Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism
by Geoffrey R Stone
A review by Stephen Holmes
To help us grope our way through the perilous present, Geoffrey R. Stone, a leading
authority on the First Amendment, has produced a rich and readable overview of
America's curtailment of civil liberties in wartime. He focuses primarily, but
not exclusively, on restrictions of freedom of speech, examining in engrossing
detail six historical episodes: the Sedition Act of 1798, the Civil War, World
War I, World War II, the Cold War, and Vietnam. He appends a brief discussion
of civil liberties after September 11, but his real contribution to the study
of the ongoing war on terror is this book as a whole. For each episode, as Stone
retells it, speaks in one way or another to painful issues of the present day.
His general conclusion is that "the United States has a long and unfortunate history
of overreacting to the perceived dangers of wartime." He hopes that a bit of self-knowledge
will inspire us to do better this time around.
Political dissent has been criminalized in the United States only when foreign powers have threatened our national security. This exception implies, disturbingly yet understandably, that the United States has two constitutions, one for peace and one for war. Since our enemies will not always fight by the book, it would be suicidal to insist that our leaders adhere punctiliously to pre-established rules when reacting to foreign threats: the executive's discretionary power to respond flexibly to unpredictable attacks is justified. But it is also dangerous. Its potential for abuse became apparent as early as the sedition trials at the end of the eighteenth century, which is where Stone begins his story. The incumbent Federalist Party used the threat of war with France as a pretext to discredit its Republican rival in the run-up to the election of 1800. Trumping up an alarm of danger, as their adversaries vividly charged, the ruling Federalists treated pungent criticisms of President John Adams as if they were treasonable assaults on the very nation.
Historical precedents for wartime abuse of executive power are simultaneously reassuring and unsettling. On the one hand, they suggest that we have survived bouts of unconstitutionality before. On the other hand, they imply that deviations from the Constitution are just what we should expect. Writing as a historian, Stone aims to explain how legal doctrines and practices have buckled under the pressure of violent political events. But he never lets post-September 11 America drift far out of sight. In his first chapter, for instance, he reminds us that the incumbent Federalists, between 1798 and 1800, relentlessly accused their partisan rivals of underestimating the foremost foreign menace and even, as closet Jacobins, of being ready to hand their country over to the French. At the time, admittedly, the judiciary was stacked with judges belonging to the president's party, and they cooperated readily in the campaign to shut down opposition newspapers and to choke off criticisms of the administration and its policies. So the intriguing analogy to the present remains to some extent imperfect.
Imperfect, but still illuminating. The Alien and Sedition Crisis is not our crisis, but it reminds us helpfully that we are far from being the first Americans to interpret foreign dangers through the distorting prism of party politics. Indeed, this seems to be the rule rather than the exception. When severely criticized by partisan rivals, previous incumbents, too, have inflated foreign threats and invoked the honor of the troops in the field in order to silence embarrassing criticisms of administration policy. Not war only, but even the threat of war, may entice a sitting president into slurring opposition politicians with intimations of disloyalty. Citing foreign dangers as a pretext to silence domestic competitors may have unfortunate consequences for the nation--not only may an alleged threat, upon inspection, prove to be exaggerated or imaginary, but, as rudimentary First Amendment theory instructs, censorship also stupefies the citizenry. Albert Gallatin, leader of the House Republicans at the time, was an early and spirited proponent of this view. He remarked, in response to the sedition trials, that clampdowns on freedom of speech and the press "prevent the diffusion of knowledge" and "throw a veil on the folly" and the "crimes" of the government. The outlawing of dissent, whatever the excuse, undercuts public reason as well as private rights.
Formulated differently, the curtailment of freedom of speech and the press under the threat of foreign war weakens the country by depriving citizens of their inalienable right to examine and to judge their government. A more grievous injury to the Constitution is difficult to imagine, for this political right is the guardian of all private rights. The issues involved here are ramifyingly complex. But already in his first chapter Stone dispels a basic confusion afflicting contemporary discussions. Others have expressed discomfort with the notion that the war on terror requires us to sacrifice liberty for security: the alleged causal relation between reduced liberty and increased security seems highly speculative, for one thing. But Stone, because he is focusing on the First Amendment, takes this objection a step further. How much sense does it make, he implicitly asks, to sacrifice the critical understanding of government action for the sake of security? To redescribe the proposed trade-off in these striking terms is to draw much-needed attention to the potential, not to say actual, conflict between the interests of today's incumbents and the interests of the country as a whole.
