Professor Edward Corwin, an eminent legal and political scholar, wrote that the U.S. Constitution is an “invitation to struggle”—an invitation to struggle among competing ideas, among competing centers of power, and among competing responsibilities in the exercise of governmental authority.
In the domain of national security, the “invitation to struggle” built into the Constitution has been tested many times. In combatting terrorism, these Constitutional issues have taken on different and much more complex forms. They also require more careful attention on our part if we are to strike the proper balance and preserve both our security and the values that define our free society within the rule of law.
There are many facets to this important question, but in this essay I want to focus on the impact of the so-called “war on terrorism” on civil rights, in particular the rights of minorities.
Since President George W. Bush announced a “Global War on Terror,” critics have pointed out that there was no definition and no boundary to that against which we were waging war. Before 9.11, we treated terrorism as a criminal act, not as an act of war. Now, those two things have been conflated. The National Security Agency (NSA) may be focused on foreign intelligence surveillance and the Federal Bureau of Investigation (FBI) on domestic counterterrorism, but those lines are increasingly blurred. The Paris bombings in November 2015—like the recent Brussels bombings—were, for us, acts of international terrorism. The attack in San Bernardino, less than three weeks after Paris, was domestic—the terrorist, Syed Farook, was an American citizen, and his wife had been allowed to join him in the U.S. after passing two background checks. Yet, in the public eye, San Bernardino was seen as an extension of the Paris bombings, and both events were viewed as a demonstration of the presumed reach of the Islamic State.
If the line between foreign threats to national security and domestic crimes is getting blurred, other lines are getting drawn more firmly. When we think of the long arm of terrorist attacks, we think of Fort Hood shootings in 2009, the Boston Marathon bombing in 2013, Paris last November, San Bernardino in December, and, now, Brussels.
However, between Paris and San Bernardino last year, there was another shooting—in Colorado Springs—when a white Colorado resident with an arsenal of weapons and a self-appointed “religious mission” shot his way into a Planned Parenthood clinic, held the place hostage for the afternoon, and left three dead and nine wounded (it could have been many more), before giving himself up to police.
That wasn’t called terrorism. People tended not to think of it as related to Paris (which occurred two weeks before) or San Bernardino (which occurred only five days after).
After the Planned Parenthood attack, my students at the Air Force Academy asked me a great “what if” question: what if the police had discovered when they searched his rural cabin that the perpetrator of that crime had been perusing Islamist websites? Would that have made a difference in how we looked at that incident? Should it make a difference?
They answered their own question, correctly in my view—it probably would make a big difference in how we would think about the Colorado Springs attack, but it shouldn’t.
The public debate about the Planned Parenthood shootings tended to focus more on the merits of Planned Parenthood as an organization—which surely does not justify the attack even if the now disproven allegations were true. Much of that debate also emphasized the sanctity of the 2nd Amendment.
On the other hand, the debate about the San Bernardino shootings made no reference to any disputes the gunman may have had with his office mates, or about the 2nd Amendment; it was seen as an act of radical Islamist terrorism and as part of a global plot.
Any similarities that might exist between these two incidents were totally lost in the public debate. The two shootings were deemed to be fundamentally different, presumably because the killers in San Bernardino were linked to the so-called Islamic State, while the killer in Colorado Springs was avowedly a Christian.
Since then, of course, the heightened political rhetoric of a presidential campaign has given forth all sorts of simplistic notions that, frankly, fly directly in the face of the values that underpin our Constitution. There have been calls to deport Muslims, to block Muslims from coming into the U.S., to differentiate between Syrian refugees who are Muslim and those who are Christian, to close all mosques in the United States, to ban Islam as a religion in the U.S., and—most recently—to “patrol” Muslim communities. At least to some of its loudest advocates, the much-heralded cause of “freedom of religion” from the First Amendment may not apply to all religions after all.
There is a dark precedent for all of this.
In 1798—before our new Constitution was barely a decade old—Congress passed the Alien and Sedition Acts. Although three of those four laws expired long ago, the substance of the Alien Enemies Act remains in force. This act empowers the President to imprison and deport non-citizens who are deemed dangerous or who are from a hostile nation. This act was used in World Wars I and II to detain or deport non-citizens in the U.S. who were immigrants from those countries against which we had declared war—Germany, Austria-Hungary, Italy, and Japan, among others.
Beyond the Alien Enemies Act, however, President Roosevelt also signed in 1942 an executive order ordering the relocation of all Japanese-American citizens—numbering 127,000 people—to internment camps on the grounds that their ancestry made them a security risk. Two Supreme Court cases in 1943 upheld the rulings—including the use of racial criteria for detention—on the grounds of “wartime necessity.”
Even after the war, Japanese-Americans found it difficult to return to their communities because of the rampant anti-Japanese sentiment. In 1988, President Reagan signed the Civil Liberties Act to compensate surviving Japanese-Americans and their families. A Congressional commission created in 1980 to investigate the internment legacy, called the incarceration a “grave injustice” motivated by “racial prejudice, war hysteria, and the failure of political leadership.”
