The Constitution in Wartime

Findlaw has an excellent essay discussing the history of law in wartime. The author makes the point very elegantly that inter arma silent leges (usually translated "in time of war the law is silent", but I prefer "in the face of arms, the law is silent"). Richard Stallman has an essay on a similar theme, not quite as good, but still worth reading.

Comments

protecting the constitution

[Kellindil]

In Bush's speech on Sept 11, ge referred to the US as the world's brightest beacon of freedom, and said that we would keep that light shining. Nadine Stroussen, ACLU president, was speaking on campus here about a week ago and mentioned that line, saying she and the ACLU were working with Bush to make sure he kept that promise.

Basically, now is when it's most important to have groups like the ACLU. Like most liberal groups, they're being attacked as unpatriotic, but considering we have cases like Korematsu on the books and not overturned, having groups that will watch out for violations of our rights and raise public awareness is important.

And it's not like it's only leftist groups fighting for these thigns, either. The article in the post didn't mention things like the Alien or Sedition Acts, but some of the languge in the bill Ashcroft is trying to ram through congress. There was a coalition of groups from the ACLU and gay rights organizatons to the NRA and anti-aborition activists all united in opposition, saying that we can find ways to protect the security of citizens *without* depriving them of rights.

Law is Force

[Dolly_Llama]

"all the laws, but one, [are] to go unexecuted, and the government itself to go to pieces, lest that one be violated?"

Lincoln's justification of his abrogation of rights during the civil war is just another manifestation of the tired ends-justify-the-means-argument. Unfortunately, not everyone would agree with his ends, and certainly not many would agree with the means. In breaking law to save the union, he ultimately set precedent to fundamentally change that which he sought to save.

Law, even in its happy-faced, kinder, gentler democratically accountable form, is force. If it were unnecessary to compel one to act in a certain way or to not act in a certain way, there would be no need for law. Similarly, if it were unnecessary to compel Afghanistan or Somalia or Serbia or Vietnam or Germany, or any of the countries against which we have waged war to act a certain way, there would be no need for war.

The use of force on the domestic public in the form of law during wartime is ultimately no different than the use of force during peacetime. It is simply stripped of all its warm, fuzzy clothing that make it palatable come election time. Try it for yourself. Go up to the treasury and ask for your share of the War on Drugs budget back and see what happends.

>End Anarchist Rant

Re:Well..

[killthiskid]

Supreme Court Chief Justice William A. Rehnquist has a book, All the Laws but One: Civil Liberties in Wartime that is about these issues. Here is a quote from a speach he gave at The Woodrow Wilson International Center for Scholars in 1999:

There are obviously conflicting principles or public policies at work in this area of civil liberty in wartime. There may be some who think that here, as elsewhere, the more civil liberty the better. But neither presidents nor courts have ever operated on this principle. Wartime presidents are inclined to prefer claims based on military necessity to claims of individual liberty, and courts come to the rescue of civil liberty only after the war is over. There is a certain irony in this last fact, but the history of our nation suggests that both the nation and civil liberty have survived pretty well, if not totally unscathed, under it. Whether this is because of the actions of the Presidents and the courts, or in spite of them, I am not prepared to say.

So, we can expect to lose 'rights', and we can expect to gain some of them back when the 'war' is over. The problem being, our current war has no defined ending, and it has already been explained to the American citizens that this will be a long drawn out war full of secracy. The longer a war goes on, the more rights that are taken in the name of that war. It is esp. damning that dissonates is being actively suppressed, with the Bush clan warning our media to 'act responsibly' and advising against such things as playing BinLaden's videos. At the end of wartime, we never regain back all that we have lost.

But what about before...

[JaBean]

If we were worried about our civil liberties being snatched by the RIAA pre Sep11, now we have real cause for concern. Like the article says,

"If our liberties are to be protected, it is up to us to protect them."

But what happens when the media is a toy that does not discuss these issues and that is the people's only source for information? Many of my friends have no idea about what is going on with DMCA and the major news organizations refuse to give any coverage from the people's POV. It will be a grim future where we have an uninformed populace who does not even know which issues to oppose.


"Every man is a God in disguise; a divinity playing the fool."
-R.W. Emerson

Why Liberty Suffers in a Time of War

[Alien54]

As noted elsewhere, Wired had a similar article back in mid september entitled Why Liberty Suffers in War Time

Of course, at that time, almost everyone was shell shocked, and it was not on the radar yet

In this situation, war has not been formally declared. Usually, in a war, such laws are "for the duration". Since we are not "formally" at war, there is no such limitation.

Freedoms lost may likely be a permanent loss, unless people strive to make sure otherwise.

What about *after* the war?

[hattig]

OT: No, not the graphically excellent 8-bit computer game from 1991 called "After The War"...

T: After this conflict, will we see that Bin Laden speech in full? Will we hear about all the other things that are being kept (rightly) silent now? Or will they be stamped "Top Secret - 25 years", and only released when many of us are collecting our pensions and don't give a damn?

We just have to make sure that the current conflict just keeps on with its original aims - combat terrorists, terrorism and supporters of terrorism, and doesn't morph early next year into a different beast (cheaper oil would be nice, wouldn't it?). There needs to be public accountability for the actions of the military within all conflicts, to ensure that they operate within the bounds of their mission, and that they should not become a pawn in some political game.

Which I don't think will happen this time, but though like pointing out.

CmdrTaco explain this one: Invalid form key: On9kApk2Hq ! and Invalid form key: GSQ8puWVyf !

Hattig
-- The price of Linux is support: Book Prices to Kill... :)