Only after the Civil War, in the celebrated case of Ex parte Milligan
in 1866, did the Supreme Court deny that the government could resort to military
commissions on American territory to try alleged civilian conspirators during
war or rebellion when the ordinary courts were open and functioning. Writing
for the majority, Justice David Davis famously declared that the Constitution
is the law of the land "equally in war and in peace," and that "the great exigencies
of government" do not free the executive branch from "any of its provisions."
The Bill of Rights, in other words, is not "silent among arms."
This is an inspiring piece of idealism, often cited by opponents of the Bush administration's resort to military tribunals. But as Stone shows, it is somewhat misleading as a statement of fact. Lincoln's suspension of habeas corpus, for instance, carried out in open defiance of Chief Justice Roger Taney, would have been unthinkable in peacetime. It was one of the principal measures his partisan opponents cited when accusing him of trying to dismantle traditional American liberties. And Lincoln, for his part, manifestly believed that the letter of the Constitution could be violated in a state of emergency, though not in ordinary times, to preserve the Union and the safety of the people. Among the practices that he explicitly approved was trial by military commissions of civilians accused of "discouraging voluntary enlistments," that is, of seriously weakening the Union's capacity to preserve itself militarily.
The most rabid conflicts over freedom of expression in American history, Stone's book suggests, arose in the context of drafting soldiers for dangerous service in controversial wars. This is perfectly natural, since military conscription tests the outer limits of liberalism. The liberalism of individual rights and due process of law is invariably weakened by the collective discipline and discretionary authority of wartime mobilization. War allows the government to sacrifice the lives of individual conscripts for the sake of group security as defined by the party that happens to be wielding political power. After a war is declared, those who do not believe that the alleged threat is sufficiently grave and imminent to warrant the deployment of military force are not granted footloose freedom to withhold their participation. They are instead compelled to bend their private wills to the incumbent's interpretation of the danger at hand.
This potentially fatal subordination of individual lives to collective purposes, defined by the officeholders of the moment, has deep, even primordial origins. The drill and discipline of its military, that is, the "constitution" of the force that protects inhabitants from foreign predators and marauders, is fundamental to the survival of any society. And the first rule of such an Ur-constitution is the right of the military leadership to execute deserters. Without such a power, it was long believed, no army could be maintained in the field; and whoever wills the end must will the means.
But is censorship of political speech a necessary and permissible means to raising armies and keeping them afoot? Communications between Lincoln and his distant military commanders were slow and sporadic. Thus, as Stone emphasizes, Lincoln's officers sometimes acted on their own initiative without the president's foreknowledge. At various points, they forced opposition newspapers to close, and they inflicted criminal punishments on critics of the president and the war. Attempting to justify the silencing of anti-draft publicists, a repressive measure of which he did not necessarily approve, Lincoln asked memorably: "Must I shoot the simple-minded soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert?" The underlying logic here draws attention to the tight connection, which resurfaces in Stone's accounts of World War I and Vietnam, between restrictions on freedom of speech and the greatest of all "infringements" of civilian liberty, namely, the compulsory consignment of young male citizens to the slaughterhouse of battle.
As the Civil War's death toll soared, enrollment officers were harassed and even murdered, and anti-draft riots spread across the North. All this cried out for a forceful response. Even before the Emancipation Proclamation, antiwar sentiment was closely associated with racism. Opponents of the draft acrimoniously inquired: why should white boys be forced to die for the freedom of blacks who will afterward move north to steal white jobs? Thousands of allegedly disloyal individuals residing within the Union were taken briefly into military custody for inciting rebellion and expressing sympathy with the Confederacy. At stake, however, was not merely freedom of speech or the government's authority to silence those who publicly cast doubt on the justice of the Union cause. The issue was more basic and cut deeper: what sort of constitutional limits can and should be placed on the incumbent president's right to decide that a given threat is so grave and imminent that thousands of conscripts must lose their lives to beat it back?
