October 23, 2001
Commentary
Security Comes Before Liberty
By Jay Winik, the author of "April 1865: The Month That Saved America" (HarperCollins, 2001).
In 1995, a little-known operative, Abdul Hakim Murad, was arrested in the Philippines on a policeman's hunch. Inside Murad's apartment were passports and a homemade bomb factory -- beakers, filters, fuses and funnels; gallons of sulfuric acid and nitric acid; large cooking kettles.
Handed over to intelligence agents, Murad was violently tortured. For weeks, according to the book "Under the Crescent Moon," agents struck him with a chair and pounded him with a heavy piece of wood, breaking nearly every rib. But Murad said nothing. He taunted them. So they forced water into his mouth. They crushed lighted cigarettes into his private parts. Even then, he remained silent.
In the end, they broke him through a psychological trick. A few Philippine agents posed as members of Israel's Mossad and told Murad they were taking him to Israel. Terrified of being turned over to the Israelis, he finally told all. Then and only then.
And what a treasure trove of information it was. One of his roommates was Ramzi Yousef, a mastermind of the 1993 World Trade Center bombing, now serving a 240-year term in a U.S. prison. More ominously, Murad recounted a horrific plot to assassinate Pope John Paul II in Manila, simultaneously blow up 11 U.S. airplanes in the Pacific, and fly another plane, loaded with nerve gas, into the Central Intelligence Agency.
One wonders, of course, what would have happened if Murad had been in American custody?
Vulnerable
It is no idle question. Today our international might may be at its zenith, but we as a nation have never been more vulnerable to debilitating and destabilizing attacks at home. As the U.S. ponders a largely hidden enemy, potentially armed with bioweapons -- anthrax, plague, even smallpox -- and perhaps a radiological bomb, one of the most important decisions the nation faces is how we balance the security measures we need to forestall future attacks with America's much-cherished doctrine of civil liberties.
It is commonly agreed that our greatest breakthroughs in this war will most likely come not from military strikes or careful diplomacy -- needed and important as they both are -- but from crucial pieces of information: a lead about a terrorist cell; a confession from a captured bin Laden associate; reliable intercepts warning that a new attack is going to take place. Indeed, one small lead could potentially save thousands or hundreds of thousands of lives -- perhaps millions.
But how we go about obtaining this information also raises crucial questions: When is detention going too far? When is the surveillance too much? Is e-mail fair game? Or is wartime censorship acceptable? (Already the administration has asked the media not to air the recent Osama bin Laden tapes, as well as to edit his transcripts.) And at what point are we giving government more power than is necessary, as well as unbridled access to personal information, thereby jeopardizing or perverting our precious democratic institutions?
But if history is any guide -- and it is -- we see that the Bush administration's proposals, even at the far end of the ledger, pale in comparison to what previous wartime administrations have imposed. Ironically, we may be the first generation of Americans to wrestle so intensely with this issue. Faced with the choice between security and civil liberties in times of crisis, previous presidents -- John Adams, Abraham Lincoln, Woodrow Wilson and Franklin Roosevelt -- to a man (and with little hesitation) chose to drastically curtail civil liberties. It is also worth noting that despite these previous and numerous extreme measures, there was little long-term or corrosive effect on society after the security threat had subsided. When the crisis ended, normalcy returned, and so too did civil liberties, invariably stronger than before.
During John Adams's administration in 1798-99, war hysteria over a looming conflict with France (many feared a French invasion) gripped the young American republic. French refugees, once welcomed, were viewed as potential spies. Singers of the "Marseillaise" were hissed off Philadelphia stages. And Congress passed the Alien and Sedition Acts, considered one of the lowest points in U.S. history.
The acts provided the government with sweeping powers to deport any alien considered dangerous to the nation's welfare, as well as to impose fines and heavy imprisonment on anyone found guilty of writing, publishing, uttering or printing anything of "a false, scandalous and malicious" nature against the government. Thomas Jefferson privately called it "the reign of witches" and many Republicans openly worried that the Federalist administration was abandoning the principles of the Enlightenment, the Revolution and the Constitution. (In one telling instance, a congressman, thrown in jail for four months, was re-elected while serving his sentence.)
Yet if Adams's administration was harsh, Abraham Lincoln's during the Civil War was considerably harsher. The president suspended the writ of habeas corpus and subjected "all persons discouraging volunteer enlistments" to martial law. To enforce this decree, a network of provost marshals promptly imprisoned several hundred antiwar activists and draft resisters, including five newspaper editors, three judges, a number of doctors, lawyers, journalists and prominent civic leaders.
