In England amidst the clash of arms the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which we are now fighting, that the judges... stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.
-- Liversidge v. Anderson, 3 All E.R. 338 (1941) (Atkin, L.J., minority opinion).
I first read of this quote, which supplies a useful counterpoint to the old dictum that holds laws are silent during wartime, in Lawless World by Phillipe Sands. After the Civil War, the Supreme Court basically underlined that Lord Atkin voiced the sentiment that applied here as well: the Constitution applies both in war and peace. And, even before Sandra Day O'Connor (she's retired, thus the plebian reference) voiced her displeasure of current overreaching by her putative political allies (the tone has the hurtful disappointed tone suggested by other conservative criticism), her "war is not a blank check" line in Hamdi soon made the great quote list soon enough.
But, the minority opinion was particularly telling respecting recent events since it concerned an application of a WWII British detainee law, one at least put in place with some aforethought and parliamentary input (as was military trials in our country at the time -- this is why cases like Ex parte Quirin are simply not on point as means to defend the panels set up by President Bush). Particularly ironic, the defendant was a Jewish businessman. At any rate, the majority -- in a ruling later deemed wrong -- allowed broad executive discretion. This lead to the minority opinion to remind the other law lords that even in wartime judges have a role to check the executive, not serve as their enablers.* Clearly, I need to learn more about this guy.
Laws are not silent during wartime, even if they are (to summarize the sentiment on Chief Justice Rehnquist's book on the subject -- interesting read) more quiet. And, judges -- especially those on the front lines, so to speak (the f-up concerning the only person prosecuted related to 9/11 -- however weakly -- underlines the point) -- continue to serve as an important restraint. Others dissent ala Justice Jackson in Korematsu, dissent when the judiciary are asked to ratify overreaching:
[A] judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty.... A military order, however unconstitutional, is not apt to last longer than the military emergency.... But once a judicial opinion 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. . . . A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image.
Such sentiments -- on both sides -- were discussed by those from Israel and Great Britain, both who have took them to heart (again, surely somewhat selectively), even though they have had more direct and long lasting problems with terrorist groups than we have in recent years. One person (snottily) pointed out the Britain was somewhat selective in the past concerning treatment of the IRA. I assume then that CJ Warren should be ignored in Brown v. Bd. of Ed., since he earlier supported Japanese internment, which hit closer to home -- he being governor of California, which did not have a large black population. Or, to ignore that over time, Western Europe learnt from their missteps, their human rights laws developing in the last few decades in part in response to such wrongful steps.
Sands also argues that the WWII era is quite relevant here since FDR and Churchill went out of their way to promote international law, especially in the Atlantic Charter. Human rights, a principle against aggression, and respect for free trade all were expressed there. It also led, greatly through our own efforts with a special assist from Eleanor Roosevelt, to the creation of the United Nations. But, like the proverbial Jewish scholars who outgrew their creator -- rejecting direct advice from Yahweh, since He gave them the right to interpret His laws -- now others are more concerned with international law. Great Britain, including respecting the International Criminal Court (within bounds) and environmental concerns, have retained some concerns -- though Blair's allying with Bush suggests they too are not quite as gung ho as they once were.
[Thus, I read today: "With the United States in virtually lone opposition, the United Nations overwhelmingly approved a new Human Rights Council today to replace the widely discredited Human Rights Commission. The vote in the 191-nation General Assembly was 170 to 4, with three abstentions. Joining the United States in opposing the resolution were Israel, the Marshall Islands and Palau. Abstaining were Belarus, Iran and Venezuela." The last country is interesting. Overall, this is sad.]
This is done at our peril. On Air America yesterday, a Slate writer (Daniel Gross, sounding quite serious) noted that even if we were totally independent respecting oil, many of our trading partners would remain dependent. Thus, we would be quite concerned when major sources of oil were somehow threatened. No nation is an island. And, reality dictates this, of course -- for instance, international rules respecting economic rules tend to be honored much more by the current leadership (though somewhat selectively per steel tariffs etc.). Likewise, even with all our rhetoric and dangerous moves, we do need other nations for other reasons too. And, this in some respect will require honoring international law. In fact, Sands notes that even free trade policies raise social matters (as suggested by those who are wary about the concept) that might come back and bite us too. Maybe, then, we will not even be gung ho in this area.
As with laws during wartime, international law is tempered in practice. But, on some level, it always exists. [The book quotes Bolton -- the unconfirmed U.N. representative -- noting treaties really are provisional. They aren't really "law" in any concrete sense when international relations are involved.] And, in the end, as with law generally, it benefits us. We ignore this at our peril. The current leadership, however, is surely quite perilous.
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* The supposed "compulsion" judges are under to further unjust laws again and again has been shown to be something of a legal fiction. This was shown in the slavery context -- the Constitution clearly speaks of slaves as "persons," who as a class have rights. Fifth Amendment. Also, the document goes out of its way to barely speak of the matter, especially in respect to the federal government. Compare this to the Constitution of the Confederate States of America which directly spoke of slavery. [It also directly noted the federal government should have limited control over commerce.]
This led anti-slavery sorts like Justice McLean even to suggest the Commerce Clause did not really cover slavery at all, since slaves are people, not commerce. [Justice Douglas later took up this theme, arguing the Fourteenth Amendment is a better means to secure equality in the business sphere.] Others, however, felt the Constitution and/or the times required some denial of such basic principles. Not always -- even Southern courts did things like free slaves who resided in free areas for set amounts of time. But, enough to underline the ultimate flexibility of judging. See also, Justice Accused by Robert M. Cover.