Daniel Henninger
August 18, 2006

New York City on Wednesday released more audiotapes from September 11, the day whose realities won't go away no matter how corrosive and divided our national politics become.

What are the realities of 9/11? Oliver Stone's movie, "World Trade Center," released a few weeks ago, conveys the horror, valor and loss that day. That is one reality.

The more enduring reality is the one manifest last week when British authorities stopped a plot to destroy perhaps 10 passenger planes over the Atlantic Ocean: Five years after September 11, radical Islam remains an ideology whose active intention is to annihilate civilians around the world on a massive scale, and to do so repeatedly.

On Sunday, Homeland Security Secretary Michael Chertoff put before us the reality that should, but doesn't, transcend all the others now. "We've got to have a legal system that lets us . . . prevent things from happening rather than . . . reacting after the fact." But we don't.

Congress has before it two chances to begin the task of shaping a legal system appropriate to the threat: the Specter bill to revise the Foreign Intelligence Surveillance Act (FISA), and its responsibility after the Supreme Court's Hamdan decision to write rules and procedures for military commissions. Given the political climate, it's far from certain that Congress will get this right.

Over the past year the Democrats have built a political case that President Bush's conduct of the war on terror is trampling civil liberties and the rule of law. There is a list for the Bush assault on "our values": the NSA's warrantless wiretaps, Guantanamo, phone-call data mining and of course his Supreme Court nominations.

Whatever the merits of all this, Congress's Democrats are publicly committed to making this version of the Bush civil-liberties record a voting issue for their party in November and beyond. So presumably they will remain deaf to Secretary Chertoff's plea for a legal system tailored to fight Islamic terror, at least until after 2008.

A fair summary of the party's position on civil liberties just now may be found in Sen. Patrick Leahy's remarks after Mr. Bush nominated Samuel Alito to the Supreme Court. "This is a nomination," Sen. Leahy said, "that threatens the fundamental rights and liberties of all Americans now and for generations to come. This president is in the midst of a radical realignment of the powers of the government and its intrusiveness into the private lives of Americans. . . . I am concerned that if confirmed this nominee will further erode the checks and balances that have protected our constitutional rights for more than 200 years."

So a question: Which set of civil liberties do the Democrats have in mind--those that existed in 1791? In 1896? 1942? 1965? 1976? Or now? British Prime Minister Tony Blair put this question bluntly in a speech in California last month: "The threat of global terrorism bent on mass slaughter means traditional civil liberty arguments are not so much wrong, as just made for another age." Which age does Sen. Leahy want to live in?

The Fourth Amendment--affecting the status of warrants, probable cause and surveillance--is an excellent proxy for how we should try to think about shaping a set of laws and legal procedures appropriate to our times.

In a compelling post-9/11 article that every member of Congress involved in this effort should read, "Local Policing After the Terror," Harvard constitutional scholar William J. Stuntz argued in the June 2002 Yale Law Review that an analysis of the Fourth Amendment the past 40 years makes clear that courts have tailored criminal-procedure rules to fit the threat at the time, tightening or relaxing criminal procedures in line with a fall or rise in crime.

After the low-crime '50s, it imposed the exclusionary rule on state courts. In very high-crime 1968, the Warren Court, in Terry v. Ohio, softened the probable cause standard for police street frisks to reasonable suspicion. For 20 years after 1970, the courts enacted various exceptions to the warrant requirement, i.e., allowed warrantless searches.

Here is Justice Sandra Day O'Connor in oral remarks during the stop-and-search Arvizu case argued on Nov. 27, 2001: "We live in perhaps a more dangerous age today than we did when this event took place. . . . The Ninth Circuit opinion seemed to be a little more rigid than . . . common sense would dictate today."

Just over a week ago, the Second Circuit Court upheld a district court ruling in favor of New York City's random subway searches, concluding that the program was a "special need" and "that need is weighty."

The Senate doesn't think so. The Senate is barely able to have a conversation about any of this. At the Judiciary Committee's hearing late last month to discuss Sen. Arlen Specter's bill to revise FISA, Sen. Ted Kennedy submitted that the Bush program wants to override "the core of our democracy" and "we should not yield to that arrogant request." The day before that hearing New York Rep. Jerry Nadler called again for a special counsel to investigate the warrantless wiretap program.

Criminologists will tell you that the reason street crime is down in the U.S. is because of proactive policing methods such as were instituted in New York by Rudy Giuliani and William Bratton. A reactive police force by definition lets crime happen and investigates afterward. Our bitter, give-no-quarter politics is going to leave us with a reactive, uncertain national security apparatus.

Even allowing for election needs, why is it not possible for the congressional Democratic Party and its Amen corner in the punditocracy and blogosphere to overcome their George Bush phobia here? They should allow the creation of a civil-liberties regime that will genuinely (not hopefully) reduce our exposure to the risks now being rolled up by the surveillance and arrests in London.

The foiling of the plot in Britain was a kind of public-policy miracle, a rare chance to rethink. The U.S. could have spent the past week with 4,000 funerals. We would have had calls for measures so stringent and draconian they would make the Bush program look like pattycake. We have none of that. But unless our politics changes, we will.
Mr. Henninger is deputy editor of The Wall Street Journal's editorial page. His column appears Fridays in the Journal and on OpinionJournal.com.

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