Opposition to Lincoln's war aims was considered opposition to the war itself, and scores of opponents, including well-known citizens, respected police commissioners and even a police chief, were subject to military arrest. One estimate is that throughout the war Lincoln detained 13,535 people. Many were held for extended periods, though the government never offered any evidence against them or brought the prisoners to trial. Quite a few were guilty of little more than southern sympathies or lukewarm Unionism. When Chief Justice Roger B. Taney declared Lincoln's suspension of habeas corpus unconstitutional, Lincoln flatly refused to obey the ruling.
At one point, Union troops even sealed off Frederick, Md., and arrested 31 state legislators to prevent them from voting for the state to secede. At another point, Ulysses Grant issued his infamous "Jew Order," expelling all Jews from the region under his command (a storm of pressure forced him to rescind the order). Even congressmen were not safe. In the middle of the night, one of Lincoln's generals arrested Rep. Clement Vallandigham of Ohio and threw him jail. Vallandigham's offense: "disloyal sentiments and speeches." When cries of despotism by his political opposition mounted, Lincoln commuted Vallandigham's sentence from imprisonment to . . . banishment; he was forcibly escorted by the military out of the Union.
Even a change of century did little to protect civil liberties in time of war. A week after World War I was declared, Woodrow Wilson created the Committee on Public Information to mobilize public opinion. Designed to help sell war bonds, combat absenteeism in the factories, and reconcile doubters to the war, this propaganda committee also cultivated a kind of war madness. All dissent became suspect: There were continual spy scares, witch hunts and even kangaroo courts that imposed harsh sentences of actual tar and feathering. The Espionage Act of 1917 followed, giving the postmaster general the authority to prevent publications from using the U.S. mail, while the subsequent Trading with the Enemy Act provided sweeping authority to censor the foreign-language press.
Then, in 1918, the newly passed Sabotage and Sedition Acts went even further, empowering the federal government to punish any expression of opinion considered "disloyal, profane, scurrilous or abusive." Activist Eugene V. Debs was imprisoned for a decade after expressing antiwar views. People were regularly hauled into court for as little as criticizing the Red Cross or questioning war financing, and the mail was summarily closed to publications that espoused socialism or feminism or displayed an anti-British bias.
World War II produced a whole new set of draconian curbs on civil liberties. After Japan's attack on Pearl Harbor, Franklin Roosevelt personally signed the infamous Executive Order 9066, authorizing the expulsion of "all persons" of Japanese ancestry (70% of whom were U.S. citizens), from their West Coast homes. Forced to leave on a week's notice, more than 110,000 were shipped by bus and train to "relocation centers," where they were herded into primitive camps rimmed by barbed wire and patrolled by armed guards. None had been accused of any crime. Nor had there been any instances of sabotage or spying. (FDR's intelligence services, for the most part, determined that few posed a risk; in fact, a number of the detainees had husbands, sons and fathers serving in the U.S. armed forces.)
Nevertheless, they were incarcerated until 1946 -- months after the war with Japan ended. By then, some 80% of the internees' property had been damaged by looting and vandalism; when the camps finally closed, many had lost everything. Ironically, however unconstitutional many of FDR's policies may seem to us today, they were not even controversial until a generation later.
It is hard to think of a group of presidents more passionate in their staunch support of democracy than Adams, Lincoln, Wilson and Roosevelt. Yet they -- Federalists, Republicans and Democrats alike -- did not hesitate to enact harsh, even ruthless measures in times of national crisis. And however shocking, flawed or atrocious their actions may appear in hindsight, it is crucial to note that each president (save perhaps Lincoln) did so when there was, ultimately, no overwhelming "fire in the rear," no credible widespread, subversive threat within our own borders. Today, however, we may be facing just such a threat, and one that is largely without historical parallel.
Unprecedented
To respond, we as a nation will have to confront some hard choices. The enormity of the risk to civilian lives on American soil is unprecedented, yet despite this the Bush administration has thus far shown remarkable restraint. But as the president weighs what additional measures will be needed, both the administration and civil libertarians would do well to recall that our history demonstrates that war-time restrictions on civil liberties have neither been irrevocable nor have they curtailed our fundamental freedoms in times of peace. Indeed, our democracy can, and has, outlived temporary restrictions and continued to thrive.
And if, as we get thicker into this grim conflict, the administration deems it necessary to enact more restrictive steps, we need not fear. When our nation is again secure, so too will be our principles.
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