Michael Ignatieff opens his essay, “Lesser Evils” (New York Times Magazine, May 2, 2004), by asking “Could we actually lose the war on terror?” But, to Ignatieff, defeat in the war on terror isn’t

the detonation of a radiological or dirty bomb, perhaps, or a low-yield nuclear device or a chemical strike in a subway. Any of these events could cause death, devastation and panic on a scale that would make 9/11 seem like a pale prelude.

In Ignatieff’s view, which seems to be au courant among civil libertarians, defeat looks like this:

A succession of large-scale attacks would pull at the already-fragile tissue of trust that binds us to our leadership and destroy the trust we have in one another. Once the zones of devastation were cordoned off and the bodies buried, we might find ourselves, in short order, living in a national-security state on continuous alert, with sealed borders, constant identity checks and permanent detention camps for dissidents and aliens. Our constitutional rights might disappear from our courts, while torture might reappear in our interrogation cells. The worst of it is that government would not have to impose tyranny on a cowed populace. We would demand it for our own protection. And if the institutions of our democracy were unable to protect us from our enemies, we might go even further, taking the law into our own hands. We have a history of lynching in this country, and by the time fear and paranoia settled deep in our bones, we might repeat the worst episodes from our past, killing our former neighbors, our onetime friends.

That is what defeat in a war on terror looks like. We would survive, but we would no longer recognize ourselves. We would endure, but we would lose our identity as free peoples.

What a nifty rhetorical trick. Ignatieff paints the darkest possible picture of official and unofficial reaction to a hypothetical succession of large-scale terrorist attacks. He then characterizes that reaction as a defeat — as if sustaining a string of major terrorist attacks weren’t a defeat.

Ignatieff shortly buttresses his rhetorical trick by invoking the evil John Ashcroft: “Other conservatives, like Attorney General John Ashcroft, simply refuse to believe that any step taken to defend the United States can be called an evil at all.” Oh, really? Did I miss Mr. Ashcroft’s call for the summary execution of all Muslims resident in the United States? Well, it’s Ignatieff, not Ashcroft, who says:

To defeat evil, we may have to traffic in evils: indefinite detention of suspects, coercive interrogations, targeted assassinations, even pre-emptive war. These are evils because each strays from national and international law and because they kill people or deprive them of freedom without due process. They can be justified only because they prevent the greater evil. The question is not whether we should be trafficking in lesser evils but whether we can keep lesser evils under the control of free institutions. If we can’t, any victories we gain in the war on terror will be Pyrrhic ones.

Okay, maybe we’re getting somewhere. Maybe Mr. Ignatieff will tell us how we might prevent the hypothetical string of terrorist attacks that will turn us into a ravening pack of jackals, led by John Ashcroft.

Sorry, false start. Back to Civil Liberties 101:

Civil liberties are not a set of pesky side constraints, pettifogging legalisms tying democracy’s hands behind its back. Ask what the American way of life is, and soon we are talking about trial by jury, a free press, habeas corpus and democratic institutions. Soon we are talking about that freedom and that confident sense of an entitlement to happiness that the Europeans find so strange in this country. Civil liberties are what America is.

Well not quite all. There is life itself. There is freedom from fear. But Ignatieff just rolls on:

Civil liberties may define us, but we have a bad record of jettisoning them when we get scared….Indeed, by comparison with the Red Scare or later shameful episodes like Roosevelt’s detention of Japanese during World War II, there have been no mass detention camps in the United States since Sept. 11 and no imprisonments for dissent. Not yet anyway.

“In spite of John Ashcroft,” he might as well have said. But let’s keep reading:

Even so, after 9/11 we were frightened, and Congress and the government weren’t always thinking straight. After the attack, it may have made sense to detain more than 700 aliens on one immigration pretext or another until we could figure out whether there were other sleeper cells at work. But it made a lot less sense to hold them for months (80 days on average) and to deny them lawyers and public due process before we tossed most of them out of the country.

How does he know how long we should have held the detainees, unless he’s privy to what we learned about and from them while they were detained? Well, it doesn’t matter, because he’s just looking for an excuse to introduce this non sequitur: “It was shameful, as a Justice Department report found, that many Arab and Muslim detainees were abused and harassed in confinement.” Yes, it was shameful, but that doesn’t negate the wisdom of detention — just as the shameful acts toward detainees in Iraq don’t negate the wisdom of our efforts there.

Might Ignatieff, finally, talk about efforts to prevent further terrorist attacks in the U.S? Well, sort of:

…Obviously it’s a good idea to keep recipes for ricin off government-financed research Web sites, and it’s not a good idea to have target detail on critical infrastructure available for download. But adversarial review, as intended by the founding fathers, can’t work if ordinary citizens are denied the information they need.

And what information is that — the names and addresses of persons under investigation, of persons being held for questioning as material witnesses? Why don’t we just post that information on the White House’s web site for the terrorists who remain at large, and cut out the middle man?

