Tuesday, December 20, 2005

I Spy

Ross, filling in at Andrew Sullivan's place (wasn't that a TV show in the '80s?) has a point here:

While more legally-minded types bicker over the legitimacy of the Bush wiretapping, it's worth pointing out that the odds of this fracas redounding to the Democrats' long-term benefit are somewhere between slim and none. Let's suppose, for the sake or argument, that John Dean is right, and Bush just became "the first President to admit to an impeachable offense." The Democrats aren't going to try impeaching him for it - they aren't that stupid, are they? - so all that the offense does, in the public mind, is add to the existing perception of the GOP as the party that sometimes goes too far and skirts the law in the pursuit of national security objectives. And it's almost always better to be tagged as "the party that might go too far" than as "the party that won't go far enough" - which is how the Democrats are perceived these days. This explains why the GOP can weather controversy after controversy, from Iran-Contra down through Iraq War intelligence and the secret prisons and CIA waterboarding, and still hang on to the public trust on foreign affairs - because in each case, they're perceived as having gone too far with good intentions, 24-style, and in an arena that most Americans perceive as being slightly outside the law anyway.

I've been following the NSA domestic spying matter from a distance, and don't have much to say on it yet. Except that I'm pleased with how it's unfolding. As unsavory as the activity seems, the legal minds make the point that it may yet fall under the aegis of the Constitution, in the ways we've stretched that document over the years.

Meanwhile, leaders in both parties are making the call for a Congressional investigation of this, which is the right way to get at the core of the matter, unless bloviation happens.

Even Cheney is playing his proper role, making the unpleasant case for an unpleasant behavior. Someone has to. Funny how he was pictured today getting into a military helicopter with the nickname Devil's Advocate (though Reuters, perhaps stung by the "al-Reuters reputation, cropped out the name in its version of the chopper pic).

As long as this system is functioning, it will correct itself. It's one of the lessons of American history that overzealous bids to preserve order at the expense of law, and ham-handed prosecutions, eventually recoil. Our national system is not perfect, it's dynamic. When you push on the people's civil rights, they eventually push back. And the most dramatic advances in freedom have come after the most serious transgressions. Ever since the Zenger trial in 1735, American civil right have emerged stronger from every attempt to cramp them. Almost 200 years alter, John Scopes lost his "monkey" trial in Tennessee. But the trial itself turned the hearts of Americans.

The authorities may bully, and they may have the strong arm, but eventually the case goes to court or the legislative chamber, and there the rights tend to win the day. As long as eloquence can come to their aid, personal liberties will triumph. The outcome of a particular case is no matter. Our love of liberty triumphs, in a Hollywood ending, over our yearning for order and the fear of the strange.

People tend to forget how bad it's gotten in the past. Like Global Warming activists, they tend to behave as though everything sailed along on an even keel until the day George W. Bush stepped across the threshhold of the Oval Office.

Lincoln in 1861 faced a legal fog in defining his enemy and delineating his war. He twisted a corkscrew path through the laws and the Constitution to extend his own powers as president to meet a new situation that the existing laws seemed, to him, insufficient to address. He did so to recruit and maintain a large standing army to fight a modern war, and in doing so he broke the Constitution he had sworn to uphold.

He did so in sweeping aside civil rights, including habeas corpus, and filling Northern jails with men never charged with any crime. He shut down anti-government newspapers and spied on peace movements. He did so in full knowledge that his nation was full of dissent, and his agents couldn't, or didn't care to, distinguish honest loyal opposition from active treason.

Lincoln had at his back a Congress driven by his allies. And he managed to skillfully avoid the courts. When he couldn't avoid them, he defied them.

Chief Justice Roger B. Taney denounced the notion of arbitrary military arrest and defended civil liberties, and pointed out that only Congress had the right to suspend habeas corpus. And he admitted he could do nothing to enforce his ruling in the face of a military force "too strong for me to overcome." Taney wrote as defiantly as any anti-Bush zealot today. And the cause for his wrath was more immediate and dangerous than the Patriot Act:

“I can only say that if the authority under which the constitution has confided to the judicial department and judicial officers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found.”

Lincoln then wrote out standing orders for Taney's arrest.

The Maryland legislature denounced "the present military occupation of Maryland" as a "flagrant violation of the Constitution." Secretary of State William Seward then ordered a lightning raid across the state that jailed 31 legislators, the marshal of the Baltimore City Police Force and the Board of Police Commissioners, the mayor of the city, a former Maryland governor, members of the House of Delegates from Baltimore City and County, the 4th District congressman, a state senator and newspaper editors (including Francis Scott Key's grandson). Ft. McHenry (of "Star Spangled Banner" fame) had a darker chapter in these days as the "Baltimore Bastille." Many of those arrested by federal officials were never charged with crimes and never received trials.

