November 19, 2001
Testing the Resilience of American Values
By JEFFREY ROSEN
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| (The Associated Press) |
| A Palestinian-American at a candlelight vigil in Brooklyn after Sept. 11. |
WASHINGTON
WHEN President Bush signed an executive order allowing foreigners suspected of international terrorism to be tried in special military tribunals, many on the right as well as the left complained that he had seized dictatorial power and betrayed basic American values of liberty and equality. But in fact, those values have proved to be both malleable and resilient over the course of American history, and their most reliable defenders have been the American people rather than judges interpreting unalterable principles of law.
Throughout the 19th and 20th centuries, American protections for free speech and due process of law evolved dramatically, along with national views of permissible forms of discrimination. After World War II, the nation grew more individualistic, more egalitarian, more inclusive, more suspicious of authority and more enamored with legalistic procedures.
But these trends could be slowed or even temporarily reversed without changing the character of America beyond recognition. During wartime, there have been serious assaults on civil liberties that appear unnecessary and ill-advised in hindsight. But the nation has survived to become ever more liberal and equal. As Alexis de Tocqueville wrote, democracy in America will become more and more egalitarian in the long term — but there may be bumps along the way.
So what elements of American constitutionalism are essential and not negotiable? What legal protections and political institutions could not be jettisoned without turning America into, say, Chile under Gen. Augusto Pinochet, a country that seemed orderly on the surface but where the order was maintained by secret courts that suppressed free speech?
There are certain minimal requirements of democracy and limited government: an independent judiciary, free elections and basic protections for free speech, free association and due process. But the truth is that there are few institutions and constitutional principles that haven't been adapted to fit the perceived needs of any given moment in American history and can't be similarly adapted in the future. And if there is a line that separates the United States from Chile, the restrictions proposed by the federal government in the wake of Sept. 11 haven't crossed it yet.
The most vigorous critics of the Bush administration do claim that the government is using its new powers to protect itself from scrutiny. "What this really looks like is soft authoritarianism," said Herman Schwartz, a law professor at American University who advises emerging democracies on constitutions. "You have a very powerful secret police, and corners constantly being cut; you have a free press, but continuous pressure on it; a government which recognizes that it can't become an authoritarian or totalitarian government but nevertheless wants to squelch opposition."
It is hard, however, to point to any formal suppression of dissent, let alone anything comparable to the government censorship imposed after World Wars I and II. Pressures to curb free speech today come primarily from public opinion rather than federal or state governments.
Other critics of the administration argue that noncitizens as well as citizens are entitled to due process, and that there is something un-American about depriving noncitizens of basic procedural protections. "The most troubling thing is the detentions," said Akhil Reed Amar, a professor at Yale Law School. "Who are these thousand people and what are they being charged with?"
Alan Brinkley, a historian at Columbia University, said: "Habeas corpus is gone, trial by jury is gone. This is one of the most extraordinary assaults on civil liberties, albeit not of citizens, in our history." Except for the Japanese internment during World War II, he said the United States has never targeted citizens or noncitizens "in measures that would strip from them virtually all of the constitutional protections."
It is not clear whether President Bush's executive order does, in fact, suspend habeas corpus appeals for noncitizens convicted in a military court. Nonetheless, Charles Fried of Harvard Law School insists that even if President Bush has suspended the writ of habeas corpus in the military tribunals, he would be justified. In fact, the Constitution allows Congress to suspend habeas corpus "when in cases of rebellion or invasion the public safety may require it." Lincoln got away with usurping Congress's prerogative during the Civil War.
"Is this due process?" asks Professor Fried. "Yes. It is that process due under the laws of war. The British call it principles of natural justice, recognized universally: that you be tried before an impartial tribunal; that you have a chance to hear the evidence against you, to question and to produce your own evidence, and the right to some kind of assistance of counsel, although not necessarily the person you'd want to have."
The refusal of Congress and the president to impose more draconian restrictions on noncitizens has impressed some scholars of immigration. "There's been a remarkable degree of self-restraint so far, which I think speaks well for the country in its attitude toward aliens," says Peter H. Schuck, a professor at Yale Law School. Professor Shuck insists that the current treatment of noncitizens looks nothing like the internment of Japanese-Americans during World War II. "There hasn't been a whisper of that kind of policy," he said, "and the president's emphasis on the rights of Muslims and Arabs in this country was unprecedented for a president in time of war."
It is true that America's attitude toward immigration and undocumented workers seems to be growing more restrictive in the days since Sept. 11. But even a reversal of the postwar trend toward welcoming immigrants could hardly be called a violation of basic American values, in light of the shifts in immigration policy through the 19th and 20th centuries. "We've had closed borders, open borders and semi-open borders," says Alan Wolfe, a professor of political science at Boston University. "If we were to now say that illegal immigrants who have overextended their visas have no right to be here, that would be tighter that where we were over the last 10 years, but looser than we were" in the 1950's.
For most of American history, distinctions between citizens and noncitizens were far more dramatic than they became at the end of the 20th century. The classical model of citizenship, evident at the nation's founding, gave government broad discretion to discriminate between citizens and noncitizens. The Chinese, for example, were prohibited from naturalization in the 1880's, and the Supreme Court upheld Congress's decision to deport Chinese laborers. It wasn't until after World War II that the Supreme Court created a more expansive view, in which distinctions between citizens and noncitizens became less significant.
PERHAPS the real story after Sept. 11 is that America hasn't yet come close to abandoning any immutable principles of its national identity. But might it do so in the future? Today, for example, any government suppression of citizens' First Amendment rights of free speech and association could be viewed as crossing a line in a way that would not have been case in the 1920's, during the Palmer raids, and in 1950's, in the McCarthy era. Now that several generations have come to regard an ever more rigorous protection of free speech as fundamental, the bar for what government can acceptably do has been raised.
But no citizens' rights of free speech have been suppresed by government so far. "Freedom of association is the bedrock of who are," said Roger Wilkins, a history professor at George Mason University. "That came under withering attack in the 1950's, but I don't see any threat to it now."
The most plausible criticism of the wartime emergency measures is that some seem to have no end in sight. For this reason, the challenge will be to ensure that measures adopted in the name of national emergency don't endure after the emergency ends. As Harvey C. Mansfield, the Harvard political theorist, warned, "The trouble of speaking about necessity is that concept is elastic, and it can be stretched to include many things that aren't really necessary."
What America has learned after Sept. 11 is that the most fundamental aspects of its national identity today are political, not legal. They must be defined by politics rather than the courts. And when it comes to national politics and values, Americans' commitment to liberty remains strong.
Before the Twin Towers were destroyed, it was easy to dismiss as a bromide Justice Learned Hand's declaration during World War II that "liberty lives in the hearts and minds of men and women; when it dies there, no Constitution, no law, no court can save it." But Hand was right. One heartening response to Sept. 11 has been the determination, by civil libertarians on the right and left, to ensure that restrictions on liberty have some logical relation to increases in security.
The lack of a similar civil libertarian tradition in the democracies of Western Europe doesn't make them anti-democratic. But America's civil libertarian tradition — rather than its courts, lawyers or Miranda rights — is what makes the country distinctively American.
Copyright 2001 The New York Times Company
