NCPA - National Center for Policy Analysis

War Takes Its Toll on Liberty

October 2, 2001

The Bush administration is seeking congressional authority for broader wiretapping (which attorneys general have sought for decades) and greater authority to detain and expel immigrants (who the U.S. Supreme Court has ruled in a number of cases do not have the same degree of constitutional protection as citizens).

Many Americans are concerned that anti-terrorist legislation and measures will curtail civil liberties. And as it happens, the Chief Justice of the Supreme Court, William Rehnquist, wrote a book published in 1998, "All the Laws but One," that points out that in wartime, some loss of freedom is inevitable. Among the cases he cites:

  • At the start of the Civil War, Abraham Lincoln suspended the writ of habeas corpus.
  • During World War I, President Woodrow Wilson sought broad censorship powers, and after the war his attorney general launched the infamous "Palmer raids" following a series of bombings, and 6,000 people, mostly immigrants, anarchists and labor organizers, were arrested on suspicion.
  • And of course, during World War II, President Roosevelt interned 120,000 citizens and immigrants of Japanese ancestry, and thousands of Italian-Americans.

While the balance between order and liberty shifts toward order during wartime, Rehnquist says that during the past century both Congress and the Supreme Court have been less and less willing to allow presidents to infringe civil liberties during war -- while overall constitutional freedoms and protections have expanded.

Source: Tony Mauro, "Even in war, liberty matters most," USA Today, October 2, 2001.

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