Shocks to the Constitution
Spring officially began on Thursday, March 20, but the first real spring day in Washington was Saturday, a blindingly sunny day, flowers just beginning to peek out, the National Kite Festival occupying four blocks on the Mall, the remainder filled with carefree games of soccer and ultimate frisbee, couples basking in the sun and tourists sporting T-shirts and video cameras. If it weren't for the slightly stepped-up security at the Air and Space Museum, one would hardly know that we had just launched a war against a nation said to be threatening us with weapons of mass destruction.
The arrival of spring in Baghdad, by contrast, was marked by the kickoff of the Pentagon's "shock and awe" campaign, as more than 1,300 cruise missiles and bombs were launched at the city, beginning with what the New York Times called a "10-minute volley of almost biblical power." The stark contrast between living conditions in these two warring countries right now makes it seem almost selfish to sound alarms about civil liberties here at home. I can almost hear Donald Rumsfeld now: "Would you rather live in Baghdad?"
But if history is any guide, this is exactly the time to sound alarms. According to Francis Biddle, FDR's Attorney General during World War II, "The Constitution has not greatly bothered any wartime President." It's not clear that the Constitution greatly bothered George W. Bush during peacetime, but given the permanence of the "war on terrorism" and a "pre-emptive" national security strategy likely to make Iraq the first of a series of conquests, we may never find out.
War in America has always prompted government officials to adopt "preventive" measures that jettison principles of individual culpability, due process and political freedom. Punishing only the guilty seems suddenly antiquated in wartime, and procedures designed to protect the innocent seem dispensable luxuries. In prior wars, we have suspended habeas corpus, criminalized antiwar speech, locked up people because of their Japanese ancestry and indulged in guilt by association.
What this war will bring is anyone's guess. But the early signs suggest it may not be only the Iraqis who are shocked and awed. We were already at war with terrorism, of course, a war that has led to preventive detention, guilt by association, ethnic profiling and spying without criminal suspicion. As the war on Iraq began, the Administration announced that it would now automatically lock up any refugee seeking asylum from thirty-three largely Arab and Muslim countries--the same countries whose nationals have already been selectively subjected to special registration, "voluntary interviews" and prioritized deportations. At the same time, reviving tactics from the first months after September 11, the government announced it would use pretextual immigration charges to lock up Iraqi nationals it considers dangerous, thereby obviating the need to prove that they actually are dangerous. Such measures dispense entirely with individualized justice.
But like the bombing of Iraq, most of these measures don't directly affect US citizens. What does affect the rest of us is the fast-developing culture of conformity, effected not by laws criminalizing speech but by more informal and less centralized means. My research assistant's landlord orders her to remove a small antiwar sign she has displayed in her window. Police tell two New Yorkers that they cannot stand in the Times Square subway station with a sign saying Discuss the War With Us. The Dixie Chicks, one of America's most popular bands, find themselves the subject of public CD burnings, radio boycotts and a 20 percent drop in airplay after their lead singer tells a British concert audience,"We're ashamed the President of the United States is from Texas." And Senate minority leader Tom Daschle is practically branded a traitor for attributing to the President a failure of diplomacy--no more than a statement of fact.
The threats to liberty here pale, of course, in comparison with the threats to life we are visiting upon Iraq. But in Biddle's phrase, we must be "bothered by the Constitution"--both because we can be sure the President will not be, and because the right to dissent and organize here is an essential check on the destruction we wreak abroad in the name of freedom.