Does the fact that the United States was taken by surprise by a group of terrorists Sept. 11, 2001 justify granting the president powers that exceed both constitutional limits and norms of international law?
A democratic state combating terrorism must adhere to three fundamental principles: upholding the rule of law, balancing security with the preservation of human and civil rights, and providing judicial review. Ongoing debates over the renewal of the Patriot Act, administrative detention and the use of warrantless wiretaps, as well as proposed legislation to set limits on interrogation methods, bring all three principles into sharp focus.
The rule of law is the essential foundation of democracy. All of us are bound by the law. No one, including members of the present administration, is above it. The true meaning of the rule of law is determined in times of exceptional stress.
Unlike wars between sovereign states, the war on terrorism is waged between states and non-state organizations. Previous rules of engagement were based on reciprocal agreement among states to limit their use of force. In the war on terrorism, only one side - democratic states - commits itself to observing such rules. Terrorist organizations not only consider themselves above these rules, they also see the rules themselves as illegitimate.
Aharon Barak, the chief justice of the Israeli Supreme Court, has reflected that it is the fate of democracy to conduct the war on terrorism according to the rule of law. It follows from this that the democratic state cannot employ any and all means at its disposal to combat terrorism.
For example, it cannot use extraordinary interrogation techniques that amount to torture, and it cannot circumvent this prohibition by sending terror suspects to countries known to use torture. Sometimes a democracy has to fight a war with one hand tied behind its back.
The second fundamental principle is the need to balance security with the preservation of human and civil rights. In dangerous times, the need for security - personal and national - can seem to override the need to preserve civil liberties.
Closer examination reveals that there is no real conflict between these principles, which are, in fact, complementary. Without security, one cannot enjoy basic human and civil rights. But this does not mean that at times of threat, people should forgo their basic rights in the name of security. A regime that uses security to justify its disregard for civil liberties ceases to be a real democracy.
It is true that when our ability to pursue our normal lives is threatened, common sense dictates that security needs to take precedence. But the real need for, and ultimate test of, the Constitution as the protector of civil and human rights comes in times of emergency.
Even if one were to accept the Bush administration's contention that the president's powers under the Constitution authorize him to intercept electronic communications of suspected terrorists within the United States without judicial warrants, contrary to provisions of the Foreign Intelligence Surveillance Act, this does not obviate the need for legislative oversight and judicial review.
The Israeli experience suggests that warrantless wiretaps should be permitted only in extraordinary circumstances for limited periods of time (which can be renewed) and under a statutory obligation to report to Congress every such violation of the constitutional right to privacy. In Israel, this arrangement has proved effective in preventing abuses of executive authority.
The third fundamental principle is judicial review.
Acts of terrorism can hamper the ability of citizens to pursue their normal lives, to the point of creating a state of emergency. Some scholars maintain that in times of emergency, the courts should not interfere with decisions of the executive branch about how to combat terrorism.
But the maxim, attributed to Cicero, that when the cannons roar, the muses should be silent, is incompatible with democracy. There is simply no way for a democratic society to preserve its values and the rule of law without judicial review. If there is a law, there must be a court to review it.
For this reason, it is necessary to grant people who are detained as enemy combatants the basic right to petition the courts to examine the legality of their detention. In the same way, the FISA law's requirements for the judicial review of wiretaps cannot simply be brushed aside.
No one is above the law. Our courts were designed to ensure that our government operates within the law, that it is a government of laws, not a government of lawless men.
Emanuel Gross, law professor at Haifa University and a judge on the Israeli military court for trying terror suspects, is the author of the forthcoming "The Struggle of Democracy Against Terrorism: Lessons from the United States, the United Kingdom, and Israel." His e-mail is email@example.com.