Will the Laws Fall Silent?
by William Norman Grigg

As America braces for a war of uncertain length against an unspecified enemy, many have embraced the ancient legal maxim inter arma, enim silent leges - "In time of war, the laws fall silent." In a sense this is an understandable reaction to the depraved lawlessness displayed by the foreign enemies who killed several thousand Americans in the attacks of September 11th. While we certainly must track down and eradicate those directly responsible for that attack, we must also remember that our laws – the Constitution that frames our system of government, and the heritage of Christian laws that inspired our nation’s charter of government – define us as a people. If we allow those laws to become "collateral damage" in the "war on terrorism," we will suffer losses even greater than those we endured on that terrible Tuesday morning.

Under the Constitution, the federal government is allocated a few specific responsibilities, the most important of which is to secure our nation’s borders and protect our citizens from foreign attack. It does not diminish the guilt of the perpetrators of the September 11th assault to observe that the success of that terrorist strike represents a failure on the part of our federal government to carry out its most important role. That failure is now being invoked to justify lifting the constitutional restraints upon the central government’s power. Even more ominously, we are being told that the present crisis can only be dealt with in the framework of "collective security," as administered by the United Nations and its subsidiary bodies.

Following the 1995 Oklahoma City Bombing, then-Congressman Charles Schumer told a reporter that new restrictions on freedom would be necessary in order to deal with the threat of terrorism. After all, he insisted, "in wartime, it's different than peacetime. In terrorism time, it's different than peacetime." It’s hardly surprising that those sentiments would be expressed by Schumer, a fervent advocate of "gun control" and federal surveillance of "right wing" domestic dissidents. It might be considered surprising, however, to see even more expansively statist views being expressed by the Deseret News of Salt Lake City, Utah, a reliably pro-Republican newspaper.

"Americans need to rally around President Bush and the federal government," declared a September 14th Deseret News house editorial. "Some Utahns have become almost consumed in recent years with their distrust of Washington and various federal agencies. That must be put aside for now…. Utahns of every stripe ought to be ready to respond to whatever their president asks."

If one assumes that the most important task before us is to punish the guilty, rather than to prevent further assaults upon our country, then it might make sense to embrace a vision of president as war dictator, and to suppress criticism of our central government. But under the Constitution’s mandate to "provide for the common defense," our most urgent task is to take immediate steps to protect the citizenry. Finding and annihilating the foreign enemies who attacked our country, while necessary, will do little to enhance our national security in the long run unless the failed foreign and security policies that led to the disaster of September 11th are changed.

Within hours of the September 11th attack, congressional leaders of both parties emphasized their unanimous and unlimited support for the President. On September 14th the Congress passed – with one single negative vote – a joint resolution to "authorize the use of the United States Armed Forces against those responsible for the recent attacks against the United States." That resolution cited the War Powers Resolution, not the constitutional provision for a congressional declaration of war. Further, Congress chose not to approve a joint resolution introduced by Congressman Bob Barr that contained an explicit declaration of war.

In brief, Congress – as it did in 1965 with the Gulf of Tonkin Resolution – ignored its constitutional role, choosing to ratify the President’s decision to commit our nation to war, rather than re-asserting its authority to declare war.

Indeed, the Bush administration has behaved as if congressional approval were a mere formality. On the day following the attack, President Bush told reporters: "Now that war has been declared upon us, we will lead the world to victory." White House correspondent Fred Barnes notes that as the reporters were ushered out of the Oval Office, "Bush was asked if he would seek a declaration of war. Bush didn’t answer, flinch, or look up. He sat stonily."

This is not a trivial matter. University of Pittsburgh law professor Jules Lobel points out that the use of force resolution "is not directed against anybody. For example, if the President believes Libya, Iraq, Iran and Pakistan were involved in harboring these terrorists he could attack all of them." The BBC reported on September 16th that the Bush administration aims "to uproot perceived terrorist networks spanning 60 countries in America’s war against those who carried out Tuesday’s suicide plane attacks in New York and Washington."

So, without a declaration of war, President Bush has announced his intention to "lead the world" in a war that could involve military action in nearly one-third of the world’s existing nations. That undeclared war could last for decades, thereby consuming our wealth, devouring the lives of our young men, and deepening the bonds of our "interdependence" with the UN and its auxiliaries.

