To the Members of the 112th Congress:
These letters hope to find, in the continually arising, pressing political questions and choices of the moment, those principles or observations that have always been and will always be necessary to our deliberations as a free people. We think there may be a good occasion for this in the President's recent decision to sign the National Defense Authorization Act (NDAA).
For some of the voters who were most enthusiastic about Barack Obama in 2008—those who have since then been disappointed by the President's decisions about enhanced interrogation, the detentions at Guantanamo Bay, and warrantless wiretapping, for example— this was the last straw. After first threatening to veto the bill, President Obama signed it into law, despite warnings from fellow Democrats, such as Senator Bernard Sanders of Vermont, that it would "essentially authorize the indefinite imprisonment of American citizens without charges." The New York Times editorialized against its "terrible new measures that will make indefinite detention and military trials a permanent part of American law."
These are minority positions, however, even among Democrats. Nancy Pelosi and Harry Reid joined John Boehner and Mitch McConnell in voting for NDAA. A liberal Democratic president, supported in the main by his party, has taken a position on calibrating civil liberties in light of national security imperatives that affirms more than it repudiates his conservative Republican predecessor's policies.
One explanation of this quasi-consensus in favor of giving the government the power to circumvent normal criminal procedure and circumscribe peacetime civil liberties is that national security is a hard, grave business. Candidates who spoke as glibly as bloggers and editorialists about respecting boundaries regardless of the consequences become far less categorical when they're in important positions of national power and must confront just how horrific those consequences might be.
Drawing the lines and rightly understanding the nation's exigencies is not merely a post-9/11 problem. The most famous example in our history is Abraham Lincoln suspending the writ of habeas corpus – first by executive order, later according to congressional enactment – as secession and civil war consumed the nation in 1861. He defended his actions in a message to Congress: Are "all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated? Even in such a case, would not the [president's] official oath [of office] be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it?" Lincoln elaborated his point in 1864:
My oath to preserve the constitution to the best of my ability imposed upon me the duty of preserving, by every indispensable means, that government – that nation – of which that constitution was the organic law. Was it possible to lose the nation, and yet preserve the constitution? By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation.
Of course, the government might mistakenly or cynically claim that the preservation of the nation mandates otherwise unconstitutional actions. In 1944 the Supreme Court upheld the constitutionality of sending over 100,000 Japanese Americans to internment camps after Pearl Harbor, a policy implemented by two of the great liberal heroes of the last century, President Franklin Roosevelt and Earl Warren, later Chief Justice of the Supreme Court but at the time the governor of California. Eight years later, however, the Court ruled that President Harry Truman had exceeded his constitutional and statutory authority when, during the Korean War, he issued orders nationalizing the steel industry to prevent a strike by the United Steelworkers from shutting down the mills.
The "war on terrorism," unlike the Civil War or World War II, is not going to conclude with a formal surrender. Since we won't know when it's over, we have reason to wonder if it will be over. The idea that otherwise unconstitutional measures might, because of an existential threat, become lawful means to preserving the nation requires a bigger, more difficult investment of citizens' faith if the existential threat is not an episode but an open-ended state of affairs.
Even if we're not at war in the aftermath of a terrorist attack that killed thousands of Americans in a single day, we all know we're at … something. There is no tidy formula that defines the circumstances under which otherwise unconstitutional actions may be rendered permissible, especially in the treacherous, uncharted waters we must navigate. In the absence of such a formula, the position of ardent civil libertarians is that the only way to avoid a slippery slope to tyranny is to insist that there are no circumstances, ever, where grave national threats justify ordinarily unconstitutional government actions.
A more comprehensive but less clear-cut position is that the idea of eternal vigilance being the price of liberty works two ways: First, we must be vigilant against all enemies, foreign and domestic, whose threats may sometimes require the government to preserve the nation by taking actions that would ordinarily be impermissible. Second, we must be vigilant against the government, especially when it claims that grave dangers justify extraordinary actions. There are no guarantees, but the continuous exercise of both kinds of vigilance gives us our best hope for preserving our freedoms, and the political order in which they are embedded. This dilemma is a permanent feature of the challenge to make an experiment in self-government succeed.
Lincoln asked 150 years ago, "Is there, in all republics, this inherent, and fatal weakness? Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?" Our experiment in freedom, it seems, has always been and will always be in part an answer to that question.