In the immediate aftermath of 9/11, most Americans wanted to fight the terrorists and the regimes that aided them. Even before that year ended, however, some voices warned that the impulsive, reckless policies of the Bush Administration would ultimately pose more of a danger to Americans and their way of life than the terrorists and their allies: We were, according to such critics, falling into the trap that clever terrorists always set, conspiring unwittingly in our own undoing. That opinion has gained ground as the shock of the initial terror attacks has receded. It is an opinion that owes far less to actual incursions on domestic liberties, however, than to insinuations and second thoughts about whether we need to be “at war” at all.
It is certainly possible to endorse a war while criticizing its conduct abroad and its policy repercussions at home. Such distinctions are not inherently illogical. But almost invariably, the loudest protests against wartime abuses come from those who reject the war in the first place. The fiercest critics of President Lincoln’s war measures were the Copperheads, who opposed from the outset the effort to coerce the South by force of arms. The most outspoken critics of Cold War measures were those who dismissed the notion that communists or communism could threaten American security. And so it is with the War on Terror.
The current war has stimulated some measures that might be questioned in peacetime. They look altogether intolerable to those who reject the need for war. On the other hand, those who accept a “war” policy in current circumstances often hesitate to criticize particular security measures lest such criticism undermine general support for the war. It is hard in this setting to sort out competing claims about domestic security measures of the Bush Administration. The debate almost immediately shifts from actual experience to generalized claims about the Administration’s posture in the world. After years of debate about the supposed excesses of the Patriot Act, for example, critics in Congress acquiesced earlier this year to its re-enactment with only minor changes. The Patriot Act seems to have been not so much a source of dispute in itself as a symbol of some wider, more amorphous complaint.
Several points about this larger debate do seem reasonably clear, however. The first is that, compared with our experience in past wars, the current war has been quite mild in its impact on domestic civil liberties. In World War II, the Federal government incarcerated more than 120,000 Japanese-Americans, including women, children and old people—all of them long-standing residents and most of them either citizens or immediate relatives of citizens. These unfortunates were held behind barbed wire in excess of two years, and the Supreme Court endorsed the practice essentially on the say-so of the President.
After 9/11 fewer than five thousand people were rounded up. All of them were aliens, almost all recent arrivals and unmarried males of suitable age for combat or terror operations. They were all released within a few weeks. Today’s true legal counterpart of Korematsu, the 1943 case endorsing the mass detention of Japanese-Americans without any sort of due process, is the case of José Padilla—one person, who is now to be tried before an ordinary civilian court (though admittedly after years of military detention without trial or formal charges).
The same pattern holds regarding freedom of speech. In the Civil War, President Lincoln authorized military trials for antiwar agitators. He deployed the army to shut down an antiwar newspaper in New York and to suppress anti-conscription riots
there. There was comprehensive official censorship during World War I and a Federal program to coach state universities on proper wartime curricula. The Cold War saw American Communist Party leaders prosecuted for conspiring to incite unspecified acts of disloyalty in unspecified future circumstances. The House Un-American Activities Committees hounded left-wing screenwriters. Some were ultimately sentenced to prison terms for refusing to testify about possible decades-old communist affiliations of associates in the movie industry. Yet the angriest charge against the Bush Administration is that it has used rhetoric that puts its critics on the defensive, as by ostensibly improper allusions to the 9/11 victims.
So, too, with surveillance. There was a great uproar when it was revealed at the end of 2005 that the Bush Administration had, without proper judicial warrants, monitored phone calls between al-Qaeda suspects overseas and individuals in the United States. Yet President Roosevelt invoked national security to authorize wiretaps on domestic phone calls of suspicious individuals more than a year before the United States entered World War II. The practice continued during the Cold War. It was not until the late 1970s, amid revelations of abusive FBI surveillance activities, that Congress even attempted to regulate such practice with the Foreign Intelligence Surveillance Act.
In the recent dispute about when FISA procedures apply, a second point stands out: Even though the government is acting with greater restraint than in past wars, the clamor about threats to civil liberties is louder today because we now hold the government to higher standards. What critics now regard as outrageous was once regarded as more or less standard practice.
