Yesterday, Josh Marshall posted an
item about civil liberties, which has apparently caused quite a firestorm on his site. And well it should have. In the controversial portion, Josh was speaking about the Bush Administration's restrictions on civil liberties when he said that he was "a good deal less doctrinaire on civil liberties issues than, I suspect, many of the readers of this site. As Justice Jackson put it, the constitution is not a suicide pact. And a lot of the things that were done in the immediate aftermath of 9/11 were, I think, justifiable in theory, if not always in execution. But what stands out about this administration is not the willingness to sacrifice certain civil liberties safeguards in the face of demonstrable necessity, but the eagerness and almost delight in doing so." This post is wrong-headed on several levels.
First, let me say that I also do not consider myself particularly "doctrinaire" about civil liberties -- but I do think they are important. Critically important. Why? Because civil liberties are what make America the land of the free. There have been other democracies throughout history, there have been other wealthy nations, there have been other mighty armies. But there has never been a country that values civil liberties like America does.
To be an American means that your basic civil rights -- to speak freely, to worship freely, not to be unreasonably searched, to be punished only after a fair trial, to receive equal protection of the law, to vote, to seek habeas corpus from the courts, not to be punished cruelly and unusually, and to other fundamental protections that have evolved throughout Anglo-American history -- are so cherished that some can never be invaded at all, and others only with the most compelling showing of necessity. On a fundamental level, the protection of civil rights is what distinguishes us from the Taliban, from Saddam Hussein, from Kim Jong-Il, from Osama Bin Laden, from Vladimir Putin, and from virtually every other horrible regime throughout the ages.
Well, says Josh, and others like him, the "Constitution is not a suicide pact." Sure, this saying is true in the abstract: If the choice is really between cherished individual rights and the utter destruction of America, I will reluctantly choose to sacrifice freedom for as short a time as possible and for only as long as the danger lasts. But such a choice rarely exists, and when it does, the Constitution itself often provides the appropriate response.
Let me pause here to say a couple things I agree with Josh about. I share his concern with this Administration's seeming giddiness over opportunities to discard supposedly "quaint" aspects of freedom. And I do agree that Lincoln's suspension of the writ of habeas corpus -- which Josh cited to as an example of civil rights curtailments he supported -- is a decent example of a leader who reluctantly did the right thing when faced with the real choice between preserving freedoms and national survival. But it's important to remember that the Constitution allows suspension of the writ of habeas corpus during a rebellion. Lincoln curtailed freedoms using precisely the mechanism the Constitution provides and under the circumstances that the Constitution described as necessary.
But George Bush is no Abraham Lincoln, America is not in anywhere near the situation it was in during the American Civil War, and it is hard to say that virtually anything the Bush administration has done to curtail civil liberties has been "demonstrably necessary." The most-wrongheaded portion of Josh's post is where he talks about the "willingness of this administration to curtail certain civil liberties safeguards in the face of demonstrable necessity." This quote undervalues the importance of civil liberties to the American enterprise but more importantly, vastly overestimates the nature of the threat posed by radical Islamists. Don't get me wrong: I was in Washington on September 11, I have family in New York and I was in New York not long after the attack. It was truly horrible. The people who did it must be hunted down and destroyed.
But it was single attack, by a small group, and has not been followed by anything else on American soil in over 3 years. And George Bush has not asked the bulk of the American people to make a single meaningful sacrifice to fight the war on terror. He hasn't asked rich people to pay a cent more in taxes, he hasn't sought to cut government spending, he hasn't sought to encourage more military service, and he hasn't asked for rationing of any raw materials. Instead, George Bush has sent signals that he doesn't view the threat as truly serious at all, since he has felt free to wield his response in a purely partisan fashion, blatantly timing the "alerts" in conjunction with the political schedule and using suggested reforms, such as the creation of the Homeland Security Department, as way to score political points. During a time of real emergency, Franklin Roosevelt created a national unity cabinet and placed Republicans in places of real power, including the head of the War Department. Abraham Lincoln ran on a ticket with a Tennessee politician, deeply unpopular among his base supporters, just to send a unity message. George Bush has done none of these things and so it's hard to believe that an existential threat exists sufficient to warrant substantial deviations from America's traditional role as a human rights leader.
Under these circumstances, it seems at least reasonable to believe that America's military is fully capable of efficiently hunting down Al Qaida while at the same time respecting the very freedoms that America stands for. After all, there is no enemy army marching on American soil as there was in Lincoln's day. There is no fascist or communist superpower, poised with powerful armies ready to conquer the world. There was a terrible attack by a small group, followed a proportionate response, followed by a reckless spiraling of that response out of control into a series of questionable alerts and advice about duct tape.
This is not to say that Al Qaida isn't a threat that needs to be dealt with. But even where an emergency of the most fundamental type exists, such as during World War II, the government's attempts to curb civil liberties are often unnecessary and counterproductive. The Japanese interment camps are a good example. There, the Japanese had attacked us on our own soil, they were defeating us in a battle involving vast armies around the world and yet our government's misdirected response to this great threat, through the needless but widespread curtailment of fundamental civil liberties, is widely viewed as a shameful chapter in America's history and perhaps FDR's lowest moment as President.
There is a real danger right now that the Bush Administration is headed down that very same road, driving at 100 miles an hour, and enjoying itself all the way. From Abu-Ghraib to Guantanmo to the unlawful detention of Mr. Hamdi as an enemy combatant (a doctrine even Antonin Scalia rejected), to the indefinite detentions of hundreds of immigrants, the Bush Administration seems determined to allow or direct the same sort of civil rights disasters that needlessly embarrassed us during World War II and ultimately undermined the war effort. By riding roughshod over civil liberties in the absence of any sort of "demonstrable necessity," the Bush Administration is also undermining the war effort, sapping America of the moral highground and potentially endangering us. By directing many of these civil rights violations at Muslims, the Administration's actions threaten to swell the ranks of our enemy's armies by lending credence to their claim that America is an enemy of Islam.
I think, in the end, that what upset everyone so much about Josh's comments is partially that they seemed insufficiently respectful of civil rights, but even more that, in suggesting that America must choose between survival and freedom, they seemed careless in assessing where we currently stand. America is nowhere near the point where continuing to honor basic civil liberties is equal to "suicide." Rather, as is generally the case, choosing to destroy civil liberties in order to gain safety would be the real suicidal approach. If he was determined to quote an old homily, Josh should have canned the Justice Jackson quote and trotted out Ben Franklin instead: "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."