Liberty Balance

CIVIL liberties and the war on terrorism still are in an uneasy coexistence a half year after Sept. 11. So far, the Bush administration seems sensitive to the idea that ensuring the nation's freedom from terror does not require a self-inflicted erosion of freedom, or basic rights and other foundations of democracy.

But critics have had to hound the administration on this point, especially with a president so determined to win the war on the battlefront and to capture terrorists in the US.

The latest case in point is the Pentagon's revised rules, announced last week, for the military tribunals that will try Al Qaeda or Taliban members seized abroad.

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Reassuringly, the revisions were in response to criticism that the original proposals for the tribunals were so outside normal legal protections that they would hurt the cause for freedom globally.

The main purpose for the tribunals is to avoid putting judges and witnesses in jeopardy of retaliation, and to ensure secrecy for the methods of gathering intelligence in the ongoing war. Civilian courts can't always do that. But the revised rules also go a long way toward diminishing concerns about inquisitorial justice in closed settings. The rules include press coverage (though proceedings may be closed when classified material is being aired), provision of counsel for all defendants, and the requirement that guilt be established beyond a reasonable doubt.

There's still room for criticism. For example, appeals are limited to a review panel appointed by the secretary of Defense. Defendants won't have recourse to independent judges outside the military structure.

Beyond a doubt, however, the rules bring needed elements of fairness. And, as Mr. Bush has noted, the tribunals are "tools" to have available in extraordinary circumstances. There are as yet no accused persons, with cases built against them, ready to go before these courts.

The need for extraordinary tools in this new kind of war can also be used to justify the extraordinary interviews being conducted by the Justice Department. When the department first announced its plans last November to talk to 5,000 foreign nationals legally in the US, charges of racial profiling quickly followed. The prospective interviewees were all men from Muslim nations where the Al Qaeda network is suspected of having members.

Now the department has completed that round of interviews, though it was able to locate only about 2,500 people. Many had left the country or simply couldn't be traced. Of those contacted, however, 90 percent were willing to be interviewed. Many were willing to stay in touch with authorities and pass along information. A number volunteered to serve as interpreters.

The high level of cooperation probably reflects three factors: The program was voluntary; no one was coerced to talk. And the interviewers were trained to be respectful.

Attorney General Ashcroft is so positive about the project that he's launching a second round, this time focused on 3,000 foreign visitors who entered the US more recently than the original group. Mr. Ashcroft feels the contacts made in communities where would-be terrorists might try to blend in are invaluable.

He may be right, but concerns among Arab-Americans and Muslims that their communities are being targeted shouldn't be ignored. Building trust and honoring rights has to go hand-in-hand with the data-gathering.

Civil liberties abuses of the past, as during the "red scare" of the 1950s or the internment of Japanese-Americans during World War II, should not be forgotten.

When the threat to the nation is extraordinary, the need for extraordinary law enforcement is justified. But with careful calibration of legal measures and sensitivity to precedents being set, the balance between waging war and keeping freedom can be maintained.

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