IN THAT MOMENT OUR WORLD HAS CHANGED
Institutions we once looked to for security now appear fragile. It is harder to be blasé about life’s most profound questions. We have a deeper sense of empathy for our fellows, and a greater appreciation of how truly precious life is. Americans are suddenly talking about Tajikistan, Uzbekistan, Turkmenistan, Pakistan and Afghanistan. And many of us are just plain scared. We are at war against an unseen enemy; an enemy that might strike anywhere and anytime. And the enemy might well be the guy across the street, or around the corner. In all of this, we want to ensure we are safe.
Stuart Taylor of the National Journal summed up what many in our nation are feeling. He noted that the first enunciation of American freedoms comes in the Declaration of Independence and reads that all men are “endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Of these liberties, he wryly noted, he is particularly fond of life. Such an assertion at a time of crisis is in keeping with Maslow’s hierarchy of needs. Yes, we want liberty, but first we must have life.1 The question then becomes what we are willing to trade in order to ensure our personal safety. There have always been widely conflicting answers to this question.
AN HISTORICAL PERSPECTIVE
The questions arising from what to do about freedom during times of war is not new. Cicero famously stated that in times of war, the law is silent. This has appeared to be the case, at least in part, during times of insecurity in our own history.
John Adams, whose reputation is currently on the rise as a result of David McCullough’s best selling biography, supported the Alien & Sedition Act of 1798. The Act, which was vehemently opposed by Thomas Jefferson, gave the state wide powers to punish those who engaged in such “crimes” as falsely defaming the U.S. Government. In the context of the numerous threats to the stability of the fledgling government, it is not surprising that it felt forced to so dramatically limit the freedoms so recently adopted (the Bill of Rights were ratified by the states only seven years prior to the passage of the Alien & Sedition Act). But the irony of such limitations in a nation “conceived in liberty” was evident even at the time of the enactment of the law.
Similar intrusions on freedom occurred during other times of national crisis. President Lincoln suspended the writ of habeas corpus during the Civil War. The writ of habeas corpus is an ancient protection of civil liberties encased in British common law, and incorporated into U.S. common law. The purpose of the writ is to provide the right of a person who is incarcerated to have a hearing at which he is told why he is being held. The suspension of the writ of habeas corpus resulted in people being held without charge and without access to civil courts. It was thus a most extreme limitation on liberty. Interestingly, although President Lincoln’s suspension of the writ was subsequently found unconstitutional by the Supreme Court after the Civil War concluded, suspension of the writ in certain circumstances is explicitly permitted in the Constitution.2
During the First World War, the freedom of speech was severely curtailed. The Espionage Act of 1917, which was amended in 1918, listed a series of ambiguous offenses related to encouraging seditions. The Act provided enormous power to the government to suppress anti-war opinion, to harass nonconformists and to inhibit the dissemination of anything other than the view of the government and its supporters. At the same time, those with German connections or sympathies were frequently harassed by the state and private individuals.
At the beginning of WWII, respect for both the freedom of religion and political freedom were tested in the Minersville School District v. Gobitis case. A state had expelled two Jehovah’s Witness childen, aged 10 and 12, because of their refusal to salute the flag. The children’s faith forbade saluting the flag. Alarmingly, the Supreme Court upheld the expulsions 8-1, thereby indicating that the school’s desire to create national unity trumped the free speech and free exercise rights of citizens.
The intrusion on freedom during war that is most current in our collective memory is the internment of Japanese Americans during the Second World War. The removal and internment was performed under the authority of Executive Order 9066, which was signed by President Roosevelt in 1942. The Order gave the military the authority to exclude any group of people from any region for military necessity. No provision was made for hearings. In 1990, President George Bush signed an official apology to Japanese Americans for the way they were treated during the war. A memorial to Japanese Americans who were sent to internment camps during the Second World War was opened this year, and is located only a few minutes walk from the Capitol.
The history of compromise of fundamental freedoms during wartime is concerning. It raises the question of what types of freedoms will our generation be willing to sacrifice, and whose freedoms we will be willing to sacrifice during this time of crisis. Chief Justice Rehnquist asserts in his book on liberty during war time that “there is no reason to believe that future wartime presidents will act differently from Lincoln, Wilson, or Roosevelt.” Justice Sandra Day O’Connor recently echoed this view, stating that as a result of the terror attacks “we’re likely to experience more restrictions on our personal freedom than has ever been the case in our country.”3
The view that fundamental liberties, such as the right to know the charges for which we are being held, the freedom of speech, and the freedom of movement, will necessarily be violated during crisis is not universally shared. In the stone walls surrounding the memorial to Japanese Americans interned during WWII, the words of prominent Americans reject repeating the past. Senator Inouye is quoted saying “The lessons learned must remain as a grave reminder of what we must not allow to happen again to any group.” President Reagan’s words, “Here we admit a wrong…,” are also etched as a reminder to us that exigent actions in times of fear can leave a bitter legacy for generations to come.
