Can we be secure and free?

Public Interest, Spring, 2003 by Thomas F. Powers

We can see the special character of our current situation, with its novel emphasis on due process, by comparing it to earlier civil liberties crises in our history. The attempt by the administration of John Adams to use the Alien and Sedition Acts to quell public disagreement with its policy toward the French Revolution centered on the very idea of a "loyal opposition." The eventual defeat of Adams's Federalist party in the election of 1800 and its ultimate collapse as a viable force on the national stage seemed to settle the issue decisively on the side of open and free debate of wartime questions. Lincoln's extraconstitutional measures during the Civil War--commencing hostilities and suspending the writ of habeas corpus without explicit Congressional authorization--raised a variety of issues, including what we would today term due process considerations. But, during the Civil War, due process violations were viewed as less important than violations of free speech, freedom of the press, and the elementary ri ghts of political opposition. During World War I, passage of Espionage and Sedition Acts once again put free speech front and center. World War I saw the Supreme Court's first free speech rulings as well as the formation of the American Civil Liberties Union. During World War II, the policies of the Roosevelt administration raised relatively few civil liberties questions. However, the internment of Japanese Americans (upheld by the Supreme Court in a decision that still stands, however notoriously) has been widely judged in retrospect to have been a colossal civil rights failure.

It seems fair to say that America has learned several important lessons from its previous wars. The issues we face today do not arise because wartime fears and patriotic zeal have spawned repression of political opposition or freedom of speech, as with the Alien and Sedition Acts of 1798, the Civil War, and World War I. Limitations applied to due process rights today are not viewed, even by most civil libertarians, as a way to stifle voices of opposition to the war effort. While troubling civil rights issues have surfaced, the differences between the actions of the Bush administration and the mass internment of Japanese Americans during World War II are as important as they are obvious. The distinctive focus of the current controversy is on questions of due process. And it is in regard to these policies that we will likely be judged in the future.

What is a due process civil libertarian?

The centrality of due process in today's debate is thus novel, reflecting the specific character of the current conflict as well as recent constitutional developments. It is also somewhat strange. What is a "due process civil libertarian"? And how are we to understand this new form of liberal idealism that has been so starkly revealed by the pressures of war?

While it is easy to see the lofty appeal of freedom of worship, freedom of speech, and civil rights, the protections of due process are less inspiring. It is true that due process protections are connected in obvious ways to the general ideal of limited government enshrined in the Constitution. But are there not important distinctions to be drawn between those constitutional features that are more and less fundamental to this ideal? Wrongful convictions and police abuse are obvious evils, and their attempted avoidance a great benefit of a humane, civilized society. But can resistance to such (ultimately unavoidable) failings of a legal order really generate the same sort of moral idealism as the other central features of our constitutional order? Crime too is an evil, but we have no corresponding name or high moral praise for the avoidance of it. Moreover, unlike freedom of religion, freedom of speech, and civil rights, issues relating to due process do not involve the distinctive substance of policy or the c ontent of political life in a liberal republic. These are issues that arise in the administration of justice in any and every political order.