[Peace-discuss] Fwd: [SRRTAC-L:7013] War v. Law: A case whose verdict can be momentous

[Al Kagan]

>Delivered-To: akagan at alexia.lis.uiuc.edu
>X-Priority: 1 (Highest)
>Date: Wed, 24 Oct 2001 20:03:37 -0400
>To: SRRT Action Council <srrtac-l at ala.org>
>From: Mark Rosenzweig <iskra at earthlink.net>
>Subject: [SRRTAC-L:7013] War v. Law: A case whose verdict can be momentous
>Cc: plgnet-l at listproc.sjsu.edu, srrtac-l at ala.org
>Reply-To: srrtac-l at ala.org
>Sender: owner-srrtac-l at ala.org
>Status:  
>
>
>
>
>
>Dear Colleagues:
>
>There is a case before the court of the people. Call it 'War v. Law'.
>
>As the article below contends, this case almost certainly cannot be 
>a victory for law if it is allowed to be decided in the Supreme 
>Court paradoxical as that may seem. War will trump law there, now as 
>ever. 
>
>It is a case which can be won or lost, if we do not simply concede 
>it,  by the people's elected representatives. This will happen only 
>under the organized pressure of  large, effective coalitions in 
>vigilant defense of rights which we *know* are threatened by the de 
>facto suspension of the rule of law under the constellation of the 
>present administration, whose Chief -- though probably not even 
>legally elected as President -- wields powers which one can only say 
>show a instinctive desire to radically undo protections of civil 
>liberties and constitutionally-derived rights which we take for 
>granted, and to do so under the cover of the blanket-argument of 
>"national security".
>
>In a state of war, which is presumed to exist, Bush's people. like 
>Ashcroft & Ridge, can re-shape the figure of our republic and impose 
>on it new norms of behavior and limits to the rights of citizens. 
>The article below, wrotten by a lawyer who is certainly no Tom Paine 
>issuing a call to arms, says it is up to us, and it is up to us 
>right now.
>
>I quote the conclusion of this article by Constitutional expert 
>Sanford Levinson, as a warning and a call to emergency reorientation 
>towards opposition to the measures being taken which have nothing 
>demostarbly to do with 'winning the war against terrorsim'.
>
>Levinson says:
>
>"The most serious constitutional debates in coming weeks will take 
>place in plain view, as it were - in the nation's editorial and 
>letters-to-the-editor columns, on talk shows, and in Congress.
>
>"All Americans have a vital stake in the outcome of these debates 
>and all, therefore, should feel empowered to participate in them. 
>One scarcely needs legal training in order to understand the basic 
>issues posed by "balancing" national security claims against 
>traditional individual liberties. This is not a situation where 
>"experts" can tell us what to -- it is one in which we must look to 
>our own conscience, values and beliefs.
>
>"[...] In any event, it is naïve to believe that the Supreme Court 
>will invalidate any government action that receives both 
>congressional and presidential imprimatur as necessary and proper to 
>protect Americans against the terrorist threat. If our liberties are 
>to be protected, it is up to us to protect them."
>
>Mark Rosenzweig, ALA Councilor at large
>
>
>
>
>
>
>
>
>WHAT IS THE CONSTITUTION'S ROLE IN WARTIME?:
>Why Free Speech And Other Rights Are Not As Safe As You Might Think
>By SANFORD LEVINSON
>----
>
>Wednesday, Oct. 17, 2001
>
>
>Does law speak in time of war? And, if so, to whom, and how loudly? 
>No question is more important to a polity that claims to be 
>structured by constitutional norms.
>
>The United States Constitution contains no "emergency power" or 
>general "suspension" clause of the kind found in the Weimar 
>Constitution or the current Indian Constitution. It is difficult to 
>read our constitutional history, however, without believing that the 
>Constitution is often reduced at best to a whisper during times of 
>war.
