Tuesday, December 20, 2005


Precedents and presidents

Here come the analogies between President Bush's authorization of domestic spying and President Lincoln's suspension of habeas corpus during the Civil War. (Via Civil War Memory.) The analogy has been considered before, of course, but I expect to hear it more in the coming days.

Presumably a defender of President Bush's illicit extension of executive power would argue thusly: Lincoln did it first, and he's a great president who saved the Union. He understood that law in wartime was different from law in peacetime. President Bush understands that too. Ergo, if this President plays a little fast and loose with the law, history will still judge him to be a great President, because he is defending the security of the country against all enemies. His critics are simply the liberal equivalent of Civil-War Copperheads. And so on.

The soundness of such arguments really depends on the validity of two separate arguments. The first is the argument that the two cases at hand really are parallel. If they are, then the second question is whether the actions of each President were justified. One can't argue for President Bush's action by simple appeal to President Lincoln, on the grounds that Lincoln could do no wrong. Precedent can be of some use in determining what is right and wrong, but it cannot be the only consideration. Some of the blogs I read have pointed out that the President is not a king. Their point is that presidents do not have the unchecked power of a king, but it could also be pointed out that leaders in a democratic society do not have the same untrammeled claim on the past that kings do. At least, that's what Thomas Paine, that inveterate critic of executive power, argued in The Rights of Man,
Every age and generation must be as free to act for itself in all cases as the age and generations which preceded it. The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies. Man has no property in man; neither has any generation a property in the generations which are to follow. The Parliament or the people of 1688, or of any other period, had no more right to dispose of the people of the present day, or to bind or to control them in any shape whatever, than the parliament or the people of the present day have to dispose of, bind or control those who are to live a hundred or a thousand years hence. Every generation is, and must be, competent to all the purposes which its occasions require. It is the living, and not the dead, that are to be accommodated.
This is not to say that the past is of no use to the present generation, but you don't have to agree with Paine entirely to be suspicious of appeals to the authority of the past, simply because it is The Past.

As to whether or not the two cases are precisely parallel, I'm not sure. As The Mahablog points out, whatever one thinks about Lincoln's suspension of habeas corpus, he did it in public view instead of behind closed doors. On the other hand, it's a discomfiting fact that Lincoln's arguments in favor of his civil rights policy sounded broadly similar to the ones that President Bush might make. In the past few days I just happened to be reading the portion of James McPherson's Battle Cry of Freedom that deals with this issue. According to Lincoln, says McPherson,
the whole country was a war zone and military arrests in areas far from the fighting front were justified. Civil courts were "utterly incompetent" to deal with such a massive threat to the nation's life. This was precisely the contingency that framers of the Constitution foresaw when they authorized suspension of the writ of habeas corpus in cases of rebellion or invasion. With a homely but effective metaphor, Lincoln affirmed that he could no more believe that the necessary curtailment of civil liberties in wartime would establish precedents fatal to liberty in peacetime "than I am able to believe that a man could contract so strong an appetite for emetics during temporary illness, as to persist in feeding upon them through the remainder of his healthful life." (p. 598-599)
One could defend Lincoln's argument from hasty equations with Bush's argument by pointing out two crucial facts. First, Lincoln emphasized the temporary nature of his policies, whereas I think you will search in vain to find President Bush and his supporters excusing his policy by describing it as temporary. You will find President Bush saying that these are anomalous times that call for special methods, that we are fighting a new war. But you will be hard pressed to find any clear statement about when--if ever--these anomalous times will end. The "war on terror," unlike Lincoln's war for the restoration of the Union, still has no clearly articulated ending. Second, Lincoln seemed to recognize that what he was doing was decidedly unpleasant, and something which clearly indicated that the nation was in a period of sickness rather than health. President Bush, on the other hand, sounds as though he thinks that the leaks about the NSA program are more shameful and unsavory than the program itself. As Tim Burke says, it would at least be nice to see some Lincolnian "gravity and weariness" on the faces of this administration's boosters, some hint of the "haunted conscience" that clearly plagued Lincoln every minute he was in the White House.

But however we might try to extenuate Lincoln's remarks, it's hard not to admit that there are at least some similarities here. Both presidents clearly believed that the Constitution gave them the power to identify a threat to the nation's security and then curtail civil rights as a way of curtailing that threat. Both thought that extraordinary times called for extraordinary measures. But for that reason, one of the things that is most enervating about the President's rhetoric is the constant reminder that we live in a new world, that this is a new war, that we need different thinking to meet a threat unlike any we have ever faced before.

Yet if we really are in a different age, where is the truly "different thinking"? For all the talk about a new war, which supposedly makes everything different, the President's strategies and rationales turn out to be old hat. Gathering executive power in order to gather intelligence and act with speed and awesome force: it's nothing that every war president there ever was has not already thought of. We do need some truly different thinking, because in so many ways we are still in the grips of the ages: still believing that coercion can bring us liberty, still believing that war can bring us peace, still believing that shocking and awing our enemies will make them release the stranglehold of fear they have on us, still believing that forcing ourselves to retch will eventually make the body politic well. And we still believe that we, alone among all the generations that preceded us, are the first to have discovered that these paradoxical beliefs are actually true, despite all the evidence to the contrary that our predecessors have provided us.

When I hear it said that a new world was born on 9/11, and then hear that claim used to defend a continuation of the patterns of violence and coercion that predated that day by millennia, I'm reminded of what Dr. Martin Luther King, Jr., said in response to Black Power activists impressed by Frantz Fanon's exhortations to "turn over a new leaf" and "set afoot a new man" by taking up arms in anticolonial struggle:
These are brave and challenging words: I am happy that young black men and women are quoting them. But the problem is that Fanon and those who quote his words are seeking "to work out new concepts" and "set afoot a new man" with a willingness to imitate old copies of violence. Is there not a basic contradiction here? ...

Humanity is waiting for something other than blind imitation of the past. If we want truly to advance a step further, if we want to turn over a new leaf and really set a new man afoot, we must begin to turn mankind away from the long and desolate night of violence. (Testament of Hope, p. 596-597)
I don't profess to know exactly how we might turn over such a truly new leaf, but at least we might start by declaring our intent to abide by our own rules, even in wartime. For it is that determination, rather than the decision to suspend the law for the sake of security, that would constitute truly "different" thinking.

(Cross-posted at Cliopatria.)

Collective Improvisation:
Another difference: I have no sense that Lincoln derived any pleasure from being a war president, whereas Bush seems to revel in it (or at least used to).

Posted by Anonymous Anonymous on 12/21/2005 07:42:00 AM : Permalink  

I believe that you definitely hit it on the nail, with the "temporary measures" difference. Just as we saw how adamant Bush was to make "liberticide" measures of the Patriot Act permanent, we can see, in my opinion, that he does seem to enjoy having the ability to wield these extra powers permanently, or at least for the rest of his term, regardless of changes in the security situation.

Posted by Blogger TheMalau on 12/26/2005 04:40:00 AM : Permalink  

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