The Issue of Civil Rights in Wartime

Steve Verdon over at OTB:

Senator Lieberman likes the use of close circuit television cameras (cctv) just like in England.  He thinks that it would be a wise move from a security stand point.

“The Brits have got something smart going in England, and it was part of why I believe they were able to so quickly apprehend suspects in the terrorist acts over the weekend, and that is they have cameras all over London and other of their major cities,” Lieberman said.

“I think it’s just common sense to do that here much more widely,” he added. “And of course, we can do it without compromising anybody’s real privacy.”

[…]

“Right now, we’re at a partisan gridlock over the question of whether the American government can listen into conversations or follow e-mail trails of non-American citizen,” he said on ABC’s This Week with George Stephanopoulos. “That’s wrong. We’ve got to solve that problem, pass a law to give the people working for us the ability to protect us.”

Reminds me of something Ben Franklin said, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

I made the assumption that James had posted it, when I wrote my response, and not Steve.  Apologies to Steve.  That said, I thought you’d find my response to this position interesting :

I must say that’s as absolutist a position as I’ve ever seen you take. Normally, I would find that commendable. In this case, I am dubious.

First because I am unconvinced that the right to privacy extends itself to public areas, even in peacetime, a situation in which we do not currently find ourselves. Despite my instinctive disagreement, I will say that under different circumstances, I would be inclined to entertain the argument. Not these.

It’s unfortunate, but the reality of the situation is that our concepts of law and of rights which super those laws assume a secure country in which to operate. That’s a luxury we’ve had for most of our history, First, thanks to the relative inability of most of the world to cross the oceans surrounding our country to get at us reasonably easily, and then thanks to our preeminence in the world, and, dare I say this, the preeminence of our military, as well.

The result of these factors was, that even during wartime, the effect of worldwide reality on our rights and privileges as American citizens, was less than it might have been.

However, that kind of security is a luxury we no longer have. That’s true, because of the missteps that we have made as a nation in opening ourselves up to those not wishing to be citizens, in terms of our own security , and because of ever advancing technology. Jets, for example easily overcome the natural protection the oceans provided us. If the 9/11 attacks proved anything, it is that the oceans, and our military, can no longer provide the level of security required to support the kind of freedoms under discussion, even assuming rights to privacy in a public street, even exist.

Like it or not, James, we are on a wartime footing. There is a Latin Maxim which states: Inter arma silent leges. Loosely translated “in time of war the laws are silent”.

And as I’ve argued in your comments section in the past, the definition of war, is the lack of morality, and the lack of law. The only way to reestablish those laws, and that morality, is to first win the war. In losing the war, we allow our opponents to establish their law, and their morality.

If my assessment of the nature of war, as being the absence of law and morality, is correct, and if, as I suppose, civil rights are the results of morality, and the laws that descend from that morality, then why should it be such a surprise that during wartime our civil rights should be curtailed in the name of winning the war, which in turn is the only condition under which those rights can be restored? Why should it be such a surprise that the goal of winning the war, and the goal of maintaining civil rights during that war, run counter to each other?

Chief justice William Rehnquist in his 1998 book “All Laws But One” speaks to the point of adjustment of civil liberties, during wartime:

“It is neither desirable nor is it remotely likely that civil liberty will occupy as favored a position in wartime as it does in peacetime”

History is certainly on the side of the comment of Justice Rehnquist. In every single war that America has fought over the years starting with the Civil War.. hell, starting with the Revolution, for that matter… Americans civil liberties were restricted, both by edict of the government, and as a matter of practicality , and of course the central issue being responded to was that of national security. Clearly, in every situation, the government has adopted the points I made about the first object being winning the war. Then reestablishing our rule of law, and our morality. At need, I can add specifics, of course, for each case I cite from the Civil War going forward. However, I’ll leave them out for the sake of brevity, here.

To speak to some of the fears that I know will be generated by my comments, I will point out that in each and every case those rights which were curtailed during wartime, were restored following the conclusion of the war.

Of course, it should also be pointed out, we actually won those wars. This one, the one we’re currently fighting, is still in the balance.