War's Restraining Effect on Civil Liberties President Bush signed the landmark Military Commissions Act of 2006 last week, setting out a legal framework for the detention and trial of terrorism suspects listed as "unlawful enemy combatants." Columbia University historian Eric Foner and University of Chicago law professor Cass Sunstein discuss the history of U.S. civil liberties during wartime with Jacki Lyden.

War's Restraining Effect on Civil Liberties

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This past week, President Bush signed a law that he called one of the most important pieces of legislation in the war on terror. That law, the Military Commissions Act of 2006, sets guidelines for the detention and trial of non-citizen terrorism suspects who are defined as unlawful enemy combatants.

Critics say the measure will perpetuate the indefinite detention of individuals without charge and they note that it allows for spending the writ of habeas corpus. As he signed the measure, President Bush acknowledged it had been controversial.

President GEORGE W. BUSH: Over the past few months the debate over this bill has been heated, and the questions raised can seem complex. Yet with the distance of history, the questions will be narrowed and few.

Did this generation of Americans take the threat seriously? And did we do what it takes to defeat that threat?

LYDEN: We can't be sure how the Military Commissions Act will be judged with the distance of history, but we can look back at similar examples of how Americans have dealt with civil liberties during wartime.

We're going to spend the next few minutes on this topic with two scholars, beginning with historian Eric Foner of Columbia University.

Professor ERIC FONER (Columbia University): War has put a great deal of pressure on civil liberties. You can go all the way back to the Alien and Sedition Acts of 1798, which were passed by Congress under John Adams during what we call the Quasi-War with France. It was not really a declared war but there were some hostilities at sea.

Those laws basically made it illegal to criticize the government and quite a few newspaper editors were put in jail for that, and also gave the president the right to deport basically any alien he felt like it.

During the Civil War, the writ of habeas corpus was suspended a number of times by the president and by Congress. During World War I, there was an intense suppression of the freedom of speech. People were put in jail for simply criticizing the government's policies. Many, many aliens were rounded up and deported. And of course the internment of over 100,000 Japanese Americans in World War II.

I mean, so, you know, one could go on and on, but certainly wars do seem to lead to restraints on civil liberties.

LYDEN: Also during World War II, in the summer of 1942, newsreels carried the sensational story of eight Nazi saboteurs who came ashore on Long Island and Florida beaches.

(Soundbite of newsreel)

ANNOUNCER: Four saboteurs came ashore here while four others were secretly landed on Long Island. They now face trial by a military commission on charges that carry the death penalty.

LYDEN: Their plots never came to pass and the eight ended up tried in secret by the a U.S. military commission created by President Roosevelt. Six of them were hanged.

University of Chicago law professor Cass Sunstein has written about the case of the Nazi saboteurs and compared the reaction to their trial to the response to the response to the military commissions that President Bush established soon after 9/11.

Professor CASS SUNSTEIN (University of Chicago): There was a very widespread enthusiasm for what President Roosevelt had done. It wasn't as if Republicans or Democrats were opposing this as unfair or inconsistent with American procedural requirements. So the secrecy and the speed of the commission was widely approved in Congress.

We didn't have a statute specifically authorizing the commissions, but we didn't have any serious effort to overturn what President Roosevelt proposed to do.

LYDEN: The only pushback came from the defendant's own lawyers, who filed a habeas corpus petition that eventually reached the Supreme Court.

Prof. SUNSTEIN: The Supreme Court unanimously said Roosevelt had a right to do this, and actually, the court's opinion was pretty brisk and not extremely careful. And what's even more remarkable than the Supreme Court's unanimity was the reaction of the mass media and the public.

We did not have in this controversy a sustained civil libertarian objection on the part of the great newspapers and citizens organizations of the time. On the contrary, not only was President Roosevelt's decision to try these people in secret and quickly generally applauded, but also the Supreme Court's decision was applauded.

LYDEN: Even the liberal Nation magazine came out with the following, sounding more like a Rush Limbaugh would today. It wrote, The Supreme Court's refusal to give the defendants standing in civil courts came in the nick of time. Had the Supreme Court granted the saboteurs' petitions, American soldiers would have had to go into battle with John Doe summonses in place of rifles and a round of subpoenas in their cartridge belts.

Cass Sunstein says what's changed since that time is the popular notion of fairness and due process.

Prof. SUNSTEIN: So what we've seen is not a word of change in our Constitution that bears on any of these issues about military commissions or terrorists, but a huge change in what our culture expects and requires and debates. And the shift in the culture - which really we can't overstate the importance of - is that between about 1940 and 1970, notions of fair trial for accused criminals started to permeate our culture.

(Soundbite of television show "The Fugitive")

ANNOUNCER: Name, Richard Kimble. Profession, doctor of medicine. Destination, Death Row, state prison. Richard Kimble has been tried and convicted for the murder of his wife, but laws are made by men carried out by men, and men are imperfect. Richard Kimble is innocent.

LYDEN: That's the opening sequence for the 1963 television show, The Fugitive, based on the real-life quest of an Ohio doctor to prove his innocence. Other programs of that era, like Perry Mason and The Defenders, also stress the rights of the accused. The same year that The Fugitive debuted, 1963, the Supreme Court ruled in Gideon v. Wainwright that indigent defendants must be given a court-appointed attorney. Three years later the court also issued its ruling in the Miranda case, making sure police officers read suspects their due process rights when making arrests. Historian Eric Foner agrees that our nation's understanding of civil liberties is expanding.

Prof. FONER: We should not think that our history is just a - pretty much a straight line or a common theme of people enjoying civil liberty all the way through, and then there are these kind of glitches that happen during war. Real respect for basic civil liberties is relatively recent in American history, in peace as well as war. I mean, try to picket, if you were a labor union, in many places in this country for much of our history. Try to go and demand your civil rights if you were a black person in the South in 1890. So obviously, there has been a long history of respect for liberty and respect for dissent in this country, but there have also been many, many instances where views that are considered outside the acceptable have been pretty brutally suppressed. So what happens in wartime is not just that there's something that's a complete aberration, but an intensification of a tendency which is always there in our society, but wartime kind of gives it a much greater power.

LYDEN: President Bush may be confident of history's verdict, but there's already talk of challenging the new military commissions law in the Supreme Court.

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