LINCOLN, INTERNMENT, AND THE WAR ON TERRORISM

Over at Oxblog, Josh asks whether a case can be made that there has been a steady trend of improvement in restrictions on civil liberties during wartime since before the civil war:

My sense is that curtailment of civil liberties in the war on terror has been relatively minor, continuing a trend that dates back at least to the Civil War. The internment of Japanese-Americans during World War II was atrocious, but it wasn't on nearly so grand a scale as Lincoln's suspension of habeas corpus. And the USA Patriot act is certainly no internment order. And what's interesting is that, in past wars, there has been no slippery slope -- the curtailment of civil liberties really has ended when the war did.

I don't think it's really possible to make this case, so I would also be interested in any argument that tries to make it. Here are my doubts and concerns:

• I'm not sure what the relevant comparisons would be. "Amount of freedom" curtailed? How do you measure freedom? Number of people detained? Number of people detained multiplied by duration (a kind of person-days behind bars measurement)? Number of people detained for transparently unjustifiable reasons? Number of people detained for reasons that were publicly controversial at the time? Number of people detained away from any identifiable theater of operation? It seems to me that you would first need to make a choice about what you're comparing.


• The problems with Lincoln's policies are often overstated, and the problems with internment are often understated, albeit usually by different people. A recent book by Nancy Chang called "Silencing Political Dissent" contains the following short description of Lincoln's policies:
  

  At the start of the Civil War[. . .] Lincoln unilaterally suspended the writ of habeas corpus. As a result, tens of thousands of civilians suspected of being disloyal to the Union cause were detained by the military without charge. (37)

  
  Chang is trying to warn us of the danger that we will fall back into what she considers traditionally American habits of attacking dissent during wartime. But Chang overstates her case. As Mark Neely points out in his Pulitzer Prize winning book The Fate of Liberty: Abraham Lincoln and Civil Liberties (see David Greenberg's discussion here), the number of people detained throughout the war is higher than 13,000, but we can't know for sure because of a variety of factors, including the confusion of war and the difficulty of interpreting fragmentary records. But the numbers don't answer the most important question: who was detained and why. In one typical passage, Neely speaks of "draft evaders, suspected deserters, defrauders of the government, swindlers of recruits, ex-Confederate soldiers, and smugglers" (136-7). Neely's most important conclusion is that the crackdown on dissent that is supposed to have occured during the Civil War in fact never happened. As far as I can tell, Neely's conclusion is that the restrictions on civil liberties that occured during the war were more due to the nature of the war than to a specific government policy, and, in fact, there was much less harm to civil liberties than ordinarily supposed. Border states had more detainees than states away from the fighting. Newspapers were not systematically targetted, and on the rare occasions that newspapers were shut down, orders were usually rescinded because of public outcry, or the newspapers had been engaged in activity that caused genuine concern on the part of the army (one instance, that of the New York World, involved fake calls for the draft, which led to fears that union telegraph lines had been compromised; in fact, the fake notices were part of a scheme to make money off of fluctuations in gold prices). The image of union soldiers picking up "suspected disloyals" in the middle of the night, an image that Chang invokes, is an image from our cultural depictions of modern totalitarianism, not an historically accurate depiction of what happened under Lincoln.
  

  Compare that record with the record on internment during WWII: the detention of over 110,000 citizens and aliens, on the basis of race, against the advice of police and intelligence advisers in the affected communities, and for reasons that were not openly admitted to at the time (or after), from 1941 - 1947 (note the latter date, as well). It seems to me that internment was a more fundamentally repressive action than anything Lincoln did. I say that even though I'm not quite sure how you measure "amounts of" repression. If you want to be reminded of the magnitude of internment, the deceptive justifications offered, and the continuing relevance of the issue, go to Eric Muller's excellent blog that is mostly devoted to the subject.



• I agree that there has been some progress with respect to civil liberties during wartime, but I see it more as the result of the 1960s and judicial solicitude for dissenters and dissenting speech, a tradition that began only in the mid-twentieth century. Even then, if you were communist in the Cold War home front of the 1950s, judicial solicitude didn't always come down in your favor. And this judicial tradition has come under heavy attack by more conservative judges and scholars since then, not to mention from powerful political forces such as the "strict constructionist" wing of Reaganite and post-Reaganite conservatism. So, progress or no, it's not clear what we'll get nowadays in terms of judicial and political opposition to civil liberties restrictions. Just look at the deference on the 4th Circuit, for example.


• Which brings me to my fourth doubt: we are just at the beginning of the "war on terror." This administration has made the war on terror its principal focus. And given what we already know about the experiences of other countries with terrorism (Israel, German, Italy, Spain, etc., as well as the U.S. itself: when was the Antiterrorism and Effective Death Penalty Act enacted? We've been at war against terrorism for some time now already) -- given what we already know about wars on terrorism, we should expect to be in a war on terrorism for a long time, perhaps for as long as any of us is alive. Recently civil libertarians have floated the argument that the likelihood of a long war on terrorism means that we should be especially careful about current attempts to restrict civil liberties. In other words, any sentiment informed by historical optimism is probably not very prudent.