Whether history will judge us in a manner any kinder than our forebears will turn on whether we repeat the mistakes of the past or learn from them.
When thinking through our response, both individual and national, it is worth considering the environment in which our freedoms were originally encased in law. The Declaration of Independence, the Constitution, and the Bill of Rights were all adopted during times of intense national insecurity. At no time in the years since, with the possible exception of the civil war, has the nation been as weak, its existence as severely threatened, or the security so tenuous. Yet in this environment of crisis, the founding fathers boldly proclaimed protection of individual freedoms.
CURRENT PROCESS
With a taste of history in our mouths, let us turn to events as they are unfolding. In some ways, societal and governmental response to the attacks has been encouraging. Proposed anti- terrorism legislation has been relatively moderate in the circumstances, and is being further moderated through the legislative process at the time this article is being written. In addition, on the whole, society has responded responsibly. There have, however, been some disturbing exceptions.
A few days after the attacks, my wife gave her students at the University where she lectures the opportunity to share their thoughts and feelings. Student after student expressed their shock, their pain, and their anger. Finally, a quiet student asked to speak to the class.
She was a slightly built woman of Indian ethnicity. Her words sent chills down the spines of the class members. She was, she explained, a member of the Sikh community. Since the attacks, Sikh children had become the objects of ridicule at school, as classmates equated Sikh turbans with the headgear worn by Osama bin Laden and the Taliban. Worse, Sikh’s across the country had been attacked and one had even been killed in a “reprisal” attack. She began to cry as she spoke. “This is the first time I have been afraid to come to class,” she said. “We are just terrified.”
Within one day, American Sikhs, American Muslims, and Americans of Middle Eastern origin went from being respected members of their communities to being considered the enemy by some Americans. Reports multiplied of Muslims being treated in the most humiliating manner, and of verbal and physical attacks on these groups. In one case, passengers demanded a Muslim family be ejected from the plane before it took off. To the amazement of some passengers, the airline complied and the family was unceremonially evicted. Similar harassment and attacks were reported as far away as Brisbane, Australia, where a mosque was destroyed.
In all of this, it should be noted that the President has acted with honor. President Bush has roundly condemned vigilante acts by private individuals. And this condemnation has been echoed by many of the most prominent citizens in our society. The President and his staff should be highly commended for not only resisting calls for group recrimination, but for working actively against such suggestions by words of praise for the Islamic traditions, his visit to a mosque and his meeting with members of the targeted groups to urge respect for all religious faiths.
Despite this, calls for group punishment continue. A Time/CNN poll taken on September 27 revealed that 31 per cent of Americans approve of the U.S. Government holding U.S. Citizens of Arab decent in camps until it can be determined whether they are terrorists. The same poll revealed that half of the respondents approved of requiring U.S. citizens of Arab decent to carry special identification cards. If history is any indication, we can expect these calls to grow.
Calls for group punishment strike at the heart of our freedoms. A fundamental tenet of freedom of religion, for example, is that people cannot be punished because of their beliefs. Whether those targeted are Muslims, Jews, Christians or any other faith group, the punishment on the basis of faith is wrong. Our dedication to this principle is tested at this time. If we are to pass the test, we must stand strongly for rights of Muslims.
FREEDOM'S ECHO
As the events of November 11 reverberate through our society, it is important that we all keep in mind what it is that we hold dear. At the heart of the American experiment is a dedication to fundamental freedoms enunciated in the Bill of Rights. The test of our dedication to this freedom is our willingness to uphold them, even for unpopular faiths during difficult times. Indeed, it is in difficult times that protections are most sorely needed.
As defenders of freedom, we must remain alert. For if history teaches us anything, times of crisis are often dangerous times for freedom.
James D. Standish is Director of Legislative Affairs for the World headquarters of the Seventh- day Adventist Church, in Silver Spring, Maryland.
FOOTNOTES
1 Stuart Taylor speaking at the Cato Institute, October 2, 2001
2 US. Constitution, Article I, Section 9, Clause 2.
3 Justice Sandra Day O’Connor in response to the terrorist attacks, quoted by Linda Greenhouse in “O’Connor Foresees Limits on Freedom,” The New York Times, Sept 29, 2001.
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