Who cares about civil liberties?

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This week President Bush will sign the Military Commissions Act of 2006, as the detainee bill is officially called, into law. And yet, despite its significance, politically the legislation seems barely to have registered. ‘‘I haven’t seen the slightest evidence that it’s had the slightest impact on any race in America,’’ says Charlie Cook, publisher of The Cook Political Report and a widely respected political analyst. ‘‘I don’t think it’s cutting for or against either party in the slightest degree.’’

But history shows that civil liberties haven’t always inspired profound political indifference—do they have to today?

Throughout American history, those in power have shown that they are willing to make serious compromises on civil liberties when they feel national security is at stake. From the Alien and Sedition Acts signed by John Adams, to Abraham Lincoln’s suspension of habeas corpus during the Civil War, to the Red Scare following World War I, to the internment of Japanese-Americans during World War II, and Cold War McCarthyism, the right to free speech and a fair trial have been anything but sacred.
‘‘The historical pattern is extremely clear, it does not require some microscopic assessment,’’ argues the historian Joseph Ellis, a professor at Mount Holyoke College. ‘‘And if you look up any of those incidents in a standard college history textbook they will all be described as embarrassments, as regretted moments.’’
It’s also true, however, that the popular reaction to these incidents has been far from uniform.
For example, the Alien and Sedition Acts of 1798, passed by the ruling Federalist Party in the face of the looming threat of war with Napoleon’s France, were enormously unpopular at the time, and historians generally agree that they were a significant political blunder. The laws helped propel Thomas Jefferson, leader of the opposition Republican Party, to the presidency in 1800, and John Adams would later claim that signing them was the biggest mistake of his life.

Similarly, one of the greatest controversies of Abraham Lincoln’s presidency was his refusal to overturn the conviction of Clement Vallandigham, an antiwar Democrat who had been convicted by a military commission in Ohio of having declared sympathy for the Confederacy and making ‘‘disloyal sentiments and opinions.’’ Lincoln’s personal secretaries, John Nicolay and John Hay, wrote that no other act of Lincoln’s ‘‘was so strongly criticized’’ or created ‘‘so deep and so wide-spread’’ an outcry of opposition. Even Republican newspapers normally loyal to Lincoln chastised him for his disloyalty to the Constitution.

On the other hand, limits on civil liberties that have focused primarily on immigrants and noncitizens have tended to run into less opposition. In the Red Scare that followed on the heels of World War I, citizens were prosecuted for seditious activities, but the bulk of the arrests were of aliens, 3,000 of whom were deported on the orders of Attorney General A. Mitchell Palmer. As Geoffrey Stone, a University of Chicago law professor, writes in ‘‘Perilous Times,’’ his 2004 history of free speech in wartime, the so-called ‘‘Palmer Raids’’ were hugely popular.

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