Ignatieff just goes on — and on — about the things President Bush has done wrong: designating “American citizens as ‘enemy combatants'”; imprisoning “foreign combatants at Guantanamo beyond the reach of American courts”; creating “military tribunals “to try foreign combatants” but keeping those tribunals “free from review by federal courts and free of the due process safeguards that apply in U.S. military courts-martial.”

Nor does he neglect the things President Bush might do wrong: targeted assassination (okay if there are rules for it, but it probably wouldn’t do much good); torture (okay as long there are strict rules about it and detainees can’t be held without access to counsel and judicial process).

Then there’s the ever-looming “out-of-control presidency”: “A war on terror, declared against a global enemy, with no clear end in sight, raises the prospect of an out-of-control presidency.” Well, the war on terror was declared almost three years ago and the presidency still seems under control to me.

Oh, here’s the out-of-control bit, it’s the war in Iraq:

Pre-emptive war can be justified only when the danger that must be pre-empted is imminent, when peaceful means of averting the danger have been tried and have failed and when democratic institutions ratify the decision to do so. If these are the minimum tests pre-emptive war has to meet, the Iraq war failed to meet all three.

Who says that the danger must be imminent? It’s stupid to wait until danger is imminent if you can do something about it before it becomes imminent. (Or should we have waited until Hitler had launched an amphibious invasion of New York before going to war against Nazi Germany?) Peaceful means of averting the danger were tried — but the United Nations failed, after exhaustive diplomacy on our part, to confront the danger that it had already recognized. The Congress of the United States — surely a far more democratic institution than the United Nations — ratified the war in Iraq. Tests passed.

Oh well, at last we come to the predictably fatuous peroration:

The chief ethical challenge of a war on terror is relatively simple — to discharge duties to those who have violated their duties to us. Even terrorists, unfortunately, have human rights. [Oh, really? Where is that written? Why “unfortunately” if they really have human rights?] We have to respect these because we are fighting a war whose essential prize is preserving the identity of democratic society and preventing it from becoming what terrorists believe it to be. [That’s not a problem, as I’ll explain below. The problem is preventing terrorists from killing us.] Terrorists seek to provoke us into stripping off the mask of law in order to reveal the black heart of coercion that they believe lurks behind our promises of freedom. [When was this revealed to Ignatieff, and by whom?] We have to show ourselves and the populations whose loyalties we seek that the rule of law is not a mask or an illusion. It is our true nature. [We also have to show ourselves and others that we have the will to defeat terror, which means killing or capturing terrorists before they kill us. That, too, is part of our nature, and a part that we must accept and others must respect.]

Let’s now talk seriously about waging war and why we can do bad things in wartime without permanently revoking our commitment to freedom. I’ll take a real example from a real war, namely the internment of Japanese and Japanese-Americans during World War II. Before I do, though, I feel that I must say this once more: The objective of war is to defeat the enemy, whether the enemy is a nation-state (as were the Third Reich and the Japanese Empire) or an elusive band of terrorists.

Now, here is how Wikipedia describes the internment:

[T]he exclusion and subsequent removal of approximately 112,000 to 120,000 Japanese and Japanese Americans, officially described as “persons of Japanese ancestry”, 62% of whom were United States citizens, from the west coast of the United States during World War II to hastily constructed housing facilities called War Relocation Camps in remote portions of the nation’s interior. The government of the United States officially apologized for this action in the 1980s and has paid reparations to survivors.

The last sentence summarizes how most American citizens had come to feel about the internment years after it had ended. But here’s what a 6-3 majority of the U.S. Supreme Court had to say about it in 1944, in the case of Korematsu v. United States, with Justice Black writing for the Court:

It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers — and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies — we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders — as inevitably it must — determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot — by availing ourselves of the calm perspective of hindsight — now say that at that time these actions were unjustified.

Justice Frankfurter’s concurring opinion says, in part:

The provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much part of the Constitution as provisions looking to a nation at peace. And we have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the Government is “the power to wage war successfully.”…Therefore, the validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless.

That we later came to regret the relocation of some 112,000 to 120,000 souls is merely evidence that the vicissitudes of wartime will not deflect us from our essential commitment to civil liberties. In the aftermath of World War II — and despite the excesses committed by our side in the quest for victory (and surely there were many excesses that have never been revealed) — our government has put an end to legal segregation (which is the most that government can do), guaranteed suffrage for blacks, and opened the door of opportunity for minority groups, women, the handicapped, and homosexuals.

Nevertheless, in wartime you have to do what you have to do, and sometimes it ain’t pretty. As Justice Frankfurter also said in Korematsu v. United States:

To recognize that military orders are “reasonably expedient military precautions” in time of war and yet to deny them constitutional legitimacy makes of the Constitution an instrument for dialectic subtleties not reasonably to be attributed to the hard-headed Framers, of whom a majority had had actual participation in war.

And so those war-hardened Framers moved on to give us the Constitution and Bill of Rights. And so we will move on to the preservation and expansion of civil liberties in the United States. But, first, we must try — sometimes in unpalatable ways — to capture and kill terrorists before they kill us.