmanship, professionalism and discipline that should characterize
both U.S. security policy and judicial leadership.
To be sure, other issues promise to raise their heads, such as the
Constitution's commerce clause, the recent court's assault on property rights
and whether abortion has a home in the Constitution, to name a few.
Nothing should prevent the world's most august deliberative body from paying
the highest priority to the very reason that legitimate sovereignty and law
exist in the first place: to create and maintain a peaceful, democratic,
law-abiding society that protects the innocent from violent attack.
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Steven C. Welsh is a research analyst and legal scholar at the World Security
Institute's Center for Defense Information, a think tank in Washington.
www.cdi.org.
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