Yoo: We Planned for a Mumbai Worst Case

I remember when the skies were silent after Sept. 11th. Wilmette is under one of the flight paths to O'Hare. But then I heard a fast-moving jet, and breathed a sigh of relief that our military was defending our inland airspace. This had never happened before. Who questioned the need for it then?

Legal scholar John Yoo is being pilloried in much of the MSM press now for looking at worst-case scenarios when he served in the Bush administration. Do we really want to put our trust in liberal lawyers to actually foil an attack or defuse a nuke in our cities? Isn't that what led to Sept. 11th--remember the Clinton administration legal wall that prevented heroes like John O'Neill--who died on Sept. 11th at his post in the World Trade Center--from connecting the dots and acting? Yoo in the WSJ makes the case for a vigilant and effective anti-terror strategy in our country:

Suppose al Qaeda branched out from crashing airliners into American cities. Using small arms, explosives, or biological, chemical or nuclear weapons they could seize control of apartment buildings, stadiums, ships, trains or buses. As in the November 2008 Mumbai attacks, texting and mobile email would make it easy to coordinate simultaneous assaults in a single city.

In the weeks after the Sept. 11, 2001, strikes on New York City and Washington, D.C., these were hypotheticals no more. They became real scenarios for which responsible civilian and military leaders had to plan. The possibility of such attacks raised difficult, fundamental questions of constitutional law, because they might require domestic military operations against an enemy for the first time since the Civil War. Could our armed forces monitor traffic in a city where terrorists were preparing to strike, search for cells using surveillance technology, or use force against a hijacked vessel or building?

In these extraordinary circumstances, while our military put al Qaeda on the run, it was the duty of the government to plan for worst-case scenarios -- even if, thankfully, those circumstances never materialized. This was not reckless. It was prudent and responsible. While government officials worked tirelessly to prevent the next attack, lawyers, of which I was one, provided advice on unprecedented questions under the most severe time pressures.

Judging from the media coverage of Justice Department memos from those days -- released this week by the Obama administration -- this careful contingency planning amounted to a secret plot to overthrow the Constitution and strip Americans of their rights. As the New York Times has it, Bush lawyers "rush into sweeping away this country's most cherished rights." "Irresponsible," harrumphed former Clinton administration Justice Department officials.

According to these critics, the overthrow of constitutional government in the United States began with a 37-page memo, confidentially issued on Oct. 23, 2001, which concluded that the September 11 attacks triggered the government's war powers and allowed the president to use force to counter force. Alexander Hamilton saw things differently than critics of the Bush administration. He wrote in Federalist 74: "The direction of war implies the direction of the common strength, and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority."

Congress agreed with Hamilton. Restrictions on deploying the military for domestic law enforcement (originally passed to end Reconstruction in the South) did not apply to self-defense of the nation.

Read it all.

As far as the First Amendment in time of war--does any responsible person argue with the notion that loose lips sink ships? And Yoo points out that adhering to Fourth Amendment standards would have made the Civil War unwinnable--American soldiers were fighting other American soldiers on our soil. Our safety is at stake--let's not let anti-Bush hysteria undermine honest efforts to protect Americans in their everyday lives.

Those who put their lives and their sacred honor on the line for us need to know we have their backs.