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 ommentators
have recently argued that the Constitution is "being shredded"
in the war against terrorism. They voice concern about such measures
as the government's refusal to reveal the identities and status
of detainees who might have knowledge about the terrorist attacks
of September 11, new rules that permit the government to monitor
communications between some detainees and their lawyers, the antiterrorism
package passed by Congress, and an executive order that establishes
military tribunals to try foreigners suspected of terrorist activities.
This is an
issue that crosses ideological lines. On the one hand, some high-profile
liberals have voiced at least general support for the administration's
antiterrorism measures. Laurence Tribe of Harvard Law School says
that "civil liberties are not only about protecting us from
our government. They are also about protecting our lives from terrorism.
On the other hand, critics of the administration include not only
the ACLU, Nat Hentoff, the Washington Post, and the New
York Times, but also such conservatives as William Safire, Wes
Pruden of the Washington Times, Rep. Bob Barr (R., GA), and
the libertarian Cato Institute.
The issue here
is one of prudence. Prudence is about means, not ends. In the case
of the war against terrorism and the balance between civil liberties
and security, the end is the survival of republican government.
According to Aristotle, prudence is about deliberating well concerning
those things that can be other than they are (means) and therefore
adapting universal principles to particular circumstances in order
to arrive at the means that are not the best simply, but the best
under the circumstances. Thus if we are to maintain the end, i.e.,
to ensure the survival of the American republic, what means are
necessary? What would prudence dictate? Given this sort of reasoning,
it should not be surprising that Aristotle believed prudence to
be the virtue most characteristic of the statesman.
So what is
the proper balance between liberty and security? The dilemma was
well expressed in a letter James Madison wrote to Thomas Jefferson.
"It is a melancholy reflection that liberty should be equally
exposed to danger whether the government have too much or too little
power." And during the nation's greatest crisis, Abraham Lincoln
addressed the dilemma arising from the attempt to balance security
and liberty in a message to Congress justifying his emergency measures,
including suspending the writ of habeas corpus, after Fort Sumter.
"Is there," he asked, "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?'"
In his excellent
book,
Republican Empire: Alexander Hamilton on War and Free Government,
my good friend and Naval War College colleague Karl Walling has
argued that throughout the history of the American republic, a tension
has existed between two virtues necessary to sustain republican
government: vigilance and responsibility. Vigilance is the jealousy
on the part of the people that constitutes a necessary check on
those who hold power lest they abuse it. As Thomas Jefferson wrote,
"It is jealousy and not confidence which prescribes limited
constitutions, to bind those whom we are obliged to trust with power."
But while vigilance
is a necessary virtue, it may, if unchecked, lead to an extremism
that incapacitates a government in carrying out even its most necessary
and legitimate purposes, e.g., providing for the common defense.
"Jealousy," wrote Alexander Hamilton, often infects the
"noble enthusiasm for liberty" with "a spirit of
narrow and illiberal distrust."
Responsibility
is the statesmanlike virtue necessary to moderate the excesses of
political jealousy, thereby permitting limited government to fulfill
its purposes. Thus in Federalist 23, Hamilton wrote that those responsible
for the nation's defense must be granted all of the powers necessary
to achieve that end. Responsibility is the virtue necessary to govern
and to preserve the republic from harm, both external and internal.
For instance, the dangers of foreign and civil war taught Alexander
Hamilton that liberty and power are not always adversaries. The
"vigor of government is essential to the security of liberty."
Prudence would
seem to dictate that in time of war, the balance between vigilance
and responsibility would be different than it is in times of peace.
And while we should always be vigilant when it comes to the Constitution
and our civil rights, a prudent assessment of the threat created
by terrorism tilts the balance toward responsibility. Lincoln provides
a lesson in prudence when it comes to the necessity of measures
in time of war.
In a letter
to Erastus Corning and a group of New York Democrats who had criticized
his war measures, he wrote: "I can no more be persuaded that
the Government can constitutionally take no strong measures in time
of rebellion, because it can be shown that the same could not lawfully
be taken in time of peace, than I can be persuaded that a particular
drug is not good medicine for a sick man, because it can be shown
not to be good for a well one. Nor am I able to appreciate the danger
apprehended by the meeting [of the New York Democrats] that the
American people will, by means of military arrest during the Rebellion,
lose the right of Public Discussion, the Liberty of Speech and the
Press, the Law of Evidence, Trial by Jury, and Habeas Corpus, throughout
the indefinite peaceful future, which I trust lies before them,
any more than I am able to believe that a man could contract so
strong an appetite for emetics during temporary illness as to persist
in feeding upon them during the remainder of his healthful life."
Prudence dictates
that in time of war, responsibility trumps vigilance. In response
to criticism of his suspension of the writ of habeas corpus, Lincoln
asked, "Are all the laws but one, to go unexecuted, and the
government itself go to pieces, lest that one be violated?"
Lincoln's point is as applicable today as it was during the Civil
War. If those responsible for the preservation of the republic are
not permitted the measures to save it, there will be nothing left
to be vigilant about.
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