June 20, 2002

Our Government Is Going About This All Wrong: If Civil Liberties Are to be Suspended, Then Suspend Them--Constitutionally

Eugene Volokh worries that "military tribunals, military detentions, and the like" raise fundamental questions "that go to the heart of the actual language of the Constitution":

| The Volokh Conspiracy |

But the main issues raised by military tribunals, military detentions, and the like have very little to do with the Warren Court decisions.... These matters raise fundamental questions that go to the heart of the actual language of the Constitution.... Now there are good arguments that, as a matter of the original meaning of the text (though not of its letter), and as a matter of American constitutional traditions, there are certain implied exceptions to the Bill of Rights with regard to enemy combatants... but the arguments of its critics cannot be rebutted simply by denouncing some "Warren Court set of rights" -- it's the Framers' set of rights that's clearly at issue here.

I suspect that he is wrong about the letter of the Constitution (although--thank God!--I am not a lawyer). Article I, Section 9, Clause 2: "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." This is a case of "invasion"--albeit a very strange kind of invasion. And the public safety does seem to require the suspension of the writ of habeas corpus as it applies to Jose Padilla, and to others.

So, damn it, if we want to hold U.S. citizens without trial for indefinite periods--and I think we do--then do it: suspend the writ of habeas corpus, as the Constitution tells us that we can do. And because clause 2 is in section 9 which is in article I--the "Congress" article, not the "President" article--the Constitution tells us how to do it: the legislature needs to do it, just as it is the legislature that is supposed to decide whether we are in a war or not.

We have constitutional procedures for how to deal with situations like this. Why not use them?

(On the other hand, I seem to remember a precedent for executive action here: something Lincoln did during the Civil War...)

Posted by DeLong at June 20, 2002 08:42 PM


Re: Lincoln

On the other hand, it's arguable that Bush today faces a situation far less threatening than the civil war.

Posted by: Paul on June 20, 2002 09:55 PM

Aha. Here it is...

Why Liberty Suffers in Wartime

By Declan McCullagh2:00 a.m. Sep. 24, 2001 PDTWASHINGTON -- 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 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 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."

Posted by: Brad DeLong on June 20, 2002 10:09 PM

Your use of constitutional methods is amazing since you worked for the Clinton administration. Where in the constitution did nationalized health care fit? Have you joined the conservative/libertarian/strict constitutionalist crowd?

But getting to your point: wouldn't an actual declaration of war give Bush cover to suspend habeus corpus? But since we don't know when the war will have been won, wouldn't such a suspendsion up being permanent?

Posted by: Sean Hackbarth on June 21, 2002 12:20 AM

Some interesting differences between the present situation, and the Civil War and WII:

1) Bush has deliberately refrained from asking Congress from a Declaration of War.

2) The present situaion does not involve a definable war, against definable parties, but (as somebody said), a war on a noun: 'terrorism'. As such, there is no definable end. For example, there was a classic case cited from 1866 (I don't have the name at hand), where the SC stated that civil courts must be used if open. In 1866, the formal Civil War was clearly over. If somebody had asked a court to decide whether or not the USA was at war, the answer would have been clear.

I do have a delphic predication - that any ability of the executive branch to permanently detain US citizens without benefit of trial, will not last long past the start of the next Democratic presidential administration.


Posted by: Barry on June 21, 2002 06:40 AM

Some additional comments:

1) Volokh, like Instapundit, seems to dislike comments on his blog. Which I find interesting.

2) At one point, he says that we are in a de facto war (not using the literal term, but the meaning), but doesn't answer the obvious question - when are we in/not in a de facto war? Examples abound:

1) McVeigh's bombing in OK City, during a time when thousands of people were in organized armed bands ("militia's") - would it have been constitutional for Clinton to have ordered the detention of people as 'unlawful combatants'?

2) The Gulf War, 1990 - present. We've had some sort of armed force active in the region, with weapons ready, and (luckily very) occasional casualties.

3) The Cold War, 1947 - 199?. Was the Constitution basically on the shelf for that whole period?

4) The Reagan administration. They were running at least one guerilla war for several years in the 1980's, and US 'advisors' were active in a few more. Could Reagan have legally ordered the permanent detention of US citizens at will? ? If not, why not?

5) Iranian Hostage Crisis, 1978-80. Could Carter have legally ordered the permanent detention of US citizens at will? If not, why not?

I'm sure that I could just pull out a post-WWII history of the US, and come up with a few dozen other examples, but I think that I've come up with enough.


Posted by: Barry on June 21, 2002 07:03 AM

Well, I think I understand why Eugene Volokh and Glenn Reynolds have made the decision they have. If you allow comments, either you have to spend time gardening them--weeding out those that detract from the experience--or you gradually watch your site deteriorate into a web version of usenet. Weeding comments makes the weedies mad. Simply disallowing comments--saying "this is my press, and my speech," involves fewer hassles.

Brad DeLong

Posted by: Brad DeLong on June 21, 2002 07:51 AM

Mr. Hackbarth...

A declaration of war would not allow Bush to suspend habeas corpus. In spite of Lincoln having suspended it during the Civil War before Congress got around to it, it's fairly clear that it's Congress's responsibility to suspend habeas corpus.

In terms of your points on health care, are you trying to simply be offensive? Libertarians disagree with liberals on the scope of the federal government, but not everyone accepts Libertarian interpretations of the constitution. Personally, I think the Constitution is a document which we have to interpret differently with changing times. Current constitutional law, which has accepted social security and medicare as constitutional, would surely accept some sort of national health care service as such, also, under whatever constitutional provision those things have been accepted (the commerce clause?) It's a completely different matter from these civil liberties issues, which are not only seemingly unconstitutional from the text of the constitution, but have also been ruled to be unconstitutional by numerous Supreme Court rulings.

Posted by: John on June 21, 2002 07:58 AM

"...but not everyone accepts Libertarian interpretations of the constitution."

Not everyone accepts that the Biblical account of Noah and The Flood isn't the literal truth (i.e., some maintain it is the literal truth). So I guess that raises the possibility that Biblical account is the literal truth.

"Personally, I think the Constitution is a document which we have to interpret differently with changing times."

Oh, well, I'll interpret the Tenth Amendment's statement that:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people"

...means that "the people" can be the same as "the federal government." So, in my new interpretation, "the powers not delegated to the United States (i.e., the federal government)...are reserved to...the federal government! The federal government, in my new interpretation, is omnipotent, under the Constitution. There's nothing that the federal government isn't empowered to do. Do you think my interpretation is valid?

"Current constitutional law, which has accepted social security and medicare as constitutional,..."

Current Creationist "science" has accepted Noah and the Flood as being the literal truth, too. Does that make it so?

"...also, under whatever constitutional provision those things have been accepted (the commerce clause?)"

Well, you read the Constitution, or whatever Supreme Court decisions you wish, and you tell ME under what clause(s) Social Security and Medicare are constitutional. Then I'll give you an absolutely airtight argument why they are NOT constitutional, under whatever clause you've chosen.

Posted by: Mark Bahner on June 6, 2003 02:21 PM
Post a comment