Attacks on constitutional liberties, including the erosion of due-process protections for the rights to life, liberty, and property, tend to soar in wartime.  The most egregious assaults have occurred during the Civil War, the two world wars, and, most recently, in the so-called War on Terror.  Courageous individuals spoke out against the abuses during and after the earlier episodes, and we are finally beginning to see a similar pattern emerge regarding the latest one.  But in every instance there also have been equally outspoken individuals who defended nearly every exercise of governmental power in the name of national security, regardless of the dubious constitutionality of the measures taken.  Unfortunately, the advocates of repression seem to have grown stronger in the more recent crises, while the protectors of crucial liberties have become less effective.  And the federal courts, the supposed guardians of those freedoms, have provided inconsistent and increasingly inadequate protection.

Since the September 11 attacks, developments in the arena of civil liberties, especially regarding due-process rights, are especially worrisome.  Not only has the resistance to government excesses been more anemic, but there is little prospect that the current crisis will end.  It is hard to imagine any president proclaiming that the Great Terrorist Threat is over, only to risk having another attack, even a relatively minor one, occur on his watch.  All of the earlier conflicts were finite in duration, and in the aftermath, some corrective measures were taken by the federal courts or the political branches, and public opinion ultimately backed rectification.  This time, the dynamics seem different, and those who propose—or at least are willing to tolerate—a national-security state may prevail.

The abuses to due-process rights were rebuffed sooner and more forcefully in the earlier episodes than in the more recent ones.  The U.S. Supreme Court, in a decision issued barely a year after the Civil War ended, rejected the executive branch’s assertion that it could try suspected Confederate agents during wartime before military tribunals instead of civilian courts.  In Ex Parte Milligan, the Court ruled that Lambdin P. Milligan, an apparent Confederate sympathizer residing in Indiana, could not be tried before such a tribunal, since the Indiana courts were functioning: “A citizen not connected with the military service and a resident of a State where the courts are open and in the proper exercise of their jurisdiction cannot, even when the writ of habeas corpus is suspended, be tried, convicted, or sentenced otherwise than by the ordinary courts of law.”  The Court ruled further that when the writ is legally suspended, citizens can only be detained, not tried, by the military.

During World War I, peaceful war protesters, most notably Socialist Party leader and presidential candidate Eugene V. Debs, were sentenced to prison terms—usually in perfunctory, biased proceedings—for daring to criticize Woodrow Wilson’s crusade to make the world “safe for democracy.”  The courts did little, even after the fighting ceased, to overturn such travesties, but fortunately the political branches were more responsive.  President Warren G. Harding ordered the release of Debs and numerous other prisoners, and the American public, which by the early 1920’s had reached the conclusion that the war had been a grand folly, quietly acquiesced in that restoration of justice.

During World War II, the Roosevelt administration’s most spectacular violation of due process and equal-protection guarantees was the internment of Japanese nationals and even Japanese-American citizens without trial.  It was a stain on America’s heritage that more than 100,000 innocent people were put in concentration camps, euphemistically called relocation camps, based on their race, but the courts had the opportunity to condemn such actions—especially once it became clear that the war was won and there was no remaining credible danger of a Japanese attack on U.S. territory.

Unfortunately, the Supreme Court did nothing of the sort.  Instead, it ratified the administration’s conduct, and in so doing gave the executive branch a virtual blank check to commit similar abuses in future wars.  In the case of Hirabayashi v. United States (1943), the Court unanimously upheld the constitutionality of Roosevelt’s executive orders excluding certain persons (i.e., those of Japanese ancestry) from certain parts of the country designated as military areas (including all of the West Coast states).  The Court specifically held that racial discrimination was justified in this case because individuals sharing an ethnic affiliation with an enemy state could pose a greater threat than those of different ethnicity.  A year later, in Korematsu v. United States, the Court ruled that the need to preserve our national security outweighed the need to protect Korematsu’s individual rights.

There were a number of frightening aspects to those rulings and their underlying justifications.  First, both Hirabayashi and Korematsu were U.S. citizens, not enemy aliens.  Second, there was no evidence whatsoever that they had engaged in espionage or any other hostile activity against the United States.  Third, despite those facts, they received no trial to establish individual guilt; merely being members of a suspect ethnic group was sufficient cause for detention and relocation, according to the Supreme Court.  The underlying theme of the decisions in both Hirabaya­shi and Korematsu was extreme judicial deference to the judgment of the political branches, especially the executive.  Perhaps worst of all, the Court never revisited and overturned those decisions after the war.

As in the aftermath of World War I, some limited measure of justice was finally achieved through the political process.  But this time, it took far longer than Harding’s courageous actions just a few years after the cessation of fighting.  Instead, it was four decades before Congress awarded compensation to the victims (or their survivors) who had been expelled from their homes and businesses and sent to prison camps during World War II.

An especially disturbing feature of the current assault on due-process rights is the prominence and influence of individuals who defend the president’s alleged authority to imprison or even execute accused terrorists without trial.  Washington Post columnist Charles Krauthammer, a long-time leading neoconservative, mocked those who dispute the president’s authority to order lethal drone strikes on individuals, including U.S. citizens, who are supposedly aiding terrorist groups.  He argued that “thousands of Americans died at Antietam without due process,” and “when we stormed the beaches at Normandy, and Americans approached a German bunker, I don’t think anyone asked, ‘Is there a German-American here?  I want to read you your Miranda rights.”

