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Needed: Old war spirit in a new war

- The Washington Times - Tuesday, September 13, 2005

Tony Blankley, editorial-page editor of The Washington Times, describes the present danger posed by militant Islam and what must be done to counter it in his new book, "The West's Last Chance: Will We Win the Clash of Civilizations?" (Regnery Publishing)

Second of three parts

American writer and social historian Studs Terkel memorably called World War II "the good war."

Terkel interviewed hundreds of GIs and their families many years after the war. They recalled that the struggle lifted them above their personal lives to fight on behalf of something they believed was greater than themselves.

World War II was good, despite the millions of deaths, the limitations on daily lives, the encroachment on peacetime liberties and the arduousness of wartime life. The war was good because the sacrifice was for a noble cause, for the perpetuation of America and the American way of life.

The struggle against Islamist terrorism is an equally good war -- and for the same reasons. We have just as great a responsibility to win our struggle against insurgent Islamist aggression as our parents and grandparents had to win World War II.

There is no other cause so urgent. If we do not pay with our sacrifices now, we (and our children) will pay in greater losses later. We must be prepared to be just as ruthless and rational as the "greatest generation" was in defeating fascism.

Just as their generals and admirals made no compromise to the imperative of total victory on the battlefield, so British and American political leaders, courts and popular opinion let the requirements for victory define the powers of their government on the home front.

Prior to America's entry into the war, Congress passed laws that, collectively, authorized President Franklin D. Roosevelt to instruct the FBI to investigate suspected subversive activity.

The Foreign Agents Registration Act of 1938, the Smith Act of 1940 and the Voorhis Act of 1941 were the grounds for Roosevelt's wartime domestic surveillance of American citizens whose political activity might lead them to serve the interests of opposing nations.

Attorney General Robert Jackson described the targets and responsibility of the FBI's domestic intelligence activities as involving "steady surveillance over individuals and groups within the United States ... which [are] ready to give assistance or encouragement in any form to invading or opposing ideologies." Roosevelt authorized the FBI to use wiretaps (without a warrant), surreptitious entries and "champering" (secretly intercepting and reading private mail without consent).

Between 1941 and 1943, the Justice Department's Special War Policies Unit took extensive action on the internal security front by interning thousands of enemy aliens, denaturalizing and deporting members of the German-American Bund, an American Nazi organization formed in the 1930s. The government prosecuted individuals for sedition and prohibited the mailing of some publications.

Wartime security

A total of 25,655 noncitizens living in the United States were interned or deported during the war years because of their ethnicity or nationality, rather than their words or conduct. They included 11,229 Japanese, 10,905 Germans, 3,278 Italians, 52 Hungarians, 25 Romanians, five Bulgarians and 161 other foreign nationals.

The Supreme Court later held, in Johnson v. Eisentrager (1950), that "executive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to wartime security." The high court added: "The resident enemy alien is constitutionally subject to summary arrest, internment and deportation whenever a 'declared war' exists." So the power to intern or deport comes into effect only when war has been declared.

Today, we are under attack not by a nation, but by groups of militant individuals who claim Islam as their faith. Yet for the first time in human history, the destructive power of terrorists can be as great as that of a traditional nation-state that has declared war. We need a mechanism to deal with this change.

During World War II, the country was faced with the prospect of large numbers of people -- again identifiable by ethnicity, not conduct -- who were real or potential enemies.

The logic of the Supreme Court's opinion is applicable to the situation we face today. The court held that people ethnically connected to the war-makers are more likely to support them than are others -- and our country at war has a right to protect itself from this presumed higher risk of danger.

This is true regardless of the personal innocence of particular individuals. The term we would use today is "ethnic profiling," and 200 years of American law and practice during wartime permits ethnic profiling for the common defense.

The Supreme Court upheld internment of American citizens of Japanese ancestry as well as curfews and other conditions under the principle of military necessity.

The war power "extends to every matter and activity so related to war as substantially to affect its conduct and progress," Chief Justice Harlan Fiske Stone wrote in the majority opinion.

The court specifically rejected the argument that if a curfew were necessary, every American citizen not just those of Japanese ancestry should have to comply. The court responded that it was not necessary to "inflict obviously needless hardship on the many."

Compare that reasoning to the practice in airport searches since September 11, where our government's policy is precisely to impose obviously needless hardship on the many. Security personnel search 80-year-old grandmothers equally with, or instead of, 23-year-old Arab men.

In essence, the court found that if there was rational support for discriminating on the basis of race, such discrimination was justified under the circumstances of a war menace.

A liberal icon

A decent man makes different judgments in different circumstances.

Members of the Jehovah's Witnesses were prosecuted during World War II for refusing to let their children recite the Pledge of Allegiance.

Supreme Court Justice Felix Frankfurter, a liberal, wrote the majority opinion in the case. He upheld the school expulsions and parental prosecutions for violating compulsory attendance laws.

Justice Frankfurter observed that "the mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities."

This is particularly applicable to the situation we face today. Radical Islamists are demanding to be covered by Shariah -- laws compiled over a thousand years of Muslim jurisprudence, based on the Koran and its commentaries -- rather than by the laws of the United States, Britain, Germany or the other non-Muslim nations in which the radical Islamists live.

Although Justice Frankfurter is remembered as a great liberal, in the 1940s, liberalism still understood our country's history and government's role in unifying our nation.

"We are dealing with an interest inferior to none in the hierarchy of legal values," he wrote. "National unity is the basis of national security."

Today, schoolchildren, senators and elite journalists would giggle at the idea of applying Justice Frankfurter's lofty words to the defense of the modest little Pledge of Allegiance.

But back then, as now, we were a nation of newly arrived immigrants, threatened from abroad and bombarded with destructive ideologies.

Then, it was communism and fascism. Today, it is multiculturalism, political correctness and, among the Muslim population, radical Islam.

Most basic right

Justice Frankfurter delivered his Pledge opinion on June 3, 1940. On May 10, Germany had invaded France. On May 15, Holland had surrendered to Germany. On May 26, Britons had begun the evacuation of all their troops, and as many French soldiers as they could take, 338,000 troops in all, from the beaches of Dunkirk.

Evil was on the march. It was overwhelmingly powerful,well-organized and pitiless. All around the world, from Singapore to Norway, civilization was being routed by the mass forces of Nazi Germany and its ally Japan, while Soviet Communism was corrupting minds in democracies from France to America to China.

In those days, when Supreme Court justices -- liberal, moderate, and conservative -- sat down to write opinions, they knew their words and findings mattered.

Wrongly decided cases wouldn't merely expose the justices to rude comments in fashionable newspapers and magazines. Wrongly decided cases might expose the United States to disunity, sabotage, revolution or conquest.

Under such circumstances, the justices were more than prepared to let Congress give the president of the United States broad powers to defend our country. And they were unlikely to interfere with the president carrying out such powers or to second-guess the military's decisions.

The court would draw lines and preserve the essence of our freedoms. But the justices were practical men.

They understood that the broadest enforcement of every last theoretical right and privilege might well be purchased at the price of losing our most basic right: the right to effectively defend ourselves.

Part I

'An Islamist threat like the Nazis'

Part III

At war with an enemy of an unspoken name

• Copyright (c) 2005 by Tony Blankley. Published by arrangement with Regnery Publishing Inc.