Most Americans would probably agree with the 19th century abolitionist Wendell Phillips that "eternal vigilance is the price of liberty." But our vigilance has been erratic, and we have paid the price for our inattention. This nation's history is littered with the wreckage of liberties we've surrendered during wartime - the Alien and Sedition Acts that squelched criticism of the government during a conflict with France, the suspension of habeas corpus during the Civil War, the internment of Japanese Americans during World War II. That lamentable history continues to the present as too many Americans have acquiesced in the Bush administration's undermining of personal freedoms in the name of fighting terrorism. The real resistance to overreaching by the executive branch has come from the courts, which have reminded the administration, in the words of former Supreme Court Justice Sandra Day O'Connor, that "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."
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This time, it is the nature of the war that makes vigilance all the more essential, for America's might is directed not at a nation or regime but at a stateless philosophy. It is thus a conflict without end, and one that surely will be lost if liberty is sacrificed to it. This is why it's important that the Supreme Court hold the executive branch to the standards of the Constitution, and why candidates for president should be pressed to explain what sort of people they would name to the high court. Even more important, however, is whether the candidates would act as president to undo the excesses of the current administration.
By "excesses" we refer not to reasonable recalibrations of the relationship between liberty and security, such as the greater information-sharing between the CIA and the FBI authorized by the USA Patriot Act. Whatever its flaws, that legislation was publicly debated and voted on by Congress. Where this administration went wrong was in exploiting the so-called war on terror to take unilateral and sometimes secret actions that undermined the rights of both American citizens and foreign nationals.
For five years, the National Security Agency, without obtaining court orders, eavesdropped on the telephone calls and e-mails of Americans in contact with suspected foreign terrorists. As we now know, the Terrorist Surveillance Program produced a revolt in the Justice Department. It was only after The New York Times reported on the existence of the program that the administration agreed to allow it to be supervised by a special foreign intelligence court. When a judge balked at one proposed surveillance operation, the administration again refused to acknowledge its error; instead, it stampeded Congress into enacting a "modernization" of the Foreign Intelligence Surveillance Act that sidelined the court again.
The same approach marked the administration's treatment of hundreds of foreigners caught up in the post-9/11 sweep of Afghanistan, Pakistan and other countries and confined at Guantanamo Bay Naval Base. Acting on its own, the administration established bare-bones procedures for determining whether the detainees were being properly held for war crimes. When an assistant attorney general asked, "Why don't we just go to Congress and get it to sign off on the whole detention program?," he was accused by Vice President Dick Cheney's chief of staff of wanting to "give away the president's power." That is a sobering reminder of how far this administration has strayed from the principle that it is bound by the rule of law.
After the Supreme Court - again - reprimanded the administration, President Bush won congressional approval for a system of military commissions to try Guantanamo detainees. But, acceding to the president's wishes, Congress voted to strip the detainees of the right to challenge their confinement by seeking the ancient writ of habeas corpus. The court is expected to rule next year on whether the Constitution itself provides the detainees with that avenue of appeal. We hope it will grant them just that.
America is not a police state - far from it. But an overweening executive, a compliant Congress and understandable public anxiety about terrorism have combined to make this country less free. The next president must recognize that this nation is defined by its liberties. Personal freedom must not become collateral damage in the war on terror - for if that occurs, we have lost it all.
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