An additional point should be made about habeas corpus. That Lincoln suspended the writ is less interesting, from today's perspective, than his reasons for doing so. The Union cause was seriously jeopardized, Stone explains, by disorder and opposition in the border states abutting the nation's capital, especially in Maryland. The Constitution provides for the right, during invasions or rebellions, to suspend the writ of habeas corpus, whereby the executive branch is ordinarily compelled to explain before an independent judge its grounds for holding a prisoner. (Whether the right to suspend the writ belongs to the president or to Congress has been a matter of dispute.) Insurrectionary activity in Maryland, including bridge-burning, was putting at risk transportation links between Washington, D.C. and the North. After murderous clashes between Union troops and Baltimore mobs, Lincoln suspended habeas corpus, reasoning that the government was faced not with hundreds of ordinary crimes, but rather with mass rebellion. As Stone paraphrases the position of Lincoln's supporters: "the rebellion involved treasonable activity on so vast a scale that the ordinary criminal process was simply inadequate to deal with the situation."
Yes, the courts were still open; but they would not have been able to handle large numbers of rioters. Moreover, conditions of rebellion did not lend themselves to the gathering of evidence or the taking of testimony, let alone conviction by a jury drawn from the accused's own state and district as the Sixth Amendment requires. If rioters were brought before civilian judges, they would in all likelihood have been released, only to replenish the rebellion. Lincoln justified his decision, therefore, by arguing that "men may be held in custody whom the courts, acting on ordinary rules, would discharge," especially if they are freed a few months later when the momentary danger has passed.
It is again worth stepping back to ask what light this historical episode might cast upon the current war on terror. Lincoln's thinking differs instructively from the reasoning of Bush's apologists and lawyers today. The latter typically argue that ordinary due-process rules can be suspended in cases such as that of Jose Padilla, the alleged dirty bomber. He is no ordinary criminal, they stipulate, but rather an unlawful combatant in an unprecedented global conflict. But Lincoln contrasted ordinary crime not to a clandestine war but to an open rebellion. This makes a difference. In a technical legal sense, not worth discussing here, Bush did not actually suspend habeas corpus in Padilla's case; but he did so for all practical purposes. In any case, Bush's attorneys worked hard to deny Padilla his constitutional right to due process. But they could not, like Lincoln, claim that the sheer number of potentially treasonous offenders was soon likely to exceed what ordinary courts could process. They could not honestly cite as a precedent Lincoln's suspension of habeas corpus to safeguard the transport of Union troops through territory verging on rebellion. Rioters taken into custody during (in Lincoln's words) "sudden and extensive uprisings against the Government" could easily have overtaxed the criminal justice system. The same cannot be said about the one or two American suspects kept by Bush out of ordinary civilian courts.
Stone labels the Sedition Act of 1918 "the most repressive legislation
in American history." It outlawed "conspiracy to publish disloyal material intended
to obstruct the war and cause contempt for the government of the United States."
This draconian legislation was, as Stone's reader will now expect, a product
of war and the intense emotional identifications spawned by life-and-death struggles
between political communities. Woodrow Wilson dealt harshly with what he called
"the poison of disloyalty." Since they were allegedly promoting contempt for
the government and disaffection among the troops, antiwar groups had to be silenced.
Healthy or harmless in peacetime, political disagreements among Americans had
to be quashed lest they boost the morale of foreign foes.
Censorship may be a perfectly sincere expression of respect. To gag speakers is to acknowledge that speech is powerful, that a single word may kindle an all-engulfing flame. Calls for a general strike might conceivably have been taken up, disabling the American war machine. With such apprehensions in mind, the government prosecuted and convicted Eugene V. Debs for publicly stating, among other things, that the rich were shipping poor soldiers to their deaths for crass commercial gain. One unfortunate film-maker was sentenced to ten years in prison for accurately portraying British brutality toward Americans during the Revolutionary War and thereby presumably jeopardizing America's World War I alliance with Great Britain. The bare mention of war profiteering was considered tantamount to treason. Many who denied that Germany's submarine warfare against England posed a grave threat to American security, as Stone mentions, were of German or Irish ancestry. That is to say, political disagreements about the imminence and the gravity of a foreign threat expressed underlying ethnic cleavages. This dispute was resolved in the usual manner: the holders of public office prevailed.
