The 9/11 abominations pulverized not only the Constitution’s time-honored checks and balances but the scientific method for arriving at political wisdom and justice. In Terror in the Balance, law professors Eric A. Posner and Adrian Vermeule celebrate the pulverization. The two academics maintain that both history and reason justify concentrating unchecked power in the executive to address ostensible emergencies; that presidents can be trusted to act like statesmen; that their national- security motives will be unsullied; that judges should be sidelined; that jurists have nothing constructive to contribute in responding to external dangers; and that after the emergency ceases, checks and balances will return in full bloom. All’s well that ends well. The post-9/11 aggrandizement of the White House is unworrisome.
The founding fathers held a contrary view. They believed that proper deductions must be made for the ordinary depravity of human nature in all branches of government; that ambition must be used to counteract ambition; that “trust me” is a worthless protection against executive abuses; that presidents will be inclined to manufacture emergencies to usurp power; that unchecked power breeds both folly and oppression; that an independent federal judiciary should be a bulwark against ill-advised or sinister attempts by Congress or the executive to encroach on individual liberties; and that the purpose of a constitution is to place structural protections and rights beyond the outcome of any election. James Madison reminds us, “It is proper to take alarm at the first experiment with our liberties.”
With an eye to history and recent experience, the founding fathers are as superior to Posner and Vermuele in political science as Copernicus was to Ptolemy in astronomy.
Contrary to the fantasies of the two academics, the chief executive regularly contrives emergencies and inflates national-security dangers to expand his authorities and excite popular support. As California Sen. Johnson quipped, “truth is the first casualty of war.” Judges should not defer to predictable prevarications, exaggerations, or distortions by the White House. While the jurist may be isolated from the concerns of war and international affairs, his decisions will not be systematically warped by personal political agendas. Judges may err, but the ramifications will be limited and short-lived. Even constitutional decisions can be overruled by constitutional amendments, as was done with the Federal Income Tax Amendment on the eve of World War I. Moreover, Posner and Vermuele do not sally forth with a single non-frivolous hypothetical or historical example in which a nondeferential Supreme Court ruling might actually handicap the president’s ability to defeat global terrorists or comparable menaces.
The Alien and Sedition Acts of 1798 were born of imaginary fright over France and potential alien treachery concocted by Federalist stalwarts. No alien was deported under the new laws. The Sedition Act targeted political speech critical of John Adams’s administration, with a telling exception for assailing Republican Vice President Thomas Jefferson (a political rival of the Federalist president). The Act also lapsed in 1801, when Napoleon was emerging as an external threat, proving that it had little importance in terms of actual foreign policy. Federal judges should not have deferred to a myth of a great emergency in their approval of the constitutionality of the Sedition Act. They should have recognized the suppression of speech as the flagrant violation of the First Amendment that it was and insisted that any emergency must be defined by more than a presidential encyclical.
World War I yielded the Espionage Act, another Sedition Act, criminal punishment of antiwar expression (including the imprisonment of Eugene Debs), the A. Mitchell Palmer raids, and the Red Scare. But the United States was never threatened with invasion or rebellion: draft riots were an illusion; the danger from Bolshevism or the IWW was logarithmically exaggerated by Congress and President Woodrow Wilson; and not a crumb of evidence suggested then or now that the extraordinary powers asserted by the government during the Great War and its aftermath strengthened national security. They were enacted to silence critics and generate an appearance of national peril that causes the public to rally behind the president and indulge infringment on liberties. The Supreme Court should have resisted prosecution anyone under these pro-war laws.
During World War II, President Franklin Roosevelt contrived suspicions of disloyalty among 120,000 Japanese Americans and permanent resident aliens to justify their internment in detention camps. FDR acted to placate widespread racism on the West Coast, not to protect the nation from treason. Gen. John DeWitt, who had been dispatched by FDR to the West Coast to assess the loyalty of Japanese Americans, concluded, in the manner of the Queen of Hearts in Alice in Wonderland, that the Japanese must be plotting treason because he was unable to unearth an iota of evidence of guilt. During the five months that elapsed between Pearl Harbor and the internments, no Japanese American was even accused of sabotage or espionage. Many Japanese American internees volunteered for the Armed Forces, where they became highly decorated airmen flying missions over Italy. FBI Director J. Edgar Hoover opposed the internments, and in 1944 FDR was informed by all his military and intelligence officials that ending the internments would not endanger national security. The president, nevertheless, continued the camps until early 1945.
Posner and Vermuele dispute this grim history with a signature fairy tale about a generally benign executive. The two maintain that Roosevelt was not a racist, and thus, it is improbable that he would issue a racist internment order. But FDR was complacent with segregation in the Armed Forces in both World Wars and recognized that racism paid handsome political dividends throughout his career.
The two professors assert that FDR’s Attorney General Francis Biddle ascribed the internment decision to the president’s belief that “What must be done to defend the country must be done.” But the professors neglect to reveal that Biddle himself opposed the order. I recently spoke at Ford’s Theatre in Washington, D.C. about the matter, and in attendance was Biddle’s grandson, who voiced shame over his ancestor’s capitulation to political expediency. He revealed that the former attorney general was haunted by his moral squalidness much like Lady Macbeth and her “damned spot.”
