Liberty

The past eight years of the George W. Bush Administration have seen significant restrictions of individual liberty. Much of the impetus for these restrictions has come from the tragedy of September 11 and its complex aftermath: War inevitably magnifies the tension between individual liberty and national security. But there are wise and unwise ways to strike the appropriate balance. In the years since September 11, the Bush Administration has embraced a series of policies–including torture, aggressive surveillance of international communications, clandestine detention of American citizens, secret prisons in Eastern Europe, closed deportations proceedings, and restrictions on the writ of habeas corpus–that have unnecessarily undermined the fundamental American value of individual liberty.

However, the most unfortunate policy of the Bush Administration in terms of American liberty has been its deliberate and consistent effort to hide some of its most important policy decisions from the American public. Of course, there are legitimate reasons to keep certain information secret to protect the national security. But secrecy can also be used to evade responsibility and to manipulate and distort public debate and understanding. Overbroad government assertions of secrecy can cripple informed public debate. It is impossible for citizens responsibly to consider the merits of the actions of their elected representatives if they are kept in the dark about their conduct. As Sen. Daniel Patrick Moynihan once observed, “Secrecy is the ultimate form of regulation because people don’t even know they are being regulated.” This has been a legacy of the Bush Administration.

In a studied effort to circumvent the constraints of separation of power, judicial review, checks-and-balances and democratic accountability, the administration has systematically promulgated programs in secret, denied information to Congress, abused the classification process, narrowly interpreted the Freedom of Information Act, redacted vast quantities of information from government websites, disciplined government whistleblowers, jailed journalists for refusing to disclose their confidential sources, threatened to prosecute the press for revealing the Administration’s secret programs, and broadly invoked executive immunity and the state secrets doctrine to prevent both Congress and the courts from evaluating the lawfulness of its programs. By shielding its decisions from legal, congressional and public scrutiny, the Bush Administration has undermined the single most central premise of a self-governing society: It is the citizens who must evaluate the judgments, policies and programs of their representatives. As James Madison observed, “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both.”

The Obama Administration offers an opportunity to reconsider this posture and regain the appropriate balance between secrecy and the public’s right to know. With the past eight years in mind, we need to reevaluate some of our government’s practices and policies in order to re-establish the nation’s commitment to transparency, accountability, and informed public deliberation, which are fundamental to individual liberty.

A nation at war may exercise extraordinary authority to conscript soldiers, commandeer private property, control prices, ration food, raise taxes, freeze wages, and send young men and women off to fight and perhaps to die in far-off lands. May it also restrict public debate about the wisdom and legality of the government’s own actions, on the plea that such discussion might endanger the security of the nation?

Throughout American history, wartime administrations have limited public discourse in the name of national security. In 1798, for example, on the eve of a threatened conflict with France, Congress passed the Sedition Act of 1798, which effectively made it a crime for any person to criticize the government. Although the Republicans, led by Thomas Jefferson and James Madison, opposed the act as a violation of the First Amendment, the Federalists, led by John Adams and Alexander Hamilton, defended it as a wartime necessity. They insisted that speech critical of the nation in wartime might undermine the confidence of citizens in their leaders, divide and demoralize the public, foster opposition and subversion, embolden the enemy, and ultimately threaten the security of the nation itself.

Similarly, during the Civil War, the Lincoln Administration invoked martial law, suspended the writ of habeas corpus, shut down “disloyal” newspapers, and imprisoned critics of the president’s policies. And during World War I, the Wilson Administration enacted the Espionage Act of 1917 and the Sedition Act of 1918, which made it unlawful for any person to criticize the war, the draft, the government, the president, the flag, the military, or the cause of the United States. The government prosecuted some 2,000 people under these statutes, with the consequence that free and open debate was stifled almost completely.

Measured by these standards, the Bush Administration’s direct efforts to suppress public debate since September 11 have been relatively modest. This is so in part because of a fundamental shift in American law and culture. By the 1960s, a consensus had emerged in the United States–both in the public and the courts–that these past episodes of civil-liberties infringement had been grievous errors in which the nation allowed fear and partisan exploitation to override its commitment to individual liberty and democratic self-governance. By the time of the Vietnam War, a consensus had emerged holding that the government cannot constitutionally punish its critics, even in wartime, merely because they question the wisdom, morality, or efficacy of government policy.

That consensus, which reflected a profound shift in American values and law, has held to the present, with the result that the Bush Administration–unlike the Adams, Lincoln and Wilson administrations–has not even attempted criminally to prosecute critics of its policies. This is an important milestone in American history. We should not let it pass unnoticed, or in any way take it for granted. Viewed historically, it is a significant triumph for the rule of law.

• 1
• 2
• 3

Post a Comment

Name

Email

Comments (you may use HTML tags for style)

Verification

Note: Several minutes will pass while the system is processing and posting your comment. Do not resubmit during this time or your comment will post multiple times.