Judges, including two of the most distinguished justices on the Supreme Court, Oliver Wendell Holmes and Louis D. Brandeis, at first acquiesced in Wilson's personal intolerance for criticism and proclivity for repressive solutions. They produced, in their wartime decisions, what Stone calls "dismal precedents that took the nation half a century to overcome." In one famous case, on behalf of a unanimous Supreme Court, Holmes wrote that the First Amendment creates no constitutional right to say anything that encourages mutiny, hinders the war effort, or impedes the raising of armies. Such holdings were not exactly monuments to liberalism.
But neither were they gross anomalies. In wartime, judges have a hard time balancing individual rights against government interests. They are unfavorably positioned to second-guess the executive's diagnosis of government interests under emergency conditions. They lack independent sources of information to help them verify or falsify the executive's assessment of foreign threats. How can they possibly decide if allegations of military necessity are valid or not? Moreover, as William O. Douglas later wrote of the American judiciary, "Its members are very much a part of the community and know the fears, anxieties, craving and wishes of their neighbors." Stone clearly disapproves of this dim view of judges, even though nothing in his book suggests that it is especially inaccurate.
At the Great War's end, the fears and the anxieties of ordinary Americans abated, and, presumably as a result, the Supreme Court slowly began to shift course. After the storm had passed, Holmes and Brandeis caught their breath and, in influential dissents, laid the foundations for the robustly liberal First Amendment jurisprudence that Stone himself celebrates. The "clear and present danger" test, associated with Holmes, eventually made it more difficult for the government to silence political speech. Stone's behind-the-scenes account of how this standard developed is one of the highlights of the book and, indeed, one of the most intriguing tales of unintended innovation in American legal history.
If judges failed to moderate the executive branch's oppressive reflexes while World War I was still ongoing, the public at large proved less honorable still. When youngsters are dying in war, as Stone explains, many people back home are emotionally compelled to believe that the sacrifice must be worth it. They favor restrictions on freedom of speech not so much because they think that antiwar agitation is actually impeding the war effort, but simply because, in such a stressful period, they cannot tolerate, for psychological reasons, the grating sound of dissonant voices.
In peacetime, democracy encourages law-abiding behavior not by coercively suppressing frustrations but rather by guiding them into officially sponsored channels, allowing citizens to campaign for the repeal of unpopular laws. But the civilized possibility of peacefully amending odious laws rather than disruptively violating them is difficult to sustain under the pressures of war. During World War I, Stone contends, jury members, with sons perhaps at the front, had little patience for the distinction between antiwar speech calling for legislative change and antiwar speech calling for disobeying the law. Aflame with nationalist zeal, juries regularly found antiwar agitators who had called for a perfectly legal change of policy guilty of sedition, that is, of acting with malicious intent and with the likely effect of obstructing the raising of armies and the defense of the nation. During an existential conflict with a lethal enemy, in other words, ordinary citizens may be no more likely than robed judges to act as reliable guardians of the Constitution. That at least would explain why the right to criticize incumbents and agitate for change has proved relatively easy to abridge in times of war.
Francis Biddle thought along similar lines. In an arresting phrase, he
wrote that "the Constitution has never greatly bothered any wartime President."
As Roosevelt's attorney general between 1941 and 1945, Biddle was in a good
position to know. The most glaring violation of constitutional principles under
FDR was undoubtedly the mass internment of more than one hundred thousand ethnic
Japanese, citizens as well as resident aliens, undertaken (like the recent internments
in Guantánamo) without any individualized findings of guilt. And what was the
official justification for such a sweeping measure? It was that the United States
must relocate all persons of Japanese origin away from the West Coast, an area
where certain defense industries were located, because government officials
did not possess sufficient linguistic or cultural knowledge to discriminate
accurately between innocent and guilty members of the group. This is the same
logic with which we are regaled today; namely, our lack of skills justifies
their loss of rights.