In the fall, Lincoln arrested allegedly disloyal members of the state legislature (Sept. 12-17, 1861), to prevent them from attending a meeting that could have voted on secession. But Maryland was not really safely in the Union until the November state elections. Federal provost marshals stood guard at the polls and arrested known Democrats and any disunionist who attempted to vote. The special three-day furlough granted to Maryland troops in the Union army, so they could go home and vote, further rigged the election. The result, not surprisingly, was a solidly pro-Union legislature. The next year, state judges instructed grand jurors to inquire into the elections, but the judges were arrested and thrown into military prisons.

Flip through the pages of U.S. government and military communiques from Maryland in these months (they're in the "Official Records") if you really want to see a government repressing dissent:

... I have adopted stringent measures to secure quiet but they are so ordered as to attract no notice. The regiments are well drilled to street-firing and in half an hour I can have 1,000 men in any part of the city; in forty minutes five times that number. ...


In regard to the "Exchange" and other secessionist presses in that city. I presume you are not aware that an order for the suppression of these presses was made out in one of the Departments of Washington. ... I think a measure of so much gravity as the suppression of a newspaper by military force should carry with it the whole weight of the influence and authority of the Government especially when the publication is made almost under its eye.


Reffered to General McClellan. I believe the "Exchange," "Republican" and "South" should be suppressed. They are open disunionists. The "Sun" is in sympathy but less diabolical.


No secession flag has to the knowledge of the police been exhibited in Baltimore for many weeks, except a small paper flag displayed by a child from an upper window. It was immediately removed by [the police]. They have been instructed to arrest any person who makes a public demonstration by word or deed in favor of the Confederate Government and I have prohibited the exhibition in shop windows of rebel envelopes and music.


Fort McHenry which has not sufficient space for the convenient accommodation of the number of men necessary to man its guns is crowded with prisoners. ... It is too near the seat of war which may possibly be extended to us. It is also too near a great town in which there are multitudes who sympathize with them who are constantly applying for interviews and who must be admitted with the hazard of becoming the media of improper communications, or who go away with the feeling that they have been harshly treated because they have been denied access to their friends.

... If as is supposed Fort Lafayette is crowded may they not be provided for at Fort Delaware? ... I certainly do not think them perfectly safe here considering the population by which they are surrounded and the opportunities for evading the vigilance of their guards.


The arrest of W. Wilkins Glenn, the proprietor of the "Exchange," has given intense satisfaction. Beale Richardson and his writing editor Joice, of the "Republican," are very violent and would grace the Tortugas. If the exchange should go on a Doctor Palmer and a William H. Carpenter are the ostensible editors, and both write with bitterness. They too would do well at Tortugas.


We are determined to prevent any rebel voting if he will not take the oath of allegiance. It is to be done by a system of challenging. The new mayor has already surrendered the pistols retained by the old police and evinces a reaidness to co-operate with the Federal authorities. His name is Blackburn. It is intimated that General Howard has taken the hint and will not accept the rebel nomination for Governor. If he does he should be sent at once to Fortress Monroe, and so too of Jarrett, the rebel nominee for comptroller.


My belief is that the peace convention is defunct. Still I have taken measures to have them watched and will inform you promptly of any movement by them.


I do not think it would be wise to cease making arrests entirely. Some evidence that the power is with the Government should be kept before the eyes of the discontented few. It has a most salutary effect.


"The memoranda states in substance that -- All persons who have lately uttered expressions of hostility to the Government or have spoken disrespectfully of the President of the United States are to be arrested and detained in camp."


You will ... please inform all the prisoners confined at Fort Warren that this Department will not recognize any person as an attorney in such cases, and that if the fact comes to the knowledge of the Department that any prisoner has agreed to pay to any attorney a sum of money or to give to him anything of value as a consideration for interceding for the release of such prisoner that fact will be held as an additional reason for continuing the confinement of such person. You will also please say to the prisoners that it is the wish of the Government that they should communicate whatever they may have to say directly to this Department.

And on and on. On Sept. 24, 1862, after fresh military disasters, with a gloomy prospect for the administration in the upcoming elections, with an unpopular conscription looming and doubt about the public's reception of the Emancipation Proclamation, the President suspended habeas corpus again, this time over the entire North. The Maryland scenes were repeated on a national scale.

Supreme Court Justice James M. Wayne upheld Lincoln’s extra-legal (at best) recruiting drive in 1861 and its retroactive endorsement by Congress. “It is my opinion,” Wayne ruled, “that Congress has constitutional power to legalize and confirm executive acts, proclamations, and orders done for the public good, although they were not, when done, authorized by any existing laws.”

Even some who supported the Northern cause blanched at this notion, but it was in keeping with the general spirit of the administration and the pro-war press, which was to “preserve the union at all costs.”

Lincoln used his presidency to pack the Supreme Court with justices who would be more sympathetic to his purposes. Three of five justices who sustained the administration in the important Prize case of 1863 were new Lincoln appointments.

