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“Aside from suspension of the privilege of the writ of habeas corpus in time of rebellion or invasion, when the public safety may require it, [the Framers] made no express provision for exercise of extraordinary authority because of a crisis. I do not think we rightfully may so amend their work, and, if we could, I am not convinced it would be wise to do so.” — Justice Robert Jackson, concurring in Youngstown Sheet & Tube Co. v. Sawyer (1952) That’s a lesson our leaders on both ends of Pennsylvania Avenue should be considering now. So should the rest of us. Slowly but surely, the president and Congress since Sept. 11 have been chipping away at what most Americans think of as fundamental constitutional values. They claim that the measures are necessary to safeguard the “homeland” against terrorism. And they also claim that in America we still treasure freedom and liberty as much as we always have. America can’t have it both ways. If draconian measures really are necessary, then we as a country have some serious choices to make. President George W. Bush shouldn’t pass off the changes as humdrum interpretations of current laws, and he shouldn’t hide behind his executive or national security powers. And Congress shouldn’t pretend that the post-Sept. 11 bills on its plate are minor legislative tune-ups. What they’re all doing is fundamentally rebalancing the scales of liberty. That’s not something to do silently — we need to debate it out loud. The issue isn’t whether the new laws are necessary. The issue, rather, is that if our leaders think such laws are necessary, they need to convince us of that, and let us democratically decide which fork in the road to take. OUR PATRON SAINT “The Constitution is not a suicide pact” is a maxim (also more or less courtesy of Justice Jackson) that has been repeated ad nauseam to justify the new security measures. OK, fine — but it ain’t toilet paper, either. What it is, in fact, is a blueprint for government. And those who wrote it were fully aware that they couldn’t predict all the challenges that future governments would face. So they wrote a pretty drastic escape clause: Article I, Section 9, Clause 2, which states: “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.” The writ of habeas corpus is essentially the Constitution’s patron saint for the unjustly imprisoned. When death row prisoners have exhausted their appeals, when aliens have been slated for final deportation, and — so far — when accused terrorists have been kidnapped by the government, they have an out with habeas. They (or their lawyers) can file a petition in federal court, which then compels the government to justify its actions. If it can’t, the person goes free — or at least gets the trial or hearing he should have. Technically speaking, habeas doesn’t grant any substantive rights. It doesn’t by itself guarantee the right to due process or equal protection or free speech or anything else. As Justice William Brennan Jr. wrote: “[I]n form the Great Writ is simply a mode of procedure.” But, he continued, “its history is inextricably intertwined with the growth of fundamental rights of personal liberty. For its function has been to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints.” Suspending the writ, by definition then, means that we’re suspending our claim to liberty. And that’s what we’ve started to do since Sept. 11. WHIFF OF MARTIAL LAW The administration and Congress since Sept. 11 have passed a raft of new laws, reinterpreted old laws, and taken some flat-out lawless actions, all in an attempt to get a grip on terrorism. They’ve passed a new law (subtly named the USA Patriot Act) increasing law enforcement, surveillance, and detention powers. They’ve proposed creating a new federal agency for “homeland security.” They’re retrofitting the Federal Bureau of Investigation into a domestic spy agency. They’ve held thousands of people without charges as “material witnesses” and are fighting in New Jersey state court to keep the names of the prisoners secret. They’ve refused to deport foreigners who have confessed to minor immigration infractions and volunteered to go home — and jailed in Cuba hundreds more whom we captured and flew to this side of the world blindfolded and manacled. And, most recently, they have announced that they’re using the military as an untouchable prison, so that people — American citizens or not — can be disappeared from society. And that’s only so far. Many commentators have argued that the unilateral actions President Bush has taken carry the whiff of martial law. That’s right. But the solution they offer — new laws to bless, oversee, and limit the president’s ability to take radical action — is not enough, for two reasons. First, sporadically depriving alleged terrorists of a right to trial, or to see a lawyer, simply pushes the question back to the courts. They will then either declare such an action or law unconstitutional, or distort statutes and the Constitution by upholding it. The latter is what happened after the last enemy attack on American soil, when the Supreme Court upheld Franklin Roosevelt’s policy of detaining Japanese-Americans in internment camps in Korematsu v. United States (1944). Justice Jackson (again), who dissented, warned, “A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens.” Ditto that for today. A CHOICE BEFORE US Second, the piecemeal approach of giving President Bush a few extra measures here, some new provisions there, deprives the nation as a whole of the opportunity to confront this issue head-on. By plainly putting a suspension of habeas corpus for suspected terrorists on the table, the government will clearly present the choice to us. The American people can debate; Congress can vote. If Bush loses this legal and political battle, then he’ll have to find means more compatible with traditional constitutional values to enhance national security. And if he wins, then we’ll all know what we’ve signed up for and be responsible for the consequences. And if there’s any doubt, let’s be clear — suspending the writ for suspected terrorists will mean reducing rights for all of us. Think about it. If the government is wrong about whom it throws in jail as a terrorist, well — hope you like dungeon decor. CONSIDER THE CIVIL WAR It’s been said that the terrorist threat we face is unique, but that’s not really true. America has faced dire threats before, even in the “homeland.” At the beginning of the Civil War, for instance, President Abraham Lincoln was trying to march federal troops through Maryland to Washington, D.C., in order to secure the capital. When the troops reached Baltimore, the public rebelled. The troops were assaulted. And — a closer parallel to today’s situation — people sabotaged railway bridges to keep the soldiers from reaching Washington. Lincoln acted swiftly. On April 25, 1861, he commanded the Union general to “adopt the most prompt and efficient means to counteract, even, if necessary, to the bombardment of their cities, and, in the extremist necessity, the suspension of the writ of habeas corpus.” Two days later, he expanded the scope of the suspension — and the troops got through. Though Lincoln was later criticized for suspending the writ by himself, Congress in 1863 ratified his actions. Similarly, during post-Civil War Reconstruction, President Ulysses Grant was facing continuing rebellion in the South, specifically from the emerging Ku Klux Klan — the al-Qaida of its day. According to historian Xi Wang of Indiana University of Pennsylvania, “In 1870 and 1871, Klan terrorism continued to run rampant. … By the spring of 1871, a delegation from South Carolina informed President Grant that state authorities could no longer maintain order.” In response, Congress passed the Ku Klux Force Act of April 20, 1871, allowing the president to suspend habeas review — and he did. The writ has not been suspended since within the states (although it was suspended in the Philippines when it was still under U.S. jurisdiction, and in Hawaii during World War II before it became a state). The history of suspending habeas contains an important lesson for us today. When Lincoln first did it — without Congress’ approval — he acted out of frustration, fear, and what he viewed as necessity. And it might have been the right thing to do in the midst of an ongoing and open rebellion. But even under those circumstances, Lincoln’s authority wasn’t enough to sustain the suspension. Congress saw the need to debate — and ultimately ratify — what he did. (The same thing happened when Lincoln took another momentous action — freeing the slaves. First he unilaterally issued the Emancipation Proclamation. Later, when questions about the legality of the proclamation arose, the nation passed the 13th Amendment to outlaw slavery.) More recently, President Bush told us during his State of the Union address: “We’ve come to know truths that we will never question: Evil is real, and it must be opposed.” But he has glossed over the significance of that since, implying that all most Americans need to do is wait in longer airport lines and pitch in for some volunteer work. That’s wrong. What we need to do is decide what we’re willing to sacrifice for the war on terrorism, what we’re not willing to sacrifice, and, in the process, what the war on terrorism means for America. Before we do that, there’s a second lesson to be drawn from the Civil War habeas suspension. Everyone back then knew that the war was a limited conflict — at least in time. Within a few years, either the Union would have won, or it would have lost. Either Washington would be the national capital for all the states, or it would share the honor with Richmond. So suspending habeas was a dramatic move, but a temporary one. Not so for us. The liberties that the government is taking away today are bound to be gone for a long time. If we listen to Bush, there’s no easy way to know when terrorism will be vanquished. There’s no Appomattox Courthouse this time. If we suspend habeas review, there’s no telling when we’ll get it back. The president and congressional leaders might shy away from debating whether to repeal habeas review for suspected terrorists, claiming that it’s too radical or not necessary. But the situation is dire enough that we’ve already begun to suspend the Constitution. We should either admit what we’re doing — or stop it. Evan P. Schultz is associate opinion editor at Legal Times.

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