>
>Suspending Habeas Corpus
>
>The most obvious source of examples to support this proposition is 
>the Lincoln presidency. Indeed, one of Lincoln's first acts was to 
>order suspension of habeas corpus.
>
>The Constitution does allow the suspension of habeas corpus - in the 
>single clause that establishes even a limited authority to abrogate 
>law in wartime. This clause, however, appears in Section 9 of 
>Article I - the Article defining Congress' powers - not in Article 
>II, where the President's powers are defined. That placement 
>strongly suggests that Congress must grant prior authorization when 
>habeas corpus is suspended. In 1861, Lincoln had no such 
>authorization.
>
>Early in his career, Lincoln had spoken of "reverence for the laws" 
>as the "political religion of the nation." He also called on all 
>Americans to "swear by the blood of the Revolution, never to violate 
>in the least particular, the laws of the country; and never to 
>tolerate their violation by others."
>
>How then, did Lincoln defend his unilateral suspension of habeas 
>corpus? He made the claim - a dubious one, as noted above - that the 
>Constitution empowered him to do so. But he also posed a rhetorical 
>question: If "all the laws, but one, [are] to go unexecuted, and the 
>government itself to go to pieces, lest that one be violated?" 
>Lincoln knew most citizens would favor the suspension of habeas 
>corpus over the destruction of the government, given the choice.
>
>The Emancipation Proclamation
>
>Later, with a stroke of the pen Lincoln, in the Emancipation 
>Proclamation, unilaterally ordered one of the most extensive 
>confiscations of "property" in world history. His authority was 
>based on "the power in me vested as Commander-in Chief . . . and as 
>a fit an necessary war measure." One could plausibly view this as a 
>violation of the Constitution's prohibition on the government's 
>taking property without due process or compensation.
>
>Consider the response of one newspaper that supported the 
>Proclamation: "Nobody pretends this act is constitutional, and 
>nobody cares whether it is or not."
>
>Justice Benjamin R. Curtis quoted this newspaper's comment in his 
>pamphlet attacking the Proclamation. Curtis deemed the Proclamation 
>a particular "cause for alarm" in that it showed, he thought, a 
>"tendency to lawlessness" even by public officials. "[P]ublic 
>servants may themselves break the fundamental law of the country . . 
>. in violation of their solemn oath of office; and 'nobody cares,'" 
>Curtis complained, suggesting that Lincoln, with the Proclamation, 
>broke his oath to uphold the Constitution.
>
>I suspect that most of us find Curtis's concerns almost beside the 
>point. Ironically, though, that simply establishes the validity of 
>his basic insight: Even today, nobody cares.
>
>The exigencies of war might have had something to do with the 
>widespread acceptance of the Proclamation - seen as a step in 
>defeating the South. But the sheer moral force of Lincoln's action 
>certainly won him adherents as well.
>
>Debs and Dennis: When Free Speech Yields to War
>
>Of course, it is not only the Lincoln presidency that exemplifies 
>the truth behind Justice Holmes's assertion that ordinary 
>constitutional norms may be relaxed "when a nation is at war."
>
>Indeed, Holmes himself wrote the infamous anti-free speech Debs 
>opinion for the Supreme Court. The opinion allowed Eugene Debs, the 
>leading socialist politician in our history, to be jailed for ten 
>years because he had expressed opposition to World War I.
>
>Years later, in 1951, the Court still viewed speech in wartime (Cold 
>War-time) much the same way. In Dennis v. U.S., the Court upheld the 
>imprisonment of top leaders of the Communist Party.
>
>The Court's rationale? In part, it based its decision upon the rule 
>suggested by Learned Hand that the ability of the state to punish 
>speech should be the result of multiplying the likelihood of the 
>threatened event by the "gravity" of the evil. The formula, of 
>course, is troubling: A threat that is extremely unlikely to become 
>reality, but is also extremely grave, might still justify 
>suppressing speech.
