On the one hand: We are under attack from a secret organization that operates at our very bosom, using the openness of our society against us. Surely, we are justified in taking extraordinary measures to defend ourselves.
The old civil libertarian maxim – better to let 10 guilty go free than convict one innocent person – does not seem persuasive when the guilty person might have helped kill 4,000 in one morning and could again.
On the other hand: We are a nation that, more than any other, is committed to the ideal of freedom. We do not punish people for what they believe or even, within wide limits, for what they say. And when we accuse someone of a crime, we set the bar very high in favor of the presumption of innocence.
In extreme emergency, it is possible, of course, to compromise these principles, but we do so only at great risk to our way of life.
Those, roughly stated, are the conflicting arguments we face in deciding what to do to meet the threat of terrorism at home. So far, we seem to be edging toward sacrificing civil rights in order to defend them.
We’ve rounded up thousands of Arabs and Arab-Americans for questioning, holding hundreds of them for weeks without either charging them or allowing them bail and we have proposed dealing with suspected terrorists in military tribunals rather than criminal courts.
Some of that may be necessary. How much is necessity and how much is hysteria, however, is problematic. As Henry Wallace, our vice president during World War II, once said, “War is the great killer of liberalism.” That’s the historical read.
During the Civil War, Abraham Lincoln virtually suspended the Constitution, doing away with such basic freedoms as the right of habeas corpus – the right of the accused to be confronted by the body of evidence against him so that he could defend himself. He also shut down Northern newspapers deemed sympathetic with the Southern cause.
World War I gave us the infamous “Palmer raids,” in which many pacifists and left-wingers were arrested and jailed under the Espionage and Sedition Acts.
And then there was World War II, when we simply collected all the Japanese and Japanese-Americans we could find, made them sell their property (which in some cases was considerable) at giveaway prices and put them in bleak concentration camps for the duration of the war.
None of those actions, historians have since noted, were crucial to the winning of their respective wars; some were not even useful. But they shared one attribute. They were popular.
As is, I suspect, what we are about to do now. People are frightened and very angry and they want to lash out against the enemy. Our criminal courts are generally viewed as hamstrung by technicalities that all too often allow the guilty to go free. Terrorists deserve stronger medicine, we are being told.
That’s dangerous thinking. Civil rights, once surrendered, are difficult to recover. And they are indivisible. You can’t just surrender the civil rights of Arabs and expect to keep your own.
Especially problematic is the use of military tribunals in dealing with alleged terrorists. The argument that the accused will be getting military trials with the same levels of safeguards that our servicemen and women get is utterly false.
These tribunals could very well be secret trials with lax rules of evidence in which the court could choose the attorneys for both sides. In addition, conviction would require only a two-thirds majority.
At the very least, we should run this proposal by Congress before implementing it. Congress isn’t good for much, but it is diverse and its instinct for compromise will often knock the edges off a bad idea.
This idea has some edges that badly need knocking off.
Donald Kaul recently retired as Washington columnist for the Des Moines Register.