Korematsu and Warrantless Eavesdropping

I had my first experience with the new editorial page editor, who took my suggestion for a headline--his predecessor never did--but who decided he didn't like my lede and rewrote mine. He changed the first two paragraphs to read thusly: "For the Bush administration and its supporters, the Constitution is like the "Pirates' Code:" more like guidelines. Nice, but if the law gets in the way of doing what they claim is necessary, then it becomes irrelevant -- permanently." I like my version better, so I changed it back. But you can see the newspaper version here. He also inserted the two internal headlines, which I've added.

The Bush quote is from a transcript available on the White House website. Hat tips: Kevin Drum for the Schlesinger quote, Timothy Noah for the link to the White House transcript.

So I'm quoting from Justice Robert Jackson, Arthur Schlesinger, Eugene Rostow, and Pirates of the Caribbean in this column. Just another week at the East Valley Tribune.

We Always Regret It In The Morning
East Valley Tribune, Dec. 25, 2005

There’s little danger of the Constitution becoming a suicide pact, because the Bush administration (and its supporters) don’t consider the Constitution an actual “pact.”

Instead, the Constitution is like the “Pirates’ Code”: more like guidelines. Nice, but if the law gets in the way of doing what they claim is necessary, then it becomes irrelevant -- permanently.

Because (cue theme music) September 11 changed everything, forever. People who used to worry about FBI files and jack-booted thugs now willingly trade their freedom -- and yours -- for “security.” They’re more than happy, as one ‘winger blogger put it, “to give up a portion of ‘privacy’ that I didn’t realize I had in order to more effectively combat the people who have declared war on us and are trying to kill us.”

Never mind Benjamin Franklin, who said that “those who would give up essential liberty for temporary safety deserve neither.” Franklin got tossed overboard, along with the Bill of Rights.

Government of Laws?

Here’s what it now means to be a “conservative”: Supporting warrantless searches and eavesdropping. Supporting an overseas network of secret prisons, and cruel and inhumane treatment. Supporting broad executive powers that can be reviewed by, or known to, only the executive -- including the right to hold U.S. citizens indefinitely without charge and without trial. And all because you “trust” the current president, because Sept. 11 gave us a government of men, not laws, and if I don’t agree, then I’m a traitor.

President Bush called the 2004 elections his “accountability moment.” We now learn that he thinks the election gave him approval for things he’s kept secret from most of Congress and the American people. Now that’s accountability!

Here’s Bush, in April of 2004: “Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.”

Exactly. We value the Constitution -- except when we don’t. Who needs the terrorists to hate us for our freedom, when the Bush administration and its supporters are doing such a terrific job already?

Inspired Argument

In law school, I took my first-term Constitutional Law course from the late Eugene Rostow. Prof. Rostow was nearing retirement, and any thrill of explaining basic concepts to another group of wet-behind-the-ears law students had worn pretty thin by then. I grew increasingly disenchanted with the class until the day I stumbled across Rostow’s 1945 law review article, “The Japanese American Cases -- A Disaster.”

It was the law school equivalent of seeing Willie Mays in his prime. Rostow mercilessly tore apart the shoddy logic and abdication of thought in the Supreme Court decisions upholding the wartime internment of Japanese-Americans. He attacked the court for blindly accepting assertions by government officials as sufficient to detain citizens, largely based on race and ethnicity, without limit and without remedy: “Unless the courts require a showing, in cases like these, of an intelligible relationship between means and ends, society has lost its basic protection against the abuse of military power.” And -- in 1945! -- he presciently attacked the court for approving those detentions, for converting “a piece of war-time folly into political doctrine, and a permanent part of the law.”

History has shown that there was no good reason to intern Japanese-Americans; we abandoned our principles unnecessarily, to our shame. It’s easy to scare people into abandoning some freedoms permanently for a threat that turns out to be overblown, often fancifully. But as Arthur Schlesinger once said, whenever America does things like this, we always regret it in the morning.

Professor Rostow knew that America had gone overboard and made a permanent mistake, one that every serious historian recognizes today. Aren’t there any “principled conservatives” willing to take up Rostow’s mantle today?