First, let’s define the sides. When normally opposing New York Times columnists William Safire and Anthony Lewis are on the same team (along with Rep. Bob Barr), you know the old left-right distinctions aren’t so relevant to the issue. Instead, we have civil libertarians squaring off against what you might call “civil securitarians” (championed by President Bush). In the tension between liberty and security, it’s a question of emphasis.
And historical analogy. The Bush administration likes to point to the prudence of Abraham Lincoln and Franklin Roosevelt; the critics to the excesses of Woodrow Wilson and the Red Scare. Both have a point—and both should recognize that, so far, anyway, the curtailment of civil liberties has been less than in earlier major wars, but the potential ramifications could be as great or greater.
Throughout U.S. history, the most common response to threats to national security has been to clamp down on free speech: The Alien and Sedition Act of 1796 (enacted under John Adams and repealed under Thomas Jefferson) made it a federal crime to falsely criticize the government. During the Civil War, Abraham Lincoln suspended the writ of habeas corpus (which allows judges to demand that detainees be charged and tried, not just imprisoned) and threw critical Northern congressmen and newspaper editors in jail. During World War I, Congress made it a federal crime to criticize the war effort and the draft, and dissidents were jailed. At the height of the cold war in the 1950s, some people were sentenced to jail just for studying Marx and Lenin.
This time, we seem to have avoided some of the pitfalls of the past. Restricting speech, even in wartime, never yields much in terms of national security. The Alien and Sedition Acts and the McCarthyite restrictions shut down small fry who posed no real threat to anyone, and certainly not to the country at large.
In fact, stifling criticism can actually be unpatriotic because it inhibits efforts to improve the war effort (the classic example is that the only way an army gives its soldiers more boots is if pressured by the press and public opinion to do so). The exception, of course, involves not opinionizing but reporting of sensitive military information. Censorship is common in wartime (the military imposed it most recently during the Persian Gulf War) but this time—at least so far—the administration seems more focused on keeping its legitimate secrets than in punishing reporters who print or air something unflattering. Critics of the administration are being left alone, even if they are vicious and contemptuous of the war effort. That is a step forward.
The misuses of history emerge more clearly when it comes to detainees and their rights. The Bush administration points to Lincoln for justification. Attorney General John Ashcroft’s first proposed antiterrorism bill called for suspension of the writ of habeas corpus (that was rejected by Congress) and the now-famous executive order of Nov. 13 is so broad that it achieves the same end by fiat. The other precedent offered is Franklin Roosevelt’s military tribunal for eight Nazi saboteurs caught on American shores during World War II.
Both are problematic historical comparisons. Lincoln’s suspension of habeas corpus, imposed to quell insurrection in Baltimore, was widely viewed at the time as necessary but clearly unconstitutional. In 1863, Congress, which holds authority for such a suspension (in times of “rebellion or invasion”), agreed. Bush has sought no such agreement from Congress; in fact, the chairman of the House Judiciary Committee, James Sensenbrenner, told me he learned of the tribunals proposal (which he basically favors) from the newspapers.
As for FDR, his tribunal was established along narrow grounds for a narrow purpose, while Bush’s executive order gives him the power to take any of 20 million noncitizens, try them secretly and execute them before the public knows. Bush and his team say they have no intention of abusing their power, and there’s no reason to disbelieve them. But the issue is not abuse of power; it’s the claim of such power in the first place.
At the same time, if the “civil securitarians” have gone too far, some civil libertarians are living in a Sept. 10th world. The sad truth is that the threat of Al Qaeda is not like that of a few 18th-century anti-Federalists or 20th-century Marxist pamphleteers. Some restrictions on the rights of detainees will be necessary for our genuine security needs. Some kind of military tribunals are clearly in order, at least for those suspected terrorists captured in Afghanistan.
The question is what kind of restrictions and who gets to impose them. That is where history may contain a larger lesson after all. Our system, at its core, is about shared power and the “delicate balance” between the branches of government. To maintain that, Congress and the judiciary must have some role in shaping how we respond to the current threat. That doesn’t mean bringing Osama bin Laden into Judge Ito’s courtroom. But it does suggest that whatever history lessons we invoke, we should discuss them and act on them together.
