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The Legal Left's War on National Security By: Jacob Laksin
FrontPageMagazine.com | Monday, January 23, 2006

No small leap of faith is required to imagine the Center for Constitutional Rights (CCR) and the American Civil Liberties Union (ACLU), those two bastions of the “legal Left,” as paladins of the Constitution and guardians of American legal norms. CCR, after all, has consistently opposed the enforcement of U.S. immigration statutes, even vying against restrictions on immigrants who “endorse or espouse terrorist activity.” The ACLU meanwhile has waged a concerted attack against all measures aimed at holding the enemies of American liberties—from radical Islamic mosques to terrorist suspects—to account.

But that has not kept both groups from posturing as the last line of defense against an oppressive and invasive American government. In their latest gambit, CCR and the ACLU this Tuesday filed twin lawsuits, one in New York and one in Detroit, seeking to terminate the Bush administration’s warrantless electronic surveillance of American citizens with suspected terrorism ties. In keeping with the groups’ longtime strategy, the lawsuits charge that the surveillance amounts to an “illegal and unconstitutional program.”


In effect—and presumably by design—the lawsuits constitute a full-bore assault on the country’s security apparatus. The New York suit, filed by the CCR, names President Bush; the Detroit suit, filed by the ACLU, the Council on American-Islamic Relations, and Greenpeace, as well as several individuals, including writer Christopher Hitchens, targets National Security Agency director Army Lt. Gen. Keith Alexander and the heads of all other major security agencies. To claims of unconstitutionality CCR attorney Rachel Meeropol, the granddaughter of executed spies Julius and Ethel Rosenberg, has added the further argument that the surveillance program impedes the center’s ability to represent its most prominent clients: the enemy combatants detained at Guantanamo Bay. The thrust of their arguments is jarringly clear: America lacks the fundamental right to defend itself.


The law is not on the plaintiffs’ side. As John Schmidt, a former associate attorney general in the Clinton administration, has convincingly argued, the principal source of authority for the two suits—the 1978 Foreign Intelligence Surveillance Act requiring court authorization of surveillance of individuals—fails to support their contentions. Schmidt has noted that the supervisory court established by that law, the Foreign Intelligence Surveillance Court of Review, has most recently upheld the president’s authority to conduct warrantless searches of suspected members of foreign terrorist groups. Notwithstanding the suits’ claims to the contrary, any objective interpretation of legal precedent argues that the NSA surveillance program falls well within the president’s constitutional prerogatives.


On similarly weak ground is the lawsuits’ claim that the president lacked “congressional authorization” for the program. In fact, congressional legislation passed in the wake of September 11 had given the president authority to “use all necessary and appropriate force” to prevent further terrorist attacks. Conducting telephone and e-mail surveillance of domestic terrorism suspects would seem to be a judicious use of that authority.


So the question naturally arises: Why do the authors of the suits claim differently? Any review of the political activities of the CCR, ACLU, and CAIR yields a telling answer: All the groups are united in seeing the U.S. government, and the Bush administration in particular, as a greater threat to American civil liberties than the country’s declared terrorist enemies.


Consider the CCR. Since the attacks of 9-11, the center has focused its energies on obstructing all government efforts to maintain security. CCR has campaigned against the surveillance and the detention of terrorist suspects, seizing on everything from wiretaps to voluntary interviews of Middle Eastern men as evidence of authoritarian overreach. It sufficiently demonstrates the center’s political sympathies to record that it has hailed Lynne Stewart, the radical lawyer convicted of facilitating a correspondence between jailed terrorist Omar Abdel Rahman and his al-Qaeda affiliated adherents, as a practitioner of “zealous representation.” Perhaps unsurprisingly, the center shares not a few of the terrorists’ convictions. In 2002, CCR president Michael Ratner attributed the terrorists’ militancy to America’s allegedly “unqualified support for Israel, and its embargo of Iraq, its bombing of Afghanistan, and its actions in Saudi Arabia.”


Along with the CCR, the ACLU is disinclined to see the danger of Islamic fanaticism. September 11, far from alerting the organization to the urgency of that threat, has served mostly to reinvigorate its efforts to frustrate American counterterrorism policies in the name of affirming civil liberties. Not content to foment noncompliance with key provisions of the Patriot Act, the ACLU has also vigorously defended terrorist suspects like Sami Al-Arian, the North American operative for Palestinian Islamic Jihad. An ACLU-led campaign to exclude incriminating evidence seized by the FBI in the 1990s evidently played a decisive role in Al-Arian’s surprising acquittal this December. Even comparatively mild counterterrorism measures, like racial profiling, are too stringent for the ACLU’s permissive sensibilities; the organization has spearheaded a nationwide effort to discredit its efficacy and cast doubt on the legality of the tactic.


Efforts like these have endeared the ACLU to another notorious activist group, CAIR. Together with the ACLU, CAIR has long lobbied against the profiling of Middle Eastern men at airports. An unofficial propaganda arm of the hard-line Wahhabi sect of Saudi Islam, CAIR has labored to suppress criticism of radical Islam since its 1994 founding. Fawning media coverage has even allowed the group to dishonestly masquerade as a spokesman for America’s moderate Islamic community, though the recent convictions of several CAIR activists, including the founder of its Texas chapter, on charges relating to terrorism, have vindicated the charges of its dogged critics—namely, that the organization places the interests of extremist Islam above American national security.


Seeing Greenpeace among the parties involved in the NSA suits may come as a surprise. It shouldn’t. From its inaugural act—a seafaring pilgrimage to disrupt a U.S. nuclear weapons test—the foremost member of the environmentalist movement has acquired a well-deserved reputation for sabotage and eco-terrorism. Less well known, perhaps, is that the environmentalist group has spent the past few years actively undermining U.S. led military efforts in Iraq. Recent Greenpeace missions have included blockades of military supply forts and bases of several coalition forces members. These the organization has supplemented with a propaganda campaign aimed at depicting the ouster of Saddam Hussein as an ecological catastrophe for Iraq. Little wonder, then, that the FBI has gathered some 3,000 pages of documents on the Greenpeace activities.


Compared to the usual rhetoric of the Bush administration’s activist foes, the allegations set forth in this week’s lawsuits are a triumph of civility. CCR, for instance, has previously endorsed the work of the unimaginatively titled “International Commission of Inquiry On Crimes Against Humanity Committed by the Bush Administration,” a self-styled “tribunal” of radical eminences—members include Rabbi Michael Lerner, Gore Vidal, Cornel West and Howard Zinn—that aspires to answer the pressing question of whether the “administration of George W. Bush [is] guilty of war crimes and crimes against humanity.” Most recently, the commission has “indicted” the Bush administration for everything from “waging wars of aggression” to enforcing “repressive conditions” during Hurricane Katrina.


One thing, however, has not changed. Even as they lobby on behalf of terrorism suspects and enemy combatants, subvert essential counterterrorism legislation, and craft strained apologetics for the most undemocratic elements in Islam, groups like the CCR, the ACLU and CAIR continue to present themselves—against all evidence—as the lone defenders of American democracy.


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Jacob Laksin is managing editor of Front Page Magazine. His email is jlaksin -at- gmail.com

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