Liberty Since 9-11

Wartime generates violations of civil liberties.
Wartime justifies restrictions of civil liberties. So we have heard since
September 11 from people variously trying to explain or to defend
departures from standing protections of individual rights. A historical
perspective suggests, however, that we have reason for vigilance but not
for resignation about liberty's fate--and at this point no grounds for
believing doom is at hand.

America's wartime history is actually mixed. Four presidents--Adams
during the undeclared war with France in 1798, Lincoln during the Civil
War, Wilson during World War I, and Roosevelt during World War II--were
responsible for egregious violations of the Bill of Rights.

The Adams administration tried to shut down the opposition press and
succeeded in closing major Jeffersonian papers. Lincoln suspended habeas
corpus and used military control of telegraph lines to impose a strict
censorship on wire-service news. Roosevelt, of course, approved the
Japanese-internment camps.

The Wilson administration had the worst record. It denied the use of the
mails to publications that might "embarrass" the government and sent more
than a thousand critics of the war to jail. The socialist leader Eugene V.
Debs received a 10-year prison sentence for a speech in which he told a
crowd: "You need to know that you are fit for something better than slavery
and cannon fodder." Another socialist, Mrs. Rose Stokes, received a
10-year sentence after writing a letter to the editor of the Kansas City
Star
in which she said: "No government which is for the profiteers can
also be for the people." Not satisfied, President Wilson sent a note to the
attorney general asking whether the government might also prosecute the
editor who allowed the letter to be published.

Even more insidiously, the Wilson administration organized an American
Protective League made up of a quarter of a million civilians, who opened
letters, wiretapped phones, and conducted such vigilante actions as raids
on German language newspapers. General anti-German hysteria, encouraged by
some public officials, resulted in mob violence, including lynchings.

But not all wars have occasioned repression and hysteria.
Neither Madison during the War of 1812 nor Polk during the Mexican War
tried to suppress dissent. And despite the FBI harassment of protest
groups, the response of the Johnson and Nixon administrations to the
anti-Vietnam War movement was comparatively mild. After the Supreme Court's
1964 decision in New York Times Co. v. Sullivan, the right to
criticize public officials was more firmly established than it had ever been
before.

Recent decades, moreover, have seen a widespread public repudiation of
earlier wartime measures. The Sedition Acts of 1798 and 1918 are now
generally agreed to have been unconstitutional. The anti-German and
anti-Japanese measures of the world wars are now generally recognized as
having been two of the most shameful chapters in our history.

September 11 has not changed this understanding of how America ought to
conduct itself in wartime. Notwithstanding occasional remarks by the
president's press secretary or attorney general, there has been no
repression of dissent comparable to the measures adopted by Adams, Lincoln,
and Wilson. The First Amendment survives.

The detentions primarily of people of Arab descent following September 11
raise genuine due-process issues. But in terms of scale and harms, the
detentions scarcely bear comparison with the two closest historical
parallels, the anti-German and anti-Japanese measures during the world
wars. We have neither mass hysteria nor mass internments, and public
officials have been quick to condemn discrimination against Muslims and ArabAmericans.

The military tribunals for trying "unlawful combatants" who are not
American citizens raise troubling questions. As George P. Fletcher has
argued in these pages, it seems doubtful that the president has authority
to suspend the jurisdiction of federal courts. But Congress could provide
authority for the tribunals and might do so in a more narrowly drawn
statute. It is clear that "unlawful combatants" come under a
well-recognized exception to international legal protections of captured
soldiers; the legitimate question, however, is who comes under the rubric
of "unlawful combatant." Much depends on the actual use of the tribunals.

For the moment, Bush does not yet rank with Adams, Lincoln, Wilson, and
Roosevelt among the great wartime trespassers of the Bill of Rights. But,
then, he doesn't rank with them in other respects as well--though he still
has time (and John Ashcroft) to claim a portion of notoriety.

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