Let’s face it: in times of war, the Constitution tends to take a beating. With the safety or survival of the nation said to be at risk, the basic law of the land — otherwise considered sacrosanct — becomes nonbinding, subject to being waived at the whim of government authorities who are impatient, scared, panicky or just plain pissed off.
The examples are legion. During the Civil War, Abraham Lincoln arbitrarily suspended the writ of habeas corpus and ignored court orders that took issue with his authority to do so. After US entry into World War I, the administration of Woodrow Wilson mounted a comprehensive effort to crush dissent, shutting down anti-war publications in complete disregard of the First Amendment. Amid the hysteria triggered by Pearl Harbor, Franklin Roosevelt issued an executive order consigning to concentration camps more than 100,000 Japanese-Americans, many of them native-born citizens. Asked in 1944 to review this gross violation of due process, the Supreme Court endorsed the government’s action by a 6-3 vote.
More often than not, the passing of the emergency induces second thoughts and even remorse. The further into the past a particular war recedes, the more dubious the wartime arguments for violating the Constitution appear. Americans thereby take comfort in the “lessons learned” that will presumably prohibit any future recurrence of such folly.
Even so, the onset of the next war finds the Constitution once more being ill-treated. We don’t repeat past transgressions, of course. Instead, we devise new ones. So it has been during the ongoing post-9/11 period of protracted war.
During the presidency of George W. Bush, the United Statesembraced torture as an instrument of policy in clear violation of the Eighth Amendment prohibiting cruel and unusual punishment. Bush’s successor, Barack Obama, ordered theextrajudicial killing of an American citizen, a death by drone that was visibly in disregard of the Fifth and Fourteenth Amendments. Both administrations — Bush’s with gusto, Obama’s with evident regret — imprisoned individuals for years on end without charge and without anything remotely approximating the “speedy and public trial, by an impartial jury” guaranteed by the Sixth Amendment. Should the present state of hostilities ever end, we can no doubt expect Guantánamo to become yet another source of “lessons learned” for future generations of rueful Americans.