Protect and Defend

New Sisyphus has an excellent discussion on balancing civil liberties with security needs and trying to fight a war. This was one of the more interesting parts:

Listen to a modern debate about the USA Patriot Act or of the detainees at Guantanamo Bay and you’re more than likely to hear two sides talking right past each other.

The reason for this is that opponents of the President’s actions (let’s call them “civil libertarians” for short in this context) cannot conceive that the state has the authority to hold suspects for war-related activity outside of the normal criminal justice system. As the Bush Administration has successfully argued, again and again, enemy combatants, even if citizens of the United States, are simply not subject to the criminal law any more than German troops in Normandy were on D-Day.

This is why all the civil libertarian talk about jury trials, judicial review, the right to counsel and to bail and all the other normal accoutrements of modern criminal procedure is all beside the point. All those norms, as important as they are in their context, simply do not apply.

To understand why, you have to understand the story of seven devoted Nazi agents who came ashore in the dead of night in Long Island, NY, and near Jacksonville, Florida, in 1942. Their mission: to sabotage America’s war industries and transport infrastructure using any means necessary. In addition to being a devoted National Socialist, ready and willing to die for the cause, one of them, named Haupt, was also a citizen of the United States.

Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 51, 87 L.Ed. 7 (1942)

The FBI quickly rounded up the Nazi agents and President Roosevelt ordered them held and tried by a special military commission. Roosevelt ordered that the jurisdiction of the new special military tribunals extended to:

"…all persons who are subjects, citizens or residents of any nation at war with the United States or who give obedience to or act under the direction of any such nation, and who during time of war enter or attempt to enter the United States ... through coastal or boundary defenses, and are charged with committing or attempting or preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the law of war, shall be subject to the law of war and to the jurisdiction of military tribunals."

The agents filed a petition of habeas corpus to challenge their military detention under the military commission. The petitioners’ arguments will sound familiar to anyone who has followed the Guantanamo debate...

It seems to me that a free society like ours must make some compromises with the kinds of civil liberties that are discussed above. Not to do so would be to willingly commit suicide and allow those who would destroy our liberties free reign to cynically use our own laws to forward their murderous goals.

Having said that, there must always be some tension, anxiety, and free discussion whenever such powers are invoked; and it is always useful to review them to ensure that there is a balance. The key test of a free society's dedication to liberty is that such powers are easily relinquished, once the threat has passed.

Perhaps the most important function of a democratic government is to protect and defend the homeland so that we can enjoy the blessings of our freedom. Trying to balance that crucial role with maintaining those freedoms is, as New Sisyphus says, figuring out how you "wage a war for our country without losing the liberty that makes our country worth fighting for?"