These are precisely the dangers that our constitutional provisions for war-making were intended to address. It is through war that the power of the State is most dramatically magnified. That is why the power to declare war was vested in the branch of the federal government most accountable to the people whose wealth, liberties, and lives would be directly affected by war.

Alexander Hamilton, who was a proponent of a strong chief executive, wrote in 1793: "It is the province and duty of the Executive to preserve to the Nation the blessings of peace. The Legislature alone can interrupt those blessings, by placing the Nation in a state of War." Writing a year later, Hamilton emphasized that "war is a question, under our constitution, not of Executive, but of Legislative cognizance. It belongs to Congress to say -- whether the Nation shall of choice dismiss the olive branch and unfurl the banners of War."

Madison’s Notes of the 1787 Convention document that the Framers understood that a President’s duty to "preserve … the blessings of peace" included an ability to "repel sudden attacks" – or, in the words of Roger Sherman, "to repel and not to commence war." September 11th represents the first time in our history that a President has had to deal with a sudden attack upon our homeland (Hawaii, at the time of Pearl Harbor, was not a state).

President Bush was within his constitutional mandate to mobilize military and law enforcement personnel to prevent further attacks. But without a congressional declaration – or, for that matter, a specific enemy – the President, with the support of Congress and the media, committed our nation to what is expected to be a long, costly, and bloody foreign war.

War swiftly dissolves both the legal and moral restraints upon government power. The American war that began with the Japanese attack upon our naval forces in Pearl Harbor ended with the atomic strikes that vaporized tens of thousands of civilians at Hiroshima and Nagasaki. It is difficult to imagine that Americans prior to Pearl Harbor would have countenanced such wholesale slaughter of civilians. It is impossible to imagine what measures the public will be willing to support in the wake of a terrorist attack that killed thousands of American civilians in the heart of our most prominent city. But Americans must remember that the powers we are willing to allow our government to exercise against our foreign foes may someday be used against us as well.

It must also be remembered that social revolution is a predictable consequence of war. Indeed, this is why statists of all varieties regard war as something to be exploited (and even encouraged), rather than prevented. Norman Dodd, director of research for the Special Congressional Committee to Investigate Tax-Exempt Foundations (the so-called "Reece Committee"), has described how the Carnegie Endowment for International Peace eagerly supported America’s entry into World War I as a means of bringing about a social revolution.

In an interview with investigative reporter William H. McIlhany, Dodd recounted the findings of Kathryn Casey, who had examined the minutes of Carnegie trustees in the years prior to World War I. In the minutes, the trustees discussed the following question: "`Is there any means known to man more effective than war, assuming you wish to alter the life of an entire people?’ And they discussed this and at the end of a year they came to the conclusion that there was no more effective means to that end known to man. So, then they raised question number two, and the question was, `How do we involve the United States in a war?’"

When the trustees convened a meeting following America’s entry into the war in 1917, Dodd continued, they "had the brashness to congratulate themselves on the wisdom of their original decision because already the impact of war had indicated it would alter life … in this country. They even had the brashness to word and to dispatch a telegram to [President Woodrow] Wilson, cautioning him to see that the war did not end too quickly." Since there is little prospect that the open-ended war on terrorism in which our country has become embroiled will end "too quickly," it stands to reason that the conflict will present unprecedented opportunities for social reconstruction.

The war on terrorism will also be used to preserve and expand the power of globalist institutions, particularly the United Nations, which until September 11th were under sustained political assault. One ominous portent was the decision of Representative Tom DeLay (R-Texas) to withdraw his proposed "American Servicemen’s Protection Act," which was intended to exempt U.S. servicemen from prosecution by the UN’s proposed International Criminal Court. The Bush administration opposed DeLay’s measure as an intrusion upon the President’s power to conduct foreign policy, and the Congressman withdrew the measure following the terrorist attack as a way of expressing support for the President.

