We are a nation founded on certain bedrock principles. Among them are the rights guaranteed by our Bill of Rights, which include the free exercise of religion, free speech, free press, the right to keep and bear arms, the right to be secure from unreasonable searches and seizures, and the right not to self-incriminate. These liberties, and others like them, are non-negotiable. They are basic human rights, part of what political theorists (and theologians, for that matter) call the ‘natural law.’ A just government must be their guarantor, and I have always believed that our government is, on the whole, just.
For the first time in my life, I am not so sure any more.
I heard a lot of talk in the 2008 Presidential election cycle (and before) about the supposed erosion of civil liberties under President George W. Bush (R), with accusers often pointing to the Patriot Act and similar anti-terror laws that arose in the post-9/11/2001 world. I had concerns about certain aspects of those laws, but I also recognized the magnitude of the threat and the necessity of strong defensive action. Throughout our national history, our courts have recognized that certain encroachments on civil liberties in times of war are acceptable and even necessary.
None of Bush’s policies were particularly out-of-step with those traditions. Warrantless wiretaps of phone calls to or from overseas numbers are perfectly legal, and always have been. Military tribunals have been used to try war criminals in every war we’ve ever fought—most notably under President Franklin D. Roosevelt (D), who used them to try German saboteurs captured on U.S. soil during World War II (which was upheld by the U.S. Supreme Court in Ex parte Quirin, 317 US 1 (1942)). Guantanamo Bay detention facilities were used to house war criminals who have no standing under our legal system or, in fact, under the Geneva Conventions either (as they do not meet the clearly-stated definition of ‘Prisoner of War’).
