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Last Tuesday, an online discussion among law professors was interrupted with urgent news: “Folks, for goodness’ sake please turn on your TV or radio. Both World Trade towers are gone, part of the Pentagon is gone, hijacked suicide planes, hundreds dead, all air traffic grounded, second hijacked plane headed toward D.C., crashed in Pa., all air traffic grounded, U.S., foreign planes to N.Y. or D.C. being diverted to Canada.” Then the discussion paused. Inter arma silent leges. In time of war, the laws are silent. But that’s not quite right. Chief Justice William Rehnquist in “All the Laws but One,” his book on civil liberties in times of war, wrote that the laws are not quiet, “but they will speak in a somewhat different voice.” But that’s not right either. The fact is that during war, there’s a cacophony of legal noise, sounding all manner of different notes. Maybe the noisiest legal reaction comes in the laws that limit civil liberties. During the Civil War, President Abraham Lincoln, as one means of beating back the Confederate insurrection, made use of the Constitution’s provision allowing him to suspend the writ of habeas corpus. On April 27, 1861, he wrote a letter to the commanding general of the Union Army stating, “If at any point on or in the vicinity of any military line … you find resistance which renders it necessary to suspend the writ of habeas corpus for the public safety, you … are authorized to suspend the writ.” Congress expanded suspension of the writ in 1863. In World War I, Congress passed the Espionage and Sedition Acts, putting sharp restrictions on speech and writing. Local governments went even further. As constitutional historian Michael Klarman has written, “The city of Pittsburgh banned Beethoven music; the Los Angeles Board of Education forbade discussion of peace in the schools; and many states prohibited German language instruction.” And in World War II, of course, America responded to that other day of infamy by requiring Japanese in America — including American citizens of Japanese ancestry — to report to internment camps. HANDS OFF The closest thing to the silence of the Latin maxim is the way courts treat challenges to such laws. Consider the discussion in the “Oxford Companion to the Supreme Court of the United States” regarding the Court’s reaction to suits attacking the legitimacy of the war in Vietnam: “The Court persistently employed its discretionary authority to determine what cases it would hear [in order] to exclude from consideration all constitutional challenges to the war… . Unwilling to precipitate a conflict with the Executive, the Court protected its institutional interests by leaving the question of the legality of the war to be resolved in the political arena.” Consider also Justice Robert Jackson’s dissent from Korematsu v. United States (1944). In the particular case, Jackson would have reversed the judgment upholding the Japanese internment program. But even he did not debate the constitutionality of the law. His main concern seemingly lay elsewhere. “When an area is so beset that it must be put under military control at all,” wrote Jackson, “the paramount consideration is that its measures be successful, rather than legal … . In the very nature of things, military decisions are not susceptible of intelligent judicial appraisal.” Therefore, he reasoned, since the law cannot properly challenge military edicts, it should at least say nothing at all, for fear of clouding future legal decisions. What happens most often, though, is that the law — and the courts in specific — do speak. And what the courts say usually ratifies what some other branch of government has done. Look to Justice Oliver Wendell Holmes Jr. in his much-vaunted opinion in Schenck v. United States (1919), which considered the constitutionality of portions of the Espionage Act prohibiting speech that could lead to insubordination in the armed forces. The Schenck decision is best known for the free-speech test that Justice Holmes set forth: “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” What is perhaps forgotten is a sentence later in the same paragraph: “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.” The justices unanimously upheld the Schenck convictions. Similarly, during the Cold War, laws required various union officials and government employees to take oaths and sign affidavits that they were not associated with communism. In a series of cases in the early 1950s, the Court routinely upheld those requirements. “Speech is not an absolute, above and beyond control by the legislature when its judgment … is that certain kinds of speech are so undesirable as to warrant criminal sanction,” the Court stated in Dennis v. United States (1951). “Overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech. Indeed, this is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected.” PEALS OF DISSENT Despite all this, the courts do, even in wartime, sound peals of dissent. During the Civil War, a Southern sympathizer who tried to aid the Confederacy was convicted and sentenced to death by a U.S. military court. He appealed to the Supreme Court. In overturning the conviction in Ex Parte Milligan (1866), the Court extolled the Constitution for protecting rights even during wartime: “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 man than that any of its provisions can be suspended during any of the great exigencies of government.” Likewise, the Court did, in essence, reverse itself on the issue of First Amendment rights of communists during the Cold War. In Robel v. United States (1967), Chief Justice Earl Warren wrote, “Implicit in the term ‘national defense’ is the notion of defending those values and ideals which set this Nation apart … . It would be ironic indeed if, in the name of national defense, we would sanction the subversion of those liberties … which make the defense of the Nation worthwhile.” But even these ringing affirmations of civil liberties have their limits. Professor Klarman has pointed out that the Court only ratified the rights of communists in 1967, when the threat of American communism had receded, rather than in the early 1950s, when that threat still felt very real. Similarly, though Ex Parte Milligan deals with events that occurred during the Civil War, the Court’s majority wrote the language extolling people’s wartime constitutional rights only after the insurgency ended. ‘TRIBUTE TO REASON’ Wartime can also bring unexpected affirmations of the power and rule of law. Look to the war crimes trials in Nuremberg following World War II. Justice Jackson led the U.S. prosecution team. His opening argument sings with the vitality of law: “That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason … . We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.” And even the end of legalized racial apartheid in America — through court cases like Brown v. Board of Education (1954) and the congressional legislation that followed — came, at least indirectly, from war. Sentiment against segregation grew in government circles as America tried to recruit Third World nations to our ideological camp during the Cold War, and found objections to our legalized discrimination to be an obstacle. So whatever the sounds of law during war, it is not silent. It may be true, as Rehnquist’s book asserts, that “There is no reason to think that future wartime presidents will act differently … , or that future Justices of the Supreme Court will decide questions differently.” But it is also true that, even if the supporting beams of law buckle in the intensity of war, the structure still stands. Evan P. Schultz is associate opinion editor at Legal Times . He can be reached at [email protected]

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