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Here is commentary from the WSJ today. Remember, the Constitution does allow for the suspension of Habeas Corpus, by Congress in times of crises. The constitution to quote Clancy in 'Executive Powers' is not a suicide pact.
COMMENTARY
In Good Company
By STEPHAN NEWHOUSE
For most Americans, Abraham Lincoln is remembered as the Great Emancipator who ended slavery in America and proclaimed "a new birth of freedom" for Americans in his immortal address delivered at Gettysburg in 1863, in the middle of the Civil War.
What is less remembered about Lincoln is that two years before Gettysburg he had been the first American president to suspend the writ of habeas corpus, that most basic of Anglo-American civil liberties wrested from King John in Magna Carta 650 years earlier, and which guarantees that citizens can't be detained indefinitely without a court appearance. Nor does his legacy usually include a whole series of other draconian curtailments of civil rights that he imposed as the American Civil War dragged on and on.
These included the military arrest, detention, and trial by military tribunals of hundreds of civilians, suppression of newspapers, confiscation of property and denial of the mails to "treasonable correspondence." In an outrageous grand finale to his extra-legal actions, Lincoln had a duly elected Ohio Congressman arrested for expressing "treasonable utterances." He subsequently ordered Congressman Clement Laird Vallandigham banished to the Confederacy.
By 1940, over a year before the United States entered WW II, Franklin D. Roosevelt had begun authorizing the wiretapping of large numbers of "persons suspected of subversive activity against the United States." In that same year, he prodded his reluctant attorney general to indict 26 pro-fascist Americans on a dubious charge of criminal conspiracy. Ultimately, in perhaps the most notorious suspension of the rights of its citizens in American history, he sanctioned the forcible relocation and detention of tens of thousand of Americans of Japanese descent. His accomplice in this outrage was the then Attorney General of California, Earl Warren, of whom we will hear more later.
Other examples of repressive zeal justified by perceived threats to the national security include the notorious Alien and Sedition Acts of 1798 which a remorseful President John Adams later called the biggest blunder of his political life, the Espionage Act of 1917, under which scores of Americans were arrested for no other crimes but intemperate speech, and, of course, the McCarthy era, which many Americans still remember but would like to forget.
What does this periodic abridgement or suspension of civil liberties, even in the most progressive and open of societies, tell us? First, that in the face of perceived mortal danger to the body politic itself, civil liberties always move to the rear of the bus, at least temporarily. Drastic circumstances require drastic action, the theory goes, and saving the nation takes preference over the niceties of civil rights. "Was it possible to lose the nation, and yet preserve the Constitution?" Lincoln queried.
Roosevelt, too, acknowledged that his actions were often extra-legal but claimed to have "the power under the Constitution to take measures necessary to prevent a disaster that would interfere with winning the war." He did not cite any specific Constitutional authority for that sweeping assertion. Both Lincoln and FDR acknowledged that their autocratic behavior was only justified in time of crises. "When the war is won," said Roosevelt, "the powers under which I act automatically revert to the people -- to whom they belong."
Where does that leave us today? First it is hard to argue that, in the intervening years, the pendulum of civil liberties has not swung pretty far in the direction of individual license. A principal architect of the swing was none other than that same Earl Warren. As chief justice, he presided over the most civil liberal Supreme Court the U.S. has ever had, presumably in expiation of previous sins.
But now comes the perception of a new threat to which this much cherished openness in the Western democracies seems to make us frighteningly vulnerable. The saga of the 9/11 terrorists nonchalantly taking flying lessons in Florida, transferring funds hither and yon -- and touring the world with impunity to meet with their co-conspirators -- would seem almost farcical if the results had not been so tragic.
The range of legitimate responses to the new "asymmetric" threat does not include detention of citizens because of their ethnic origin or religious preference. Nor does it include exiling opposition politicians or closing down critical press. On the other hand, it probably does not exclude a more intrusive intelligence and surveillance regime, search and seizure guidelines that are less punctilious, tighter enforcement of the integrity of borders, and generally less privacy than we are used to.
This is probably inevitable under the circumstances, and we need to get over it and get on with it. Concerns that the medicine may be more dangerous than the disease are, in my opinion, unfounded. The "war powers" of Lincoln and Roosevelt did not extend beyond the crises. There is no reason to believe that the measures taken in response to the present threat, while significant, will not ultimately be reasonable and, in many if not most cases, will be of limited duration. As they have always been in the past.
Lincoln asked rhetorically "Must a government, of necessity, be too strong for the liberties of its people, or too weak to maintain its own existence?" Hopefully the answer, once again, will be "no."
