Watch out for the fear of fear itself

“Lacking the military strength to challenge us directly, the terrorists have chosen the weapon of fear.”

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“If there are people inside our country who are talking with al-Qaida, we want to know about it – because we will not sit back and wait to be hit again.”

The two quotes from President Bush’s State of the Union speech are bookends of a meditation on fear and its uses. They are not subtle because they are not meant to be. The first recognizes that not knowing when or where an enemy is going to strike is part of the terror; the second argues that your small fears about any loss of privacy are secondary to the big fear above.

With Osama bin Laden still loose, if not exactly free, al-Qaida’s ability to strike worldwide and American troops tied down in Iraq, being fearful of another attack against the United States is certainly reasonable. Staying out of subways and off airplanes would be a little overboard, but added security at borders and ports of entry seems like a real good idea. George Bush appropriately spends considerable time on security issues.

When democratic nations shape their own liberties, self-interest suggests they often guard against the more immediate fear, not necessarily the more damaging one. If a threat to privacy seems imminent, privacy will be protected, perhaps even to the extent that intelligence gatherers miss needed information. That’s why the administration should be so careful to prevent smaller, though certainly important, fears such as the chilling of speech from being set in opposition to the bigger fear of terrorism.

Yet there was the FBI last September looking into an e-mail from members of the Maine Coalition for Peace and Justice, who apparently were trying to solve the paradox of organizing anarchy by urging adherents to attend the Million Worker March the following month in Washington. “Calling all anarchists!” their e-mail read. “Come all who toil in factories, farms, hotels, houses, stadiums, convenience stores, kitchens, cubicles and sweatshops everyday to make ends meet.”

Stadiums?

Anyway, the FBI, as the Maine Civil Liberties Union recently discovered, now has a copy of that e-mail in a file, and if the e-mailers repeat whichever of the phrases that attracted federal attention to the first e-mail, that file may grow larger. This is a post-9/11 reversion – keeping track of what Americans were saying was a habit of J. Edgar Hoover. The benefit of the FBI establishing this file and thousands like it is beyond me, but it is troubling for a couple of reasons.

The first is that the people directly affected and those around them may temper their speech not because they have changed their minds on capitalism or stadiums, but because they conclude those words will later be used by the government against them. But the spying is also troubling for the fight against terrorism: FBI surveillance of the group can create a fear of speaking out seem more real and therefore more important than the potential of another attack.

A larger instance of this is the president’s order to the National Security Agency to conduct warrantless wiretapping. Bush claims to have the approval of Congress, through the statutory Authorization for the Use of Military Force (AUMF). That act tells the president to use “all necessary and appropriate force” to take on the terrorists militarily. The administration argues that this supersedes the Foreign Intelligence Surveillance Act, which sets restrictions on warrantless electronic surveillance.

But there’s no language in the AUMF saying it overrules FISA. Both Maine Republican Sens. Olympia Snowe and Susan Collins say it wasn’t their intention in voting for AUMF to give the president that authority.

Whether the president has constitutional authority may be up to the Supreme Court – yes, that court now brushing up on the theory of the unitary executive. In the past, the court has said Fourth Amendment freedoms can’t be left entirely to the executive branch, so presidents needed probable cause and a warrant for a search. The Justice Department vigorously opposes that, letting the nation in for a splendid civics lesson when the issue is fought out beginning Monday before the Senate Judiciary Committee.

But whether the president is correct or the Left gets a new installment in its impeachment dreams, the fact the administration did not secure from Congress specific approval for such a program, however cloaked to keep it secret, allows an already distrusting segment of the public to imagine the worst.

And when the president says to trust him, that he wants to know about only al-Qaida phone calls, the small, real fears emerge.

Todd Benoit is the editorial page editor of the Bangor Daily News.