Thinking First as a Citizen: In an Unending Struggle against Terrorism, Giving Up Rights during Wartime Means Giving Them Up Forever. (Symposium Terrorism and Civil Liberties)

Article excerpt

In times such as these, I find it helpful to remind myself that I am an American citizen first, an editorial writer second. In exploring the issues of terrorism and civil liberties, it is not satisfying -- for me or my readers -- to merely quote Hobbes and Locke on natural rights or launch into a nuanced dissertation on the need to delicately balance security and liberty.

I cherish this country and what it stands for, so I'm willing to make some sacrifices to keep that dream alive; as Abraham Lincoln observed, we shouldn't desire to make the Constitution a suicide pact. But I also don't want to see us -- in the name of fighting terrorism -- give up precious freedoms millions have died for, in the process turning the nation into something unrecognizable.

Knowing where to draw that line--between acceptable and unacceptable sacrifices -- will be, I suspect, increasingly tricky in the months ahead. We are asked to put up with greatly increased airport security, and that seems a reasonable tradeoff for safer flying. But what if we are asked to endorse blanket wiretaps or a national ID card? What if we are told that, to fight this evil, we have to submit to suspension of due process in certain cases?

That's nothing new. We might not like it, but we have to accept it as reality that the rules change in time of war. Lincoln suspended the writ of habeus corpus during the Civil War -- and the Supreme Court did not act.

In World War I, Congress made it a crime to send through the mail anything urging "treason, insurrection, or forcible resistance to any law." Then, a man was charged with distributing anti-draft leaf lets, and the Supreme Court upheld his conviction unanimously.

In World War II, Japanese Americans (and some German and Italian Americans as well) were interned not for what they did or even might do, but just for who they were. The courts were silent, and the American Civil Liberties Union did not protest.

In a 1999 speech to the Woodrow Wilson Center for Scholars, Chief Justice William Rehnquist discussed All The Laws But One, his book mostly approving Lincoln's Civil War suspension of rights. "Wartime presidents," he said in the speech, "prefer claims based on military necessity to claims of individual liberty, and the courts come to the rescue of civil liberty only after the war is over."

But what if the war is never over?

We are told, believably, that this war on terrorism will be unlike anything the country has ever known. We can never be sure even who our enemies will be at any given time, let alone what deadly new tactics they will adopt. …