There are often good reasons for moving the goal posts in such ways. Past abuses prompt greater cautions in succeeding generations. No one wants to repeat Cold War abuses. J. Edgar Hoover himself cautioned during World War II against repeating the excesses committed by the Wilson Administration in World War I. Sometimes new technology raises new issues, as with the NSA surveillance systems that today allow immensely powerful computers to monitor vast volumes of telephone and Internet communication without direct human “listening.”
Still, in an era in which so much constitutional debate proceeds on the basis of evolving standards, this particular debate has become disorienting. Those most indignant about threats to the Constitution tend to appeal not to traditional standards but to those that are recent or even heretofore unheard of. Over the past few years, for example, some of America’s most dis- tinguished law faculties have endorsed the claim that law schools have a First Amendment right to exclude military recruiters from their job fairs without forfeiting Federal funds, as current law requires. When the Supreme Court rejected this argument earlier this year, not a single justice offered so much as a sympathetic nod to this strange new constitutional theory. The harshest critics of constitutional abuses tend to be those who, in other contexts, champion the theory of a “living Constitution”, one whose provisions are never quite settled. It is hard not to violate a “constitution” that keeps expanding in this way.
A third point follows from the second: Debates about civil liberties in wartime have now expanded to embrace standards
regarded as global in scope, supposedly binding on America because they are “international law.” Thus has a vast amount of debate centered on the treatment of captured terrorists at Guantánamo: Are they treated in accord with the Geneva Convention? Are they being interrogated in ways prohibited by the UN Convention Against Torture? Is the Bush Administration’s disdain for these accepted international standards a threat to America’s global leadership? Does the Administration’s stance threaten Americans at home who rely on the protections of law?
The last question, though insistently posed by many critics, has scarcely anything to do with the others. The five hundred or so detainees in Guantánamo were taken to that naval base in the Caribbean precisely because it is not, technically, American soil. No American court had ever presumed to question U.S. military actions outside the United States. The Supreme Court had specifically repudiated such interference in a 1950 case about war prisoners held by the U.S. military in occupied Germany. The Court’s exceedingly narrow, divided ruling in Rasul v. Bush in 2004 has left most questions about the status of Guantánamo detainees open, but assures that domestic courts will now, for the first time, have some role in monitoring external military actions. Some justices have indicated both in concurring opinions and in off-the-bench speeches that U.S. courts should indeed consider whether international standards have been properly applied in these settings. That would be another great novelty: No U.S. court has ever before presumed to judge military compliance with the Geneva standards. But many legal advocates now insist that the Court reassure foreign skeptics and domestic critics that even overseas the U.S. military will follow what judges can certify as prop- er legal standards.
One can certainly argue that extreme brutality, even toward foreign prisoners in wartime, has a corrosive effect on military discipline, and that it may ultimately have poisonous moral consequences for any society that sponsors or tolerates such practices. But surely a lot depends on context. Stephen Ambrose’s book about a company of paratroopers in World War II, Band of Brothers, reports that patrols were sent out behind enemy lines to capture low-ranking German soldiers whom American interrogators would then shoot or threaten to shoot to make others reveal information about enemy positions. It did not occur to Ambrose, author of many works on American military history, to denounce this tactic or to depict it as aberrant. Nor did the producers of the HBO mini-series based on the book feel obliged to suppress this unpleasant fact of history. Neither Ambrose nor his Hollywood adaptors even bothered to incorporate an acknowledgement that such tactics were in violation of the Hague Conventions and the applicable Geneva Convention at the time.
