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Human Rights in Wartime

Liberals and human rights activists are loudly decrying the new anti-terrorism measure signed into law this week by President Bush as a historic assault on the American tradition of justice and fair play — “one of the worst civil liberties measures ever enacted in American history,” in the words of the American Civil Liberties Union. As an expression of sentiment, the protest is one we’re inclined to sympathize with. As historical analysis, however, the protest is seriously flawed.

The new law — passed by solid majorities in both houses of Congress, with substantial Democratic support — does indeed contain grave assaults on basic American moral and constitutional values, and it could make our nation less safe rather than more so. By permitting the continued operation of secret overseas prisons, by establishing constitutionally suspect military tribunals, by suspending habeas corpus — the right to appear in court and challenge one’s detention — for terrorism suspects, the law betrays some of this nation’s core founding principles. By sanctioning the mistreatment of enemy prisoners, the law provocatively lowers the bar on international rules of war, something that directly endangers American troops in harm’s way around the world.

But to call the law a historic watershed in American judicial misbehavior does history an injustice. This is a nation that was founded by slave owners, that betrayed and destroyed its native peoples, that closed its doors and turned its back on the Jews of Europe during World War II. At the same time, this nation has faced up to many of its worst flaws and attempted to rise above them. Our encounter with freedom is an ongoing struggle for self-definition and understanding. To call any one measure a watershed is frivolous.

What is egregious about the new anti-terrorism law is not the way in which it departs from America’s legal traditions, but the way in which it continues them. It is, in fact, the latest — and by no means the worst — in a long line of assaults on the Constitution that have been enacted by Congress and various administrations during times of foreign threat. The Alien and Sedition Acts of 1798, Abraham Lincoln’s nationwide suspension of habeas corpus in 1862, the Espionage Act of 1917 and the Sedition Act of 1918, Franklin Roosevelt’s internment of Japanese Americans — each of these acts entailed a massive assault on the Bill of Rights, endangering the rights of thousands of American citizens whom the government was sworn to protect from danger.

The common denominator among these actions is that they were taken during the time of war or serious international threat. And we might add to our list Richard Nixon’s plumbers and enemies’ lists during the Vietnam War and the congressional anticommunist witch hunts at the outset of the Cold War and through the Korean War. American governments, it seems, have felt a consistent need to curtail liberty during times of conflict. Democracy and warfare do not lie easily together.

If there is something new and alarming about the wartime actions of the current administration — and they are alarming — it is not the repressive nature of the legislation but the shapeless, ill-defined nature of the war. Our nation as been dragged into a seemingly endless global conflict against a shadowy enemy whose identity and goals remain unclear. Five years into it, our government has yet to identify the enemy with any clarity or coherence, or to offer the least semblance of a strategy for victory. One minute we are told we are in a war against terrorism, the next minute it is against “extremists,” the next minute against something called Islamo-fascism. Now we are winning the war; now we are in a long, twilight struggle that will take great amounts of patience and fortitude. One minute our leaders tell us that we must be united as a nation in this great struggle for our values; the next minute, they tell us that half of America is in league with the enemy.

As for victory, we’ll know it when we see it. Perhaps it will be a miraculous disappearance of terrorism as a tactic in unconventional warfare. Perhaps it will be the transformation of Islam into a religion that embraces the truths in other faiths and abandons its core principle of one world under God as it sees it. Perhaps it will be the establishment of stable democracy throughout the Islamic and developing world — or, perhaps, the success of pro-Western Arab autocracies in suppressing Islamist, faith-based dissent.

Whatever our goals, they will not come quickly or easily, and we had better recognize that fact. Democracy can recover from temporary abandonment of its principles, but it cannot sustain a permanent betrayal of liberty and still call itself democracy.

Five years ago, this newspaper called the emerging conflict against Islamic terrorists a “new cold war.” We argued that it would be a long, difficult battle for hearts and minds around the world. In a war of ideas, victory belongs to the honorable.

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