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War And Our Freedoms
THE TROUBLE WITH MILITARY TRIBUNALS
April/May 2002 | Volume 53, Issue 2
Secret military tribunals, from which there is no appeal, imbued with the power to order secret executions of noncitizens. Suspension of habeas corpus for suspected terrorists. The abrogation of attorney-client confidentiality. War has often brought about dramatic changes in the American mood, some of them magnificent, others not so pretty. Many people, this writer included, ardently support the current war against terrorism but are not willing to suspend our most cherished civil liberties, no matter what the current mood.
Rather, some of us, from all across the political spectrum, conservative and liberal alike, believe that the first priority of any American war must be to preserve, protect, and defend the Constitution of the United States. Not because the Constitution is a collection of nice sentiments but because it is the best system of government vet de- signed by mankind. It’s not only right, it works. If the history of our nation tells us anything, it is that we have paid a high price whenever we have interfered with the checks and balances so ingeniously devised by our Founding Fathers. This has been demonstrated over and over again from the first days of the Republic.
In 1798 fear of both the ideas and the military power projected by revolutionary France led President John Adams to push through Congress his ignominious Alien and Sedition Acts. Adams is rightly celebrated in David McCullough’s recent biography as one of the greatest founders. But the Alien and Sedition Acts were his worst moment, a move that could have strangled American democracy in its crib and robbed us of the whole immigrant experience. They gave the President the power to deport “dangerous” aliens, extended the naturalization process to no less than 14 years, and provided for jail sentences of up to two years and fines of up to $2,000 for anyone who spoke or wrote unfavorably about the President, or any member of Congress, “with intent to defame ... or to bring them . . . into contempt or disrepute.”
Before long, editors and even elected officials who backed Thomas Jefferson’s Republicans were fined or thrown into jail. One editor died there. A citizen was fined $100 for having expressed the wish that some cannon wadding would be “lodged in the President’s back-sides.” Congressman Matthew Lyon got four months for accusing Adams of possessing an “unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.”
None of this, of course, sank one French ship or uncovered one Jacobin agent. It did, however, nearly break the states of Virginia and Kentucky out of the Union in protest. Their insistence that the new acts were unconstitutional led them to the doctrine that some federal laws could be nullified by individual states—a significant first step down the long road to the Civil War.
The Civil War itself brought about what were probably the most extensive suspensions of civil liberties in American history. This is not surprising, considering that it was our greatest national crisis, and one cannot help feeling a certain sympathy—even a small, malicious glee—regarding some of the measures President Lincoln took to preserve the Union. After all, not only was about one-third of the country engaged in armed rebellion, but the North was swarming with active Southern sympathizers and vehement opponents of the war effort. A group of leading Wall Street financiers met every night, in a secret “gold room,” to bet the Union up or down. As early as 1 860 the mayor of New York, Fernando Wood, advocated that his city and Long Island secede and form a new nation to be called Tri-Insula. Mass rallies called for peace at almost any price.
By 1863 Lincoln had had enough. When Clement Vallandigham, a leading congressman from Ohio, clamored that the President was waging a “wicked, cruel and unnecessary war ... for the freedom of the blacks and the enslavement of the whites,” Lincoln had him banished and sent through the Southern lines.
It is difficult not to smile at Vallandigham’s plight. Yet in the early 1860s, as much as 10 percent of New York City’s entire adult male population was arrested, a great many of them for dodging the nation’s first draft and otherwise resisting the war effort. Many Americans considered the draft a violation of the Constitution, and they were further incensed that the law allowed rich men to buy their way out of service by paying for substitutes.
Again and again, antiwar demagogues artfully dodged the issue of preserving the Union while hammering home the idea that the Constitution was being torn to pieces. The building sense of outrage they helped create—along with wartime inflation and mounting labor unrest—finally exploded in the awful New York Draft Riots of July 1863, to this day one of the worst civic disturbances in our history. Some 115 rioters, police, soldiers, and bystanders were killed in a four-day pitched battle for control of what was then America’s largest city. Troops arriving straight from the battle at Gettysburg restored order to the city, but in order to quell the rioting, the New York City municipal government finally agreed to underwrite commutation fees for poor and working-class men.