[iwar] [fc:Why.Liberty.Suffers.in.War.Time]

From: Fred Cohen (fc@all.net)
Date: 2001-09-24 07:37:42
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Date: Mon, 24 Sep 2001 07:37:42 -0700 (PDT)
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Why Liberty Suffers in War Time
By Declan McCullagh

2:00 a.m. Sep. 24, 2001 PDT

WASHINGTON -- Anyone worried about the fate of civil liberties during
the U.S.  government's growing war on terrorism might want to consider
this Latin maxim: Inter arma silent leges. 

It means, "In time of war the laws are silent," and it encapsulates the
supremacy of security over liberty that typically accompanies national
emergencies. 

Consider this: During all of America's major wars -- the Civil War,
World War I and World War II -- the U.S.  government restricted
Americans' civil liberties in the name of quelling dissent, silencing
criticism of political decisions and preserving national security. 

It's far too soon to predict what additional powers the government will
assume after the catastrophic attacks on the World Trade Center and the
Pentagon.  To their credit, many politicians have already stressed that
sacrificing liberty for security, even temporarily, is an unacceptable
trade. 

"We will not violate people's basic rights as we make this nation more
secure," said House Majority Leader Dick Armey (R-Texas).  Sen.  Max
Baucus (D-Montana) said: "This does not mean that we can allow
terrorists to alter the fundamental openness of U.S.  society or the
government's respect for civil liberties.  If we do so, they will have
won."

These statements come as Congress is deliberating a sweeping set of
proposals from the Bush administration that would increase wiretapping
of phones and the Internet, boost police authority to detain suspected
terrorists, and rewrite immigration laws.  In response, a coalition of
over 100 groups from across the political spectrum asked Congress to
tread carefully in this area last week. 

Yet history has shown that during moments of national crisis, real or
perceived, politicians have been quick to seize new authority, and
courts have been impotent or reluctant to interfere. 

1798: In July 1798, Congress enacted the Alien and Sedition Acts,
ostensibly to respond to the possible threat posed by the French
Revolution, but also in an attempt to punish Thomas Jefferson's
Republican party.  The laws made it a crime to "write, print, utter or
publish" any "false, scandalous and malicious writing or writings
against the government of the United States, or either house of the
Congress of the United States or the president of the United States."

That enraged Kentucky and Virginia.  Kentucky's legislature approved a
statement saying, "This commonwealth does upon the most deliberate
reconsideration declare, that the said alien and sedition laws, are in
their opinion, palpable violations of the (U.S.) Constitution." (An
earlier draft, relying on libertarian principles, went so far as to say
such laws were "void and of no force.")

Civil War: President Lincoln interfered with freedom of speech and of
the press and ordered that suspected political criminals be tried before
military tribunals.  Much as President Bush now is concerned with
protecting airplane safety, Lincoln wanted to preserve the railroads:
Rebels were destroying railroad bridges near Baltimore in 1861. 

Probably Lincoln's most controversial act was suspending the writ of
habeas corpus, a safeguard of liberty that dates back to English common
law and England's Habeas Corpus Act of 1671.  A vital check on the
government's power, habeas corpus says that authorities must bring a
person they arrest before a judge who orders it. 

The U.S.  Constitution says: "The privilege of the writ of habeas corpus
shall not be suspended, unless when in cases of rebellion or invasion
the public safety may require it." But Lincoln suspended habeas corpus
without waiting for Congress to authorize it. 

Lincoln's decision led to a showdown between the military and United
States Chief Justice Roger Taney.  After the U.S.  Army arrested John
Merryman on charges of destroying railroad bridges and imprisoned him in
Fort McHenry, Merryman's lawyer drew up a habeas corpus petition that
Taney quickly signed. 

When the Army refused to bring Merryman before the high court, Taney
said the U.S.  marshals had the authority to haul Army General George
Cadwalader into the courtroom on contempt charges -- but Taney would not
order it since the marshals would likely be outgunned.  Instead, Taney
protested and called on Lincoln "to perform his constitutional duty to
enforce the laws" and the "process of this court."

This was a controversial decision: The New York Times described Taney's
decision the next day as one that "can only be regarded as at once
officious and improper."

World War I: Soon after declaring war on Germany and its allies in 1917,
Congress banned using the U.S.  mail from sending any material urging
"treason, insurrection or forcible resistance to any law."

It punished offenders with a fine of up to $5,000 and a five-year prison
term, and the government used this new authority to ban magazines such
as The Nation from the mail. 

President Wilson asked Congress to go even further: His draft of the
Espionage Act included a $10,000 fine and 10 years imprisonment for
anyone publishing information that could be useful to the enemy.  The
House of Representatives narrowly defeated it by a vote of 184-144. 

Even without Wilson's proposals, the Espionage Act gave birth to a
famous civil liberties case: U.S.  v.  Charles Schenck.  The Supreme
Court unanimously upheld his conviction for printing leaflets that urged
Americans to resist the draft. 

The justices ruled: "When a nation is at war, many things that might be
said in time of peace are such a hindrance to its effort that their
utterance will not be endured so long as men fight and that no court
could regard them as protected by any constitutional right."

While there were no trials before military tribunals, the Justice
Department unsuccessfully asked Congress to enact a law -- punishable by
death -- that would have authorized such trials for anyone "interfering
with the war effort."

World War II: Civil liberties groups recently have repeatedly offered
reminders of the internment of Japanese immigrants and their children in
walled camps in the aftermath of Pearl Harbor. 

In Executive Order 9066, President Roosevelt authorized the military to
remove Japanese-Americans from America's west coast, home to many
military bases and manufacturing plants -- and viewed at the time as
vulnerable to Japanese attack.  In a remarkable silence, the American
Civil Liberties Union did not object to the internment camps until years
later. 

A collection of challenges to the internment camps found their way to
the U.S.  Supreme Court.  In a brief supporting the camps, the states of
Washington, Oregon and California noted that Japanese submarines had
attacked oil platforms at Santa Barbara, California, the town of
Brookings, Oregon, and a gun installation at Astoria, Oregon.  On June
7, 1942, the brief said, the Japanese had invaded North America by
occupying some Aleutian islands. 

In its response, drafted by Chief Justice Harlan Stone in 1943, the
court ducked the constitutionality of internment camps, ruling only on a
related curfew requirement. 

The justices upheld the action: "Whatever views we may entertain
regarding the loyalty to this country of the citizens of Japanese
ancestry, we cannot reject as unfounded the judgment of the military
authorities and of Congress that there were disloyal members of that
population."

Some of America's most respected legal thinkers, while saying that the
government went too far in World War II, say that some erosion of
freedom in wartime is necessary. 

"There is no reason to think that future wartime presidents will act
differently from Lincoln, Wilson or Roosevelt, or that future justices
of the Supreme Court will decide questions differently from their
predecessors," William Rehnquist, chief justice of the United States,
wrote in a book published in 1998. 

"It is neither desirable nor is it remotely likely that civil liberty
will occupy as favored a position in wartime as it does in peacetime,"
Rehnquist wrote in All the Laws But One. 

The 100-plus groups whose representatives gathered at the National Press
Club on Thursday aren't quite so certain.  In a statement posted on a
new website, In Defense of Freedom, they say: "We need to ensure that
actions by our government uphold the principles of a democratic society,
accountable government and international law, and that all decisions are
taken in a manner consistent with the Constitution."

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