I have dilated on the Japanese American internment to highlight the fatally erroneous assumption of Posner and Vermeule that in emergency circumstances the president will not succumb to base motives or lie and deceive to secure a political advantage or retaliate against enemies and scapegoats. If the assumption of the professors were true, judicial deference might be justified because judges are generally unschooled in international affairs. But historically, presidents have fabricated and manipulated emergencies to advance nefarious, petty, or mean-spirited objectives as a matter of course.
FDR lied about Nazi submarine attacks on United States naval vessels to awaken popular support for entry into World War II. President Harry Truman lied about the national-security implications of a steel strike to justify the government’s seizure of a steel mill during the Korean War. When the Supreme Court rebuked the seizure in Youngstown Sheet & Tube Co. v. Sawyer (1952), nothing worrisome ensued. President Lyndon Johnson lied about a North Vietnamese attack on the Turner Joy to generate support for the Tonkin Gulf Resolution. President Richard M. Nixon greatly exaggerated the national-security dangers of the publication of the Pentagon Papers and tracing of the money used to pay the Watergate burglars in a vain attempt to obstruct justice. In New York Times v. United States (1971), the Supreme Court permitted the publication of the Pentagon Papers, and the nation suffered no harm. Sept. 11 is another chapter in the annals of executive deceit employed to manufacture emergencies. President Bush’s responses to the inflated danger should elicit no judicial deference.
President Bush, Vice President Richard Cheney, and Cabinet officers have preposterously preached that the threat of al-Qaeda is indistinguishable from that of Hitler, Stalin, Hirohito, or the Soviet Union during the Cold War. The White House soundtrack is that global terrorism threatens the imminent destruction of Western civilization, as if repeat of the Alaric’s sack of Rome in AD 410. were at hand. President Bush further insists that war is afoot whenever a terrorist anywhere in the world threatens an American with harm. In other words, the president will be able to use the threat of terrorism as justification for any nonconstitutional action in the indefinite future.
Notwithstanding the propaganda, the clash with global terrorism is not “war” by any reasonable definition of the term. Al-Qaeda sports no Red Army equivalent, no arsenal of nuclear weapons and delivery vehicles, no team of first-rate scientists to develop new weapons systems, no economy or national resources capable of supporting full-scale conflict. Moreover, 9/11 did not threaten the United States’ sovereignty or republican form of government. On 9/11, terrorists murdered 3,000, but there have been no additional terrorist-related casualties in the United States for more than five years. Americans today do not feel at war as they did in World War II or even during the Cold War with its crises over Cuba and Berlin. Meanwhile, there have been approximately 100,000 domestic murders during the past five years without any suggestion that the nation is at war with would-be murderers justifying the employment of emergency powers that shortchange due process.
Federal courts should not defer, as Posner and Vemueule urge, to President Bush’s pronouncement that 9/11 propelled the nation into a perpetual “war” with international terrorism. Nor should they defer to his corresponding assertions of emergency powers: the National Security Agency’s warrantless electronic surveillance program targeting American citizens on American soil in contravention of the Foreign Intelligence Surveillance Act of 1978; an open-ended definition of unlawful enemy combatant to include persons who would sew Osama a pair of britches; Combatant Status Review Tribunals denuded of due process to determine whether Guantanamo Bay detainees are genuine terrorists; the invocation of the State Secrets Privilege to dismiss suits alleging violations of constitutional rights; or the assertion of executive privilege to deny Congress information necessary for oversight of intelligence collection programs.
Contrary to Posner and Vermeule, eagle-eyed judicial review of presidential action during professed emergencies should cause no one alarm. Take President Bush’s executive order establishing military commissions to try aliens for alleged war crimes in the days after 9/11. Military commissions were said to be instrumental to the defeat of global terrorism, yet not a single trial has been held as of this writing. No one has noticed the dormancy because the commissions are irrelevant to the conflict. And yet even if no trial is ever held, the accused could still be detained indefinitely at Guantanamo Bay.
The Supreme Court overturned Mr. Bush’s executive order in Hamdan v. Rumsfeld (2006), giving none of the deference to the commander in chief that Posner and Vermuele salute. The nation suffered not a whit of danger from the lack of military commissions trying alleged war crimes. President Bush and a Republican-controlled Congress, however, resurrected the commissions in the Military Commissions Act of 2006 to create an appearance of being “tough on terrorism” for the November 2006 elections. No evidence was presented that the trial of war crimes in civilian courts or by courts martial in lieu of military commissions would be impracticable or unreliable. When the Supreme Court reviews the constitutionality of the MCA, why should any deference be paid to a partisan political judgment of the president dressed in the counterfeit clothes of national security? Even if the Court ruled against military commissions except in areas of active hostilities where immediate adjudication was necessary to preserve fresh evidence and to prevent chaos, national security would be undisturbed.
The life of enlightened law is not intellectual tidiness or cleverness but experience. Experience teaches that the optimal balance between freedom and security is obtained by judges skeptical of national-security justifications advanced to curtail liberty or clip due process.
Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.