June 28, 2004 | Commentary on Legal Issues
More than 140 years ago, Abraham Lincoln asked a special session of Congress: "Are all the laws but one to go unexecuted, and the government itself to go to pieces, lest that one be violated?" Lincoln was speaking in defense of his authority to suspend the writ of habeas corpus during the Civil War. But he might have been speaking of contemporary events.
Faced with the advent of international terrorism brought to American shores, President Bush faces an almost intractable problem. When Jose Padilla arrived in Chicago and when Yaser Hamdi was captured in Afghanistan, their immediate criminal prosecution was problematic, at best. The information regarding their intentions was based on intelligence and military sources and not suitable to be aired in a conventional criminal-court setting.
What, then, was a reasonable course? Should the government have released them, hoping that no harm would arise? Should the laws of criminal procedure have taken precedence? Or should some temporizing steps be taken to "provide for the common defense" of our nation and its citizens?
There are no easy answers. History teaches us that in wartime, executive flexibility is not merely desirable, but essential. Courts reviewing such cases must now act with substantial deference. It cannot be that constitutional norms utterly disable our government from responding to grave threats.
"The choice is not between order and liberty," Justice Robert Jackson wrote during the Cold War. "It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."
Only time will reveal the wisdom of Monday's decisions. The stage is now set for further debate in Congress, in the courts and among the American public. We would be wise to ensure that we both accommodate legitimate security interests and provide procedural protections for individual liberty.
Paul Rosenzweig is a senior legal research fellow at the Heritage Foundation's Center for Legal and Judicial Studies.
First appeared in USA Today