Commentary Magazine


All the Laws But One by William H. Rehnquist

All the Laws But One: Civil Liberties in Wartime
by William H. Rehnquist
Knopf. 256 pp. $26.00

What is the proper balance between two imperatives of government: preserving civil liberties and protecting national security? As it happens, this question is very much before us. Over the course of the 1990′s, Islamic extremists have been waging a war against the United States, bombing American embassies and military compounds overseas as well as targets here at home, including the World Trade Center. More recently, President Clinton has acknowledged this terrorist war, proposing measures to combat it that, in turn, have roused the ire of civil libertarians.

As the agitated reaction to Clinton’s proposals suggests, threats to our national security expose a vulnerable seam in the fabric of the American political order. Even during peacetime, security and freedom only grudgingly coexist, and in times of actual war the friction can become truly intense, as Chief Justice William H. Rehnquist demonstrates in his new book.

An important historical figure in his own right—for over a quarter century, he has helped to steer the Supreme Court away from its imperial excesses—Rehnquist has also demonstrated a passion for writing about history. His previous book, Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson (1993), has recently been back in demand—for obvious reasons. Considering the external threats the country is facing today, his current brisk and engaging examination of American notions about civil liberties during wartime is no less timely.

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Although he briefly explores the early Republic, stopping to consider the actions of Andrew Jackson during the War of 1812 (displeased with a court order challenging his administration of martial law, then-General Jackson simply had the offending judge arrested and forcibly marched out of town), the bulk of Rehnquist’s discussion in All the Laws But One is devoted to the great struggle between individual freedom and social order that arose during the Civil War and its aftermath. He takes up the story at America’s most uncertain hour: the Confederate attack on Fort Sumter in late April 1861 as a wave of secession swept the South. With the Union’s survival hanging in the balance, Abraham Lincoln, newly elected, heeded the urgent advice of his Secretary of State and suspended the writ of habeas corpus.

A product of English common law, habeas corpus is such a bedrock protection of personal liberty that the framers enshrined it in the Constitution. It enables anyone detained by government to seek redress from a federal judge, who may then issue a writ to the arresting official requiring him to show cause. Under the Civil War regime of martial law, thousands were deprived of this fundamental protection, tried for offenses running the gamut from mere criticism of the government to outright sedition, and sentenced, often harshly, by military commissions.

With lavish attention to historical detail, Rehnquist demonstrates why the excesses of that period were all but inevitable: in crises involving national survival, the President must act quickly and forcefully, which often entails riding roughshod over slow-moving courts. It is true, as Rehnquist also notes, that judges do eventually gain an opportunity to review claims of executive abuse, but this usually does not occur until months or even years after the fact—cold comfort, he readily concedes, to those whose rights have been trampled.

Nevertheless, the system, imperfect as it is, does have clear benefits. It gives the President a wide berth to put down hostilities, and it allows the law to evolve in a direction that, despite everything, remains respectful of individual liberty. This is precisely what happened one year after fighting concluded in the Civil War. In the Milligan case, decided in 1866, the Supreme Court roundly rejected the government’s contentions that habeas corpus could be suspended without an act of Congress, and that the Bill of Rights was a nullity in time of war.

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The pattern established in the Civil War was repeated during the 20th century’s two great armed conflicts, which Rehnquist treats in briefer compass. Under both Wood-row Wilson and Franklin D. Roosevelt, there were deprivations of fundamental rights that seem startling today. In World War I, Postmaster General Albert Burleson used anti-sedition legislation as a license to squelch press criticism of the war; offending publications were simply denied the mail service they needed to reach their readers. And after the Japanese attack on Pearl Harbor in December 1941, Roosevelt subjected virtually everyone of Japanese descent on the West Coast to curfew, relocation, and internment.

In a thoughtful discussion of the latter act, Rehnquist shows that, for over 150 years, American law had held that citizens of an enemy state could be subject to arrest during wartime; the presumption was that such aliens, even legal ones, owed their allegiance not to the United States but to a hostile power. Rounding up Japanese aliens during World War II, therefore, was altogether within the law. But indiscriminately corralling American citizens of Japanese heritage was another matter entirely—and, as Rehnquist confirms, both unjust and unjustified. It took decades before appropriate reparations were made.

Still, if Roosevelt went much too far, the internment episode does raise the very real question of how this country should respond if a foreign enemy should one day derive key assistance from an unassimilated immigrant group. Under what circumstances, if any, is it proper for government to target members of a particular ethnicity for special scrutiny? The question is not an idle one. It has arisen most recently in the controversy over the procedures introduced at airports to screen for potential terrorists—and it has not yet been satisfactorily resolved.

Nor is it resolved here. While Rehnquist is superb at relating the tension between government power and individual liberty over the course of American history, the reader anxious to know exactly where the Chief Justice would draw the line today will come away disappointed. In part, this no doubt owes to the nature of Rehnquist’s job, which inhibits him from commenting on knotty questions that might well come before the Court. Mainly, however, one suspects Rehnquist offers no bright-line distinctions because there can be none. To preserve our cherished rights, we want the executive restrained; but the degree to which we want it restrained unavoidably turns on the degree of the country’s vulnerability at any given point—something that is hard enough to gauge in retrospect, let alone while hostilities are under way.

But there is another side to this particular coin. Not only does the calm of peacetime tend to ameliorate the infringements of liberty that come with war, as All the Laws But One makes clear; but that process of amelioration can itself on occasion extend too far. Consider the fact that international terrorists who have murdered U.S. soldiers and civilians en masse are now extradited to the United States, tried in our federal courts, and vested with all the protections afforded by American law. Through the mechanism of discovery proceedings, they are even given access to U.S. government intelligence that can help them defend themselves in court—and can also help to augment the menace they and their confederates pose.

We have thus come a long distance from the time when, as during the Civil War, U.S. citizens were deprived of their rights and tried by military courts. Today, foreign armed adversaries are tried by our civilian courts and given full legal privileges. This, too, points to a central lesson of Chief Justice Rehnquist’s lesson-filled book: when it comes to civil liberties in wartime, the pendulum swings back and forth. Sometimes it swings too far in both directions.

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About the Author

Andrew C. McCarthy directs the center for law and counterterrorism at the Foundation for Defense of Democracies. In somewhat different form, this article will appear in his book, Willful Blindness: A Memoir of the Jihad, soon to be released by Encounter Books. Copyright 2008 by Andrew C. McCarthy.




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