One must wonder at a prestigious, syndicated writer for one of the nation’s leading newspapers who is unable or unwilling to make any distinction between actions taken against combat personnel on the field of battle and a calculated White House decision to execute an American citizen absent the immediacy of an ongoing firefight.  Unfortunately, Krauthammer’s perspective is far from rare.  Other opinion leaders have voiced similar views.  George Washington University Prof. Amitai Etzioni, a former White House aide and now a prominent leader of the communitarian movement, offers a slightly more sophisticated argument but ultimately ends up in the same place as Kraut­hammer: “The question of whether it is justified to use a drone to kill an American terrorist overseas is best answered if we imagine that the target had acted in the same manner but wearing a uniform.”  Etzioni seems untroubled that the “target” has not received an impartial hearing, much less been convicted following a fair trial, because “before the authorization to kill is granted there is considerable review within the administration.”  He argues further that “U.S. civil courts have not been granted oversight for good reason.  They are not suited for dealing with cases that involve classified information, sources and methods that need to be protected, and situations wherein the accused can neither be cross-examined nor face his accusers.”  Etzioni’s rationale would render constitutional due-process guarantees a nullity in any case where the government contends that national security is involved.

During both the Bush and Obama administrations the federal courts have taken, at best, anemic steps to curb the assertions of executive power on due-process issues.  Yet even those tepid decisions have been too much for some of the more passionate advocates of gutting the Fifth Amendment.  A Wall Street Journal editorial excoriated Justice Anthony Kennedy for being the swing vote in a 2008 Supreme Court decision granting Guantanamo detainees the right to seek a writ of habeas corpus.  “Justice Kennedy,” the Journal editors fumed, has extended that right to “enemy combatants captured abroad trying to kill Americans in the war on terror.  We can say with confident horror that more Americans are likely to die as a result.”  Echoing the reasoning in the Hirabayashi and Korematsu cases, the Journal chastised Justice Kennedy’s opinion because of “its sweeping disregard for the decisions” of the “political branches.”

How far proponents of unrestrained executive power are willing to go to bypass the Fifth Amendment and other portions of the Bill of Rights can be gauged by the position that certain members of Congress adopted following the Boston Marathon bombing.  Such leading figures as Sens. John McCain, Lindsey Graham, Kelly Ayotte, and Rep. Peter King promptly issued a statement urging the authorities to declare surviving suspect Dzhokhar Tsarnaev an enemy combatant and try him before a military tribunal.  Designating him an enemy combatant would, of course, negate the requirement to accord him his Miranda rights, including access to an attorney, and it would allow “enhanced interrogation techniques” to extract information.  Tsarnaev, they argued, “clearly is a good candidate for enemy combatant status.  We do not want this suspect to remain silent.”

One striking aspect of their proposal was the utter disregard of Ex Parte Milligan.  State and federal courts in Massachusetts were fully functioning, yet proponents of designating Tsarnaev an enemy combatant were willing to bypass them in the most casual manner.  And such advocates stuck to that position even as evidence emerged that the bombing was the action of two malcontented siblings, not some vast terrorist plot.

Until recently, much of the public seemed to accept passively the executive branch’s assertion of nearly unlimited authority to imprison or kill accused terrorists without trial or even independent judicial review.  Defenders of civil liberties were frustrated and worried about that situation.  In an editorial condemning drone strikes on U.S. citizens accused of aiding Al Qaeda, Salon editors wrote that what is most striking “is not that the U.S. Government has seized and exercised exactly the power the Fifth Amendment was designed to bar,” although that was terrible enough.  “What’s most amazing is that citizens will not merely refrain from objecting, but will stand and cheer the U.S. Government’s new power to assassinate their fellow citizens, far from any battlefield, literally without a shred of due process.”

Over the past two years or so that situation has begun to change, and resistance to the breathtaking claims of executive authority has strengthened.  Republican Rep. Justin Amish and Democratic Rep. Adam Smith introduced an amendment to the National Defense Authorization Act (NDAA) of 2012—which consolidated and endorsed some of the worst presidential abuses in the War on Terror—and sought to restore some key due-process guarantees.  Among other features, the amendment would have banned indefinite detention as well as military trials of suspects apprehended on U.S. soil.  The bad news is that the amendment failed; the good news is that it attracted 182 votes in the House—a stark contrast to the bipartisan hysteria that led to the overwhelming passage of such legislation as the USA PATRIOT Act a decade earlier.  Amash also sponsored an amendment to the 2014 NDAA that would have effectively removed the legal basis for the National Security Agency’s “dragnet” collection of telecom records without specific warrants.  That amendment also failed, but it received 205 favorable votes.

Perceptive members of both major parties are increasingly offering powerful rebuttals to those who defend arbitrary presidential detention or targeting for execution of individuals in the name of the War on Terror.  In a January 30, 2012, op-ed in The Hill, Democratic Reps. John Garamendi and Martin Heinrich wrote,

Many issues divide us, but there are also issues that unite us as Americans.  Protecting the due process rights of American citizens and legal permanent residents should be at the top of the list.  Every American deserves their [sic] day in court.  Every American is innocent until proven guilty.  These are the core values enshrined in our founding document—the United States Constitution.

Republican Sen. Rand Paul was equally critical about the ominous path America’s political leaders are treading:

The discussion now to suspend certain rights to due process is especially worrisome, given that we are engaged in a war that appears to have no end.  Rights given up now cannot be expected to be returned.  So we do well to contemplate the diminishment of due process, knowing that the rights we lose now may never be restored.

He added, “As Ben Franklin wisely warned, we should not attempt to trade liberty for security.  If we do, we may end up with neither.”