Bush - Destroyer of Civil Liberties?

01-11-04

Bush is "destroying our civil liberties". We hear it nearly every day from the left of center ideologues in this country who claim he is first and foremost among the country's worst civil rights abusers. Is this just rhetorical excess or is there truth in the accusation?

Reviewing the past we can easily find examples of presidents curtailing civil liberties in wartime. During our three biggest wars presidents Abraham Lincoln, Woodrow Wilson and Franklin Roosevelt made liberal use of their ability to arrest and detain US citizens at will. Since we have entered into this new war on terror as a result of loosing several thousand civilian lives in the devastating attacks on Sept. 11th, 2001 it is instructive to look to the past to review how other administrations addressed their own crises.

One of the more blatant abuses of civil liberties happened during the civil war when President Lincoln actually suspended the writ of habeas corpus entirely. It is estimated that he detained over 13,000 U.S. citizens without trial or even formal charges in many cases. His administration imprisoned newspaper publishers and suspected Confederate agents. He even went so far as to jail the wives and mothers of suspected Confederate operatives (In one egregious case several of those women were killed when the warehouse they were being stored in collapsed with them inside). Naturally, the president didn't have his hand directly in each and every case, having his military authorities performing the deed instead, yet he certainly approved the actions.

Lincoln's worst outrage against political free speech was the banishment from the country of a well-known Ohio politician. Clement L. Vallandigham, a former member of the Federal House of Representatives and erstwhile candidate for Governor of Ohio, was arrested in 1863 by General Ambrose Burnside, commander of the Department of the Ohio, for a violation of special order number 38. Arrested for violating Burnside's order to prohibit speaking out against the government and with the writ of habeas suspended Vallandigham had no recourse in the courts. Vallandigham was later banished to Confederate controlled territory in North Carolina, effectively casting him out of Federally controlled territory and certainly removing him from being a political threat to the administration in the state of Ohio. This outrage is just one example of Lincoln's attack on his countrymen's civil liberties, though one of his worst.

Lincoln's abuses were such that the U.S. Supreme Court denounced his actions in its opinion Ex parte Milligan after the war. The court ruled that the chief executive does not have the constitutional right to suspend the writ of habeas pointing out that such power is vested only in congress. Consequently, Lincoln's actions were ruled unconstitutional.

During WWI, Woodrow Wilson presided over the passage of the Espionage and Sedation Acts in 1917 and 1918 outlawing criticism of government policy. As a result thousands of Americans and immigrants were arrested, many without warrants. A presidential candidate for the socialist party, Eugene Debbs, was even arrested and imprisoned for speaking out against the government. Debbs was pardoned after serving 10 years by Herbert Hoover, Wilson having stubbornly refused to do so while he was in office, but only after the crisis of war had passed.

During WWII, President Franklin Roosevelt is well known for his roundup of some 120,000 Japanese Americans on the East Coast and placing them in government interment camps. But he is less well known for grossly curtailing the civil liberties of thousands of Italian and German Americans many of whom were similarly interred or placed under house arrest or were followed by government agents all across the country. His list of civil rights abuses is long and often ignored by his ardent admirers.

But let us compare the records of these three of our most famous and beloved presidents to the record of our current president, George W. Bush. Has Bush achieved a record even remotely comparable to the historical examples of previous presidents? The answer is plainly no.

Bush has come nowhere close to the excesses of past chief executives, though it cannot be said that he is wholly free of questionable actions. Shortly after 9/11, for instance, there were 600 or so special interest immigration cases which had their hearings closed. "No visitors, no family and no press" were to be allowed as specified by the nation's chief immigration Judge, Michael Creppy. This order has been denounced in several court rulings since as violations of due process and 1st Amendment rights.