According to Stone, political and even partisan factors played a considerable role in Roosevelt's decision to approve the wholesale evacuation against the advice of J. Edgar Hoover, among others, who insisted that his agents had the situation fully under control. Roosevelt wanted to focus early American war efforts on Europe, and may have therefore allowed what Justice Frank Murphy (one of Stone's judicial heroes) called a "legalization of racism" in order to vent anti-Japanese feeling without diverting military resources to the Pacific. Similarly, the numbers and the political clout of Italian-Americans and GermanAmericans, and not merely their geographical dispersal away from a militarily vulnerable coastline, help explain why they, in turn, were not relocated en masse. Japanese-Americans may have been singled out less because they were dangerous than because they were weak. Their appalling internment, Stone adds, received some measure of public support on racist grounds, because the internees were non-white.
The implicit comparisons between this episode during World War II and certain notorious events in the contemporary war on terror are again eye-catching, so much so that Stone feels little need to dwell on them or even to discuss them explicitly. In any war or emergency situation, the executive branch has a strong incentive to represent itself to the public as highly effective. Incumbents can even convince themselves that exaggerations in this respect are selflessly patriotic, because the mere reputation of effectiveness may dishearten the enemy and embolden one's own forces. One consequence of this need to appear effectual is that innocent detainees, interned by mistake, may not be released promptly when the government discovers that it has erred. Their exculpation and discharge, after all, would expose the incompetence and the slipshod screening procedures of the arresting authority. For the sake of appearances, therefore, wrongfully detained individuals may well be held in custody until a politically opportune moment (until, say, presidential elections are over).
This, Stone indicates, may have been what happened to the interned Japanese-Americans. Roosevelt was advised already in 1943 that these detentions did nothing to increase America's security. But he did not release the detainees until after the election of 1944. If Franklin Delano Roosevelt behaved this way, what can we expect from George W. Bush? Has the current administration, too, unconscionably prolonged the incarceration of guiltless captives simply to shield itself from public embarrassment? The very possibility reminds us that appallingly unprincipled motives can easily steal into public policy under the carte blanche of wartime secrecy.
Although it comes late in Stone's story, the Cold War turns out to be,
in his account, "perhaps the most repressive period in American history." Such
a recent violation of the basic liberties of American citizens, it should be
said, challenges the widespread belief that our constitutional liberties are
somehow destined to expand. This expectation of progress is so strong that it
even appears fleetingly in Stone's own account. But the past that he surveys
provides liberals with no assurances about the resiliency of the American constitutional
order in the face of danger, real or alleged, from abroad.
During the early 1950s, the beliefs and the associations of American citizens were monitored by a network of domestic spies and informers. The roots of this nightmarish development remain mysterious to some extent. Popular support for repressive government, at the time, may have derived in part from an intense psychological stress, similar to today's, caused by the stark incongruity between immense American power and inescapable American vulnerability. After World War II, nuclear weapons and long-distance missile technology obliterated America's comforting geographical isolation from the world's violence and turmoil. This end of insularity, we might speculate, could have been sufficiently disorienting, psychologically and emotionally, to excite a popular yearning for scapegoats. And stoking the climate of anxiety was a fear--not a baseless one--that America's principal foreign enemy had domestic followers and fellow travelers. Many suspicions of Soviet espionage and subversion were illusory, even hallucinatory, but by no means all; and some have since been confirmed.
The interesting point here is that the early 1950s witnessed a much more thorough and pernicious blurring of the home front and the foreign front than anything we have seen since September 11. Stone's recounting of the early Cold War period, therefore, provides an important reality check for fearful liberals today. At that time, progressives were not accused simply of being weak on defense. They were also charged, very much like the Republicans during the Alien and Sedition Crisis, with being treasonous collaborators with the country's mortal enemy. Even by today's uncivil standards, the levels of vituperation at the time were extraordinary. So why the difference?
