- The Washington Times - Friday, August 2, 2002

Having negotiated the plea bargain by which John Walker Lindh managed to avoid life in prison and was instead sentenced to 20 years, lawyer James Brosnahan recently was asked by Newsweek: "How will we look back on this case by the time John Walker Lindh leaves prison?"

We will see the case, he replied, as "a symptom" of an era when we or rather the government went to extremes in the war on terrorism, such as, he implied, a too-aggressive prosecution of his client. The actions the government has been taking are leaving us, he said, "not as free as we once were."

Maybe we will agree with Mr. Brosnahan's assessment, and maybe we won't: We're not 20 years older, not yet. But undeniably Mr. Brosnahan sees unfreedom now. Nor is he alone.

The belief that the government is engaged in a substantial and unjustified curtailment of civil liberties by monitoring attorney-client phone calls, detaining Muslims on immigration violations, denying Americans who fought with the Taliban access to counsel, etc. is not a majority sentiment but certainly one that has its adherents, especially in the mainstream media and the legal academy.

Just the other today the New York Times opined that "the Bush administration's assault on civil liberties reached a new low." It's a safe bet that the Times will see more "new lows."

What the Times and company typically fail to offer is historical perspective. For that, I recommend an essay by Jack Goldsmith and Cass Sunstein, both professors at the University of Chicago law school. Their paper is "in progress" but thankfully available at www.law.uchicago.edu/faculty/goldsmith/resources/60.doc.

Noting the particulars of the civil-libertarian complaint against the administration (but declining to judge them), the authors observe that "compared to past wars led by [Abraham] Lincoln, [Woodrow] Wilson, and [Franklin] Roosevelt, the Bush administration has diminished relatively few civil liberties." If they are right about that, as I think they are, the question arises as to why the civil libertarians are so upset by the administration's war effort. Messrs. Goldsmith and Sunstein offer analysis that helps with the answer.

During every serious war in our history, they write, civil liberties are curtailed. After the war (often many years after) some restrictions are seen as unwarranted or excessive, and never again used. Consider: No president has copied Lincoln by suspending habeas corpus, nor have there been loyalty prosecutions such as in World War I, nor is it likely there will again be the equivalent of the World War II internment of Japanese-Americans. The point Messrs. Goldsmith and Sunstein make is that there is "a ratchet effect, over time, in favor of expansive civil liberties during wartime."

The ratcheting has been occurring at a faster pace since World War II. So much faster, in fact, that, as we see now, elite opinion shifts against perceived threats to civil liberties during a war, not afterward.

The professors suggest two explanations for the faster ratcheting:

(1) After (and because of) Vietnam and Watergate, faith in the executive and the military has declined.

(2) Since World War II, the country has experienced "a massively strengthened commitment to individual rights," as witness (for one example) the 1960s revolution in criminal procedure.

Significantly, the measures taken by the administration tend to be less authoritarian which is to say more solicitous of individual rights than they otherwise might be. There is a sense in which we are all civil libertarians now.

Consider as Mr. Goldsmith and Mr. Sunstein do the military tribunals Mr. Bush established to try terrorists. The civil liberties' watchdogs thumped hard when the idea was first announced. But once the regulations were written, the tribunals, outfitted with procedural safeguards, looked more like civilian courts than past commissions, including the one Franklin Roosevelt used to prosecute Nazi saboteurs.

The irony is that even as the administration does better in wartime by civil libertarian standards, the critics find it terribly wanting, almost the worst ever. The worry is that, the ratchet effect seemingly irreversible, the government might not do enough to protect the nation.

"The danger," write the perceptive law professors, "is that in an age of anthrax, nuclear suitcases, and other easy-to-conceal weapons of mass destruction, the threat posed by al Qaeda and other terrorists might warrant tradeoffs between liberty and security that are inconsistent with ordinary respect for civil liberties." Whether the threat does warrant such tradeoffs can only be known, as the authors say, after the fact. Yet and this is why we elect presidents the time for action must be now.


Terry Eastland is publisher of the Weekly Standard.

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