The eight years of the Bush Administration were, for many of our liberal pundits, a certifiable catastrophe for civil liberties in the United States. Regularly paraded before us in the nation’s newspapers is the evidence: the Patriot Act of 2002 which, according to informed opinion, validated the invasion of individual privacy; the creation of the Department of Homeland Security, a vehicle for insidious personal searches at airports; the NSA Wire Tapping Scheme, an excuse to spy on Americans and the alleged torture of prisoners at Guantanamo Bay -a mark of shame for the American military.
All of these actions provided damning proof of a malignant Bush Administration seeking as its ultimate objective the destruction of the constitutional liberties of the American people.
But putting aside the motivations and intentionality of the Bush Administration, does our 43rd president really deserve the award for the most outrageous abuser of constitutional rights?
The answer is a defiant no. Those awards fall to two presidents who are not usually associated with serial human rights abuses.
Abraham Lincoln is revered almost universally as the savior of the nation, holding the Union together almost single handedly during its time of greatest crisis. But in order to bring about that salvation Lincoln was forced to take extraordinary measures, actions that had he performed them today, would have gotten him impeached.
Perhaps the most egregious of these was the suspension of habeas corpus. The concept of Habeas Corpus, the prohibition against detention without cause, was enshrined in Article 1, Section 9 of the U.S. Constitution and was the only direct import from English Common Law. It must be remembered that in the 1860s, America was still a society of small farmers where most people never saw a national army and certainly never encountered a national police force. In this small town environment the writ of habeas corpus came to represent America’s commitment to personal freedom, a guarantee of a right to a fair trial and a hedge against arbitrary arrest. .
But in April 1861, not a month after taking office, Lincoln was faced with the reality of an outright insurrection and with the secession of seven southern states. When some of the border states looked as though they might also tumble into the Confederacy, Lincoln became nervous. It was obvious to the North that if Maryland seceded, Washington D.C. itself would be surrounded, cut off from the rest of the Union and a virtual decapitation of the nation’s leadership would ensue.
When then, on April 19, 1861, 20,000 Confederate sympathizers in Baltimore tried to stop Union troops from traveling from one train station to another en route to Washington, Lincoln quickly decided to suspended the habeas corpus privilege on points along the Philadelphia-Washington route. That meant Union generals could arrest and detain without trial anyone in the area who threatened “public safety.” When a Marylander, John Merryman , was arrested under the edict, he filed a complaint under the Writ of Habeas Corpus to the Supreme Court. The chief justice, Roger Tanney, thereafter issued an order for Merryman to be released. However the commanding officer at Fort McHenry, where Merryman was held, refused to do so, citing the conflict with the Chief Executive’s order. Merryman was not released
If that wasn’t bad enough, then Lincoln’s actions in July, 1862 should surely have cast him as the constitutional villain of the 19th Century.
Following the institution of the highly unpopular draft in the summer of 1862, Secretary of War Edward Stanton, at Lincoln‘s behest, issued sweeping orders on August 8 suspending habeas corpus nationwide - the first time the writ was suspended in the country’s history beyond a narrowly defined emergency area. Stanton decreed that anyone “engaged, by act, speech, or writing, in discouraging volunteer enlistments, or in any way giving aid and comfort to the enemy, or in any other disloyal practice against the United States” was subject to arrest and trial “before a military commission.”
Overall, between 10,000 and 15,000 people were incarcerated without a prompt trial. Very few historians have ever contended that their detention truly enhanced American security or hastened a Union victory.
Our 28th president, Woodrow Wilson, has been showered by history with a reputation for humanitarianism, devotion to principle and fairness. But his record on civil rights is somewhat less than pristine.
After the United States’ entry into the First World in April, 1917, Wilson moved quickly and firmly to silent dissent to his policies. The Espionage Act of 1917 made it a crime to obstruct or criticize the war and gave the postmaster general the right to censor “seditious” magazines and newspapers. The Sedition Act of 1918 (an amended version of the Espionage Act) went further and said it was a crime to “willfully utter, print, write or publish” any expression of disloyalty toward or criticism of the U.S. government, its Constitution, its flag, or its military uniforms.
During World War I, a massive domestic intelligence system was erected to protect Americans on their own soil. It was the largest corps of homeland spies ever assembled in any nation during wartime and it included at least 300,000 volunteer spies in organizations such as the American Protective League, the National Security League, the Liberty League, the Home Defense League, the Sedition Slammers, and the Boy Spies of America.
The Armistice in November 1918 did not bring these draconian measures to an end. Rather, in 1919 wartime legislation intended to curb criticism of the government was extended and even strengthened. And decorated African-American soldiers, returning home to claim the democracy for which they had risked their lives, were greeted with lynchings across the south, accelerated discrimination and the arrival of secret agents from the government’s “Negro Subversion” unit who routinely shadowed outspoken black leaders.
Despite all of these abuses, both Lincoln and Wilson remain firmly lodged in the popular imagination as great presidents who used their office to advance broad national goals, promote national cohesion and security and to enunciate principles that have long guided their successors.
So what would Abe and Woodrow do today if faced with our security threats? Can there really be any doubt that these redoubtable presidents, informed of significant internal and external threats to the safety and security of the American public, would have acted just as Bush did? In fact, both might have even regarded Bush’s actions as inadequate in effecting a full defense of the homeland and may have called upon him to enact even more stringent measures.
No one should pretend that there is some kind of manual which provides American presidents with absolute guidance on to how to operate in all manner of crises. It is easy as a presidential candidate to decry what is seen from a distance as arbitrary measures taken against American citizens. But the long view of history offers a much deeper perspective on presidential action and it is not forgiving of errors which allow for breaches in national security.
Suffice to say the new American president will soon learn that the conflict between individual liberty and national security, is the defining conflict of this century. There is no one who can assure Barack Obama now of how history will judge his actions in addressing that struggle. He must trust to his instincts, far more than popular opinion, in determining the brake that is needed to be placed on individual liberties in a time of conflict..
And he should remember that in a nuclear age, when rogue regimes and terrorist organizations have increasing access to weapons which could annihilate the United States, the margin for error grows slimmer with each passing year.