How the Terrorists have won

By ROGER COHEN
International Herald Tribune

NEW YORK There are moments when you think they've won. When even the toothpaste is suspect at airports, and the sixth hand luggage check is being done, and an opera gets canceled, and the pope has to apologize, and a French teacher has to go into hiding for suggesting violence is inherent to Islam.

You think they've done it, they've actually done it, a small group of fanatics prepared to use unspeakable violence in the name of a nihilist ambition has managed to generate enough fear to change our way of life. That's what they want to do after all - remake the world, like all revolutionaries - and that's where we seem to be headed.

And then you think, no, the life we want is still intact, with its pleasures and its freedom and its openness, and there's no way these guys, some of whom may actually live in caves, can muster the strength to take the world backward into a throat-slitting, thought-policing state of perpetual terror they like to call the Caliphate.

Five years after the 9/11 attack on the United States, we tend to live with this quotidian back-and-forth between defeatism and hope, between fear and confidence. Recalling the time before September 2001 has become as hard as recalling the time before cellphones and e-mail.

You know you actually lived back then and you probably lived better, but how did it actually feel and how did things work in that dizzying dozen-year interlude between the Cold War and the war on terror?

I know this much: It was a more civil time, when people had not yet forgotten that reasonable disagreement is the mark of any healthy society, and people had more time for each other, and the political manipulation of fear and anger had not yet turned political discourse into a sterile shouting match.

If these musings seem bleak, that's because the United States has just lived through a particularly bleak political season in which the fear- filled condition that might be called war-on-terroritis has appeared to reach epic proportions, leading Congress to vote measures that belittle America in the name of defending it.

The first of these was the so-called Military Commissions Act of 2006, which opens the way for military trials of suspected Al Qaeda terrorists and others who "purposefully and materially supported hostilities against the United States," while strictly limiting the defendants' traditional courtroom rights.

The bill says in part that: "No court, justice or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."

Bye-bye habeas corpus, long a by- word for America's rule of law. And note the last vague phrase - "awaiting such determination." The wait, as Guantánamo Bay has shown, can be long. The disappearance of people was one of the hallmarks of the societies the United States spent much of the 20th century fighting.

With Congress's imprimatur now given to the executive's push under President George W. Bush to imprison terrorist suspects indefinitely and interrogate them beyond full court review, America appears to have concocted a legal avenue into the faceless limbo that totalitarian dictators decreed with a wave of the hand.

I know - these people blow up women and children and have no compunction in seeking to annihilate liberal democracies. Why should we afford them any customary legal protection when their goal is nothing less than the destruction of societies built around such norms?

Because when we diminish our civilization in the name of protecting it we weaken ourselves in the long run. Instead of "You shall not pass," we seem to say, "You'll pass unless we compromise ourselves."

As one Democratic senator, Patrick Leahy of Vermont, put it: "Why would we allow the terrorists to win by doing to ourselves what they could never do, and abandon the principles for which so many Americans today and through our history have fought and sacrificed?" For that, he and other Democrats in Congress were dismissed by the House speaker, J. Dennis Hastert, a Republican from Illinois, as voting "in favor of more rights for terrorists." The tone and terms of the run-up to the November midterm elections are now clear. "Ugly" would be a kind description of the climate.

Which brings us to the second measure given final approval by the Senate last week: legislation authorizing the construction by 2008 of a $6-billion, 700-mile, or 1,100 kilometer, fence equipped with all sorts of electronic wizardry along the U.S.-Mexico border.

The decision reflects Republican sentiment that the best way of shoring up support for the Nov. 7 election is to get tough on security and immigration and so show up the "Defeatocrat Democrats." As Bill Frist, the Senate majority leader, put it: "Fortifying our borders is an integral part of national security. We can't afford to wait."

What Frist didn't say is that the fence will still leave 1,300 miles of border uncovered; that there aren't enough border patrol agents, even with new hires, to police the fence; that fences at best palliate problems but never resolve them, as Israel's recent experience suggests; that the fence is an offense to America's Nafta partner, Mexico (imagine one between Germany and Poland); and that the fence is also an offense to the very idea of America.

Perhaps Emma Lazarus's words on the Statue of Liberty should be rephrased as follows: "Give me your tired, your poor, your huddled masses yearning to breathe free - so long as they can scale a double-layered, high- tech fence designed to keep them out."

Of course, the Supreme Court may yet overturn aspects of the Military Commissions Act, including the denial of habeas corpus, and the loony fence may never get built. Between despair and hope we veer, asking: Are they winning or are we defeating ourselves?