Sixty years ago, after the shock of the Japanese attack on Pearl
Harbor, one of the strongest proponents for the forcible internment
of ethnic Japanese in the US was California Attorney General Earl
Warren. That's the same Earl Warren who, years later, served as a
famously liberal chief justice of the US Supreme Court.
At the same time, the nation's senior law-enforcement official,
FBI Director J. Edgar Hoover, argued that such internment would just
cause hardship for a group of generally loyal citizens and
residents. This, from a top cop who even then seldom let legal
niceties get in the way of his pursuit of criminals.
The point here is not that the politics of civil liberties makes
for strange opponents, as well as bedfellows. It's that the proper
balance between civil liberties and security in wartime can be
fiendishly hard to strike.
Once bullets begin to fly, government officials must judge how
much danger the nation is in, where those dangers lie, and whether
defense against them requires some abridgement of much-cherished
individual rights - all under the pressure of onrushing time.
History shows that they don't always get it right. The World War
II internment of those of Japanese ancestry is today widely seen as
a blot on the nation's honor.
History also shows that in time of crisis, US officials usually
err on the side of tightening domestic law enforcement too much,
rather than too little - and that that's what the public generally
wants them to do.
"People are willing to trade almost anything for greater security
if they think it would make a difference," says Michael Klarman, a
professor of law and history at the University of Virginia.
The moral balancing act boils down to questions like this: Is it
right to abridge the civil liberties of, say, 1,000 people, if a
terrorist cell might be broken in the process?
The Bush administration's push for expanded domestic law-
enforcement powers is rooted in the assumption that the US is
literally fighting a war on its own soil. Congress has not passed a
declaration of war, as such - it didn't for Vietnam or the Gulf War,
either. But since Sept. 11, administration officials have repeatedly
stressed that the attacks on the World Trade Center and the Pentagon
were much more than crimes, and that the government is on a war
footing in the US as much as it is in Afghanistan battles.
The adversary in this war does not want to fight the US military,
according to administration reasoning. Its preferred target is
ordinary Americans, in their homes and places of work. That's a new
threat, and guarding against it may require a new kind of domestic
"We're battling an enemy committed to an absolute unconditional
destruction of our society," said Attorney General John Ashcroft
during an appearance before the Senate Judiciary Committee last
In response, the administration has quickly hammered together an
ungainly, multipiece package of legal changes which, taken together,
represent a profound increase in federal policing powers. Some of
the changes were approved by Congress as part of the "USA Patriot"
legislation passed in late October. Some are unilateral, the result
of executive orders or rule changes quietly announced in the Federal
Register. Some are simply an aggressive use of existing legal
authority, the Justice Department says.
Not all of them have come into play. President Bush may have
approved the use of military tribunals to judge terrorist suspects,
for instance, but no tribunals have yet been held.
One area where the changes have surely had a cumulative impact,
however, is on Washington debate. Criticism of the war in
Afghanistan has been muted, but domestic legal changes are
controversial - the subject of the most heated public exchanges so
far dealing with the post-Sept. …