Liberties shouldn’t die in war

Philadelphia Inquirer; Philadelphia, Pa.; Oct. 14, 2001
By Linda R. Monk

So it begins again. That age-old struggle between liberty and security has never really left us, but in peace the stakes are lower. Now we ask anew the same questions previous generations have answered: How much freedom can we survive? My husband works at the Pentagon, so the question is not hypothetical for me.

It has been easy to look back, from safety, at the mistaken choices of another time. Americans today would not allow the government to jail those who disagree with its policies, or lock their fellow citizens in concentration camps—would we? But when more lives are lost, will we care about the liberties we once had?

Congress considered these questions when it passed legislation last week expanding the government’s powers to investigate terrorism. The danger is that, in times of national crisis, “the pent-up agenda of law enforcement comes forth,” according to professor Cynthia Ward of William and Mary Law School. Such proposals may not necessarily be the best ways to fight terrorism. She also warns that not every gain for law enforcement is a loss for civil rights.

Still, based on our nation’s history, Congress should act carefully when the executive branch asks for more power during wartime. As the Supreme Court ruled in a case involving the trial of civilians in military courts during the Civil War: “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented… than that any of its provisions can be suspended during any of the great exigencies of government… The theory of necessity upon which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence.”

Of course, that decision was issued in 1866, after the Court knew which side had won. Civilians were also tried in military courts as part of martial law in Hawaii after Pearl Harbor, and the Supreme Court once again ruled that the practice was unconstitutional—but in 1946. The Court has been less likely to second-guess Congress or the president while hostilities were continuing.

Chief Justice William Rehnquist has an eerie ability to write historical books that presage a national crisis. His book on impeachments appeared only a few years before the downfall of President Clinton, and in 1998 he published a book about civil liberties in wartime entitled All the Laws but One. In it, Rehnquist quotes Abraham Lincoln, who—as the Constitution allows, though probably not to the president—suspended the writ of habeas corpus, a protection against arbitrary arrest. Lincoln asked Congress in 1861: “Are all the laws but one to go unexecuted, and the government itself go to pieces, lest that one be violated?”

Rehnquist repeats a Roman adage: Inter arma silent leges. During war, the law is silent. As Rehnquist points out, the president is likely to act to save the country during wartime and let the Supreme Court sort out the constitutionality afterward. In the words of Francis Biddle, FDR’s attorney general who opposed the internment of Japanese-Americans: “The Constitution has not greatly bothered any wartime president.”

Our war is just beginning, as President Bush continually reminds us. At the outset, it has been heartening to discover that most Americans do not believe rounding up Muslims will make us safer. Perhaps we’ve learned something in 60 years. But if more airplanes fall from the sky, if smallpox empties our cities as it decimated Native Americans 500 years ago, will we ask the president if what he did was unconstitutional? I’d like to think so, even if the query comes years later, because it’s the only question that makes us American.