Joel Mathis has had it
with Barack Obama. Mathis voted for Obama to end torture, Guantanamo detentions, and warrantless wiretapping. Not only has the Obama administration tabled those agenda items, but the president's decision to sign the National Defense Authorization Act (NDAA) last week was, for Mathis, "the final betrayal." After threatening to veto the bill, President Obama signed it into law, despite warnings
from fellow Democrats 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."
Mathis has company, then, in feeling that Obama has "actively betrayed," with this decision and others, 2008's hopes for "a new dawn for civil
liberties and due process rights." As he notes, however, most of the American political spectrum feels differently. A liberal Democratic president has taken a position on correctly calibrating civil liberties in light of national security imperatives that affirms more than it repudiates his conservative Republican predecessor's policies. Mathis notes that John Boehner and Mitch McConnell voted for NDAA - as did Nancy Pelosi and Harry Reid.
An alternative interpretation 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 is Abraham Lincoln suspending the writ of habeus 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: "The whole of the
laws which were required to be faithfully executed,
were being resisted, and failing of execution, in nearly
one-third of the States. Must they be allowed to finally
fail of execution, even had it been perfectly clear,
that by the use of the means necessary to their execution,
some single law, made in such extreme tenderness of
the citizen's liberty, that practically, it relieves
more of the guilty, than of the innocent, should, to
a very limited extent, be violated? To state the question
more directly, 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?"
This argument has always struck me as an application of a basic principle of Thomistic metaphysics: The first attribute of essence is existence. Before an entity can be this or be that it must, first, be
. Preserving attributes in ways that jeopardize the entity's existence is, as a result, indefensible. As Lincoln put the 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, a president may mistakenly or cynically claim that the preservation of the nation mandates otherwise unconstitutional government 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.
There is, obviously, no tidy formula that defines the circumstances under which otherwise unconstitutional may be rendered permissible. In the absence of such a formula, the position of civil libertarian absolutists is that the only way to avoid a slippery slope is to insist that there are no circumstances, ever, where grave national threats legitimate ordinarily unconstitutional government actions. This may not be Representative Ron Paul's belief, exactly, but does seem to animate some of his supporters. A more holistic 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.