The full question of whether the Constitution gave the president a special power to suspend the writ of habeas corpus during wartime never got to the Court. In large part that's because the administration made sure it didn't. It had a valid fear that the Court would rule against there being such a power under the Constitution, and such a ruling would undermine the war effort. On the other hand, by keeping the matter away from the Court, the administration could largely accomplish its policy.

Opposition, especially in the press, clamored for a test case to settle whether the arbitrary arrests were legal. Secretary of War Stanton thought it would be wise to do so, too, but Attorney General Bates talked him out of it. In a letter of Jan. 31, 1863, Bates wrote to Stanton that a Supreme Court decision against the habeas corpus policy “would inflict upon the Administration a serious injury,” and would do more good to the rebels “than the worst defeat our armies have yet sustained.”

Only after victory was secure, and only gradually and tentatively at first, did the Supreme Court begin to put the nation back on a Constitutional basis, which Lincoln and the Radicals in Congress had disrupted. Both Lincoln and Taney were dead by this time.

The significant case was Ex parte Milligan. Lambdin P. Milligan was an officer in the Order of American Knights, a sad-sack copperhead paramilitary outfit in Indiana that had dreamed of overthrowing the government, seizing the Indiana arsenal and freeing rebel prisoners. It never came anywhere near enacting this plot, and on Oct. 5, 1864, Milligan and others were captured and tried by a military commission, which sentenced Milligan to hang.

The government's lawyers claimed the President had unlimited power in time of war. "He is the sole judge of the exigencies, necessities, and duties of the occasion, their extent and duration." The decision was announced April 3, 1866. The court unanimously ruled that military commissions had no jurisdiction in a case such as Milligan's, and it ordered his sentence set aside. He was to be released. The justices took time and care in writing their opinions. The full ruling, finished in July 1866, was written by Justice David Davis, a Lincoln appointee and a longtime friend of the slain president.

"During the late wicked Rebellion," he wrote, "the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question. Then considerations of safety were mingled with the exercise of power; and feelings and interest prevailed which are happily terminated. Now that the public safety is assured, this question, as well as others, can be discussed and decided without passion, or the admixture of any element not required to form a legal judgment."

And he ruled that the administration's course had been wrong after all. "Martial law cannot arise from a threatened invasion," but only from a real one. "Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction." This had clearly been the case in Indiana in 1864, as even the government's lawyers admitted.

"Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln; and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate."

Lincoln had done what was necessary to his purpose, which he saw as saving America's future, and he let the lawmakers catch up as they would. Or he left it to the courts to undo the changes long after they ceased to be necessary. Some of them were never undone, and America after 1865 was never again ruled by the government that had been created in 1787. But history forgives him these transgressions (though they are more bitterly remembered in the South) because the war he led America into had a great (if unintended) result of freeing slaves.


It has happened again more recently. In the years after World War I, fear of foreign-born terrorism led to domestic programs and policies that undercut the Bill of Rights. When Woodrow Wilson went to war, he organized America's first propaganda effort: the Committee on Public Information, which consisted of the secretaries of the armed services branches and George Creel, a progressive muckraker who had shone the light on child labor in 1914.

Creel at first took the high road in his Committee on Public Information work during World War I. He rallied the nation with positive images of America's best qualities. The artwork he commissioned focused on the enemy as militarism and autocracy, and on its victims. The German people, as Wilson made explicit in his war message to Congress, were not the enemy. Like many Americans, Creel had German ancestry.

But eventually he stooped to lurid attacks on the Kaiser, German-Americans, dissenters, and the opposition press. He even turned on Congress itself. Congress responded by cutting off his funding stream, which quickly caused his department to collapse. Creel had crossed the line.

Others followed. Intolerance and xenophobia during World War I were far worse than the supposed horrors of the McCarthy era. The Espionage Act (1917) and the Sedition Act (1918) put the screws to the Bill of Rights. The Sedition Act punished expressions of opinion, regardless of their likely consequences, which were "disloyal, profane, scurrilous or abusive" of the American form of government, the flag or the military. Under it, "Americans were prosecuted for criticizing the Red Cross, the YMCA and even the budget" [Johnson, "Modern Times," p.204].

Wilson, while he was still governing, had the opportunity to curb these abuses, but he did not. After he was incapacitated by strokes, the zealots ran wild, and the witch-hunts culminated in the notorious Palmer raids.

So far from being a new Nazi Germany (as Bush-haters insist), America today is not even as repressive as it was in 1920. The civil rights violations of the Palmer raids were far more serious than anything done or proposed in the name of the Patriot Act. (And at the same time they were far less serious than those of Lincoln's Administration in 1862 or the repression of the loyalist elements in the Revolution.)

Yet in time, the balance was restored. And after the tumult of the early 1920s, rights advanced dramatically in America in that decade, for workers and for women.

Constitutional government proved elastic enough to survive Lincoln and Wilson. It will survive Bush, too.

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