The judiciary and the war on terror

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The recent ruling by U.S. District Judge Anna Diggs Taylor against the Bush administration's warrantless surveillance program represents the second significant judicial challenge this summer to executive control of foreign and military policy. The first challenge came when the U.S. Supreme Court, in Hamdan v. Rumsfeld, overturned the procedures the Bush administration wanted military commissions to follow in cases involving persons held at Guatanamo Bay. Administration officials have responded by faulting the judiciary for not understanding the nature of the war on terror.

The rulings in the surveillance and military commission cases dovetail with earlier decisions that treated the right to privacy as a right to pursue a preferred lifestyle. Both sets of cases are informed by a very narrow view of what the government can do in the name of self-defense or self-preservation. These rulings arguably arise out of the same reasoning that led Justice William O. Douglas to declare in a 1969 criminal syndicalism case that there is no place in "the regime of the First Amendment for any 'clear and present danger' test, whether strict and tight... or free-wheeling."

Justice Douglas clearly believed that the level of support he desired for individual rights required that he abstract from "circumstances," including "clear and present dangers," that might threaten the country. It is easier to protect obscene and pornographic material or seditious expression, for example, if you abstract from their impact on the culture or stability of the society. This reasoning can be employed to undercut almost any government claim that regulations are needed to protect important social interests.

It has become increasingly difficult for the government to prevail in cases where "judgment calls" about threats and risks are likely to confine either explicit or implied rights. The standard reflected in this summer's rulings in the surveillance and military commission cases is reminiscent of Justice William Brennan's insistence in the Pentagon Papers case of 1971 that the government must not only "allege" but "prove" that the action it seeks to prevent would "inevitably, directly, and immediately" threaten the public good.

The Brennan test is an almost impossible one for the government to pass. It is just such a test, however, that too many members of the judiciary believe the government must pass in order to justify virtually any restraint on personal freedoms. What is too often forgotten is that the consequences of using an unduly stringent test to overturn a law that regulates access by minors to "indecent" material on the Internet (e.g., Communications Decency Act of 1996) pale in comparison with the risks that arise when such a test is applied to judgment calls by the executive in matters involving military and foreign policy.

What was questioned by Justice John Paul Stevens on behalf of the Supreme Court in the Hamdan case, for example, was the president's assertion that "practical need" warranted a deviation from court martial procedures. The Court clearly was second-guessing the president in a matter having to do with the prosecution of the current war on terrorism. By comparison, Congress recognized that circumstances are significant when it authorized presidents to deviate from established court martial procedures when warranted by "practical need."

The rulings in the surveillance and military commission cases are classic examples of confrontations between departments that see themselves carrying out explicit constitutional duties and blame each other for interfering with their ability to carry out these duties. Thankfully, the reasoning of leading Founders like James Madison supplies considerable guidance for handling such confrontations.

James Madison understood that the distribution of power within the new American republic that he helped to fashion needed to correspond to the tasks that the government would have to perform as well as the challenges that would likely confront the United States. Matching powers with necessary tasks fits with modern science's admonition that human beings ought to be in control of their own destiny.

The constitutional system has served the United States well precisely because the Founders were "realists" when it came to their assessment of human nature and political life in general. Rather than abstracting from the tragic side of human existence, they devised a system for fallible and passionate beings. They recognized that good judgment would be required for this system to succeed -- and good judgment means sober judgment about what is achievable.

The reasoning of the Founders would seem to counsel that presidents be entrusted with a large discretion in the management of foreign and military affairs, especially at a time when technological innovations have made it easier to construct and conceal weapons of mass destruction. Power must be commensurate with the task or job that needs to be done. This is not to say that presidents should be entrusted with unchecked power, only that they must be entrusted with sufficient power to secure the people's interests -- and sufficient must really be sufficient.

Barring a change in human nature, there is a good chance that there will always be persons willing to create and employ exceedingly dangerous weapons. These inventions of modern science threaten democratic nation states no less than non-democratic nations. In the case of democracies, the very existence of these weapons likely will make it harder to defend a democratic way of life. Tyranny, dictatorship and despotism all look good if the alternative is a violent death.

The challenge we face is not unlike what the Founders or Lincoln faced: how to "manage" human affairs so that we can be secure without tyranny and free without anarchy. Proper management of human affairs may require making one's peace with sometimes unpleasant practices and it certainly requires that officials give full weight to "clear and present" dangers to the republic. An unwillingness to do this, as Lincoln understood at the time of the Civil War, can easily endanger our "experiment" in democracy and eventually invite anarchy or tyranny. Judicial reasoning in cases involving foreign and military policy should be informed by a heavy dose of Madisonian or Lincolnian sobriety no less than the reasoning of the president and members of Congress.

David E. Marion is director of the Wilson Leadership Center and Elliott Professor of Political Science at Hampden-Sydney College.