American territory today may host a handful of sleeper cells, but our party politics has not yet been poisoned by a generalized fear of a "fifth column" or an "enemy within" of the sort exploited by red-baiters during the Cold War era. The partisan hijacking of the current war on terror is inexcusable. And the rhetorical smearing of some Democratic candidates last year was at times unbelievable. But none of this, as Stone's history reminds us, has yet reached the selfdestructive and fanatical extremes of the McCarthyite exploitation of America's confrontation with communism.
Stone turns finally to the Vietnam War, a period that he experienced first-hand. Parallels to the present again swarm through his account. Examples include the American government's confident predictions of an American "victory" in a distant counterinsurgency and American plans to strengthen the South Vietnamese military and then withdraw. Lyndon Johnson and Richard Nixon both invoked national security to limit the right of the electorate to know what was being done in its name. Both coded criticism as enmity, craved unswerving loyalty, and careened forward without a plan. Nixon even presided over a secret government within the government. Among their other antics, members of his inner circle placed backroom pressure on news executives to toe the administration line. Setting an example for subsequent public-private partnerships in this domain, they had the FBI recruit right-wing newspapers to smear critics of the war. As Stone remarks, "If direct censorship was no longer available to silence critics, secrecy, deceit and half-truths still remained effective weapons in the government's propaganda arsenal."
So much for the government. What about the opposition? The most striking thing about the antiwar movement, as Stone suggests, is how long it took to get under way, that is to say, how difficult it was to make the general public bring into focus the hellish violence that the American military was perpetrating abroad, in a war launched on a dubious theory and conducted on the basis of shoddy intelligence. As Justice Brandeis said, in a passage cited elsewhere by Stone, "an inert people" is the greatest enemy of freedom.
The debatable but intriguing analogy between the Vietnam War and the Iraq war raises the following question: why does the American public seem so blankly unconcerned with what our troops have wrought at Abu Ghraib or in Fallujah? We hear some grumblings about the "backdoor draft" affecting fellow Americans. But popular attitudes toward Iraqi suffering, with some exceptions, seem characterized by either dimmed awareness or flat denial. Government infringements of freedom of speech cannot be blamed for this numbness. So how do we account for public passivity in the face of the bruising toll of death and destruction that American military power has doled out to thousands of Iraqi civilians who never did America any palpable harm? This passivity has barely fluttered, even after it became obvious that the invasion of Iraq could be justified neither as revenge for September 11 nor as self-defense against weapons of mass destruction. So how can it be explained?
Civic quiescence may be temporary, of course. In time, antiwar effervescence, the growth of which Stone traces in his chapter on Vietnam, may emerge. Or it may not. The aging war party inside the Bush administration learned from Vietnam that the best way to "put to sleep" domestic opposition was to eliminate the draft and create an all-volunteer force equipped with high-tech weaponry. Their thinking seems to be: no political protest without draft resistance, and no draft resistance without a draft. This scheme for circumventing democratic accountability eventually produced the troop shortages that made it impossible for the United States to halt the looting and the wildcat violence that surged after the fall of Saddam. But it has also immunized President Bush, at least so far, from an anti-draft movement of the sort that tormented Lincoln, Wilson, and Nixon.
Another reason to doubt that the American public will soon awaken to the realities of Bush's war in Iraq also emerges from Stone's account. During the Vietnam War, the antiwar movement drew strength from the fear of nuclear annihilation triggered by the reckless and bellicose party in power. In the war on terror, by contrast, the fear that New York and other American cities could experience their own "Hiroshimas" tends to mute criticism of the government by a public hoping desperately to be saved from an invisible but grave and purportedly gathering threat.