Mr. Newhouse is chairman of Morgan Stanley International.
Updated August 18, 2003
COMMENTARY
In Good Company
By STEPHAN NEWHOUSE
For most Americans, Abraham Lincoln is remembered as the Great Emancipator who ended slavery in America and proclaimed "a new birth of freedom" for Americans in his immortal address delivered at Gettysburg in 1863, in the middle of the Civil War.
What is less remembered about Lincoln is that two years before Gettysburg he had been the first American president to suspend the writ of habeas corpus, that most basic of Anglo-American civil liberties wrested from King John in Magna Carta 650 years earlier, and which guarantees that citizens can't be detained indefinitely without a court appearance. Nor does his legacy usually include a whole series of other draconian curtailments of civil rights that he imposed as the American Civil War dragged on and on.
These included the military arrest, detention, and trial by military tribunals of hundreds of civilians, suppression of newspapers, confiscation of property and denial of the mails to "treasonable correspondence." In an outrageous grand finale to his extra-legal actions, Lincoln had a duly elected Ohio Congressman arrested for expressing "treasonable utterances." He subsequently ordered Congressman Clement Laird Vallandigham banished to the Confederacy.
By 1940, over a year before the United States entered WW II, Franklin D. Roosevelt had begun authorizing the wiretapping of large numbers of "persons suspected of subversive activity against the United States." In that same year, he prodded his reluctant attorney general to indict 26 pro-fascist Americans on a dubious charge of criminal conspiracy. Ultimately, in perhaps the most notorious suspension of the rights of its citizens in American history, he sanctioned the forcible relocation and detention of tens of thousand of Americans of Japanese descent. His accomplice in this outrage was the then Attorney General of California, Earl Warren, of whom we will hear more later.
Other examples of repressive zeal justified by perceived threats to the national security include the notorious Alien and Sedition Acts of 1798 which a remorseful President John Adams later called the biggest blunder of his political life, the Espionage Act of 1917, under which scores of Americans were arrested for no other crimes but intemperate speech, and, of course, the McCarthy era, which many Americans still remember but would like to forget.
What does this periodic abridgement or suspension of civil liberties, even in the most progressive and open of societies, tell us? First, that in the face of perceived mortal danger to the body politic itself, civil liberties always move to the rear of the bus, at least temporarily. Drastic circumstances require drastic action, the theory goes, and saving the nation takes preference over the niceties of civil rights. "Was it possible to lose the nation, and yet preserve the Constitution?" Lincoln queried.
Roosevelt, too, acknowledged that his actions were often extra-legal but claimed to have "the power under the Constitution to take measures necessary to prevent a disaster that would interfere with winning the war." He did not cite any specific Constitutional authority for that sweeping assertion. Both Lincoln and FDR acknowledged that their autocratic behavior was only justified in time of crises. "When the war is won," said Roosevelt, "the powers under which I act automatically revert to the people -- to whom they belong."
Where does that leave us today? First it is hard to argue that, in the intervening years, the pendulum of civil liberties has not swung pretty far in the direction of individual license. A principal architect of the swing was none other than that same Earl Warren. As chief justice, he presided over the most civil liberal Supreme Court the U.S. has ever had, presumably in expiation of previous sins.
But now comes the perception of a new threat to which this much cherished openness in the Western democracies seems to make us frighteningly vulnerable. The saga of the 9/11 terrorists nonchalantly taking flying lessons in Florida, transferring funds hither and yon -- and touring the world with impunity to meet with their co-conspirators -- would seem almost farcical if the results had not been so tragic.
The range of legitimate responses to the new "asymmetric" threat does not include detention of citizens because of their ethnic origin or religious preference. Nor does it include exiling opposition politicians or closing down critical press. On the other hand, it probably does not exclude a more intrusive intelligence and surveillance regime, search and seizure guidelines that are less punctilious, tighter enforcement of the integrity of borders, and generally less privacy than we are used to.
This is probably inevitable under the circumstances, and we need to get over it and get on with it. Concerns that the medicine may be more dangerous than the disease are, in my opinion, unfounded. The "war powers" of Lincoln and Roosevelt did not extend beyond the crises. There is no reason to believe that the measures taken in response to the present threat, while significant, will not ultimately be reasonable and, in many if not most cases, will be of limited duration. As they have always been in the past.
Lincoln asked rhetorically "Must a government, of necessity, be too strong for the liberties of its people, or too weak to maintain its own existence?" Hopefully the answer, once again, will be "no."
Mr. Newhouse is chairman of Morgan Stanley International.
Updated August 18, 2003