We also have a small group of people whose nebulous legal status has been unevenly determined and applied since the attacks on 9/11. Jose Padilla, in one case, is a U.S. citizen who has been declared an enemy combatant despite his status as a legal American citizen. This is certainly a problematic case in as much as it appears that Padilla's citizenship has been discounted and he has been accorded the same negative status as the foreign prisoners being held at Camp X-Ray in Guantanamo, Cuba, none of whom are American citizens. By contrast the young man from California, John Walker Lindh, was treated much more as an American in a civil case even though he was actually caught under arms, in a foreign land in attacks on U.S. troops.

There is also the case of Yasser Hamdi who has also been classified an enemy combatant. Hamdi is a Saudi national but was actually born in the U.S. The Supreme Court has decided to hear this case and we will see what comes of it.

As mentioned above, there are the prisoners who were transported from Afghanistan now being held at Camp X-Ray in Guantanamo, Cuba who have also been determined to be enemy combatants. These people are foreigners who were captured by U.S. forces in battle against U.S. troops and are being held for the possible intelligence they might reveal about al Qaeda operations.

Another Bush action drawing the ire of civil libertarians is the passage of the Patriot Act. However, this act is a clear attempt to reconcile a respect and recognition of existing American civil liberties with the exigencies of wartime secrecy and intelligence agency investigative needs. The Patriot Act is not the simple suspension of habeas corpus perpetrated by the Lincoln administration, nor is it any where near as restrictive as the Espionage and Sedition Acts passed by the Wilson administration. The Patriot Act, though perhaps flawed, is no action lightly taken and is getting quite a lot of debate still proving that due diligence of consideration and debate is being observed.

So, in comparing the Bush administration and its response to this current crisis to three previous administrations it is plain that Bush is no where near as abusive, not nearly as arbitrary and not half as authoritarian as were his predecessors.

Lincoln's action against Vallandigham would be akin to Bush sending Senator Robert Byrd of West Virginia, a former KKK member, to France for his tirades against the administration on the floor of congress. Wilson's action against Debbs would perhaps be comparable to Bush throwing Democratic candidate for President Howard Dean in jail for his criticisms of the administration on the campaign trail. Yet Bush has taken no such comparable actions against his opponents. So to claim that Bush is even in the same league as some of the worst abusers of civil liberties in American history is overblown rhetoric and lacks any kind of historical perspective. This is especially so in light of the fact that the three previous presidents mentioned are considered some of our greatest.

We do not see an administration bent of the destruction of our civil liberties. What we do see, however, is an administration that is unsure of its definitions, confused as to its authority and questionable in some of its choices. The term "enemy combatants" is not even satisfactorily defined on solid legal grounds. The term originates in a Supreme Court decision (Ex parte Quirin) issued in 1942 as a result of a case brought against the government by those hoping to stop the military tribunals created to try the Nazi saboteurs apprehended on U.S. soil. But the term, while used in that decision, is not fully defined there nor is it addressed by any Federal statute thereafter. The meaning of the term is not even officially defined by the current administration nor does it fit easily within the framework of international law. Obviously, we need this term clarified.

It is plain that we have come to a point in time where we need some hard and fast definitions of terrorism, enemy combatants and the role our courts will play in this new age. The president should heed the call of the legal field for a study to be commissioned or a board appointed to address these issues with finality. Perhaps some sort of new terrorism court can be created to try such cases as Thomas F. Powers postulated in the January 12th, 2004 issue of the Weekly Standard.

In any case we need to justify our actions in light of our history of a careful and reverent observance of the rule of law if not for a certain level of legitimacy in the eyes of the world then for our own sense of well being and surety.

By Warner Todd Huston



Warner Todd Huston's thoughtful commentary, sometimes irreverent often historically based, is featured on many websites such as townhall.com, opinioneditorials.com and americandaily.com among many, many others. He has also written for several history magazines and appears in the new book "Americans on Politics, Policy and Pop Culture" which can be purchased on amazon.com. He is also the owner and operator of publiusforum.com. Feel free to contact him with any comments or questions : EMAIL Warner Todd Huston

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