In the early years of the Cold War, congressional critics of U.S. involvement in multilateral alliances and institutions found that President Truman and his foreign policy trust could cite the Soviet threat to justify nearly any foreign entanglement or assertion of presidential power. Senator Robert Taft, whose anti-Communist credentials were impeccable, complained in 1947 that he was "more than a bit tired of having the Russian menace invoked as a reason for doing any – and every – thing that might or might not be desirable or necessary on its own merits."

By 1950, as congressional inquiries into subversion documented the extent to which our foreign policy institutions had been infiltrated by Communists and their allies, political opposition was building to American involvement in the United Nations. Writing in the June 1996 issue of The Atlantic Monthly, Benjamin Schwartz of the World Policy Institute observed that Harry Truman’s "secretary of state Dean Acheson put things in proper perspective: describing how Washington overcame domestic opposition to its internationalist policies in 1950, he recalled in 1954 that at that critical moment the crisis in Korea `came along and saved us.’"

Tens of thousands of American servicemen were killed in the Korean conflict. They fought as part of a UN military force, under rules of engagement that denied them victory, and under a UN chain of command in which our battle plans were made transparent to the Soviets and the Communist North Koreans. But from Acheson’s perspective, these losses were necessary in order to "save" the designs of the internationalist Power Elite.

Acheson is in many ways typical of that Power Elite, which is infinitely resourceful in creating or exploiting crises to magnify its power. The most visible element of the Power Elite is the New York-based Council on Foreign Relations, to which Acheson (and nearly every other Secretary of State, including Colin Powell) has belonged. On September 14th the CFR held a televised forum featuring the "U.S. Commission on National Security in the 21st Century," which submitted its report to President Bush earlier this year. The forum featured a frank discussion of the ways in which the September 11th attack and its aftermath can be used to enhance the drive to create a UN-administered new world order.

During a question-and-answer period near the end of the program, a Harvard scholar declared that America is "facing the reality of a new world order" in which we must collaborate with other governments in counter-terrorism efforts. Responding to this statement, Commission co-chair Gary Hart expressed the hope that the Bush administration could "use this disaster to achieve that end, or at least explore the possibility to take some of these countries we have held at arm’s length and challenge them to help us."

James Sasser, a former ambassador to Red China, elaborated upon that point, noting that as a result of this assault, the United States might be led into an anti-terrorism coalition with Russia, Red China, Iran, and similar states. "Can we not use this as a catalyst to reach out and develop intelligence in conjunction with these other regimes?" asked Sasser. This suggestion was warmly embraced by former House Speaker Newt Gingrich, a member of the CFR-dominated Commission.

So, in the name of "collective security," the United States is to enter into a coalition with the most notorious state sponsors of international terrorism. This Orwellian proposition, which provoked not a single critical comment from the CFR forum’s participants, is typical of the "wisdom" of our foreign policy elite.

NATO’s ruling Council has already invoked Article V of the North Atlantic Treaty, thereby designating a terrorist attack upon any of its members to be an attack upon all of them. And Beijing has already indicated that it would gladly cooperate in an anti-terrorism coalition, as long as it is organized through the United Nations. The logic of "collective security" against terrorism dictates that in exchange for the help of our dubious allies in finding and punishing those who attacked our nation, we must be willing to reciprocate should any of those nations be attacked.

This may mean using U.S. power not only to punish attacks upon our NATO allies, but also to put down any movement that threatens Beijing, Teheran, or any of our other new "allies" in the grand coalition. It may also lead to expanding our intelligence and law enforcement collaboration with Moscow and Beijing. It will almost certainly mean further empowerment of both NATO and the United Nations.

And what will be done once the crisis has passed, assuming that it ever does? Would these new arrangements be dissolved or institutionalized? Will the new powers assumed by the President devolve back to Congress? Will our global crusade against terrorism eradicate that menace, or exacerbate it as we acquire an even larger roster of foreign enemies?

Since the attack of September 11th, The Powers That Be have recited the mantra that the terrorists responsible for the slaughter hate us for our virtues – our freedom, prosperity, and global influence. Some have insisted that the example of a multi-ethnic, multi-religious society is abhorred by the radical Islamists who are presumed to be behind the assault.

