The Precarious Strength of Civil Liberties


By William H. Rehnquist

Alfred A. Knopf

234 pp., $26

In the spring of 1861, president-elect Abraham Lincoln escaped a plot to assassinate him as he traveled from Illinois through Maryland on the way to Washington.

Soon, he found the city itself under threat from rebellious Southern troops. But his call for reinforcements from the North to defend the capital was stymied by the likelihood that they also would meet with trouble from Southern sympathizers as they crossed Maryland.

The Northern troops eventually reached Washington - by sea. But in reaction to the danger of the moment, President Lincoln instructed Gen. Winfield Scott to suspend the right of habeas corpus for citizens in the Baltimore- Washington corridor.

In August 1862, that suspension was expanded to include all territory under Union control. It meant not only that civilians could be arrested without being charged with a crime, but also that they could be tried in a military court under military law.

Although the Constitution allows for suspension of habeas corpus in wartime, it does not specify how to go about it or whether it can be ordered by the executive or legislative branch.

Lincoln, the great emancipator, so identified with the highest ideals of American freedom, acted decisively in another role as commander in chief. He weighed those two great responsibilities of government, maintaining security and maintaining individual rights, and in wartime acted in favor of security.

"Are all the law, but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated?" Lincoln said, justifying his order to a special session of Congress on July 4, 1861.

In "All the Laws but One: Civil Liberties in Wartime," William Rehnquist, the chief justice of the United States Supreme Court, dwells at length on Lincoln and his government during the Civil War.

In considering Lincoln's actions, Rehnquist reminds us that never again would a threat to the existence of the nation be so immediate and profound. Never again would there be so little legal and historical precedence on which a president could rely.

"The enemy was not 3,000 miles away across the Atlantic Ocean, or 600 miles away across the Pacific, but within an overland march of a day or two," Rehnquist writes. "Under these circumstances, those suspected of sedition or disloyalty appeared more menacing than they might have otherwise."

Many of the abuses of civil liberties during that war were eventually overturned in court, Rehnquist says, but only after the end of the conflict. Though that was little comfort to those who were ill-treated, he says, it did begin to build a series of court decisions that have clarified civil liberties in wartime. Those decisions continued through World War II, when the internment of Japanese Americans on the West Coast once again severely tested American commitment to civil liberties.

"Without question the government's authority to engage in conduct that infringes civil liberty is greatest in time of declared war," Rehnquist concedes. But he also concludes: "If freedom of speech is to be meaningful, strong criticism of government policy must be permitted even in wartime."

Rehnquist sees some truth in the principle of Roman law, Inter arma silent leges ("In war, the law is silent"). But in general, he expects to see "the historic trend against the least justified of the curtailments of civil liberty in wartime" to continue. "The laws will thus not be silent in time of war," he writes, "but they will speak with a somewhat different voice."

The chief justice selects court cases, such as the trials of Samuel Mudd and Mary Surratt, accused of conspiring with John Wilkes Booth to assassinate Lincoln, to serve as illuminating examples of how American thinking on citizen rights during war has evolved.

A reader is apt to come away with a greater appreciation of how the times shape judicial decisions, proving Justice Oliver Wendell Holmes's aphorism that "the life of the law has not been logic, it has been experience."

* Gregory M. Lamb is editor of the Arts & Leisure section.

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