So has Bush simply been acting in the tradition of Lincoln, Wilson, and
Roosevelt, predictably infringing civil liberties under the extraordinary conditions
of war? To say so would amount to praising the current administration with faint
damns, which hardly seems to be Stone's intention. How, then, can a historian
of America's wartime excesses avoid normalizing the Bush presidency? To dissociate
Bush's unconstitutional behavior from that of his illustrious predecessors,
we might simply deny that the so-called war on terror should even be included
in this book. After all, it is not a full-scale military confrontation in the
sense of the Civil War, World War I, or World War II. But Stone wisely does
not choose to draw the distinction this way. He knows that these are very urgent
An alternative, more compatible with his approach, would be to accept that Bush is just as much a wartime president as Lincoln, Wilson, and Roosevelt, but then to scour the historical record in order to identify something unprecedented about Bush's "overreaction to perceived dangers," some cavalier treatment of the Constitution that sets him apart from his predecessors. Certainly the Iraq war seems like one of the worst (and least comprehensible) blunders in the history of American foreign policy. Saddam Hussein may have posed some sort of a threat to the United States, but the exact nature of this threat has never been coherently explained. He certainly did not pose the threat that the Bush administration said he did. The administration's war aims and its criteria of success remain hazy to this day. So the very strangeness of the Iraq war suggests that Bush is doing something never done before rather than simply following in illustrious footsteps.
The genuine novelty of Bush's behavior in "wartime," in fact, emerges directly from Stone's story. Neither the Iraq war nor the wider war on terror to which it allegedly belongs has involved any criminalization of dissent. True, dissenters inside the executive branch have been fired. If you speak truth to power, in this administration, you lose your security clearance. But there have been no sedition trials, unlike the earlier episodes studied by Stone. Why not? The absence of conscription is one reason. Without a draft, there will be no anti-draft movement; and without an anti-draft movement, an antiwar movement may of course exist, but it will be anemic and uncertain. Only presidents who have to deal with draft resistance are tempted to flout the First Amendment directly, repressing speech that urges draft resistance.
If Bush has behaved unconstitutionally, he has not behaved unconstitutionally in the manner of Lincoln or Wilson, or even in the manner of Roosevelt. True, hundreds of innocent American citizens have been caught up for a time in panicky counterterrorism investigations. And at least two American citizens, perhaps culpable of serious offenses, have been held incommunicado for almost two years without access to an attorney. But the most morally abhorrent acts of this administration have involved the mistreatment of foreign nationals outside the United States and cannot therefore be easily classified as violations of the Bill of Rights.
Lincoln, Wilson, and Roosevelt, whether justifiably or not, violated the constitutional rights of American citizens on American territory. Bush has done this too; but he has been much more active in violating the human rights of aliens abroad. Since he has asserted (in the Padilla case, for example) his authority to deny fundamental due process to American citizens, there is no reason to relax our vigilance on this front. But Bush so far has violated the Bill of Rights only episodically. Most of the abuses that he has condoned have involved non-Americans overseas, and, despite some complications and unsettled law in this area, the Bill of Rights, in its crucial aspects, has never applied to foreigners extra-territorially. The behavior of prison guards and interrogators at Abu Ghraib and Guantánamo is sickening. The toll of death and destruction unloaded on Iraqi civilians who never did the United States any palpable harm is morally repugnant. But neither constitutes a clear-cut wartime violation of civil liberties in the ordinary sense.
This is not to deny that, in its conduct of the so-called war on terror, the Bush administration has violated important and long-standing constitutional norms. At his most radical, Bush has claimed that Congress has no right whatsoever to interfere with the way he chooses to conduct his war on terror. This historically unprecedented inflation of the commander-in-chief's power is a radical assault on our constitutional system of checks and balances. It flies in the face of the text of the Constitution, which grants a series of concomitant war powers to Congress, including the power to define offenses against the law of nations. Brushing aside original intent and two hundred years of constitutional practice, Bush administration lawyers have audaciously and irresponsibly argued that Congress has no right to turn international-law prohibitions on torture and war crimes into enforceable federal law if the latter in any way restricts the president's total discretion to treat foreign captives overseas however he wishes. This overreaching is truly flagrant, even by the lax standards governing the wartime presidencies examined by Stone.
This deliberate dismantling of checks and balances, it could be argued, also infringes on civil liberties, at least indirectly. This is what Stone is getting at when he mentions "the Bush administration's obsession with secrecy." It has not criminalized dissent. But the administration has over-classified documents, restricted Freedom of Information Act access, hounded executive-branch leakers, and blacklisted nettlesome journalists. It has thereby eroded, to some extent, the freedom of information that gives freedom of speech its political bite. It has abridged the inalienable right of citizens to examine and to judge their government. Serious and across-the-board censorship has proved unnecessary for maintaining popular support despite a catastrophic foreign policy blunder. The absence of a draft seems once again to provide the key to this puzzling development, though we should not neglect the contribution to public confusion made by some powerful broadcast media in the hands of partisan supporters of the administration.