>
>To be sure, Dennis and Debs seem implicitly to have been overruled 
>by the 1969 Brandenburg decision. There, the Court overturned Ku 
>Klux Klansman Clarence Brandenburg's conviction for calling for 
>"revengeance" against blacks, Jews, and Catholics, on the ground 
>that the conviction violated the First Amendment.
>
>Still, the barest acquaintance with American constitutional history 
>teaches that nothing is necessarily forever. In 1969, Brandenburg 
>was viewed as basically irrelevant; society, in the Sixties, seemed 
>to have triumphed over the Klan.
>
>Would today's Supreme Court be as protective of a vocal supporter of 
>Osama bin Laden? What if the speaker were a Moslem resident alien 
>identified with a radical Islamic fundamental group? And what if the 
>speech were given to other members of the same radical group - 
>calling for participation in a "jihad" against a hated United States?
>
>The "Pentagon Papers" Decision: Less Pro-First Amendment Than It Appears
>
>Consider even the famous "Pentagon Papers" decision in 1971. In that 
>decision, the Supreme Court freed the New York Times from a lower 
>court's injunction against its publication of the classified history 
>of the Vietnam War. The opinion now stands as a famous free speech 
>victory. But is it as much of a victory as it appears?
>
>We do well to recall that three justices (Blackmun, Burger, and 
>Harlan) would have sustained the injunction. Two other justices, 
>Stewart and White - the "swing votes" - gave as the reason for their 
>pro-Times vote the lack of congressional authorization for 
>suppression. Moreover, White left open the possibility that while 
>the injunction - as a prior restraint - was impermissible, the Times 
>could be punishable by damages awarded post-publication.
>
>Only a minority of four justices, therefore, thought that the 
>nation's leading newspapers were completely protected by the First 
>Amendment - in the sense that they would have been protected even if 
>a Congressional statute had specifically directed that the Pentagon 
>Papers could never be published.
>
>Is the famous Pentagon Papers case, then, solid law? Not as solid as 
>one might think. A similar case could conceivably make its way to 
>the Court on an expedited basis this year, and this time, the type 
>of Congressional statute that Justices White and Stewart said was 
>needed might well exist.
>
>Certainly the Bush Administration - which has urged networks not to 
>show the bin Laden video, and decried leaks of classified 
>information - would show little sympathy for a "Pentagon 
>Papers"-like leak. Nor, one might think, would Congress.
>
>Would Korematsu Be Decided Differently Today?
>
>Just as many of us have assumed Brandenburg and the Pentagon Papers 
>case will remain the law, so too many of us have assumed that the 
>notorious Korematsu case will not. But this assumption, too, may be 
>inaccurate.
>
>In 1944's Korematsu case, in a ruling with which many are familiar, 
>the Supreme Court upheld the President's Executive Order 9066. The 
>Order forced relocation and internment of Japanese-Americans-as well 
>as their Japanese-national parents who, though resident aliens, were 
>ineligible to become American citizens under then-existing American 
>naturalization law. In passionate dissent, Justice Roberts termed 
>the internment camps "concentration camps."
>
>In 1988, the United States formally apologized and even paid 
>compensation to those affected. Korematsu, however, remains on the 
>books; the Court has never formally overruled it.
>
>No one familiar with recent defenses of the rationality of "racial" 
>- or, more accurately, national origin/religious - profiling can be 
>confident that Korematsu would not be decided similarly today.
>
>Increasing Court Deference to Compelling State Interests
>
>The years since 1969's Brandenburg pro-First Amendment decision have 
>seen an opposite trend: the flourishing of the doctrine of 
>"compelling state interests."
>
>In practice the point of this doctrine, it seems, is to excuse 
>deviation from what are ordinarily believed to be basic norms, by 
>reference to the unacceptable costs of adhering to these norms. 
>Exemplifying this trend, the Supreme Court's 1981 decision in Haig 
>v. Agee deserves renewed attention - not so much for its ruling as 
>for its reasoning.