But it’s worth remembering that Switzerland is a free, prosperous, multi-ethnic, multi-religious society as well – and that despite its much greater geographic vulnerability, it has never been a terrorist target. That nation has chosen to exercise its global influence through finance and neutral diplomacy, rather than through military intervention. By refusing to insinuate itself into foreign quarrels, it has eschewed the role of "superpower" – and preserved its own domestic tranquility. Switzerland was admired by our Founding Fathers as much for its resolute independence as for its stable, long-lived institutions of ordered liberty, and its example is now more relevant than ever.

The familiar arguments against "isolationism" should be casualties of the September 11th attack, which was the predictable – and tragic – product of our government’s interventionist foreign policy. For several days after the attack, our country was, to a remarkable extent, isolated from the world, as our airlines were grounded and our borders were sealed. The financial and commercial networks through which Americans conduct business with people abroad were disrupted, or shut down altogether. It’s not clear yet if our sense of normalcy can ever be completely restored.

But there are necessary steps that can be taken immediately to address our most critical national security needs:

• Rather than pouring tens of billions of dollars into an open-ended foreign war, Congress should radically increase the budget of the Immigration and Naturalization Service, and vastly expand the manpower of the Border Patrol.
   
• Congress should rescind the counterintelligence guidelines created by Attorney General Edward Levi in 1976, which destroyed the FBI’s ability to collect intelligence on foreign terrorist and subversive groups operating in this country. The Levi guidelines forbid the FBI from investigating a terrorist group unless it has solid evidence of a plan to commit a federal crime within 48 hours. The foolishness of those guidelines is illustrated by this fact: The plot carried out on September 11th took years to plan and carry out.
   
• While it is proper for the FBI to investigate crimes, the Constitution specifies that law enforcement is almost exclusively a state and local responsibility. Over the past three decades, as federal funding and control over state and local police agencies have increased, their ability to collect intelligence on subversive and terrorist groups has been all but destroyed. This capacity must be restored immediately, if we are serious about preserving national security without creating a federally dominated garrison state.
   
• As the Pentagon was burning, and with (fortunately inaccurate) reports of another hijacked plane en route, one Pentagon staffer cried out: "Where’s our air cover?" Americans might well ask themselves a similar question: With all we spend on our military, why are we so defenseless? Why have we deployed troops to scores of nations around the world, when our homeland is vulnerable to attack? We must end our meddling in the affairs of other nations, bring our troops home, and build a military devoted exclusively to defending our nation. If we can identify the foreign enemy responsible for the attack, Congress should declare war and commit the necessary resources to defeating that enemy. But our first priority should be to defend our homeland.
   
• Just days before our nation was attacked, UN Secretary-General Kofi Annan was communing with Arafat, Castro, and sundry other terrorists at the UN’s "anti-racism" summit in Duban, South Africa. That event was a riotous festival of America-bashing led by regimes that almost certainly were connected to the attack on our country. This illustrates the compelling necessity to get our nation out of the UN, and to invite the world body to relocate to Durban, Damascus, or some similar haven of enlightenment.
   
• There is obviously a compelling need to find and destroy the foreign enemies who attacked our nation. If we must make war, we should do so with strict fidelity to the Constitution, and unhindered by entangling alliances with multi-national bodies such as the UN and NATO. In prosecuting such a war we should make it clear to the world that America is willing to extend the hand of peace and honorable commerce to all nations who will reciprocate our goodwill – and that we are just as willing to punish without mercy those who make war upon us.

All of these steps would enhance our national security while preserving the constitutional framework of laws upon which our liberties depend. But it is obvious that for any of these steps to be taken, our government has to undergo some radical changes – not to its constitutional structure, but with regard to the people who are currently occupying positions of trust. We cannot expect sound leadership from the very officials who helped create this catastrophe. But new political leadership devoted to restoring our national security and preserving our independence will not emerge until the American public itself is educated in sound principles and mobilized to hold our leaders accountable.

As the human cost of the September 11th attack becomes clear, the temptation to set aside our laws in order to exact revenge will be almost irresistible. But resist we must, because if our laws fall silent, our freedom and independence will be destroyed – and terror will have its ultimate victory over liberty.

Will Grigg hosts The John Birch Society's Review of the News Online audio commentary on the September 11 terrorist attack.