Hi Doug,
It is never clear to what extent rights will be curtailed during wartime, but it is clear that personal rights can and will be suspended. My understanding of the Constitution is that these issues are not spelled out in detail (and even where they are, they have been flagrantly violated anyway at times). I think that was probably intentional, with the thought that extreme circumstances might at times prudently dictate extreme measures temporarily, and that these might not be foreseeable and should not be spelled out in detail. As it turns out, if that was a concern, the writers of the Constitution need not have been worried about the strict adherence to either the letter or the spirit of the law as spelled out in the Constitution to the detriment of national security, because that has never been a problem. During wartime, leaders (and often, the people) have much less use for law than during peacetime, and can rationalize and justify actions that would be completely unacceptable and disallowed during peacetime. These are, IMHO, some of the lessons our own history has taught us.
Historically, here are some things that have in fact occurred during periods of declared war in America:
1. During the War of 1812, trade was restricted, and the central government usurped some of the powers of individual states.
2. During the Civil War, the President seized powers allocated to Congress by the Constitution and engaged in systematic analysis of private mail and telegrams. Military leaders were allowed to arrest people without warrants, and writs of habeas corpus (a legal tradition dating back at least to Roman times) were suspended, along with other criminal rights. Freedoms of speech and press were ended by presidential order. Governments seized private property. In particular, with the Emancipation Proclamation the president essentially unilaterally seized an enormous amount of what was up till then defined as property, but was unilaterally "redefined" with the Emancipation Proclamation. The Constitution does provide for suspension of writs of habeas corpus in Article 1, Sec. 9: "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." Section 8 grants some wartime power to Congress: "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water."
3. During World War I, freedom of speech was suspended by the Sedition Act, and censorship of the press instituted. The Espionage Act of 1917 and the Sedition Act of 1918 prohibited speech that was meant to discourage the sale of war bonds; speech that was anti-government; speech against the Constitution, the military forces, or the flag of the United States; and speech that urged the curtailment of war production. The president denied the use of the mails to publications that might "embarrass" the government and sent more than a thousand critics of the war to jail. Incidentally, at this time the Supreme Court upheld the authority of the government to indefinitely suspend the right to freedom of speech during wartime. For example, Eugene Debs was imprisoned for 10 years because he was a socialist who verbally expressed opposition to the war. This action was upheld by the Supreme Court in a famous opinion written by Chief Justice Wendell Holmes:
caselaw.lp.findlaw.com
This suspension of the right of free speech guaranteed by the Bill of Rights has been upheld in subsequent opinions, even during periods of non-declared war, for example in 1951, when the Supreme Court upheld the imprisonment of top American leaders of the Communist Party:
caselaw.lp.findlaw.com
But, more recent Supreme Court decisions have upheld the view that freedom of speech should not be curtailed during periods of undeclared war, but have not said the same thing about periods of declared war:
caselaw.lp.findlaw.com
4. During World War II, most sectors of the economy came under government control (i.e., wages, rents, factories and the work they would perform, production of goods and services in general, control of allocation of resources). Incomes over $200,000 a year were virtually confiscated, since the taxation rate on those incomes was raised to 88%. Labor unions lost rights at this time, and of course some American citizens (notably, Americans of Japanese descent, but also Italian Americans) were imprisoned indefinitely without charges, trial, or due process of any substance, and their property confiscated and never returned. This executive order was upheld in a 1944 Supreme Court decision, the famous Korematsu decision:
caselaw.lp.findlaw.com
Despite the fact that decades later, a formal apology was issued by Congress, and reparations made, this decision has never been legally overturned. This theme is seen again and again and again in our own history, as well as the history of the behavior of other governments during periods of "declared war": actions are taken and rationalized and justified at the time based on "national security" pretexts, and later, when cooler heads prevail, these actions are judged to have been without valid cause. To me, this underscores the value and need for objective, external law as a guide, since it can be safely presumed that during times of urgency or even perceived urgency, judgement flies out the window, and those in the middle of these situations are generally in a very poor position to make clear assessments of things.
Less well known is the fact that about 600,000 Italian Americans suffered a fate similar to that of Japanese Americans during World War II. They were essentially relocated, imprisoned indefinitely without charge, property confiscated with no due process, and personal (Bill of Rights) liberties revoked:
bss.sfsu.edu
writ.news.findlaw.com
usnewsclassroom.com
geocities.com
marquette.edu
fortunecity.com
I think anybody who expects the judicial system to take up any cause of personal rights and freedoms during time of declared war (or even undeclared war) is misguided and unfamiliar with the history of the behavior of the judicial system in such situations. The courts have in general never done so, citing the national security as superceding personal freedoms, with very dubious validity at times. But, the courts have also upheld the legality of suspensions of personal liberties even during periods of non-declared war as well with the same rationale, and again with probably more dubious validity.
Declared war has tended to present governments and their officials with rich opportunities to extend and amass power, and I know of no instance where a government or an official has declined to take advantage of those opportunities, which invariably are at the expense of others, often civilians. This has always been justified and rationalized on the basis of the urgency of the situation, and national security, sometimes with substantial validity, sometimes without. This says nothing whatever about the individuals involved IMHO, but worlds about the nature of power, and the brilliance of our system of opposing tensions that normally effectively prevents sequestration of power, but instead wisely diffuses it without relinquishing that power. When those tensions temporarily yield, and one side (ANY side) acquires exorbitant power relative to the other, if you expect abuses of that power you will not be disappointed.
As always, JMVHO.... YMMV.... MSS..... BNI....
T |
