Wartime generates violations of civil liberties.Wartime justifies restrictions of civil liberties. So we have heard sinceSeptember 11 from people variously trying to explain or to defenddepartures from standing protections of individual rights. A historicalperspective suggests, however, that we have reason for vigilance but notfor resignation about liberty's fate--and at this point no grounds forbelieving doom is at hand.
America's wartime history is actually mixed. Four presidents--Adamsduring the undeclared war with France in 1798, Lincoln during the CivilWar, Wilson during World War I, and Roosevelt during World War II--wereresponsible for egregious violations of the Bill of Rights.
The Adams administration tried to shut down the opposition press andsucceeded in closing major Jeffersonian papers. Lincoln suspended habeascorpus and used military control of telegraph lines to impose a strictcensorship on wire-service news. Roosevelt, of course, approved theJapanese-internment camps.
The Wilson administration had the worst record. It denied the use of themails to publications that might "embarrass" the government and sent morethan 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 acrowd: "You need to know that you are fit for something better than slaveryand cannon fodder." Another socialist, Mrs. Rose Stokes, received a10-year sentence after writing a letter to the editor of the Kansas CityStar 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 AmericanProtective League made up of a quarter of a million civilians, who openedletters, wiretapped phones, and conducted such vigilante actions as raidson German language newspapers. General anti-German hysteria, encouraged bysome 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 Wartried to suppress dissent. And despite the FBI harassment of protestgroups, the response of the Johnson and Nixon administrations to theanti-Vietnam War movement was comparatively mild. After the Supreme Court's1964 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 ofearlier wartime measures. The Sedition Acts of 1798 and 1918 are nowgenerally agreed to have been unconstitutional. The anti-German andanti-Japanese measures of the world wars are now generally recognized ashaving been two of the most shameful chapters in our history.
September 11 has not changed this understanding of how America ought toconduct itself in wartime. Notwithstanding occasional remarks by thepresident's press secretary or attorney general, there has been norepression 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 11raise genuine due-process issues. But in terms of scale and harms, thedetentions scarcely bear comparison with the two closest historicalparallels, the anti-German and anti-Japanese measures during the worldwars. We have neither mass hysteria nor mass internments, and publicofficials have been quick to condemn discrimination against Muslims and ArabAmericans.
The military tribunals for trying "unlawful combatants" who are notAmerican citizens raise troubling questions. As George P. Fletcher hasargued in these pages, it seems doubtful that the president has authorityto suspend the jurisdiction of federal courts. But Congress could provideauthority for the tribunals and might do so in a more narrowly drawnstatute. It is clear that "unlawful combatants" come under awell-recognized exception to international legal protections of capturedsoldiers; the legitimate question, however, is who comes under the rubricof "unlawful combatant." Much depends on the actual use of the tribunals.
For the moment, Bush does not yet rank with Adams, Lincoln, Wilson, andRoosevelt 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 stillhas time (and John Ashcroft) to claim a portion of notoriety.
