Civil liberties in times of war

teagleton

The Constitution has not greatly bothered any wartime president.

-- Francis Biddle, U.S. attorney general (1941-1945)

ST. LOUIS -- One case down, two to go. John Walker Lindh has copped a 20-year plea in federal court. Two other al-Qaida-connected Americans are being held as enemy combatants. Despite existing regulations requiring American citizens to be tried in federal court, these two citizens will be tried by military tribunals where civil liberties can be almost totally ignored.

Yaser Esam Hamdi was born in the United States, raised in Saudi Arabia, captured on the battlefield in Afghanistan and, since April 5, jailed in a Navy brig. The Justice Department says that as an enemy combatant, Hamdi can be held indefinitely and cannot talk to an attorney. The 4th Circuit Court of Appeals has labeled this as a "sweeping proposition," but also states that in wartime "great deference" should be given to the government policy.

This is not the first assertion that a wartime government is entitled to do away with civil liberties. Abraham Lincoln claimed that, under the dire circumstances of a rebellion, he had the inherent power as commander-in-chief of the armed forces to suspend the writ of habeas corpus and to indefinitely hold citizens for trial in military tribunals. Over 4,000 civilians were tried by military tribunals, half of them in Missouri.

After the war was over, the deceased Lincoln was chastised by the Supreme Court: "The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of men than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchism or despotism."

In practice, however, these noble words of the Supreme Court were completely disregarded when 2,000 additional military tribunals were conducted in the South after the court's decision.

President Wilson did not suspend the writ of habeas corpus during World War I. There were no trials of citizens before military tribunals. Wilson was concerned about citizens speaking out against the war effort. He successfully persuaded Congress to pass an Espionage Act that prohibited statements "interfering with the war effort." One thousand civilians were convicted under the Espionage Act, including Eugene V. Debs, the Socialist presidential candidate in 1920 who received one million votes while incarcerated. In a unanimous opinion of the Supreme Court written by Justice Oliver Wendell Holmes, the court ruled that Debs' criticism of the war "would not be protected by the First Amendment."

The most shameful and egregious exercise of presidential power was President Franklin Roosevelt's internment of 120,000 Americans of Japanese descent during World War II. People as diverse as California Attorney General Earl Warren and J. Edgar Hoover supported the internment. Later, the Supreme Court blessed it.

Roosevelt was too busy to discuss the internment policy in person with his attorney general, Francis Biddle, and his secretary of war. He authorized this interment in a short telephone call.

The Constitution does not greatly bother George W. Bush or Attorney General John Ashcroft. It most likely will not bother the Rehnquist Supreme Court.

Tom Eagleton is a lawyer and former U.S. senator from Missouri.