January 21, 2006 | New York Post

Liberty vs. Terror Review of Protecting Liberty In An Age Of Terror by Philip B. Heyman

In a poisonous atmosphere where worthy debates over the Patriot Act and domestic surveillance are marred by risible analogies to the worst excesses of Watergate, a thoughtful book by two former high-ranking Clinton Justice Department officials is a breath of fresh air. They are Harvard's Philip Heymann and Juliette Kayyem. Their short, well-organized work is “Protecting Liberty in an Age of Terror.”

Shunning the partisan rancor that has politicized our national security as never before, the authors — well-regarded experts in their own right — assembled top-flight advisers ranging from Michael Chertoff (now President Bush's Secretary of Homeland Security) to Rand Beers (a leading national security adviser to President Clinton and the Kerry campaign).

With that collective wisdom, they hashed through the vexing national security challenges of the War on Terror: indefinite detention of enemy combatants, coercive interrogation, targeted assassinations, domestic intelligence collection and rules to govern terrorism trials, among others. Avoiding the current trend of unaccountable criticism, they offer a practical, comprehensive plan.

They begin by laying out their whole plan, allowing the reader to discern where they have drawn the difficult wartime lines between liberty and security, and how those lines fare throughout the proposal. They then subject each topic to detailed analysis, explaining their judgment calls.

Those calls will spur much healthy debate. Heymann and Kayyem wisely reject the brand of civil liberties extremism that regards our alien terrorist enemies as mere criminal defendants entitled to the full flower of civilian due process. They are also sympathetic to — albeit wary of — the need for robust presidential power to prosecute the war and acquire intelligence against a foe hellbent on attacking our homeland. And they recognize — as the academy too seldom does — that there are some demands of national security that are simply outside the competence of the civilian-justice system and better left to the military.

Nonetheless, they are often more generous to terrorists than they need to be. They recommend, for example, courts-martial for alien operatives captured in a “zone of combat.” That, surely, is preferable to civilian criminal trials; but, still, it affords mass murderers more due process than military commissions — their more Spartan entitlement under settled law.

Further, the authors' extension of American constitutional rights to alien detainees is high-minded; but — thanks largely to a position taken by the Clinton Justice Department before the Supreme Court in 1999 — the Fifth Amendment guarantee now incorporates Miranda protections. That is hardly appropriate for wartime enemy combatants.

Such debates, though, are for down the road. For now, Heymann and Kayyem perform an exceptional service: a responsible starting point for a new paradigm in a new kind of war.

Andrew C. McCarthy is a senior fellow at the Foundation for the Defense of Democracies and a National Review Online contributor.