Vigilance and Responsibility in America’s War Against Terrorism

Mackubin T. Owens

November 1, 2001

A number of commentators recently have argued that the Constitution is "being shredded" in the war against terrorism. Both liberal civil libertarians and conservative critics of big government have united to oppose 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 anti-terrorism package passed by Congress, and an executive order that establishes military tribunals to try foreigners suspected of terrorist activities.

Of course, the dilemma we face today is not new. During the nation’s greatest crisis, Abraham Lincoln took unpopular steps, including the suspension of the writ of habeas corpus, in an effort to prevent the disintegration of the Union. Lincoln addressed the dilemma arising from the attempt to balance security and liberty in a message to Congress justifying his emergency actions 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."

This debate is alive and well today, as civil libertarians speak in terms of vigilance while the administration and its defenders stress responsibility in the face of an alien threat, a vast, foreign-based conspiracy that seeks to destroy the United States and kill its citizens. But 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.

Let us consider the most controversial step that the Bush administration has taken—the creation of military tribunals to try terrorists. The New York Times called the tribunals "a travesty of justice." The Washington Post claimed the administration was engaged in an "end run around the Bill of Rights."

But there are well-established precedents for the creation of such tribunals. During the Civil War, Lincoln created similar tribunals under his constitutional powers as commander in chief of the military. It is true that in 1866, after the emergency had passed, the Supreme Court ruled in Ex Parte Milligan that citizens could not be tried by military courts outside of a war zone when civil courts were operating. But in a 1942 ruling, Ex Parte Quirin, the Court ruled that military tribunals to try aliens who had violated the laws of war was a proper exercise of the president’s war power under the Constitution.

In Quirin, the Court declared that enemy combatants out of uniform who come "secretly through the lines for the purpose of waging war by destruction of life or property" are not entitled to prisoner-of-war status, but are instead "offenders against the law of war subject to trial and punishment by military tribunals." This description applies in spades to the al Quaeda terrorists who attacked the World Trade Center and the Pentagon, killing nearly 4000 people.

In a recent Washington Post op-ed, William Barr, a former US attorney general and Andrew McBride wrote that just as it is unthinkable that a state could be expected to fight a war within the strictures of the US criminal justice system, "it is a fundamental error of reasoning to take the safeguards that apply in the realm of domestic law enforcement and, as the president’s critics would, artificially extend them into the entirely distinct realm of an armed conflict against a foreign aggressor." The president’s actions, the authors claimed, actually help to preserve domestic civil liberties "by refusing to insist upon their application in a context where their incongruity would inevitably lead to their erosion."

What about the "slippery slope" argument? After all, we have seen law enforcement tools, e.g. RICO, applied in cases that extend far beyond what was intended by those who passed the enabling legislation in the first place. Once again, Lincoln provides a lesson in prudence when it comes to the constitutionality 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.

Mackubin Thomas Owens is professor of strategy and force planning at the Naval War College in Newport, RI, and an adjunct fellow of the Ashbrook Center. The views expressed here are his own and do not reflect the position of the War College, Navy Department, or Department of Defense.