The Rittenhouse Review

A Philadelphia Journal of Politics, Finance, Ethics, and Culture

Tuesday, September 10, 2002  

"Fear is No Guide to the Constitution"

The New York Times editorial page today leads off with an excellent essay, "The War on Civil Liberties."

"There is also no denying that the need for effective law enforcement is greater than ever. The Constitution, Justice Arthur Goldberg once noted, is not a suicide pact.

"And yet to curtail individual rights, as the Bush administration has done, is to draw exactly the wrong lessons from history. Every time the country has felt threatened and tightened the screws on civil liberties, it later wished it had not done so. In each case -- whether the barring of government criticism under the Sedition Act of 1798 and the Espionage Act of 1918, the internment of Japanese-Americans in World War II or the McCarthyite witch hunts of the cold war -- profound regrets set in later.

"When we are afraid, as we have all been this year, civil liberties can seem abstract. But they are at the core of what separates this country from nearly all others; they are what we are defending when we go to war. To slash away at liberty in order to defend it is not only illogical, it has proved to be a failure. Yet that is what has been happening."

Happening over and over, in fact: Indefinite imprisonments, undisclosed counts of detainees, American citizens held without due process, secret arrests, secret trials, closed deportation hearings, military tribunals (albeit scuttled), the TIPs program, and more.

The Times quite rightly notes that Congress cannot be relied upon at a time of conflict to challenge a sitting president's attempt to expand his power, leaving that challenge in the hands of the courts and the citizens themselves.

Fortunately, some judges are taking the appropriate response: applying the rule of law. The Times points to Judge Gladys Kessler of the Federal District Court in Washington, D.C., who characterized secret arrests a "odious to a democratic society" and Judge Robert Doumar of the Federal District Court in Norfolk, Va., presiding over an "enemy combatant" case, who directed prosecutors to submit documents that would enable him to determine the defendant's status. "The Justice Department, disgracefully, defied his order," the Times reports.

"As the Bush administration continues down its path, the American people need to make clear that they have learned from history and will not allow their rights to be rolled back. The world has changed since Sept. 11, but the values this country was founded on have not. Fear is no guide to the Constitution. We must fight the enemies of freedom abroad without yielding to those at home," the editors write in closing.

Brace yourselves for the inevitable charge: The New York Times is soft on terrorism.

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