>
>Agee was what Laurence Tribe describes as a "singularly 
>unattractive" litigant - "a former C.I.A. employee whose declared 
>purpose in travelling abroad was to expose the identities of C.I.A. 
>agents." Unsurprisingly, the Court had little trouble upholding the 
>national government's power to withhold his passport. Few disagreed 
>with the ruling, and that may be why Haig v. Agee has attracted 
>relatively little comment.
>
>What deserves notice, though, is what the Court wrote along the way: 
>It is, the Court stated, "'obvious and unarguable' that no 
>governmental interest is more compelling than the security of the 
>Nation." Suppose the Court really meant what it said - for there is 
>no reason to think it did not. Suppose, too, that the Court chooses 
>not to require from the government an explicit and empirical 
>demonstration of a close connection between the power sought, and 
>actual protection of "the security of the Nation." The inevitable 
>conclusion is that all bets are off with regard to the courts 
>offering genuine protection of civil liberties during time of war.
>
>Congressional Protection of Civil Liberties?
>
>If we cannot look to the Court to protect our civil liberties in the 
>coming years, we can at least ask Congress to do so. Perhaps 
>unexpected-some might say unholy-coalitions in Congress between 
>Representatives like Bob Barr and Barney Frank will spring up.
>
>Or perhaps usually opposed groups like the National Rifle 
>Association and the American Civil Liberties Union, who claim to be 
>able to hear a resonant Constitution that speaks during times of 
>war, may see a common interest. One can scarcely be optimistic about 
>these coalitions or groups prevailing, however.
>
>Many readers may find "optimism" the wrong word; they might instead 
>endorse the claims of Attorney General Ashcroft that emergency does 
>indeed call for the maximum exercise of governmental power and 
>concomitantly flexible constitutional interpretation.
>
>Or perhaps they might agree with Alabama Senator Richard Shelby that 
>the United States in effect should emulate Great Britain by passing 
>the equivalent of an "Official Secrets Act." The Act could make it a 
>criminal offense to receive information that the recipient knows to 
>be classified, a proposal that would already be law were it not for 
>a courageous veto by former President Clinton late in his term. (It 
>helped, no doubt, that Clinton was encouraged to exercise the veto 
>by almost every major news organization.)
>
>The Need For Constitutional Debate, Now More Than Ever
>
>The most serious constitutional debates in coming weeks will take 
>place in plain view, as it were - in the nation's editorial and 
>letters-to-the-editor columns, on talk shows, and in Congress.
>
>All Americans have a vital stake in the outcome of these debates and 
>all, therefore, should feel empowered to participate in them. One 
>scarcely needs legal training in order to understand the basic 
>issues posed by "balancing" national security claims against 
>traditional individual liberties. This is not a situation where 
>"experts" can tell us what to do - it is one in which we must look 
>to our own conscience, values and beliefs.
>
>Chief Justice John Marshall famously wrote, in Marbury v. Madison, 
>that it is the province of the Court to say what the law is. I am 
>tempted to add that it is most certainly "the province" of the 
>citizenry in general, and of their representatives in Congress, to 
>say what the law is now, with regard to the issues I have discussed 
>here.
>
>In any event, it is naïve to believe that the Supreme Court will 
>invalidate any government action that receives both congressional 
>and presidential imprimatur as necessary and proper to protect 
>Americans against the terrorist threat. If our liberties are to be 
>protected, it is up to us to protect them.
>
>What Do You Think? Message Boards
>
>  Mark Rosenzweig
>Director
>RCMS/Library & Archives
>NYC
>
>"Nihil humani a me alienum puto"

-- 


Al Kagan
African Studies Bibliographer and Professor of Library Administration
Africana Unit, Room 328
University of Illinois Library
1408 W. Gregory Drive
Urbana, IL 61801, USA

tel. 217-333-6519
fax. 217-333-2214
e-mail. akagan at uiuc.edu
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