It's time to talk
Steven C. Welsh
CDI Research Analyst
Aug. 30, 2005
[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 limits 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.