Most of us know little of this history, but today’s rhetoric is ominously reminiscent. At least one presidential candidate has advocated using this specific precedent as a rationale for barring Muslims from entry into the United States, and public opinion polls in many parts of the country suggest that many Americans would go much farther. In communities across this country, Muslim-Americans and others from the Middle East and South Asia are treated as if they are threats to national security just because of their religion or ethnicity. Depending on the results of this year’s election—especially if there were another terrorist attack in the U.S.—there may be considerable public pressure to repeat this “grave injustice,” motivated, again, by “racial prejudice, war hysteria, and the failure of political leadership.”
Context, however, is important. FDR’s 1942 Executive Orders were upheld by the Supreme Court on the grounds that “the United States was at war with the Japanese Empire.” Recall that Congress had formally declared war on Japan, so the Court ruled that “reasonably expedient military precautions” were appropriate, and that “what might be unlawful in times of peace might be lawful in time of war.”
Hence, from a legal and constitutional point of view, it matters very much whether there is a declaration of war, with boundaries.
In 1943, in an especially insightful dissenting opinion when the Supreme Court upheld the internment of Japanese-Americans, Justice Robert Jackson countered (emphasis added):
“A military order, however unconstitutional, is not apt to last longer than the military emergency. … But once a judicial order rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.”
Two years ago, the late Justice Antonin Scalia warned that the Court’s decision to uphold internment in World War II was “wrong, but it could happen again in wartime.”
In the absence of a declaration of war, however, “wartime,” is no longer defined by legal and constitutional boundaries. In today’s war against terrorism, the functional equivalent of a declaration of war is a 2001 open-ended congressional authorization to use military force, which affirmed the President’s authority to do whatever is necessary “to prevent future acts of international terrorism against the United States.” Since, to many, “international terrorism” now conceivably extends to any violent act by any Muslim in the United States, whether citizen or not, Justice Jackson’s warning that this principle still “lies about like a loaded weapon” is especially poignant.
Nowhere does the tension between “security” and “liberty” come into sharper focus than in questions of war and peace. This is the classic clash between the security of the whole—the general welfare—versus the freedom of individuals. Today, “war” is a much more pervasive and ill-defined concept, especially as we are told we are at war not with a country, or with a specific political entity, but with a form of political violence used by extremist groups all over the world.
Before 9.11, America enjoyed a unique sense of invulnerability. The only real national security threat to the U.S. mainland was from Soviet nuclear weapons. Now, we have felt the pain of terrorist attacks on our own shores. We have tried to fight terrorism “over there”—in Afghanistan and Iraq, especially—but we have discovered that radical Islamic terrorism is not readily confined to a centralized group or location.
Terrorism is not a definable enemy. By its nature, it is a political act against which traditional military force has had demonstrably little enduring impact. Terrorism is a form of warfare that has few boundaries and can be used by anyone, including us, were we to choose to do so. As with other forms of violence within society, the boundaries set by the rule of law are critical, and they must be respected.
In combatting terrorism, moreover, the distinction between “combatant” and “civilian” is virtually invisible, complicating not only the laws of armed conflict that guide the use of military force, but also blurring the lines between the laws of war and the rule of law within the United States.
Ultimately, the answer to this problem is political, rather than legal, which, I’m afraid, puts the onus back on us. As Alexander Hamilton wrote, in Federalist 84, “liberty … must altogether depend on public opinion, and on the general spirit of the people, and of the government.”
Public opinion can and does shape the direction of our government. But if that public opinion is shaped largely by fear, ignorance, and anger, then the results can be disastrous for this country.
This was also a core concern for the founding fathers. As James Madison famously wrote in Federalist 10, “when a majority is included in a faction … popular government … enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens.”
It is also worth recalling Madison’s words from Federalist 51: “If men were angels, no government would be necessary. … In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed, and in the next place oblige it to control itself.”
The foundations of our Constitution reflect not only the laws and institutions within it, but also the values that gave rise to it in the first place.
Terrorism is a real threat to Americans and to America’s interests, but the threat of a terrorist attack does not pose the existential threat that nuclear warheads pose.
Terrorism does, however, pose a more immediate existential threat to this country. Depending on how we respond to that threat, we could seriously and even irrevocably undermine the very foundations of our Constitution.
Which is exactly what every terrorist group that hates this country wishes will happen.
Dr. Schuyler Foerster is president of the Colorado Springs World Affairs Council and currently teaches at the U.S. Air Force Academy as the Brent Scowcroft Professor of National Security Studies. This essay is excerpted from his lecture delivered at the Donald C. Katt Institute for Constitution Studies at The State University of New York (Ulster campus), on 14 March 2016. The views expressed here are his own and do not necessarily reflect the views of any organization with which he is affiliated.