If one takes the idea of war seriously enough, one risks excusing almost anything in the interest of victory. That is the charge hurled most insistently at John Yoo, a professor of law at Berkeley who served as a top advisor in the Department of Justice in George W. Bush’s first term. Yoo’s internal memos, subsequently leaked by an Administration once thought to be strongly averse to leaks, have been denounced as authorizing torture and encouraging disregard of law. Now Yoo has published an academic study, Powers of War and Peace: The Constitution and Foreign Affairs Since 9/11. The book, however, says almost nothing about the convention against torture or the detentions at Guantanamo, and even less about domestic civil liberties. Instead, Yoo pursues seemingly legalistic questions about the separation of powers: Who decides when and whether the United States is at war? Who decides when and whether the United States is still bound by international treaties? Yoo argues that the Founders saw decisions about the resort to war just as they saw decisions about repudiating treaties as inherently an Executive branch prerogative. The power given to Congress to “declare” war simply entails the authority to announce a formality rather than control the strategic decision. Congress retains ultimate authority because it can finally deny funds to any presidential initiative, but the president retains broad powers of initiative in foreign affairs.
Conventional legal scholarship has run strongly in the other direction since the Vietnam War. But Yoo makes a very strong case for his interpretations based on the British practice familiar to the Framers, on what defenders of the Constitution said in ratification debates, and on what their opponents did not say. An honest reading of American history suggests that most past presidents have tacitly assumed the correctness of Yoo’s constitutional constructions.
Still, the ultimate point at issue is not historical but philosophical. If one thinks that Congress is supposed to have the first word about the resort to war as well as the last, then one thinks that war must be, generally speaking, a legislative decision that we can adopt or reject like a tax cut. To think that, one must suppose that the world is fundamentally peaceful or at least that the United States is fundamentally at peace with the world, with conflict a rare and discretionary exception. Such a supposition makes it easy to embrace the notion of an international legal system that covers even the conduct of war in its smallest details. One can then suppose that such standards have great authority, even if some of the combatants in a conflict ignore them altogether, because the world remains in some way governed by a fine mesh of legal standards. Many advocates certainly want to live in a world of this kind. It happens, however, not to be the world in which we actually live.
Legal standards have value to the extent that they can be sustained. It does not promote law to ground it on merely wishful or fanciful premises. A proposal for law on such premises is offered in Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism, a recent book by Yale law professor Bruce Ackerman. Ackerman acknowledges that terror attacks may indeed require emergency measures. He thinks, however, the responses of the Bush Administration were “disasters” for law and civil liberties because they have not been checked by adequate constraints. So Ackerman advocates a new scheme under which Congress could authorize suspensions of civil liberties for brief periods after an attack, but could only renew such emergency pro- visions contingent on successively higher majorities within Congress. Nothing in the Constitution warrants requiring Congress to abide by supermajority requirements in this way, but Ackerman argues that the courts could nonetheless enforce something of the kind if Congress accepted the basic scheme.
Those who are familiar with Ackerman’s work will not be surprised by this suggestion. He is best known for arguing that the Constitution can be amended not only by the formal process set out in Article V, but also by an informal political “process”: When a contested new approach to the Constitution is defended by a political party or administration and the voters return them to office, that provides endorsement for the new approach. Ackerman’s favorite example is, of course, the New Deal. He may now expect that his own constitutional doctrines will be ratified by voters in future elections. Ackerman is the quintessential cheerleader for a “living Constitution”, stimulated by growth hormones slipped to it by attentive law professors.
Several times in Before the Next Attack Ackerman insists that we do not now face an “existential threat” comparable to that posed by Germany and Japan in the 1940s, and so we cannot now justify such significant abridgement of civil liberties in response. But was Germany really going to land an army in New England, or the Japanese in California? Was a German victory parade in Washington ever more likely than a mass-casualty terror attack today on an American city? No matter: If one wants to advance uniquely high standards of protectiveness toward supposed threats to civil liberties, it is easier to pretend that World War II was a unique exception and that the current war is more like the Cold War, when law professors could insist that the enemy was a figment of the imagination of McCarthyite demagogues.
I concede that war is always a potential threat to civil liberties. But so is defeat in war. Forced to choose between the risk of domestic abuses and the risk of defeat in war, most Americans will not harp on domestic legal standards. It is reasonable to worry about government excesses. It is escapist to pretend, at a time when terrorists plot new assaults on American cities, that our own government is the greatest threat to our security.