Even if the extraterritorial torture or inhumane treatment of detained foreign suspects does not involve any violation of the Bill of Rights as it has traditionally been understood, it does involve a spectacular challenge to Congress's constitutional authority. It also involves a violation of several international treaties ratified by the Senate. Bush has sinned more often against international human rights than against domestic civil liberties. That unfortunately is the deeper reason why political protests in the United States have remained relatively meek. No vocal domestic constituency is directly injured when the administration flouts the Geneva Conventions and other rules that have previously moderated American behavior overseas. True, the Supreme Court has now asserted jurisdiction over the Guantánamo detainees, but Bush may still succeed in his grab for total power over aliens abroad. It is therefore worth reminding ourselves that he has rashly claimed this new freedom from civilizing restraints in an age of globalization when the kith and kin of those individuals whom American forces humiliate, injure, and kill abroad now have a historically unprecedented capacity to target Americans anywhere in the world, including here at home.
It is sometimes said that the September 11 hijackers exploited our generous
liberties in order to attack us. If this were true, we would have to become
a less liberal society in order to become a better-defended one. But is the
Not necessarily. What if, to infiltrate the United States and to evade our defenses, the Al Qaeda terrorists took greater advantage of our complacencies than of our liberties: what remedies would such a diagnosis demand? Would weakening the constitutional system of checks and balances, for example, help the executive become more focused and less reckless? That is unlikely. Indeed, the administration's desire to circumvent traditional checks and balances patently weakened its capacity for critical thought and self-correction, preparing the way for its egregious decision to invade Iraq. To defend ourselves against our most dangerous enemies, we do not need unrestricted government. We need intelligent government. And no administration that shields itself compulsively from criticism has a prayer of being even sporadically intelligent.
Governments will always be less transparent in wartime than in peacetime, and justifiably so. The rights of citizens to pry into government secrets cannot possibly be as expansive in war as in peace. Still, emergency conditions do not suspend the laws of human fallibility. Wartime leaders, too, need some form of adversarial process to protect them from cognitive biases and false certainties. Excessive secrecy may breed disconnection from reality. Panic may spread inside the bunker, and illicit private interests may colonize public policy if decision-making is monopolized by a few like-minded individuals who never listen attentively to alternative points of view. One-party and single-branch government weakens incentives for decision-makers to acknowledge errors and make midstream readjustments. The consequences cannot possibly be favorable.
Stone's admirable history strongly suggests that, in practice, the United States does indeed have one constitution for peace and another for war. This is a disquieting revelation. It is disquieting for an often-cited reason: the high-priority manhunt for anti-American terrorists, which Bush has styled a "war," promises to endure so long as weapons of mass destruction remain available to crazed conspirators--that is, for the foreseeable future. As we have now discovered, a largely unchecked executive has a tendency to gallop off on wild-goose chases, paying little heed to opportunity costs, tying down our troops in the wrong places, and failing to husband the resources that we are undoubtedly going to need to defend ourselves in an increasingly dangerous world. True, in the war on terror, as in previous wars, domestic criticisms of the administration may sometimes give heart to the enemy. But allowing a small clique within the government to continue making momentous choices behind a veil of secrecy, on the basis of publicly unexamined evidence and oblivious to contrary views, will surely debilitate the country and abet the enemy even more.
The constitutional right of American citizens to examine their government has invariably faded in times of violent conflict. This is an ominous precedent because we are now embroiled in a potentially endless battle, whether or not it qualifies as a war. By chronicling the most serious historical deviations from our ordinary constitutional order, therefore, Geoffrey Stone's outstanding book alarms as much as it clarifies. As the current administration flouts the Constitution in genuinely groundbreaking ways, it is also exposing the rest of us to dangers hitherto unknown.
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